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Himachal Pradesh High Court · body

2005 DIGILAW 511 (HP)

KAILASH CHANDER VERMA v. P. N. B.

2005-12-29

SURJIT SINGH, V.K.JHANJI

body2005
JUDGEMENT V.K. Jhanji, J. (Oral).: Challenge in this writ petition is to communication dated 12th December, 2003, vide which petitioner has been intimated by the Zonal Manager, Punjab National Bank Zonal Office, Shimla that he is not entitled to full salary but to subsistence allowance which has been and is being paid in terms of Officer Employees (D&A) Regulation, 1977 (hereafter referred to as "1977 Regulation"). This intimation was given to the petitioner in response to his representation that he be paid full salary for the period 10.2.1998 to 15.6.2000 and the subsistence allowance be refixed after releasing the increments fallen due during this period. 2. Petitioner is further seeking writ in the nature of mandamus directing the respondents to pay full salary to him from 10.2.1998 i.e. the date when he was placed under suspension upto the date of his removal from service. 3. In brief, the facts are that in contemplation of departmental inquiry, the petitioner was placed under suspension on 10.2.1998. The charge sheet was served upon him on 20th July, 1998 and on conclusion of the inquiry, order dated 16.6.2000 was passed by the Disciplinary Authority, imposing major penalty of removal from service which was not to be treated as disqualification for future service. The petitioner challenged the order of removal from service in appeal and revision before the statutory authorities, but the same were dismissed. Petitioner yet not satisfied, filed CWP No. 328 of 2002 for quashing the order of penalty of removal from service. On 2.9.2003, this Court quashed the order of penalty imposed by the respondents, but held that the respondents will be free to deal with the matter after looking to the reply submitted by the petitioner. The petitioner was relegated to the position as it existed prior to the passing of order dated 16.6.2000. The relevant portion of the judgment dated 2.9.2003 reads as under: - "without going into the merits of other contentions raised on behalf of the parties, this writ petition is being disposed of purely on what has been stated hereinabove and is not to be- taken as an expression of opinion on merits of the case as set upon in their pleadings by the parties. Consequently, this writ petition is allowed and as a result of it, the impugned orders as contained in Annexures P-9, P-11 and P-13 are hereby quashed and set aside. Consequently, this writ petition is allowed and as a result of it, the impugned orders as contained in Annexures P-9, P-11 and P-13 are hereby quashed and set aside. What follows from this is that position as it existed prior to passing of Annexure P-9 is restored. It is also clarified, that if the respondents decide to go ahead with the charges as contained in Annexure P-2, they will be free to deal with the matter after looking to the reply submitted by the petitioner vide Annexure P-5. Then after taking stock of the whole situation, the Disciplinary Authority may take such action as it thinks fit under law. in such a situation this order will not come in its way." 4. Pursuant to the afore quoted order, respondents decided to hold further inquiry and in consequences thereof, the petitioner was placed under deemed suspension from the date of original order of removal i.e. 16.6.2000. The petitioner made representation that he be paid full salary from 10.2.1998 to 15.6.2000 by submitting that the order of suspension would be deemed to have been merged in the order of removal and that having been set aside, the petitioner would be deemed to have been reinstated in service and as such he is entitled to full salary for the period he remained under suspension. The representation of the petitioner in this regard has been rejected and petitioner being aggrieved of the same has filed the present writ petition. 5. The first submission of the learned counsel for the petitioner is that the order of suspension which was passed on 10.2.1998, having been merged in the order of removal dated 16.6.2000 and the said order having been set aside, the order of suspension too would be deemed to have been set aside and as such, the petitioner is entitled to full salary from 10.2.1998 to 15.6.2000. 6. We, however, find no merit in this contention of the learned counsel for the petitioner. It is true that suspension is a step to departmental inquiry and may culminate in dismissal. When an employee is suspended, no work in taken from him, but he does not cease to be in service. When he is dismissed, the link with the service ceases and naturally the order of suspension merges in dismissal. It is true that suspension is a step to departmental inquiry and may culminate in dismissal. When an employee is suspended, no work in taken from him, but he does not cease to be in service. When he is dismissed, the link with the service ceases and naturally the order of suspension merges in dismissal. When, however, the order of dismissal is set aside on technical ground and further or fresh inquiry is ordered, the disciplinary authority is empowered to place the employee under suspension and deemed suspension from the date of initial order of suspension. In the present Regulation 12.4 empowers the disciplinary authority to place an officer employee under deemed suspension from the date of original order of removal. Regulation 12.4 reads as under: "(4) Where is penalty of dismissal, removal or compulsory retirement from service imposed upon an officer employee 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 consideration of the circumstances of the case decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the officer employee shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." 7. For the application of the afore mentioned Rule, it is necessary that (i) the officer employee is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the penalty of dismissal, removal or compulsory retirement is set aside or declared or rendered void; and (iii) the disciplinary authority decides to hold further inquiry against the officer employee on the allegation on which the original order of penalty was imposed. Once these three requirements are satisfied, then the officer employee shall be deemed to be under suspension from the date of original order of penalty by the appointing authority and he shall continue to remain under suspension until further orders. 8. In S.P. Vishwanathan (II) versus Union of India and others (1991 Supp (2) SCC 633, the Supreme Court had the occasion to consider Rule 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968, which is pan materia to Regulation 12.4. 8. In S.P. Vishwanathan (II) versus Union of India and others (1991 Supp (2) SCC 633, the Supreme Court had the occasion to consider Rule 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968, which is pan materia to Regulation 12.4. In the said case, the dismissal order passed by the disciplinary authority was set aside by the Central Administrative Tribunal and fresh inquiry was ordered after reinstatement order was passed by the Tribunal. The Supreme Court held that the order of disciplinary authority to place the railway employee under suspension and deemed suspension retrospectively from the date of initial order of suspension is valid. This being the law settled by the Supreme Court, it is erroneous for the learned counsel for the petitioner to contend that the petitioner is entitled to full salary for the period 10.2.1998 to 15.6.2000. 9. Learned counsel for the petitioner next contended that the benefit of annual increments which petitioner would have earned during the period of suspension is not being given to him while paying him the subsistence allowance Learned counsel contended that unless there is specific order of the disciplinary authority stopping or withholding of increment, even if the petitioner was under suspension, he would have earned the same and accordingly he is entitled to subsistence allowance after taking into account the increments which he may have earned during the period of suspension. In support of his submission, learned counsel for the petitioner has cited C. B. Bhatnagar Vs. Food Corporation of India and others, 1993 (1) SLR 920 and Rattan Lal Vs. State of Punjab and others 1995(1) SLR 800. 10. The payment of subsistence allowance to be paid to an officer or employee who is placed under suspension is governed by Regulation 14, which provides as under: "14. Subsistence Allowance during suspension. (1) An officer employee who is placed under suspension shall, during the period of such suspension and subject to sub regulations (2) to (4) be entitled to receive payment from the bank by way of subsistence allowance on the following scale, namely: (a) Basic Pay (i) For the first three months of suspension 1/3 of the basic pay which the officer employee was receiving on the date prior to the date of suspension irrespective of the nature of enquiry. (ii) For the subsequent period and three months from the date of suspension. (ii) For the subsequent period and three months from the date of suspension. (1) ,where the enquiry is held departmentally by the bank, % of the basic pay, the officer employee was drawing on the date prior to the date of suspension and (2) Where the enquiry is held by an outside agency 1/3 of the basic pay for the next three months and % of the basic pay for the remaining period of suspension. (b) Allowances. For the entire period of suspension, dearness allowance and other allowances excepting conveyance allowance, entertainment allowance and special allowance will be calculated on the reduced pay as will be calculated on the reduced pay as specified in (i) and (ii) of clause (a) above and at the prevailing rates applicable to similar category of officers. (2) During the period of suspension an officer employee shall not be entitled to occupation of a rent free house or free use of the banks car of receipt of conveyance or entertainment allowance or special allowance. (3) No officer employee of the bank shall be entitled to received payment of subsistence allowance unless he furnishes a certificates that he is not engaged in any other employment, business, profession or vocation. (4) If during the period of suspension an officer employee retires by reason of his attaining the age of superannuation, no subsistence allowance shall be paid to him from the date of retirement." Admittedly, petitioner is being paid subsistence allowance in accordance with Regulation 14. In regard to the judgments cited by the learned counsel for the petitioner, it is only to be stated that the Punjab and Haryana High Court in the afore mentioned judgments while holding that in the absence of any order passed by the competent authority stopping or withholding the increments, even if the delinquent is