Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 645 (JHR)

State of Jharkhand, Ranchi v. Aruna Devi

2014-06-17

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
Judgment This Letters Patent Appeal is preferred against the order dated 7.3.2013 passed in W.P.(S) No.1846 of 2010 allowing the writ petition and directing the appellant-State of Jharkhand to pay the arrears of salary of late Murari Prasad, husband of the respondent, with cost of Rs.5000/-. 2. The husband of the respondent, late Murari Prasad, was working as Superintending Engineer in PHED and retired as such on 30.11.2003 and subsequently died on 12.3.2005. While the said Murari Prasad, husband of the respondent, was in service, a departmental proceeding was initiated against him and he was put under suspension and subsequently a chargesheet was submitted against the husband of the respondent on 3.6.2002. The departmental proceeding was initiated, vide order dated 22.6.2002 and enquiry report was submitted on 19.9.2002 and the enquiry officer found late Murari Prasad not guilty. However, taking a different view, vide order dated 11.7.2003, the concerned authority imposed the punishment of censure. The husband of the respondent filed several representations for payment of salary but the authority did not consider the same. 3.The husband of the respondent filed writ petition being C.W.J.C. No.12523 of 2003 and in the meantime he died on 12.3.2005 and the said writ petition was dismissed, vide order dated 15.9.2005, as no substitution petition was filed. Thereafter the respondent made several representations but the concerned authority did not consider the grievance of the respondent and then the respondent filed writ petition being W.P.(S) No. 1846 of 2010. The said writ petition was allowed on 7.3.2013 by quashing the order contained in memo no. 1724 dated 5.5.2004 and by directing the appellant to pay the arrears of salary to the respondent minus the amount of subsistence allowance already paid to the husband of the respondent during the period of suspension within two months from the date of receipt/production of a copy of that order. Learned Single Judge also directed the appellant to pay the cost of Rs.5000/- to the respondent. Being aggrieved by allowing of the writ petition, the appellant-State has preferred this appeal. 4. We have heard Mr. Sumir Prasad, learned S.C. I for the appellant-State of Jharkhand and Mr. Binod Kumar Dubey, learned counsel for the respondent. 5. Learned Single Judge also directed the appellant to pay the cost of Rs.5000/- to the respondent. Being aggrieved by allowing of the writ petition, the appellant-State has preferred this appeal. 4. We have heard Mr. Sumir Prasad, learned S.C. I for the appellant-State of Jharkhand and Mr. Binod Kumar Dubey, learned counsel for the respondent. 5. Learned counsel for the State of Jharkhand submitted that the learned Single Judge did not keep in view that the husband of the respondent, late Murari Prasad, has been awarded punishment of censure after due consideration of the enquiry report (vide Annexure 5 dated 11.07.2003). It is further submitted that in continuation of the proceedings dated 11.07.2003, vide Annexure 9 dated 05.05.2004, the competent authority had issued the order to the effect that in view of the award of punishment of censure, late Murari Prasad is not entitled to get full pay and allowances for the period of suspension and that he would be awarded only the subsistence allowance for the period of suspension. It is further submitted that the learned Single Judge without considering the fact that the husband of the respondent has been awarded the punishment of censure and that in furtherance of Rule 97 of Jharkhand Service Code, the competent authority has passed the order vide Annexure 9 dated 05.05.2004 while so the learned Single Judge was not right in directing the appellants to make the payment of salary less the subsistence allowance and also imposing cost of Rs. 5000/- payable to the respondent. 6. The learned counsel for the respondent submitted that enquiry officer in his report has found late Murari Prasad not guilty of any charge and inspite of the said finding of the enquiry officer, without serving any notice for taking a different view, the respondent's husband was awarded punishment of censure by the disciplinary authority. It is further submitted that when the award of punishment of censure (vide Annexure 5 dated 11.07.2003) is itself erroneous and unsustainable, the competent authority could not have passed the order dated 5.5.2004 (Annexure 9) directing that late Murari Prasad be paid only subsistence allowance for the suspension period. It is further submitted that when the award of punishment of censure (vide Annexure 5 dated 11.07.2003) is itself erroneous and unsustainable, the competent authority could not have passed the order dated 5.5.2004 (Annexure 9) directing that late Murari Prasad be paid only subsistence allowance for the suspension period. It is further submitted that before passing such order (dated 5.5.2004) directing payment of only subsistence allowance for the suspension period, the competent authority ought to have afforded opportunity to late Murari Prasad and since the competent authority has committed serious error in not affording the opportunity to late Murari Prasad, the learned Single Judge rightly quashed the order contained in memo no 1724 dated 5.5.2004 and directed the authority to pay the salary to the respondent. Learned counsel for the respondent relied upon the judgment rendered in the case of Gopal Prasad Vs. The State of Bihar and other passed in C.W.J.C. No. 1652 of 1991(R). 7. We have considered the submissions of learned counsel for the appellants and learned counsel for the respondent and perused the materials on record. 8. As rightly contended by learned counsel for the respondent that when the enquiry officer has found late Murari Prasad not guilty of any charge, at the time of taking a different opinion from the finding recorded by the enquiry officer, the disciplinary authority has not afforded opportunity to late Murari Prasad calling upon him to give explanation as to why punishment may not be imposed upon him, we are of the view that the punishment of censure vide Annexure 5 dated 11.07.2003 suffers from serious infirmity. The learned Single Judge though made observations about the infirmity in the said proceedings, did not specifically record the finding that Annexure-5 dated 11.07.2003 is liable to be quashed. Since the award of censure by proceeding dated 11.7.2003 suffers from serious infirmity, we are of the view that before passing the order directing the payment restricted to only subsistence allowance for the suspension period, the competent authority ought to have afforded opportunity of hearing to late Murari Prasad. 9. Since the award of censure by proceeding dated 11.7.2003 suffers from serious infirmity, we are of the view that before passing the order directing the payment restricted to only subsistence allowance for the suspension period, the competent authority ought to have afforded opportunity of hearing to late Murari Prasad. 9. Rule 97 of the Jharkhand Service Code reads as follows: 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 allowances 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 be given full pay and allowance to which he would have been entitled has 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. 10. Even though Rule 97 does not contemplate affording of opportunity, in judicial proceedings consistent view has been taken that opportunity to be afforded to the employee before taking a decision under Rule 97 (3) and (4) of the Jharkhand Service Code, 2001. 11. In 2003 (3) JCR 102 (Jhr) {Sharafat Hussain Vs. State of Bihar and Anr}, the Hon'ble Mr. Justice M.Y. Eqbal (as His Lordship then was) has observed that any direction restricting payment of pay and allowances other than subsistence allowance ought to have been taken only after affording opportunity of hearing to show cause as to why Clause (3) and (5) of Rule 97 should not be applied. Since no such opportunity was afforded to late Murari Prasad, we are of the view, the order directing payment of only subsistence allowance for the suspension period cannot be sustained. The learned Single Judge rightly directed to pay the entire salary for the suspension period to the respondent-petitioner. 12. Since no such opportunity was afforded to late Murari Prasad, we are of the view, the order directing payment of only subsistence allowance for the suspension period cannot be sustained. The learned Single Judge rightly directed to pay the entire salary for the suspension period to the respondent-petitioner. 12. The learned Single Judge while issuing direction to pay entire salary for the suspension period, the learned Single Judge directed the appellant to pay cost of Rs. 5000/-. In the facts and circumstances of the case, we are of the view that direction to pay cost of Rs. 5000/- is not warranted. 13. The order passed by the learned Single Judge in W.P.(S) No. 1846 of 2010, directing to pay the arrears of salary to the respondent-petitioner minus the amount of subsistence allowance already paid to the respondent's husband, late Murari Prasad during the period of his suspension, is confirmed. However, direction to pay cost of Rs. 5000/- to the respondent-petitioner is set aside. The Letters Patent Appeal is partly allowed. The order passed by the learned Single Judge is directed to be complied with within a period of two months from the date of receipt of copy of this order.