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2015 DIGILAW 38 (MAN)

B. Lalhari Sharma v. State of Manipur and Ors.

2015-03-11

KH.NOBIN SINGH

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri M. Devananda, learned counsel appearing for the petitioner and Smt. Th. Sobhana, learned Govt. Advocate appearing for the respondents. 2. By the present writ petition, the petitioner has challenged the validity and correctness of the suspension order dated 18-11-2013 and has prayed for quashing it and has further prayed for directing the respondents to pay/release the subsistence allowance from the date of suspension till date. 3. According to the petitioner, while he was working as Associate Professor of Government Colleges, Government of Manipur, he was placed under suspension vide order dated 18-11-2013 issued by the Commissioner (Hr. & Tech. Edn.) in contemplation of a disciplinary proceeding against him. No subsistence allowance was given to the petitioner who, therefore, submitted a representation dated 24-02-2014 to the Director (Univ. & Hr. Edn.) requesting him for payment of his pay and allowances for four months and also for releasing/paying subsistence allowance as he is entitled to under the provisions of FR 53. However, no action was taken by the respondents for payment of subsistence allowance. 4. After a lapse of more than five months and only on 09-05-2014 the petitioner was served with a copy of the order dated 05-05-2014 containing article of charges for initiation of Departmental Enquiry and the appointment of Enquiry Officer, probably, without list of witnesses and documents. By the said letter dated 9-05-2014 of the Enquiry Officer, the petitioner was informed to submit his written statement and to appear before him in person at his office between 16th and 26th May, 2014 and on receipt thereof, the petitioner requested for grant of ten days time. Accordingly, after having granted 10 days time as requested, the Enquiry Officer vide its letter dated 27-05-2014 informed the petitioner that his written statement be filed and he should appear before him on three dates namely 30-05-2014, 02-06-2014 and 04-06-2014. The petitioner submitted his written statement dated 02-06-2014 denying the article of charges and appeared before him personally as directed. 5. By another letter dated 28-10-2014, the petitioner was informed that the State Department had submitted a draft Enquiry Report to the Principal Secretary (R & DM) for his comments and that a reply had also been received holding the allegations against the petitioner as true. 5. By another letter dated 28-10-2014, the petitioner was informed that the State Department had submitted a draft Enquiry Report to the Principal Secretary (R & DM) for his comments and that a reply had also been received holding the allegations against the petitioner as true. The petitioner was directed that since the explanation submitted by him before the Enquiry Officer was both evasive and unsatisfactory, the petitioner should furnish his explanation so as to reach his office on or before 10-11-2014 failing which the State Government would have no option but to take strict disciplinary action against him. In response thereto, the petitioner submitted his written statement denying the allegations made therein and in spite of his written statements dated 02-06-2014 and 10-11-2014 having been submitted by the petitioner, the departmental proceedings are still not complete without any cogent reasons but with the sole ulterior motive for harassment and humiliation of the petitioner. 6. It is submitted by the learned counsel appearing for the petitioner that even though the suspension order was issued on 18-11-2013, the respondents had not paid subsistence allowance which the petitioner is entitled to under the provisions of FR 53 and that the non-compliance of the provisions of FR 53 had led to the violation of his Right to Life guaranteed under Article 21 of the Constitution of India. It is further submitted that the purpose of keeping the petitioner under suspension without giving subsistence allowance is to harass and humiliate the petitioner and such actions of the respondents are arbitrary and illegal. On the other hand, it is submitted by the learned Government Advocate appearing for the respondents that though the petitioner was transferred from G.P. College, Imphal to Pettigrew College, Ukhrul vide order dated 06-06-2013, the petitioner did not join his new place of posting; that the subsistence allowance could not be given to the petitioner, since the petitioner had not furnished the certificate to the effect that he was not engaged in any other employment during the period of suspension and that the enquiry was at the stage of completion. 7. It is not in dispute that the petitioner was placed under suspension vide order dated 18-11-2013 and the said suspension order had not been revoked till date. 7. It is not in dispute that the petitioner was placed under suspension vide order dated 18-11-2013 and the said suspension order had not been revoked till date. The learned counsel appearing for the petitioner has submitted that in terms of the law laid down by the Hon'ble Supreme Court in the case of Union of India & ors. Vs. Deepak Mali, reported in : (2010) Vol. 2 SCC 222, the suspension order dated 18-11-2014 is liable to be quashed and set aside. In the said Deepak Mali's Case (Supra), the Hon'ble Supreme Court has held that having regard to the amended provisions of sub-rule (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 (ninety) days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days. The learned counsel for the petitioner has brought to the notice of this court the judgment and order dated 25-04-2014 passed by this court in a similar case being W.P. (C) No. 847 OF 2013 wherein it has been held that it is clear from the sub-rule (6) that an order of suspension made under the Rule shall be reviewed by the authority which is competent to modify or revoke the suspension order before the expiry of 90 days from the effective date of suspension and only on recommendation of the Review Committee constituted for the purpose, the order of suspension can be extended not exceeding 180 days at a time. Sub-rule (7) prescribes that order of suspension made under sub-rule (1) of Rule 10 shall not be valid after a period of 90 days unless extended after a review for a further period before expiry of 90 days from the effective date of suspension. 8. Having heard the learned counsels appearing for the parties, this court is of the view that the present writ petition is squarely covered by the law laid down by the Hon'ble Supreme Court in the case referred to above and that the suspension order dated 18-11-2013 is liable to be quashed and set aside. 9. 8. Having heard the learned counsels appearing for the parties, this court is of the view that the present writ petition is squarely covered by the law laid down by the Hon'ble Supreme Court in the case referred to above and that the suspension order dated 18-11-2013 is liable to be quashed and set aside. 9. As regards the non- release of subsistence allowance, it is undoubtedly clear that as per provisions of FR 53, a Government servant under suspension shall be entitled to subsistence allowance at an amount equal to the salary which the Government servant would have drawn if he had been on leave on half average pay or half pay and in addition, Dearness Allowance, if admissible on the basis of such leave salary. The only argument advanced by the learned Government Advocate appearing for the respondents is that since the petitioner had not furnished the certificate to the effect that he was not employed anywhere during the period of suspension, the subsistence allowance could not be given to him. If that be so, the petitioner can be directed to furnish such certificate and on receipt thereof, the respondents shall pay/release the subsistence allowance to the petitioner. 10. In view of the aforesaid observation, the present writ petition is allowed and the suspension order dated 18-11-2013 is set aside and quashed. I direct that the petitioner shall furnish a certificate within a week to the effect that he was not employed anywhere during the period of suspension and on receipt of such a certificate from the petitioner, the respondents shall release the subsistence allowances to the petitioner within two month from the date of receipt of the said certificate from the petitioner. So far as the non-payment of pay and allowances for about four months prior to suspension is concerned, I further direct that the respondents shall examine if the petitioner has really worked or not during that period and if yes, issue appropriate order for payment of pay and allowances.