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Jharkhand High Court · body

2009 DIGILAW 1390 (JHR)

Anant Kumar Pandey v. State of Jharkhand

2009-11-06

D.G.R.PATNAIK

body2009
JUDGMENT : Heard counsel for the parties. 2. Petitioner, in this writ application, has prayed for an order quashing the office order bearing Memo No. 345, dated-05.05.2007 (Annexure5), whereby the petitioner’s claim for payment of his salary for the period of his suspension from 28.11.2001 to 03.10.2002 has been rejected. The petitioner has made a corresponding prayer for a direction upon the Respondents to pay him the salary for the aforesaid period after adjusting the amount of subsistence allowance paid to him during the aforesaid period. 3.Facts of the petitioner’s case are as follows: The petitioner was employed as a Teacher in the Government Middle School, Gomoh. Vide Office order dated 28.11.2001, issued by he Respondent No. 3, he was put under suspension in contemplation of a departmental proceeding. The departmental proceeding was initiated against him after service of a memo of charge on 15.01.2002. Upon considering the delay in concluding the departmental enquiry, the District Education Establishment Committee revoked the order of the petitioner’s suspension with effect from 04.10.2002. At the conclusion of the departmental enquiry and on the basis of the findings in the enquiry report that the charge against the petitioner was proved, the Disciplinary Authority vide his order dated-09.01.2006 (Annexure-4), imposed the punishment of censure against the petitioner, which was ordered to be entered in his service book. It may be observed that neither on the date when the order of suspension was revoked nor on the date when the punishment was imposed, was any order passed as to how should the period of petitioner’s suspension be treated, whether as period spent on duty for the purposes of computing pension or otherwise. Much later, when the petitioner demanded payment of his full salary for the period of suspension, the Disciplinary Authority proceeded to take a fresh decision, as recorded in the impugned order dated-05.05.2007 (Annexure-5) to the effect that though the period of petitioner’s suspension shall be treated as period spent on duty for the purposes of computing pension, but he shall not be paid salary for the suspension period, except the amount of subsistence allowance, which he has already received. The impugned order further goes to record that the departmental enquiry is concluded. 4. Assailing the impugned order, Mr. Lalan Kr. Singh, learned counsel for the petitioner would argue that the impugned order is totally illegal and in violation of the Service Rules. The impugned order further goes to record that the departmental enquiry is concluded. 4. Assailing the impugned order, Mr. Lalan Kr. Singh, learned counsel for the petitioner would argue that the impugned order is totally illegal and in violation of the Service Rules. Learned counsel would explain that by the first order dated-09.01.2006 (Annexure-4), whereby at the conclusion of the departmental enquiry, the Disciplinary Authority had imposed the punishment of censure, the departmental enquiry was deemed to be closed. Neither in the first order nor in the earlier order whereby the petitioner’s suspension was revoked, was any adverse decision taken against the petitioner for forfeiture of his salary for the suspension period. Learned counsel argues further that after closing the departmental enquiry by imposition of punishment, the Disciplinary Authority did not have authority to retain and treat the proceeding as continuing and to inflict the further punishment of forfeiture as has been done by the impugned order. Referring to the provisions of Rule 97 of the Bihar Service Code, learned counsel submits that the provisions of Rule 97 of the Code as adopted by the State of Jharkhand, is a mandate making it obligatory on the part of the concerned competent authority to pass necessary orders as to what would be the quantum of allowance payable during the period of suspension. No such order regarding payment of salary for the suspension period or treating the period of the petitioner’s suspension, having been passed i.e., it was not within the competence of the Disciplinary Authority to reconsider the issue and pass a fresh order of punishment by way of forfeiture of salary for the suspension period. In support of his arguments, learned counsel for the petitioner would refer to and relies upon the judgment of the Patna High Court in the case of Chandradip Sharma-versus-The State of Bihar & Others, 1988 P.L.J.R. 1138 and to another judgment of the Patna High Court in the case of Smt. Dipali Kundu-versus-The State of Bihar & Others reported in 1999 (2) P.L.J.R. 302. 5. Counter affidavit has been filed on behalf of the Respondents. 6. 5. Counter affidavit has been filed on behalf of the Respondents. 6. Justifying the impugned order of forfeiture of the petitioner’s salary for the period of suspension and disputing the petitioner’s demand for payment of salary for the suspension period, learned counsel for the Respondents would argue that even as admitted by the petitioner, he was put under suspension in contemplation of the departmental proceeding. However, since there was delay in conclusion of the proceeding, the petitioner’s suspension was revoked while continuing the departmental proceeding. Learned counsel concedes that at the conclusion of the departmental enquiry and on the basis of the findings of the Enquiry Officer, the competent authority had passed the order of punishment of censure against the petitioner, which was ordered to be entered in the petitioner’s service book. However, while passing the order of punishment, no order was passed in terms of Rule 97 of the Service Code regarding the payment of salary and allowance to the petitioner during the period of his suspension. Learned counsel explains that the decision as per Rule 97 of the Service Code was subsequently taken by the competent authority when the petitioner had demanded payment of full salary for the period of suspension. Such decision as taken on 05.05.2007 vide the impugned order, was to the effect that the petitioner shall be entitled only for payment of subsistence allowance during the period of suspension, though the period of his suspension shall be treated as period spent on duty for the purposes of computing his pension. Learned counsel explains further that the provisions of Rule 97 of the Service Code do make it obligatory on the part of the competent authority to pass an order regarding payment or otherwise of full salary to the delinquent employee for the period of suspension where the charge against the delinquent employee is proved at the departmental enquiry, and it was within the competence of the disciplinary authority to record its decision in accordance with the provisions of Rule 97 of the Service Code at any time, after inflicting the punishment and it was not altogether necessary that such order be passed at the time of inflicting punishment. Learned counsel seeks to explain further that the order under Rule 97 of the Code can be passed at any time before conclusion of the departmental proceedings and, as indicated by the impugned order, the departmental proceeding was concluded only at the time when the impugned order was passed. Countering the arguments of the petitioner’s counsel, learned counsel for the Respondents would argue that the order of forfeiture of salary, except the subsistence allowance for the period of suspension, cannot be treated as a punishment or a modification of the earlier order of punishment, since the order passed Rule 97 of the Service Code is totally distinct and separate. 7. From the rival submissions, the question which arises for determination is as to whether it is incumbent upon the competent authority to pass an order under Rule 97 of the Service Code regarding payment of salary and treatment of the suspension period of the delinquent employee either at the time of his reinstatement or revocation of suspension or at the time of awarding punishment in the departmental proceeding and not on any other subsequent date. 8. For better appreciation of the issue, Rule 97 of the Bihar Service Code may be referred to, which reads as under: - “97 (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order--- .(a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and .(b) whether or not the said period shall be treated as a period spent on duty. .1[(2) Where the authority mentioned is sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. .(3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: .Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. .(3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: .Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. .(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. 1[(5) In a case falling under clause 93) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.]. 9. As has been observed by the Division Bench of the Patna High Court in the case of Basishtha Prasad Sinha-versus-The State of Bihar & Others, reported in 1993 (1) P.L.J.R. 605, it would appear from bare perusal of the Rule that at the time of reinstatement of a Government employee who was dismissed, removed or suspended, the competent authority is required to make specific order as to the entitlement of the person concerned to his pay and allowance with respect to the period of suspension and whether the period is to be treated as spent on duty or not, as per Clause (1) of the Rule. In cases where the delinquent employee is fully exonerated or the suspension is not found to be wholly unjustified, the competent authority has to take a decision as to the entitlement of the delinquent employee to his pay and allowances. The Division Bench of the Court had recorded further observations as follows: - “An order directing that the Government servant concerned shall not be entitled to pay and allowance save and except the subsistence allowance, and directing that the period in question shall be treated as absence from duty, has to be passed by the competent authority in every case at the stage of final conclusion of the departmental proceedings.” 10. In the case of Chandradip Sharma (Supra) while considering a similar issue, the Court had answered the question in the following terms: - “It is well-known that the question as to whether the period during which a delinquent officer is placed under suspension shall either be treated on leave or on duty, must be decided by the disciplinary authority at the time of awarding punishing itself. There does not appear any earthly reason as to why after a period of several years, that the order was passed.” 11. In the instant case, though the petitioner was put under suspension on 21.11.2001, but his suspension was revoked on 04.10.2002. The departmental enquiry which continued even after revocation of the order of his suspension, was concluded by the Enquiry Officer with a finding that the charge against the petitioner was proved and on the basis of such finding, the competent authority had imposed the punishment of censure against the petitioner on 09.01.2006. No order in terms of the provisions of Rule 97 of the Service Code was passed either at the time of revoking the order of the petitioner’s suspension or at the time of inflicting the punishment of censure on him. No reason has been assigned by the Respondents, more so by the competent authority, as to why he did not pass the order as envisaged under Rule 97 of the Code at the time of passing the order of punishment and why such an order under Rule 97 had to be passed after a delay of more than five years from the date of revocation of the order of suspension and more than one year after the date of passing of the order of punishment. An order passed in terms of Sub Rule 3 of Rule 5 or Rule 97 of the Service Code though not being in the nature of penalty within the meaning of the Service Rule, but none the less its effect is penal in nature, since it adversely affects the person concerned. In the present case, the adverse effect is the forfeiture of the petitioner’s salary for the suspension period. 12. In the present case, the adverse effect is the forfeiture of the petitioner’s salary for the suspension period. 12. The fact that even the competent authority was conscious of his obligation under the provisions of Rule 97 of the Service Code that an order under the aforesaid Rule has to be passed at the conclusion of the disciplinary proceeding and upon reinstatement of the delinquent employee with minor punishment revoking the order of suspension, is indicated by a deliberate insertion in the impugned order of an observation that the departmental proceeding against the petitioner is closed. Such an insertion appears to have been made only for the purpose of giving an impression that the departmental proceeding had not concluded upon the passing of the order of punishment and upon the reinstatement of the petitioner in service but had continued to stretch, for reasons unknown, till the date when the impugned second order (Annexure-5), was passed. 13. In the light of the above discussions and relying upon the ratio decided in the case of Basishtha Prasad Sinha (Supra) and in the case of Smt. Dipali Kundu (Supra), I hold that the impugned order (Annexure-5), passed in purported exercise of the power under Rule 97 of the Service Code, is illegal and cannot be sustained. Allowing this writ application, I direct the Respondent-competent Authority to pay to the petitioner his full salary for the period of suspension after adjusting the amount of subsistence allowance paid to him, within three months from the date of receipt/production of a copy of this order 14. Let a copy of this order be given to the learned counsel for the Respondents.