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2011 DIGILAW 598 (GAU)

Asir Ali Laskar v. State of Meghalaya

2011-07-20

TINLIANTHANG VAIPHEI

body2011
JUDGMENT T. Vaiphei, J. 1. This writ petition is directed against the order dated 12-3-2009 issued by the Director of Fisheries, Govt. of Meghalaya, Shillong (Respondent 2) converting the period of his suspension for 1796 days w.e.f. 14-11-2003 to 13-10-2008 as leave due and admissible under F.R. 53(5) of the Meghalaya Fundamental Rules and Supplementary Rules in the following manner: (i) barred leave for a period of 157 days w.e.f. 14-11-2003 to 18-4-2004; (ii) half pay leave for a period of 400 days w.e.f. 19-4-2004 to 23-5-2005 and (iii) extraordinary leave without pay and allowances for a period of 1239 days w.e.f. 24-5-2005 to 13-10-2008 after reinstatement him to his post even after he as punished with a penalty of withholding two annual increments without cumulative effect, which, according to him, amount to multiple punishments unauthorised by law. 2. The facts giving rise to the filing of the writ petition, as pleaded by the Petitioner, may be briefly noted at the outset. He was initially working as Junior Grade Driver in the Office of the Directorate of Fisheries, Meghalaya, and was thereafter by the order dated 12-7-2002 promoted to Senior Grade. He was, however, placed under suspension w.e.f. 7-4-2005 under Rule 6(a) of the Assam Services Discipline and Appeal Rule, 1964 vide the Office Order dated 19-4-2005. A departmental enquiry was thereafter launched against him and on completion of the enquiry, he was reinstated to his service by resuming his duty on 14-10-2008. When no salary was released to him for sometime, he submitted his representation dated 20-1-2009 to the Respondent No. 2 requesting him to release his pending salaries along with other service benefits admissible under the rule. After repeated reminders, the Respondent No. 2 by his order dated 25-2-2009 allowed him to draw his pay and other allowances as admissible under the rules w.e.f. 14-10-2008. However, much to his consternation, the impugned order was issued. The representations filed by him to the Respondent authorities thereafter from time to time did not yield any fruit, which prompted him to file this writ petition for appropriate relief's. 3. The writ petition is opposed by the Respondents, who have now filed their affidavit-in-opposition. However, much to his consternation, the impugned order was issued. The representations filed by him to the Respondent authorities thereafter from time to time did not yield any fruit, which prompted him to file this writ petition for appropriate relief's. 3. The writ petition is opposed by the Respondents, who have now filed their affidavit-in-opposition. The contentions of the Respondents therein are that the impugned order does not amount to a penalty: it is merely a detail of conversion of his period of suspension by treating that period as on leave due and admissible as per the Office Order dated 19-9-2008. It is pointed out by the answering Respondents that the Petitioner never had an unblemished career and he, in fact, was also placed under suspension from service with effect from 14-11-2003 on the ground of misconduct and insubordination to controlling authorities. He was, however, reinstated to his service on 27-1-2005 without full pay and allowances when the charges could not be proved against him, but when he failed to resume his post, he was again placed under suspension w.e.f. 7-4-2005 as already noted. These are the main contentions of the answering Respondents. They, therefore, pray for dismissal of the writ petition, which is devoid of merits, with costs. 4. After hearing Ms. A. Paul, the learned Counsel for the Petitioner, and Mr. B. Bhattacharjee, the learned State counsel, and on perusing the materials on record, the question which falls for consideration in this case is, whether the conversion of the period of suspension of the Petitioner into barred leave, half pay and extraordinary leave without pay after inflicting a penalty of withholding of increments for two years without cumulative effect is sustainable in law or not. F.R. 53(5) of the Meghalaya FR & SR where under the impugned order was issued may be noticed at this stage: (5) In a case falling under Sub-rule (4) the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as period spent on duty, unless the competent 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 including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind and admissible to the government servant. F.R. 53(4) is also important, which is also reproduced hereunder: (4) In cases other than those covered by Sub-rule (2) including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the Appellant or reviewing authority solely on the ground of non-compliance with the requirement of Clause (2) of Article 311 of the Constitution and no further inquiry 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 full pay and allowances to which he would have been entitled had not been dismissed, removed or compulsorily 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 as 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. 5. The contention of Ms. 5. The contention of Ms. A. Paul, the learned Counsel for the Petitioner, is that when the Petitioner was already punished with withholding of annual increment for two years, the conversion of the period of his suspension with different kinds of leave without pay or half pay or nil pay is not sanctioned by law and amounts to multiple punishment for the same misconduct for which he has already been penalised in the departmental enquiry. In other words, her submission is that the Assam Services Discipline and Appeals Rules, 1964 does not provide for imposition of three punishments for the same proved misconduct. According to her, imposition of leave without pay is by itself a punishment. To fortify her submission, she relies on the decision of the Apex Court in M/S Hind Construction and Engineering Co. Ltd. v. Their Workmen AIR 1965 SC 917 . Alternatively, she contends that assuming without admitting that the Respondent authorities have the power to issue the impugned order, the penalty so imposed is harsh and grossly disproportionate to the proved misconduct. In this connection, heavy reliance is placed by her upon the following decisions of the Apex Court: (a) Union of India and Anr. v. G. Ganayutham (1997) 7 SCC 463 and (b) Ranjit Thakur v. Union of India (1987) 4 SCC 611 . She, therefore, strenuously urges this Court to quash the impugned order and direct the Respondent No. 2 to release all back wages due to him heretofore without further delay. On the other hand, Mr. B. Bhattacharjee, the learned State counsel, supports the impugned order and contends that the impugned order cannot and does not amount to further punishment inasmuch as this is merely a consequential order passed in terms of the order of qualified reinstatement and is clearly authorised by F.R. 53(5) of the Meghalaya FR & SR. He further submits that the impugned order is consistent with and reasonably proportionate to the misconduct of unauthorised absence from duty keeping in view the past conduct of the Petitioner. Contending that the impugned order does not suffer from any illegality, he prays for dismissal of the writ petition with costs. 6. He further submits that the impugned order is consistent with and reasonably proportionate to the misconduct of unauthorised absence from duty keeping in view the past conduct of the Petitioner. Contending that the impugned order does not suffer from any illegality, he prays for dismissal of the writ petition with costs. 6. To complete the picture, I may reproduce hereunder the relevant portion of the order of reinstatement dated 19-9-2008, the consequential order dated 25-2-2009 and the impugned order dated 12-3-2009 in a chronological order: OFFICE ORDER No. MEG/PISC/3358/413 Dated: 19th September, 2008. Whereas Departmental Proceedings was drawn against Shri A. Ali Laskar, Driver in the Directorate of Fisheries and on careful observation of the findings of the Inquiry Officer, most of the charges have been found to be proved beyond reasonable doubt viz. absence from duty; leaving headquarters without permission and insubordination. And whereas Shri A. Ali Laskar has been given due opportunity to reply to the charges and to the findings of the Inquiry Officer, And whereas his statement in defence is found to be not satisfactory, the undersigned imposes the following penalty under Rule 7(ii) of Assam Services (Discipline and Appeal) Rules, 1964 as adopted by Meghalaya: (1) Withholding of 2 (two) annual increments with effect from the date of issue of this Office Order without cumulative effect. Whereas the disciplinary proceedings against Shri A. Ali Laskar has been completed, he is hereby reinstated in service with effect from the date of his joining duty. The period of suspension shall be treated as on leave due and admissible. Sd/-Director of Fisheries, Meghalaya, Shillong." ORDER In pursuance of reinstatement Order letter No. MEG/PISC/3350/87-88/413 dated 19-9-2008, Shri A. Ali Laskar, Driver is hereby allowed to draw pay @ Rs. 4160/- plus other allowances as admissible w.e.f. 14-10-2008 (date of joining) pending finalisation of the period of suspension until further order. Sd/-Director of Fisheries, Meghalaya, Shillong." ORDER In pursuance of reinstatement Order letter No. MEG/PISC/3350/87-88/413 dated 19-9-2008, Shri A. Ali Laskar, Driver is hereby allowed to draw pay @ Rs. 4160/- plus other allowances as admissible w.e.f. 14-10-2008 (date of joining) pending finalisation of the period of suspension until further order. Sd/-F.G. Momin ORDER On reinstating Shri A. Ali Laskar, Driver in service vide Office Order MEMO No. Meg/PISC/3358/87-88/413 dated 19-9-2008 the period under suspension for 1796 days w.e.f. 14-11-2003 to 13-10-2008 is hereby converted into leave due and admissible under F.R. 53(5) of the Meghalaya F. Ro and S. Ro 1984 as follows: (i) Barred leave for a period of 157 days w.e.f. 14-11-2003 to 18-4-2004 (ii) Half pay leave for a period of 400 days w.e.f. 19-4-2004 to 23-5-2005 (iii) Extraordinary leave without pay and allowances for a period of 1239 days w.e.f. 24-5-2005 to 13-10-2008. The period under Extra Ordinary Leave will not qualify pension or increment. Sd/-F.G. Momin. Directorate of Fisheries, Meghalaya, Shillong. Memo. No. MEG/PISC/3358/87-88/43 Dated, Shillong the 12th March, 09. 7. On perusal of the three orders extracted above, it is clear that in the first order dated 19th February, 2008, the Petitioner was already awarded a penalty of withholding his annual increments for a period of two years but without cumulative effect while the period of his suspension was to be treated as on leave due and admissible, while the second order dated 25-2-2009 allowed him to draw a pay of Rs. 4,160/- plus other allowances as admissible w.e.f. 14-10-2008 (date of joining) pending finalization of the period of his suspension until further order. It was purportedly in accordance with the observation that the period of his suspension was to be treated as on leave due and admissible that the third order was issued, namely, conversion of his leave due into nil pay, half and extra ordinary leave, which would not qualify for pension or increment. Coming now to F.R. 53(5), which is corresponding to F.R. 54(5) of the Fundamental Rules and Supplementary Rules of the Central Government employees, what is contemplated therein is how to treat the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement and not how to treat the period of absence preceding reinstatement after imposing a penalty after the charge against the Petitioner was proved. In the instant case, the question to be determined is how to treat the period of absence from duty preceding his reinstatement after a minor penalty was awarded to him. There can be no dispute that withholding of annual increment for two years without cumulative effect is a minor penalty. At this stage, I may refer to F.R. 56(1), (3), (4) and (8) of the Meghalaya F.R. S.R., which are corresponding to F.R. 54-B of the Fundamental Rules of the Central Government employees: F.R. 56(1) When a government servant who has been suspended is re-instated or would have been so reinstated but for his retirement on superannuation while under suspension 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 suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and (b) whether or not he said period shall be treated as a period spent on duty. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the government servant shall, subject to the provisions of Sub-rule (8) be paid full pay and allowances to which he would have been entitled, had he not been suspended: Provided that were 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 of making his representation and after considering the representation, if any by him, direct, for reasons to be recorded in writing, that the government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4) In a case falling under Sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. (8) The payment of allowances under Sub-rule (2), Sub-rule (3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. 8. In this connection, it will be instructive to refer to the Central Government instructions, Deptt. of Personnel & Training, O.M. No. 11012/15/85-Est.(A), dated 3rd December, 1985, which is reproduced in Swamy's Compilation of F.R. & S.R., 19th Edn. 8. In this connection, it will be instructive to refer to the Central Government instructions, Deptt. of Personnel & Training, O.M. No. 11012/15/85-Est.(A), dated 3rd December, 1985, which is reproduced in Swamy's Compilation of F.R. & S.R., 19th Edn. At page 247, which are in the following terms: (3) Period of suspension to be treated as duty if minor penalty only is to be imposed. Reference is invited to O.M. No. 43/56/64-AVD, dated 22-10-1964 [not printed], containing the guidelines for placing Government servants under suspension and to say that these instructions lay down, inter alia, that Government servant could be placed under suspension, if a prima facie case is made out justifying his prosecution or disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCS (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances paid for the suspension period. Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable under F.R. 54-B. 9. In my opinion, the instructions of the Central Government on the interpretation of F.R.54-B are quite consistent with the language of the provisions in question. Thus, if a departmental enquiry is launched against a government servant for imposition of major penalty, but the enquiry ended up in awarding a minor penalty, the suspension of the government servant is considered to be wholly unjustified. After all, it is only when the misconduct being charged against the delinquent official warrants a major penalty, then and then only the government servant shall have to be placed under suspension. After all, it is only when the misconduct being charged against the delinquent official warrants a major penalty, then and then only the government servant shall have to be placed under suspension. In other words, suspension is not a matter of course. In the instant case, there is no dispute at the bar that the Petitioner was placed under suspension on 30-6-2005 as a departmental enquiry was contemplated against him for an act of gravest insubordination unbecoming of a government servant, for which, admittedly, a major penalty was apparently in the contemplation of the Respondent-authorities. However, after holding a full-scale departmental enquiry, he has been awarded with a penalty of withholding of annual increments for two years but without cumulative effect, which indisputably amounts to a minor penalty. Under the circumstances, F.R. 56(3), (4) and (8) of the Meghalaya Fundamental Rules and Supplementary Rules will come into play. It is most unfortunate that in a grave insubordination case of this nature, a minor penalty could only be awarded, for which the Petitioner cannot be faulted with. The departmental enquiry was not apparently conducted without the seriousness it deserved. Considering the nature of the charges against the Petitioner, he appears to have been given benefit instead of the major penalty which he really deserves. Considering the nature of the charges against the Petitioner, he appears to have been given a benefit instead a major penalty which he really deserves. Some are born lucky. With due apology to Sir Winston Churchill, instead of snatching his victuals from the table, he has been content to have them served to him by the State Respondents course by course. I have no alternative but to allow the writ petition. 10. For the reasons stated in the foregoing, this writ petition is allowed. The impugned order dated 12-3-2009 at Annexure-7 be and is hereby quashed. The State-Respondents shall now treat the period of suspension of the Petitioner as the period spent on duty for all purposes and pay all the back wages in accordance with F.R. 56(3), (4) and (8) of the Meghalaya Fundamental Rules within a period of two months from the date of receipt of this judgment. No order as to costs. Petition allowed.