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2016 DIGILAW 147 (JHR)

State of Jharkhand v. Md. Sayeed

2016-01-20

AMITAV K.GUPTA, D.N.PATEL

body2016
JUDGMENT : D.N.Patel, J. 1. This Letters Patent Appeal has been preferred against the judgment and order dated 22nd December, 2008, delivered by the learned Single Judge in W.P.(S) No. 4790/2004, whereby the petition preferred by the present Respondent No.1(Original petitioner) was allowed and hence original respondents have preferred this Letters Patent Appeal. Factual Matrix 2. It appears that Respondent No. 1 was working as Staff Veterinary Officer, Dumka and he was suspended from services on 16th April, 1996 as a criminal case was registered against him. He was not arrested in the criminal matter. Thereafter, neither enquiry was conducted nor Charge-sheet was given to present Respondent No.1. Later on, on criminal side Respondent No.1 was exonerated and his suspension was revoked vide order dated 19th May, 2003 and therefore, respondent no 1 preferred an application to get salary for the period from 16th April, 1996 to 18th May. 2003, which was not granted by the appellant State and hence Respondent No.1 had preferred W.P.(S) No. 4790 of 2004, which was allowed by the learned Single Judge vide order dated 22nd December, 2008 and hence Original Respondent No.1 has preferred this Letters Patent Appeal. Submissions made on behalf of the Appellant-State 3. It has been contended by the learned counsel for the appellant that as per Rule 97(2) of the Jharkhand Service Code, State Government has to pass an order for grant of or otherwise of the salary to the delinquent or Respondent No.1 (Original Petitioner) for the period of his suspension. In fact, while passing the order of his suspension or while passing the order of revocation of suspension such order ought to have been passed by the State under Rule 97(2) of the Jharkhand Service Code, but, in no circumstances, court can grant salary to the original petitioner and, in fact, the matter should have been remanded by the learned Single Judge instead of passing an order granting salary to Respondent No.1 for the aforesaid period of suspension. Submissions made on behalf of the Respondent No.1 4. Counsel for Respondent No.1 vehemently submitted that the suspension was never automatic. Respondent No.1 (original petitioner) was never sent to jail. There is an order of suspension of this respondent dated 16th April, 1996. On criminal side Respondent no.1 was exonerated from the charges and granted pardon and his suspension was revoked by the appellants on 19th May, 2003. Counsel for Respondent No.1 vehemently submitted that the suspension was never automatic. Respondent No.1 (original petitioner) was never sent to jail. There is an order of suspension of this respondent dated 16th April, 1996. On criminal side Respondent no.1 was exonerated from the charges and granted pardon and his suspension was revoked by the appellants on 19th May, 2003. It is further submitted by the counsel for the Respondent No.1 that neither any charge-sheet was given in the departmental proceeding nor any enquiry has been conducted and ultimately order of revocation of suspension was passed and the suspension was revoked with effect from 19th May, 2003 and therefore, no error has been committed by the learned Single Judge by allowing W.P. (S) No. 4790 of 2004 and granting salary for the period of suspension. Hence, this Letters Patent Appeal may not be entertained by this court. REASONS 5. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (I) Respondent No. 1 is the original petitioner. He was suspended with effect from 16th April, 1996 by the appellants. Neither any chargesheet was issued to the Respondent No.1 for holding departmental enquiry nor any enquiry officer was appointed nor the departmental enquiry was ever conducted against him (II) Respondent No.1 was suspended because of Criminal Proceedings initiated against him. The Respondent No.1 was given pardon in the said criminal proceeding under Section 306 of Cr.P.C. and therefore, suspension was revoked by the appellant- Government with effect from 19th May, 2003. The order of suspension is at Annexure 1 to the memo of this Letters Patent Appeal and order of revocation of suspension is at Annexure 9. We have perused Annexure 1 and 9 to this Letters Patent Appeal. In none of these orders the appellant has passed any order about payment of salary and therefore, when the order of suspension is revoked and especially, as stated hereinabove, when no cogent reason has been assigned by the State for non-payment of salary in the orders at Annexure 1 (which is order of suspension dated 16th April, 1996) and Annexure 9, viz. order for revocation of suspension (which was dated 4.3.2004, but, was made effective from 19th May, 2003), as a matter of rule salary may be paid. order for revocation of suspension (which was dated 4.3.2004, but, was made effective from 19th May, 2003), as a matter of rule salary may be paid. (III) Rule 97 of Jharkhand Service Code reads as under: “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) Whether 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 he not been dismissed, removed or suspended, as the case may be. (3) ................................................................... ............................................................................... ...............................................................................” (Emphasis supplied) In view of the aforesaid provision of the Service Code, it is submitted by counsel for the State that for the payment of salary for the period of suspension there must be an order of the State and hence, the matter may be remanded to the State. We are not inclined to accept the argument canvassed by the counsel for the State mainly for the following reasons: (a) Looking to the orders at Annexure 1 and 9, which are for suspension and revocation of suspension respectively, it appears that nothing has been mentioned by the State for retention or payment of the salary. (b) Never any chargesheet has been issued for holding departmental enquiry (c) Neither any Enquiry Officer was appointed during the course of departmental proceeding nor Respondent No.1 was given any report. The charges have also not been proved against the Respondent No.1 in the departmental proceeding because no charges were levelled against him. Looking to the aforesaid rule of Jharkhand Service Code and also looking to the fact that respondent no.1 was given pardon in the criminal proceeding by a competent criminal court and that appellant State has passed no order even after approximately two decades (From the date of suspension). We see no reason to remand the matter to the appellant State for passing an order under Rule 97 of the Jharkhand Service Code. We see no reason to remand the matter to the appellant State for passing an order under Rule 97 of the Jharkhand Service Code. (d) The aforesaid aspect of the matter has been properly appreciated by the learned Single Judge while allowing the matter in W.P.(S) No.4790 of 2004 vide order dated 22nd December, 2008 and we see no reason to take any other view than what has been taken by the learned Single Judge. 5. As a cumulative effect of the aforesaid facts and reasons no error has been committed by the learned Single Judge in allowing W.P.(S) No.4790 of 2004. 6. There is no substance in this Letters Patent Appeal, which is, accordingly, dismissed. 7. The legally payable amount as per the direction of the learned Single Judge shall be paid to Respondent No.1 forthwith and in no case later than 20th April, 2016.