Nafr High Court
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.29 11:49:38 +0530 2025:CGHC:14300 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5715 of 2019 1 - Jivesh Dewangan So Late T.R. Dewangan Aged About 28 Years R/o Tikrapara, Raipur, Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Ku. Ruchi Dewangan D/o Late T.R. Dewangan Aged About 26 Years R/o Tikrapara, Raipur, Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Bhumika Dewangan D/o T.R. Dewangan Aged About 33 Years R/o Kurud, District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh --- Petitioners versus 1 - State Of Chhattisgarh Through The Principal Secretary, Law Department, Mahanadi Bhawan, Mantralaya Atal Nagar, Naya Raipur Chhattisgarh. 2 - High Court Of Chhattisgarh Through Registrar, Bodri, Bilaspur, District Bilaspur Chhattisgarh. 3 - District And Sessions Judge Durg, District Durg Chhattisgarh. --- Respondents For Petitioners For Respondent No. 1 For Respondents No. 2 & 3 : Mr. Tapan Chandra, Adv. : Mr. Rajeev Bharat, Govt. Adv. Ms. Anuradha Jain, Adv. 2 Hon'ble Shri Justice Naresh Kumar Chandravanshi Order On Board 24-3-2025 1 Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioners seeking following reliefs :- “10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records relating to this case. 10.2 That, this Hon'ble Court may kindly be pleased to allow the petition and set-aside the order no. 24/III-18- 14/2007 dated 04.10.2017 (Annexure P/8) passed by respondent no. 2 and direct the respondents to make payment of full salary and allowances for the entire period of suspension (13.05.2008 to 07.07.2008 and thereafter 09.07.2008 to 10.05.2015) of T.R. Dewangan, in the interest of justice. 10.3 That any other relief, which this Hon'ble Court may deem fit and proper together with cost of the petition.” 2
Legal Reasoning
Facts of the case in nutshell are that, petitioners’ father namely T.R. Dewangan was working as ‘Clerk of Court’ in the office of Family Court, Mahasamund, who died in harness on 14-5-2017. When he was posted as Clerk of Court (present designation ‘Administrative Officer’) in the office of District and Sessions Judge, Durg, he was placed under suspension vide order (Annexure P-1) No. 6/III-18- 14/2008 dated 13-5-2008 issued by respondent No. 2. Subsequently, his suspension was revoked vide order (Annexure P-2) No. 7/III-18- 3 14/2008 dated 8-7-2008 issued by respondent No. 2. Father of petitioners namely T.R. Dewangan was again suspended contemplating Departmental Enquiry vide order (Annexure P-3) No. 8/III-18-14/2008 dated 9-7-2008. In the Departmental Enquiry, charges were held proved, delinquent employee was held guilty and he was imposed minor penalty by the District & Sessions Judge, Durg vide order (Annexure P-5) dated 27-11-2014 withholding of one increment, with cumulative effect under Rule 10 (iv) of the CG Civil Services (Classification, Control and Appeal) Rules, 1966. Subsequently, vide order (Annexure P-6) dated 8-5-2015, his suspension was revoked by respondent No. 2 and he was posted as Clerk of Court in the office of Family Court, Durg ‘without any back wages’ for suspension period. Representation (Annmexure P-7) dated 25-5-2015 filed by the petitioners’ father has also been rejected by respondent No. 2 vide order (Annexure P-8) dated 4-10- 2017, but prior to rejection of representation, the delinquent employee T.R. Dewangan died on 14-5-2017 and after his death, his Lrs i.e. sons and daughter have challenged impugned order (Annexure P-8) dated 4-10-2017 passed by respondent No. 2. 3 Learned counsel for the petitioners would submit that deceased employee belongs to ‘Group-B’ category and even after holding him guilty for alleged misconduct, only minor penalty was imposed by the respondent No.3 vide impugned order Annexure-P/5. After passing the order (Annexure-P/5) dated 27.11.2014, the deceased employee was posted on the post of Clerk of Court in the Office of Family Court, 4 Durg by revoking his suspension vide order Annexure-P/6 dated 08.05.2015, but vide that order, it was also directed that he will not get back wages for the suspension period. Learned counsel further submits that this order was passed without providing any opportunity of hearing to the deceased employee, whereas as per Fundamental Rules, 54-B, the deceased employee ought to have been provided opportunity of hearing prior to holding that he is not entitled to get back wages for suspension period. The deceased employee has filed representation (Annexure-P/7) dated 25.05.2015 for redressal of his grievance, but that representation has also been rejected without affording opportunity of hearing to the petitioner vide impugned order (Annexure-P/8) dated 04.10.2017. It is further submitted that even as per circular (Annexure-P/10) dated 19.09.2013 issued by the General Administration Department, Government of Chhattisgarh, discretionary power has been vested with the competent authority in light of Fundamental Rules, 54-B to decide the issue as to whether the delinquent employee is entitled to get back wages for suspension period or not, but, said discretionary power could not be used arbitrarily and even if any order is passed adversely affecting the employee, it ought to have been passed following the principles of natural justice, which has not been done by respondent No.2 in instant case. Hence, he prayed that instant petition may be allowed and the relief sought may be granted. 4 Respondents No. 2 and 3 who are main contesting party, have filed
Legal Reasoning
reply. Learned counsel for respondents No. 2 and 3 referring to their 5 reply, would submit that, since representation filed by the petitioner was considered by respondent No. 2 prior to passing of impugned order (Annexure P-8) dated 4-10-2017, thus opportunity of hearing has been provided to the deceased employee. She would further submit that, vide circular (Annexure P-10) dated 19-09-2013 issued by the General Administration Department, Government of Chhattisgarh, there is a discretion granted to the competent authority that, if minor penalty is imposed against the employee, then whether he will be paid full pay of his suspension period or not, shall be decided considering the gravity/seriousness of the misconduct. It is submitted that in the departmental enquiry since charges against the deceased employee were found proved and he has been penalized, therefore, she would submit that, he is not entitled to get full pay for period of his suspension and the impugned order is just and proper, therefore, instant petition may be dismissed. 5 The State has also filed reply. Learned State counsel while making his submission extended his support to the contention made by the learned counsel for the respondents No.2 & 3. 6 7 I have heard learned counsel for the parties and perused the material available on record with utmost circumspection. Vide order (Annexure P-6) dated 8-5-2015, suspension of the deceased employee was revoked, but without providing him opportunity of hearing, it was also ordered that he is not entitled for back wages for the suspension period. For redressal of grievance, he filed representation (Annexure P-7) dated 25-5-2025, but the same 6 has also been rejected vide order (Annexure P-8) dated 4-10-2017 without providing opportunity of hearing to him. Whereas as per Circular Anmnexure P-10 dated 19-9-2013 issued by the General Administration Department, Govt. of Chhattisgarh, it has been directed as under :- “2/ राज्य शासन ्ቛारा उपरो्ሹ कं डि(cid:16)का-6 में आं शिशक संशोधन करने का निन्ቓ(cid:25)य लि(cid:27)या गया है। rn~uqlkj उपरो्ሹ ्ሺापन की व्ቔ(cid:25)मान कं डि(cid:16)का को निव(cid:27)ोनिप्ቔ निकया जा्ቔा है एव उसके स्थान पर यथा संशोडिध्ቔ कडि(cid:16)का 6 निनम्नानुसार ्ቚडि्ቔस्थानिप्ቔ की जा्ቔी है- "मुख्य शाቜኌस््ቔ हे्ቔु संቜኌस्थ्ቔ निवभागीय जांच में निन(cid:27)ंनि1्ቔ शासकीय सेवक पर जांच उपरां्ቔ यनि2 (cid:27)घुशाቜኌस््ቔ अडिधरोनिप्ቔ की जा्ቔी है. ्ቔो ऐसे माम(cid:27)ों में अवचार की गंभीर्ቔा को 2ेख्ቔे हुए निन(cid:27)ं1न अवडिध का निनराकर्ቓ स्ቌम अडिधकारी के निववेकाधीन रहेगा एवं स्ቌम अडिधकारी ्ቛारा उसकी निन(cid:27)ं1न अवडिध का निनराकर्ቓ मू(cid:27)भू्ቔ निनयम-54 1ी के अ्ቔग(cid:25)्ቔ निकया जाएगा। यह निन्ቓ(cid:25)य इस ्ሺापन के ्ቚसारिर्ቔ होने के डि्ቔशिथ से (cid:27)ागू होगा ्ቔथा जिजन ्ቚकर्ቓों में निन्ቓ(cid:25)य लि(cid:27)या जा चुका है. वे पुनः नहीं खो(cid:27)े जाएंगे।" 8 At this stage, it would be apt to note Fundamental Rule 54-B, which reads as under :- “F.R. 54-B. - (1) 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 re- instatement 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 7 ending with re-instatment 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. (2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension, dies before the disciplinary or 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 giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and 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 amount (not being the whole) of such pay and allowances as it may determine. 8 (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 cases 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 amount (not being the whole) of the 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 on which the notice has been served) as may be specified in the notice. (6) Where suspension is revoked pending finalization of the disciplinary or the 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 (1), who, shall make an order according to the provisions of sub-rule (3) or sub-rule (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. 9 Note: The order of the competent authority under the preceding proviso, shall be absolute and no higher sanction shall be necessary for the grant of - (a) extraordinary leave in excess of three months in the case of temporary Government servant; and (b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant. (8) The payment of allowances under sub-rule (2), sub- rule (3) or sub-rule (5), shall be subject to all other conditions under which such allowances are admissible. (9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.” 9 Perusal of aforesaid Rules show that when any Government servant, who has been suspended, is reinstated, then the authority competent to order reinstatement shall also consider and pass specific order with regard to pay and allowances payable to him for the period of suspension alongwith the fact that said period of suspension shall be treated as period spent on duty or not. As per Rule 3 of Rule 54-B, if competent authority is of the opinion that suspension was wholly unjustified, then subject to the provisions shall make order to pay full pay and allowances to which the employee would be entitled had he not been suspended. If competent authority opines that the matter is considerable under proviso to sub- rule 3, then he will have to afford opportunity of hearing and to make representation to the concerned Government servant. Sub - rule (5) speaks that if case is not falling 10 under sub-rules (2) & (3), then also notice is required to be given to the Government servant with regard to quantum proposed and after considering the representation, pay and allowances shall be decided by the competent authority. Thus, proviso to sub-rule (3) and sub-rule (5) of Fundamental Rule 54-B provides procedure that how pay and allowances shall be decided for period of suspension of the employee. Proviso to sub Rule (3) and sub rule (5) specifically envisaged procedure to afford opportunity of hearing to the concerned government employee with regard to decide pay and allowances of suspension period. But in the instant case, such opportunity of hearing has not been afforded to the deceased employee, thus, principle of natural justice in this regard has not been followed. 10 In the case of O.P. Gupta Vs. Union of India and another [(1987) 4 SCC 328] Hon'ble Supreme Court has emphasized the principle that any order which would cause adverse civil consequences, can only be passed upon observance of the rules of Natural Justice. There is, therefore, insistence upon requirement of a “fair hearing”. It was also emphasized that long, continued suspension affects the government servant injuriously. Since the order of suspension entitles the government employee only to “subsistence allowance”, resulting in penal consequences, it should not be lightly passed. The court also emphasised that the expression “life” does not merely connote animal existence or a continued drudgery through life. These are all well known principles of law. 11 In the case of M. Gopalakrishna Naidu vs. State of Madhya 11 Pradesh (AIR 1968 SC 240) the provisions contained in F.R. 54, came to be considered. In sub-rule (3) of F.R. 54 considered therein it was provided that the Government servant shall be given such proportion of such pay and allowances as were admissible, where the authority competent to order reinstatement after the Government servant was dismissed, removed or suspended was of the view that the Government servant had not been fully exonerated. F.R. 54 [5] provided that in a case falling under F.R. 54 [3], period of absence from duty shall not be treated as a period spent on duty for all purposes. It is in the context of the said provision, the Hon'ble Supreme Court had observed as under :- “7. It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under cl. 2 or cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and. his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The 12 very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.” 12 In the case of Manzoor Ahmed Mazumdar v. State of Meghalaya and others [(1997) 11 SCC 374], their Lordships of the Supreme Court while considering similar provision of Assam Fundamental Rules, have held in paragraph 4 as below:- “4. In view of the decision in M. Gopalkrishna Naidu (supra), 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. It will be open to the respondents to pass a fresh order in accordance with law after affording an opportunity to the appellant” 13 In the case of State of Rajasthan and another v. Mangat Lal Sidana (2022 SCC OnLine SC 378), their Lordships of the Supreme Court have held that if exact amount of pay and allowances to be paid 13 to the employee is to be less than the full pay and allowances, then, this exercise can be done only after notice to the employee. 14 In view of above discussion, as observed above, in the instant case, before passing the impugned order, opportunity of hearing has not been afforded to the deceased employee. Therefore, though the matter ought to have been remitted back to respondent No. 2 with direction to pass order afresh after affording due opportunity of hearing to the employee, but since the employee has died and matter relates to about 9 years prior from today, therefore, instead of remitting back the matter, it would be just and proper to grant the
Decision
relief sought for by the petitioners in Clause 10.2 of the writ petition. 15 Consequently, the impugned order (Annexure P-8) dated 4-10-2017 is set aside. Respondents are directed to make full payment to the deceased employee /his LRs. for the period of suspension (from 13- 5-2008 to 7-7-2008 and from 9-7-2008 to 10-5-2015) after deducting the subsistence allowance granted to the deceased employee during the aforesaid period within a period of 90 days from the date of receipt of copy of this order, failing which, the amount shall carry interest at the rate of 9% per annum till its actual realization. 16 17 Petition is accordingly allowed. Pending interlocutory application(s), if any, also stands disposed of. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak