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Madhya Pradesh High Court · body

2021 DIGILAW 276 (MP)

Rajendra Prasad v. State of M. P.

2021-03-01

SUJOY PAUL

body2021
ORDER : Sujoy Paul, J. 1. In this petition, the petitioner has prayed for following reliefs:- "(1) To set aside the order dated 25.03.2017 (Annexure P/9) and order dated 06.09.2018. (2) To hold that the principle of "No Work No Pay" is not attracted in the case of the present petitioner. (3) To direct the Respondent to declare that the petitioner is on duty during the period from 10.07.1996 to 02.02.1998 and from 03.02.2000 to 10.06.2008. (4) To direct the respondents to pay the salary and arrears of petitioner for the period of suspension from 10.07.1996 to 02.02.1998 and from 03.02.2000 to 10.06.2008. (5) To direct the respondents to pay the arrears of the Fifth Pay Commission to the petitioner for the period of 01.04.1996 to 03.04.2017." 2. Learned counsel for the petitioner submits that petitioner remained under suspension during two spells - (i) from 10.07.1997 to 02.02.1998. This suspension was arising out of the Crime No. 441/96 for allegedly committing offence under section 323 and 506 of IPC. The petitioner was convicted on 03.04.2001 by the trial court but appellate court gave him benefit of probation. The department committed an error in passing the order dated 06.09.2018 thereby declined to treat the period of suspension as spent on duty and for grant of pay and allowances. (ii) the second suspension period was between 03.02.2000 to 10.06.2008 arising out of Crime No. 161/1999 for allegedly committing offences under section 294, 353 and 506B of IPC. The petitioner stood acquitted on 12.04.2006. He prayed for release of pay and allowances and count that period as spent on duty. This claim is also rejected by taking shelter of conviction arising out of previous Crime No. 441/96 wherein the petitioner was held guilty. This is an extraneous consideration because for second spell of suspension, the relevant Crime number was 161/1999 from which he stood acquitted by the trial court and said judgment was upheld by the Gwalior Bench in Cr.A.No.935/2006. Thus respondents have committed an error in rejecting this application relating to second period of suspension. Lastly, it is submitted that although after revocation of suspension, the respondents granted him benefit of Sixth Pay Commission, no directions were issued to grant him benefit of Fifth Pay Commission. Thus, appropriate orders may be passed. 3. Prayer is opposed by Shri Singh, learned counsel for the State. 4. Lastly, it is submitted that although after revocation of suspension, the respondents granted him benefit of Sixth Pay Commission, no directions were issued to grant him benefit of Fifth Pay Commission. Thus, appropriate orders may be passed. 3. Prayer is opposed by Shri Singh, learned counsel for the State. 4. No other point is pressed by learned counsel for the parties. 5. I have heard the parties at length and perused the record. 6. So far first suspension period is concerned, indisputably, the petitioner was held guilty in Crime No. 441/96 by the trial court and the appellate court has not acquitted the petitioner. Indeed, the petitioner was granted benefit of probation. Thus, no fault can be found in the first order dated 06.09.2018. The Apex Court in Management of RBI Vs. Bhopal Singh Panchal, (1994) 1 SCC 541 opined that it is the prerogative of the employer to take a decision regarding the period spent during suspension and scope of judicial review in a matter of this nature is limited. The relevant portion reads as under:- "15. We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank's power in that behalf is unassailable." (Emphasis supplied) 7. So far the second order of suspension dated 25.3.2017 is concerned, I find substance in the arguments of Shri Raghuwanshi that in para-2 of this order, the competent authority has taken into account the offence arising out of Crime No. 441/96 which was totally irrelevant for deciding about the period of suspension between 03.02.2000 to 10.06.2008. 8. So far reason for second suspension is concerned, it was admittedly Crime No. 161/99 which ended with acquittal of the petitioner from the trial court which order is affirmed by the High Court. Inspite of petitioner's acquittal, in para-5 of the order Annex. P/9, the authority erroneously opined "Court found the petitioner as guilty". Thus, this order is based on wrong reason. Hence, the order 25.03.2017 (Annx. P/9) cannot sustain judicial scrutiny. 9. The petitioner's pleading and prayer for grant of Fifth Pay Commission has not been answered in the reply. There is no pleading in reply which deals with petitioner's claim regarding Fifth Pay Commission. Accordingly, I deem it proper to dispose of this petition with following directions:- (1) The petition is dismissed so far challenge is made to the order dated 06.09.2018 (Annx. P/13). For the reasons stated above, the impugned order dated 25.3.2017 (Annx. There is no pleading in reply which deals with petitioner's claim regarding Fifth Pay Commission. Accordingly, I deem it proper to dispose of this petition with following directions:- (1) The petition is dismissed so far challenge is made to the order dated 06.09.2018 (Annx. P/13). For the reasons stated above, the impugned order dated 25.3.2017 (Annx. P/9) is set aside and the disciplinary authority/competent authority is directed to take a fresh decision in accordance with law within sixty days and apprise the petitioner about the outcome. (2) So far benefit of Fifth Pay Commission is concerned, the respondents are directed to examine whether petitioner is entitled to get the benefit of Fifth Pay Commission and pass appropriate orders within ninety days from the date of production of copy of this order. (3) If in the opinion of the department, petitioner was entitled for any benefits for second suspension period and arising out of Fifth Pay Commission, they shall settle his claim within the aforesaid time. (4) The petition is disposed of without expressing any opinion on merits.