Rajendra Prasad Yadav … … v. 1. State of Jharkhand through the Principal Secretary, Government of Jharkhand, Water Resources Department
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1595 of 2013 Rajendra Prasad Yadav … … … Petitioner Versus 1. State of Jharkhand through the Principal Secretary, Government of Jharkhand, Water Resources Department, Nepal House, Doranda, Ranchi 2. The Joint Secretary to the Government of Jharkhand, Water Resources Department, Nepal House, Doranda, Ranchi 3. The Chief Engineer, Water Resources Department, Government of Jharkhand, Deoghar. 4. The Superintending Engineer, Design Circle, Water Resources Department, Deoghar. 5. The Executive Engineer, Minor Distributory Division, Kuldangal, Camp Nala, District – Jamtara, Jharkhand 6. State of Bihar through the Principal Secretary, Government of Bihar, Water Resources Department, Government Secretariat, Sinchai Bhawan, Patna, Bihar, 800015. … … Respondents CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
Legal Reasoning
For the Petitioner: : For the State For the State of Bihar: Mr. S.P. Roy, Advocate Mr. Arvind Kumar Singh, Advocate Mr. Arun Kumar Dubey, AC to GP-III 08/20.03.2024 2. Heard the parties. At the very outset Mr. Arvind Kumar Singh, learned counsel representing petitioner argues that the Memo No. 38, dated 24.02.1995, passed by Superintending Engineer, Design Circle, Deoghar whereby petitioner was kept under suspension has already been revoked and as such he does not press the same. At this juncture, petitioner confines his prayer for payment of salary for the period he remained under suspension i.e. 24.02.1995 to 09.09.2015. 3. This case has got a chequered history. Petitioner was working as a Treasury Guard in the office of the Executive Engineer, Irrigation Division at Deoghar. He worked for long years subject to satisfaction of the respondents. One fine morning on vague allegation, proceeding was initiated against him and subsequently he was dismissed from the service. Said dismissal order was challenged before the Hon’ble Patna High Court and after quashment of order of dismissal, the matter was remitted back to the respondent authorities RC 2 for reconsideration. Thereafter, the order of dismissal was again passed and was challenged before the Hon’ble Patna High Court in C.W.J.C. No. 12288 of 2000. After hearing the parties, the order of dismissal was quashed and matter was remitted back. Petitioner though was absolved from the charges but minor punishment of censure was inflicted against him with a rider that other than subsistence allowance, he will not be entitled for salary for the suspension period, however said suspension period shall be counted for pensionary benefits. Aggrieved by the same, petitioner has knocked door of this Court. 4. Mr. Arvind Kumar Singh, learned counsel appearing for the petitioner strenuously urges that the petitioner is entitled for the full salary for the suspension period. Learned counsel submits that the respondent authorities, while passing the order of censure, did not show any consideration to the rules as envisaged under the Jharkhand Service Code for treating the period of suspension. Learned counsel submits that since minor punishment was inflicted against the petitioner, he was not subjected to dismissal. The charges against the petitioner was not proved in the departmental proceeding, enquiry officer has exonerated him and, therefore, he is entitled for full salary for the period of suspension. Learned counsel further argues that in view of Rule 97(2) of the Service Code the respondents ought to have considered that neither the petitioner has been dismissed from the service nor charges have been proved in the departmental proceeding and thus when suspension has already been revoked, petitioner is entitled for full salary for the period of suspension. Learned counsel for the petitioner places heavy reliance on the Judgment of the Division Bench of the Hon’ble Patna High Court in the case of Dinesh Prasad Vs. state of Bihar and others reported in 2006(4) PLJR 514. Per contra counter affidavit has been filed. Mr. Arun Kumar Dubey, AC to learned GP-III opposing contention of the learned counsel for the petitioner submits that 5. 6. 7. RC 3 petitioner has not been absolved from the charges. It is not a case that petitioner was given a clean chit. Admittedly, though minor punishment, but petitioner has been inflicted with the punishment. Learned counsel submits that even having glance to Rule 97(2), it appears that only on exoneration of an employee, he is entitled for full salary for the period he was put under suspension. It has been further argued that the respondent authorities, while passing impugned order were of the view that the petitioner is not entitled for full salary for the suspension period and has been paid subsistence allowance. The order cannot be faulted with in view of Rule 97(2) of the Service Code. Mr. S.P. Roy, learned counsel representing State of Bihar very fairly submits that after the order passed by the Hon’ble High Court, the entire records were sent to the State of Jharkhand and it is the State of Jharkhand who has to take a decision. The State of Bihar has no role to play. Having gone through rival submission of the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons: (i) Before delving deep into merits of the case, it would be apposite to examine relevant Rule i.e. Rule 97 of the Service 8. 9. Code, which reads as under: “97(1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order--- (a) regarding the pay and allowance 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. 1[(2) Where the authority mentioned is sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was RC 4 wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had 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 allowance as such competent authority may prescribe: Provided that the payment of allowance 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. 1[(5) In a case falling under clause 93) 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.].” (ii) From perusal of the relevant Rule, it is crystal clear that an employee against whom there is no order of dismissal, removal or any major penalty and has been exonerated from the charges, he is entitled for the full salary of the suspension period taking into consideration his place prior to the order of dismissal/ removal. In the instant case, petitioner was neither dismissed nor removed rather the order of dismissal/removal was quashed by the Hon’ble Patna High Court, the same ought to have been taken into consideration before passing the impugned order. Admittedly, the order of suspension was revoked. The respondent authorities took 14 years 6 months 15 days to revoke the order of suspension. Petitioner was kept under suspension for long years but no explanation has been given by the respondents as to why he was put under suspension for long years. Even if under compelling circumstances petitioner was put under suspension for long years, whether his subsistence allowance was enhanced up to 75%, has not been brought on record. RC 5 (iii) The issue fell for consideration before the Hon’ble Apex Court in the celebrated Judgment in the case of State of Orissa Vs. Bimala Kumar Mohanty reported in AIR 1994 SC 2296. It has very clearly been held in the said case that an employee cannot be subjected to suspension for long years without assigning valid and cogent reasons. On that score itself, petitioner is entitled for the full salary for the period of suspension. (iv) Subsistence allowance is not the bounty at the hands of the respondents. It is the Constitutional right to get subsistence allowance. Merely by paying subsistence allowance, it is not open to the respondents to pass any order dehors the rule. When the Rule permits, the same has to be adhered to. In the instant case, as per Rule 97(2) of the Service Rule, petitioner was entitled to get full salary for suspension period since suspension was revoked. (v) While passing the order for withholding the salary other than the subsistence allowance, it was incumbent upon the respondents to issue notice i.e. a separate show-cause notice in terms of Rule 97(3) of the Service Code, the same was not done. The respondent’s counsel is not in a position to counter the said statement of the learned counsel for the petitioner or view expressed by this Court. From the counter affidavit, nowhere it is reflected that the petitioner was issued a separate show-cause notice and the same was served to him in consonance with Rule 97(3) of the Service Code. (vi) The issue is no more resintegra as it has been held in plethora of Judgment passed by Hon’ble Supreme Court as well as this Court. The Hon’ble Patna High Court in its celebrated judgment passed in the case of Mahavir Prasad Vs. State of Bihar reported in 1998 PLJR 82 held that non observation of the provisions of Rule 97(3) of the Service Code would amount to violation of cardinal principles of natural justice. The order impugned on this score appears to be violative of RC 6 the principles of natural justice. Any order visiting with civil consequences, the cardinal principles of natural justice has to be adhered to.
Decision
(vii) The impugned order is dehors the rule. 10. In view of facts and circumstances discussed hereinabove, the impugned order issued vide memo no. 3299, Ranchi, dated 22.10.2010, is hereby quashed and set aside as far as it relates to non-payment of full salary for the period of suspension of the petitioner. Admittedly, petitioner is entitled for full salary of suspension period. Since petitioner has already received subsistence allowance, the difference of salary accrued to him shall be extended to him within a period of twelve weeks from the date of receipt/ production of a copy of this order The writ petition stands allowed. Pending interlocutory applications, if any, also stand disposed 11. 12. of. (Dr. S.N. Pathak, J.) RC