Udai Pratap Singh … v. 1. The State of Jharkhand. 2. 3. The Commissioner, Palamau. The Director, Primary Education
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 907 of 2021 Udai Pratap Singh … … Petitioner Versus 1. The State of Jharkhand. 2. 3. The Commissioner, Palamau. The Director, Primary Education, Department of Schooling and Literacy, Government of Jharkhand, Ranchi. The District Superintendent of Education, Latehar. 4. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : For the Petitioner Mr. Saurav Arun, Advocate Mr. Lal Vikram Nath Shahdeo, Advocate For the Respondent-State : Mr. Ashok Kumar Yadav, Sr.SC-I Mr. Ranjan Kumar, AC to Sr.SC-I 11/ 15.01.2024 Heard the learned counsel for the parties. ------ 2. The petitioner has approached this Court with a prayer for quashing of the order contained in Memo No. 1855 dated 21.10.2016 by which the respondent no. 4, pursuant to order passed by this Court in W.P.(S) No. 5315 of 2009 has decided to give retirement benefits to the petitioner counting the service from the date of appointment i.e. 31.8.1974 till the date of revocation of suspension i.e. 16.12.2004. The petitioner has also prayed for a direction commanding upon the respondents to pay all pensionery benefits to the petitioner including pension, gratuity, leave encashment and arrears of salary for the entire service rendered by him. Factual Matrix 3. The facts as delineated from the writ petition are that the petitioner was appointed as Assistant Teacher on 31.8.1974. While he was posted as In-charge Headmaster in the Middle School, Pindarcom, Balumath, Latehar, he was put under suspension on 2.9.1995 for non-joining at the place of transfer. It is the case of the petitioner that he was never intimated for participating in the departmental proceeding nor he was informed regarding appointment of the inquiry officer and straightway, the punishment order has been issued to him on 16.12.2004, by which, his suspension was revoked and it was held that the petitioner is not entitled for anything than what he has been paid as subsistence allowance during the period of suspension and one increment with cumulative effect has been withheld. It is further case of the petitioner that after revocation of suspension, he gave his 2 joining before the District Superintendent of Education, Latehar on 12.3.2005 and the same was also received on the same day itself. Thereafter, the petitioner several times represented the Department with a request to pay full salary for the period of suspension and the reasons for non-joining at the transferred place. Thereafter, the Director, Primary Education advised the petitioner to file appeal vide memo no. 277 dated 4.2.2008, which the petitioner duly filed on 27.3.2008. When nothing was drawn to the grievance of the petitioner, he moved this Court in W.P.(S) No. 5315 of 2009 for
Facts
quashing of the order dated 16.12.2004. This Court after hearing the parties has been pleased to quash and set aside the impugned order dated 16.12.2004, on the ground that since the respondents had imposed the penalty of stoppage of one increment with cumulative effect, which is a major punishment and when major punishment has been inflicted, the cardinal principle of natural justice ought to have been followed. This Court also observed that Rule 97 of the Jharkhand Service Code is applicable in this case. With the aforesaid observations, the matter was remitted back to the respondents to pass fresh order in accordance with law. It is specific case of the petitioner that in spite of his joining in the office of District Superintendent of Education, Latehar on 12.3.2005, he was never allowed to join the school and ultimately, he retired on 31.7.2010. However, pursuant to the order passed in W.P.(S) No. 5315 of 2009, the respondents have passed the order contained in Memo No. 1855 dated 21.10.2016 which is impugned in the present writ petition whereby it was concluded that the petitioner is only entitled for retirement benefits from the date of appointment till the date of revocation of suspension. Thereafter, the petitioner made a representation to the respondents on 17.7.2010 for payment of remaining dues and for calculation of entire service for the purpose of pension and other benefits, but the same yielded no fruitful result and hence, this writ petition. 4. A counter affidavit has been filed on behalf of the respondents stating therein that a charge-sheet contained in Prapatra-Ka was framed by the District Superintendent of Education, Palamau (now Latehar district) vide memo no. 186 dated 21.1.1997 for the alleged charge of non-joining at the transferred place by the petitioner. The Range Education Officer, Latehar after enquiring into the matter submitted his enquiry report by letter no. 155 dated 11.3.1997 to the effect that charge levelled against the petitioner is 3 proved. Thereafter, second show cause notice was issued on 2.5.1997, but the petitioner did not gave his response, though he had received the second show cause on 5.2.1998. Thereafter, another letter was issued by the District Superintendent of Education by letter no. 1971 dated 15.7.2000, which was received by the petitioner on 29.7.2000 and in turn, the petitioner replied the same on 1.8.2000. Having found the reply of the petitioner unsatisfactory, the punishment order dated 16.12.2004 has been passed, whereby his suspension was revoked. Thereafter, the petitioner submitted his joining in the office of District Superintendent of Education, Latehar and in turn, the petitioner was directed to join the concerned school by office order contained in memo no. 939 dated 15.9.2005. A departmental proceeding was initiated by framing charge-sheet contained in memo no. 1555 dated 8.11.2006 for non-joining of the school and thereby disobeying the order of his higher authority. Instead of complying the order of the higher authorities, the
Legal Reasoning
petitioner moved this Court in W.P.(S) No. 5315 of 2009 and in the light of the order passed therein, the impugned order contained in memo no. 1855 dated 21.10.2016 has been passed after the petitioner retired from service on 31.7.2010. Arguments advanced by learned counsel for petitioner 5. Mr. Saurav Arun, learned counsel for the petitioner assiduously argues that the impugned order dated 21.10.2016 is not tenable in the eyes of law for the simple reason that while passing the impugned order, the respondents have not at all considered Rule 97 of the Jharkhand Service Code, which provides that where a Government servant is suspended, the authority competent to order the reinstatement has to consider and make a specific order regarding the pay and allowance for the period of absence from duty. Learned counsel submits that in the present case, the respondents have totally ignored the provisions enshrined in the Jharkhand Service Code, which governs the field of service conditions of the petitioner. Learned counsel submits that it was the requirement under Rule 97 that the respondents ought to have taken a decision with respect to the period of suspension as to how the period of suspension should be treated and whether it is liable to be treated as period spent on duty and then a decision may be taken on the pay and allowance, when he was directed to be reinstated in service, on the direction of this Court in W.P.(S) No. 5315 of 2009 after 4 setting aside the punishment order. Learned counsel further submits that admittedly the petitioner was put under suspension on 2.9.1995 and he was reinstated in service by revoking his suspension only on 16.12.2004. As such, the respondents ought to have considered the case of the petitioner in right perspective and pass an order for full salary and allowance during the suspension period. To fortify his arguments, learned counsel places heavy reliance upon the decisions of the Hon’ble Apex Court in the case of State of Jharkhand & Anr. Vs. Amresh Narayan Sinha, reported in (2020) 14 SCC 411 : 2019(3) JLJR 315 (SC), as also in the case of Manzoor Ahmed Mazumdar Vs. State of Meghalaya & Ors., reported in (1997) 1 SCC 374. 6. Learned counsel further submits even otherwise, the petitioner is entitled for full pay and allowance for the suspension period on the ground that the departmental proceeding continued for a long period i.e. more than nine years and the same was conducted in a very perfunctory manner and without affording any opportunity of hearing to the petitioner and without serving any enquiry report. He further submits that considering the serious infirmities in the departmental proceeding, the punishment order dated 16.12.2004 was quashed and set aside with direction to the respondents to take a fresh decision. Learned counsel further submits that in earlier round of litigation, this Court has also observed that Rule 97 of the Code is applicable in this case and in absence of any order, the matter was remitted back to the respondents. Learned counsel further submits that again the respondents by the impugned order, which is challenged in the present writ petition, have not considered the very object of Rule 97 of the Code and hence, the same requires to be interference by this Court and the respondents be directed to pass order with respect to full salary and allowance in favour of the petitioner for the period of suspension treating that period to be spent on duty. Learned counsel also points out the factual infirmity in the impugned decision dated 21.10.2016 wherein the respondent no. 4 has written in paragraph-21 thereof that by letter no. 1369 dated 2.11.2010 the petitioner was directed to join the parent school and if the petitioner fails to join, his service will come to an end, contrary to the fact that the petitioner has already superannuated with effect from 31.07.2010 and this fact has also been mentioned in the impugned order at paragraph-23. Therefore, learned counsel submits that the concerned respondent has passed the order in 5 mechanical way and has not considered the legal aspects of the matter. 7. Learned counsel further submits that even after the impugned order was passed on 21.10.2016, no retiral benefits including pension, gratuity, leave encashment etc. have been extended to the petitioner and as such, the petitioner is suffering a lot to discharge his obligations at this old age for the fault of the respondents. Hence, a command be given to the respondents to pay all retirement benefits till date of retirement including the arrears of salary for the period of suspension in favour of the petitioner. Arguments advanced by learned counsel for Respondents. 8. On the other hand, Mr. Ashok Kumar Yadav, Sr.S.C-I assisted by Mr. Ranjan Kumar, AC to Sr.SC-I representing the respondents opposes the contentions of learned counsel for the petitioner and submits that the petitioner is not entitled for any reliefs as claimed for. Learned counsel submits that Rule 97 of the Code is not at all applicable in the case of the petitioner. It is applicable in a case where the Government servant has been exonerated from the charge levelled or in a case where it was found that suspension order was not correct. In the present case, the petitioner was charge-sheeted for non-joining on the transferred place. The departmental proceeding was initiated under the provisions of Jharkhand Government Servant (Classification, Control and Appeal) Rules. In the enquiry, charge was proved and thereafter second show cause notice was served to the petitioner on 1.8.2000 and after that, punishment order dated 16.12.2004 was issued. Since the petitioner has not participated in the departmental proceeding, it took long time for conclusion of the proceeding. Learned counsel further submits that the petitioner even after revocation did not obey the direction of the higher authority in not joining the transferred school. To sum up, learned counsel submits that Rule 97 (2) or (4) is not applicable in the present facts and situation of the case and since the petitioner was held guilty of the charge by the enquiry report, the decision dated 21.10.2016 is proper and legal and the petitioner was not entitled for anything than what he was paid as subsistence allowance during the suspension period and he was only entitled for pensionery benefit counting the period of suspension to be on duty. Findings of the Court 9. Having heard the rival submissions of the learned counsel for 6 the parties and having gone through the records, it appears that following two issues are involved in the present case which are to be decided by this Court:- (1) Whether in the facts and circumstances of the case, the respondents have not considered the provisions of Rule 97 of the Jharkhand Service Code while passing the impugned order? And (2) Whether the petitioner is entitled for full pensionery benefits counting the service from the date of initial appointment till the date of retirement i..e 31.7.2010 ? 10. Before entering into the merits of the case, it would be apposite to examine Rule 97 of the Jharkhand Service Code, which reads as under:- “97. (1) When a government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order— (a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Whether the authority mentioned in sub-rule (1), is of opinion that the government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the government servant.” 11. From plain reading of the aforesaid Rule, it appears that sub- rule (1) of Rule 97 indicates that where a government servant is suspended, the authority competent to order the reinstatement has to consider and make a specific order regarding the pay and allowances for the period of absence 7 from duty and whether or not the period shall be treated as a period spent on duty. Sub-rule (2) indicates that where the authority concludes that the government servant has been fully exonerated or suspension was “wholly unjustified”, the government servant shall be given full pay and allowances. 12. Here, in the instant case, the petitioner was charge-sheeted for non-joining at the transferred place. The departmental proceeding was initiated under the provisions of Jharkhand Government Servant (Classification, Control and Appeal) Rules. In the enquiry, the petitioner was afforded opportunity to defend his case and finally on appreciation of evidence, charge was proved and thereafter, second show cause notice was issued on 2.5.1997 and served to the petitioner on 5.2.1998, though he had not responded thereto. Ultimately, the punishment order was issued on 16.12.2004. Though the said order was quashed by this Court in earlier round of litigation in W.P.(S) No. 5315 of 2009, but liberty was reserved with the respondents to pass a fresh order. Thereafter, the petitioner was directed to join the concerned school, but he did not obey the direction of the higher authorities and in the meantime, he retired on 31.7.2010. It was the petitioner who was responsible for delay in conclusion of the proceeding, since he never joined the school concerned after revocation of his suspension. 13. Since the petitioner has been held guilty of the charges by the inquiry officer and he has not been exonerated from the charge and punished by the disciplinary authority based on the findings of the inquiry officer, he is not entitled for full salary as per Rule 97(2) of the Service Code. It appears that the learned counsel for the petitioner has misconstrued the provisions of Rule 97 that full pay and allowances must necessarily follow as a consequence of the suspension being revoked. Admittedly, the petitioner’s suspension was revoked on 16.12.2004, but sub-rule (2) of Rule 97 clearly speaks that whenever the government servant has been fully exonerated, or in the case of suspension, it was concluded that it was wholly unjustified, the government servant is entitled for full pay and allowances during the period he was under suspension. In the present case, the petitioner was never exonerated by the inquiry officer or it was ever held that his suspension was fully unjustified, rather, he was evading the enquiry proceeding and disobeyed the direction of the higher authorities to join the concerned school. 8 The respondents have rightly passed the order contained in Memo No. 1855 dated 21.10.2016 in compliance of the order passed in W.P.(S) No. 5315 of 2009 that the petitioner shall be entitled for the retirement benefits counting the service from the date of appointment i.e. 31.8.1974 till the date of revocation of suspension on 16.12.2004. The issue no. (1) regarding the applicability of Rule 97 of the Jharkhand Service Code is answered accordingly. The aforesaid Code is not attracted in the instant case since the petitioner has not been exonerated by the enquiry officer from the charges. 14. So far as the pensionery benefit is concerned, since the petitioner has superannuated from service, he is entitled for pensionery benefits treating the suspension period to be period spent on duty for the purpose of pensionery benefits and rightly by the impugned order dated 21.10.2016, the same view was taken by the respondents. It is also made clear that the suspension period shall not be treated as break in service. The petitioner shall be paid the entire retiral benefits as per his entitlement as held earlier in accordance with law. 15. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned order dated 21.10.2016 needs no interference, Since a decision has already been taken by the respondent authority to pay the retiral benefits counting the service from the date of appointment till the date of revocation from suspension, this Court in the facts of this case directs the respondents to pay all retiral benefits forthwith, preferably within a period of six weeks from the date of receipt of a copy of this order. 16. The writ petition stands disposed of, with the aforesaid observations and directions. R.Kr. (Dr. S.N. Pathak, J.)