High Court · 2009

The petitioner who was the Head Pandit of Umswai Lalung L.P. Sch ool in the district of Karbi Anglong, by the present petition has challenged the conditional order of reinstatement dated 16.02.2001 issued by the District Prim ary Education Officer, Karbi Anglong Autonomous Council, Diphu, restricting his pay to the amount which he has already received during the period of suspension and giving him warning not to repeat the same practice in future.

2. The petitioner while serving as the Head Pandit of the said scho ol, was placed under suspension vide order dated 15.10.1990 by the Secretary, Pr imary Education Board of the District Council, with immediate effect, pending dr awal of departmental proceeding in due course. A show-cause notice was thereafte r issued to the petitioner on 05.01.1991 under the provisions of Assam Services (Discipline & Appeal) Rules, 1964 asking him to show-cause as to why disciplinar y action shall not be taken against him for his misconduct for unauthorized abse nce from duty, disobedience to the orders of the authority and dereliction of du ty. The petitioner accordingly on 10.01.1991 submitted his reply. The authority thereafter decided to hold a departmental proceedi 3. ng against the petitioner and accordingly an Inquiry Officer was appointed to en quire the charges leveled against him, who during the course of enquiry recorded the statement of the petitioner and without submitting any report has made an e ndorsement on such statement on 28.11.1996 and forwarded the same to the discipl inary authority for taking necessary action. A decision was thereafter taken for terminating the petitioner from service on 16.10.1998. Thereafter another show- cause notice was issued by the Primary Education Officer of the Council on 29.10 .1998 giving him further opportunity to defend himself indicating that the autho rity has taken a decision to discharge him from service, having not satisfied wi th the reply submitted by him against the charge memo issued. The petitioner sub mitted his reply on 04.12.1998. Since no further action has been taken, the peti tioner on 26.10.1999 filed an application praying for reinstatement in service a nd also to pay the subsistence allowance from the date of his suspension, allegi ng non-payment of the same. The writ petition being W.P.(C) No.5727 of 1999 was thereafter filed by the petitioner challenging the order of suspension and also praying for releasing the subsistence allowance, wherein an interim direction wa s passed on 19.11.1999 to pay the subsistence allowance to the petitioner, if no t already paid, which has accordingly been paid on 14.03.2000. The respondent au thorities thereafter pass the order dated 16.02.2001 with the aforesaid conditio ns and hence the present writ petition.

4. I have heard Mr. P.J. Phukan, the learned counsel for the petiti oner as well as Mr. A.K. Goswami, the learned Sr. counsel appearing on behalf of respondent Nos.2, 3, 4 and 5. None appears for the respondent No.1.

5. Mr. Phukan, the learned counsel for the petitioner referring to the conditional order of reinstatement dated 16.02.2001 has submitted that the a uthority by the said order has restricted the pay of the petitioner to the salar y already drawn during the period of suspension upon his reinstatement, without affording him any opportunity as required under Rule 54B of the Fundamental Rule s. According to Mr. Phukan the authority having passed the order dated 16.02.200 1 reinstating the petitioner in service, without inflicting any punishment, as s tipulated in Rule 7 of the 1964 Rules, cannot restrict the pay of the petitioner to the salary already drawn during the period of suspension, the proceeding hav ing not been delayed because of the fault of the petitioner. Mr. Phukan further submits that pursuant to the order of reinstatement, he has joined and has retir ed from service on attaining the age of superannuation in the month of September 2002 and therefore, the respondents may be directed to pay the balance 50% of h is salary which has been withheld from payment for the period of suspension.

6. Mr. Goswami, the learned Sr. counsel appearing on behalf of the respondent Nos.2 to 5 referring to the affidavit-in-opposition filed by the said respondents and also the records produced before this court has submitted that the petitioner, in fact, in his written statement filed on 10.01.1991 as well as in his statement before the Inquiry Officer on 28.11.1996 has admitted the char ges leveled against him and therefore, the authority initially took a decision t o discharge him from service, however, subsequently changed such decision and ha s decided to pass the conditional order of reinstatement dated 16.02.2001, after giving him a further opportunity to show-cause why he should not be discharged from service. According to Mr. Goswami the requirement of issuing a notice under FR 54B of the Fundamental Rules has in fact substantially been complied with by issuing the notice on 29.10.1998 and therefore, the petitioner is not entitled to a further opportunity of showing cause.

7. Admittedly, the petitioner has retired from service on attaining the age of superannuation in the month of September, 2002. Therefore, the griev ance relating to the conditional order of reinstatement presently relates to the limiting the pay of the petitioner to the subsistence allowance already drawn. F.R. 54-B(1) empowers the competent authority to pass specific o 8. rder - (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retir ement on superannuation, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty, upon his reinstatement in ser vice. Sub-Rule (3) of F.R. 54-B provides that where the authority competent to o rder reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be pai d the full pay and allowances which he would have been entitled, had he not been suspended. Proviso to said sub-rule requires the competent authority to give th e Government servant an opportunity to make representation when such authority i s of the opinion that the termination of the proceeding instituted against such Government servant had been delayed due to reasons directly attributable to him, before passing any order withholding payment of any proportion of such pay and allowances as may be determined. Sub-Rule (5) also requires the competent author ity to give a notice to the Government servant of the quantum proposed to be wit hheld from the salary on his reinstatement in the service and consideration of t he representation, if any, filed by him before passing any order to that effect.

9. A Division Bench of this court in Achinta Datta versus the State of Tripura and others, reported in (1998)2 GLT 447 upon consideration of the pr ovision contained in F.R. 54-B has held that before restricting the pay of a Gov ernment servant to the pay already drawn, on his reinstatement, a show-cause not ice is required to be issued giving such Government servant an opportunity to ma ke his representation.

10. In the instant case, from the facts narrated above, it is eviden t that though the authority at one point of time decided to discharge the petiti oner from service but it has changed its mind and has decided to reinstate him i n service without inflicting any punishment and accordingly by order dated 16.02 .2001 the petitioner has been reinstated in service. But at the same time has im posed a condition restricting his pay to the subsistence allowance already drawn during the period of suspension, that too without affording any opportunities a s required under F.R. 54-B. The contention of the learned Sr. counsel for the re spondent Nos.2 to 5 is that there is substantial compliance of Rules 54-B, in vi ew of the second show-cause dated 29.10.1998, cannot be accepted, in view of the aforesaid fact situation and also the requirement of the F.R. 54-B for issuance of a notice before passing such order, which admittedly has not been done in th e case in hand.

11. In view of the above, conditions imposed in the order of reinsta tement dated 16.02.2001 restricting the pay of the petitioner during the period of suspension to the subsistence allowance already drawn is set aside. The respo ndent authorities are directed to release the 50% of the pay and allowances whic h has been withheld from payment to the petitioner. The petitioner shall be paid all dues which is payable to him by taking the period of suspension as on duty for all purposes. Such payment shall be made within a period of 4(four) months f rom today.

12. Cost. The writ petition is accordingly allowed as indicated above. No