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Rajasthan High Court · body

2014 DIGILAW 1460 (RAJ)

Mohd. Laeeq Khan v. State of Rajasthan

2014-08-08

MOHAMMAD RAFIQ

body2014
ORDER Prayer in this writ petition is made for quashment of orders dated 05.03.2005 (Annexure-1) and 15.02.2013 (Annexure-7) with a direction to respondent no. 1 to reinstate him in service with full back wages along-with other consequential benefits. Petitioner was placed under suspension vide order dated 05.03.2005 (Annexure-1) on account of lodgment of two criminal cases. Therein, however, no reason was assigned for his suspension. Petitioner contended that he is entitled to receive 75% of salary as subsistence allowance but the respondents have been paying him only 50% of salary all throughout. Petitioner made an application to the respondent no. 1 for grant him 75% of the salary as subsistence allowance, but nothing has been done so far. Petitioner further contended that in criminal case also even charges have not been framed so far and trial may take a long. Petitioner relied on the Circular dated 07.07.2010 of the Government of Rajasthan in its Department of Personal, which provides that in case an employee is placed under suspension and more than three years have passed from the date of suspension and charge-sheet has been submitted before the court, then the matter regarding revocation of suspension may be placed before the Committee constituted by the Department in this regard and thereafter submits its recommendation for revocation of the suspension. In this case also more than three years have elapsed from the date of suspension. On the basis of the Circular dated 07.07.2010 issued by the Department of Personnel, Government of Rajasthan, the respondents ought to recall the suspension of the petitioner as there are instructions of the Department of Personnel that if the trial is not completed for three years, the suspension may be recalled. Earlier also the petitioner filed Writ Petition No. 19806 of 2012, which came to be disposed of by a coordinate bench of this court vide judgment dated 11.12.2012 requiring the petitioner to make representation to the respondents, but the respondents, vide order dated 15.02.2013, have rejected the representation on the ground that the matter is pending in the court and trial is not concluded and prima facie the petitioner is found involved in the matter. Impugned order of suspension is, therefore, liable to be quashed, as prolonged suspension for as long as nine years has made it arbitrary and illegal. Impugned order of suspension is, therefore, liable to be quashed, as prolonged suspension for as long as nine years has made it arbitrary and illegal. Shri Bhupendra Kumar Pareek, OIC for respondents, submits that a suspended employee cannot claim enhancement of subsistence allowance from 50% to 75% as a matter of right. It depends on his conduct. The petitioner has not been regularly reporting to the headquarters during the period of suspension, therefore, the subsistence allowance in his case was not increased to 75%. The officer-in-charge further argued that suspension of the petitioner was brought on account of lodgment of criminal case and so long as the trial is not concluded, the suspension may not be revoked. If the petitioner feels that his suspension is liable to be reviewed in view of Circular dated 07.07.2010 of the Department of Personnel, it is open for him to approach the competent authority by making suitable representation. The respondents submitted that there are serious allegations against the petitioner of forging the documents and thereby obtaining loan from the banks. The petitioner rejoined and submitted that first proviso to sub-Rule (1)(a) of Rule 53 of the Rajasthan Service Rules, provides that amount of subsistence allowance may be increased by a suitable amount, not exceeding to 50% of the subsistence allowance admissible during the first six months. Rule 53 of the RSR provides that a Government servant under suspension is entitled to subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been leave on half pay and in addition dearness allowance based on such leave salary. Proviso thereto stipulates that where the suspension period exceeds six months, the authority, which made or is deemed to have made the order of suspension, shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months in the manner indicated in three clauses thereunder. First clause of this proviso stipulates that the amount of subsistence allowance may be increased by a suitable amount, not exceeding to 50% of the subsistence allowance admissible during the period of the first six months if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded, in writing not directly, attributable to the Government servant. Conversely, the second clause provides that the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first six months if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant. The petitioner was placed under suspension vide order dated 05.03.2005. Now about nine-and-a-half year has already elapsed from the date of placing him under suspension. No purpose would be served in keeping the petitioner under suspension for further period. The trial against the petitioner will also take a long. The respondents have not even initiated any disciplinary proceedings against him. Even as per the Circular dated 07.07.2010 issued by the Department of Personnel, Government of Rajasthan, the respondents ought to have recalled the suspension of the petitioner as according to instructions contained therein, if the trial is not completed for three years, the suspension may be revoked. In the present case, the petitioner has been placed under suspension on account of pending criminal trial against him and the respondents have neither asserted nor placed any material to show that the trial is getting delayed on account of lapse on the part of the petitioner. Although it may be true that suspension of the petitioner has been brought about nine years ago on the ground of alleged misconduct attributed to him but that cannot be taken as a reason owing to which suspension is required to be prolonged. Case of the petitioner would thus fall in clause (1) of proviso to clause (a) of Rule 53 of the Rules. Seriousness of allegation against the petitioner by itself may not be a reason for denying him the increased amount of subsistence allowance. It goes without saying that non payment of adequate subsistence allowance violates the basic human rights and infringes the right of liberty enshrined under Article 20 of the Constitution of India. Agony of the petitioner, who is facing suspension for almost a decade now is very difficult to visualize. Action of the respondents in not enhancing his subsistence allowance to 75% after expiry of the initial period of six months, is highly arbitrary, illegal and unconstitutional being violative of Articles 14 and 16 of the Constitution of India. Agony of the petitioner, who is facing suspension for almost a decade now is very difficult to visualize. Action of the respondents in not enhancing his subsistence allowance to 75% after expiry of the initial period of six months, is highly arbitrary, illegal and unconstitutional being violative of Articles 14 and 16 of the Constitution of India. It is discriminatory qua the petitioner because in almost all cases the Government normally increases the quantum of subsistence allowance from 50% to 75%. It can be declined to an employee only if it is shown that suspension is being prolonged for reasons directly attributable to the petitioner, whereas no such reason has been either cited or proved in this case. This court is, therefore, persuaded to allow the writ petition only in part, in so far as payment of subsistence allowance is concerned. Despite the fact that this is a case where suspension of the petitioner has remained unduly prolonged, this court leave it on the wisdom of the respondent department to look into the matter as per Circular dated 07.07.2010 issued by the Department of Personnel, Government of Rajasthan, and sympathetically consider to revoke the suspension of the petitioner especially when he is due to retire shortly. The writ petition is therefore partly allowed. The petitioner is held entitled to subsistence allowance at the rate of 75% on the basis of pay which he was in receipt on the date of suspension from the date immediately after expiry of six months from the date of his suspension was first ordered. Petitioner shall also be entitled to interest at the rate of 6% per annum on the arrears of subsistence allowance. However on other aspect, the respondents are required to place the matter of the petitioner before the Committee to consider revocation of his suspension as per Circular dated 07.07.2010 issued by the Department of Personnel, Government of Rajasthan. The said committee shall take a final decision with regard to revocation of the suspension of the petitioner in view of the observations made above, within a period of two months from the date a copy of this order is placed before the respondents. This also disposes of stay application.