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2017 DIGILAW 1087 (GAU)

Nitul Chandra Das v. State of Assam

2017-08-09

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned State counsel, appearing for the respondents. The petitioner, who is serving as an Extra Writer in the Office of the Senior Sub-Registrar, Kamrup (Metro), Guwahati, was suspended by the Inspector General of Registration, Assam vide order dated 22.07.2016, pending drawal of the departmental proceedings as requested by the Deputy Commissioner & District Registrar, Kamrup (Metro). The petitioner continued to remain under suspension. 2. Subsequently, a show cause notice dated 19.08.2016 under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, read with Rule 311 of the Constitution of India was issued on the charges based on the statement of allegations, which were attached thereto. The allegations revolved around purchase of a plot of land by the petitioner. The petitioner responded to the said show cause and thereafter, the Inspector General of Registration, Assam, by an order dated 08.12.2016, reinstated the petitioner in service and had also dropped the departmental proceeding as it appeared to him that it would not serve any meaningful purpose to continue with the departmental proceeding. 3. In Paragraph 19 of the writ petition, it is stated that the petitioner was granted subsistence allowance up to 19.01.2017. 4. Mr. Roy Choudhury submits that as the departmental proceeding was dropped, the petitioner will be entitled to full pay and allowances till the date of his reinstatement and as the petitioner was paid subsistence allowance up to 19.01.2017, he will be entitled to full pay and allowances from 22.07.2016 less the subsistence allowance already paid. In support of his contention, he has placed reliance on FR 54-B(3) of the Fundamental Rules. 5. Mr. Chutia submits that although the departmental proceeding has been dropped, some enquiry is pending against the petitioner. 6. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 7. Whether some enquiry is pending against the petitioner is not a relevant issue having regard to the subject matter in dispute. The question is whether with the dropping of the disciplinary proceeding, the petitioner will be entitled to full pay and allowances for the period of suspension. 8. FR 53 provides for payment to which a Government servant under suspension is entitled. 9. The question is whether with the dropping of the disciplinary proceeding, the petitioner will be entitled to full pay and allowances for the period of suspension. 8. FR 53 provides for payment to which a Government servant under suspension is entitled. 9. It will also be relevant to take note of the Scheme of FR 54-B. FR 54-B(1) provides that 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 reinstatement shall consider and make a specific order (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement 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. FR 54-B(2) deals with situations where a Government servant under suspension dies before the disciplinary or Court proceeding instituted against him is concluded. FR 54-B(3) provides that where the authority competent to order reinstatement 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 which he would have been entitled, had he not been suspended. Proviso to FR 54-B(3) lays down that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, 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 proportion of such pay and allowances as it may determine. FR 54-B(4) provides that in a case falling under FR 54-B(3), the period of suspension shall be treated as a period spent on duty for all purposes. FR 54-B(5) deals with cases other than those falling under FR 54-B(2) and (3). FR 54-B(4) provides that in a case falling under FR 54-B(3), the period of suspension shall be treated as a period spent on duty for all purposes. FR 54-B(5) deals with cases other than those falling under FR 54-B(2) and (3). It provides that the Government servant shall subject to the provisions of FR 54-B(8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date of the notice which has been served as may be specified in the notice. FR 54-B(6) applies to a situation where suspension is revoked pending finalization of the disciplinary or court proceeding. It stipulates that any order passed under Sub-rule (1) of FR 54-B before the conclusion of the proceedings against the Government servant shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (3) or (5) of FR 54-B as the case maybe. FR 54-B(7) provides that in a case falling under Sub-rule (5) of FR 54-B, the period of suspension shall not be treated as period spent on duty, unless the competent authority specifically directs that it shall be treated for any specified purpose. FR 54-B(8) provides that payment of allowances under Sub-rule (3) or Sub-rule (5) of FR 54-B shall be subject to all conditions under which such allowances are admissible. FR 54-B (9) provides that the proportion of the full pay and allowances determined under the proviso to Sub-rule (3) or under Sub-rule(5) of FR 54-B shall not be less that the subsistence allowance and other allowances admissible under Rule 53. 10. When the authority has dropped the disciplinary proceeding and has not proceeded with the disciplinary proceeding after the employee had submitted his show cause, there is no escape from the conclusion that the suspension of the employee was unjustified. If that be so, the provision of FR 54-B(3) will be squarely applicable to the instant case. 11. Consequently, the petitioner will be entitled to full pay and allowances for the period for which he was granted subsistence allowance. If that be so, the provision of FR 54-B(3) will be squarely applicable to the instant case. 11. Consequently, the petitioner will be entitled to full pay and allowances for the period for which he was granted subsistence allowance. In terms of FR 54-B(4), the period of suspension shall also be treated as a period spent on duty for all purposes. The respondents will pay the petitioner full pay and allowances for the aforesaid period by deducting the amount already paid on account of subsistence allowance within a period of 4(four) months from the date of receipt of a certified copy of this order by the Inspector General of Registration, Assam. With the above observation and direction, the writ petition stands disposed of. No cost.