Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 938 (JHR)

Chandradeo Sharma v. State Of Jharkhand

2017-06-15

RAJESH SHANKAR

body2017
JUDGMENT Rajesh Shankar, J. – Heard the learned counsel for the parties. 2. The petitioner by way of present writ petition has prayed for quashing the entire departmental proceeding and also the order of punishment dated 04.11.1997 (Annexure-5 to the writ petition), whereby the petitioner was inflicted punishment of censure and the payment of salary during the period of suspension i.e., from 24.06.1996 to 28.10.1997 was made limited only to subsistence allowance paid to the petitioner. 3. The learned Senior Counsel for the petitioner submits that the petitioner was working as Block Development Officer, Marwa in the district Samastipur (now in the State of Bihar) in the year 198485. The petitioner was served with memo of charge with six charges in the year 1992. The petitioner was also suspended on 24.06.1996, but later on, his suspension was revoked on 28.10.1997. After conclusion of the enquiry, five charges were not found proved, but with regard to charge no. 6 (i.e., the petitioner allowed the dealers to sell fertilizer in retail price of Rs.130/instead of Rs.112.50/), the Enquiry Officer found it partially proved, but recommended to the Disciplinary Authority that the benefit of doubt can be given to the petitioner. Thereafter, the Disciplinary Authority did not issue any second show cause notice and passed impugned order of punishment dated 04.11.1997 inflicting punishment of (1) censure and (2) the payment of salary during the period of suspension, i.e., 24.06.1996 to 28.10.1997 was made limited to subsistence allowance already paid to the petitioner, however, the said period was to be counted for the purpose of pension. 4. It is further submitted by the learned Senior Counsel for the petitioner that the petitioner thereafter filed a writ petition being C.W.J.C. No. 6931 of 2000 before the Patna High Court, which was disposed of vide order dated 03.08.2000 giving liberty to the petitioner to move an appeal against the impugned order. Subsequently, the petitioner filed an appeal on 04.07.2001 before the Governor of Bihar which remained pending and, in the meantime, the cadre of the petitioner was allocated to the State of Jharkhand in the year 2003. As such, the petitioner filed an appeal cum-reminder on 15.04.2008 before the respondent no. 1 to place the said appeal before the Governor of Jharkhand, but the appeal was not disposed of and as such, the petitioner filed the present writ petition. As such, the petitioner filed an appeal cum-reminder on 15.04.2008 before the respondent no. 1 to place the said appeal before the Governor of Jharkhand, but the appeal was not disposed of and as such, the petitioner filed the present writ petition. However, during the pendency of the present appeal, the order in appeal was passed on 28.04.2012 rejecting the appeal of the petitioner on the ground of limitation. 5. Under the aforesaid factual background, the learned Senior Counsel for the petitioner confines his argument only with regard to that part of the order of the Disciplinary authority dated 04.11.1997 by which the payment of salary to the petitioner for the suspension period was made limited to the payment of subsistence allowance. The learned Senior Counsel submits that though the petitioner vide impugned order dated 04.11.1997 was inflicted with minor punishment of censure, yet while passing an order restricting the payment of salary to the petitioner for the suspension period to the extent of subsistence allowance, the recourse of Rule 97 of Bihar Service Code has not been taken by the respondent authorities and as such, the said part of the impugned order dated 04.11.1997 is illegal. 6. Per contra, the learned counsels appearing on behalf of the respondent State of Jharkhand and State of Bihar submit that the petitioner was afforded ample opportunity to give explanation to the memo of charge and after taking into consideration the reply submitted by the petitioner, he was exonerated from five charges, however, one charge was proved against him and, hence, the Disciplinary Authority passed the order of minor punishment of censure. It is further submitted that since the punishment inflicted against the petitioner is a minor punishment, there was no requirement of giving second show cause notice to him by the Disciplinary Authority before passing the impugned order of punishment. Moreover, though the payment of salary to the petitioner for the period of suspension has been restricted to the extent of subsistence allowance paid to him, yet it has been clarified in the order dated 04.11.1997 itself that the said period would be counted for the purpose of fixation of pension etc. As such, no illegality has been committed by the Disciplinary Authority while passing the order of punishment and, therefore, the same warrants no interference by this Court. 7. As such, no illegality has been committed by the Disciplinary Authority while passing the order of punishment and, therefore, the same warrants no interference by this Court. 7. Having heard the learned counsel for the parties and after going through the relevant documents placed on record, it appears that by reasons of impugned order of punishment dated 04.11.1997, the payment of salary to the petitioner for the period of suspension i.e., from 24.06.1996 to 28.10.1997 was made limited to payment of subsistence allowance. In such a situation, the provisions of Rule 97 of Bihar Service Code, 2001 is attracted. For better appreciation of the issue, Rule 97 of Jharkhand Service Code, 2001 is quoted 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) Where the authority mentioned in subrule (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) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.]" 8. On perusal of Rule 97(3) of Jharkhand Service Code, it would be evident that the Government has the authority to make the payment of any proportion of salary and allowances to the Government servant, if he has not been fully exonerated in the departmental proceeding, yet before taking the said recourse, the procedural requirement enumerated in Rule 97(3) of Jharkhand Service Code is a sine quo non. However, in the present case, the recourse of Rule 97(3) has not been taken by the respondent authorities. 9. The Hon''ble Supreme Court in the case of " Manzoor Ahmad Mazumdar v. State of Meghalaya & Ors." reported in (1997) 11 SCC 374 while dealing with the provisions of Rule 54 of Assam Fundamental Rule, which is pari materia to Rule 97 of Bihar Service Code as well as Jharkhand Service Code, has held as under: "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............." 10. The Hon''ble Patna High Court in " Ramashray Prasad Singh v. State of Bihar" reported in 2000 (3) PLJR 41 while relying on the aforesaid judgment rendered by the Hon''ble Apex Court in the case of "Manzoor Ahmad Mazumdar" (supra) held that an opportunity of hearing is a precondition for taking recourse of Rule 97 of Bihar Service Code (the provision being pari materia to Jharkhand Service Code). 11. 11. In the present case, since no opportunity of hearing as mandated under Rule 97 of Bihar Service Code was afforded to the petitioner by the respondent authorities before taking a decision to restrict his payment of salary for the suspension period only to the extent of payment of subsistence allowance, the impugned order contained in memo no. 9410 dated 04.11.1997 cannot be legally sustained and, therefore, the same is quashed and set aside. Consequently, the order passed in appeal dated 28.04.2012 is also quashed. The respondents are directed to make payment of rest of the salary (i.e., minus subsistence allowance) to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The said payment shall carry interest @ 7% from the date of receipt of the order till the payment is made to the petitioner. 12. The writ petition is accordingly disposed of.