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2013 DIGILAW 302 (GAU)

Isha Haque Mondal v. State of Assam and Ors.

2013-05-13

UJJAL BHUYAN

body2013
Heard Mr. S. Ali, learned counsel for the petitioner and Ms. A. Verma, learned Standing counsel, Health Department, Government of Assam for the respondents. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to treat the period of his suspension, i.e., from 9.3.2001 to 3.7.2007 as period spent on duty and to pay him full salary and allowances for the said period. 3. Case of the petitioner is that he is a medical practitioner by profession. He joined medical service under the Government of Assam in the Health and Family Welfare (A) Department as Medical and Health Officer. While serving as Senior Medical and Health Officer in the Dhubri Civil Hospital, Dhubri, petitioner was arrested in connection with Dhubri PS. Case No. 52/2001 under section 376, IPC and detained in jail custody for more than 48 hours. In contemplation of disciplinary proceeding and considering his arrest and detention in jail custody beyond 48 hours, petitioner was placed under suspension with effect from the date of his arrest, i.e., 9.3.2001 vide the Government notification dated 17.3.2001. 4. However, no disciplinary proceeding was drawn up against the petitioner. In the meanwhile, he was released from custody. Petitioner submitted application before the Secretary to the Government of Assam, Health and Family Welfare (A) Department on 15.10.2001 seeking reinstatement in service. But there was no response. The respondents also did not carry out any review of petitioner's suspension though they were required to do so as per Government instructions. 5. The criminal case against the petitioner went up to trial as a Sessions case, being Sessions Case No. 72/2001 under section 376/201, IPC. Learned Additional Sessions Judge, Dhubri by judgment and order dated 10.5.2002 acquitted the petitioner of the charge under section 376/201, IPC. However, the learned trial court convicted the petitioner under section 354, IPC and sentenced him to pay a fine of Rs. 5,000, in default, to suffer Rigorous Imprisonment ('RI') for three months. 6. Aggrieved by the aforesaid conviction and sentence, petitioner preferred an appeal before this court, which was registered as Criminal Appeal No. 218/2002. This court by the judgment and order dated 27.3.2007 allowed the appeal and set aside the order of conviction and sentence. This Court held that there was not even an iota of material suggesting any outraging of modesty of the informant (PW2). This court by the judgment and order dated 27.3.2007 allowed the appeal and set aside the order of conviction and sentence. This Court held that there was not even an iota of material suggesting any outraging of modesty of the informant (PW2). Taking the view that the impugned conviction was by way of conjectures and surmises, this court acquitted the petitioner and set him at liberty. 7. Petitioner thereafter submitted a representation before the Secretary on 20.4.2007 to rescind the suspension order dated 17.3.2001 and to reinstate him in service. 8. Government of Assam in the Health and Family Welfare (A) Department, i.e., respondent No. 1 issued notification dated 3.7.2007 reinstating the petitioner in service with immediate effect and posting him as Senior Medical and Health Officer at Hailakandi Civil Hospital, Hailakandi. Following the same, petitioner joined as Senior Medical and Health Officer, Hailakandi Civil Hospital on 1.10.2007. 9. Respondent No. 1 passed an order dated 11.10.2007 stating that since the petitioner has been acquitted by the High Court and set at liberty, the Governor of Assam is pleased to close the departmental proceeding contemplated against him. It was further ordered that the period of suspension may be regularized by granting leave/extraordinary leave as due to the petitioner. Subsequently, on a request by the Health Department, Government of Assam vide letter dated 3.3.2008, the office of the Accountant General (A&E), Assam submitted leave admissibility report dated 23.6.2008 in respect of the petitioner. It was certified that petitioner had earned leave for 180 days and half pay leave for 320 days to his credit as on 9.3.2001. 10. Petitioner submitted representation dated 19.5.2008 before the respondent No. 1 requesting the said authority to treat his period of suspension as on duty and to pay him his pay and allowances for the said period. As there was no response, petitioner submitted a number of representations subsequently. But again without any success. 11. Aggrieved, petitioner has filed the present application seeking the relief(s) as indicated above. 12. Contention of the petitioner is that under FR 54-B, it was incumbent upon the State to have specifically dealt with the issue relating to pay and allowances to be paid to him for the period of his suspension and also as to whether the said period should be treated as a period spent on duty. 12. Contention of the petitioner is that under FR 54-B, it was incumbent upon the State to have specifically dealt with the issue relating to pay and allowances to be paid to him for the period of his suspension and also as to whether the said period should be treated as a period spent on duty. Respondent No. 1 being the competent authority was required to consider the above and to pass specific order in this regard. No such specific order has been passed in the case of the petitioner. The impugned order has prejudicially affected the petitioner inasmuch as it will result in exhaustion of all his leave thereby depriving him the benefit of leave encashment at the time of his superannuation. This amounts to imposition of penalty indirectly. Since petitioner was placed under suspension following his arrest in a criminal case, which finally ended in his acquittal and no departmental proceeding having been drawn up independently, petitioner's period of suspension is required to be treated as a period spend on duty and the petitioner is entitled to full pay and allowances for the said period. Petitioner's representation having gone unresponded, the court should intervene in the matter and pass appropriate order(s) to remedy the situation. 13. Though notice was issued by this court on 24.5.2012, no counter affidavit has been filed by the respondents despite several opportunities being granted. As learned counsel for the petitioner expressed urgency in the matter in view of the impending superannuation of the petitioner, case was heard on 30.4.2013 and judgment is delivered today. 14. Learned counsel for the petitioner has referred to FR 54-B and he submits that when a Government servant who was suspended and subsequently reinstated, the competent authority to order reinstatement is required to consider and make specific order regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement and as to whether the said period should be treated as a period spent on duty. If the suspension is considered unjustified, the Government servant is required to be paid the full pay and allowances which he would have been entitled to had it not been for the suspension. In such a case, the period of suspension should be treated as a period spent on duty. If the suspension is considered unjustified, the Government servant is required to be paid the full pay and allowances which he would have been entitled to had it not been for the suspension. In such a case, the period of suspension should be treated as a period spent on duty. Learned counsel for the petitioner submits that there was no consideration by the competent authority on the above aspect of the matter and no specific order was passed. On the contrary, by the impugned order, the suspension period has been regularized by granting leave/extraordinary leave as due to the petitioner. This will have two implications. Firstly, all the leave to the credit of the petitioner would stand exhausted, thereby depriving him from the benefit of leave encashment and secondly, as per the leave admissibility report submitted by the office of the Accountant General, petitioner does not have adequate leave to cover the entire period of suspension, thereby raising a serious question mark over regularization of the suspension period. Learned counsel for the petitioner has placed reliance on the following decisions - Dulal Chandra Baidya v. Tripura State Electricity Corporation Ltd. and Others, (2011) 3 GLR 258 Aszr Ali Laskar v. State of Meghalaya and Another,2012 (1) GLR 833; 2011 (4) GLT 361 Minati Das and Others v. State ofTripura and Others, (2012) 3 GLR 106. 15. Learned Standing counsel on the other hand supports the impugned order dated 11.10.2007, but fairly submits that the court may consider the validity of the said order on the touchstone of FR 54-B. 16. Submissions made have been considered. 17. Facts in this case are not in dispute. Petitioner was suspended following his arrest in a criminal case. The criminal case finally ended in acquittal of the petitioner whereafter he was reinstated in service. The suspension period of the petitioner was from 9.3.2001 to 3.7.2007. Though in the order of suspension, it was stated that disciplinary proceeding was contemplated, no such disciplinary proceeding was instituted against the petitioner. Therefore, the decision recorded in the impugned order dated 11.10.2007 that the disciplinary proceeding contemplated against the petitioner stood closed does not reflect the correct position as in the absence of initiation of any departmental proceeding, closure of the same does not arise. As a matter of fact, what it conveys is that the State has decided not to have any departmental proceeding against the petitioner. As a matter of fact, what it conveys is that the State has decided not to have any departmental proceeding against the petitioner. 18. The question, therefore, arises is as to how the period of suspension is to be treated. 19. FR 54-B deals with such a situation. FR 54-B(1), (3) and (4), which are relevant for the present purpose, are quoted hereunder : "FR 54--B. (1) When a Government servant who has been suspended is reinstated 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 the 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 the full pay and allowances which he would have been entitled, had he not been suspended: Provided that where 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 hearing the representation, if any submitted 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 proportion 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." 20. As already noticed, there was no consideration by the competent authority and consequently, no specific order was passed on the above aspect of the matter. As noticed above, the competent authority vide the impugned order has regularized the suspension period by granting leave/extraordinary leave as due to the petitioner. As already noticed, there was no consideration by the competent authority and consequently, no specific order was passed on the above aspect of the matter. As noticed above, the competent authority vide the impugned order has regularized the suspension period by granting leave/extraordinary leave as due to the petitioner. As rightly pointed out by the petitioner, such decision of the competent authority would prejudicially affect the petitioner inasmuch as it would lead to complete exhaustion of the petitioner's leave to his credit and thereby deprive him of the benefit of leave encashment to which a Government servant is entitled to on his superannuation. Thus, the above order entails adverse civil consequences on the petitioner. In such circumstances, it was incumbent upon the competent authority, in this case, respondent No.l, to have afforded an opportunity of hearing to the petitioner before passing of the impugned order. There was thus duty to hear the petitioner under FR 54--B before any prejudicial order was passed against him. 21. Petitioner having not been imposed any penalty following a departmental proceeding and having been acquitted in the criminal proceeding, with the sequence of events clearly demonstrating that the delay in the closure of the departmental proceeding cannot be attributed to the petitioner, it would be just and proper if the period of suspension is treated to have been spent on duty and full pay and allowances is paid for the said period. As noticed above, the respondents, more particularly respondent No. 1, have failed to discharge their duty as per the requirement of FE 54--B. In such circumstances, the court is of the view that the decision of the respondents to regularize the period of suspension by granting leave/extraordinary leave is not justified. 22. Accordingly, this writ petition is allowed by quashing that portion of the order dated 11.10.2007 regularizing the suspension period of the petitioner by way of granting leave/extraordinary leave. The State respondents shall now treat the period of suspension of the petitioner as period spent on duty for all purposes and pay the salary and allowances for the said period to the petitioner after deduction of the subsistence allowance already paid. 23. Writ petition is allowed. 24. No cost. ______________