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2000 DIGILAW 556 (CAL)

Akhilendu Ghosh v. State of West Bengal

2000-11-14

Pratap Kumar Ray, Satyabrata Sinha

body2000
JUDGMENT Satyabrata Sinha, J.: This application is directed against a judgement and order dated 18.11.1998 passed by the West Bengal Administrative Tribunal in O.A. No. 1071 of 1977, whereby and whereunder the petitioner's application was dismissed on the ground of limitation. The basic fact of the matter is not in dispute. 2. The petitioner herein is a holder of civil post. He has been working as Upper Division Clerk in the Directorate of Employee's State Insurance (Medical Benefits Scheme). The petitioner was appointed in 1957. On or about 2.4.70, he was placed under suspension. The said order reads thus:" Whereas it has been made to appear to the undersigned that Shri Akhilendu Ghosh, Upper Division Clerk of the Office of the Administrative Medical Officer, Employees' State Insurance (M.B.) Scheme, W. Bengal, wilfully furnished false and inflated figures of Medical Acceptance Cards for the insured persons in the bills for July-Sept.'69 and Oct-Dec'69 quarters leading to overpayment of capitation fee to the extent of Rs. 36,514/-, and whereas it prima facie appears that he illegally obtained payment of capitation fee of 15 Insuranced Medical Practitioners to the extent of Rs. 49,938/- for the said period. NOW THEREFORE, Shri Akhilendu Ghosh is hereby placed under suspension with immediate effect pending further investigation into the matter. During the period of suspension, he will be entitled to usual subsistence allowance as admissible under the rules." 3. By reason of another order dated 24.4.1970, it was directed that the petitioner will be entitled to grant of subsistence allowance at the rate equivalent to 50% of his basic pay and the other admissible allowance in terms of Rule 71 of the West Bengal Service Rules, Part 1. It is not in dispute that a criminal case was instituted against the petitioner on 19.6.1970. By an order dated 19.10.1971, the Investigating authorities were granted last chance to complete investigation by 3.1.1972. It was clarified that if the investigation was not completed and chargesheet submitted by the said committee, the accused should be discharged from bond. On 3.1.1972, a police report was filed. On that day, the investigating officer prayed for further time which was rejected and the petitioner was discharged. It appears that the petitioner pursuant to or in furtherance of the said purported order dated 24.4.1970 was being paid subsistence allowance which was being remitted to him by postal money order till March, 1978. On 3.1.1972, a police report was filed. On that day, the investigating officer prayed for further time which was rejected and the petitioner was discharged. It appears that the petitioner pursuant to or in furtherance of the said purported order dated 24.4.1970 was being paid subsistence allowance which was being remitted to him by postal money order till March, 1978. The petitioner' reached his normal age of superannuation on 26.2.1991, but despite the same he had not been paid the arrear of his salary nor has been paid the pensionary and other retiral benefits. In view of the aforementioned inaction on the part of the respondents herein, the petitioner filed the aforesaid original application before the learned Tribunal praying for the following reliefs: "A declaration that the applicant is entitled to all yearly increments from 1970 till the date of superannuation and also entitled to all promotional benefits in consideration of his seniority as a Lower Division Clerk as if there was no order of suspension and also the benefit of the revision in the scale of pay as per ROPA Rules of 1980 and 1990 after revising and refixing the scale of pay in the promotional post and thereafter compute regular pension on such basis and a direction upon the respondents to allow the applicant all promotional benefits treating his seniority in the post of Upper Division Clerk w.e.f. 1970 and to allow the applicant all yearly increments from 1970 till the date of superannuation on the basis of refixation and revision in the scale of pay in promotional post and in the revised and refixation in the scale of pay as per ROPA Rules, 1970, 1981 and 1990 and also a direction upon the respondents to calculate and finalize pension on that basis and to pay all arrears of salaries and allowances including arrears of pension interest @18% after completion of 2 months from the date of retirement." 4. As noticed hereinbefore, the learned Tribunal- dismissed the said application purportedly to be in terms of section 21 of the Administrative Tribunal Act. 5. The questions in the aforementioned circumstances, which arise for consideration in this application are, (1) whether the learned Tribunal acted illegally in dismissing the petitioner's application on the ground that the same was barred by limitation and (2) what relief, if any, the petitioner was entitled to? 6. 5. The questions in the aforementioned circumstances, which arise for consideration in this application are, (1) whether the learned Tribunal acted illegally in dismissing the petitioner's application on the ground that the same was barred by limitation and (2) what relief, if any, the petitioner was entitled to? 6. There cannot be any doubt whatsoever that section 21 of the Administrative Tribunal Act, 1985 mandates that except in the circumstances mentioned therein, the Tribunal shall not entertained any application after expiry of the period mentioned in sub-section(1) of section 21 of the said Act. The learned Tribunal relying on or on the basis of the decision of the Apex Court in Smt.Sudama Devi vs. The Commissioner and Ors., reported in A.I.R. 1983 SC 653 and Maimoona Khatun and Anr. vs. State of U.P. and Anr., reported in A.I.R. 1980 SC 1773, inter alia, held that where a period of limitation is prescribed by any law for filing any writ application under Article 226 of the Constitution of India, each case has to be decided on fact. The learned Tribunal held that starting point of limitation would be the date of order of suspension when the right actually accrued. 7. Having heard the learned counsel for the parties we are of the opinion that the learned Tribunal committed a manifest error in passing the impugned order. In M.R. Gupta vs. Union of India and Ors., reported in A.I.R. 1996 SC 669, the Apex Court in a case involving fixation of pay, inter alia, held- "Having heard both sides, we are\satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary through out his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao vs. Mattapalli Raju, AIR 1950 Federal Court 1)." 8. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao vs. Mattapalli Raju, AIR 1950 Federal Court 1)." 8. As would be noticed from the discussions to be made hereinafter, we are of the opinion that the aforementioned decision of the Apex Court applies in all fours to the facts and circumstances of this case. 9. Right to draw salary is akin to the right of property as enunciated in Article 314A of the Constitution of India. Deprivation of livelihood of an employee without any justifiable reason whatsoever would also attract the wrath of Articles 14 and 21 of the Constitution of India. The petitioner whose services were governed by the provisions of a statutory rule, namely West Bengal Service Rules, was entitled to subsistence allowance and/or salary in terms thereof. Such a statutory right-to receive salary and/or retiral and other benefits after his attaining the age of superannuation being a statutory and constitutional right,- he could not have been deprived therefore only on the ground that he had not approached the Tribunal within a reasonable time. His right to receive salary as also retiral benefits in terms of the provisions of the statute, was a continuing process and non-payment thereof amounted to a continuing wrong on the part of the respondents herein. For the said reason, it could not be said that the petitioner's application was barred by law of limitation. 10. In an application under Article 226 of the Constitution of India where the High Court having regard to unreasonable delay made by a petitioner in approaching this Court may, in a given case, refuse to exercise its discretion. Limitation although is a statute of repose, such provision; which excludes a person from invoking his right before a judicial forum, must be construed liberally. In a case of continuing wrong, the provision of section 21(1) of the Administrative Tribunal Act will have no application as has been held by the Apex Court in M.R. Gupta's case (supra). 11. Having said so, we may now consider the merit of the matter. 12. Services of the petitioner was being governed under the Bengal Government Service, Discipline and Service Rules, 1936. 11. Having said so, we may now consider the merit of the matter. 12. Services of the petitioner was being governed under the Bengal Government Service, Discipline and Service Rules, 1936. The said rules do not contain any provision as regards issuing an order of suspension against a delinquent employee on the ground of contemplated or pending departmental proceeding or on any other ground, such a provision was inserted by reason of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 being Rule 7 thereof, which reads thus:- "7.(1) The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor in that behalf may place a Government servant under suspension- (a) Where a disciplinary proceeding or departmental enquiry against him is contemplated or is pending; or (b) Where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State, or (c) Where a case against him in respect of any criminal offence is under investigation or trial: Provided that where the order of suspension is made by an authority lower than the appointing authority such authority shall forthwith report to the appointing authority the circumstances in which the order was made. (2) A Government servant against whom a proceeding has been commenced on a criminal charge but who is not actually detained in custody (e.g. a person released on bail) may be placed under suspension under clause(c) of sub-rule (1) by an order made by any of the authorities mentioned in that sub-rule. If the criminal charge is related to the official position of the Government servant or involves any moral turpitude on his part suspension shall be ordered under this sub-rule, unless there are exceptional reasons for not adopting such a course. (3) A Government servant who is detained in custody for a period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or otherwise, shall be deemed to have been suspended by an order of the appointing authority, with effect from the date of his detention and shall remain under suspension until further orders. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending a decision on the disciplinary action to be taken against him. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending a decision on the disciplinary action to be taken against him. (4) (1) Where a penalty of dismissal, removal or compulsory retirement from service imposed on a Government servant under suspension or (2) a disciplinary proceeding pending against a Government servant under suspension, is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any directions, the order of his suspension shall be deemed to have continued in force(a) in the case where the penalty of dismissal, removal or compulsory retirement from service had been imposed, on and from the date of the order imposing such penalty, and (b) in the case where the disciplinary proceeding was pending, on and from the date of the order placing the Government servant under suspension and in either case, the order of suspension shall remain in force until further orders. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed on a Government servant under suspension or a disciplinary proceeding pending against a Government servant under suspension is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority on a consideration of the circumstances of the case decides to hold a further inquiry against the Government servant on the allegations on which the penalty was originally imposed or the disciplinary proceeding was originally started, the Government servant shall be deemed to have been placed under suspension by the appointing authority or any other authority empowered by the Governor to place a Government servant under suspension, with effect from the date on which the order imposing the penalty or dismissal, removal or compulsory retirement from service was made or where the disciplinary proceeding was pending, from the date on which the Government servant was originally placed under suspension. An order of suspension made or deemed to have been made under this sub-rule shall continue in force until it is modified or revoked by the authority competent to do so." 13. The said rules came into force with effect from 29th April, 1971. An order of suspension made or deemed to have been made under this sub-rule shall continue in force until it is modified or revoked by the authority competent to do so." 13. The said rules came into force with effect from 29th April, 1971. Thus, at the relevant point of time when the petitioner was placed under suspension, the said order could not have been passed on the ground that an investigation against him was pending. In this case, it cannot also be said that the petitioner could have been placed under suspension as a criminal investigation against him was pending inasmuch as it appears from the records that first information report against the petitioner was lodged on 19.6.1970, i.e. after the passing of the order of suspension. Law in this regard is clear and unambiguous. An employer has an inherent right to suspend an employee by not taking any work from him, but in such a situation, the employer has to pay the entire salary to the employee concerned. Power of an employer to place an employee under suspension and pay subsistence allowance during the relevant period must emanate from a statute or statutory rules. In absence of a statute or statutory rules an employee cannot be placed under suspension for reasons of pendency or contemplation of a departmental proceeding or like reason and be paid a subsistence allowance therefor. An order of suspension can also be passed by way of penalty. But there cannot be any doubt whatsoever that such an order of suspension can be passed only upon initiation and completion of departmental proceeding and upon giving delinquent employee an opportunity of being heard in the matter. Such is not the case here. The order of suspension dated 2.4. 1970 was, therefore, wholly illegal and without jurisdiction from its inception. Even assuming that the petitioner could be placed under suspension during investigation of a criminal case, such investigation having come to an end on 3.1.1972, the order of suspension had automatically come to an end. In any event, it is now a well settled principle of law that a person cannot be allowed to be kept under suspension for unduly a long period upon payment of subsistence allowance and that too without initiating any departmental proceeding in that regard. In any event, it is now a well settled principle of law that a person cannot be allowed to be kept under suspension for unduly a long period upon payment of subsistence allowance and that too without initiating any departmental proceeding in that regard. Article 14 of the Constitution of India speaks of reasonableness, which, in our considered opinion, would include action by a statutory authority against another within a reasonable period. Whenever an allegation of unreasonableness on the part of a public authority is made before a court of law, it is for the State to establish that its action was reasonable. The fact that the petitioner had been kept under suspension from 2.4.1970 till is date of superannuation, in our considered view, clearly attract the wrath of Article 14 of the Constitution of India. Furthermore, there could not have been any earthly reason to stop payment of subsistence allowance to the petitioner from April, 1978. We, therefore, cannot accept the contention raised on behalf of the respondents that the petitioner had been kept under lawful suspension from 2.4.1970 till 26.2.1991, i.e. his date of superannuation. 14. It is now a well settled principle of law that even in a case where departmental proceeding is pending and an employee is kept under suspension, if he has attained the age of superannuation, the disciplinary proceeding as also the order of suspension automatically come to an end and the concerned employee would become entitled to his entire salary during the period he was place a under suspension. It is trite that a departmental proceeding cannot be allowed to continue after the employee retires. For the aforementioned purpose recourse only can be taken to the provision of Rule 10 of the West Bengal Service (Deathcum-Retirement Benefit) Rules, 1971. It is admitted that no such proceeding is pending. 15. We, therefore, having regard to the factual matrix of the matter as noticed hereinbefore, have no other option but to hold that the action on the part of the respondents is wholly illegal and without jurisdiction. 16. We, therefore, allow this application and set aside the order passed by the learned Tribunal and direct the respondents concerned to pay all arrears of salary from 2.4.1970 to 26.2.1991 to be calculated in accordance with law, at an early date and not later than four months from the date of communication of this order. 16. We, therefore, allow this application and set aside the order passed by the learned Tribunal and direct the respondents concerned to pay all arrears of salary from 2.4.1970 to 26.2.1991 to be calculated in accordance with law, at an early date and not later than four months from the date of communication of this order. Within a period of six months from the date of communication of this order, the appropriate authority shall also pay all retiral and other terminal benefits payable to the petitioner. 17. Before parting with this case, we may record that in ordinary circumstance, we might have directed the respondents to consider as to whether the petitioner during the aforementioned period was deprived of his right of promotion and/or would have granted penal interest but having regard to the fact that the petitioner also is to be blamed as he kept quiet for such a long time, we are not issuing those directions. However, there cannot be any doubt that as regards retiral and other terminal benefits, the petitioner would be entitled to statutory interest thereon. 18. In the facts and circumstances of this case, there will be no order as to costs. 19. Urgent xerox certified copy of this order be supplied on priority basis. Pratap Kumar Roy, J.: I agree. Application allowed.