Dr. Gazi Giasuddin Ahmed vs The Assam Administrative Tribunal and Others

S.N. Phukan, J.—The writ Petitioner Dr. Gazi Giasuddin Ahmed was a Professor and Head of the Department of Radiology in the Gauhati Medical College, and he was transferred to Assam Medical College, Dibrugarh by order dated 12th November 1974. He submitted a representation for reconsideration of the transfer order alongwith a leave application and also handed over charge on 30.11.74 to the Principal, Gauhati Medical College. He was placed under suspension by order dated 18.12.74 and charge-sheet was issued. Written reply was also subdued and an enquiry was held. Thereafter, on 6.8.75 the State Govt. accepted the findings of the Enquiry Officer who found the Petitioner guilty and accordingly issued a second show cause notice which was replied to by the writ Petitioner. Thereafter, by order dated 23.9.75 he was removed from service.

This Court was approached by filing a petition under Article 226 of the Constitution of India on 11.11.76. But in the meantime, as the Assam Administrative Tribunal was constituted, the petition was withdrawn with liberty to re-file and an appeal was filed before the Tribunal which was dismissed by order dated 27.9.78. Against the said order another writ petition was filed which was disposed of on 17.7.79 remanding the entire matter to the Tribunal. By order dated 27.10.79, the Tribunal decided to examine the Principal of the Gauhati Medical College and another person. The Petitioner being aggrieved filed another writ petition before this Court, As the Govt. expressed that the case of the Petitioner would be considered afresh and therefore, by order dated 5.10.83, this Court allowed the Petitioner to withdraw the writ petition withdraw the writ petition with liberty to come again. On 16.5.85, the writ Petitioner was re-instated in the post of Professor of Radiology at the Gauhati Medical College and the said order is available at Annexure-5 to the present writ petition. Petitioner joined his duties on 17.6.85 and also submitted a representation to the Govt. as there was no order regarding the period of suspension as well as the period of which the Petitioner was out of service. Govt. asked the Petitioner to indicate his earning from other sources during the above period from 23.9.75 to 16.6.85. On 17.3.87 Petitioner submitted a reply stating inter alia, that during the above period there was no income from any other employment/business, but his earning was confined to his private practice. It was also stated by the Petitioner that he was doing private practice even when he was working as a Govt. servant, inasmuch as, he did not get any non-practising allowance. On 19.11.87, the Govt. passed an order that the period of service of the Petitioner from 23.9.75 to 16.9.85 shall be treated as "on duty" for the purpose of increment and pension only. But the said period shall be treated as "non-duty" for the purpose of pay and allowances. The said order is available at Annexuse-9 to the writ petition. On the same date, the Accountant General was informed by a letter vide Annexure-10 that the period of the suspension of the writ Petitioner from 17.12.74 to 22.9.75 shall be treated as ''on duty'' for the purpose of leave, increments and pension, only. An appeal was filed by the writ Petitioner before the Administrative Tribunal which was registered as Case No. 47 ATA/88, but it was dismissed by the Tribunal holding, inter alia, that the order of subsequent re-instatement was in the nature of exgratia order and that due to private practice of the Petitioner during the period of unemployment he was gainfully employed and as such the writ Petitioner was not entitled to get any back wages. Hences, the present petition.

Although Rule was issued by this Court on the present petition on 14.12.88 till the date of argument, the Respondents did not file any counter-affidavit nor produce the record. Therefore, the petition was taken up for final disposal on the basis of statements made in the writ petition.

Heard Mr. N.M. Lahiri, learned Counsel for the writ Petitioner and Mr. D.P. Chaliha, learned Govt. advocate.

I have been taken through the impugned order of the Administrative Tribunal. The Tribunal was of the view that re-instatement order was neither appellate nor a Review order and the Notification did not indicate that the State Govt. considered the matter on merit. The Tribunal also held that the said order was merely exgratia executive order of re-instatement without absolving the Petitioner of the charges for which he was punished and accordingly held that the Petitioner, was not exonerated of the charges for which be was found guilty.

In service jurisprudence, the question of exgratia executive order is unit known Therefore the Tribunal erred in law incoming to the above conclusion. The Tribunal ought to have considered the order of re-instatment with reference to, Fundamental Rules for giving appropriate findings.

Regarding payment of salary for the period in question of Tribunal held that the Petitioner was admittedly employed gainfully as a renowned radiologist, in private practice throughout the period of suspension and also period during which he was out of service. The submission of the writ Petitioner that he was doing private practice even when he was working in regular capacity was rejected. The Tribunal took note of the act that according to the "general knowledge" of the earnings of a reputed radiologist in private practice it was obvious that after terminal ion from service the writ Petitioner got more time to do private practice as a result of which he could be reasonably expected to earn much more than before lie was out of service. On these grounds the prayer for back-wages was rejected. In my opinion his finding is based on conjecture and surmises and not on basis of any record. Therefore, it cannot stand. In fact the Tribunal ought to have consider the provisions of Fundamental Rules, more, particularly, F.R. 54 to find out as to whether the writ Petitioner was entitled to get any amount or whether the order dated 19th November, 1987 (Annexure-9) was passed in violation of the provisions of F.R. 54 or not as the Tribunal has to ascertain legally rather the writ Petitioner was entitled to get his salary and allowances fort he period in question.

Relevant provisions of 54 runs as follows:

F.R. 54 (1) when a Government servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal of review or would have been so re-instated but for his retirement on superannuation while under suspension preceding the dismissal removal or compulsory retirement the authority competent, to order re-instatement shall consider and make a specific order:

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be,

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority competent to order re-instatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, provided that where such authority is of opinion that the termination of the proceedings instituted, against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any submitted by him direct for reasons to be recorded in writing, that the government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such proportion of such pay and allowances as it may determine.

(3) In the case falling under sub rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement as the case may be shall be treated as the period spent on duty for all purpose.

A. Division Bench of this Court in Mthilesh Kumar Choudhury v. The Director of Education, N.E.F.A. Assam law Report 1972 Gau 188 relying on a decision of the apex court reported in M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, held that under Fundamental Rule 54 before an order affecting emoluments under Rule 54(3) is passed a reasonable opportunity must be given to the Government servant as principle of natural justice demands opportunity to be offered against the action proposed.

In Bawngleia v. Union Territory, Mizoram AIR 1977 1 a Division Bench of this Court held that an order under F.R. 54 can be passed only after giving the government servant an opportunity of being heard. As in that case such an opportunity was not given the impugned order was set aside.

The apex court in B.D. Gupta Vs. State of Haryana, following the earlier decision reported in M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, held that if an order effects the employee financially, it must be passed after an objective consideration and assessment of air relevant facts and circumstances and after giving the person concerned full opportunity to make out his own case about me order.

In the case in hand, the charge against the writ Petitioner was that he did, not comply with the order of transfer issued by the Govt. and on this charge, the; Petitioner was placed under suspension and ultimately he was removed from service. He was re-instated after long battle to the post of Professor of Radiology by the order dated 16.5.85 (Annexure-5) which runs as follows:

NLB. 279/78/pt/108: Dr. G.G. Ahmed Professor & Head of Deptt. of Radiology, Guwahati Medical College, Guwahati who was removed from service vide Govt. Notification No. HLB. 239/66/166 dated 23.9.75 is reinstated to the post of Professor of Radiology and posted at Guwahati Medical College, Guwahati from the date of joining against a superannuary post of Professor of Radiology created vide this Deptt. letter No. HLB. 275/78/pt/107 dated 15.6.85.

(Sd/- K. Bora.) Commissioner & Secretary to the Govt. of Assam, Health & F.W.(B) Department.

The order by which the period in question was treated as "on-duty" for some purposes and as "non-duty" for the purpose of pay and allowance runs as follows:

Dated Dispur, the 19th November/87. No. HLB. 279/78/pt/117: In continuation of this Department''s notification No. HLB. 279/78/pt/108 dated 15.6.85 reinstating Dr. G.G. Ahmed, Professor and Head of Department of Radiology Guwahati Medical College Guwahati in service, the Governor of Assam is pleased to treat the period from 23.9.75 to 16.9.85 as ''on duty'' for the purpose of increments and pension only in respect of Dr. G.G. Ahmed but the period should be treated as ''Non-duty'' for the purpose of pay and allowances.

Sd/''L. Ryajah Secretary to the Govt. of Assam, Health & Family ''Welfare Department.

Keeping in view the above two orders now me questions to be decided are whether an order can be passed to treat a Govt. servant on duty for some matters and non-duty for the purpose of pay and allowances and secondly whether State Govt. while treating the writ Petitioner as "Non-duty" for the purpose of pay and allowances the procedure laid down in F. R. 54 was duly followed. It may be stated that according to Mr. Chaliha, the present case comes under sub-rule (1) of F. R. 54 and not under sub-rule (2) of the said F. R.

Sub-rule (2) of F. R. 54 is applicable when a Government servant is re-instated if the concerned authority is of the opinion that the Government servant has been fully exonerated and in that case subject to provisions of Sub-rule (6) he shall be paid lull pay and allowances to which he would have been entitled, had he not been dismissed or removed or compulsorily retired etc. Therefore, this sub-rule is applicable when a Government servant is fully exonerated, Sub-rule (1) is for cases where as a result of appeal or review, a Govt. servant is re-instated into service. Now the question in the case in hand is as by the re-instatement order, the writ Petitioner was re-appointed whether he was exonerated of all the charges. From the said Notification dated 15.6.85 no reason has been stated for re-instatement. Therefore, in my opinion it is a case of re-instatement after writ Petitioner was fully exonerated and accordingly the order will come under Rule (2) of F. R. 54, As the writ Petitioner has been fully exonerated of the charges he is entitled to get full pay and allowances in terms of Sub-rule (2) of F. R. 54.

I may state here that the writ Petitioner at the relevant time was a Professor of Radiology and the only ground for which he was placed under suspension and thereafter dismissed was due to non-compliance of the order of transfer find that a statement has been made by the writ Petitioner that after the transfer order he filed a representation and also submitted an application for leave. As the writ Petitioner at the relevant time was holding the post of Head of the Department of Radiology he was quite a senior teacher of the Medical College as otherwise writ Petitioner would not have been allowed to hold the post in question. Therefore, tire dismissal order is disproportionate to the alleged charge more particularly, as the writ Petitioner filed an application for leave and also representation and therefore, in view of the settled law the order of termination is liable to be quashed. On this ground also the notification dated 15.6.85 re-instating the Petitioner cannot be faulted and it cannot be said that the re-instatement ''appears to be exgratia in nature'' as held by the Tribunal, For the reasons slated above, the writ Petitioner is entitled to get his salary and allowances for the period in question.

Assuming as contended by the learned Govt. advocate that the case of the present Petitioner comes under Sub-rule (1) of F. R. 54, let me examine as to whether 2 orders issued by the State Govt. on 19th November, 1987 vide Annexure-9 & 10 to the writ petition refusing to pay the salary and allowances to the writ Petitioner can be said to be valid. In view of the above law laid down, before any specific order is passed regarding payment of pay and allowances for the period in question and also whether the above period has to be treated as spent on duty a show cause notice has to be issued on the writ Petitioner, which was admittedly not done in the case in hand. Therefore, action of the State Govt. is arbitrary and illegal.

Of-course; regarding application of principle of natural justice there is no hard and fast rule and if the Petitioner can reasonably put forward his grievance can be held that sufficient opportunity was given to him.

In the case in hand the writ Petitioner submitted a representation claiming his pay for the above period and it was duly considered and was rejected by notification dated 28th January, 1988 vide Annexure-11. This is a cryptic order and it was stated that there was no new ground for reviewing the order. As the record are not before this Court, it is difficult to find out as to what was the ground on (sic) earlier order was pissed by the State Govt. Therefore, the above order is the acceptable, inasmuch as, no reason has been given.

It has been urged on behalf of the Respondents that as the Petitioner was doing his private practice during the above period he is not entitled to get any wages. As stated above, the Tribunal was also of the same view and held that reputed radiologist earns through private practice sufficient income to sustain a fairly decent life style. This finding of the Tribunal, as I have already stated, is not based On any evidence therefore, it is not sustainable in law.

Mr. Lahiri, learned Counsel for the writ Petitioner has urged that even while the writ Petitioner was working as full time Govt. servant, he was allowed it do private practice as he was not getting, any non-practicing allowance, Therefore according to learned Counsel lively because the writ Petitioner was earning from his private practice cannot be a ground to project Us present claim for back salary and allowances. I find considerable force in the submission of the learned Counsel for the writ Petitioner and accept the same.

For the reasons stated above, the present petition is accepted, rule is (sic) absolute and the Respondents are directed to pay the arrear salary and allowance to the writ Petitioner from 17.12.74 to 16.6.85 within a period of 6 months (sic) today. The parties to bear their own costs.