The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4432 of 2022 --- Ranjana Singh, Aged about 54 years, wife of Late Prabhat Kumar Singh, Resident of Village Gorea Kothi, P.O & P.S Gorea Kothi, District- Siwan (Pin-841434) (Bihar) Versus .....Petitioner 1. State of Jharkhand. 2.Law (Justice) Department through its Principal Secretary- cum- Legal Remembrancer, Government of Jharkhand having office at Project Building, P.O. & P.S. Dhurwa, District-Ranchi 3. Principal District and Sessions Judge, Bokaro, P.O. & P.S. Bokaro, District-Bokaro. ......Respondents -- CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN --- For the Petitioner : M/s. Atanu Banerjee, For the Respondents :Ms. Pinky Tiwary, A.C to A.G Suman Kumar Ghosh, Advocates --- 12/31.07.2024
Legal Reasoning
Heard learned counsel for the parties. 2. The instant application has been preferred by the petitioner praying therein for quashing of the Office Order no. 156 dated 22.04.2020 (Annexure-8), whereby the period of suspension from 20.07.2016 to 22.04.2020 are not treated as period of duty for which the petitioner’s husband was entitled. 3. The brief fact of the case is that the petitioner’s husband was in service under the respondents. On 20.07.2016, he was put under suspension in contemplation of departmental proceeding. On 28.07.2016, a memorandum was issued containing article of charges against the husband of the petitioner for misconduct, institution of criminal case for operating illegal Ara Machine and taking house rent allowance though living in pool quarter after reporting of vacating 1 the same. Thereafter, the proceeding was initiated and on 28.02.2017 enquiry report was submitted and the Enquiry Officer found the charges to be true against the delinquent whose wife is the petitioner herein. Thereafter on 16.03.2017 a second show-cause notice was issued to the delinquent, to which he duly replied vide his reply dated 03.04.2017. Finally, on 22.04.2020 the impugned order was passed by the respondents against the husband of the petitioner by inflicting punishment of reduction of last three increments and it was also ordered in the punishment that the period of suspension from 20.07.2016 to 22.04.2020 will not be treated as the period of duty and he will be entitled only for subsistence allowance. Further facts reveal that just after a week the husband of the petitioner retired from the post of Assistant in Civil Court, Bermo at Tenughat on attaining the age of superannuation and after about 7 months he died. It further transpires from record that after the death of the petitioner’s husband, all retiral benefits including the pension intimation, gratuity payment order was issued by the office of Accountant General and all other post retiral benefits were made to the petitioner. On 7th April, 2022, the petitioner made a representation before the respondent authorities requesting them for payment of full pay for the suspension period as per 7th Pay Commission from 2016 and also requested to withdraw the penalty imposed upon the husband of the petitioner and reconsidered the decision dated 22.04.2020. 2 4.
Legal Reasoning
Mr. Atanu Banerjee, learned counsel for the petitioner at the outset confines his prayer only on the issue that the petitioner should be entitled for full pay at least from the date when he filed a reply to second show- cause; inasmuch as, the reply to second show-cause was filed by him on 03.04.2017, but for no reason the impugned order has been passed on 22.04.2020. He contended that there was no fault on the part of the petitioner’s husband in delaying the matter; inasmuch as, after receiving the second show-cause notice on 16.03.2017; he immediately replied to the same, but the concerned respondent took more than three years in taking the decision for infliction of punishment. 5. Accordingly, learned counsel submits that the impugned order of punishment issued against the petitioner’s husband may be modified to the extent that the second part of the order that he will get only subsistence allowance during the period of suspension at least from the date of filing second show-cause be modified and respondents may be directed to pay full amount from the date of filing of second show-cause till the date of impugned order. He further submits that the other part which required to be modified is that after modifying the second part, it also requires that the suspension period should not be taken as break in service. In order to buttress his argument, he relies upon Rule 10 of Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016, wherein it has been stipulated as under: - “Subsistence allowance during suspension :- (1) A Government Servant under suspension or deemed to have been placed under suspension, shall be entitled to the following payments namely :- 3 a) subsistence grant an amount equal to the leave salary which the Government Servant would have drawn, if he had been on leave, on half pay addition in dearness allowance admissible on such half pay; to vary the amount Provided that where the period of suspension has exceeded twelve months, the authority, which made or is deemed to have made the order of suspension, shall be competent of subsistence grant for any period subsequent to the period of the first twelve months, as follows – i) The amount of subsistence grant may be increased by a suitable amount not exceeding fifty percent of the subsistence grant admissible during the period of the first twelve months, if in the opinion of the said authority, the period of suspension has been prolonged, for reasons to be recorded in writing, not directly attributable to the Government Servant. to if, directly attributable ii) The amount of subsistence grant may be reduced by a suitable amount, not exceeding the subsistence grant fifty percent of admissible during the period of first twelve months, in the opinion of the said authority, the period of suspension has been prolonged, due to reasons to be recorded in writing, the Government Servant. iii) The rate of dearness allowance will be based on the increased or as the case may be, the decreased amount of the subsistence grant admissible under subclause (i) and (ii) of this rule. b) Any other compensatory allowance to which a Government Servant may be entitled from time to time on basis of pay, which he received on the date of suspension. Provided that the Government Servant shall not be entitled to that compensatory allowance unless the said authority is satisfied that the the Government Servant continues expenditure for which they are granted. Provided further that the Government Servant shall be entitled to receive subsistence allowance only for such period when he is actually present at the headquarters, fixed by the Disciplinary Authority during the suspension to mark his period. He shall be required to meet 4 attendance in the attendance register meant for such Government Servant. Provided further that since the headquarters cannot be fixed for the period of custody, therefore marking of such attendance shall not be required for the period of custody.” Relying upon the aforesaid Rule, learned counsel submits that the Rule is very clear where the period of suspension has acceded 12 months, the authority which may or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence grant for any period subsequent to the period. Meaning thereby to say, the authorities are duty bound to take a periodic decision for the period of suspension, so that it will not affect the livelihood of delinquent and his family. He further referred to the judgment passed in the case of Ajay Kumar Choudhary v. Union of India & Anr. reported in (2015) 7 SCC 291 and submits that the Hon’ble Apex Court has held that the currency of suspension order should not extend beyond three months if within this period memorandum of charges is not served on the delinquent and if the memorandum of charge-sheet is served, a reasoned order must be passed for the extension of suspension. For brevity paragraph-21 is quoted hereinbelow: if the “21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent of officer/employee; charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from memorandum 5 contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that investigation, departmental pending a in abeyance stands proceedings are to be held superseded in view of the stand adopted by us.” criminal Relying upon the aforesaid Rule and the judgment passed by Hon’ble Apex Court, it is clear that if the authorities wants to continue with suspension of the delinquent, they should take a decision in that matter; however in the instant case there is no order to that effect that for what reason the suspension was extended even after filing the second show cause notice and admittedly the respondents took more than three years in passing the impugned order. 6. Learned counsel for the respondents submits that the contention of the petitioner is nonest in the eye of law; inasmuch as, getting subsistence allowance during suspension period is part of punishment and the petitioner’s husband never challenged the said impugned order within his life time and the petitioner, who is the widow of the delinquent employee has challenged the impugned order, which is nonest in the eye of law; however, learned counsel for the respondent could not dispute the fact that inquiry report was submitted to the disciplinary authority on 28.02.2017 and just after two weeks a second show cause notice was issued to the 6 delinquent and just after two weeks the petitioner’s husband replied to the show-cause notice, but for the reason best known to the respondent the order was passed after more than three years. 7. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the above referred judgment passed by the Hon’ble Apex Court and the Rules governing the service condition of the petition’s husband; it appears that admittedly; there is a delay on the part of the authorities in passing the impugned order. Admittedly, there was no fault on the part of the petitioner’s husband in delaying the matter; inasmuch as, after receiving the second show-cause notice on 16.03.2017; he immediately replied to the same, but the concerned respondent took more than three years in taking the decision for infliction of punishment Had there been a case; the impugned order would have been passed with the same punishment in the year 2017 itself, then the petitioner would not have been deprived of full salary from that period itself; however, there is nothing on record to suggest that any order has been passed for continuation of suspension period of the petitioner. Not a single chit of paper has been shown by the respondents to explain the delay in passing the order of punishment is due to the fault of the petitioner. 8. Accordingly, this Court holds that the passing of the impugned order after a delay of three years from the date of filing reply to 2nd show cause by the petitioner is certainly against the natural justice and it has certainly affected the petitioner’s family. 7 As aforesaid, the petitioner is the widow of the delinquent who died after six months of his retirement; as such, natural of justice would be sufficed by modifying the impugned order only to the extent that the suspension period from May, 2017 till the date of impugned order shall be considered for full salary of the petitioner and it should not be treated as a break in service. Ordered accordingly. 9. With the aforesaid observations/directions, the instant application stands partly allowed. jk (Deepak Roshan, J.) 8