High Court
Case Details
WP(C) 2497/2012 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER (ORAL) Heard Mr. S. Ali, learned counsel for the petitioner and Ms. A.Verma, le arned Standing counsel, Health Department, Government of Assam for the responden ts. By way of this petition under Article 226 of the Constitution of India, 2. petitioner seeks a direction to the respondents to treat the period of his suspe nsion i.e. from 09.03.2001 to 03.07.2007 as period spent on duty and to pay him full salary and allowances for the said period. 3. Case of the petitioner is that he is a medical practitioner by professio n. He joined medical service under the Government of Assam in the Health and Fam ily Welfare (A) Department as Medical and Health Officer. While serving as Senio r Medical and Health Officer in the Dhubri Civil Hospital, Dhubri, petitioner wa s arrested in connection with Dhubri P.S. Case No. 52/2001 under Section 376 IPC and detained in jail custody for more than 48 hours. In contemplation of discip linary proceeding and considering his arrest and detention in jail custody beyon d 48 hours, petitioner was placed under suspension with effect from the date of his arrest i.e. 09.03.2001 vide the Government notification dated 17.03.2001. 4. However, no disciplinary proceeding was drawn up against the petitioner. In the meanwhile, he was released from custody. Petitioner submitted applicatio n before the Secretary to the Government of Assam, Health and Family Welfare (A) Department on 15.10.2001 seeking reinstatement in service. But there was no res ponse. The respondents also did not carry out any review of petitioner’s suspens ion though they were required to do so as per Government instructions. 5. The criminal case against the petitioner went upto trial as a sessions c ase, being Sessions Case No. 72/2001 under Section 376/201 IPC. Learned Addition al Sessions Judge, Dhubri by judgment and order dated 10.05.2002 acquitted the p etitioner of the charge under Section 376/201 IPC. However, the learned trial Co urt convicted the petitioner under Section 354 IPC and sentenced him to pay a fi ne of Rs. 5000/-, in default, to suffer Rigorous Imprisonment (RI) for 3 (three) months. 6.
Legal Reasoning
Aggrieved by the aforesaid conviction and sentence, petitioner preferred an appeal before this Court, which was registered as Criminal Appeal No. 218/20 02. This Court by the judgment and order dated 27.03.2007 allowed the appeal and set aside the order of conviction and sentence. This Court held that there was not even an iota of material suggesting any outraging of modesty of the informan t (PW2). Taking the view that the impugned conviction was by way of conjectures and surmises, this Court acquitted the petitioner and set him at liberty. 7. Petitioner thereafter submitted a representation before the Secretary on 20.04.2007 to rescind the suspension order dated 17.03.2001 and to reinstate hi m in service. 8. Government of Assam in the Health and Family Welfare (A) Department i.e. respondent No. 1 issued notification dated 03.07.2007 reinstating the petitione r in service with immediate effect and posting him as Senior Medical and Health Officer at Hailakandi Civil Hospital, Hailakandi. Following the same, petitioner joined as Senior Medical and Health Officer, Hailakandi Civil Hospital on 01.10 .2007. 9. Respondent No. 1 passed an order dated 11.10.2007 stating that since the petitioner has been acquitted by the High Court and set at liberty, the Governo r of Assam is pleased to close the departmental proceeding contemplated against him. It was further ordered that the period of suspension may be regularized by granting leave / extra ordinary leave as due to the petitioner. Subsequently, on a request by the Health Department, Government of Assam vide letter dated 03.03 .2008, the office of the Accountant General (A&E), Assam submitted leave admissi Aggrieved, petitioner has filed the present application seeking the reli bility report dated 23.06.2008 in respect of the petitioner. It was certified th at petitioner had earned leave for 180 days and half pay leave for 320 days to h is credit as on 09.03.2001. Petitioner submitted representation dated 19.05.2008 before the responde 10. nt No. 1 requesting the said authority to treat his period of suspension as on d uty and to pay him his pay and allowances for the said period. As there was no r esponse, petitioner submitted a number of representations subsequently. But agai n without any success. 11. ef(s) as indicated above. 12. Contention of the petitioner is that under FR 54-B, it was incumbent upo n the State to have specifically dealt with the issue relating to pay and allowa nces to be paid to him for the period of his suspension and also as to whether t he said period should be treated as a period spent on duty. Respondent No. 1 bei ng the competent authority was required to consider the above and to pass specif ic order in this regard. No such specific order has been passed in the case of t he petitioner. The impugned order has prejudicially affected the petitioner in a s much as it will result in exhaustion of all his leave thereby depriving him th e benefit of leave encashment at the time of his superannuation. This amounts to imposition of penalty indirectly. Since petitioner was placed under suspension following his arrest in a criminal case, which finally ended in his acquittal an d no departmental proceeding having been drawn up independently, petitioner’s pe riod of suspension is required to be treated as a period spend on duty and the p etitioner is entitled to full pay and allowances for the said period. Petitioner ’s representation having gone unresponded, the Court should intervene in the mat ter and pass appropriate order(s) to remedy the situation. 13. Though notice was issued by this Court on 24.05.2012, no counter affidav it has been filed by the respondents despite several opportunities being granted . As learned counsel for the petitioner expressed urgency in the matter in view of the impending superannuation of the petitioner, case was heard on 30.04.2013 and judgment is delivered today. 14. Learned counsel for the petitioner has referred to FR 54-B and he submit s that when a Government servant who was suspended and subsequently reinstated, the competent authority to order reinstatement is required to consider and make specific order regarding the pay and allowances to be paid to the Government ser vant for the period of suspension ending with reinstatement and as to whether th e said period should be treated as a period spent on duty. If the suspension is considered unjustified, the Government servant is required to be paid the full p ay and allowances which he would have been entitled to had it not been for the s uspension. In such a case, the period of suspension should be treated as a perio d spent on duty. Learned counsel for the petitioner submits that there was no co nsideration by the competent authority on the above aspect of the matter and no specific order was passed. On the contrary, by the impugned order, the suspensio n period has been regularized by granting leave / extra ordinary leave as due to the petitioner. This will have two implications. Firstly, all the leave to the credit of the petitioner would stand exhausted, thereby depriving him from the b enefit of leave encashment and secondly, as per the leave admissibility report s ubmitted by the office of the Accountant General, petitioner does not have adequ ate leave to cover the entire period of suspension, thereby raising a serious qu estion mark over regularization of the suspension period. Learned counsel for th e petitioner has placed reliance on the following decisions- (2011) 3 GLR 258 Dulal Chandra Baidya -vs- Tripura State Electricity Corporation Ltd and Others 2011 (4) GLT 361 Asir Ali Laskar -vs- State of Meghalaya and Another (2012) 3 GLR 106 Minati Das and Others -vs- State of Tripura and Others. 15. Learned Standing counsel on the other hand supports the impugned order d ated 11.10.2007, but fairly submits that the Court may consider the validity of the said order on the touchstone of FR 54-B. Submissions made have been considered. 16. Facts in this case are not in dispute. Petitioner was suspended followin 17. g his arrest in a criminal case. The criminal case finally ended in acquittal of the petitioner whereafter he was reinstated in service. The suspension period o f the petitioner was from 09.03.2001 to 03.07.2007. Though in the order of suspe nsion, it was stated that disciplinary proceeding was contemplated, no such disc iplinary proceeding was instituted against the petitioner. Therefore, the decisi on recorded in the impugned order dated 11.10.2007 that the disciplinary proceed ing contemplated against the petitioner stood closed does not reflect the correc t position as in the absence of initiation of any departmental proceeding, closu re of the same does not arise. As a matter of fact, what it conveys is that the State has decided not to have any departmental proceeding against the petitioner . 18. The question, therefore, arises is as to how the period of suspension is to be treated. 19. FR 54-B deals with such a situation. FR 54-B (1), (3) and (4), which are relevant for the present purpose, are quoted hereunder:- (cid:28)F.R. 54-B. (1) When a Government servant who has been suspende d is reinstated or would have been so reinstated but for his perannuation while under suspension, the authority tatement shall consider and make a specific order- retirement on su competent to order reins (a) (b) regarding the pay and allowances to be paid to the Govern- ment servant for the period of suspension ending with rein- statement or the date of his retirement on superannuation, as the case may be; and whether or not the said period shall be treated as a period spent on duty. * * * * 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 (3) * * * * which he would have been entitled, had he not been suspended. Provided that where such authority is of the opinion that the terminatio n of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after he aring the representation, if any submitted by him, direct for reasons to be reco rded in writing that the Government servant shall be paid for the period of such delay only such proportion of such pay and allowances as it may determine. (4) In a case falling under sub-rule (3) the period of suspension sh all be treated as a period spent on duty for all purposes. (cid:29) 20. As already noticed, there was no consideration by the competent authorit y and consequently, no specific order was passed on the above aspect of the matt er. As noticed above, the competent authority vide the impugned order has regula rized the suspension period by granting leave / extra ordinary leave as due to t he petitioner. As rightly pointed out by the petitioner, such decision of the co mpetent authority would prejudicially affect the petitioner in as much as it wou ld lead to complete exhaustion of the petitioner’s leave to his credit and there by deprive him of the benefit of leave encashment to which a Government servant is entitled to on his superannuation. Thus, the above order entails adverse civi l consequences on the petitioner. In such circumstances, it was incumbent upon t he competent authority, in this case, respondent No.1, to have afforded an oppor tunity of hearing to the petitioner before passing of the impugned order. There was thus duty to hear the petitioner under FR 54-B before any prejudicial order was passed against him. Petitioner having not been imposed any penalty following a departmental 21. proceeding and having been acquitted in the criminal proceeding, with the sequen ce of events clearly demonstrating that the delay in the closure of the departme ntal proceeding cannot be attributed to the petitioner, it would be just and pro per if the period of suspension is treated to have been spent on duty and full p ay and allowances is paid for the said period. As noticed above, the respondents , more particularly respondent No. 1, have failed to discharge their duty as per the requirement of FR 54-B. In such circumstances, the Court is of the view tha t the decision of the respondents to regularize the period of suspension by gran ting leave / extra ordinary leave is not justified. Accordingly, this writ petition is allowed by quashing that portion of t 22. he order dated 11.10.2007 regularizing the suspension period of the petitioner b y way of granting leave / extra ordinary leave. The State respondents shall now treat the period of suspension of the petitioner as period spent on duty for all purposes and pay the salary and allowances for the said period to the petitione r after deduction of the subsistence allowance already paid. 23. 24. Writ petition is allowed. No cost.