The Bombay High Court has held that payment of full salary and allowances cannot be an automatic consequence of an acquittal in a criminal trial; and the entitlement of a suspended employee to receive full salary during the period of suspension upon acquittal depends on the facts and circumstances of each case.
The Court clarified that the Disciplinary Authority possesses the discretion under the relevant service regulations to consider the circumstances of the case and take a decision whether to sanction full or partial salary and allowances during the period of suspension, or to order that the period of suspension be converted into leave of any kind due and admissible to the employee.
When an employee embroils himself in a criminal prosecution, such as in bribery cases, and the prosecution is not lodged at the behest of the employer, the employer cannot be saddled with the financial burden of paying full salary and allowances for the period of suspension, added the Court.
The Division Bench comprising Justice S.M. Modak and Justice Sandeep V. Marne observed that under Regulation 75 of the Mumbai Municipal Corporation (Service) Regulations, 1989, when a suspended corporation employee is reinstated, the Competent Authority is required to pass a specific order regarding the pay and allowances to be paid for the period of suspension and whether or not the said period shall be treated as a period spent on duty.
The Bench noted that under sub-regulation (3) of Regulation 75, if the Competent Authority is of the opinion that the suspension was wholly unjustified, the corporation employee becomes entitled to be paid full pay and allowances, and the period of suspension is to be treated as a period spent on duty for all purposes. However, under sub-regulation (5), if the Competent Authority does not hold that the suspension was wholly unjustified, the employee becomes entitled to be paid only such amount (not being the whole) of pay and allowances as the Competent Authority determines.
The Bench further observed that under the proviso to sub-regulation (7), the Competent Authority can direct the conversion of the period of suspension into any kind of leave that may be due and admissible to the corporation employee. The Municipal Commissioner had considered the entire factual background, particularly the fact that the sanctioned departmental enquiry had to be abandoned due to the technical difficulty of the Anti-Corruption Bureau (ACB) filing an appeal, and accordingly decided to convert the period of suspension into different kinds of leave.
The Bench observed that upon the acquittal of a suspended employee, although reinstatement is guaranteed, the payment of full salary cannot be an automatic consequence and depends on the facts and circumstances of each case. In cases involving criminal prosecution in respect of private affairs or where the arrest and detention result in suspension in bribery cases, the employer cannot be saddled with the financial burden of paying full salary and allowances since the suspended employee embroils himself in the prosecution.
Relying on the Apex Court’s judgment in Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra [1997] 2 SCR 591, the Bench observed that the grant of consequential benefits with all back wages cannot be granted as a matter of course upon acquittal. The Disciplinary Authority has the discretion to pass an order deciding not to treat the suspension period as spent on duty, particularly for the purpose of payment of salary and allowances.
The Bench noted that the Petitioner was repeatedly prosecuted on charges of bribery and corruption, and the criminal prosecution was not at the behest of the Municipal Corporation. Therefore, the Competent Authority rightly exercised its discretion by making an order for the denial of full salary and allowances during the period of suspension.
Briefly, the Petitioner joined the services of the Municipal Corporation of Greater Mumbai (MCGM) in 1977 as a Junior Medical Officer and was promoted to the post of Medical Officer of Health on 1 January 1980. He was posted as Medical Officer of Health in ‘S’ Ward in the year 1985. On 20 November 1986, the Petitioner was arrested by the Anti-Corruption Bureau (ACB) alleging demand and acceptance of illegal gratification of Rs.2,000/-.
The Petitioner was detained in custody and placed under suspension with effect from 29 November 1986. A case was registered against him, and a chargesheet was under Section 161 of the IPC read with Sections 5(2), 5(1)(d) and 5(1)(a) of the Prevention of Corruption Act, 1947. However, he was acquitted of all charges framed against him. Following his acquittal, the Petitioner was reinstated in service with effect from 10 May 1990 by revoking the suspension. The Municipal Commissioner accorded sanction to conduct a departmental enquiry, but the chargesheet was not issued because the ACB filed Criminal Appeal before the High Court challenging the acquittal order. This appeal was subsequently dismissed.
The Petitioner was once again trapped by the ACB on 26 December 2000 on the allegation of demand and acceptance of illegal gratification, placed under suspension with effect from 3 January 2001, and compulsorily retired from municipal service upon attaining the age of 55 years with effect from 4 November 2005 under Rule 14B of the Mumbai Municipal Corporation (Pension) Rules.
Later, a file note put up for the treatment of the suspension period from 29 November 1986 to 9 May 1990 was approved by the Municipal Commissioner on 19 September 2010, deciding to treat the suspension period as earned leave of 130 days, half pay leave of 368 days, and 759 days as leave without pay. The Petitioner therefore filed the petition seeking a direction for the treatment of the suspension period from 29 November 1986 to 9 May 1990 as duty and for the grant of full pay and allowances for the said period.
Appearances:
Advocates Ashraf Shaikh and Rajashri D. Sapale, for the Petitioner
Senior Advocate A.V. Bukhari, along with Advocates Burhan Bukhari, Rupali Adhate, and Komal Punjabi, for the Respondent
