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2002 DIGILAW 1719 (RAJ)

Manju Shukla v. State of Rajasthan

2002-10-18

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner in the instant writ petition seeks to quash the order dated November 21, 1988 whereby she was placed under suspension as well as the inquiry proceedings initiated against her. As per averments made in the writ petition the petitioner while working as the Superintendent Rajya Mahila Sadan Jaipur, was placed under suspension with immediate effect by the Director Social Welfare Department vide order dated November 21, 1988 passed under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules ,1958 (for short the CCA Rules). It was stated in the order that during the period of suspension the Headquarter of the petitioner would be the office of the Directorate Social Welfare Department Jaipur (for short DSWD) and she would be entitled to receive the subsistence allowance as per rules during the period of suspension. In compliance to the said order the petitioner submitted her joining report on November 24, 1988 to DSWD. As the petitioner was on deputation in the office of DSWD, her services were repatriated to the Superintendent Sir Padampat Mother and Child Health Institute Jaipur (for short SPMCHI) by the DSWD vide order dated July 20, 1989. Till July 20, 1989 the petitioner was paid subsistence allowance by the DSWD thereafter nothing was paid to her. Contention of the petitioner in the writ petition is that although the petitioner was compelled to join her duties in her parent Department but on reporting she was not allowed by SPMCHI to mark her attendance and she was told by a movement order that the SPMCHI would not take her back till the final decision of the disciplinary proceedings contemplated against her by DSWD. A criminal case in the meanwhile was instituted against the petitioner. The petitioner was also served with a Memorandum dated February 7, 1989 whereby enquiry under Rule 16 of the CCA Rules was initiated against her. 2. Respondents State of Rajasthan and SPMCHI in their return stated that they had nothing to do with the impugned suspension order as the petitioner was placed under suspension by DSWD. The respondents averred that the petitioner never presented herself to join the duties therefore the grievance about non-payment of subsistence allowance is baseless. 2. Respondents State of Rajasthan and SPMCHI in their return stated that they had nothing to do with the impugned suspension order as the petitioner was placed under suspension by DSWD. The respondents averred that the petitioner never presented herself to join the duties therefore the grievance about non-payment of subsistence allowance is baseless. It was also pleaded that SPMCHI did not have relevant record of the petitioner therefore DSWD ought to have completed the departmental inquiry and then either repatriated her to SPMCHI or should have sent the entire record for completion of the departmental inquiry. 3. Respondent DSWD also filed reply to the writ petition stating therein that during the pendency of departmental inquiry and criminal case, order of suspension of the petitioner cannot be revoked. It was also stated that vide order dated July 20, 1989 the petitioner was repatriated to her parent department therefore she was not entitled to get subsistence allowance from DSWD. 4. The petitioner during the pendency of writ petition submitted certified copy of the judgment dated September 6, 1999 rendered in Sessions Case No. 68/98 by the learned Special Judge-cum-Additional Sessions Judge Jaipur City whereby the petitioner was acquitted from the charges under Sections 336, 201, 217 and 203 of the Indian Penal Code. The petitioner also filed rejoinder to the replies of the respondents. 5. Undisputed facts that emerged from the material on record may be summarised as under: (i) DSWD placed the petitioner under suspension on November 21, 1988 and repatriated her to SPMCHI vide letter dated July 20, 1989. (ii) Disciplinary inquiry was initiated against the petitioner on Feb. 7, 1989 under Rule 16 of the CCA Rules. (iii) Criminal case was registered against the petitioner under Sections 336, 201, 217 and 203 of the Indian Penal Code. Disciplinary inquiry and criminal case are based on identical set of facts. (iv) The petitioner was paid subsistence allowance only till July 20, 1989. (v) The petitioner could not join duties in SPMCHI. (vi) The petitioner was acquitted in criminal case on September 6, 1999. (vii) The Disciplinary inquiry is still pending. Disciplinary inquiry and criminal case are based on identical set of facts. (iv) The petitioner was paid subsistence allowance only till July 20, 1989. (v) The petitioner could not join duties in SPMCHI. (vi) The petitioner was acquitted in criminal case on September 6, 1999. (vii) The Disciplinary inquiry is still pending. (viii) Contention of DSWD is that after repatriation of the petitioner in SPMCHI, it was SPMCHI to take care of all the grievance of the petitioner whereas the stand taken by SPMCHI is that neither the petitioner joined duties in the institution nor did her record was transmitted by DSWD. 6. I have given my thoughtful consideration to the rival submissions. 7. It is established from the record that after July 20, 1989 the petitioner was not paid subsistence allowance by the respondents. The respondents DSWD and SPMCHI appear to have been treated the petitioner as if she had mortgaged or bartered away her basic rights as a human being, including the fundamental rights, in their favour. Payment of subsistence allowance to an employee who is placed under suspension presupposes non-violation of the right to life of the employee guaranteed 1 under Article 21 of the Constitution, in M. Paul Anthony v. Bharat Gold Mines Ltd. ( AIR 1999 SC 1416 ) their Lordships of the Supreme Court indicated that "Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance' so that the employee may sustain himself...." The act of non-payment of subsistence allowance can be likened to slow poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death." 8. Hon'ble Supreme Court in M. Paul Anthony's case (supra) also propounded that where the criminal case as also the departmental proceedings are based on identical set of facts and the whole case of prosecution is thrown out by the criminal Court and the employee is acquitted, it would be unjust, unfair and rather oppressive to allow the findings recorded in the departmental proceedings, to stand. 9. 9. Undeniably the petitioner was placed under suspension some 14 years back and disciplinary inquiry is pending against her since February 7, 1989. No satisfactory explanation was put forward by the respondents as to why they did not proceed with the disciplinary inquiry. I fail to understand that when DSWD had placed the petitioner under suspension and initiated disciplinary inquiry under Rule 16 of the CCA Rules against her then why she was ordered to be repatriated to her parent department SPMCHI. The DSWD was not justified in repatriating the petitioner to her parent department when the disciplinary inquiry was initiated against her and in the order of suspension it was specifically directed that the Headquarter of petitioner would be the office of DSWD. In the fact situation of the instant case I find that the order dated July 20, 1989 of the DSWD repatriating the petitioner to SPMCHI appear to have been passed to harass and humiliate the petitioner and in order to deprive her from the subsistence allowance. Thus, it is violative of Article 21 of the Constitution. It is regrettable that since July 20, 1989 the petitioner was not paid 'subsistence allowance' and she was left to gradually starve herself to death. 10. In the peculiar circumstances of the case, specially having regard to the fact that the petitioner is undergoing agony of prolonged suspension and disciplinary proceeding since 1988, despite having been acquitted by the criminal Court in 1999 I am of the opinion that it would be unjust, unfair and rather oppressive to continue the order of suspension and the disciplinary inquiry. 11. For the reasons aforementioned the impugned order of suspension dated November 21, 1988, the disciplinary inquiry under Rule 16 of the CCA Rules vide Memorandum dated February 7, 1989 and the order dated July 20, 1989 of the DSWD repatriating the petitioner to SPMCHI stand quashed. The petitioner shall be reinstated forthwith on the post held by her at the time of the order of suspension and shall also be paid entire arrears of salary, together with all allowances from the 'date of suspension till her reinstatement within sixty days from today. The petitioner would also be entitled to the cost which is quantified as Rs. 5,000/- 12. The writ petition stands allowed as indicated above.Writ Petition Allowed. *******