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2024 DIGILAW 234 (JHR)

Nilesh Kumar Singh v. State of Jharkhand

2024-02-28

RAJESH SHANKAR

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JUDGMENT : Rajesh Shankar, J. The present writ petition has been filed for quashing the office order as contained in memo no. 20 dated 06.01.2021 (wrongly typed as 06.01.2020) [Annexure-14 to the writ petition] passed by the respondent no. 2 – the District Education Officer, Hazaribagh to the extent the petitioner has been denied full salary except the subsistence allowance for the period from 03.01.2012 to 25.06.2015. Further prayer has been made for issuance of direction upon the respondents to pay full salary to the petitioner for the period from 03.01.2012 to 25.06.2015 in view of the fact that he has been acquitted in connection with T.R. No. 1969 of 2014, arising out of Sadar P.S Case No. 502 of 2011, corresponding to G.R No. 2208 of 2011 registered for the offences under Sections 379/411 of IPC. 2. Learned counsel for the petitioner submits that an FIR being Sadar P.S Case No. 502 of 2011 was lodged on 06.08.2011 under Sections 379/411 of IPC against unknown persons. The petitioner was apprehended in the said case on 06.09.2011 and was suspended from service with effect from the said date of arrest vide office order as contained in memo no. 2242 dated 15.09.2011. The petitioner was subsequently released from custody on 02.01.2012 after grant of bail vide order dated 21.12.2011 passed in B.A No. 8582 of 2011. Thereafter, he was acquitted in the said criminal case vide judgment dated 19.12.2014 passed by the Chief Judicial Magistrate, Hazaribagh in G.R. No. 2208 of 2011 (T.R. No. 1969 of 2014). He then made representation dated 06.01.2015 before the respondent no. 2 for revocation of his suspension. However, his suspension was not revoked, rather a departmental proceeding was initiated against him and the respondent no. 2 vide memo no. 232 dated 10.02.2015 served a memo of charge in “Prapatra Ka” to him. Further, vide order as contained in memo no. 233 dated 10.02.2015, the respondent no. 2 appointed the Sub-Divisional Education Officer, Sadar, Hazaribagh as enquiry officer and the Headmaster, Hindu +2 High School, Hazaribagh as presenting officer for conducting the departmental proceeding. 3. The petitioner filed a writ petition being W.P. (S) No.789 of 2015 challenging memo of charge in “Prapatra Ka” as well as for revocation of the order of suspension issued by the respondent no. 2 vide memo nos. 232 and 233 respectively both dated 10.02.2015. 3. The petitioner filed a writ petition being W.P. (S) No.789 of 2015 challenging memo of charge in “Prapatra Ka” as well as for revocation of the order of suspension issued by the respondent no. 2 vide memo nos. 232 and 233 respectively both dated 10.02.2015. During pendency of the said writ petition, the order of suspension of the petitioner was revoked vide office order as contained in memo no. 1167 dated 26.06.2015 passed by the respondent no. 2 stating that it was unanimously decided in the meeting of District Education Establishment Committee to make payment of only subsistence allowance to the petitioner for the period of suspension. The writ petition filed by the petitioner was disposed of vide order dated 25.01.2016 with direction to the disciplinary authority to conclude the departmental proceeding, however, without commenting on the merits of the case or interfering with the impugned departmental proceeding. Pursuant to the order passed in W.P.(S) No. 789 of 2015, the departmental proceeding initiated against the petitioner was concluded vide decision taken in the meeting held by District Education Establishment Committee, Hazaribagh on 30.04.2016, observing that recommendation of the enquiry officer to revoke the suspension of the petitioner and to pay him subsistence allowance for the period of suspension were already complied vide office order as contained in memo no. 1167 dated 26.06.2015 issued in the light of decision taken by the District Education Establishment Committee in its meeting held on 25.06.2015. 4. The petitioner filed another writ petition being W.P.(S) No. 123 of 2020 with a prayer for issuance of direction upon the respondents to pay him full salary for the period of suspension i.e., 06.09.2011 to 25.06.2015 which was disposed of vide order dated 06.02.2020 directing the respondents to take a decision in view of rule 97(2) and 99 of the Jharkhand Service Code, 2001 (hereinafter referred to as “the Code, 2001”) as well as observing that if the petitioner was found entitled for difference of salary for the period of suspension, the same would be paid to him within a period of three weeks from the date of receipt/production of a copy of the said order. 5. Pursuant to the order passed in W.P.(S) No. 123 of 2020, the respondent no. 2 passed the impugned office order as contained in memo no. 5. Pursuant to the order passed in W.P.(S) No. 123 of 2020, the respondent no. 2 passed the impugned office order as contained in memo no. 20 dated 06.01.2020, whereby the payment of arrears of salary for the period from 06.09.2011 (the date of suspension) to 02.01.2012 was allowed, however, the salary for the period from 03.01.2012 to 25.06.2015 (i.e., the period of absence after release from the judicial custody till the date of revocation of suspension) was denied in view of rule 60 of the Code, 2001 on the ground of ‘no work no pay’. 6. Learned counsel for the petitioner contends that rule 60 of the Code, 2001 cannot supersede rule 97(2) and 99 of the Code, 2001 and once rule 97(2) & 99 come into play, rule 60 loses its relevance and hence, the principle of ‘no work no pay’ will not be applicable in the present case. 7. It is further contended that the petitioner had represented the respondent no. 2 on 06.01.2015 for revocation of suspension and acceptance of his joining and thereafter, he was allowed to work, however, his suspension was revoked vide office order as contained in memo no. 1167 dated 26.06.2015 passed by the respondent no. 2 and thus he cannot be made to suffer for the delay and laches committed by the respondent no. 2 in revoking his suspension. 8. Learned counsel for the petitioner puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of “Raj Narain Vs. Union of India & Ors.” reported in (2019) 5 SCC 809 in support of his argument for payment of full back wages to the petitioner during his period of suspension. 9. On the contrary, learned counsel for the respondents submits that after release from the judicial custody, the petitioner for the first time, vide letter dated 06.01.2015, sought permission from the respondent no. 2 to join duty in the school. The suspension of the petitioner was revoked by the respondent no. 2 vide office order as contained in memo no. 1167 dated 26.06.2015 and he was directed to be paid subsistence allowance for the period of suspension i.e., 06.09.2011 to 25.06.2015. 2 to join duty in the school. The suspension of the petitioner was revoked by the respondent no. 2 vide office order as contained in memo no. 1167 dated 26.06.2015 and he was directed to be paid subsistence allowance for the period of suspension i.e., 06.09.2011 to 25.06.2015. The office order dated 15.09.2011 relating to suspension of the petitioner was issued in view of the provision of deemed suspension under rule 99 of the Code, 2001 as he was arrested on 06.09.2011 in connection with Sadar P.S. Case No. 502 of 2011 and thus, there was no fault on the part of the employer in putting the petitioner on suspension. As such, the respondents are not liable to make payment of full salary to the petitioner for the period of suspension. In fact, the State exchequer itself would be burdened as no work was done by the petitioner during the period of suspension. 10. Heard the learned counsel for the parties and perused the materials available on record. 11. The thrust of argument of learned counsel for the petitioner is that the petitioner has honourably been acquitted of the said criminal charge and as such, he is entitled to be paid full salary for the period of suspension i.e., 06.09.2011 to 25.06.2015 in view of rule 97(2) and rule 99 of the Code, 2001. Learned counsel for the petitioner puts further reliance on a judgement rendered by the Hon’ble Supreme Court in the case of “Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner & Ors.” reported in (1978) 1 SCC 405 , wherein it has been held that the reason which has not been mentioned in the impugned order of the respondents cannot be supplemented by way of affidavit. It has further been contended that since the ground raised in the counter affidavit to the effect that the petitioner is not entitled for full salary in view of the fact that the prosecution was launched by a private party, is not worth consideration since the said ground has not been taken in the impugned office order as contained in Memo No. 20 dated 06.01.2021. 12. 12. To appreciate the contention of the learned counsel for the parties, it would be appropriate to refer rule 97 & rule 99 of the Code, 2001 as have been relied upon by learned counsel for the petitioner in support of his contention, which read as under : "97. ----- (2) Where the authority mentioned in Sub-rule (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. --------" 99. A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than subsistence grant that may be granted in accordance with principles laid down in Rule 96) for such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties as the case may be. An adjustment of his allowances for such period should therefore, be made according to the circumstances of the case, the full amount being given only in the event of the Government servant being acquitted of blame or (if the proceeding taken against him, were for his arrest for debt) of its being proved that the government servant's liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified. 13. In view of rule 97(2) of the Code, 2001, the government servant is entitled to be paid full pay and allowance for the suspension period only when the authority finds that the order of suspension was wholly unjustified. 14. So far as rule 99 of the Code, 2001 is concerned, the provision of the same has been interpreted by learned Division Bench of this Court in the case of “Chandrajeet Kumar @ Chandrajeet Paswan Vs. The State of Jharkhand & Ors.” (L.P.A No. 555 of 2014) observing as under : 5. 14. So far as rule 99 of the Code, 2001 is concerned, the provision of the same has been interpreted by learned Division Bench of this Court in the case of “Chandrajeet Kumar @ Chandrajeet Paswan Vs. The State of Jharkhand & Ors.” (L.P.A No. 555 of 2014) observing as under : 5. (vi) It further appears from the facts of the case that this appellant was suspended because of deemed suspension provision under Rule 99 of the Jharkhand Service Code, 2001. The prosecution was never at the behest of the employer, on the contrary from the date of arrest of this appellant i.e. with effect from 28th July, 2005 till the revocation of suspension i.e. till 14th August, 2008 i.e. for approximately 35 months, the respondents could not get the services of this appellant. Thus, the respondent-State is a sufferer for no fault of the State of Jharkhand. (vii) For no fault of the State of Jharkhand, even subsistence allowance has been paid by the State. (viii) Now, the question arises of full salary for the suspension period and other allowances along with the salary. This cannot be paid to this appellant because prosecution was never at the behest of the State of Jharkhand-employer. Secondly, the State of Jharkhand is a sufferer because of long absenteeism of approximately 35 months. Thirdly for the reason that no work was done by this appellant for approximately 35 months and, hence, on the basis of the principle of “No Work No Pay”, this appellant cannot get salary for the period of suspension nor any allowances. This appellant cannot get any allowance which are connected with the basic pay of the appellant. If the prosecution has been initiated against any employee of the State by the private parties and if the employee of the State is arrested and if such employee is under deemed suspension, by virtue of Rule 99 of the Jharkhand Service Code, 2001 and if because of acquittal from the criminal charges the suspension is also revoked, in the intervening period of suspension, the State cannot be made liable to make the payment of full salary and payment of allowances attached with the basic salary. Thus, there is vast difference between two types of prosecution, one which is initiated at the behest of the employer and another, which is initiated at the behest of any other private parties, other than employer. --------- In view of the aforesaid decision, this appellant is not entitled to get the salary for the period of suspension and the allowances attached with the salary because the prosecution was never initiated at the behest of the employer, but, it was initiated at the behest of private parties because of long absenteeism of this appellant of approximately 35 months, on the contrary, the State of Jharkhand is a sufferer and, hence also, the State of Jharkhand cannot be saddled with the liability of payment of salary for the period for which, this appellant has not done any work. 15. Thus, for making payment of full salary to an employee for the period of suspension, the cases are divided under two categories; (i) where the prosecution has been launched against the concerned government servant at the behest of the State and, (ii) where the prosecution has been launched against the concerned government servant by a private party. In the case of “Chandrajeet Kumar @ Chandrajeet Paswan” (supra), it has been specifically held that the State being the employer cannot be made liable to make payment of full salary and allowances attached therewith when the prosecution is launched against an employee at the behest of private party. 16. In the case in hand also, the FIR registered as Sadar P.S Case No. 502 of 2011 was lodged by a private person in which the petitioner was apprehended and remanded to judicial custody. He was suspended by the respondent no. 2 vide office order as contained in memo no. 2242 dated 15.09.2011 in view of the provision of deemed suspension under rule 99 of the Code, 2001. Thus, the ratio laid down in the aforesaid case is equally applicable in the present case. Otherwise also, the Court is of the view that the order of suspension of the petitioner cannot be said to be wholly unjustified which is the condition precedent for granting full salary and allowance to a government servant for the period of suspension under rule 97(2) of the Code, 2001. 17. Otherwise also, the Court is of the view that the order of suspension of the petitioner cannot be said to be wholly unjustified which is the condition precedent for granting full salary and allowance to a government servant for the period of suspension under rule 97(2) of the Code, 2001. 17. The judgment rendered in the case of “Raj Narain” (supra) is not applicable to the facts and circumstance of the present case since in the said case, the criminal case was launched by the department. Moreover, in that case, Their Lordships referred earlier judgment of the Hon’ble Supreme Court rendered in the case of “Ranchhodji Chaturji Thakore Vs. Gujarat Electricity Board” reported in (1996) 11 SCC 603 , wherein it was held that the employee involved in a crime had disabled himself from rendering his services on account of his incarceration in jail and as such subsequent acquittal by an appellate court would not entitle him to claim back wages. Thus, the issue is no more res-integra that an employee is not entitled to claim back wages after acquittal in criminal case if the prosecution is not launched by the employer rather by a private person. 18. It is evident that the petitioner was suspended with effect from 06.09.2011 as he was apprehended and remanded to judicial custody in connection with Sadar P.S Case No. 502 of 2011. It was specifically mentioned in the order of suspension that the headquarter of the petitioner during the suspension period would be at +2 High School, Vishnugarh. After release from custody, he was to report to the said headquarter with information to the office of the respondent no. 2. Though the petitioner was released from the judicial custody on 02.01.2012, however, the first representation with request to revoke the order of suspension was submitted by him on 06.01.2015 pursuant to passing of the final judgment in T.R. No. 1969 of 2014 (G.R. No. 2208 of 2011), arising out of Sadar P.S Case No. 502 of 2011. 19. This Court is of the view that the balance of salary paid to the petitioner from the date of suspension i.e., 06.09.2011 to his release from judicial custody i.e., 02.01.2012 being contrary to law is required to be recovered from the petitioner. However, so far as the salary for the period from 06.01.2015 i.e., the date on which the petitioner had represented the respondent no. However, so far as the salary for the period from 06.01.2015 i.e., the date on which the petitioner had represented the respondent no. 2 – the District Education Officer, Hazaribagh for acceptance of his joining till 25.06.2015 i.e., the date of revocation of his suspension, he is entitled for the balance amount of salary. 20. Under the said circumstance, the respondent no. 2 is directed to calculate the balance amount of salary of the petitioner for the aforesaid period of entitlement and to pay the same after adjusting the balance amount of salary already paid for the period from 06.09.2011 to 02.01.2012 within eight (8) weeks from the date of receipt/production of a copy of this order. 21. The writ petition is accordingly disposed of.