G. Vani v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.12.2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K.K. SASIDHARANWRIT PETITION NO.42130 OF 2006G. Vani.. PetitionerVs.The Registrar,High Court,Chennai. .. RespondentPetition filed under Article 226 of the Constitution of India for theissuance of Writ of Mandamus directing the respondent to pay the pensionbenefits with interest at 12% per annum from 8.8.2000 onwards to thepetitioner.For Petitioner: Mr.R. SubramanianFor Respondent: Mr.L.S.M. Hasan Fizal Government AdvocateO R D E R(Order of the Court was made by P.K. MISRA, J)Heard Mr.R. Subramanian for the Petitioner and Mr.L.S.M. HasanFizal, Government Advocate, for the Respondent.2. The question in this writ petition relates to payment ofpension to the family members of the deceased employee, who was working inthe State Judiciary. During his tenure in service, a disciplinaryproceedings had been initiated and some of the charges against him hadbeen found to be proved. Ultimately, the High Court on its administrativeside passed an order of removal from service. Such order of removal waschallenged by the Officer concerned by filing W.P.No.1832 of 1986. During https://hcservices.ecourts.gov.in/hcservices/ pendeny of such writ petition, the officer expired on 17.12.1995 and thelegal representatives were brought on record. Subsequently, by orderdated 17.3.1999, the High Court in its judicial side had observed that noorder of removal could have been passed by the High Court on itsadministrative side as the order could have been passed only by theappointing authority, namely, the Governor. Thus, setting aside the orderof removal from service, the High Court remitted the matter to the HighCourt in its administrative side to consider as to what further action hasto be taken in the disciplinary proceedings. Thereafter, the High Courtin its administrative side, passed an order on 8.8.2000 to the followingeffect :"(8) Accordingly it is ordered as follows :-(i) The period of suspension of Thiru V. Ganapathy,formerly Sub Judge, Nagapattinam, now expired, shall be deemedto have continued upto the date of his retirement i.e. 31.3.91had he been continued in service.(ii) The period from 14.10.77 the date on which he wasplaced under suspension, till 31.3.91, the date of hissuperannuation, is treated as SUSPENSION and he be deemed tohave retired from service on 31.3.91 A.N. on attaining the ageof superannuation.(iii) Thiru.V. Ganapathi, formerly Sub Judge, Nagapattinamnow expired is entitled for all eligible retiral and pensionarybenefits and now since he is not alive, the legal heirs of thesaid deceased officer are entitled to receive those benefits."2.1 Thereafter, the legal representatives of the deceased employeefiled W.P.No.4735 of 2001. The writ petition was dismissed by observing :-"3. The action so taken safeguards the right of the familyof the deceased to receive such pensionary benefits as thedeceased would have been entitled to as he has been deemed tohave been retired from service on 31/03/1991 on attaining theage of superannuation. The resolution made it abundantly clearby stating that "in view of the above it is further resolvedthat officer is entitled for all eligible retiral and pensionarybenefits and now since he is not alive, the legal heirs of theofficer are entitled to receive those benefits".4. Counsel however contends that though the family does notmake any claim for any arrears of salary nor they are interestedin claiming that the deceased should be treated as in servicetill the date of his retirement, they are concerned about thatpart of the resolution which says that he shall be deemed tohave been kept under suspension till the date of retirement. https://hcservices.ecourts.gov.in/hcservices/

5. Counsel says that the word suspension casts stigma. Wedo not see any substance in the complaint made. The petitioneris merely fighting an imaginary ghost. The resolution passed inthe manner it has been done, is only intended to enable thefamily to receive the pensionary benefits and the order deeminghim to be under suspension and putting that suspension to an endon the date of his superannuation was only meant to protect theretiral benefits which will accrue by treating him as havingretired on 31/3/1991. Admittedly, during the period from thedate of suspension till the date of retirement, he had notworked. During his life time he must have received thesubsistence allowance so long as the period of suspensioncontinued. We find no merit in the petition."2.2 Subsequently, since the matter relating to payment of pension hadnot been finalised for a long period, the family members of the deceasedemployee have filed the present writ petition for a direction directingthe respondent to pay family pension with 12% interest. During pendencyof such writ petition, it appears that by order dated 1.12.2006, pensionappears to have been fixed at Rs.678/- per month. However, it is statedby the counsel for the respondent that thereafter the petitioner has notapproached the Office to complete other formalities. In course ofhearing, learned counsel for the respondent on instructions further statedthat, while calculating the pension payable, the period during which thedeceased employee was deemed to be under suspension has not been countedtowards service. 3. In normal course, in the writ petition praying for issuingwrit of mandamus, we would have simply disposed of the matter by observingthat the petitioners can receive the amount under protest and challengethe order relating to calculation of pension. However, we find that thematter has remained pending for a long period, even though the officerconcerned has died more than 18 years back and it would be travesty ofjustice if the matter would not be finalised at this stage. 4. Chapter VIII of the Fundamental Rules contains variousprovisions relating to Dismissal, Removal and Suspension. Rule 53contains various provisions relating to payment of subsistence allowanceduring the period of suspension. Rule 54(1) envisages that (1) when adismissed Government servant is reinstated as a result of appeal orreview, the authority competent to order reinstatement shall consider andmake a specific order regarding the pay and allowances to be paid for theperiod of absence from the duty including the period of suspensionpreceding the order of dismissal and (2) whether or not the said periodshall be treated as a period spent on duty. https://hcservices.ecourts.gov.in/hcservices/ Rule 54-A, on the other hand, envisages consequences where thedismissal is set aside by a court of law. As per Rule 54-A, wheredismissal is set aside by a court of law and the Government servant isreinstated without holding any further enquiry, the period of absence fromduty shall be regularized and the Government servant shall be paid pay andallowances in accordance with the provisions of sub-rule (2) or (3) ofRule 54-A. The above thing, however, is subject to the direction of theCourt, if any.Under Rule 54-A.(2), if the dismissal is set aside on the ground ofnon-compliance of Article 311(2) of the Constitution and the Governmentservant is not exonerated on merits, such person shall be paid such amountas would be determined by the competent authority. Under Rule 54-A(3), ifthe dismissal is set aside by the court on merit, such person shall bepaid the entire amount which he would have received but for the order ofdismissal and such period is required to be treated as duty for allpurposes.5. Rule 54-B-1(1),(2) and(3) being relevant, are extracted inextenso:“54-B-1.(1) When a Government servant who has been suspendedis reinstated or would have been so reinstated but for hisretirement on superannuation or compulsory retirement while undersuspension, the authority competent to order reinstatement shallconsider and make a specific order-(a) regarding the pay and allowances to be paid to theGovernment servant for the period of suspension ending withreinstatement or the date of his retirement on superannuation orcompulsory retirement, as the case may be; and(b) whether or not the said period shall be treated as aperiod spent on duty.(2) Notwithstanding anything contained in rule 53, where aGovernment servant under suspension dies before the disciplinaryor the 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 bepaid the full pay and allowances for that period to which hewould have been entitled had he not been suspended, subject toadjustment in respect of subsistence allowance already paid. https://hcservices.ecourts.gov.in/hcservices/ (3) Where the authority competent to order reinstatement isof the opinion that the suspension was wholly unjustified, theGovernment servant shall, subject to the provisions of sub-rule(8), be paid the full pay and allowances to which he would havebeen entitled, had he not been suspended:Provided that where such authority is of the opinion thatthe termination of the proceedings instituted against theGovernment servant had been delayed due to reasons directlyattributable to the government servant, it may, after giving himan opportunity to make his representation (within sixty days fromthe date on which the communication in this regard is served onhim) and after considering the representation, if any, submittedby him, direct, for reasons to be recorded in writing, that theGovernment servant shall be paid for the period of such delayonly such amount (not being the whole) of such pay and allowancesas it may determine.” 6. Learned counsel for the petitioner has contended that, inview of Rule 54-B-1(2) of the Fundamental Rules, since the disciplinaryproceedings had not been concluded and the officer concerned died beforesuch disciplinary proceedings, the family members were entitled to fullpay and allowances for that period to which the employee would have beenentitled had he had not been suspended, subject to adjustment ofsubsistence allowance already paid. In this context, learned counsel forthe petitioner submitted that even though as per Rule 54-B(2) entiresalary should have been paid, in view of the earlier decision of the HighCourt, obviously such amount has not been paid. However, that does notmean that the entire period should not be counted for the purpose ofcalculating pension. Learned counsel for the petitioner further submittedthat as a matter of fact on a reading of the decision of the DivisionBench in WP.No.4735 of 2001, it would be apparent that the court actuallyintended that the persons concerned would be entitled to receive theentire pension and the only thing is that they would be deprived of thesalary for that period.7. We find sufficient force in the above submissions. Adepartmental proceeding is deemed to be pending until it culminates inimposition of punishment or exoneration, as the case may be. Obviouslysuch order of punishment or exoneration has to be passed by a competentauthority. Since the order of punishment was found to be invalid havingbeen passed by an authority not competent to pass such order, it must betaken that such order of punishment was non est in the eye of law. [Inthis connection, reference can be made to the decision of the SupremeCourt in AIR 1976 SC 1899 (BARADAKANTA MISHRA v. HIGH COURT OF ORISSA ANDANOTHER)]. Thus, it must be taken that the departmental proceedings hadnot been finalised during the life time of the concerned officer. Rule54-B-1(2) is a specific provision applicable to such a case. https://hcservices.ecourts.gov.in/hcservices/

8. Having regard to the facts and circumstances of the case, wefeel interest of justice would be served by disposing of the writ petitionin the following manner :-(i) During the period in which the petitioner was suspended till hisdeemed date of retirement i.e., 31.3.1991, no salary would be payable.However, such entire period has to be taken into account for the purposeof calculating pension and other retirement benefits.(ii) The respondent is to recalculate the pension payable by takinginto account the entire period as the part of service and finalise thematter relating to payment of pension as expeditiously as possiblepreferably within a period of four months from the date of receipt of thisorder.9. With the above directions, the writ petition is disposed of.No costs.dpkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Registrar General, High Court, Madras.2. The Special Officer (Liaison), High Court, Madras+1 cc to Mr.R.Subramanian, Advocate Sr.No.72908.SKV(CO)DCP/10.1 WP.NO.42130/2006