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2013 DIGILAW 269 (JHR)

Ram Chandra Prasad v. State of Jharkhand

2013-02-22

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The petitioner has challenged the order dated 08.04.2002 whereby it has been ordered that during the period of suspension the petitioner would be entitled for subsistence allowance only. 2. The petitioner was put under suspension by an office order dated 01.09.1998. He was served a charge memo dated 22.09.1998 and he submitted his show-cause reply on 14.01.1999. An enquiry report was submitted in which charge Nos. 1 and 3 were found proved. Charge No. 2 related to short supply of materials which was not proved against the petitioner. The order of punishment dated 07.03.2001 was passed withholding one increment with cumulative effect. In view of the proved misconduct of the petitioner by order dated 04.04.2001, it was ordered that during the period of suspension, petitioner would be entitled only for subsistence allowance. The petitioner moved the High Court in W.P.(S) No. 2805 of 2001 challenging the order dated 04.04.2001. The writ petition was disposed of with the direction that if any appeal is preferred by the petitioner within three weeks, the Appellate Authority would decide the claim of the petitioner by a reasoned order preferably within a period of four months. Thereafter, the petitioner preferred an appeal which was dismissed by order dated 08.04.2002. The petitioner has challenged order dated 08.04.2002 by filing the present writ petition. 3. A counter affidavit has been filed contending that as the petitioner was not fully exonerated from the charges framed against him and he has been awarded punishment, the suspension period from 22.08.1998 to 07.03.2001 was not treated as period on duty and in terms of Rule 97 of the Bihar Service Code, the petitioner has been paid the subsistence allowance during the period of suspension. 4. Heard counsel for both the parties and perused the documents on record. 5. The learned counsel for the petitioner has submitted that before inflicting the order of punishment dated 04.04.2001, petitioner was not issued a second show-cause notice and therefore, the order dated 04.04.2001 is liable to be quashed on the ground of violation of Principles of Natural Justice. He further submitted that before the Appellate Authority this point was specifically argued on behalf of the petitioner however, the Appellate Authority has erroneously dismissed the appeal of the petitioner. The learned counsel for the respondents has supported the impugned order. 6. He further submitted that before the Appellate Authority this point was specifically argued on behalf of the petitioner however, the Appellate Authority has erroneously dismissed the appeal of the petitioner. The learned counsel for the respondents has supported the impugned order. 6. Learned counsel for the petitioner has relied on the judgment in the case of “ Sharafat Hussain versus State of Bihar and Anr.”, reported in 2003 (3) JCR 102 (Jhr). The learned counsel for the respondents has relied on the judgments in the case of, “Shadi Lal Gupta versus State of Punjab”, reported in AIR 1973 SC 1124 and “Shiva Prakash Singh versus Director General, Central Industrial Security Force” reported in (2003) Supp OLR 655 and in the case of “Purnananda Beura versus State of Orissa and others”, reported in 1976 LAB.I.C. 1047. 7. In the case of “Shadi Lal Gupta versus State of Punjab”, reported in AIR 1973 SC 1124 , the Hon'ble Supreme Court has held that under Rule 8 of Punjab Civil Services (Punishment and Appeal) Rules 1952 the delinquent employee is not entitled to show cause notice in the case of minor punishment. The Hon'ble Supreme Court had held as under: - “6. ......... Rule 8 does not require anything more than that the allegations on the basis of which the officer concerned is charged should be made known to him and he should be given an opportunity to make any representation with regard to them. He need not be told the punishment which is sought to be imposed on him, either at the time the charge-sheet is served on him or at any other stage. There is no question of his being given an opportunity a second time after the enquiry is completed in respect of the punishment sought to be imposed on him unlike in a case covered by Rule 7. 7. Rule 7 of these Rules deals with cases where the major punishment of dismissal removal or reduction in rank are proposed to be imposed and sub-rule (6) of that rule specifically provides that in such a case after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, the accused officer shall be supplied with a copy of the report of the enquiring authority land be called upon to show cause against the particular penalty proposed to be inflicted on him. The words “without prejudice to the provisions of rule 7” occurring at the beginning of Rule 8 are sought to be taken advantage of to contend that even in the case of minor punishments referred to in that rule, of censure, withholding of increments and recovery from pay, an opportunity should be given to show cause against the punishment proposed to be imposed. Those words do not fit in the context and cannot mean that in a case of minor punishment not only the provisions of Rule 8 but also the provisions of Rule 7 should be followed. The rules must be interpreted in their proper setting and if so interpreted, those words would not bear the interpretation sought to be placed on them. The provisions of Rule 7 are necessitated by the provisions of Article 311(2) of the Constitution. As far as other punishments are concerned, the only right which a Government servant is entitled to is that the action proposed should be in accordance with the rules. That rule, R 8 does not contemplate anything more than an adequate opportunity of making a representation. We are, therefore, unable to accept this contention.” 8. In the case of “Shiva Prakash Singh versus Director General, Central Industrial Security Force”, reported in (2003) Supp OLR 655, a Division Bench of the Hon'ble Orissa High Court has held that “for imposition of minor punishment regular disciplinary proceeding is not required”. Another Division Bench of the Hon'ble Orissa High Court in the case of “Purnananda Beura versus State of Orissa and others”, reported in 1976 LAB.I.C. 1047, while dealing with the case under Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 has held as under: “There is no dispute about the fact that the punishment imposed on the petitioner are minor punishment as provided under Rule 13 of Orissa Civil Services (Classification, Control & Appeal) Rules, 1962. Therefore, the question of a giving second show cause notice before final orders of punishment does not arise as provided under Rule 16 of the aforesaid Rules”. 9. I find that the above cases relied upon by the counsel for the respondents are distinguishable on facts. In these case the rules, which fell for consideration before the Hon'ble Supreme Court are different from Rule 97 of the Bihar Service Code. 10. 9. I find that the above cases relied upon by the counsel for the respondents are distinguishable on facts. In these case the rules, which fell for consideration before the Hon'ble Supreme Court are different from Rule 97 of the Bihar Service Code. 10. I find that in the case of “ Sharafat Hussain versus State of Bihar and Anr.”, reported in 2003 (3) J C R 102 (Jhr). this Court has held that as no second show-cause notice was issued to the employee, before resorting to Rule 97 of the Bihar Service Code, who was found guilty in a departmental proceeding, the order passed under Rule 97 of the Bihar Service Code was not sustainable. 11. In the case of “Shri Mahabir Prasad versus the State of Bihar and others”, reported in 1988 PLJR 82, a Division Bench of the Patna High Court while dealing with Rule 97 of the Bihar Service Code has quashed the order passed under Rule 97 of the Bihar Service Code on the ground that opportunity to show cause, as to why clauses (3) and (5) of Rule 97 should not be applied in the case, was not given to the employee. In the case of “ Biswanath Mitra versus State of Bihar & Ors.”, reported in 2003 (4) PLJR 71 , the Court allowed the writ petition on the ground that no opportunity was given to the employee before resorting to Rule 97 of the Bihar Service Code. 12. Similarly, in the case of “Ramashray Prasad Singh versus the State of Bihar & Ors.”, reported in 2000 (3) PLJR 41 , the Court has held that any -5- order of restricted payment of salary for the period of suspension could be made under Rule 97 of the Bihar Service Code, only after giving the concerned employee an opportunity to show-cause. 13. I find that Rule 54 of Fundamental Rules is pari-materia to Rule 97 of the Bihar Service Code. 13. I find that Rule 54 of Fundamental Rules is pari-materia to Rule 97 of the Bihar Service Code. Rule 97 of the Bihar Service Code is extracted below:- Rule 97 “(1) When a government servant who has been dismissed, removed or suspended, 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. (2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall 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 allowances as such competent authority may prescribe. Provided that the payment of allowances 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. Provided that the payment of allowances 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. (5) In a case falling under clause (2) the period of absence from duty shall not be treated as 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.” Fundamental Rule 54 is as follows: “(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 a 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; (2) Where the authority mentioned in sub-rule (1) is of opinion that the Government 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 the full pay and allowances 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 allowances as such competent allowances are admissible: Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. (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. Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. (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. (5) In a case falling under clause (3), 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 desired, 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.” 14. In the case of “M. Gopalkrishna Naidu versus the State of Madhya Pradesh”, reported in AIR 1968 SC 240 , the Hon'ble Supreme Court while examining Fundamental Rule 54 has held as under :- “(6) It is true that the order under F.R. 54 is in a sense a consequential order in that it would be passed after an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the government servant has to be given an opportunity to show cause or not. It is also true that in a case where reinstatement is ordered after a departmental inquiry the government servant would ordinarily have had an opportunity to show case. In such a case, the authority no doubt would have before him the entire record including the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such as case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry. In such as case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry. But there are three classes of case as laid down by the proviso in Art. 311 where a departmental inquiry would not be held viz., (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry, and (c) where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore, an order passed under Fundamental Rule 54 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee. (7) It is true as Mr. Sen pointed out that F.R. 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 the rule casts such a duty on the -8- authority by implication. The order as to whether a given case falls under Cl. 2 or Cl. 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. 2 or Cl. 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 Cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances 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 natural justice.” 15. In the case of “Manzoor Ahmed Mazumdar versus State of Meghalaya and others”, reported in (1997) 11 SCC 374 , the Supreme Court has 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 power which has been conferred by the said provision. It was, therefore, necessary for the competent authority to afford an opportunity to the employee before passing the order regarding pay and allowances payable to the employee in respect of the period of suspension. 16. From the materials on record, I find that no show-cause notice was issued to the petitioner before passing the order dated 04.04.2001. Although, the petitioner has not challenged order dated 07.03.2001 whereby he has been punished for proved misconduct, however, I find that order dated 04.04.2001 cannot be said to be passed in accordance with law. In view of the law laid down by the Hon'ble Supreme Court and our High Court, it is clear that order dated 04.04.2001 does not fulfill the requirements of law and therefore, it requires interference by the -9- Court. In view of the law laid down by the Hon'ble Supreme Court and our High Court, it is clear that order dated 04.04.2001 does not fulfill the requirements of law and therefore, it requires interference by the -9- Court. In the result, the writ petition is allowed and the impugned order dated 04.04.2001 is set-aside. However, it would be open to the respondents to proceed against the petitioner, if he is still in service, in accordance with law. 17. There shall however, be no order as to costs.