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2014 DIGILAW 280 (MEG)

Chesterfield Khongshit v. State of Meghalaya

2014-12-02

T.NANDAKUMAR SINGH

body2014
Judgment T. Nandakumar Singh, J. 1. Heard Mr. B.K. Das, learned council appearing for the petitioner, as well as Mr. S. Sen Gupta, learned GA appearing for the respondents. 2. By this writ petition, the petitioner is praying for directions to the respondents (i) to pay of Subsistence Allowance i.e. 25% of his salary w.e.f. 01.03.2009 to 31.03.2010 as per the order of the Gauhati High Court, Shillong Bench dated 09.03.2009 along with interest at the rate of 18% per annum (ii) to pay the full pay and allowance (back wages) with revised pay scale during the period of suspension of the petitioner i.e. from 12.07.2002 to 31.03.2010, (iii) pay the undisbursed salary of the petitioner w.e.f. 01.07.2002 to 11.07.2002 and (iv) also for quashing the portion of the reinstatement order dated 31.03.2010 i.e. "the period of his absence from duty should be treated as not on duty". 3. The concise fact, sufficient for deciding the matter in issue in the present writ petition, is noted. The petitioner was appointed as a regular Grade IV employee of the Director of Higher and Technical Education, Govt. of Meghalaya, Shillong and in the year 2002, he was posted in the office of the Commanding Officer, 61 BN, Meghalaya Girls' NCC, Shillong, he was placed under suspension w.e.f. 12.07.2002 vide suspension order dated 16.08.2002 under Rule 6(2) of the Assam Service Disciplinary & Appeal Rule, 1964 as adopted by the Govt. of Meghalaya on account of being detained for more than 48 hours in connection with Lumdiengjri P.S. Case No. 65(7) of 2002 under Section 302 of IPC. The departmental proceedings against the petitioner was started only in the month of June, 2003 for Articles of Charges (i) on 11.07.2002 at 11:30 A.M. the petitioner assaulted his wife who succumbed to her injury on the way to hospital on the same night and (ii) that the petitioner was arrested for more than 48 hours in connection with Lumdiengjri P.S. Case No. 65(7) of 2002 under Section 302 of IPC. The investigating authority had submitted the charge sheet of the said Lumdiengjri P.S. Case No. 65(7) of 2002 under Section 302 of IPC and the petitioner faced the trial of Session Case No. 6/2002 of the learned Session Judge, Shillong. The investigating authority had submitted the charge sheet of the said Lumdiengjri P.S. Case No. 65(7) of 2002 under Section 302 of IPC and the petitioner faced the trial of Session Case No. 6/2002 of the learned Session Judge, Shillong. The petitioner also stated in the writ petition that after the full length trial of session case No. 5/2006, he had been acquitted vide judgment and order 01.05.2007 passed in Session Case No. 5/2006. It is also an admitted case of both the parties that even if the petitioner had been acquitted in the Session Case No. 5/2006 by the learned Session Judge vide judgment and order dated 01.05.2007, the departmental inquiry for the said Articles of Charges had been lingered for a number of years. Ultimately, on the recommendation of the inquiry officer of the said departmental inquiry, the petitioner had been reinstated in service w.e.f. 31.03.2010 vide the impugned order dated 31.03.2010. The impugned order dated 31.03.2010 clearly mentioned that the period of absence of duty shall be treated as not on duty. Now the question to be decided in the present case is whether, absence of the petitioner from duty w.e.f. the date of acquittal under the order dated 09.03.2009 to 31.03.2010 i.e. the date of reinstatement was for fault of the petitioner or for the fault of the respondents. 4. The respondents had filed the affidavit-in-opposition wherein, the respondents are not denying that even if the petitioner had been acquitted by the said order dated 01.05.2007 passed in Session Case No. 5/2006, the departmental inquiry against the petitioner could not be completed for a couple of years. It is also stated in the affidavit-in-opposition that the petitioner had been reinstated in service because of his acquittal in the said Session Trial Case No. 5/2006 vide the said judgment and order dated 01.05.2007 passed by the learned Session Judge; and in nowhere of the affidavit-in-opposition, the respondents mentioned the reasons for the delay in completing the departmental inquiry against the petitioner. In other words, in the affidavit-in-opposition, respondents clearly admitted that the delay in completion of the departmental inquiry against the petitioner was because of the lapses of the respondent authority. 5. In other words, in the affidavit-in-opposition, respondents clearly admitted that the delay in completion of the departmental inquiry against the petitioner was because of the lapses of the respondent authority. 5. From the above fact, it is clear that it was not the fault of the petitioner that he did not attend his duties during the period from the date of his acquittal vide order dated 01.05.2007 to the date of reinstatement in service vide the said order dated 31.03.2010. The Apex Court in Union of India & Ors v. K.V. Jankiraman & Ors (1991) 4 SCC 109 held that if the absence from duty was not because of the fault of the employee, the employee should get full salary for the said period of absence. Para 25 & 26 of the SCC in K.V. Jankiraman's case (Supra) read as follows:- "25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so." 6. The Apex Court in Iswarlal Mohanlal Thakkar v. Paschim Gujrat VIJ Company Limited & Anr (2014) 6 SCC 434 held that the appellant/employee would be entitled to back wages as the appellant was prematurely superannuated because of the wrong decision of the employer in fixing the date of superannuation of the appellant by relying upon incorrect date of birth. 7. The Apex Court in Iswarlal Mohanlal Thakkar v. Paschim Gujrat VIJ Company Limited & Anr (2014) 6 SCC 434 held that the appellant/employee would be entitled to back wages as the appellant was prematurely superannuated because of the wrong decision of the employer in fixing the date of superannuation of the appellant by relying upon incorrect date of birth. 7. The Apex Court in State of Kerala & Ors v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 clearly held that "No work no pay" cannot be accepted as a rule of thumb. The payment of the back wages is to be decided in the fact of the case. The ratio laid down by the Apex Court in K.V. Jankiraman's case (Supra) that the employee would be entitled with the back salary for the period of absence, if absence from duty was not because of the fault of the employee was followed in E.K. Bhaskaran Pillai's case (Supra). 8. For the foregoing discussions, this Court is of the considered view that the petitioner shall get arrear salary for the period from the date of acquittal of the petitioner in the Session Case No. 5/2006 vide judgment and order dated 01.05.2007 to the date of his reinstatement i.e. 31.03.2010. Accordingly, the respondents are directed to pay the full back salary for the period from 01.05.2007 to 31.03.2010 and also the respondents are further directed to pay the Subsistence allowance as per the judgment and order of the erstwhile Gauhati High Court, Shillong Bench dated 09.03.2009; and accordingly the portion of the reinstatement order dated 31.10.2010 i.e. "the period of his absence from duty should be treated as not on duty" is quashed. 9. The respondents are further directed to complete the whole exercise for payment of back salary within a period of 4 (four) months from the date of receipt of a certified copy of this judgment and order. 10. With the above observations and directions, writ petition is allowed.