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Smti Parveen Nongrum vs . State Of Meghalaya & 3 Ors. on 12 July, 2019

Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 494 of 2018
Date of Decision: 12.07.2019

Smti Parveen Nongrum Vs. State of Meghalaya 3 Ors.

Coram:
Hon’ble Mr. Justice H. S. Thangkhiew, Judge

Appearance:
For the Petitioner(s) : Mr. M.F. Qureshi, Adv. with
Ms. K. Chisa, Adv.

For the Respondent(s) : Mr. H. Abraham, GA (For R 1-3)

Mr. N. Mozika, Sr. Adv. with
Ms. S.A. Shallam, Adv. (For R 4)

i) Whether approved for reporting in Yes/No
Law journals etc.

ii) Whether approved for publication
in press: Yes/No

1) The brief facts of the case is that the petitioner was
serving as Headmistress in the Islamia Secondary School, Shillong
since the year 1997. On the detection of certain financial irregularities
and misappropriation of School funds, an F.I.R. was filed on the 25th
November, 2000, by the Secretary of the School Managing Committee
before the Officer-in-Charge Sadar Police Station, and a case was
registered under Section 406 I.P.C. The petitioner who was made an
accused therein was subsequently charged sheeted along with two
other persons, namely Shri Kalimullah Khan and Shri K.Z.K. Tareen,
who also happened to be the husband of the petitioner. Since the case
was charge sheeted against the petitioner, on 9th December, 2001, a

WP(C) No. 494 of 2018 Page 1 of 17
resolution was adopted by the Managing Committee of the School to
place the petitioner and the other Assistant Teacher under suspension
with immediate effect under the 1st proviso of the Section-9 (4) of the
Meghalaya School Education Act, 1981. Thereafter pursuant to the
Resolution, the petitioner was placed under suspension.

2) The petitioner then challenged her suspension before the
Gauhati High Court vide WP(C) No. 8673 of 2001, on the ground that
prior approval of the Inspector of Schools was not obtained before
issuance of the suspension order which was mandatory as per the
Meghalaya School Education Act, 1981. The Gauhati High Court then
vide Judgment and Order dated 20th December, 2001 disposed of the
said writ petition with a direction that the Inspector of Schools pass
necessary orders in the matter of suspension of the writ petitioner as
had been referred to him. In compliance thereto, the Inspector of
Schools vide letter dated 8th January, 2002, approved the said
Resolution dated 9th December, 2001 and directed that the petitioner
be kept under suspension, till the petitioner was discharged or
acquitted by a Court from all liabilities of the criminal case.

3) Thereafter, after a long protracted trial, the Court of Chief
Judicial Magistrate, Shillong vide Judgment and Order dated 27th
April, 2017 passed in G.R. Case No. 138 (S) 2001, acquitted the
petitioner from the charges under Section 406 I.P.C.

4) It is the pleaded case of the petitioner that after the said
acquittal, the Secretary of the School Managing Committee had been
duly informed by the petitioner vide letter dated 6th July, 2017, about
the acquittal along with a prayer for reinstatement. According to the
petitioner, neither the School Managing Committee nor the State
respondents initiated any action to revoke the suspension or
considered the reinstatement of the petitioner to her post. As such,
having no recourse she has approached this Court by way of the
instant writ petition.

5) Mr. M.F. Qureshi, learned counsel for the petitioner
submits that the petitioner was placed under suspension pursuant to

WP(C) No. 494 of 2018 Page 2 of 17
the Resolution No. 1 dated 9th December, 2001 on her alleged
involvement in a criminal offence. He submits that since the
suspension of the petitioner was approved by the Inspector of Schools,
till she was discharged or acquitted from all liabilities, the petitioner
decided to await the outcome of the criminal trial and as such, did not
approach the Court again to challenge the approval of her suspension.
He submits that the trial became prolonged and protracted, as the
Secretary of the Managing Committee, who had filed the F.I.R.
intentionally delayed the proceedings by not appearing before the
Court to depose or prove the allegations, in spite of the fact that the
Court of the Chief Judicial Magistrate had afforded him ample
opportunity. He submits that then after 17 long years the verdict was
finally rendered on 27th April, 2017, whereby the petitioner was
acquitted. As such, he submits that the petitioner was made to suffer
only due to the fault of the respondent No. 4 successors’ in office who
had intentionally caused the long delay in the completion of the trial.

6) The learned counsel further submits that though the
petitioner was acquitted honorably, the respondents instead of
revoking the suspension, still kept the petitioner out of service, even
though the suspension as approved by the Inspector of School was to
be enforced till acquittal of the petitioner from the criminal case. The
learned counsel submits that to defeat the Judgment and Order dated
27th April, 2017, she was served with a show cause notice dated 26th
July, 2017, asking her to show cause as to why an enquiry report dated
11th July, 2005 be not accepted. The learned counsel submits that the
action of the respondent No. 4 in reverting to the Departmental
Proceedings is absolutely illegal, inasmuch as, the enquiry report was
submitted to the respondent No. 4 as far back in the year 2005, and
that it is not plausible that after 12 years the petitioner be asked to
show cause to the same. The learned counsel submits that the
petitioner nevertheless, filed a show cause reply against the said
inquiry report and challenged the authenticity and veracity of the said
report which he submits was brought to life after more than 12 years.

WP(C) No. 494 of 2018 Page 3 of 17

He vehemently contended that the inquiry report was fabricated and
made as afterthought to defeat the Judgment and Order of acquittal
passed by the Chief Judicial Magistrate, Shillong.

7) The learned counsel further submits that the petitioner
also filed a representation dated 11th September, 2017 assailing the
findings/opinion of the Inquiry Officer but however the respondent
No. 4 neither replied nor took any decision on the enquiry report
which prompted the petitioner to submit a representation dated 20th
September, 2017 before the respondent No. 3. The petitioner receiving
no response on the representations, then filed an application under the
Right to SectionInformation Act and the respondent No. 3 vide letter dated
21st November 2017, informed the petitioner that the Managing
Committee had not submitted any Resolution for continuation of the
suspension, but that, had preferred an appeal against the Judgment and
Order of the Chief Judicial Magistrate dated 27th April, 2017. He
submits the petitioner was further informed by the Respondent No.3,
that the payment of full salary would be considered only after
revocation of the suspension order by the Managing Committee.

8) The learned counsel for the petitioner then contends that
the entire action of the respondent No. 4 is with the sole aim to keep
the petitioner out of service at any cost and to deprive her of her due
benefits because the respondent No. 4 has in fact discarded the
manipulated enquiry, but now seeks to justify continuation of the
suspension merely on the ground that an appeal had been preferred
against the Judgment and Order dated 27th April, 2017.

9) The learned counsel for the petitioner in conclusion
submits that after the honorable acquittal, the suspension order which
was contingent on the acquittal, is no longer in force and keeping the
petitioner under suspension without further approval from the
respondent No. 3 is illegal and in violation of Section-9 (4) of the
Meghalaya School Education Act, 1981. Further, he submits that the
suspension order was never reviewed nor extended and that filing of
an appeal against the order of acquittal cannot be a ground to prolong

WP(C) No. 494 of 2018 Page 4 of 17
the suspension. As such he reiterates, the petitioner is entitled to be
reinstated to the post of Headmistress with full back wages from the
date of suspension in view of her honorable acquittal from the
criminal case.

10) The learned counsel for the petitioner has placed reliance
on the case of SectionAjay Kumar Choudhury vs. Union of India reported in
AIR (2015) SC 2389 and on the judgment of O.P. Gupta vrs. Union
of India reported in 1987 4 SCC 328 which are leading authorities in
the matters of suspension from service and the law in regard thereto,
and submits that the long suspension is illegal and arbitrary and bad in
law and prayed that the petition be allowed.

11) Dr. N. Mozika, learned senior counsel assisted by Ms.
S.A. Shallam, learned counsel for the respondent No. 4 in reply
submits that the parameters and standard of proof in a criminal trial
and departmental proceeding are different and that acquittal in a
criminal trial on the ground that prosecution could not establish a case
beyond reasonable doubt, does not mean automatic exoneration in the
departmental proceedings. He submits that in the instant case, the
departmental proceedings were kept in abeyance at the request of the
petitioner and after conclusion of the criminal trial, the respondent No.
4, vide letter dated 26th July, 2017 immediately forwarded a copy of
the enquiry report to the petitioner for her representation against the
same. He submits that the petitioner had submitted a representation on
4th August, 2017 and the disciplinary authority is yet to take a final
decision. He further submits that the question of reinstatement will
come only after completion of the departmental proceedings
especially in view of the fact that the Enquiry Officer had returned a
finding of guilt against the petitioner. He also submits that the ratio of
SectionAjay Kumar Choudhury vs. Union of India (supra) is not applicable
in the instant case as the case cited is one of pending criminal trial.

12) Learned senior counsel submits that only because the
petitioner has been acquitted by a Criminal Court for failure of the
prosecution to prove the case beyond reasonable doubt cannot nullify

WP(C) No. 494 of 2018 Page 5 of 17
the departmental proceedings, and that the petitioner cannot be
reinstated or paid the arrear salary as claimed. The learned senior
counsel has placed reliance in the recent case of SectionRaj Narain vs. Union
of India (Civil Appeal No. 3339 of 2019) decided on 01.04.2019
wherein it has been held that an employee would not be entitled to full
back wages on acquittal by a criminal Court unless it is found that
prosecution is malicious. He submits that in the instant case, there is
nothing on record to establish that the prosecution was malicious and
that the police after the investigation had filed charge sheet against the
petitioner. He further submits that the acquittal in the criminal trial
was because of technicalities and the standard of proof required in
criminal trials and that acquittal does not mean that the prosecution
was malicious. He also submits that the inquiry had come to a finding
of guilt against the petitioner and as such until the departmental
proceedings are concluded there is no question for reinstatement.

13) In closing his submissions, the learned senior counsel
submits that the ratio laid down in the case of Teiborlang Sunn vs
State of Meghalaya (judgment dated 28.05.2019) passed in WP(C)
No. 12 of 2018 is also not applicable in the instant case as in the cited
case no departmental proceedings were initiated by the department
against the petitioner, and the suspension was only on account of
arrest in a criminal case. He submits that in the instant case,
departmental proceedings were initiated against the petitioner, and the
same were kept in abeyance during pendency of the criminal trial at
the request of the petitioner, and that after conclusion of the criminal
trial, the departmental proceedings have been resumed. He lastly
reiterated his submissions that the question of reinstatement will arise
only after the disciplinary authority takes a final decision in the matter
and if the disciplinary authority accepts the findings of the Enquiry
Officer that would result in imposition of suitable penalty under the
rules. As such, he submits that no interference is called for and the
writ petition be dismissed.

WP(C) No. 494 of 2018 Page 6 of 17

14) I have considered the submissions of learned counsel for the
parties and examined the materials on record. The basic questions
before this Court is to whether the petitioner is to be reinstated back
into service will be on the following considerations:-

(i) her acquittal in the criminal proceedings,

(ii) whether the suspension was only contingent upon the
criminal trial,

(iii) whether the stated departmental proceedings which have
conducted 12 years ago would have any bearing or
operate as a bar to the reinstatement of the petitioner into
service,

(iv) Pendency of an appeal against the order of acquittal.

15) In the present case as illustrated by the facts placed by the
counsels, the petitioner was placed under suspension on being arrested
in connection with a criminal case. On being suspended by the
Managing of the School, the petitioner had assailed the same before
this court by way of WP(C) No. 8673 of 2001, on the ground of
absence of approval from the competent authority. Thereafter,
pursuant to the Court’s order dated 20th Dec 2001, the Inspector of
School, East Khasi Hills, granted approval to the resolution
suspending the petitioner by letter dated 8th January, 2002. The letter
of approval is quoted herein below:-

“OFFICE OF THE INSPECTOR OF SCHOOL
EAST KHASI HILLS DISTRICT
SHILLONG

No. IS/M-4/2002/48 Dated Shillong the 8th January, 2002

From :- Shri. A. Rymbai,
Inspector of Schools,
East Khasi Hills District,
Shillong.

To :- The Secretary,
Islamia Secondary School,
Shillong.

WP(C) No. 494 of 2018 Page 7 of 17
Subject:- Approval of Resolution No. 1 dt. 9.12.2001.

Reference:- His letter No. ISS/F-23/2001/96 dt. 10.12.2001.

Sir,
Perused the Hon‟ble High Court Order dt. 20.12.2001
passed in WP(C) No. 8673 of 2001, directing the Inspector of
Schools, East Khasi Hills District, Shillong, to refuse or to grant
approval to the resolution No. 1 dt. 9.12.2001 passed by the
Managing Committee to put Smti. Parveen Nongrum, Headmistress,
Islamia Secondary School, Shillong under suspension if there is
sufficient ground to that effect. Also perused the Charge Sheet No.
86/2001 dt. 10.12.2001 in connection with Sardar Police Station
Case No. 191 (11) 2000 which clearly indicated that there is strong
prima facie case established against (1) Shri. Kallinullah Khan (2)
Smti. Parveen Nongrum (3) Shri. KZ.K. Tareen U/S 406 SectionIPC, as
such until and unless Ssmti. Parveen Nongurm, Headmistress,
Islamia Secondary School, Shillong is discharged or acquitted by the
trial court from all liabilities of the criminal case, Smti. Parveen
Nongrum, Headmistress is required to be suspended from her
present post.

I do hereby approved the resolution No. 1 dt. 9.12.2001
passed by the Managing Committee for necessary action till disposal
of the said Criminal Case. Copy of the Charge Sheet is enclosed
herewith as part of the record.

Yours faithfully,
Sd/-

Inspector of Schools
East Khasi Hills District,
Shillong.

Memo No. IS/M-4/2002/ Dated Shillong the January, 2002
Copy to :-

1. The Director of Higher Technical Education, Meghalaya,
Shillong, for favour of information.

2. Shri. B.P. Marngar, Senior Govt. Advocate, Gauhati High
Court, Shillong Bench and Smti. Binoya Dutta, Addl. Govt.
Advocate at Principal seat Gauhati High Court for necessary
appraisal to the Hon‟ble High Court.

Sd/-

Inspector of Schools
East Khasi Hills District,
Shillong.”

16) On perusal of the letter quoted above, the same would reflect
that the approval of suspension was that the petitioner be required to
be suspended from her post till discharged or acquitted by the trial
Court from the criminal case. During the period of her suspension, it

WP(C) No. 494 of 2018 Page 8 of 17
transpires that departmental proceedings were also drawn up against
the petitioner and as per submissions and materials on record, it seems
that it never came to a final conclusion, inasmuch as, the enquiry
report, was not acted upon or taken into consideration by the
respondent Managing Committee. Though the enquiry report dated
11th July, 2005, returned a finding of guilt, it was only after acquittal
that the petitioner was served with a copy of the same for the first
time, vide letter dated 26th July, 2017, and asked to show cause against
the same. The petitioner accordingly had filed show cause and had
taken several grounds assailing the same as to its authenticity and
veracity and the fact that it was brought to the notice of the petitioner
after more than 12 years.

17) The next sequence in these events is that the respondents
have also since preferred an appeal against the order of acquittal, and
it seems they have taken shelter of this fact to not consider
reinstatement of the petitioner back into service. What is interesting to
note, is that though the enquiry proceedings as alleged had arrived at a
finding of guilt as far back as in 2005, the disciplinary authority did
not take any further action on the basis of the same, nor contemplate
any further action and instead the proceedings were left dormant for
12 long years. It appears it was only on the representation of the
petitioner for re-instatement after acquittal, that the respondents are
seeking to justify the continuance of suspension by taking shelter of
the un-concluded disciplinary proceedings and the appeal that has
been filed against the order of acquittal.

18) The respondents never reviewed the suspension of the
petitioner after the acquittal but as noted earlier are continuing to keep
the petitioner under suspension, by seeking to revive the departmental
proceedings and also by preferring an appeal against the order of
acquittal. It is true that the parameters and standard of proof applicable
to a regular criminal trial and domestic inquiry stands on a different
footing and that on the failure of the prosecution to prove the case

WP(C) No. 494 of 2018 Page 9 of 17
beyond reasonable doubts, the departmental proceedings cannot be set
at naught. However, every case has to be examined in its own peculiar
facts and circumstances. In the present case it is to be seen whether the
departmental proceedings will be crucial to decide the fate of the
petitioner or whether the same can be disregarded as it has been
allowed to be dormant for 12 long years. Though, the respondents had
urged that the suspended animation and non-conclusion of the
disciplinary proceedings was at the request of the petitioner to await
the outcome of the criminal proceedings, this at this stage, cannot be
taken to be a valid ground to revive the proceedings and act upon the
enquiry report that was submitted 12 years ago. What is discernable
from the actions of the respondents is that, though they had solely
based the continued suspension of the petitioner to be contingent upon
the outcome of the criminal case, when the outcome was not
favourable to them, they have now resorted to attempt to revive the
departmental proceedings.

19) Another very important aspect that is to be considered is
that the approval granted for the suspension of the petitioner was also
contingent upon the outcome of the criminal proceedings. In this view
of the matter, the respondent Managing Committee on the acquittal of
the petitioner should have reviewed the suspension, inasmuch as, the
approval so granted by the competent authority for the suspension was
till acquittal/discharge or otherwise.

20) Prolonged suspension as in the instant case is to be examined
against the backdrop of the order and approval of the suspension,
culmination of the criminal trial and the departmental proceedings
which were not concluded. Various authorities have been cited by the
learned counsel in support of their respective contentions all of which
are not quoted herein as the others have only persuasive value.

WP(C) No. 494 of 2018 Page 10 of 17

21) In the case of SectionAjay Kumar Choudhary vs. Union of India
reported in (2015) 7 SCC 291 at Para-21 the Hon’ble Supreme Court
has laid down as follows:-

“21. We, therefore, direct that the currency of a
suspension order should not extend beyond three months if
within this period the memorandum of charges/charge-sheet
is not served on the delinquent officer/employee; if the
memorandum of charges/charge-sheet is served a reasoned
order must be passed for the extension of the suspension. As
in the case in hand, the Government is free to transfer the
person concerned to any department in any of its offices
within or outside the State so as to sever any local or
personal contact that he may have and which he may misuse
for obstructing the investigation against him. The
Government may also prohibit him from contacting any
person, or handling records and documents till the stage of
his having to prepare his defence. We think this will
adequately safeguard the universally recognized principle of
human dignity and the right to a speedy trial and shall also
preserve the interest of the Government in the prosecution.
We recognize that previous Constitution Benches have been
reluctant to quash proceedings on the grounds of delay, and
to set time-limits to their duration. However, the imposition
of a limit on the period of suspension has not been discussed
in prior case law, and would not be contrary to the interests
of justice. Furthermore, the direction of the Central
Vigilance Commission that pending a criminal investigation
departmental proceedings are to be held in abeyance stands
superseded in view of the stand adopted by us.”

It is important to note that the above noted judgment,
though the facts may vary slightly, the ratio as laid down, is that there
must be a reasoned order passed for extension of suspension.

22) The other principle that the standard of proof, nature and
scope of a criminal case is very different from those of departmental
proceedings, and that an order of acquittal would not render
departmental proceedings redundant is also a settled proposition and
this has been reiterated in a catena of judgments, that the mere fact
that a person has been acquitted, will not divest the jurisdiction of the
authority concerned either to initiate or to continue with a
departmental inquiry.

WP(C) No. 494 of 2018 Page 11 of 17

23) In the present case however, the petitioner was acquitted
after a prolonged and long drawn criminal trial and she had been kept
out of service for over 17 long years. The disciplinary proceedings had
also been left unconcluded since 11th July 2005, when the enquiry
report had been submitted, and the petitioner was asked to show cause
against the enquiry report only 26th July 2017, that is after over 12
years had elapsed. It is also important to note that after her acquittal,
there was no review as to whether suspension should continue, or any
approval sought to continue with the suspension, inasmuch as, as
discussed earlier, the approval and continuance of her suspension was
contingent upon the outcome of the criminal trial. This was in spite of
letter dated 21st July 2017 (Annexure IX of the writ petition) whereby
the respondent No.3 had directed the respondent No. 4 to take
necessary action as per the order of acquittal. In this context, the letter
the petitioner received from the Respondent No. 3 (District School
Education Officer) dated 21st November, 2017, therefore assumes
great significance as it reflects the stand of the Respondent No. 4
Managing Committee in the matter of continuance of suspension of
the petitioner. The said letter is quoted herein below:-

“OFFICE OF THE DISTRICT SCHOOL EDUCATION OFFICER
EAST KHASI HILLS DISTRICT,
SHILLONG.

No. DSEO/RTI/Misc/2017/15 Dated Shillong, the 21st Nov, 2017.

From : Smt. R.M. Pariat,
District School Education Officer.
East Khasi Hills District.
Shillong.
To,
Parveen Nongrum,
Headmaster U/S,
Islamia Sec. School.

Subject: Information under SectionRTI Act.
Sir/Madam,

With reference to your R.T.I application Dt. 26.10.2017, the
following information are hereby furnished:-

WP(C) No. 494 of 2018 Page 12 of 17

1. The Managing Committee has not submitted any resolution
for continuation of your suspension but perusal of letter No.
ISS/F-MC/2017/A Dt. 24.6.2017 received from the Secretary
Managing Committee of Islamia Secondary School revealed
that the Managing Committee has preferred an appeal against
the Judgment passed in GR Case No. 138 (S) of 2001 dated
27.7.2017. . (copy enclosed)

2. Your request conveyed under your letter dt. 27th, September,
2017 inter alia for payment full salary can be considered after
revocation of the suspension order by the managing
committee.

3. Seeking information under RTI act is the right of the citizen
and hence there is no question of forcing or harassing to
apply for the information under the said statute. Information
is furnished only on written request.

Yours faithfully,
Sd/-

District School Education Officer,
East Khasi Hills District.

Shillong.”

24) It is to be noted that the respondent Managing
Committee instead of reviewing the suspension or seeking further
approval, have preferred an appeal against the order of acquittal and
are not reviewing or re-instating the petitioner, on the ground that an
appeal has been preferred. Another aspect that deserves consideration
and has caught the attention of this Court is the unconcluded
disciplinary proceedings. The materials on record show that the
disciplinary proceedings did not proceed after 2005, and admittedly, it
was only after a period of 12 years, that the petitioner was given a
copy of the enquiry report to represent against. Even after a lapse of
two years after the issuance of show cause no further action has been
forthcoming from the disciplinary authority, nor any decision taken on
the same. The entire sequence of action and inaction of the
respondent No. 4 especially the manner in which the petitioner’s case
has been handled after the acquittal, therefore smacks of
discrimination and arbitrariness.

WP(C) No. 494 of 2018 Page 13 of 17

25) In this context it would be apposite to refer to the case of
SectionO.P.Gupta vs Union of India reported in (1987) 4 SCC 328 wherein
Para 15 the Hon’ble Supreme Court has held as follows:-

“15. We have set out the facts in sufficient detail to
show that there is no presumption that the government
always acts in a manner which is just and fair. There
was no occasion whatever to protract the departmental
inquiry for a period of 20 years and keeping the
appellant under suspension for a period of nearly 11
years unless it was actuated with the mala fide intention
of subjecting him to harassment. The charge framed
against the appellant was serious enough to merit his
dismissal from service. Apparently, the departmental
authorities were not in a position to substantiate the
charge. But that was no reason for keeping the
departmental proceedings alive for a period of 20 years
and not to have revoked the order of suspension for over
11 years. An order of suspension of a government
servant does not put an end to his service under the
government. He continues to be a member of the service
in spite of the order of suspension. The real effect of the
order of suspension as explained by this Court in SectionKhem
Chand v. Union of India is that he continues to be
member of the government service but is not permitted
to work and further during the period of suspension he
is paid only some allowance – generally called
subsistence allowance – which is normally less than the
salary instead of the pay and allowances he would have
been entitled to if he had not been suspended. There is
no doubt that an order of suspension, unless the
departmental inquiry is concluded within a reasonable
time, affects a government servant injuriously. The very
expression „subsistence allowance‟ has an undeniable
penal significance. The dictionary meaning of the word
„Subsist‟ as given in Shorter Oxford English Dictionary,
Vol. II at p. 2171 is “to remain alive as on food ; to
continue to exist”. “Subsistence” means – means of
supporting life, especially a minimum livelihood.
Although suspension is not one of the punishments
specified in Rule 11 of the Rules, an order of suspension
is not to be lightly passed against the government
servant. In the case of SectionBoard of Trustees of the Port of
Bombay v. Dilipkumar Raghavendranath Nadkarni the
Court held that the expression „life‟ does not merely
connote animal existence or a continued drudgery
through life. The expression „life‟ has a much wider
meaning. Suspension in a case like the present where

WP(C) No. 494 of 2018 Page 14 of 17
there was no question of inflicting any departmental
punishment prima facie tantamount to imposition of
penalty which is manifestly repugnant to the principles
of natural justice and fair play in action. The conditions
of service are within the executive power of the State or
its legislative power under the proviso to SectionArticle 309 of
the Constitution, but even so such rules have to be
reasonable and fair and not grossly unjust. It is a clear
principle of natural justice that the delinquent officer
when placed under suspension is entitled to represent
that the departmental proceedings should be concluded
with reasonable diligence and within a reasonable
period of time. If such a principle were not to be
recognized, it would imply that the executive is being
vested with a totally arbitrary and unfettered power of
placing its officers under disability and distress for an
indefinite duration.”

26) To put the case in perspective on the points and the
discussions dwelt on hereinabove, the facts that have crystallized on
the aspects as set out in para 14 of this judgment are that firstly, the
initial suspension of the petitioner, as approved by the official
respondents was contingent upon her being acquitted or discharged
from the criminal case. The same however, had also been accepted by
the petitioner who did not challenge the order of suspension and it is
only after acquittal that she represented for reinstatement. Secondly,
the respondent No. 4 never reviewed the suspension nor sought
approval from the official respondents for continuance of the
petitioner’s suspension after her acquittal in 2017, and thirdly, the fact
that is apparent on the face of the record, is that the respondents had
abandoned the disciplinary proceedings from 2005 itself and have
never acted upon the enquiry report and are solely placing reliance on
the appeal filed against the acquittal, to justify the continuance of
suspension of the petitioner.

27) In the backdrop of the circumstances and facts as
discussed above no justifiable grounds are available to the respondent
No. 4 to continue to keep the petitioner under suspension, as such she
is entitled for reinstatement in service.

WP(C) No. 494 of 2018 Page 15 of 17

28) With regard to the back wages, the recent judgment of the
Hon’ble Supreme Court dated 01.04.2019 in the case SectionRaj Narain vs.
Union of India (Civil Appeal No. 3339 of 2019) as placed by the
learned counsel for the respondent deals with the entitlement of an
employee to back wages. This aspect as discussed in the said
judgment was observed in Para 6 is quoted herein below:-

“6. The decision of Ranchhodji Chaturji Thakore
(supra) was followed by this Court in SectionUnion of India
and Others v. Jaipal Singh (supra) to refuse back wages
to an employee who was initially convicted for an
offence under Section 302 read with Section 34 IPC and
later acquitted by the High Court in a criminal appeal.
While refusing to grant relief to the Petitioner therein,
this Court held that subsequent acquittal would not
entitle an employee to seek back wages. However, this
Court was of the opinion that if the prosecution is
launched at the behest of the department and the
employee is acquitted, different considerations may
arise. The learned counsel for the Appellant endeavored
to distinguish the prosecution launched by the police for
involvement of an employee in a criminal case and the
criminal proceedings initiated at the behest of the
employer. The observation made in the judgment in
SectionUnion of India and Others v. Jaipal Singh (supra) has
to be understood in a manner in which the department
would become liable for back wages in the event of a
finding that the initiation of the criminal proceedings
was mala fide or with vexatious intent. In all other
cases, we do not see any difference between initiation of
the criminal proceedings by the department vis-à-vis a
criminal case lodged by the police. For example, if an
employee is involved in embezzlement of funds or is
found indulging in demand and acceptance of illegal
gratification, the employer cannot be mulcted with full
back wages on the acquittal of the person by a criminal
Court, unless it is found that the prosecution is
malicious.”

29) The ratio of the judgment above holds that an employer
cannot be held liable to pay full back wages on the acquittal of the
person by a criminal Court unless it is found that prosecution is
malicious. The facts of the present case and the findings arrived by
this court, especially in the light of the arbitrary action of the

WP(C) No. 494 of 2018 Page 16 of 17
respondent No. 4, warrant that the petitioner be paid back wages, for
the period that she has been kept under suspension even though the
petitioner never challenged the approval for continuance of her
suspension which was conditional on the outcome of the criminal trial
(letter dated 8th January 2002 Annexure V of affidavit of respondent
No. 4).

30) For the foregoing reasons the writ petition is partly
allowed and the respondents are directed to reinstate the petitioner
forthwith to her post. The petitioner shall be entitled to 75% (seventy
five percent) of her back wages that is from 9th December 2001 till
date. This direction is issued, also in view of the fact that the claim of
the petitioner that she has been honourably acquitted, stands un-
rebutted by the respondents and is further substantiated by the
proceedings of the criminal trial. However, full back wages and
interest thereon, will be not payable as there is no element of
malicious prosecution. The computation and payment of the back
wages should be done as expeditiously as possible and not later than
eight weeks from the date of receipt of certified copy of this order.

31) No order as to cost.

JUDGE

Meghalaya
12.07.2019
“V. Lyndem PS”

WP(C) No. 494 of 2018 Page 17 of 17

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