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Madhya Pradesh High Court · body

2016 DIGILAW 879 (MP)

Lakhan Singh v. State of M. P.

2016-09-29

S.C.SHARMA

body2016
ORDER 1. The petitioner before this Court, an employee serving the Home Department, was placed under suspension while in service by order dated 17.3.2012 for allegedly asking bribe, however, he was acquitted by the judgment of acquittal dated 11.12.2013. The other aspect of the case is that he was also subjected to Departmental Enquiry at the same time and finally an order was passed on 5.7.2016 inflicting a minor punishment i.e., stoppage of one increment without cumulative effect. The petitioner is aggrieved by order dated 10.11.2015 (Annexure P-7) passed by the Superintendent of Police, Ujjain by which he was denied benefit of full pay and allowance during the period the petitioner was under suspension i.e., from 17.3.2012 to 28.12.2013. 2. Learned counsel for the petitioner has argued before this Court that the petitioner is entitled for full pay and allowance in the light of Fundmental rule 54B. He has argued that the petitioner has been honorably acquitted and he has been inflicted with minor punishment in Departmental Enquiry and, therefore, the question of depriving him for the benefit of full salary for the aforesaid period of suspension does not arise. 3. On the other hand, learned counsel for the respondent State has argued before this Court that the petitioner was not only prosecuted but was also proceeded ahead in Departmental Enquiry and it is not a case of unjustified suspension by the Department and, therefore, the competent authority was justified in restricting the pay of the petitioner only to the payment of subsistence allowance for the period he was under suspension. Learned counsel for the respondent has prayed for dismissal of the present writ petition. 4. Heard learned counsel for the parties at length and perused the record. 5. In the present case, it is an undisputed fact that the respondents have not heard the petitioner while passing the impugned order dated 10.11.2015. Learned counsel for the petitioner has placed reliance upon the judgment delivered by the apex Court in the case of Manzoor Ahmed Mazumdar v. State of Meghalaya and others, reported in (1997)11 SCC 374 . Paragraphs 3 and 4 of the aforesaid judgment reads as under :- 3. Learned counsel for the petitioner has placed reliance upon the judgment delivered by the apex Court in the case of Manzoor Ahmed Mazumdar v. State of Meghalaya and others, reported in (1997)11 SCC 374 . Paragraphs 3 and 4 of the aforesaid judgment reads as under :- 3. These provisions are similar to those contained in Fundamental rule 54 which came up for consideration before this Court in M. Gopal Krishna Naidu v. State of M.P. In that case the Court has considered the question whether an opportunity should be afforded to an employee before passing an order under clause (3) read with clause (5) of the said rule and it has been laid down : “It is true as Mr. Sen pointed out that FR 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 clause 2 or clause 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 therefrom 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 clauses 3 and 5. Cosideration 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. 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.” (4) In view of the decision in M. Gopalkrishna Naidu’ it must be held that even though there is no express requirement in Fundamental rule 54(3) for giving an opportunity to the employee before passing an order, giving of such an opportunity is implicit in the exercise of the power which has been conferred by the said provision. It was, therefore, necessary for the competent authority to afford an opportunity to the appellant before passing the order regarding pay and allowances payable to the appellant in respect of the period of suspension (sic absence). Since this was not done in the present case, the order dated 12.8.1982 cannot be upheld and has to be set aside. For the same reason the impugned judgment of the High Court has also to be set aside. It will be open to the respondents to pass a fresh order in accordance with law after affording an opportunity to the appellant. 6. In the light of the aforesaid judgment, as no opportunity of hearing was granted to the petitioner, the impugned order dated 10.11.2015 deserves to be quashed. 7. Learned counsel for the petitioner has further placed reliance upon the judgment delivered by this Court in the case of Kanhaiyalal Parmar v. State of Madhya Pradesh and others, reported in [ 2006(III) MPWN 36 = 2006(2) MPLJ 522 ], and his contention is that after acquittal of the petitioner, he is entitled for full pay and allowance. 8. Learned counsel for the petitioner has also placed reliance upon the judgment delivered by this Court in the case of Mansingh s/o Laxman Singh and another v. State of Madhya Pradesh and others, reported in [ 2006(III) MPWN 76 = 2006(3) MPLJ 182 ]. This Court in the aforesaid case has held that a show cause notice should be given in case the employer arrives at a conclusion that no payment of salary has to be done towards suspension period. 9. This Court in the aforesaid case has held that a show cause notice should be given in case the employer arrives at a conclusion that no payment of salary has to be done towards suspension period. 9. Reliance has also been placed upon another judgment delivered by this Court in the case of Y. S. Sachan v. State of Madhya Pradesh and others, reported in [2004(III) MPWN 8= 2003(4) MPLJ 219 ]. In the aforesaid case, a minor punishment was inflicted upon the employee and this Court has directed payment of full salary to the employee therein. 10. In the case of Deena Nath Tiwari v. Dr. Hari Singh Gour Vishwavidyalaya, Sagar, reported in 2004(I) MPHT 419 , this Court has again held that in case a minor punishment has been inflicted upon an employee, he is entitled for full pay and allowances. 11. This Court has carefully gone through the aforesaid judgments. 12. In the present case, there is not only a departmental enquiry but there was also criminal case and, therefore, this Court has already quashed the order dated 10.11.2015 and the matter is remanded to the competent disciplinary authority to hear the petitioner and to pass an order thereafter. It is needless to mention that the disciplinary authority shall take into account all the aforesaid judgments delivered by this Court while passing the order. The exercise of passing the order be concluded within a period of three months from today. The petitioner shall appear before the Superintendent of Police, Ujjain on 3.10.2016 and the Superintendent of Police, within one week shall issue proper show cause notice and the petitioner shall be free to file reply to the show cause notice and thereafter final order shall be passed by the competent disciplinary authority within the aforesaid period. 13. With the aforesaid, the present writ petition stands disposed. M. M. Bohra for petitioner; Milind Phadke for respondent/State.