Jagdish Prasad Gupta @ Jagdish Gupta vs The State of Bihar

Dr. Ravi Ranjan, J. (Oral)—I have heard learned counsel for the petitioner as well as the State and have perused the records of this case.

The petitioner seeks quashing of the order as contained in memo no.434(12) dated 05.05.2010 passed by the respondent no.3, as contained in Annexure-1, by which the claim of the petitioner for payment of salary from 01.07.1973 to 17.07.1995 has been rejected. It has been held that the petitioner would not be entitled for even subsistence allowance for the aforesaid period upholding the earlier order dated 17.07.1995. The petitioner further seeks a direction to the respondents to pay his full salary for the aforesaid period along with statutory interest etc. and further for counting the services of the petitioner from the period commencing from 01.07.1973 to 30.09.2003, i.e., the date of retirement of the petitioner as continuous service and fixing his pension and other retrial dues.

Short facts which would be necessary for consideration in this case are enumerated as under:

The petitioner claims to have been appointed in the year 1964 on the post of Enumerator of small pox and was posted at small pox Branch Health Department under Assistant Medical Officer (Health), Saharsa. Subsequently, he was diverted in the section of Family Planning Centre in the year 1969. The petitioner further claims that he was reappointed on 18.07.1969 on the post of Computer and had joined at Rural Family Planning Centre at Mahanar. Subsequently, a first information report was lodged against the petitioner and others by the Officer-in-Charge, Rural Family Planning Welfare Centre, Mahnar regarding certain misappropriation of fund and forged withdrawal of amount. The petitioner, thereafter, was arrested by the police and, accordingly, was suspended on 15.09.1972. Vide Annexure-3, which is a communication dated 19.12.1972, the District Family Planning Officer , Muzaffarpur had written to the Medical Officer, Family Welfare Centre, Mahanar that the petitioner and other co-accused persons shown the first information report concerned would be paid subsistence allowance from the date of suspension through the Superintending Officer, Hajipur in terms of Rule 96(1) of the Bihar Service Code. The petitioner, thereafter, was granted bail and it is claimed that he represented himself in the office of the Medical Officer, in-Charge, Rural Family Planning Officer, Mahanar, i.e, the place from where he was suspended. In the meantime, it is stated, that the petitioner seriously fell ill and subjected to treatment. During the period of suspension his wife and son died one by one which also affected the mental and physical health of the petitioner who also developed rheumatic heart decease. Subsequently, the trial arising out of criminal F.I.R. against the petitioner bearing G.R.No.746 of 1972, T.R. No.309 of 92 came to its logical conclusion as a judgment of acquittal was passed and the petitioner and other co-accused persons were discharged from the liability of their bail bond. Thereafter, the petitioner filed representation before the concerned Civil-Surgeon-cum-Chief Medical Officer, Hajipur informing him regarding his acquittal from the criminal charges and for revocation of suspension and acceptance of his joining and also for payment of arrear. However, despite the representation and further correspondence to the Civil Surgeon-cum-Medical Officer and the Additional Chief Medical Officer, Muzaffarpur, as contained in Annexure-5, 5/A,6,7,8,9,10 and 11 etc., no action was taken. Thereafter, the petitioner approached this Court by filing C.W.J.C. No.10060 of 1993 for issuance of direction for revocation of suspension and payment of salary as well as other allowances. The aforesaid writ petition was disposed of by an order dated 08.02.1995 as contained in Annexure-12 directing the Additional Director, Department of Health to examine the grievance of the petitioner and pass an appropriate order in accordance with law within a period of two months. However, after lapse of five months an order dated 17.07.1995, as contained in Annexure-13, was passed by the Additional Director holding that since the petitioner remained absent during the period of suspension from the concerned school unauthorisedly and without any permission, the period of suspension would be adjusted as unauthorized leave for which he would not get any subsistence allowance or any salary and the period would be considered as break in service. However, order of suspension was revoked on that date. Thereafter, the petitioner was allowed to join vide Annexure-14 dated 11.09.1995. The Petitioner challenged the aforesaid order (Annexure-13) by filing C.W.J.C. No.4679 of 1996 which was again disposed of vide order dated 11.11.2008 (Annexure-15) directing the Additional Director to consider the entire facts before passing a final order and, if the petitioner files a representation within three weeks, the respondent concerned was directed to pass a speaking order within a period of four months as to whether the absence of the petitioner during the suspension period would be treated as break in service or whether he would be entitled for subsistence allowance for that period. The petitioner, thereafter, filed his representation, a copy of which stands appended as Annexure-16. However, when no action was taken by the concerned authority then the petitioner filed M.J.C. No.3633 of 2009 for initiation of a proceeding of contempt. Thereafter, it appears that vide Annexure-17 dated 30.09.2009, the Deputy Director, Health Services, Bihar sought certain information from the concerned Civil Surgeon, Vaishali about the petitioner. The Medical Officer , Mahanar had written to the Civil Surgeon vide letter no.220 dated 05.10.2009 (Annexure-18) informing that due to the fire caused by antisocial elements on 18.04.1998 itself records were burnt they are not available, however, on the basis of information received from the posted employees it is established that during the suspension period petitioner''s headquarter was at Mahanar and he regularly used to come office during that period. The Civil Surgeon vide Annexure-19 dated 12.10.2009 had communicated the same to the Deputy Director, Health Services, Bihar, Patna. However, thereafter the impugned order as contained in Annexure-1 was passed rejecting the claim of the petitioner.

A counter affidavit has been filed on behalf of the respondent no.6 and a reply thereto has been filed by the petitioner. In the counter affidavit a stand has been taken that admittedly the petitioner did not remain present in the headquarter during the period of suspension, thus, that period has rightly been treated to be break in service and the petitioner has rightly been deprived from salary or subsistence allowance. However, in reply to the counter affidavit it has been stated on behalf of the petitioner that Medical Officer as well as the Civil Surgeon concerned have clearly taken a stand that the petitioner remained present in the headquarter during the period of suspension. Thereafter, on 30.03.2010, i.e., prior to the passing of the impugned order, the Director-in-Chief himself directed the Civil Surgeon, Vaishali to pay the subsistence allowance to the petitioner for the concerned period commencing from 01.07.1973 to 17.07.1995 so that, after the necessary payment, the same could be conveyed to this Court in the concerned contempt proceeding but surprisingly on 05.05.2010, the respondent has passed the impugned order depriving the petitioner from subsistence allowance or pay to the petitioner for the concerned period though in view of the direction of the Director-in-Chief, as contained in Annexure-25, as stated above, details etc. for payment were also prepared by the office, a copy of which appended as Annexure-26. From the perusal of the impugned order it appears that the petitioner has been ousted chiefly on two grounds. Firstly, he neither presented nor had he made any application for payment of subsistence allowance during the period concerned. Secondly, he has also not furnished any certificate that he is not engaged in any other employment, business, profession or vocation in compliance of Rule 96 of the Bihar Service Code. It is also stated that during the period of 20 years, the petitioner neither informed regarding his illness nor had he given any information regarding the death of his family members. Learned counsel for the petitioner has submitted that he has clearly stated in the representation, as contained in Annexure-16, that he remained in Headquarter and he was not employed during the aforesaid period in any Government or non-Government office. However, after acquittal in criminal case, he had filed an application dated 16.07.1992 for revocation of suspension and payment of salary etc.

On consideration of rival contention, following points emerge out for determination:-

(i) As to whether during the suspension period, the concerned person would be required to present himself in the office of the Headquarter everyday failing which he would not be paid any subsistence allowance and in case the suspension is revoked in future he would not be entitled for any pay/salary etc?

(ii) As to whether the averment made in paragraph no.7 of the representation filed by the petitioner (Annexure-16) can be considered to be sufficient compliance of Rule 96 which requires a certificate to the extent that he was not engaged in any employment.

Learned counsel for the petitioner has placed reliance upon a decision of Andhra Pradesh High Court in Zonal Manager, Food Corporation of India and others v. Khaleel Ahmed Siddiqui [1982 LAB. I.C.1140] holding that the expression ''suspension'' means debarring an employee from service temporarily. When an employee was debarred temporarily from service he could not be compelled to attend office and mark his attendance daily and also be visited with penalty if he does not mark his attendance. Instructions to that extent cannot be regarded as merely filling up gaps in the regulations when they are inconsistent with the rules. In the present case also, learned counsel for the State has not been able to show that any statutory rule which requires daily attendance of suspended employees.

In a decision of this Court dated 08.08.1995 passed in C.W.J.C. No.2614 of 1994 (Md. Usman v. The State of Bihar & ors.), it has been held that in case an employee of the Government under suspension continues as an employee of the Government, and it cannot be deemed that his employment came to an end because he was suspended. How the period of suspension has to be treated will depend upon the order which would be ultimately passed in the proceeding pending against the petitioner. If the proceeding is not concluded and the concerned employee superannuates, he would be entitled to claim the period as pensionable service and also full wages for the period during which he remained suspended. In the present case also since no departmental proceeding has been initiated against the petitioner or if initiated, any punishment or penalty has not been imposed upon him, the question would be as to whether the petitioner would be entitled for full wages and the period should be considered to be counted for pensonable service.

So far as the first issue is concerned the same is no longer res integra as a Single Bench of this Court has considered the issue in Madandhari Singh v. State of Bihar & Ors. [1995 (2)All PLR 597]. Learned Single Judge has considered the ambit of Rule 96 of the Bihar Service Code as well as the circular issued by the Government bearing no.9703 dated 2.8.85 specially with respect to the question as to whether a Government servant under suspension is required to mark his attendance during the period of suspension as he continues to be Government servant even during the period of suspension and the Government pays his subsistence allowance and whether, it is expected of him that he would remain present in headquarters during the period of suspension and would be required to mark his attendance in the office of the headquarter and if he wants to leave the headquarter he will have to take permission of the controlling officer? This Court has held after consideration of the aforesaid documents that the said circular has been issued only to ensure the presence of the Government servant under suspension in the headquarters. Although the person concerned during the period of suspension does not cease to be government servant, the fact remains that he is not on duty either. It cannot be part of his service condition requiring marking attendance in the register but he has to remain in the headquarter. However, by headquarter it cannot be inferred that he should be present in the office throughout period like the other Government servants on duty but surely he should be available at the place where the headquarter exists so that in emergent situations, what is called exigency of administration, for example, when communal riots or some epidemic breaks out, his services can be utilized. However, more important aspect of the matter is that he should not be gainfully employed in some job, business or profession. Learned Single Judge has referred a decision rendered in Shankar Mandal v. State of Bihar [1994 (2) BLJ 154] holding that the employee for some reason can be can be asked to report to the headquarters on particular days only either in connection with a disciplinary proceeding or in the exigency of administration. Coming to the case in hand, the petitioner was suspended as a criminal trial was proceeding against him. However, he was not subjected to any departmental proceeding so that he would be required to remain present on the fixed dates in the departmental proceeding. That being the situation, in view of the legal position disclosed above, he was required only to remain present in that particular place where his headquarter was existing and it was not at all required for him to visit the office daily to put his signature on a register showing his presence. He was required to remain in the place of headquarter only due to the fact that in case of administrative exigency, he may be required in the office on a particular date. However, it is nobody''s case that when he was required and called in the office (headquarter) on any particular date and he could not come and record his presence in the office.

In above view of matter, this Court would also not have any difficulty in following the aforesaid line of decisions. It could not be demonstrated before me on behalf of the State respondents that the petitioner was necessarily required to mark his attendance everyday in the office of his headquarter. The issue as to whether the petitioner remained all along present on the place where his headquarter exists or not is a matter of inquiry as the petitioner has stated that he was all along present. However, no inquiry appears to have been made by the respondent concerned as to whether the petitioner remained present during the period of suspension in the place where headquarter existed or not. Having regard to the facts and circumstances as discussed above, in my opinion, the order as contained in Annexure-1 cannot be sustained in law.

So far as the second issue is concerned, the petitioner, in his representation (Annexure-16), has clearly stated that he was not gainfully employed anywhere during the period of suspension. If the aforesaid statement cannot be considered and if a certificate in particular format was required in that case the concerned authorities could have directed the petitioner to furnish such type of certificate which was required under the law. It does not appear that such step was taken by the respondents. That having not been done, and a clear-cut statement being there in the representation of the petitioner that he was not gainfully employed in any concerned department, it cannot be presumed that the petitioner was actually somewhere employed. A finding in this regard should have been recorded after giving opportunity to the petitioner to produce the certificate in a proper format. On this score also, the impugned order cannot survive. That apart, it does not appear that representation of the petitioner has at all been considered by the respondent no.3 while passing the impugned order as no finding has been recorded on the points raised by the petitioner in Annexure-16. Apart from above, the respondent no.3 has not considered its earlier direction as contained in the letter dated 30.03.2010 addressed to the Civil Surgeon, Vaishali as contained in Annexure-25 to the rejoinder to the counter affidavit filed on behalf of the petitioner directing him to pay the subsistence allowance for the period commencing from 01.07.1973 to 17.07.1995. It is not stated as to why, when the petitioner''s arrears of subsistence allowance were allowed earlier, now a different stand has been taken by the Direct-in-Chief. In view of aforesaid, as I have already held, the impugned order (Annexure-1) cannot be sustained and the same is quashed and set aside. However, the matter is remitted back to the respondent no.3, the Director-in-Chief of Health Services, Department of Health and Family Welfare, Govt. of Bihar, Patna to re-consider the case of the petitioner in view of the observations and findings recorded in this order and pass necessary order within a period of three months from the date of receipt/production of a copy of this order.

Accordingly, this writ application stands allowed to the extent as indicated above.