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2011 DIGILAW 645 (MP)

State of M. P. v. Shailendra

2011-06-20

S.C.SHARMA, SHANTANU KEMKAR

body2011
ORDER Shantanu Kemkar, J. 1. By filing this writ appeal the appellants have challenged the order dated 13-5-2008 passed by the learned Single Judge of this Court in Writ Petition No. 7434/2006 (s). 2. Brief facts necessary for disposal of this writ appeal are that the respondent was working on the post of Sub-Engineer in the Energy Department of the State Government. He was suspended on 22-12-2001 for the misconduct. Thereafter, a charge-sheet about major misconduct was issued to him on 2-2-2002. After holding Departmental Enquiry he was inflicted with the penalty of withholding of two increments without cumulative effect under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The respondent submitted a representation claiming full salary of the suspension period (22-12-2001 to 29-4-2005). When no order was passed on his representation he approached this Court by filing a Writ Petition No. 3475/2006 (s). The said writ petition was disposed of by a learned Single Judge vide order dated 11-8-2006 directing the appellants herein to consider the respondent's prayer for grant of full salary during the period of suspension and pass a reasoned order keeping in view the law laid down by this Court in the case of Y. S. Sachan Vs. State of M. P. and others, 2004 (1) M.P.H.T. 22 . 3. In pursuance to the aforesaid directions issued by this Court the respondent's representation was considered by the appellants and vide order dated 26-10-2006 the same was rejected by holding that during the said period of suspension the respondent was not present at the Headquarter, Ratlam fixed while suspending him. The said order dated 26-10-2006 was assailed by the respondent by filing Writ Petition No. 7434/2006 (s). 4. When the said writ petition came up for hearing it was not disputed by the learned Dy. Govt. Advocate for the appellants herein that the controversy involved is covered by the judgment of this Court in the case of Y.S. Sachan Vs. State of M.P. and others (supra). Accordingly, the learned Single Judge disposed of writ petition holding that the respondent herein shall be entitled to full salary for the period he had remained under suspension as per his entitlement. Feeling aggrieved the appellants/State has filed this writ appeal. 5. State of M.P. and others (supra). Accordingly, the learned Single Judge disposed of writ petition holding that the respondent herein shall be entitled to full salary for the period he had remained under suspension as per his entitlement. Feeling aggrieved the appellants/State has filed this writ appeal. 5. It is not in dispute that the departmental proceedings instituted against the respondent who remained suspended during the period, for the imposition of a major penalty, finally ended with imposition of minor penalty of withholding of two increments without cumulative effect. In the circumstances, in view of the Circular dated 13-1-2005 which was filed with the writ petition as Annexure P-8, as also in view of the law laid down in the case of Y.S. Sachem Vs. State of M.P. and others (supra), the respondent was very much entitled for full salary of the period of his suspension. Para 6 of the said circular reads thus :-- 6. From the order dated 26-10-2006, which was subject matter of challenge in the writ petition, we find that the appellants had denied the benefit of the said circular to the respondent on the ground that he did not report at the Headquarter Ratlam and, therefore, he is not entitled for the salary of the said period of his suspension. 7. The learned Dy. Govt. Advocate could not point out as to whether for not granting the full salary of the said period on the ground that during the period of suspension the respondent did not report the Headquarter any show-cause notice or opportunity of hearing was ever given to the respondent. In the circumstances, in the absence of any show-cause notice or opportunity of hearing, in our considered view the benefit of the salary of the said period could not have been denied to the respondent in view of the Circular. Admittedly, the respondent was charge-sheeted for major misconduct but the minor penalty was imposed upon him, therefore, in view of the Circular, dated 13-1-2005 he was entitled for full salary of the entire period of suspension. In the circumstances, in our view the order passed by the learned Single Judge needs no interference. 8. Accordingly, the writ appeal deserves to be and is hereby dismissed. In the circumstances, in our view the order passed by the learned Single Judge needs no interference. 8. Accordingly, the writ appeal deserves to be and is hereby dismissed. The appellants are directed to pay the full salary of the said period of suspension to the respondent within 3 months from the date of receipt of copy of this order. 9. However, we make it clear that in case the appellants find that the respondent had remained absent from the Headquarter without permission and has violated any circular or rule to that effect, it will be open for the Competent Authority of the appellants to proceed against the respondent in terms of the Circular dated 26-9-1968 issued by the General Administration Department of the State Government vide Gyapan Kra. 21709 CR 260-1 (3) 68 by holding Departmental Enquiry after issuing charge-sheet for such indiscipline. 10. With the aforesaid observations, the writ appeal stands dismissed.