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Madhya Pradesh High Court · body

2003 DIGILAW 407 (MP)

Damodar Bagdey v. Food Corporation of India

2003-03-12

K.K.LAHOTI

body2003
Judgment ( 1. ) THE petitioner aggrieved by order (Annexure P-1) has filed this petition. By the aforesaid order while revoking the suspension order, the authority has directed that for the period of suspension, the matter will be decided after the conclusion of the proceedings against the petitioner. ( 2. ) THE contention of the petitioner is that the aforesaid order ought to have been passed by the authority immediately on revocation of the suspension order and should not have waited the decision of the criminal case. ( 3. ) THE learned Counsel for respondents submits that the authority will pass order regarding the period of suspension immediately after conclusion of the proceedings of the criminal case and in this regard, the authority will follow Sub-rule (6) of Rule 54-B of Fundamental Rules. ( 4. ) TO appreciate the contentions of the learned Counsel of the parties, it is necessary to state some facts of the case. ( 5. ) THE petitioner was working as Godown Clerk. He was placed under suspension vide order dated 12-2-1982 (Annexure P-2) under the Regulation No. 66 of F. C. I. Staff Regulation, 1971. Thereafter a criminal case was filed against the petitioner, which remained pending for a considerable period. ( 6. ) CONSIDERING the long pendency of the criminal case, the authority vide Annexure P-4, dated 21-10-1995 found that continuation of the suspension is no longer necessary and exercising powers conferred by Regulation 66 (5) of the FCI (Staff) Regulation, 1971 has revoked the order of suspension with immediate effect. Thereafter, the petitioner filed a representation on 9-4-1999 (Annexure P-5) seeking the aforesaid period of suspension as a period spent on duty for all purposes including monetary benefits. On the aforesaid representation (Annexure P-5), the authority has passed order (Annexure P-1) in which the authority quoted Chapter V Para 9. 5 of Vigilance Manual which reads as under:- "in case in which the order of suspension is revoked and the Govt. servant is allowed to resume duty before the conclusion of criminal or departmental proceeding, an order under the relevant rule (s) of the fundamental rules, regarding the pay and allowances to be paid to him for the period of suspension from duty and whether or not the said order shall be treated as a period spent on duty can be made only after the conclusion of the proceedings against him. " and directed that the aforesaid period of suspension will be decided after conclusion of the proceedings against the petitioner. ( 7. ) THE contention of the petitioner is that in view of Fundamental Rule 54-B (1) and (6), the aforesaid period deserves to be decided forthwith and the authority should not wait till the conclusion of the proceedings. For ready reference, Fundamental Rule 54-B (1) and (6) are reproduced as under:- (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement or superannuation while under suspension, the authority competent to order reinstatement shall consider and make specific order:- (a) regarding the pay and allowances to be paid to the Govt. servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2 ). . . . . . . . . (3 ). . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . (6) Where suspension is revoked pending finalisation of the disciplinary or Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1) who shall make an order according to the provisions of Sub-rule (5) as the case may be. " ( 8. ) THE aforesaid question has been considered by this Court in the case of A. D. Bhatia v. Food Corporation of India (W. P. No. 587/99) decided on 19-1-2000 whereas this Court taking into consideration of Para 9. 5 of Chapter V of Vigilance Manual has decided as under:- "the petitioner while working as Assistant Grade-II (D), Satna was placed under suspension vide order dated 7-7-84 by the respondent, Food Corporation of India, in exercise of powers conferred under Clause 1 (a) of Regulations 66/food Corporation of India (Staff) Regulations, 1971. This order of suspension was passed in contemplation of criminal proceedings. This order of suspension was passed in contemplation of criminal proceedings. The said proceeding was initiated against him in the year 1984. According to the writ petitioner the order of suspension was passed because of the departmental enquiry and not because of the criminal proceedings. By order dated 11-2-97 the order of suspension was revoked by the respondent in exercise of Clause (5) of Regulation 66. However, the consequential orders with regard to treatment of the suspension period and payment of salary and others allowances of the were not passed. Reliance has been placed on Clause 8 of Regulation 66 to highlight that when an employee under suspension is reinstated, the appropriate authority has to take a decision with regard to payment of pay and allowances. Reliance has also been placed on Rule 6 of Fundamental Rules 54 (b) which specifically provides that when suspension is revoked pending finalisation of the disciplinary or Court proceedings a specific order has to be passed regarding the period of suspension indicating whether the concerned period has to be treated as period spent on duty or not. (2) A return has been filed by the answering respondents, contending, inter alia, that the petitioner is facing a criminal trial before the Special Court at Jabalpur on the ground of defalcation and prosecution has been launched by the Central Bureau of Investigation (CBI ). It is also putforth that the petitioner is still facing trial and is not entitled to the amount during the period of suspension though the order of suspension has been revoked. It is also highlighted that unless the proceedings are terminated no final order can be passed to substantiate the same. In this regard reliance has been placed on Paras 9. 5 of Chapter V of Vigilance Manual, which reads as under :-9. 5. In cases in which the order of suspension is revoked and the Government servant is allowed to resume duty before the conclusion of criminal or departmental proceedings, an order under the relevant rule (s) of the Fundamental Rules, regarding the pay and allowances to be paid to him for the period of suspension from duty and whether or not the said order shall be treated as a period spent on duty can be made only after conclusion of the proceedings against him. In view of this, no order can be passed at this juncture directing the respondent to finalise the matter of suspension. However, it is observed that the same shall be done immediately after criminal proceeding is over. " ( 9. ) THE aforesaid order is applicable in the facts of the present case also. At this stage, the learned Counsel for petitioner contends that the Fundamental Rule 54-B (1) (6) is in conflict with the aforesaid Para 9. 5 of Chapter V of Vigilance Manual. There is no merit in the contention of the learned Counsel for petitioner even if there is conflict between Vigilance Manual and Fundamental Rules, then the Fundamental Rules will prevail as has been held by this Court in case of N. K. Soloman v. Food Corporation of India and Anr. (W. P. No. 1709 of 1996) decided on 12-8-96 whereas this Court has observed :- " 11. . . . . . . . It may be observed that execution instructions can have no greater value than the legal provision in statutory service regulation or the law laid down by the Court. Reliance on provision of such manual is, therefore, utterly misplaced. " ( 10. ) IN view of the aforesaid decision, the provision of Fundamental Rule 54-B (6) may be seen that Sub-rule (6) provides that the authority may revoke the suspension order pending finalisation of the disciplinary or Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1 ). ( 11. ) THE aforesaid provision is very clear. If the authority passes any order during the pendency of any disciplinary or Court proceedings against the Govt. servant, then the authority may revoke the suspension order without passing any order regarding period of suspension. ( 12. ) THE aforesaid authority after conclusion of the proceedings will pass final order on its own motion deciding the period of suspension. This is clear from perusal of Sub-rule (6) of F. R. 54-B. ( 13. ) IN view of the aforesaid, there is no merit in this petition. The order (Annexure P-1) has been passed in accordance with Fundamental Rule 54-B. I find no infirmity in the impugned order. This is clear from perusal of Sub-rule (6) of F. R. 54-B. ( 13. ) IN view of the aforesaid, there is no merit in this petition. The order (Annexure P-1) has been passed in accordance with Fundamental Rule 54-B. I find no infirmity in the impugned order. Consequently, this petition is dismissed with no order as to costs.