The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2679 of 2022 Sitaram Mahto, aged about 65 years, son of Late Beni Chandra Mahto, resident of Village- Bihari, P.O.- Surapura, P.S.- Padma, District- Hazaribagh. Petitioner … … 1. The State of Jharkhand through the Director, Primary Education, Versus 2. School Education and Literacy Department, Ranchi. The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Hazaribagh. The District Superintendent of Education, Hazaribagh. The Block Education Extension Officer, Barhi, Hazaribagh. 3. 4. 5. Accountant General (A&E), Jharkhand, Ranchi. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : For the Petitioner For the Respondent-State : Mr. Jai Prakash, AC to AAG-IA Mr. Rahul Kumar, Advocate ----- 14/ 09.12.2024. The petitioner has challenged the office order contained in Memo No. 1746 dated 07.09.2019 issued by District Superintendent of Education, Hazaribagh, by which the petitioner was held only for subsistence allowance during the period of suspension. The petitioner has also challenged the decision contained in letter no. 1656 dated 30.07.2018, whereby the annual increment granted to the petitioner while he was under suspension has been cancelled / suspended. Further challenge has been thrown to the follow up direction, whereby the statement of fixation of pay in Form-B dated 06.11.2019 has been issued after deducting the benefit of the said annual increment. Upon quashment of the said orders, the petitioner has prayed for a direction upon the respondents to pay arrears of salary for the period from 5.7.2004 to 27.08.2007 minus what he has already been paid, as also annual increments, which have been withheld during the period of suspension. The petitioner has also prayed for refixation of pension including arrears of differences of pension from 1.4.2018, arrears of revised gratuity and arrears of leave encashment etc. 2. Sans unnecessary details, the case of the petitioner in nutshell is that the petitioner was appointed as Assistant Teacher in Upgraded Middle School, Kandadag, Block-Padma, District- Hazaribagh on 14.02.1983. In 1 course of employment, the petitioner being the elder brother-in-law of the victim was implicated in Barhi (Padma) P.S. Case No. 19 of 2004 for the offence under Sections 341, 307, 328, 304B / 34 of the Indian Penal Code and he was taken into custody on 5.7.2004. The District Superintendent of Education, Hazaribagh vide office Memo No. 434 dated 19.02.2005, under the provisions of Rule 99 of the Bihar/ Jharkhand Service Code suspended the petitioner from the date when he was taken into custody and decided to start a departmental proceeding against the petitioner. The petitioner was released from judicial custody on 03.03.2006 and thereafter, the District Superintendent of Education by his office order contained in Memo No. 289 dated 27.08.2007 has vacated the suspension of the petitioner with direction that he was only entitled for subsistence allowance during the period of suspension and initiation of departmental proceeding will be subject to outcome of the judgment passed in the criminal case by the competent Court of law. The petitioner joined the service and continued to discharge his duties and he was getting entire emoluments including the increments till his retirement on 31.03.2018. After retirement, the petitioner submitted the pension papers. The District Superintendent of Education vide office order dated 30.7.2018 had directed to withdraw the increments paid to the petitioner during the period of suspension. Meanwhile, the petitioner was acquitted in the criminal case, as is evident from the judgment dated
Legal Reasoning
06.08.2018 passed by this Court in Cr. Appeal No. 6 of 2006. Thereafter, the District Superintendent of Education, Hazaribagh issued office order dated 7.9.2019, by which, it was decided to close the departmental proceeding pending against the petitioner and the petitioner was held entitled only for subsistence allowance during the period of suspension. With these factual backgrounds, the petitioner has approached this Court for a direction to pay the differences of salary and increment during the period of suspension, as also for revised pensionery benefits. 3. Mr. Rahul Kumar, learned counsel appearing for the petitioner argues that the impugned orders are issued without following the procedures of law and without applying the principles of natural justice, inasmuch as, without issuing any notice whatsoever, the petitioner was held to be not 2 entitled for anything other than subsistence allowance and the annual increments already granted have been cancelled. Learned counsel further submits that while passing the impugned orders, the respondents, in particular respondent no. 3 has not considered Rule 97 of the Jharkhand Service Code, which duly prescribes 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, when he was exonerated. Learned counsel submits that the respondent no. 3 has totally ignored the provisions of Rule 97 of the Code to consider as to when the departmental proceeding was closed against the petitioner upon acquittal in the criminal case, it is deemed that the petitioner was fully exonerated from the charge. Learned counsel further submits that no notice was given to the petitioner before passing the order, cancelling the annual increments as per requirement of law under Rule 97(3) of the said Code. Learned counsel submits that by virtue of closing the departmental proceeding, the petitioner is full entitled to claim for full salary for the period of suspension. To buttress his arguments, learned counsel places heavy reliance upon the judgment of the Hon’ble Apex Court in the cases of M. Gopalakrishna Naidu Vs. State of Madhya Pradesh, reported in AIR 1968 SC 240 and Raj Narain Vs. Union of India & Ors., reported in (2019) 5 SCC 809. Learned counsel also places reliance upon the judgment rendered by the Patna High Court in the case of Dinesh Prasad Vs. State of Bihar & Ors., reported in 2006 SCC OnLine Pat 770, as also the judgment passed by this Court in the case of Uma Prasad Vs. The State of Jharkhand & Ors., reported in 2014 SCC OnLine Jhar 2835. Referring to the aforesaid judgements, learned counsel submits that the petitioner is entitled for full pay and allowances during the suspension period. 4. Per contra, Mr. Jai Prakash, learned Addl. Advocate General, representing the respondents submits that the petitioner is not entitled for any reliefs as prayed for and Rule 97 of the Code is not at all applicable in the case of the petitioner. Learned Addl. Advocate General submits that the petitioner was not suspended at the behest of the Department, rather, he was 3 put under deemed suspension by the operation of law entrenched under Rule 99 of the Service Code due to judicial custody in a criminal case lodged by third party. Learned Addl. Advocate General further submits that the petitioner was also not entitled for increment during the period of suspension. Referring to sub-rule (1) of Rule 97 of the Jharkhand Service Code, learned Addl. Advocate General submits that whenever the suspension of government servant was not found wholly unjustified, the government servant shall be given full pay and allowance, but in the present case, the suspension of the petitioner was found wholly justified in view of his judicial custody and as such, the petitioner was only entitled for subsistence allowance in view of provisions of Rules 99 and 100 of the Jharkhand Service Code. Relying on the judgment passed by the Division Bench of this Court in the case of Chandrajeet Kumar @ Chandrajeet Paswan Vs. The State of Jharkhand & Ors., reported in 2015 SCC OnLine Jhar 4080, learned Addl. Advocate General contends that since the petitioner had involved himself in a crime, though he was later on acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail, he is not entitled for full salary and allowance during the period of suspension and no liability can be settled upon the State for payment of back wages, otherwise, it will tantamount to premium of fallacy of the petitioner. 5. I have heard learned counsel for the parties across the Bar and perused the entire records. Before delving deep into the merit of the case, it would be apposite to quote the relevant provisions of Rules 97, 99 and 100 of the Jharkhand Service Code, in extenso:- Rule 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 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. (2) Where the authority mentioned in sub rule (1), is of fully opinion exonerated, or in the case of suspension, that it was wholly the Government servant has been that 4 unjustified, the Government servant shall 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 allowances as such competent authority may prescribe. Provided that the payment of allowances under clause (2) or clause (3) 5 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 (2) the period of absence from duty shall not be treated as 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.” Rule-99 : A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any period during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence grant that may be granted in accordance with principles laid down in Rule 96) for such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties as the case may be. Rule 100:- Provides that a Government Servant, against whom a criminal charge is pending should also be placed under suspension if the charge made or proceeding taken against him is connected with his position as a Government Servant or is likely to embarrass him in discharge of his duties.” 6. It is evident from perusal of Rule 99 read with Rule 100 of the Jharkhand Service Code that whenever a government servant is detained in custody under any law or is undergoing imprisonment, he/she shall be put under deemed suspension, until he/she is released from detention and thereafter allowed to rejoin his/her duties, as the case may be. In the present case, the petitioner was taken into judicial custody on 05.07.2004 and released on 03.03.2006. The respondents have placed the petitioner under 5 deemed suspension by operation of law from the date he was taken into custody till the date of his release on bail on 03.03.2006. It appears that the respondents have rightly acted so in accordance with law. However, the fact remains that while the petitioner was placed under suspension by office order dated 19.02.2005, a decision for initiation of departmental proceeding by framing charge-sheet in Prapatra- ‘Ka’ was taken. But, in fact, no departmental proceeding was ever initiated and no charge-sheet in Prapatra- ‘Ka’ was ever framed against the petitioner, rather, a decision was taken to go ahead with the departmental proceeding after outcome of judgment passed in the criminal case. Upon acquittal of the petitioner in the criminal case, the initiation of departmental proceeding was dropped and the petitioner was held to be not entitled for anything other than subsistence allowance during the period of suspension. 7. At the same time, from perusal of Rule 97 (1) and (2) of the Jharkhand Service Code, it is apparent that whenever a Government servant is reinstated, the authority has to consider and make a specific order regarding pay and allowances payable to him for the period of his absence from duty and whether such period of absence should be treated as one spent on duty, but this consideration depends on the facts and circumstances of the case, whether the Government servant had been fully exonerated and his suspension was wholly unjustified and before coming to this opinion, there was a duty on the competent authority to afford an opportunity to the Government servant to show cause. 8. In the case at hand, at the time of putting the petitioner under deemed suspension, a decision was taken to initiate departmental proceeding. However, the fact is that no departmental proceeding was initiated against the petitioner, rather, the respondents have waited for outcome of the criminal case and when it came to end in acquittal, the departmental proceeding stood closed. The respondents have not considered the provisions enshrined under Rule 97 of the Code in its right perspective that when the departmental proceeding was closed, meaning thereby that the petitioner was fully exonerated, he was entitled for full pay and allowances. 9. A similar issue fell for consideration before the Hon’ble Apex 6 Court in the case of Raj Narain Vs. Union of India & Ors., reported in (2019) 5 SCC 809, wherein the Government servant was put under suspension on 23.10.1979 in contemplation of departmental proceeding, on his being taken into judicial custody and after his release on 21.10.1987, suspension was revoked and departmental proceeding was dropped. Their Lordships held that by virtue of the disciplinary proceedings being dropped, the Government servant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental enquiry. Relevant paragraphs- 7 and 8 are profitable to quote herein as extenso:- 7. The point that remains to be considered is whether the appellant is entitled to payment of full wages between 1979 and 1987. The appellant was placed under suspension on 23-10-1979 and his suspension was revoked on 21-10-1987. An interesting development took place during the interregnum by which the disciplinary proceedings were dropped on 21-3-1983. It is clear from the record that the appellant was the one who was seeking postponement of the departmental enquiry in view of the pendency of criminal case. The order of suspension was in contemplation of disciplinary proceedings. By virtue of the disciplinary proceedings being dropped, the appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental enquiry. Thereafter, the respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23-10- 1979 came to an end on 21-3-1983 which is the date on which disciplinary proceedings were dropped. The appellant ought to have been reinstated immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen. Ultimately, the appellant was reinstated by an order dated 21-10-1987 by revocation of the order of suspension. Though, technically, the learned Additional Solicitor General is right in submitting that the impugned judgment does not even refer to the IA, we are not inclined to remit the matter to the High Court at this stage for fresh consideration of this point. We hold that the appellant is entitled for full wages from 23-10-1979 to 21-10-1987 after adjustment of the amounts already paid towards subsistence allowance. 8. For the reasons mentioned above, we approve the judgment of the High Court by holding that the appellant shall be entitled for back wages only from the date of acquittal on 31-8-2001, till the date of his reinstatement on 20-1-2003. Further, the appellant shall be entitled to full salary from 23-10-1979 to 21-10-1987. 10. Admittedly, in the present case, no show cause notice was ever 7 issued to the petitioner before entitling the petitioner only for subsistence allowance during the period of suspension. No notice whatsoever was also issued to the petitioner before rescinding the annual increments already granted to the petitioner while he was under suspension. In the case of Ramashray Prasad Singh Vs. the State of Bihar & Ors., reported in 2000 (3) PLJR 41, it has been held that any order of restricted payment of salary for the period of suspension can be made under Rule 97 of the Bihar Service Code only after giving the concerned employee an opportunity to show cause. Similar view has been taken in the cases of Shri Mahabir Prasad Vs. the State of Bihar & Ors., 1988 PLJR 82 and Bihswanath Mitra Vs. State of Bihar & Ors., 2003 (4) PLJR 71. Relying on the said judgments, a Coordinate Bench of this Court also reiterated the same view in the case of Uma Prasad Vs. The State of Jharkhand & Ors., decided in W.P.(S) No. 6834 of 2005. Further, a Division Bench of the Patna High Court in the case of Dinesh Prasad Vs. State of Bihar & Ors., reported in 2006 SCC OnLine Pat 770 : (2006) 4 PLJR 514 held that non-observance of the provisions of Rule 97(3) of the Code would amount to violation of the principles of natural justice. The pertinent paragraphs read thus:- 11. From perusal of the materials on record, admittedly, it appears that no such opportunity under the provisions of Rule 97(3) of the Code was provided to the petitioner, which amounts to violation of the principles of natural justice. The closure of the departmental proceeding deemed to be exoneration of the petitioner in the departmental proceeding and once the petitioner was held to be exonerated in the departmental proceeding, he was liable to get full pay and allowances during the period of suspension in view of provisions enshrined under Rule 97(2) and sub-rule (4). 12. The judgment relied upon by the learned Addl. Advocate General in the case of Chandrajeet Kumar @ Chandrajeet Paswan (supra) is not fully applicable in the facts and situation of the present case. In that case, the Government servant was put under deemed suspension by virtue of Rule 99 of the Jharkhand Service Code upon being arrested in the criminal case with the allegation of dowry death of his wife and no decision was taken for initiation of any departmental proceeding. But the facts of the present 8 case is slightly different and herein, the petitioner was implicated in the case of dowry death being the elder brother-in-law of the victim and a decision was taken for initiation of departmental proceeding and upon acquittal of the petitioner, the departmental proceeding was dropped and the respondents have waited for outcome of criminal case for initiation of departmental proceeding. Once the departmental proceeding is dropped, meaning thereby the petitioner was exonerated from the charge, he was wholly entitled for full pay and allowance and the period of absence from duty be converted into leave of any kind due as admissible to him, as has been held by the Hon’ble Apex Court in the case of Raj Narain (supra). It is also not in dispute that this judgment is passed by the Hon’ble Apex Court off late in the year 2019, whereas the judgement cited by the respondents in the case of Chandrajeet Kumar @ Chandrajeet Paswan (supra) is prior thereto i.e. in the year 2015. 13. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the petitioner is entitled for full pay and allowance during the period of suspension. Accordingly, the impugned office order contained in Memo No. 1746 dated 07.09.2019 and letter no. 1656 dated 30.07.2018 are hereby quashed. The respondents are directed to pay full pay and allowances during the period of suspension minus what has already been paid and thereafter pay the entire pensionery benefits, including refixation of pension, arrears of differences of pension from 1.4.2018, arrears of revised gratuity and arrears of leave encashment etc. Let the entire exercise be completed within a period of twelve weeks from the date of receipt / production of a copy of this order. 14. With the aforesaid observations and directions, this writ petition stands allowed. R.Kr / RC. (Dr. S. N. Pathak, J.) 9