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2014 DIGILAW 165 (JHR)

Ram Bilash Sahu v. State of Jharkhand

2014-01-27

APARESH KUMAR SINGH

body2014
ORDER : Heard learned counsel for the parties. 2. The writ petition was filed on 10.1.2013, during the period when the petitioner was under suspension i.e. from 4.11.2010 till his suspension was revoked on 22.11.2013. The petitioner came with a grievance that the respondents ought to have considered enhancement of the subsistence allowance on completion of 12 months of suspension in terms of statutory provisions contained in Rule 96(1)(a)(i) of the Jharkhand Service Code. Rule 96 of the Jharkhand Service Code is quoted hereunder:- "96(1) A Government servant under suspension shall be entitled to the following payments, namely:––(a) Subsistence grant at an amount equal to the leave-salary which the Government servant would have drawn, if he has been on leave, on half average pay, or on half pay and in addition cost of living allowance based on such leave salary: Provided that where the period of suspension exceeds twelve months, the authority which made or is deemed to have made the order of suspension, shall be competent to vary the amount of subsistence grant for any period subsequent to the period of the first twelve months, as follows- (i) the amount of subsistence grant may be increased by a suitable amount not exceeding 50 per cent of the subsistence grant admissible during the period of the first twelve 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. (ii) the amount of subsistence grant may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence grant admissible during the period of the first twelve 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. (iii) the rate of cost of living allowance will be based on the increased or as the case may be, the decreased amount of subsistence grant admissible under sub-clause (i) and (ii) above. (iii) the rate of cost of living allowance will be based on the increased or as the case may be, the decreased amount of subsistence grant admissible under sub-clause (i) and (ii) above. (b) [Any other compensatory allowance to which a Government servant may be entitled from time to time on the basis of pay, which he received] on the date of suspension : Provided that the Government servant shall not be entitled to that compensatory allowance unless the said authority is satisfied that the Government servant continues to meet the expenditure for which they are granted. (2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation. (3) The subsistence grant shall be subject to a minimum limit of Rs. 10 per month." 3. The petitioner's contention is that after being placed under suspension, he was charge-sheeted on account of having been implicated in a criminal case being R.C. No. 20(A)/2009(R) relating to illegal procurement and utilization of bitumen. He was taken into custody on 14.2.2012. On 8.10.2012, he was released from custody. It has submitted, on his part, that during the period after his suspension before he was taken in custody on 14.2.2012, he attended 16 dates out of 17 dates fixed by the inquiry officer diligently. It is submitted that the record of the proceeding of the departmental enquiry which also contains communication issued by the Inquiry Officer, some of which are annexed in the writ petition such as letter dated 11.8.2011, 22.6.2012, Annexure-4 reveals that there was almost lack of co-operation from the Prosecuting Officer and the documents sought for by the delinquent were not even supplied for a considerable length of time despite direction issued by the Enquiry Officer. The Enquiry Officer in fact remitted the file for further continuation of the enquiry to the department vide letter dated 22.6.2012. It is, therefore, submitted that the respondents ought to have considered enhancement of subsistence allowance in terms of Rule 96(1)(a)(i) of the Jharkhand Service Code, which has not been done. 4. It is contended that, the petitioner's suspension, during the pendency of the writ petition, has been revoked on 22.11.2013, however, that is not a ground to refuse enhancement of subsistence allowance during the period he was under suspension in terms of statutory rule. 5. 4. It is contended that, the petitioner's suspension, during the pendency of the writ petition, has been revoked on 22.11.2013, however, that is not a ground to refuse enhancement of subsistence allowance during the period he was under suspension in terms of statutory rule. 5. The respondents have taken a plea that the petitioner was in custody for a considerable length of time, which cannot be attributed to the State Government in view of such judicial custody of the petitioner. Also for the same reason, it was impossible for him to attend the departmental proceeding regularly. The departmental proceeding, as such, is pending now and the suspension has also been revoked. His salary for the period of suspension would be considered by the disciplinary authority while passing the final order. 5. The relevant provisions of Rule 95(1)(a)(i) of the Jharkhand Service Code, is quoted hereinabove. The facts narrated hereinabove show that the petitioner completed 12 months under suspension by 4.11.2011 and was taken in custody on 14.2.2012. Even after being released from custody on 8.10.2012, he remained under suspension till 22.11.2013, when his suspension was revoked. There is discretion vested upon the Competent Authority to take a decision in the matter of enhancement of subsistence allowance upon completion of 12 months under suspension which should be done by recording reasons in writing and at the same time expressing the opinion whether the suspension has been prolonged due to act directly attributable to the Government servant. It, therefore, appears that discretion has been conferred on administrative authority by a statute, and the reasons for exercise of the same are to be recorded. The respondent authorities are under obligation to undertake such an exercise in the matter of enhancement or refusal to enhance the subsistence allowance to the concerned employee, if he has remained under suspension for a period of more than 12 months. 7. The rival parties have advanced the submissions whether the prolongation of the departmental enquiry was on account of the acts of the petitioner or for reasons beyond his control or also on account of non-cooperation of the prosecuting officer. This Court, however, refrains from commenting upon the merits of the reasons for prolongation of the departmental enquiry. 7. The rival parties have advanced the submissions whether the prolongation of the departmental enquiry was on account of the acts of the petitioner or for reasons beyond his control or also on account of non-cooperation of the prosecuting officer. This Court, however, refrains from commenting upon the merits of the reasons for prolongation of the departmental enquiry. Be that as it may, the Competent Authority under the Government is obliged to take a decision one way or the other by expressing his opinion in writing on the claim of the petitioner on the enhancement of the subsistence allowance after 12 months of suspension. The counter affidavit of the respondent-State also does not contain any such reasoned order showing discharge of the statutory power conferred upon the competent authority. In that view of the matter, the contention of the respondents that since the suspension has been revoked on 22.11.2013, therefore, issue relating to full salary would be considered at the time of passing of the final order in the departmental proceeding does not hold good as the claim of the petitioner was raised as aforesaid for enhancement of the subsistence, allowance after 12 months of being under suspension. 8. In the circumstances, the Competent Authority under the Road Construction Department, Government of Jharkhand, Ranchi is directed to take a decision on the claim of the petitioner for enhancement of subsistence allowance in terms of Rule 96(1)(a)(i) of the Jharkhand Service Code by passing a reasoned order within a period of six weeks from the date of receipt of a copy of this order alongwith a detailed representation presented by the petitioner. 9. Needless to say, dependent upon such decision on the claim of the petitioner for enhancement of subsistence allowance, if it is found to be admissible arrears of such enhanced subsistence allowance, would be paid within a further period of four weeks thereafter. 10. Accordingly, writ petition is disposed of in the aforesaid manner.