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2018 DIGILAW 1400 (GAU)

Hemanta Kr Talukdar v. State of Assam

2018-09-20

SUMAN SHYAM

body2018
JUDGMENT : Suman Shyam, J. Heard Mr. M. Choudhury, learned senior counsel appearing for the writ petitioner. I have also heard Mr. D. Nath, Addl. Sr. Govt. Advocate, Assam, appearing for the official respondents. 2. The writ petitioner herein, who has retired from the post of Registrar in the office of the Inspector General of Prisons, Assam has approached this Court for the second time being aggrieved by the order of penalty dated 18.05.2009 issued by the respondent No.1. 3. The facts of the case, briefly stated, are that while serving as the Registrar in the office of the Inspector General of Prisons, Assam, the petitioner was placed under suspension by the order dated 05.04.2008 pending drawal of departmental proceeding. On 08.07.2008 a show cause notice was issued to the petitioner containing statement of allegations along with the list of documents and the list of witnesses based on which the charges were sought to be proved. The petitioner had submitted his reply to the show cause notice on 06.08.2008. However, before the conclusion of the departmental proceeding, the order of suspension was revoked on 04.10.2008 pursuant whereto the petitioner was reinstated in service with immediate effect. In the meantime, the petitioner had superannuated from service on attaining the age of retirement with effect from 28.02.2009. On the date of his retirement, the departmental proceeding initiated against him on the basis of the show cause notice dated 08.07.2008 had, however, remained inconclusive. Months after his retirement, the petitioner was served with an order of penalty dated 18.05.2009 imposing the minor penalty of censure upon him. The impugned order dated 18.05.2009 had also provided that the period of suspension of the petitioner shall be limited to the extent of subsistence allowance already drawn by him and the period of suspension shall be counted for pensionary benefits. 4. The impugned order dated 18.05.2009 had also provided that the period of suspension of the petitioner shall be limited to the extent of subsistence allowance already drawn by him and the period of suspension shall be counted for pensionary benefits. 4. Since the enquiry report was not furnished to the petitioner nor was he given an opportunity of being heard before the impugned order of penalty dated 18.05.2009 was issued by the authority, the petitioner had preferred an appeal on 10.08.2009 before the appellate authority against the order of penalty dated 18.05.2009 but when no action was taken by the appellate authority to dispose of the appeal, the petitioner was compelled to approach this Court by filing WP(C) No.3499/2010 which was disposed of by this Court by the order dated 21.06.2010 directing the appellate authority to take on record the appeal dated 10.08.2009 submitted by the petitioner and dispose of the same in accordance with law by taking into account all the relevant facts and the law applicable in the matter. In terms of the order dated 21.06.2010 passed by this Court, the appellate authority had considered the appeal dated 10.08.2009 preferred by the petitioner by framing three issues which are as follows :- "1. Whether the issue that the Enquiry Report was not furnished to him vitiated the Departmental Proceedings? 2. Whether the penalty of Censure is unjust? 3. Whether the remuneration to be paid during the period of suspension to the appellant shall be limited to the extent of subsistence allowance already drawn or due to him is also unjustified?" 5. The appellate authority had decided the first issue by holding that non-furnishing of enquiry report to the petitioner had resulted in an infirmity on the part of the disciplinary authority which required to be rectified. By observing that such infirmity was only of a technical nature, the authorities were asked to furnish a copy of the enquiry report to the petitioner at the earliest. 6. By observing that such infirmity was only of a technical nature, the authorities were asked to furnish a copy of the enquiry report to the petitioner at the earliest. 6. In so far as the Issue No.2 is concerned, the appellate authority had held that since the petitioner is a retired employee, hence, in view of the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, the penalty of censure could not have been imposed upon him and as such, the minor penalty of censure imposed upon the petitioner was held to be non-est and bad in the eye of law. 7. As regards the third issue pertaining to the claim of the petitioner for payment of full salary and allowances during the period of suspension, the appellate authority was of the view that the findings arrived at by the Enquiry Officer were just and adequate which clearly established the guilt on the part of the petitioner. The appellate authority had also observed that had the petitioner continued in service, the present would have been a fit case to imposed upon him, one of the penalties prescribed under Rule 7(i), (ii) or (iv) of the Assam Services (Discipline & Appeal) Rules, 1964. Accordingly, it was held that the period of suspension of the delinquent i.e. the writ petitioner herein, was wholly justified and as per FR 54-B(5) read with the provisions of FR 54-B(8) and (9), the remuneration to be paid to the petitioner during the period of suspension had to remain confined only to the subsistence allowance already drawn or due to him. The period of suspension was, however, directed to be counted for all pensionary benefits, thereby affirming the views of the disciplinary authority in the matter. 8. By referring to a decision of the Division Bench of this Court in the case of Narayan Chandra Ghosh v. State of Tripura and Others, (2010) 5 GauLT 331 , Mr. Choudhury, learned senior counsel, submits that this Court has held in a similar case that imposition of penalty on a delinquent without furnishing a copy of the enquiry report would be unsustainable in the eye of law. In the case of Narayan Chandra Ghosh the enquiry report was furnished to the delinquent alongwith the order of punishment. In the present case, submits Mr. In the case of Narayan Chandra Ghosh the enquiry report was furnished to the delinquent alongwith the order of punishment. In the present case, submits Mr. Choudhury, the said enquiry report was not even made available to the petitioner with the order of penalty but has been furnished to him in terms of the order of the appellate authority, that too, months after his retirement. 9. By inviting the attention of this Court to the provisions of FR 54-B(1), (2) and (5), Mr. Choudhury submits that the power of the Government to pass appropriate orders as regards the pay and allowances to be paid to a Government servant for the period of his suspension is not in dispute but before passing an order which would adversely affect the interest of the employee, the authority would be required to give a notice to the Government servant and consider representation, if any, submitted by him before taking a decision in the matter. 10. By placing heavy reliance on another decision of the Division Bench of this Court in the case of Achinta Dutta v. State of Tripura and Others, (1998) 2 GauLT 447 , Mr. Choudhury submits that on an interpretation of FR 54-B(5), this Court has categorically held that an order adversely affecting the interest of the Govt. servant issued in violation of the requirement of sub-Rule (5) would be unsustainable in the eye of law. Under the circumstances, Mr. Choudhury has prayed for setting aside the order of penalty in so far as the same relates to the confiscation of the full salary and allowances of the petitioner for the period during which he was placed under suspension and issue a direction upon the respondent authorities to pay him the arrear dues in a time bound manner. 11. Responding to the submissions advanced by the petitioner's counsel, Mr. D. Nath, learned Additional Senior Govt. Advocate, Assam, has submitted that as per the provision of FR 54-B it is the prerogative of the Government to take a decision on the question as to whether a Government servant should be permitted to draw full pay and allowances during the period of suspension and in this case, the authority has exercised its power under the provision of FR 54-B(1) in restricting the dues of the petitioner to the subsistence allowance only by taing note of the facts and circumstances of the case. The learned Government Advocate has, however, fairly submitted that no notice, as required under FR 54-B (5), was served upon the petitioner before the impugned order was passed. 12. As noted above, the petitioner has retired from service on 28.02.2009 and the order of minor penalty of censure has already been set aside by the appellate authority by its order dated 28.09.2010 issued in compliance with the order of this Court passed on 21.06.2010 in WP(C) No.3499/2010. Therefore, the only live issue that survives for consideration of this Court in this case at this stage is as to whether the impugned order dated 18.05.2009, in so far as the same seeks to deny full pay and allowances to the petitioner for the period of his suspension, is sustainable in the eye of law. Before attempting to answer the said question, it would be necessary to reproduce herein, operative part of the order of penalty dated 18.05.2009 :- "It is further decided the remuneration to be paid during the period of suspension shall be limited to the extent of subsistence allowance already drawn or due to him and the period of suspension shall be counted for pensionary benefits." 13. Matters relating to the power of the Government to pass appropriate order as regards the entitlement of a Government servant to receive full pay and allowances during the period of suspension is laid down in FR 54-B which is quoted herein below :- "F.R. 54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated 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, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) 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 to which he would have been entitled, had he not been suspended : Provided 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 hearing 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 a11owances as it may determine. (4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. (5) In case other than those falling under sub- rules (2) and (3) the Government servant shall subject to the provisions of sub-rules (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 on which has been served as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or Court proceedings, any order passed under sub-rule (1) 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 (2) who shall make an order according to the provisions of sub-rule (3) or (5) as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the 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 order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant." 14. A bare perusal of the provision of FR 54-B(1) leaves no room for doubt that it would be open for the Government, in every case, to take a decision and pass appropriate order determining the entitlement of the Government servant to receive full pay and allowances during the period of his suspension. The question that would, however, be relevant in this case is as to whether in case the Government takes a decision not to pay the full pay and allowances would the Government servant be entitled to a notice before any order is passed in the matter. The said question, in my opinion, is no more res integra in view of the decision of this Court rendered in the case of Achinta Dutta wherein the Division Bench has categorically held that sub-rule (5) of FR 54-B would require a show cause notice to be served upon the Government servant before an order is passed by the competent authority determining the pay and allowances to be paid to him during the period of suspension. Having held as above, the Division Bench had set aside the order passed in that case against the delinquent employee on the ground of failure to comply with the requirement of sub-rule (5) of FR 54- B. 15. In the case in hand there is no doubt about the fact that the case of the petitioner does not fall under sub-rules (2) or (3) of the FR 54-B and therefore, rule (5) would be attracted in his case. In the case in hand there is no doubt about the fact that the case of the petitioner does not fall under sub-rules (2) or (3) of the FR 54-B and therefore, rule (5) would be attracted in his case. However, it is not in dispute that no prior notice was served upon the petitioner before the impugned order dated 18.05.2009 was issued by the authority. If that be so, the aforesaid order in so far as it relates to the negation of the petitioner's claim to receive full pay and allowances during the period of suspension is concerned, was clearly in contravention of the provisions of FR 54-B(5) and hence is held to be unsustainable in the eye of law. 16. In view of what has been held above, the impugned order dated 18.05.2009 is set aside. 17. Ordinarily in a matter where an order issued by the Government is set aside on the ground of violation of procedural norms, leave is granted to the authorities to initiate a fresh process after serving proper notice upon the affected employee. But in this case, as noticed above, the petitioner had retired from service way back in the year 2009. Therefore, this Court is of the view that it would be highly unjust to subject a retired employee like the petitioner to a fresh proceeding on a issue of this nature at this belated stage. Moreover, it also transpires from the arguments advanced by the by learned counsel or the parties that the net affect of setting aside the impugned order would be that only the differences of the amount of pay and allowances during the period of suspension of the petitioner from 05.04.2008 to 04.10.2008 would now have to be paid to him after adjusting the amount already paid. Considering the amount that may be involved in the matter, I am not inclined to grant leave to the Government to proceed afresh in the matter by serving notice upon the petitioner. It is, therefore, made clear that in terms of the determination made above, the arrear dues of the petitioner shall be paid to him as expeditiously as possible but not later than six months from the date of receipt of a certified copy of this order. With the above observation, the writ petition stands disposed of. There would be no order as to cost.