High Court
Case Details
WP(C) 1728/2009 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI JUDGMENT AND ORDER (ORAL)
Legal Reasoning
Both Mrs. U Dutta, learned counsel for the petitioner and Mr. NC Das, Se nior Advocate assisted by Ms. C Sarma, learned Standing Counsel for the Board of Trustees, the Assam Tea Plantations Provident Fund and Pension Scheme are heard at length. 2. In this writ petition, the petitioner is questioning the legality of the memorandum dated 30.06.2008, issued by the respondent No. 2 regularizing the pe riod of his suspension by granting him extra ordinary leave of a total period of 675 days thereby denying him in effect his full back wages. As far as, withhold ing of Annual Increments are concerned, the memorandum in question, clearly stat ed that the stoppage of two Annual Increments had been passed through oversight and was to be treated as cancelled. It is, however, contended by the learned cou nsel for the petitioner, that the petitioner has not received the two Annual Inc rements despite the aforesaid order. Mr. NC Das, learned Senior Counsel for the respondents submits that the two Annual Increments have already been paid by the respondent authorities and the petitioner thus, no longer have any grievance to make in this behalf. Any way, this aspect of the matter will be considered late r. It may be recalled that the petitioner in the first round of litigation i.e. WP(C) No.7623/2001 had obtained the order dated 15.03.2007 to the effect that th e multiple punishment awarded to him by the disciplinary authority upon finding him guilty of the charges levelled against him was neither contemplated under no r would be authorised by the provision of the Assam Services (Discipline and App eal) Rules, 1964 ( (cid:28)the Rules (cid:29) for short). This Court, accordingly, stuck down th e punishment of stoppage of two Annual Increments with cumulative effect as impo sed by the order dated 04.01.2001 being illegal and inoperative. As for the deni al of back wages for the period of suspension, this Court after perusing FR 54-B held that the disciplinary authority was under an obligation to consider as to whether, on the totality of the facts of the case, the suspension was justified, wholly or partially, and that in that light to pass orders with regard to the e ntitlement of the petitioner to the back wages, if any. This Court further obser ved that the denial/refusal of back wages to the petitioner could not be matter of course and that too, as a measure of punishment. The respondents were, theref ore, directed to exercise the powers under FR 54-B and decide, in the light of t he punishment held to be sustainable by the order, as to how the period of suspe nsion of the petitioner was to be treated. In purported compliance with the afor esaid directions of this Court, the respondent No. 2 passed the impugned memoran dum as indicated above. Assailing the second part of the memorandum, Ms. Dutta, learned counsel for the petitioner submits that what the respondent No. 2 did in the memorandum was contrary to the direction passed by this Court inasmuch as h e did not pass the order in accordance with the Sub-Clause (5) of FR 54-B of Fun damental Rules and Subsidiary Rules inasmuch as he never afforded an opportunity of hearing to the petitioner as to the quantum of back wages being proposed to be paid to him. According to the learned counsel for the petitioner, this is the mandate of the law and by overlooking this provision, the decision of the respo ndent No. 2 suffers from the vice of non-application of mind, and the same canno t be sustained in law. The further contention of the learned counsel for the pet itioner is that when the suspension order was passed by the respondent No.3, who was not the competent authority to pass such an order, the suspension cannot be said to be justified and that the rectification made by the respondent No. 2 su bsequently cannot cure such defect of fundamental nature which could only be hel d to be a nullity. She, therefore, strenuously urges this Court to set aside the second part of the impugned memorandum and direct the respondent No. 2 to consi der the case of the petitioner afresh in accordance with Sub-Rule (5) of Rule 54 -B of the Fundamental Rules and Subsidiary Rules Countering the submission of the learned counsel for the petitioner, Mr. NC Das, learned Senior Counsel submits that the appropriate rule which is applicable to the facts of this case is Sub-Rule (1) of FR 54-B and not Sub-Rule (1) FR 52-B and, so read and understood, the impugned order regularizing the period of suspe nsion by granting extra ordinary leave was within the parameter of law and canno t be faulted with. The submission of the learned Senior Counsel is that the resp ondent No. 2 under Sub-Rule (1) of FR 54-B has the power to make a specific orde r regarding the pay and allowances to be paid to the petitioner for the period o f his suspension ending with his reinstatement and whether or nor the said perio d shall be treated as the period spent on duty, and this is exactly what the res pondent No. 2 did in the present case, which does not warrant the interference o f this Court. According to Mr. NC Das, whatever the defect in the suspension ord er on the ground that it was issued by an incompetent authority has now been cur ed by the respondent No.2, who is, admittedly, the competent authority and in th at event whatever grievance the petitioner had had been redressed and the petiti oner has no longer any legitimate grievance to make in this behalf. The further submission of the learned Senior Counsel is that in the instant case, it is an a dmitted fact that the petitioner was found guilty of the charges levelled agains t him and in that view of the matter, it cannot be said that the suspension of t he petitioner was wholly unjustified and, as such, the impugned order is perfect in order, and is not liable to be interfered with by this Court. Mr. NC Das als o submits that when the decision taken by the authority concerned is fair and re asonable, a Writ Court should be loath to be interfered with it as it does not s it in appeal over the decision of the authority concerned. Contending that the w rit petition is devoid of merit, he maintained that the writ petition is liable to be dismissed. I have given my anxious considerations to the submissions advanced by th 3. e learned counsel for the rival parties. I have also carefully gone through the materials on record. Clause (3) of FR 54-B provides that where the authority com petent to order re-instatement 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 which he would have been entitled, had he not been suspended. This clause speaks of a suspension which was wholly unju stified and if it was wholly unjustified, the petitioner would be entitled to fu ll back wages. Now, the question to be considered is whether the suspension of t he petitioner was wholly unjustified or not. As already noted earlier, the impug ned suspension order, which is at Annexure-1, was undoubtedly issued by the Assi stant PF Commissioner, Cachar Zone, Silchar. There is no dispute at the Bar that the competent authority to issue the suspension order is the respondent No. 2, namely, the Secretary-cum-PF Commissioner, Board of Trustees, the Assam Tea Plan tations Provident Fund and Pension Scheme. Of course, the respondent no. 2, real ising the mistake committed by the respondent No. 3 issue the order dated 25.02. 2000 (Annexure-2) formally approving the formal suspension order issued by the r espondent No. 3. Any order issued by issued by an authority having no competence is held to be a void order or what is usually called a nullity. It is a settled proposition of law that while a voidable order can be cured by the competent au thority, but a void order, which is otherwise a nullity, is not a curable. In th e instant case, the subsequent office order issued by the respondent No. 2 appro ving the suspension order issued by the respondent No. 3, who had no authority t o issue the suspension order, could not cure the suspension order. In any case, by approving the suspension order, the respondent No. 2 had never issued the sus pension order by himself: What he did was to approve the suspension order issued by the respondent No. 3. Approval of the suspension order cannot be equated wit h issuing the suspension order: they are separate and different transactions. In my opinion, therefore, the contention of the learned counsel for the petitioner that the suspension order being issued by an incompetent authority is a nullity and once an order is said to be a nullity, it can never be cured and it can be challenged even in a co-lateral proceeding. The contention of the learned Senior Counsel that the petitioner never challenged the suspension order at any time o n the ground that it was issued by an authority not competent to do so and, as s uch, he is barred from raising this issue, in my judgment, does not hold water f or the reasons already indicated. In the view that I have taken, the suspension of the petitioner can be said to be unjustified. Under the circumstances, the pr ovision under which the case of the petitioner ought to have been considered by the respondent No. 2 is under Clause (5) of FR 54-B and not FR 54-B (1). Since, no opportunity of hearing was given to the petitioner on the quantum of the back wages so proposed, the impugned order is illegal and cannot be sustained in law . As for the payment with respect to the two Annual Increments restored by the r espondent authorities, if the petitioner has not been really paid as contended b y the learned counsel for the petitioner, the same will be paid to him after ver ification. 4. For reasons stated in the foregoing, this writ petition is allowed. The respondent No. 2 shall now consider the quantum of back wages payable to the pet itioner in accordance with Clause (5) of FR 54-B after giving him an opportunity of hearing and thereafter take a decision thereon in accordance with law. The r espondent authorities are directed to pay the two Annual Increments due, if the petitioner has not received it, to him without further period. The entire exerci se shall be carried out by the respondent authorities within a period of 3 month s from the date of receipt of the certified copy of this order. No costs.