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2005 DIGILAW 180 (MP)

P. S. Deo v. State of M. P.

2005-02-07

DIPAK MISRA, U.C.MAHESHWARI

body2005
JUDGMENT Dipak Misra, J. 1. Invoking the extraordinary jurisdiction of this Court the petitioner has called in question the legal propriety of the order dated 28-12-2001 passed by the Madhya Pradesh Administrative Tribunal (in short 'the Tribunal) in O.A. No. 269/1993. The essential facts that gave rise to filing of the application under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal are that the petitioner had worked in various posts, namely, Additional Treasury Accountant and Lecturer in M.P. Accounts Training School, Jabalpur and further assisted the Stamp Clerk of District Treasury, Jabalpur. A disciplinary proceeding was initiated against him along with ether officers and eventually he was compulsorily retired on 4-5-1986 by way of punishment, the said order was assailed in appeal and the appellate authority on 8-9-1989 vide Annexure-P/1 annulled the order of compulsory retirement and directed the period commencing 4-5-1986, the date, of compulsory retirement, till the actual date of his superannuation i.e. 1-2-1987 would be treated as period spent on leave as admissible and he be paid salary accordingly. The petitioner sought review of the aforesaid order which faced dismissal on 5-2-1991. Being aggrieved by the aforesaid action an original application was instituted before the Tribunal wherein prayer was put forth that from the date of compulsory retirement till date of superannuation order passed by the appellate authority should be.; modified and the entire period should be treated as on duty and he be extended -all consequential benefits. 2. The prayer of the petitioner was resisted by the answering respondents contending, inter alia, that the period between 4-5-1986 to 1-2-1987 had already been regularised and die intervening period would be determined in accordance with the provisions contained in FR-54 but he should not be extended the benefit of promotion as he was out of service. The Tribunal took note of the fact that on earlier occasion when the mailer had traveled to this Court in a writ petition this Court had quashed the order of punishment and directed the appellate authority to reconsider the appeal under Rule 27 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short 'the Rules'). The appellate authority on 8-9-1989 accepted the appeal, set aside the order of compulsory retirement with a further direction that the period should be spent on leave as per entitlement of the applicant. The appellate authority on 8-9-1989 accepted the appeal, set aside the order of compulsory retirement with a further direction that the period should be spent on leave as per entitlement of the applicant. Being of this view the Tribunal directed the petitioner be paid salary for the period on the basis of FR-54 3. With regard to the promotion the Tribunal took note of the fact that the petitioner had been given promotion with effect from 11-7-1984 on the basis of order dated 2-9-1994. Taking stock of the fact situation the Tribunal issued a direction that the petitioner should be paid salary component for the promotional post with effect from 11-7-1984 and on that basis pensionary benefits be paid to him. The Tribunal further directed that arrears would carry interest at the rate of 12 per cent per annum from the date of filing of the petition before the Tribunal. 4. We have heard Mr. Pranay Verma, learned Counsel for the petitioner and Mr. S.K. Yadav, learned Govt. Advocate for the State. 5. The sole question that arises for consideration is whether the appellate authority was justified while setting aside the order of punishment of compulsory retirement to direct the period to be spent on leave and whether the affirmation thereof by the Tribunal is sound. Learned Counsel for the petitioner has submitted that if an order affects an-employee it must be passed after objective consideration and weighing of relevant facts. It is further put forth by him that the order passed, under FR-54 is not always a consequential order and it must depend upon on the examination by the authorities of all facts and circumstances. To bolster his submission he has commended us to the decisions rendered in the case of M. Gopalikrishna Naidu v. The State of Madhya Pradesh 1968 (16) FLR 432 (SC), and Raghunandan Pd. Sharma v. State of Madhya Pradesh and Anr. (1998) 9 SCC 466 . 6. Mr. S.K. Yadav. Learned Govet. Advocate for the State supported order of the Tribunal and contended that the Tribunal has rightly applied the law laid down in the case of M.A. Ravoof v. Senior Divisional Signal Telecommunication Engineer and Anr. (1998) 9 SCC 466 . 7. To appreciate the submissions raised at the Bar, it is appropriate to refer to relevant portion of Fundamental Rule 54. (1998) 9 SCC 466 . 7. To appreciate the submissions raised at the Bar, it is appropriate to refer to relevant portion of Fundamental Rule 54. It reads as under: F.R. 54: pay and allowance on re-instatement.-(1) When a Government servant who has been dismissed removed or compulsorily retired, is reinstated as a result of appeal or review or would have been so re-instated [but for his retirement on superannuation, while under suspension or not], the authority competent to order reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government Servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order reinstatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of Sub-rule (6), be paid full pay and allowances to which he would have been entitled, had he not dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served on him] - and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, be paid for the period of such delay, only such [amount not being the whole] of such pay and allowances as it may determine. (3) In a case falling under Sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for till purposes. (3) In a case falling under Sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for till purposes. (4) In cases other than those covered by Sub-rule (2), including cases where the order of dismissal, removal or compulsory retirement from services is set aside by the Appellate or Reviewing Authority solely on the ground of noncompliance with the requirements of Clause (2) of Article 311 of the Constitution and no further enquiry is proposed to be held, the Government servant shall, subject to the provisions of Sub-rules (6) and (7), be paid such [amount (not being the whole)] of the pay and allowance to which he would have been entitled had he not be dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period [which in no case shall exceed sixty days from the date on which the notice has been served] as may be specified in the notice: [Provided that any payment under this Sub-rule to a Government servant, other than a Government servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936), shall be restricted to a period of three years immediately preceding the date on which orders for reinstatement of such Government servant are passed by the Appellate" Authority or Reviewing Authority, or immediately preceding the date of retirement on superannuation of such Government servant, as the case may be.] 8. The Apex Court while interpreting the rule in the case of Gopalkrishna Naidu (supra) in paragraph 7 expressed the view as under: 7. It is true as Mr: Sen pointed out that FR 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether rule casts such a duty on the authority by implication. It is true as Mr: Sen pointed out that FR 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether rule casts such a duty on the authority by implication. The order as to whether a given case falls under Clause 2 or Clause 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under Clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstance in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of the natural justice. 9. In this context we may fruitfully refer to the decision rendered in the case of O.P. Gupta v. Union of India and Ors. (1987) 4 SCC 328 , wherein the Apex Court expressed the view as under: There is a duty to hear the concerned government servant under FR 54 before any prejudicial order is made against him. An order passed under FR 54 is not always a consequential order or a mere continuation of the departmental proceedings against the delinquent civil servant. Inasmuch as consideration under FR 54 depends on facts and circumstances in their entirely, and since the order may result in pecuniary loss to the government servant, consideration under the rule must be held to be an objective rather than a subjective consideration. Inasmuch as consideration under FR 54 depends on facts and circumstances in their entirely, and since the order may result in pecuniary loss to the government servant, consideration under the rule must be held to be an objective rather than a subjective consideration. In the present case, the Government failed in its duty to pass an order in terms of FR 54 despite repeated representations made by the appellant in that behalf. The Single Judge of the High Court was therefore justified in dealing with the question whether or not the period of suspension should be treated as a period spent on duty and to make a direction regarding payment of the full pay and allowances as also to increments to which he would have been entitled but for the disciplinary proceedings. 10. In this regard we may refer with profit to the decision rendered in the case of Manzoor Ahmed Mazumdar v. State of Meghalaya and Ors. (1997) 11 SCC 374 , wherein the Apex Court ruled thus: 4. In view of the decision in M. Gopalkrishna Naidu it must be held that even though there is no express requirement in Fundamental Rule 54(3) for giving an opportunity to the employee before passing an order, giving of such an opportunity is implicit in the exercise of the power which has been conferred by the said provision. It was, therefore, necessary for the competent authority to afford an opportunity to the appellant before passing the order regarding pay and allowances payable to the appellant in respect of the period of suspension (sic absence). Since this was not done in the present case, the order dated 12-8-1982 cannot be upheld and his to be set aside. For the same reason the impugned judgment of the High Court has also to be set aside. It will be open to the respondents to pass a fresh order in accordance with law after affording an opportunity to the appellant. 11. In view of the aforesaid pronouncement of law there can be no scintilla of doubt that an opportunity of hearing is warranted. It is necessary to state here that the Tribunal has placed reliance in the decision rendered in the case of M.A. Ravoof (supra). 11. In view of the aforesaid pronouncement of law there can be no scintilla of doubt that an opportunity of hearing is warranted. It is necessary to state here that the Tribunal has placed reliance in the decision rendered in the case of M.A. Ravoof (supra). In the aforesaid case the Apex Court while dealing with issue of compulsory retirement in public interest and upon referring to paras 4 and 5 of Part II of the Guidelines of the Railways came to hold in paragraphs 5 and 6 as under: 5. The appellant's case is not a case of political or personal victimisation. As per the Guidelines, in his case it would not be appropriate to treat the period during, which he did riot work as "on duty" or to allow him full salary for the period. As per the Guidelines this period has to be treated as leave due and admissible, which has been done in the present case, the authority ordering reinstatement has applied its mind to the facts of the appellant s case and has given appropriate directions an to how the, intervening period is to be treated. We find no reason to interfere with the discretion so exercised. 6. The only ground urged by the appellant is that some other persons have been given the benefit of pay for entire intervening period. This, by itself, is of no help to him. If the person who is reinstated with full pay during the intervening period was a victim of personal or political vendetta he would be entitled to full pay as per the Guidelines. In one case, it seems that the authority under the Payment of Wages Act directed that pay should be given to the reinstated employee for the intervening period. That order also cannot be considered as a precedent which should be applied in all the cases, much less when the Guidelines issued by the Railway Board are clear and the discretion has been properly exercised in the present case. 12. If the reasons ascribed by the Apex Court are properly, understood in the backdrop of the railway guidelines it is manifest that the Tribunal has erroneously placed reliance in the case of M.A. Ravoof (supra) as the same is not applicable to the facts of the present case. 13. 12. If the reasons ascribed by the Apex Court are properly, understood in the backdrop of the railway guidelines it is manifest that the Tribunal has erroneously placed reliance in the case of M.A. Ravoof (supra) as the same is not applicable to the facts of the present case. 13. In the case at hand it is clear as noon day that no conscious decision has been taken. No opportunity of hearing was afforded to the petitioner. He has been totally exonerated. Ordinarily, we would have left it to the authorities to take a decision as per law laid down above, but as the findings are telltale and quite a speck of time has rolled by, there is no justification to remit the matter as mat would be negation1 of the conception of justice. Hence, we are disposed to think the petitioner should be extended all the benefits including the salary component in entirety. The same shall be paid within a period of three months from today. However, we would clarify that the sum payable the aforesaid sum would not carry interest if it is paid within the time fixed hereinabove. 14. The writ petition is allowed to the extent indicated above without any order as to costs.