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2014 DIGILAW 93 (JHR)

Uma Prasad v. State of Jharkhand

2014-01-16

SHREE CHANDRASHEKHAR

body2014
JUDGMENT By Court-Heard the learned counsel appearing for the parties and perused the documents on record. 2. The husband of the petitioner was appointed on the post of Assistant on 01.08.1984 and he died in harness on 08.10.2004. The family pension and other retiral dues were not paid to the petitioner, the wife of the deceased employee and therefore, she moved this Court in W. P. (S) No. 1856 of 2005 which was disposed of by order dated 27.04.2005, directing the respondents to release the deathcumretiral benefits with interest. The order was challenged by the State of Jharkhand in L.P.A. No. 527 of 2005 which was dismissed by order dated 13.12.2005. The Special Leave Petition preferred by the State of Jharkhand also came to be dismissed by order dated 20.05.2009. The Hon'ble Supreme Court has observed as under: “However, on consideration of the records, we find that late Birendra Prasad, the deceased was put under suspension on 26.09.1998 on the order of the Commissioner, Chhotanagpur Division, Ranchi, and by another order dated 16.06.2000, his suspension was revoked. Thereafter, he died on 08.10.2004 in harness while working as Assistant in the Secretariat, Dept. of Art, Culture, Sports and Youth Affairs, Jharkhand. That being the position and since the learned counsel for the respondent is unable to show us any order passed by the competent authority issuing any chargesheet against the said deceased, there could be no recovery of any amount from the retiral benefits of the deceased Birendra Prasad. There is no record to show that any departmental proceeding was drawn up by the department against the deceased before his death. We find no error in the judgments passed by the Division Bench and by the learned Single Judge of the Jharkhand High Court. There is no merit in this appeal and the same is dismissed. We are informed that during the pendency of the present appeal the respondent was paid an amount of Rs.1,00,000/ (rupees one lakh) which shall now be adjusted against the dues payable to the respondent. All the service benefits and other dues which are required to be paid to the respondent here shall be paid within a period of two months from the date of receipt of a copy of this order.” 3. All the service benefits and other dues which are required to be paid to the respondent here shall be paid within a period of two months from the date of receipt of a copy of this order.” 3. The petitioner approached the authorities with a copy of order passed by the Hon'ble Supreme Court and the claim for grant of benefit under the ACP Scheme was considered by the authorities on 18.06.2009. By letter dated 18.06.2009, the grant of benefit under the ACP Scheme was ordered to be extended to the deceased employee. However, by order dated 31.07.2009, the said order was recalled, withdrawing the grant of benefit under the ACP Scheme. In the meantime, by orders both dated 16.07.2005, it was ordered that the deceased employee would be entitled for subsistence allowance only during the period of suspension and the benefit of the ACP Scheme would not be granted to him. Challenging these orders, the petitioner wife of the deceased employee has approached this Court again. 4. The learned counsel appearing for the petitioner has submitted that admittedly, the departmental proceeding initiated against the deceased husband of the petitioner was not concluded and therefore, the show-cause notice issued to the husband of the petitioner on 23.09.1998 remained an allegation only and since, the allegations were never proved against the husband of the petitioner, the impugned orders could not have been passed by the respondent authority. The learned counsel has further submitted that, the impugned orders both dated 16.07.2005 and 31.07.2009 have been passed ignoring the orders passed by this Court and the Hon'ble Supreme Court. 5. As against the above, the learned counsel appearing for the respondent State has submitted that, during the lifetime of the husband of the petitioner, a show-cause notice was issued on 23.09.1998 and since, during the pendency of the enquiry, the husband of the petitioner died, the proceeding could not be concluded against the husband of the petitioner. However, since it has been found that the husband of the petitioner had misappropriated an amount of Rs. 3,79,930.55, the impugned orders were passed and the husband of the petitioner was denied the benefit under the ACP Scheme. 6. Admittedly, the husband of the petitioner died while in service and the charge framed against the petitioner could not be proved, as the departmental proceeding terminated due to the death of the husband of the petitioner. 3,79,930.55, the impugned orders were passed and the husband of the petitioner was denied the benefit under the ACP Scheme. 6. Admittedly, the husband of the petitioner died while in service and the charge framed against the petitioner could not be proved, as the departmental proceeding terminated due to the death of the husband of the petitioner. In the earlier proceeding, the Hon'ble Supreme Court has dismissed the Special Leave Petition preferred by the State of Jharkhand, directing the respondents to release the retiral dues to the petitioner. During the pendency of the Special Leave Petition, it appears that the impugned orders both dated 16.07.2005 were passed by the respondents. I find that the respondents did not disclose this fact before this Court or even before the Hon'ble Supreme Court. Moreover, the impugned order as contained in order no. 225 dated 16.07.2005 denying salary, allowance etc. during the period of suspension, has been passed without issuing any show-cause notice to the petitioner. I am of the opinion that, before resorting to sub-rule 3 and sub-rule 5 of Rule 97 of the Jharkhand Service Code, the respondents were required to issue show-cause notice, which admittedly has not been issued in this case. Rule 97 of the Jharkhand Service Code is pari materia to Fundamental Rule 54. Rule 97 of the Bihar Service Code is extracted below: Rule 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 allowance 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 given full pay and allowance to which he would have been entitled had he 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. (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. (4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (2) the period of absence from duty shall not be treated as period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.” Fundamental Rule 54 is as follows:- “(1) When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order (a) Regarding the pay and allowance 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 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 the full pay and allowances to which he would have been entitled, had he 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 allowances are admissible: Provided that the payment of allowances under clause(2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. (4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes. Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. (4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause(3), the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.” 7. In “M. Gopalkrishna Naidu Vs. the State of Madhya Pradesh”, reported in AIR 1968 SC 240 , the Hon'ble Supreme Court while examining Fundamental Rule 54 has held as under : 6. “It is true that the order under F.R. 54 is in a sense a consequential order in that it would be passed after an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the government servant has to be given an opportunity to show cause or not. It is also true that in a case where reinstatement is ordered after a departmental inquiry the government servant would ordinarily have had an opportunity to show case. In such a case, the authority no doubt would have before him the entire record including the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such as case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry. In such as case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry. But there are three classes of case as laid down by the proviso in Art. 311 where a departmental inquiry would not be held viz., (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry, and (c) where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be exparte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore, an order passed under Fundamental Rule 54 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee. 7. It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Cl. 2 or Cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion there from of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. 2 or Cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion there from of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under Cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.” 8. In the case of “Ramashray Prasad Singh Vs. the State of Bihar & Ors.”, reported in 2000 (3) PLJR 41 , it has held that any order of restricted payment of salary for the period of suspension can be made under Rule 97 of the Bihar Service Code only after giving the concerned employee an opportunity to show-cause. Similar view has been taken by the High Court in “Shri Mahabir Prasad Vs. the State of Bihar & Ors.”, reported in 1988 PLJR 82 and in “Biswanath Mitra Vs. State of Bihar & Ors.”, reported in 2003 (4) PLJR 71 .” 9. I am also of the opinion that, after the death of the husband of the petitioner, the order contained in order no. 226 dated 16.07.2005 denying benefit of ACP could not have been passed by the respondents. The order impugned by the petitioner indicates that a charge of misappropriation has been levelled against the deceased husband of the petitioner and therefore, only the delinquent employee could have responded to such charge. However, since the husband of the petitioner has already died on 08.10.2004, the impugned order dated 16.07.2005 or 31.07.2009 could not have been passed by the respondents. 10. However, since the husband of the petitioner has already died on 08.10.2004, the impugned order dated 16.07.2005 or 31.07.2009 could not have been passed by the respondents. 10. In view of the aforesaid, the impugned orders are quashed. The respondents are directed to release the salary, allowance etc. as admissible to the husband of the petitioner for the period during which the husband of the petitioner remained suspended. The respondents are also directed to grant the benefit under the ACP scheme to the husband of the petitioner. The aforesaid amount would be paid to the petitioner with interest @ 10% per annum. 11. The writ petition is disposed of in the aforesaid terms.