Orissa High Court
Case Details
AFR ORISSA HIGH COURT: CUTTACK W.P(C) NO. 32684 OF 2020 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Union of India and others ..… Petitioners Sarat Chandra Khuntia and another ….. Opp. Parties -Versus- For petitioners : Mr. Shasi Bhusan Jena, Advocate. For opp. parties : M/s. Nirmal Ranjan Routray, J. Pradhan, T.K. Choudhury & S.K. Mohanty, Advocates (O.P.1) P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of hearing: 11.07.2023:: Date of judgment: 13.07.2023 DR. B.R. SARANGI, J. The Union of India and its functionaries, by means of this writ petition, seek to quash the order dated 20.01.2020 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 17 of 2011, directing the present petitioners to treat the suspension period of opposite party no.1 from 03.04.2004 till the date of compulsory retirement from service as qualifying service for the purpose of pension and pensionary benefits and to grant him all consequential benefits including arrear differential pension and pensionary benefits as per provisions of law within three months, if the same benefits have not already been extended to him. 2. The factual matrix of the case, in brief, is that opposite party no.1 was appointed as supporting staff (Grade-I) in the office of the petitioner no.3 w.e.f. 07.04.1983 and subsequently promoted as supporting staff (Grade-II) w.e.f. 26.08.1996. While opposite party no.1 was continuing in service, he indulged in union activities and
Legal Reasoning
challenged the action of petitioner no.3, who, on contemplation of disciplinary proceeding, placed opposite party no.1 under suspension vide order dated 07.07.2003. A charge sheet was issued, which was challenged by opposite party no.1 in O.A. No. 136 of 2004 before the Central Administrative Tribunal, Cuttack Bench, Cuttack. Subsequently, since there were some lacuna, petitioner Page 2 of 18 no.3 withdrew the charge sheet on 28.05.2004 with a liberty to issue fresh charge sheet. Thereafter, charge sheet was issued against opposite party no.1 on 21.07.2004. The said charge sheet was challenged by opposite party no.1 in O.A. No. 114 of 2005, which was dismissed by the Tribunal on 06.02.2005. The said order of the Tribunal was challenged by opposite party no.1 before this Court in W.P.(C) No. 343 of 2006, where an interim order was passed on 24.01.2006. Subsequently, after appearance of the petitioners, this Court, vide order dated 06.04.2009, vacated the interim order dated 24.01.2006. The petitioners were given liberty to proceed with the disciplinary proceeding and accordingly the petitioners proceeded with the disciplinary proceeding and concluded the same by passing the final order dated 16.04.2009 against opposite party no.1 awarding major penalty of compulsory retirement from service with immediate effect. 2.1 Opposite party no.1 filed another Original Application before the Central Administrative Tribunal, Cuttack Bench, Cuttack challenging the order of Page 3 of 18 suspension, which was passed on 07.07.2003, on the basis of the information supplied to him under the Right to Information Act, 2005 on 04.10.2010 pertaining to periodical review of the order of suspension. 2.2 Opposite party no.1, being aware of imposition of major punishment of compulsory retirement, submitted a representation to petitioner no.3 on 25.10.2010 with a prayer for deemed duty of reinstatement in service after compulsory retirement. But petitioner no.3 did not pass any order on the representation filed by opposite party no.1. Thereafter, opposite party no.1 filed O.A. No. 17 of 2011 challenging the suspension order as well as M.A. No. 18 of 2011 for condonation of delay in filing the Original Application. 2.3 The petitioners filed objection to the condonation of delay and also filed counter to O.A. No. 17 of 2011. The matter was listed on 05.09.2017. On that date, the counsel for opposite party no.1 was absent on repeated calls, for which the Tribunal dismissed the case for non-prosecution. Page 4 of 18 Thereafter, opposite party no.1 filed M.A. No. 572 of 2017 for restoration of O.A. No. 17 of 2011 as well as MA for condonation of delay. Since MA was filed without affidavit, the Tribunal dismissed the same. Therefore, opposite party no.1 filed another MA with affidavit. Thereafter, the matter was heard on 06.01.2020 and order was pronounced on 20.01.2020, allowing the Original Application and directing the petitioners to treat the suspension period of opposite party no.1 from 03.04.2004 till the date of compulsory retirement from service as qualifying service for the purpose of pension. Hence, this writ petition. 3.
Legal Reasoning
Mr. S.B. Jena, learned counsel appearing for the petitioner vehemently contended that the Tribunal has committed an error while passing the order impugned and allowed the Original Application by taking the suspension period as qualifying service from the date of suspension till the date of compulsory retirement, and according to him the Tribunal ought not have directed for extension of the said benefit to opposite party no.1. He further contended that even though petitioners had raised preliminary Page 5 of 18 objection regarding maintainability of the Original Application before the Tribunal and also raised the objection that the claim made by opposite party no.1 is barred by limitation, but the Tribunal condoned the delay on the ground that in the punishment order it has not been mentioned as to how the suspension period was treated and the parties have not placed any order on any pleading as required under Sub-rule (5) of FR 54(B) and allowed the MA for condonation of delay. It was also contended that after award of major punishment of compulsory retirement, opposite party no.1 had challenged the suspension order dated 07.07.2003 with a prayer for deemed reinstatement and the Tribunal had not whispered a single word with regard to the contention raised by the petitioners in the counter at paragraph-1. Thereby, it was contended that grounds taken by the Tribunal for allowing the Original Application filed by opposite party no.1 is, as per Sub-rule (5) of FR 54-B, whether it was reviewed or not and in the punishment order it has not mentioned as to how the suspension period was treated, but, fact remains, from Page 6 of 18 Annexure-3 it is revealed that the order of suspension was reviewed from time to time and the review was also made for 9th time on 28.06.2008 and it was extended in favour of opposite party no.1. But the learned Tribunal, without appreciating the same, passed the impugned order, which is not sustainable in the eye of law. 4. Per contra, Mr. N.R. Routray, learned counsel appearing for opposite party no.1 contended that when the order of compulsory retirement was passed, the authorities have not taken into consideration as to how the period is to be treated. In absence of any specific order with regard to the manner of treating the suspension period, the order of compulsory retirement passed by the petitioners cannot be sustained in the eye of law. It is further contended that as per Rule-10(6) and (7) of CCS (CCA) Rules, 1965, an order of suspension is required to be reviewed within 90 days and, as per Office Memorandum dated 19.03.2004, all pending cases of suspension were required to be reviewed on or before 02.04.2004. The review of the suspension order was conducted on 30.08.2004, for which continuation Page 7 of 18 of his suspension from 03.04.2004 onwards was illegal and he should be deemed to be reinstated in service with effect from 03.04.2004 with all consequential service benefits. It was also contended that in the Original Application opposite party no.1 had filed MA No. 18 of 2011 for condonation of delay in filing the O.A. on the ground that the fact of non-review of his case, as per the Office Memorandum dated 19.03.2004, came to his knowledge after he obtained information under the Right to Information Act, 2005 on 04.10.2010, after which he submitted the representation. Therefore, delay in filing the Original Application should have been condoned. Opposite party no.1 had also filed MA No. 295 of 2018 for amendment of the Original Application to quash the proceeding of the review committee dated 30.08.2004 and the said MA was pending. Therefore, the continuation of the order of suspension from 03.04.2004 had been challenged and it was not necessary to challenge the proceedings of the review committee. Consequentially, MA No. 295 of 2018 was dismissed. Finally, on 06.01.2020, the Page 8 of 18 OA as well as the MA for condoning the delay in filing the OA were heard together. Since the order of compulsory retirement had not indicated the position of the order of suspension and as such, no independent order had been passed as to how to treat the order of suspension period while passing major punishment of compulsory retirement, thereby, the Tribunal considered the same and passed the order impugned. Consequentially, the Tribunal has not committed any error apparent on the face of the record, so as to exercise the writ jurisdiction of this Court to interfere with the order so passed by the Tribunal. 5. This Court heard Mr. S.B. Jena, learned counsel appearing for the petitioners and Mr. N.R. Routray, learned counsel appearing for opposite party no.1 in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned Counsel for the parties, the writ petition is being disposed of finally at the stage of admission. Page 9 of 18 6. Before delving into the merits of the case, for a just and proper adjudication of the case Sub-rules (5) and (7) of Fundamental Rules (FR) 54-B are referred to:- the whole of “(5) In case other than those falling under sub rules (2) and (3) the Government servant shall subject to the provisions of sub-rules (8) and (9) be paid such amount not being the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. xxx xxx xxx (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the 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 order the period of suspension shall be converted into leave of any kind due and admissible to the Government servant..........” that 7. The Tribunal, while considering the pleadings of the parties, formulated two grounds, such as:- (i) The applicant failed to raise the issue earlier when he had filed cases unsuccessfully challenging the suspension order and the punishment orders and hence, it is not open to raise the issue belatedly in this OA. Page 10 of 18 (ii) The OA is barred by limitation in view of delay which has not been explained satisfactorily. While answering ground (i), the Tribunal extended the benefit in favour of opposite party no.1. Similarly, while answering ground (ii), the same was also decided in favour of opposite party no.1. 8. Taking into consideration the factual matrix, as delineated above, it is made clear that when the petitioner was placed under suspension, as per the provisions contained in sub-rules (6) and (7) of Rule 10 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, the order of suspension has to be reviewed before expiry of 90 days period. To substantiate such contention, the opposite party no.1, having received the information under the Right to Information Act, 2005, stated that no
Decision
order regarding review of his suspension was communicated to him and the matter came to his knowledge after receiving the information on 04.10.2010/21.10.2010 under the Right to Information Act, 2005, after which he submitted a representation on 25.10.2010 before the authorities. Page 11 of 18 9. But fact remains, while opposite party no.1 was under suspension, the punishment of compulsory retirement was imposed on him vide order dated 16.04.2009. The disciplinary authority had to pass an order as to how the period of suspension will be treated. Sub- rules (5) and (7) of the Fundamental Rules (FR) 54-B are applicable to the period of suspension, when a suspended government servant is punished in the disciplinary proceeding. Needless to say, the order of punishment of compulsory retirement was imposed, vide order dated 16.04.2009, in which nothing has been mentioned with regard to the manner of treating the suspension period. As per Sub-rule (5), the disciplinary authority should have passed the order as to how the suspension period was to be treated, but it was not done. The punishment order dated 16.04.2009 further implied that the suspension period cannot be treated as on duty, as per Sub-rule (7) of FR 54- B since no specific order to that effect was made by the competent authority. As a consequence thereof, opposite party no.1 could have challenged treatment of his Page 12 of 18 suspension period, while challenging the punishment order, as both the issues were interlinked. But a solemn duty is cast on the competent authority to pass an order, either as a part of the punishment order or by a separate order about treatment of the suspension period as required under Sub- rule (5) of FR 54-B. But nothing has been placed on record to indicate as to why the order of punishment has not mentioned about the treatment of the suspension period, though as per Sub-rule (7) of FR 54-B, it is incompetent on the part of the competent authority to pass an order with regard to the suspension of opposite party no.1 while passing the order of punishment of compulsory retirement. The disciplinary authority could have passed an order under Sub-rule (5) of FR 54-B, which was necessary, since opposite party no.1’s qualifying service for the purpose of pension/pensionary benefits depends on how the suspension period was treated. 10. At this stage, it is of relevance to have a glance on Rule 23 of the CCS (Pension) Rules, 1972, which reads as follows:- Page 13 of 18 “23. Counting of periods of suspension.- Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified; in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare.” 11. The above mentioned provision, on a careful reading, also requires the competent authority to pass an order as to what extent the suspension period would be counted for the purpose of qualifying service of opposite party no.1, on which the pension and pensionary benefits of opposite party no.1 would depend. To what extent the period of suspension has been considered for the purpose of pensionary benefits has not been furnished by either of the parties in the Original Application. 12. On general principles, an order of interim suspension will end with a final order made in the enquiry proceedings or the conclusion of the investigation or enquiry or trial in relation to the criminal offence pending which the order of suspension had been made. Page 14 of 18 In Om Prokash Gupta v. State of U.P., AIR 1955 SC 600, the apex Court held, the order of suspension could only come to an end with an order replacing it. For example, if as a result of the enquiry an order of dismissal by way of penalty had been passed, the order of suspension lapsed with the passing of the order of dismissal. In H.L. Mehra v. Union of India, AIR 1974 SC 1281: (1974) 4 SCC 396, the apex Court held:- “Now, when the order of dismissal is passed, the vinculum juris between the Government and the servant is dissolved: the relationship of master and servant between them is extinguished. Then the order of suspension must a fortiori come to an end.” 13. In view of the above settled position of law, it is made clear that even though the interim suspension order passed by the authority merged with the final order of compulsory retirement, but no order has been passed with regard to treatment of the suspension period in the order of compulsory retirement. As a consequence thereof, the pensionary benefits of opposite party no.1 would be affected, depending on how his suspension period was to be treated. Therefore, the competent authority was required to Page 15 of 18 pass an order regarding suspension period of opposite party no.1, which has not been done. Since no such order has been placed either before the Tribunal or before us by the parties in their pleadings as required under Sub-rule (5) of FR 54-B, the contention raised by the learned counsel for the petitioners, that opposite party no.1 did not raise this issue earlier, will not be helpful for the petitioners, in view of the aforesaid reasons. Therefore, this Court is of the considered view that since no order has been passed with regard to manner of treatment of the period of suspension, it would affect the pension and pensionary benefits under Rule 23 of CCS (Pension) Rules, 1972. 14. The stand of opposite party no.1 to treat him on duty after 02.04.2004, since the suspension order was not extended after review, as per Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965 read with the Office Memorandum dated 19.03.2004, cannot be accepted in view of Sub-rule (7) of FR 54-B and since the punishment as per order dated 16.04.2009 was upheld by the Tribunal and the opposite party no.1 failed to raise the issue in earlier Original Page 16 of 18 Application filed by him challenging the punishment order. Therefore, the claim for payment of full salary/increments during the said period of suspension treating it as on duty cannot be sustained. However, the claim for counting the above period for pension and pensionary benefits of opposite party no.1 certainly deserves consideration. 15. Accordingly, the direction given by the Tribunal to treat the suspension period of opposite party no.1 from 03.04.2004 till the date of compulsory retirement from service as qualifying service for the purpose of pension and pensionary benefits and to grant him all consequential benefits, including arrear differential pension and pensionary benefits, as per the provisions of law, cannot be said to be faulted with so as to cause an interference by this Court. Rather, there is ample force with regard to extension of such benefit to opposite party no.1. As a consequence thereof, this Court is not inclined to interfere with the order dated 20.01.2020 passed by the Central Administrative Tribunal in O.A. No. 17 of 2011 under Page 17 of 18 Annexure-6, rather directs the petitioners to comply the same. 16. In the result, therefore, the writ petition stands dismissed. However, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Orissa High Court, Cuttack The 13th July, 2023, Arun Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 13-Jul-2023 17:55:43 Page 18 of 18