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TMI Blog2015 (8) TMI 1579X X X X Extracts X X X X X X X X Extracts X X X X ..... ake a long time. The 1st respondent is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court - if the arguments of the petitioner have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced. Though by placing reliance on a decision of the Hon'ble Apex Court in Garikapti Veeraya v. N. Subbiah Choudhry [ 1957 (2) TMI 54 - SUPREME COURT] , learned counsel for the petitioner contended that appeal is a continuation of the proceedings and that Vigilance has not given a clearance to the case of the 1st respondent to the Screening Committee, this Court is not inclined to accept the same. The Writ Petition is dismissed. - The Hon'ble Mr. Justice S. Manikumar And The Honourable Mr. Justice G. Chockalingam For the Appellants : Mr. S. Udayakumar. For 1st Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from 01.10.2004 and second time bound promotion E-65 pay scale of Rs.32900-58000 (ie., DGM (Finance) Grade Scale with effect from 01.10.2009 with all consequential benefits, including arrears. 3. Opposing the said prayer, the writ petitioner, in their reply statement, submitted that first time bound promotion would be from 01.10.2004, subject to the officer having (i) prescribed Bench Mark of APAR for the last four years, ie., from 01.10.2000 to 30.09.2004 (ii) the officer should have touched the minimum of the next IDA Scale and (iii) Vigilance clearance for the prescribed period. The 1st respondent was under suspension from 15.07.2004 to 14.02.2005, which falls under the period of consideration for the 1st time bound promotion. Therefore, as per the rules, the case of the 1st respondent was not considered. 4. It was also stated in the reply statement that the Criminal Appeal was pending from the year 2008 and therefore, any further action, would be only after the outcome of the criminal appeal. BSNL has stated that when the case of the respondent for the first time bound promotion, was referred to the Vigilance, as per BSNL HQ order, dated 20.09.2012 and hence, his case could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has issued Executive Promotion Policy (EPP) on 18.01.2007. As per the policy, all the Executive Officers, like the 1st respondent, were entitled to the first time bound promotion, with effect from 01.10.2004 and second time bound promotion on 01.10.2009. Time bound promotion would be based on performance, during the period of service to the next IDA scale, upon completion of five years of service from the date of grant of 1st time bound promotion. 8. Material on record further discloses that it is the case of the 1st respondent that he was served as officiating CAO from 13.11.2002 (vide CGMT Ahmedabad Memo No.Staff/13-37/off.CAO/F/47, dated 13.11.2002). As per CAO (Adhoc) Promotion, BSNL Corporate Office Order No.2-12/2008/SEA, BSNL, dated 27.03.2009, he was promoted to Senior AO to CAO and his name was included at Sl.No.4 in the promotion list, in the scale of Rs.14,500-350-18,700 (prerevised) (Rs.29100-54500 revised scale). According to him, he was a permanent employee (Senior AO) on regular basis from 03.03.1997, in BSNL and also permanently absorbed in BSNL, vide Presidential Order No.GJT DOT-Cell/Absorbtion/BSNL/2003-04/58, dated 09.03.2004. He has completed 1st time bound fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entations for revision of pay and allowances. While considering the effect of acquittal, the Hon'ble Division Bench of the Himachal Pradesh, held as follows: The preferment of acquittal appeals cannot however, be regarded as the continuance of the trial. The trials have concluded with judgment of acquittal. (See State v. B.C.Dwivedi, 1983 (2) XXIV GLR 1315). The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just.......... If the acquittal appears are allowed and the petitioner is convicted, there is nothing to prevent the competent authority from dealing with the petitioner in accordance with law. If, on the other hand, the acquittal appears fail and a departmental inquiry, if any, is ordered to be instituted on the same charges, it would not be fair and just reasonable to suspend the petitioner once against in view of the initial presumption of innocence having been reinforced twice over. 13. In State of West Bengal v. Hari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It was the contention of the learned counsel appearing for the petitioner therein that after acquittal, he was entitled to get his gratuity, with interest, as per Rule 68 of the CCS (Pension) Rules. He has also pleaded that he was eligible to be promoted as Deputy Ranger, with effect from the date, his immediate juniors were promoted. Following the decision in Shri Surinder Kumar v. State of Himachal Pradesh reported in 1985 (3) SLR 254, the Calcutta High Court allowed the petition and directed the respondents therein to release the gratuity to the petitioner therein with interest, as per Rule 68 of the CCS (Pension) Rules. The respondents therein were further directed to open the sealed cover and in case, the name of the petitioner therein has been recommended by the Departmental Promotion Committee for promotion to the post of Deputy Ranger, necessary consequential orders, be passed. 15. In State of Haryana v. Banwari Lal reported in 2010 SCC Online P H 183, a Hon'ble Division Bench of Punjab and Haryana High Court, on the very same issue, at Paragraphs 6 and 7, held as follows: 6. Only contention which has been pressed by learned counsel for the appellants is that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part and recover the same if the pensioner is found guilty in any departmental or judicial proceedings. 13. As per third proviso to Rule 9 of the Pension Rules, withholding of entire pension or gratuity or both may be imposed against the retired Government servant upon being found guilty or upon conviction in a Court of Law for proven grave offences of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of a woman and misconduct. 14. Even after retirement, if the pensioner is convicted of a serious crime or found guilty of gross misconduct, the Government is empowered to withhold or withdraw pension in full or in part permanently or for a specified period. Rules 8 and 9 of the Pension Rules deal with the power of the Government to withhold or withdraw pension after conviction either in the departmental proceedings or judicial proceedings. 15. Insofar as Rule 52 of the Pension Rules is concerned, the Government is empowered to withhold pension during pendency of the departmental or judicial proceedings. But, however, the Government employee is entitled for provisional pension from the date of retirement till the final orders are passed eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of the disciplinary authority by the Department itself. Therefore, the final orders are required to be passed for the purpose of payment of retirement benefits. 20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE OF WEST BENGAL s case (1 supra), referred to above. Para 9 of the said judgment reads as follows:- The submission of Mr. Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.P. State Electricity Board reported in 2013 SCC Online MP 1004, the petitioner therein was granted the benefit of First Higher Pay Scale, by order, dated 23.8.1990, in the post of Junior Engineer. He was entitled to Second Higher Pay Scale, which was not granted, because of the criminal prosecution launched against the petitioner, under the Prevention of Corruption Act, by Lokayukt, which led to suspension. On 12.12.2000, the petitioner therein was acquitted. Thereafter, he was reinstated on 3.1.2001. As his request for grant of higher pay scale, was not considered, he preferred a Writ Petition, which was disposed of, on 8.3.2006, with a direction to the respondent therein to consider his claim. Subsequently, the Department rejected his claim, stating that the prosecution has filed a Criminal appeal, against acquittal and therefore, recommendations were given in a sealed cover. Selection Committee also approved that the recommendations, in respect of the second higher scale, would be considered, only after the outcome of the said Criminal Appeal. Contention of the petitioner therein was that having been acquitted, criminal case cannot be said to be pending merely because an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that there is no cogent and reliable evidence and that the complainant himself was not clear. The Court has further held that averments made by the prosecution cannot be accepted and resultantly, when there was no evidence, the 1st respondent herein is entitled to be acquitted. 20. While that be the clear finding recorded in the judgment, acquitting the respondent, under the premise of appeal, being filed and pending, against the order of acquittal, the 1st respondent cannot be deprived of the time bound IDS scale upgradation, endlessly. Disposal of the appeal may take a long time. The 1st respondent is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court. Thus, if the arguments of the petitioner have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be counten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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