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2015 DIGILAW 519 (MP)

Sudhir Kamal v. M. P. P. K. V. V. CO. LTD.

2015-04-29

SANJAY YADAV

body2015
ORDER : SANJAY YADAV, J. 1. Heard. While challenging the orders dated 22-2-2011 and 7-9-2011, petitioner has confined his challenge only to the decision whereby the suspension of the petitioner for the period from 29-3-2004 to 26-4-2007 as suspension. 2. Relevant fact briefly are that while working as Executive Engineer (TBPS), Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Limited, petitioner, in contemplation of a departmental enquiry was placed under suspension on 29-3-2004. Charge sheet was issued on 26-7-2004. That, during pendency of departmental enquiry the suspension was revoked on 26-4-2007. The departmental enquiry culminated in punishment of "censure" vide order dated 29-1-2011. By separate order dated 22-2-2011, the period of suspension was treated as suspension:-- An appeal against this order met with a rejection order dated 7-9-2011. 3. The order has been questioned on the anvil of Fundamental Rules 54-B. That the suspension proceeding with a departmental enquiry culminating in a minor penalty cannot be justified. 4. The respondents, however, justify the impugned order. 5. Considered the rival submissions. 6. Fundamental Rules 54-B.--Sub-rules (1), (3) and (8) of F.R. 54-B are relevant in the context. These sub-rules stipulate:-- "F.R. 54-B.--(1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement shall consider and make specific order-- (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and (b) whether or not the said period shall be treated as a period spent on duty. (3) Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled had he not been suspended: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation within 60 days from the date on which the communication in this regard is served in him and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowance as it may determine. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (S), shall be subject to all other conditions under which such allowances are admissible." 7. Sub-rule (1) obligates the Competent Authority in case where Government servant who was suspended is reinstated to make a specific order (i) regarding pay and allowances to be paid to Government servant for the period of suspension ending with reinstatement, (ii) whether or not the said period shall be treated as a period spent on duty. The decision to be taken under sub-rule (1) is bridled with the decision required to be taken under sub-rule (3), i.e., where the suspension is held to be wholly unjustified, then the Government servant is entitled for full pay and allowance subject to provisions of sub-rule (8). In other words, even executive instructions issued to that effect will hold the field when it comes to payment of full pay and allowances. Whereas sub-rule (1) and sub-rule (3) makes a provision regarding pay and allowances to be aid in the events mentioned therein. Sub-rule (8) provides for payment of allowances contains under which such allowances are payable. 8. However, in a case where the suspension is held to be wholly justified, an employee will not be benefited of sub-rule (3) and sub-rule (8) of F.R. 54-B. In such circumstances, the petitioner is not benefited. 9. Sub-rule (8) provides for payment of allowances contains under which such allowances are payable. 8. However, in a case where the suspension is held to be wholly justified, an employee will not be benefited of sub-rule (3) and sub-rule (8) of F.R. 54-B. In such circumstances, the petitioner is not benefited. 9. Sub-rule (3) of F.R. 54-B cast the discretion in the Competent Authority to form an opinion whether the suspension of a Government servant is wholly unjustified. 10. Question is as to whether in the case at hand wherein the petitioner who having been inflicted with penalty of "censure", the suspension cannot be said to be justified. Indisputably, suspension of the petitioner is under Rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity "the Rules of 1966") and is in the event of contemplated/pending departmental enquiry; wherein, a criminal offence is under investigation, inquiry or trial. It is also clear from the Rules that suspension is not a penalty under the Rules of 1966. 11. In the present case, the petitioner has been placed under suspension in contemplation of a departmental enquiry and during pendency whereof his suspension has been revoked. The departmental enquiry initiated against the petitioner resulted in inflicting of penalty of "censure", which is a minor penalty. Thus, the charges were not grave enough, which could have led to inflicting of any other penalty than "censure". In such circumstances incumbent it would have been upon the Competent Authority to have held that the suspension was not justified because in respect of an employee who is inflicted with a penalty of "censure", if the suspension is treated to be justified then such employee is subjected to loss of wages for the period he was under suspension. Though technically it may not be a dual jeopardy but it certainly affects the pay of the incumbent. 12. Considered thus and when the impugned order is tested on the anvil of the analysis above cannot be given the stamp of approval. In view whereof, the impugned order of treating the suspension period from 29-3-2004 to 26-4-2007 is quashed. Respondents are directed to treat the entire period as service period because in the case at hand the period of suspension was wholly unjustified. Let dues be settled within a period of three months from the date of communication of this order. In view whereof, the impugned order of treating the suspension period from 29-3-2004 to 26-4-2007 is quashed. Respondents are directed to treat the entire period as service period because in the case at hand the period of suspension was wholly unjustified. Let dues be settled within a period of three months from the date of communication of this order. Petition is allowed to the extent above. There shall be no costs.