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Gujarat High Court · body

2016 DIGILAW 2045 (GUJ)

Dakshaben Thakorbhai Patel v. State of Guajrat

2016-09-16

G.R.UDHWANI

body2016
JUDGMENT : G.R UDHWANI, J. The petitioner has made inter alia following prayers: “19 (A) Quashing and setting aside the order dt. 10/13.2.2003 (Annexure ‘E’) as confirmed by the appellate order dt. 21.8.2004 (Annexure ‘F’) treating the period of suspension of the petitioner from 22.8.1993 to 22.3.1999 as spent under suspension but directing the Respondents to treat this period as pension able and to revise the pension of the petitioner on that basis and by granting notional increments for the period of suspension and to pay the arrears with 12% interest. (B) Directing the Respondents to pay subsistence allowance to the petitioner at the rate of 75% from 22.2.1994 to 22.3.1999 and that too on the revised pay scale from 1.1.1996 and to pay the arrears with 12% interest.” 2. While in service as Public Health Nurse, on 19/08/1993 the petitioner came to be suspended and proceeded against departmentally inter alia on the charge of her having assaulted the Presenting Officer during the proceedings of another inquiry which had been undertaken against her in 1992. In the said inquiry of 1992, eventually the petitioner has been exonerated. One of the charge in the inquiry which commenced in 1992 was the petitioner's unauthorized absent from her Head Quarters at Surat. 2.1 For the subject matter of second inquiry as afore-stated, criminal case was also filed against the petitioner where also she earned acquittal. The second inquiry eventually ended in imposition of the penalty of stoppage of one increment without future effect. 3. Issues raised by the learned Counsel for the petitioner during the course of arguments are (01) whether on reinstatement of a suspended employee, a period of service, spent under suspension and which is not regularized as the period spent on duty, is not a qualifying service for the purpose of pension? (02) whether in case of suspension beyond six months, the petitioner was entitled to 75% of the salary towards subsistence allowance as against 50% which was being paid to him? and (03) whether the petitioner is entitled to the revision of subsistence allowance in terms of Gujarat Civil Services (Revision of Pay) Rules, 1998 for the period between 1993-1999. 4. In support of the first contention, reliance has been placed upon Bibhuti Bhushan Chaudhary v. Union of India (1997) 11 SCC 373 which reads as under: “1. and (03) whether the petitioner is entitled to the revision of subsistence allowance in terms of Gujarat Civil Services (Revision of Pay) Rules, 1998 for the period between 1993-1999. 4. In support of the first contention, reliance has been placed upon Bibhuti Bhushan Chaudhary v. Union of India (1997) 11 SCC 373 which reads as under: “1. The question that arises for consideration in this writ petition whether the period during which the petitioner was under suspension would be excluded for the purpose of computing the pension payable to him. 2. The petitioner was employed as Station Master in the Railways. By the order dated 19-1-1962 he was placed under suspension on account his failure to join duty at the place of transfer. The said order of suspension continued in operation till 8-5-1970 when the petitioner was allowed to join the duty. He retired from service on attaining the age of superannuation on 31.4.1980 It appears that disciplinary proceedings had been initiated against the petitioner but the same could not be completed till he retired. The petitioner has been paid subsistence allowance for the period of suspension. 3. The learned Counsel for the petitioner has confined his submission to the computation of the pension payable to the petitioner and has under that although the subsistence allowance has been paid to the petitioner for the period of suspension the said period has been excluded from the qualifying service of the petitioner for the purpose of computing the pension payable to him. Having regard to the fact that the petitioner has been paid the subsistence allowance for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner and the pension payable to the petitioner should be calculated by taking into account the said period of suspension as part of the qualifying service. It is, therefore, directed that the petitioner is entitled to count the period of suspension as part of his qualifying service for the purpose of computing the pension payable to him. The amount of pension payable to the petitioner should be reassessed on that basis and the amount of arrears found payable to the petitioner as a result of such reassessment shall be paid to the petitioner within a period of three months. The writ petition is disposed of accordingly. The amount of pension payable to the petitioner should be reassessed on that basis and the amount of arrears found payable to the petitioner as a result of such reassessment shall be paid to the petitioner within a period of three months. The writ petition is disposed of accordingly. No orders as to costs. 4. In view of the above petition in Writ Petition(C) No. 323 of 1994, the learned Counsel for the petitioner does not press the petition. The SLP is dismissed as not pressed.” 5. Learned Counsel for respondent No. 2 took this Court to the affidavit-in-reply wherein it is inter alia stated that though eventually the order passed in the 1st inquiry ended in complete exoneration, at the relevant point of time penalty of stoppage of two increments was imposed and thus the order dated 13/02/2003 came to be passed justifying the suspension of the petitioner; it was only in the year 2004 that the matter was remanded by the tribunal in respect of 1st inquiry which eventually ended in the exoneration of the petitioner in the year 2007. Relying upon Rule 152(5)(3) as well as Rule 243 of the Bombay Civil Service Rules, it is contended that the period spent under suspension is rightly not treated as a period on the duty. It is therefore contended that when the said period is treated as not on duty, it would amount to break-in-service for the purpose of pension and other benefits. 6. As regards revision of subsistence allowance from 50% to 75% of the pay, it is pointed out that the petitioner was found absent from the Head Quarter and therefore in terms of Rule 151 of the Bombay Civil Services Rules, a decision was taken to pay to the petitioner 50% of the amount of salary only towards subsistence allowance. To this argument, learned Counsel for the petitioner rejoined pointing out that the above situation was pre 2004, but in 2007 the petitioner was fully exonerated and therefore, the charge of her being absent from the Head Quarter also could not bear the ground. 7. Learned AGP has also made arguments similar to those made by learned Counsel for respondent No. 2. 8. Having considered the rival contentions, in the opinion of this Court, the 1st issue is no more res integra in view of Bibhuti Bhushan Chaudhary (supra). 9. 7. Learned AGP has also made arguments similar to those made by learned Counsel for respondent No. 2. 8. Having considered the rival contentions, in the opinion of this Court, the 1st issue is no more res integra in view of Bibhuti Bhushan Chaudhary (supra). 9. Reliance on Rule 152 of BCSR is misconceived; inasmuch as the said rule merely contemplates the procedure to be followed with regard to the suspension period on reinstatement of the employee. Under the said Rule, the competent authority is required to decide whether the period of suspension is to be treated as one spent on duty or not. The rule does not have a bearing on the qualifying service of an employee. The employee even under suspension is in service. The service does not end by mere suspension. The services under the rule can be brought an end to only by defined punishment in cases where inquiry is held, like compulsory retirement, dismissal or removal. The suspension period, in absence of it being a punishment by itself, cannot be treated as a break-in-service, in absence of the rules to the contrary. 9.1 The expression ‘not on duty’ used in Rule 152 of BCSR has to be understood in the context of the expression ‘suspension’. The government servant on conclusion of the inquiry may either be exonerated or visited with a penalty. The penalty may be minor or major. The penalty other than the one capable of bringing an end to the service of the government servant would oblige the Government to reinstate the government servant by revoking the suspension. The question may then arise regarding regularization of the period spent by the government servant under suspension during the pendency of the inquiry. Even, in case of reinstatement in service, as a result of revocation of the suspension, the disciplinary authority may have reasons to justify the suspension. For example, the Government may not like a government servant, facing charges like corruption of money or doubtful integrity, to be in active service, in the interest of administration. Such charges may not be eventually proved against the government servant. For example, the Government may not like a government servant, facing charges like corruption of money or doubtful integrity, to be in active service, in the interest of administration. Such charges may not be eventually proved against the government servant. However, the Government may justify the suspension as on duty in such circumstances on the ground that it did not want the government servant facing such charges to be in service, in the interest of administration so as to prevent the destruction of evidence at the hands of such government servant or repetition of the similar acts. If the suspension was justifiable, then the government servant may not be treated on duty by orders under Rule 152 of the BCSR or similar such rules in which case the government servant would not be entitled to any benefits, except those available to a suspended government servant. In a contrary case, the government servant may be held to be entitled to the benefits for the period of suspension as if he was not under suspension. Thus, the expression ‘not on duty’ would not mean the absence of [government servant from the government service, but would only mean the deprivation of benefits available to the employee not placed under suspension. 9.2 That apart, in absence of a specific provision in the rules governing the pension of the government servant, prescribing the period spent under suspension, as break in service, it cannot be contended that such period is to be treated as the break-in-service. 10. It is settled legal position that if the employee is continued under suspension during the inquiry, beyond six months, and in absence of the attribution delaying the enquiry, to government servant, subsistence allowance must be revised in terms of appropriate rules or resolution or other legal source. In the affidavit, 2nd respondent has merely relied upon the allegations against the petitioner that she was not being present at the Head Quarters, which allegations were eventually dropped. Therefore, there is no reason for the 2nd respondent to deny the subsistence allowance to her at the higher rate as may be admissible under the relevant rules or resolutions or any other legal document. 11. Therefore, there is no reason for the 2nd respondent to deny the subsistence allowance to her at the higher rate as may be admissible under the relevant rules or resolutions or any other legal document. 11. As regards the contention for upward revision of the subsistence allowance on account of revision of pay-scales pursuant to revision of pay rules, in the opinion of this Court, the issue can be dissected in two parts; one being pre 01/01/1996 and the second being between 01/01/1996 and the date of revocation of the suspension for the simple reason, that the Gujarat Civil Services (Revision of Pay) Rules 1998 will govern the period post 01/01/1996 and not the preceding period. So far as the period post 01/01/1996 is concerned, Rule 7(2)(c) is relevant which reads thus: “Where a Government Servant is under suspension, he shall continue to draw subsistence allowance based on existing scale of pay and his pay in the revised scale of pay shall be subject to final order on the pending disciplinary proceedings.” 11.1 Thus, the revised pay-scale is subject to final orders pending disciplinary proceedings. The final order which was passed in the present case was stoppage of one increment without future effect. Therefore, the respondents were under an obligation to take a decision about revision of pay, for the period post 01/01/1996 by virtue of ROP, 1998. 12. Under the above circumstances, the petition is required to be allowed and the same is allowed. The office order dated 10/13-02-2003 (Annexure-E) as confirmed by the appellate order dated 21/08/2004 treating the period of suspension of the petitioner between 22/08/1993 to 22/03/1999 as the period not qualifying for pension is quashed and set aside. The respondents are directed to consider the said period as qualifying service for pension. The respondents are also directed to pay to the petitioner the subsistence allowance at the rate of 75% of the salary as admissible under the law applicable to her. The petitioner shall be entitled to the arrears for the same. 13. So far as the question for revising the subsistence allowance in terms of revision of pay rules is concerned, no prayer is made in the petition. The petitioner shall be entitled to the arrears for the same. 13. So far as the question for revising the subsistence allowance in terms of revision of pay rules is concerned, no prayer is made in the petition. Therefore, it will be appropriate to direct the petitioner to make appropriate representations to the respondents concerned who shall be obliged to consider the same within a period of six weeks from the date of the receipt of the representation. 14. The arrears under all heads shall be paid to the petitioner within a period of six weeks from the date of the receipt of the writ of this Court. The arrears payable to the petitioner in view of directions above shall also carry interest at the rate of 9% per annum from the date of filing of the petition till the realization. FURTHER ORDER DATE: 16/09/2016 15. After pronouncement of the order in the open Court as above, certain clarity in the arguments regarding upward revision of subsistence allowance from 50% to 75% was felt necessary and therefore, the matter was notified for further arguments on the above date. Having heard the rival contentions, this Court proceeds resolve the said issue as discussed below: 16. So far as the question of upward revision of subsistence allowance from 50% to 75% is concerned, this Court finds substance in the argument advanced by the learned Counsel for the petitioner on all the three counts i.e (01) that in the inquiry initiated in 1992 wherein the charge for the petitioner being absent from the head quarters was levelled, the petitioner was completely exonerated and therefore, the said fact could not have formed a consideration for depriving the petitioner of upward revision of the subsistence allowance from 50% to 75%; (02) nowhere the respondents has pleaded or pointed out that the petitioner was responsible for delaying the inquiry. Therefore, as per the policy of the State regarding subsistence allowance, she was entitled to upward revision; (03) Rule 151 of the BCSR does not disentitle the employee to upward revision of subsistence allowance from 50% to 75% on the ground of the employee being unauthorizedly absent from the head quarter before or during the inquiry. 17. Therefore, as per the policy of the State regarding subsistence allowance, she was entitled to upward revision; (03) Rule 151 of the BCSR does not disentitle the employee to upward revision of subsistence allowance from 50% to 75% on the ground of the employee being unauthorizedly absent from the head quarter before or during the inquiry. 17. In above view of the matter, the petitioner was entitled to upward revision of subsistence allowance from 50% to 75% after expiry of period of six months from the date of his suspension as provided in the relevant scheme. 18. Rule is made absolute to the aforesaid extent with no order as to costs.