High Court
Case Details
WP(C) 5108/2006 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI Heard Mr. S. Chauhan, learned counsel for the Petitioner. Also heard Mr. SK. N. Mohammad, learned State Counsel appearing for the Respondents. Husband of the petitioner, namely, Dimbeswar Saharia retired from service in Feb ruary 2002 while working as Lat Mandal. He died on 30.05.2005. Pending drawal of departmental proceedings, husband of the petitioner was suspen ded with immediate effect by an order dated 01.08.1997 passed by the Deputy Comm issioner, Darrang. Charge-sheet was submitted against the husband of the petitio ner on 29.08.1997 and an enquiry was conducted with regard to the charges framed . Enquiry was conducted and thereafter, on conclusion of the enquiry, the Deputy C ommissioner, Darrang passed an order dated 19.01.1998 dismissing the husband of the petitioner from service. Basic allegations levelled against the husband of the petitioner was misusing an d over-stepping his authority in handing over advance possession of 11 bighas of V.G.R land in favour of a school without any orders from the competent authorit y and making a false entry in the chitha. Against the said order dated 19.01.1998, an Appeal was preferred before the resp ondent no. 2, who, by his order dated 30.06.1999 holding that penalty of dismiss al was very harsh, altered the penalty imposed by withholding 3 annual increment s with cumulative effect. On 29.01.2005/18.03.2005, the respondent no. 2 passed an order on the subject of clarification as regards the payment of subsistence allowances and other allowa nces to the husband of the petitioner. The relevant extract is as follows:
Legal Reasoning
(cid:28)With reference to your letter on the subject quoted above, I would like to info rm you that Sri Dimbeswar Saharia, Retd. Lot Mandal of Patharighat Revenue Circl e of your district is not entitled to the full pay and allowances during his sus pension period but to such portion thereof as may be fixed by disciplinary autho rity or appellate authority, as the case may be, in terms of FR 54(1)(4), since he was reinstated with imposition of penalty consequent upon disciplinary procee dings drawn up against him. However, the fractional pay and allowances payable to him during the per iod under suspension must not be less than the subsistence allowances already dr awn by him as per FR 53. In other words, no additional amount as pay and allowan ces is required to be paid to him as of now apart from the subsistence allowance s already paid to him. Further, in terms of FR 54 (1)(4) during the period of his dismissal wit h effect from 19.01.1998 to 29.08.1999 he will be entitled to proportionate pay and allowances not less than the subsistence allowances as admissible to him und er FR 53, as his dismissal was set aside by appellate or reviewing authority. Based on the aforesaid Order, the Deputy Commissioner, Darrang, Mangaldo i passed an Order on 21.03.2006, holding that the husband of the petitioner woul d be allowed to draw proportionate allowances not less than the subsistence allo wance already drawn. No additional amount as pay and allowances will be paid to him apart from the subsistence allowance already paid to him. It was also provid ed that the period of suspension/dismissal shall be treated as on duty for the p urpose of pension only. The petitioner has filed this writ application seeking a direction for payment o f remaining pay and allowances for the period from 01.08.1997 to 30.08.1999 i.e. the period between suspension/ dismissal to date of re-instatement. Prayer is a lso made for setting aside the orders dated 29.01.2005/18.03.2005 and 21.03.2006 . Mr. S. Chauhan, learned counsel for the petitioner, submits that the husband of the petitioner was entitled to full pay and allowances from 01.08.1997 to 30.08. 1999 by virtue of order dated 30.06.1999 under F.R. 54. It is submitted that the orders impugned were passed without issuing any show-cause notice and/or withou t hearing the petitioner’s husband and as such same are violative of the princip les of natural justice. No affidavit-in-opposition has been filed by the State respondents. However, Mr. Sk. N. Mohammad, learned State Counsel submits that though the appe llate authority did not pass any order with regard to treatment of the suspensio n/dismissal period while imposing penalty of withholding of 3 increments with cu mulative effect vide order dated 30.06.1999, subsequently, the same was cured by passing appropriate orders dated 29.01.2005/18.03.2005 and 21.03.2006. He has s ubmitted that the period of suspension/dismissal has been treated to be as on du ty for the purpose of pension. The learned counsel submits that the husband of t he petitioner had at no point of time challenged non-regularization of the said period during his life time and that the appellate authority, while passing the order dated 30.06.1999, had not interfered with the findings recorded in respect of the charges. F.R. 54 reads as follows: (cid:28)F.R. 54 (1). When a Government servant who has been dismissed, removed or compu lsorily retired is re-instated as a result of appeal or review or would have bee n so re-instated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority compet ent to order re-instatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Government servant fo r the period of his absence from duty including the period of suspension precedi ng his dismissal, removal or compulsory retirement as the case may be; (b) y. whether or not the said period shall be treated as a period spent on dut (2) Whether the authority competent to order re-instatement is of opinion th at the Government servant who had been dismissed, removed or compulsorily retire d has been fully exonerated, the Government servant shall, subject to the provis ions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or sus pended prior to such dismissal, removal or compulsory retirement as the case may be; Provided that where such authority is of 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 and after considering the represe ntation, if any, submitted by him direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), b e paid for the period of such delay, only such proportion of such pay and allowa nces as it may determine. (3) In the case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory re tirement, as the case may be, shall be treated as the period spent on duty for a ll purposes. (4) In cases other than those covered by sub-Rule (2), including cases where the order of dismissal, removal or compulsory retirement from service is set as ide by the appellate or reviewing authority solely on the ground on non-complian ce with the requirement of clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held the Government servant shall, subject to the provisions of sub-rules (6) and (7) be paid such proportion of the full pay and allowances to which he would have been entitled had he not been dismissed, r emoved or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determ ine, after giving notice to the Government servant of the quantum proposed and a fter 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 whi ch the notice has been served as may be specified in the notice. Provided that any payment under this sub-rule to a Government servant other than a Government servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of three years immediately preceding the date on which orders for re-instatement of such Government servan t are passed by the appellate authority or reviewing authority, or immediately p receding the date of retirement on superannuation of such Government servant as the case may be. (5) In the case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsor y retirement, as the case may be, shall not be treated as period spend on duty, unless the competent authority specifically direct that it shall be so treated f or any specified purpose; Provided that if the Government servant so desires such authority may di rect that the period of absence from duty including the period of suspension pre ceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servan t. (6) bject to all other conditions under which such allowances are admissible. The payment of allowances under sub-rule (2) of sub-rule (4) shall be su (7) The proportion of the full pay and allowances determined under the provi so to sub-rule (2) or under sub-rule (2) shall not be less than the subsistence allowance and other allowances admissible under Rule 53. (8) Any payment made under this rule to Government servant on his re-instate ment shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of removal, dismissal or compul sory retirement, as the case may be, and the date of re-instatement. Where the e mployments admissible under this rule are equal to or less than the amounts earn ed during the employment elsewhere, nothing shall be paid to the Government serv ant. From a perusal of the aforesaid provisions, it would appear that the authority c ompetent to order re-instatement must pass a specific order regarding the pay an d allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be and also indicating whether or not the said period can be treated as on duty. F.R. 54(4) provides that in cases other than those covered by sub-rule 2, such o rder is to be passed after giving notice to the Government servant. It would be apparent from the discussions above that the husband of the petitio ner was not fully exonerated and therefore provisions contained in F.R. 54(2) wi ll not be applicable to the petitioner’s husband. It is true that the appellate authority was remiss in not passing an appropriate order at the time of re-instatement, regulating the suspension/ dismissal perio d. Belatedly though, the same has been sought to be regularised in the manner no ticed above. Mr. Chauhan, however, is correct in submitting that F.R. 54(4) requ ires giving of notice to the Government servant before an order is passed regula ting the period of suspension/dismissal etc. in the event of re-instatement. Though Mr. Chauhan submits that the impugned orders are liable to be quashed onl y on the ground of infraction of F.R. 54(4) for not giving opportunity of hearin g to the husband of the petitioner, I am unable to accept the submission. More often than not, in case any order is set aside on the ground of violation o f principles of natural justice, liberty is granted to the authorities to re-con sider the matter by following the principles of natural justice, if so advised. As the petitioner is no more, the matter cannot also be sent back for fresh cons ideration by the authority after affording opportunity of hearing to the petitio
Decision
ner. Principles of natural justice cannot be put in a straight-jacket formula and wat er-tight compartment. This Court cannot be oblivious of the fact that the husban d of the petitioner had, at no point of time, as it appears from the material on record, made any demand for pay and allowances for the aforesaid period. It is also noticed that the husband of the petitioner was not exonerated and only the quantum of punishment was altered. Considering the matter in its entirety and particularly taking note of the fact that payment for the period of suspension/dismissal was not demanded by the husb and of the petitioner, even after his retirement in 2002, I am not inclined to e xercise the extra-ordinary, equitable and discretionary jurisdiction of this Cou rt under Article 226 of the Constitution of India to grant the relief as prayed for at this point of time. Accordingly, the petition is dismissed. No cost.