Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J&K Through … vs Pawan Kumar on 6 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 09.07.2025
Pronounced on: 06.08.2025
WP(C) No. 454/2024 CM No. 1170/2024
1. Union Territory of J&K through Commissioner/
Secretary to Government, Home Department
Civil Secretariat, Srinagar
2. Director General of Police, Kashmir.
3. Inspector General of Police, Kashmir.
4. Deputy Inspector General of Police, CKR.
5. Senior Superintendent of Police, Srinagar.
6. Superintendent of Police, Cargo, Srinagar.
...Petitioners/Appellant(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Maja Majeed, Assisting Counsel.
Vs.
Pawan Kumar
S/o. Munshi Ram
R/o. Surinsar Jammu.
...Respondent(s)
Through Mr. Bhat Fayaz, Advocate with
Ms. Nighat Amin, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjay-Parihar-(J)
1. By this writ petition, challenge is thrown to the order/judgment
dated 28.09.2022 passed by the Central Administrative Tribunal, Srinagar
(hereinafter referred to as the „Tribunal‟) in OA No. 565/2020 titled
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“Pawan Kumar vs. UT of J&K and others“, whereby the Tribunal has
proceeded to allow the OA of the respondent by directing the appellant
herein to treat the suspension period of the respondent as on duty and
grant him all the consequential benefits, which exercise was directed to be
completed within a period of two months.
2. Being aggrieved, the petitioners seek quashing of the order on the
ground that the Tribunal, without considering the objections of the
petitioners, has passed the order impugned which is contrary to the facts
and rules/regulations governing the subject, and, therefore, deserves to be
set aside; that the respondent was involved in a criminal case for no fault
of his employer and that his detention was as a consequence of his
involvement in the FIR and not an outcome of any departmental
proceedings; that reliance on Regulations 108-B and 109 of the Jammu
and Kashmir Civil Service Regulations, 1956 (for short „Regulations‟
hereafter) was uncalled in the given facts and circumstances; that the
Tribunal has also failed to consider the issue of limitation as the OA had
been filed after more than six years, thus, in terms of Section 21 of the
Administrative Tribunals Act, application of the respondent was not
maintainable having not been filed within one year from the date of the
order; and that the respondent had completely failed to explain the delay
in filing the OA.
3. Briefly stating, the respondent, while serving in the Police
Department as Selection Grade Constable, was arrested on 04.03.2008 by
Police StationJajjar Kotli, Jammu, for his involvement in FIR 19/2008
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under Sections 302, 148, 323, 142, 341 RPC and he remained under
detention for five years and 39 days and was ultimately acquitted on
30.03.2013. On account of his involvement in criminal case, the
respondent was placed under suspension on 12.06.2008. After his
acquittal, a departmental enquiry was initiated against him with regard to
his prolonged absence from duty owing to his involvement in criminal
case. The enquiry officer vide report dated 30.10.2013 recommended as
under: –
1. SqCt Pawan Kumar 640/JKAP 5th BN (AWP)
ARP-993983 is hereby permitted to resume his duties
and reinstated into services with immediate effect.
2. The period of his absence w.e.f., 28.02.2008 to
04.03.2008 is treated as Dies-non in the analogy of no
work no pay.
3. The period he remained under police/judicial
custody w.e.f 04.03.2008 to 11.04.2013 i.e., 05 years
and 39 days is decided as under:
04.03.2008 to 28.12.2008 i.e., 300 days as on
earned leave.
29.12.2008 to 11.04.2013 i.e., 12306 days as
extraordinary leave.
4. The period w.e.f., 12.04.2013 (i.e., the date he
applied for resumption) till date is treated as on duty.
4. The recommendations of the enquiry officer were accepted by the
SSP, Srinagar, who vide his order No.572 of 2014 dated 11.03.2014
reinstated the respondent and treated his period of absence as leaves of
different kind. Against the said order, the respondent preferred a statutory
appeal before the Range Police Headquarters, Srinagar, which was
disposed of vide order dated 18.02.2015 by holding that Regulations 108-
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4B and 109 of the Regulations were not applicable to the case of the
respondent and that, his period of absence stood rightly treated as leaves
of different types so as to protect him from future service complications as
also to remove stigma of suspension. On the ground that the acquittal of
the respondent in the criminal case was not an honourable one, the appeal
was rejected. Thereafter, the respondent laid OA before the Tribunal
which in terms of order impugned has been disposed of by holding as
under:
“It is undisputed that the applicant was exonerated of
all the charges levelled against him and was acquitted
vide judgment dated 30.03.2013. Pursuant to acquittal
of the applicant of all the charges and in view of Rule
108-B quoted above, we are of the considered view that
the applicant’s suspension period between the date of
arrest and acquittal is liable to be treated as spent on
duty. We further find that Rule 108-B (supra) is fully
applicable to the case in hand and the applicant is
entitled to the relief claimed by him regarding treatment
of his suspension period.’
5. Learned counsel appearing for the petitionerss vehemently argued
that the respondent has been fairly treated. The period from 04.03.2008 to
28.12.2008 has been treated as on earned leave, which would entitle him
to full salary. The period of absence from 29.12.2008 to 23.12.2009 has
been treated as “half pay leave” and w.e.f., 24.12.2009 to 12.04.2013 has
been treated as “extraordinary leave”. This clearly speaks of employer
having taken a humanitarian view in the case though, in law, the
respondent was not entitled to any back wages. The suspension was
ordered for the conduct of respondent having involved himself in the
crime. Learned counsel would further urge that the detention of the
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5respondent was not actuated by any act of the department, and, therefore,
the later cannot be made accountable for the fault of respondent as he was
away from service because of his own conduct. The petitionerss cannot be
made liable to pay for the period for which they could not avail any
services of the respondent.
6. Per contra, supporting the order passed by the Tribunal, it was
argued by learned counsel appearing for the respondent that since the
employer had placed the respondent under suspension w.e.f. 12.06.2008
for his involvement in a criminal case in which he ultimately earned
acquittal, as such, he would be entitled to full salary for the period of
suspension after he is reinstated.
7. We have heard learned counsel appearing for the parties and
considered the material on record.
8. The Tribunal appears to have taken note of Regulation 109 of the
Regulations and concluded that since the respondent stood exonerated of
all the charges levelled against him, so, pursuant to his acquittal and in
view of Regulation 108-B, the suspension period post his arrest until the
earning of acquittal order, is liable to be treated as „period spent on duty‟.
For convenience, Regulations 108-B and 109 are reproduced as under: –
“108-B. Reinstatement after suspension.
i. When a Government Servant who has been dismissed,
removed, compulsorily retired before attaining the age of
superannuation, or suspended is reinstated, the authority
competent to order the reinstatement shall consider and made a
specific order: –
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a. Regarding the pay and allowances to be paid to such
Government Servant for the period of his absence from duty; and
b. Whether or not the said period shall be treated as a period
spent on duty.
ii. Where the authority mentioned in sub-rule (i) is of the
opinion that the Government servant has been fully exonerated or
in the case of suspension, that it was wholly unjustified the
Government servant shall be given the full pay and allowances to
which he would have been entitled had he not been dismissed,
removed, compulsorily retired before attaining the age of
superannuation or superseded, as the case may be. The period of
absence from duty shall be treated as period spent on duty.
109. Committals to prisons.
A servant of the State committed to prison either for debt or on a
criminal charge, should be considered as under suspension from
the date of his arrest and not allowed to draw any pay until the
termination of the proceeding against him, when an adjustment of
his allowances should be made according to the circumstances of
the case, the full amount being given only in the event of the
officer being acquitted of blame or if the imprisonment was for
debt, of its being proved that the officer‟s liability arose from
circumstances beyond his control.”
9. From plain reading of the aforesaid Regulations, it is seen that
what Regulation 108-B provides is that, if an employee is reinstated post
his suspension, which was wholly unjustified, the period of absence shall
be treated as period spent on duty rendering the employee entitled to full
pay and allowances to which he would have otherwise been entitled, had
he not been suspended. Whereas, Regulation 109 speaks of a Government
servant committed to a prison either for debt or on criminal charge, he
should be deemed to be under suspension from the date of his arrest and,
therefore, not entitled to draw salary until termination of the said criminal
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proceedings. He shall be entitled to full amount only in the event of the
officer being acquitted of the blame or if the imprisonment is for debt of
its being proved that the officer‟s liability arose from circumstances
beyond his control.
10. In “(1994) 1 SCC 541, Management of Reserve Bank of India,
New Delhi Vs. Bhopal Singh Panchal”, the Regulations of Reserve
Bank of India governing the service conditions of the bank employee were
under consideration of Hon‟ble the Supreme Court. Under Regulation 46-
B, the absence due to arrest was not to be treated as due to circumstances
beyond the control of the employee. Further Regulation 47(1) of the said
Regulations provided that the employee, who is under arrest in a criminal
charge, shall be considered as being or having been under suspension
from the date of his arrest. Similarly, Regulation 46(2) further provided
that subsistence allowance paid to the employee during suspension is
adjustable against the pay and allowance which become admissible to the
employee on regularization of suspension period as duty or leave.
Regulation 46(4) provided for reinstatement in service of employee who
has been dismissed on account of his conviction.While considering the
request of the employee for payment of back wages for the period in
custody, it was held thus:
“15. We have already profited out the effect of the relevant
provisions of Regulations 39, 46, 47. The said regulations read
together, leave no manner of doubt that in case of an employee
who is arrested for an offence as in the present case, his period of
absence from duty is to be treated as not being beyond
circumstances under his control. In such circumstances, when he
is treated as being under suspension during the said period, he is
entitled to subsistence allowance. However, the subsistenceWPC 454/2024 P a g e N o |7
8allowance paid to him is liable to be adjusted against his pay and
allowance if at all he is held to be entitled to them by the
competent authority. The competent authority while deciding
whether an employee who is suspended in such circumstances is
entitled to his pay and allowances or not and to what extent, if
any, and whether the period is to be treated as on duty or on
leave, has to take into consideration the circumstances of each
case. It is only if such employee is acquitted of all blame and is
treated by the competent authority as being on duty during the
period of suspension that such employee is entitled to full pay
and allowances for the said period. In other words, the
regulations vest the power exclusively in the Bank to treat the
period of such suspension on duty or on leave or otherwise. The
power thus vested cannot be validly challenged. During this
period, the employee renders no work. He is absent for reasons of
his own involvement in the misconduct and the Bank is in no way
responsible for keeping him away from his duties. The Bank,
therefore, cannot be saddled with the liability to pay him his
salary and allowances for the period. That will be against the
principle of no work, no pay‟ and positively inequitable to those
who have to work and earn their pay. As it is, even during such
period, the employee earns subsistence allowance by virtue of the
Regulations. In the circumstances, the Bank‟s power in that
behalf is unassailable.”
11. Hon‟ble the Supreme Court in para 4 of “Union of India vs.
Jaipal Singh (2004) 1 SCC 121″, has held as under:-
“4.On a careful consideration of the matter and the materials on
record, including the judgment and orders brought to our notice,
we are of the view that it is well accepted that an order rejecting a
special leave petition at the threshold without detailed reasons
therefore does not constitute any declaration of law by this Court
or constitute a binding precedent. Per contra, the decision relied
upon for the appellant is one on merits and for reasons
specifically recorded therefore and operates as a binding
precedent as well. On going through the same, we are in
respectful agreement with the view taken in [1996] 11 SCC 603
(supra). If prosecution, which ultimately resulted in acquittal of
the person concerned was at the behest or by department itself,
perhaps different considerations may arise. On the other hand, if
as a citizen the employee or a public servant got involved in a
criminal case and it after initial conviction by the trial court, he
gets acquittal on appeal subsequently, the department cannot in
any manner be found fault with for having kept him out of
service, since the law obliges, a person convicted of an offence to
be so kept out and not to be retained in service. Consequently, the
reasons given in the decision relied upon, for the appellants are
not only convincing but are in consonance with reasonableness as
well. Though exception taken to that part of the order directing
re-instatement cannot be sustained and the respondent has to be
re-instated, in service, for the reason that the earlier discharge
was on account of those criminal proceedings and convictionWPC 454/2024 P a g e N o |8
9only, the appellants are well within their rights to deny back
wages to the respondent for the period he was not in service. The
appellants cannot be made liable to pay for the period for which
they could not avail of the services of the respondent. The High
Court, in our view, committed a grave error, in allowing back
wages also, without adverting to all such relevant aspects and
considerations. Consequently, the order of the High Court in so
far as it directed payment of back wages are liable to be and is
hereby set aside.”
12. Given the aforesaid legal position, two dimensional issues arise
for consideration in the instant petition. One that, since the suspension of
the respondent was not because of any disciplinary proceedings but on
account of deemed suspension following his arrest in a criminal case, that
too, which was not registered at the instance of the petitioners. The
respondent remained absent from duty due to his involvement in a
criminal case and detention therein. In the eventuality, where absence
from duty due to arrest is not attributable to employer, the employer is
well within its right to decline release of full pay to the respondent for the
period he was in custody. Secondly, whether the provisions of Regulation
109 of the Regulations could be used in extending benefit to an employee
who has suffered criminal prosecution unconnected with his official
duties.
13. In so far as the principle of „no work no pay‟ is concerned in this
regard Hon‟ble the Supreme Court in “Union of India vs. Jaipal Singh
(2004) 1 SCC 121″ has held that the employer cannot be made liable to
pay for the period for which it could not avail the services of an employee,
such employee will not be entitled to the back wages for the period for
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which he remains in custody except for the period post his acquittal till his
reinstatement.
14. Therefore, a distinction has to be drawn between an employee
who has been put under suspension or deemed to be under suspension
following a criminal charge laid by the employer and the one where the
employee is arrested or detained for a criminal offence unconnected with
the affairs of his service. In case of former, having regard to the
provisions of Regulation 108-B, following his exoneration from the
departmental proceedings or the criminal charges on the strength of the
employer being unable to sustain the charge against the employee, in that
background the later would be entitled to all the back wages and full
salary for the period for which he remained under suspension. However,
such an employee is required to discharge the onus that during the period
of his suspension he was not gainfully employed somewhere else. In the
second case, the situation would be different and the employee cannot, as
a matter of right be held entitled to back wages. In this regard the position
of law has been clearly laid in Bhopal Singh Panchal (Supra) wherein
the regulation spoke of reinstatement of an employee who had been
dismissed on account of his conviction which had been set aside by the
High Court and where the employee has been honorably acquitted of a
blame. There too a provision had been made that the employee, who had
been arrested of a criminal charge, was to be considered as „under
suspension‟ and entitled to subsistence allowance from the employer
during suspension, to be adjusted at the time of reinstatement and full pay
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and allowances would be admissible only on satisfying twin conditions,
one that the authority has treated him on duty during such period and that
he has satisfied the employer that he had been guilty of improper conduct
resulting in his detention. Here, in this case as well, the respondent on
account of criminal case was committed to custody and remained so until
he was acquitted and period of his custody from 04.03.2008 to 28.12.2008
amounting to 300 days has been termed as earned leave, for that the leave
would ensure payment of full pay. Whereas, from 29.12.2008 till
11.04.2013, the period has been treated as extraordinary leave leaving no
entitlement of salary and post 12.04.2013, he has been treated as on duty.
What Regulation 109 would provide is that it vests power to the employer
to treat the period of suspension on duty or on leave or otherwise, the
words „full amount‟ can count only in the event of officer being acquitted
of blame that are to be read in the manner to advance the spirit of
Regulation 108-B and 109, because once the period of detention has been
induced on account of his own misconduct in service, the reinstatement
follows as a necessary consequence and the acquittal from the criminal
charge, which charge had no co-relation with the duties to be rendered by
the respondent.
15. The language in which Rules 108-B and 109 of CSR 1956 stand
couched, are certainly pari materia with the regulations those were under
consideration in Bhopal Singh Panchal (supra). We have, thus, no
hesitation in holding that the respondent herein had remained in custody
not on account of any blame or charge of misconduct raised by the
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employer, rather was in custody in a criminal case and merely because he
has been acquitted would not automatically result in holding the
petitionerss liable to pay back wages and salary to the respondent for the
period he was under detention. Though the respondent was under a
deemed suspension being in custody, which suspension ultimately was
revoked following his acquittal and in order to prevent the respondent
from further loss of service on account of his being in custody, he has
been suitably compensated. The petitionerss, under the Regulations, have
the exclusive power to treat the period of such suspension on duty or leave
or otherwise, as the case may be, which has been rightly done. Before the
Tribunal also there was no material to warrant any interference in the
decision taken by petitionerss to settle the claim of the respondent. There
appears to be no mala fides on the part of the petitionerss in reaching to
the order dated 11.03.2014 and the Tribunal has landed in error by
extending the benefit of Regulation 108-B to the respondent, which ought
not to have been given as both the Regulations aforesaid are to be given a
harmonious construction to achieve their intended object. The
respondent‟s period of absence from duty following his custody from
04.03.2008 to 11.04.2013 having been suitably decided by the
petitionerss, the same could not have been interfered with by the Tribunal,
because his absence from duty was not due to any blame or charge laid by
the petitionerss but was on account of his own conduct which had nothing
to do with his service condition.
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16. For the foregoing reasons, we see merit in this writ petition, which
is, accordingly, allowed. The impugned order of the Tribunal dated
28.09.2022 is set aside and as a consequence, the OA of the respondent is
dismissed.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
06.08.2025
"SHAHID"
Whether approved for reporting. Yes
WPC 454/2024 P a g e N o |13
Vinod Kumar
2025.08.06 16.47
I attest to the accuracy and
integrity of this document
Jammu