Jagannath Rai vs The State of Bihar and Others

Rekha M. Doshit, C.J.—This petition under Article 226 of the Constitution has been filed by a Judicial Officer to challenge the decision dated 12th March, 2010 of the High Court not to allow the petitioner full pay and allowances during the period he was placed under suspension pending the disciplinary proceeding. It appears that certain bail orders made by the petitioner, the then Additional District & Sessions Judge, Fast Track Court No. 2, Jamui, were the subject-matter of scrutiny by the High Court. After such scrutiny a disciplinary proceeding was initiated against the petitioner under the Memorandum of charge dated 24 September, 2009. Pending the scrutiny and the disciplinary proceeding, under order dated 29 July, 2009, the petitioner was placed under suspension. After holding due departmental enquiry, the enquiry officer recorded findings in favour of the writ petitioner. Pursuant to the said findings the High Court, under its order dated 10th March, 2010, decided to exonerate the petitioner and to revoke the order of suspension. He was ordered to be posted as Additional District & Sessions Judge at Jamui. It was further ordered that during the period of suspension "he shall be treated on duty for all purpose except that he shall not be entitled to anything apart from subsistence allowance". In other words, the petitioner was not allowed full pay and allowances for the period spent under suspension although he was fully exonerated. The petitioner''s representation against the said order was rejected by the High Court on 24th July, 2010. Feeling aggrieved the petitioner has approached this Court under Article 226 of the Constitution.

Mr. V.K. Sharma has appeared for the petitioner. He has submitted that in the event the disciplinary authority intends to withhold the full pay and allowances payable to a Government servant during the period of his suspension, such Government servant is entitled to a hearing. In support of this submission Mr. V. K. Sharma has relied upon the judgments of the Hon''ble Supreme Court in the matters of M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, ; Manzoor Ahmed Mazumdar v. State of Meghalaya, (1997) 11 SCC 374. and the judgments of this Court in the matters of Shri Mahabir Prasad Vs. The State of Bihar and Others, ; Ramashray Prasad Singh Vs. The State of Bihar and Others ; Pramod Kumar Vs. The Champaran Kshetriya Gramin Bank and Others, and Biswanath Mitra Vs. State of Bihar and Others .

Learned advocate Mr. Piyush Lall has appeared for the High Court. He has contested the petition. He has submitted that the petitioner was placed under suspension under Rule 96 of the Bihar Service Code. The said Rule 96 does not envisage an opportunity of hearing for not allowing the full salary to the delinquent under suspension. He has submitted mat the aforesaid judgments of the Hon''ble Supreme Court and the High Court deal with the order of suspension made by way of punishment, revocation thereof and consequential reinstatement of the delinquent in service. The said judgments shall have no applicability to the facts of the present case. In support of his submission he has relied upon the judgments of the Hon''ble Supreme Court in the matters of R.P. Kapur Vs. Union of India (UOI) and Another, and V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, .

Rule 96 of the Bihar Service Code enables the disciplinary authority to suspend a Government servant pending the disciplinary proceeding against him. The said Rule % further provides for payment of subsistence allowance to the Government servant placed under suspension. Rule 97 of the Bihar Service Code specifically deals with the reinstatement of a Government servant after he has been dismissed, removed or suspended. It provides, inter alia, for payment of full pay and allowances during the period the Government servant was dismissed or removed or suspended, if the authority is of the opinion that the Government servant had been fully exonerated or that his suspension was wholly unjustified.

In our opinion Mr. Lall is right in submitting that the aforesaid Rule 97 of the Bihar Service Code deals with the order of punishment of dismissal or removal or suspension. It cannot be equated with the suspension pending disciplinary proceeding envisaged by Rule 96 of the Bihar Service Code.

It is evident that in Rule 96 of the Bihar Service Code no provision is made in case of revocation of suspension on completion of the disciplinary proceeding or at any stage of a disciplinary proceeding. Similarly, Rule 9 of the Bihar Government Servants (Conduct, Control and Appeal) Rules, 2005 provides for suspension of a Government servant where a disciplinary proceeding is contemplated or is pending. Rule 11 thereof provides for the treatment of service on reinstatement and admissibility of pay and allowances after revocation of suspension. Sub-rule (1) thereof enjoins the disciplinary authority to make specific order regarding pay and allowances to be paid to the Government servant for the period of suspension and whether or not such period shall be treated as the period spent on duty. Sub-rule (3) thereof enjoins the disciplinary authority to allow full pay and allowances to the Government servant if in the opinion of the disciplinary authority the suspension of the Government servant was wholly unjustified.

We are of the opinion that the treatment of the period of suspension after the disciplinary proceeding has been concluded and the Government servant is reinstated in service is consequential order and no specific hearing is required to the Government servant. It is the discretion of the disciplinary authority to be exercised on objective satisfaction on the subjective materials before it.

In the present case, as recorded hereinabove, it was the judicial orders made by the petitioner which were made subject-matter of the disciplinary proceeding. In the disciplinary proceeding the petitioner was fully exonerated and he was ordered to be reinstated in service. While directing reinstatement in service, the High Court did in consonance with Rule 96 of the Bihar Service Code or Rule 11 of the 2005 Rules, direct that the period of suspension shall be treated as period spent on duty for all purposes. However, the High Court in its discretion did not allow full pay and allowances for the said period.

We are conscious, there might be cases where although the delinquent has been exonerated, he may not be found entitled to or it may not be considered expedient to allow full pay and allowances during the period of suspension. The payment of pay and allowances during the period of suspension is not a matter of course once the Government servant is reinstated in service after he is exonerated in the disciplinary proceeding and the order of suspension is revoked.

In the present case, however, we do not find any justification for the High Court to refuse full pay and allowances to the petitioner herein. As we have noticed, the charge against the petitioner was that of unbecoming officer based on the scrutiny of the judicial orders made by the petitioner and in the disciplinary proceeding the petitioner has been fully exonerated. In the circumstances, we do not see any justification in not allowing the petitioner full pay and allowances for the period he was placed under suspension.

Ordinarily, the Court would not interfere with the decision of the High Court taken in its administrative capacity. However, in the present case we find that the High Court having exonerated the petitioner; having considered it fit to treat the period of suspension as the period spent on duty; there was no reason why the petitioner should not have been paid pay and allowances for the said period. Neither the contemporary materials brought on the record nor does the counter-affidavit made on behalf of the High Court make out a case for not allowing the full pay and allowances to the petitioner. For the aforesaid reasons, the petition is allowed. It is held that the petitioner is entitled to full pay and allowances for the period he was placed under suspension. We direct the respondents to pay full salary to the petitioner for the period from 29 July, 2009 to 10 March, 2010. The amount of difference in salary will be paid to the petitioner within eight weeks from today.