Laskhmi Kant Mishra vs State of Bihar (now Jharkhand) and Another

Vikramaditya Prasad, J.—The main question to be decided in this writ under Article 226 of the Constitution is whether the petitioner, who was a Government employee and was governed by the Bihar Service Code, 1952 (in short ''Code'') put under suspension for 17 years on certain charges of misappropriation, should have been paid the full salary for that period after his being reinstated to that post.

This question arises out of the simple facts that the petitioner was appointed as a Lower Division Clerk in the year 1961 in the department by the deputy Commissioner, Ranchi, and he was also posted after being confirmed on that post as cashier-cum-store-keeper, in Senha block in the District of Ranchi, in the year 1969. Then it transpires that by Memo No. 2219/11 dated 18.8.1969, the Deputy Commissioner, Ranchi suspended the petitioner with effect from 19.5.1969. Besides that two police cases being GR Case No. 1921/1969 and GR Case No. 1922/1969 were also filed against him and he was released on bail some time in April, 1970. Then it transpires that a departmental proceeding (vide Annexure 1) was initiated against him. In that departmental proceeding, the petitioner has waited for revoking of the suspension order. Subsequent thereto he filed a writ application, being CWJC No. 1298 of 1995(R) in which the respondents appeared, filed counter affidavit and also averred that the service of the petitioner has been terminated vide order dated 10.1.1986 (vide Annexure 2) and that writ was filed for quashing suspension order, consequently that writ was permitted to be withdrawn vide order dated 21.1.1986 so that the petitioner may file a departmental appeal. Then in paragraph 11 of the writ in hand the petitioner asserted that no evidence was adduced in his presence nor the petitioner was given any opportunity to produce his defence before the departmental enquiry and his service was terminated hurriedly.

When against that departmental enquiry, a departmental appeal was filed before the Commissioner, South Chhotanagpur Division, Ranchi, who is the competent authority to her the appeal, he by his order dated 2.5.1986 set aside the termination order of the petitioner and the matter was sent back to the Deputy Commissioner to pass appropriate orders (vide Annexure 3). The operative portion of the order passed by the appellate authority reads as follows :--

lsok& eq� ds fo''k; fn;s x;s Jh feJ ds vihy & vkosnu] mik;q� ds vkns''k] vkjksi] Jh feJ ds fn;s x;s tokc] tkap inkf/kdkjh dh tkap izfrosnu ,oa vU; lacaf/kr dkxtkrksa dks xkSj iwoZd i<+h gwa A tkap inkf/kdkjh vius tk�p izfrosnu esa Jh feJ ds tcko ds ckcr cgqr ls rF;ksa ij llaxr fu"d"kZ ij ugh igq�p ik;s gSa A Jh feJ dks lsok&eq� fd;s tkus dk mi;qZ�] yksgjMxk dk vkns''k �ekad 65 LFkk- fnukad 10-6-1986 dks ns[kus ls Li"V gksrk gS fd vkjksi izekf.kr gksus fo"k;d rF; ,oa lk{; lkexzh dk mYys[k Li"V :i ls ugh fd;k x;k gS A lsok&eq� fd;k tkuk ,d o`gr naM gS vkSj ,sls vkns''k izekf.kr rF; ,oa lk{; ij vk/kkfjr gksuk pkfg, A izLrqr ekeys esa ,slk djuk vkSj Hkh vko'';d Fkk] D;ksafd l{ke U;k;ky; }kjk Jh feJ dks QkStnkjh eqdneksa esa djhc&djhc mUgh vkjksiksa ls ojh dj fn;k x;k gS A

Then it transpires that pursuance of the order passed by the appellate authority, i.e., after the remand of appeal (vide Annexure - 4) the petitioner was directed to file show causes if he so liked. Show cause was tiled and by order dated 19.8.1987 (vide Annexure 50). The petitioner was censured and it was further ordered that since the petitioner has remained under suspension for more than 17 years as such, nothing will be paid more than what has been paid as subsistence allowance.

Thereafter an another departmental appeal was filed against the aforesaid order and that appeal was rejected (vide Annexure 6). On this rejection, the grievance of the petitioner is that it was illegal, void and without jurisdiction because it considers some other allegation such as recovery of certain Rubber Stamps which were allegedly found in the house of the petitioner which was not subject matter of the departmental inquiry or for that no charge was framed and before passing this order no second show cause was issued and, therefore, it is in complete violation of Article 311(2) of the Constitution. Then it transpires that the petitioner file a writ against that order bearing CWJ No. 1955 of 1990(R) which was disposed of vide Annexure 7. It is worthwhile to quote the relevant portion of Annexure 7.

"This writ petition, is therefore, partly allowed. Those part of the orders of the disciplinary and the appellate authority (Annexures 6 and 7 respectively) whereby and whereunder it has been ordered that the petitioner will not be paid full salary for the period of suspension are quashed. The disciplinary authority is directed to decide the question of payment of salary to the petitioner for the period during which he remained under suspension afresh in accordance with law after giving him a reasonable opportunity of being heard. The authority will decide this question within a period of three months from the date of receipt/production of a certified copy of this judgment. The other parts of the order passed by the disciplinary and appellate authority are confirmed and shall remain in tact."

In pursuance of the order passed by the Court in the aforesaid writ, the petitioner filed a show cause before the Deputy Commissioner, Lohardaga, and the Deputy Commissioner, Lohardaga, despite the order of the Court passed in the aforesaid writ, passed the impugned order.

The answering respondent appeared filed counter affidavit and contested the writ and main point of the counter affidavit was that the impugned order has been passed according to the law and as per the direction of the Court referred to above (supra).

Admittedly the petitioner is governed by the Bihar Service Code. Admittedly the petitioner was proceeded departmentally and the punishment of censure ultimately was awarded to him and admittedly he was reinstated to the post. It is also not in dispute that till 1986 he was put under suspension and therefore, a contentious issue arises whether he should be entitled to get full pay with effect of from the date of suspension till the date of reinstatement.

The learned counsel for the petitioner starts her argument from the premises that if the departmental proceeding continues for such a long period for no fault of the petitioner and if ultimately he was exonerated of the charges then he would/should have been given the entire pay admissible to him. The grievance of the learned counsel for the petitioner against the impugned order is that while passing the impugned order the disciplinary authority again heard on the same point, which were earlier remanded by the Commissioner in the first appellate order and this was not the issue or affirmed in the second appeal and therefore, this order deserves to be quashed.

To the contrary the learned counsel representing the State submits that no order either of the appellate Court or the High Court passed in the writ (supra) has directed/found that the petitioner was fully exonerated of the charges levelled against him rather the punishment of dismissal was converted into a punishment of censure. This itself speaks that the petitioner was not wholly exonerated of the charges. Had it been a case that the petitioner was fully exonerated of the charges then the question of awarding punishment even of ensure could not have arisen. This eventually proved that he was not exonerate of the charges fully. His further argument is that the case of the petitioner is covered by Rule 97(2) of the Code and not under Rule 97 of the Code.

I have considered both the rules. In the premises of the facts that have been discussed above when I look at the order passed by a single Judge of this Court in CWJC No. 1955 of 1990 (R) and the operative portion of that order has been quoted above, it is clear that the Court had directed the respondents only to consider the question of payment of full salary for the period of suspension because that part of the order impugned in that writ was only quashed and categorically the Court upheld the other part of the order which was assailed in that writ. I also agree to the contention of the learned counsel for the State that the punishment of dismissal was ultimately converted into a publishment of censure and there can be no denial that the censure is not a punishment and if there is a censure then naturally it is proved that the petitioner was not fully exonerated of the charges and if the petitioner was not fully exonerated of the charges then obviously his case is covered under Rule 97 of the Code and on this score the contention of the learned counsel for the State is bound to be upheld and accordingly is upheld.

Now coming to the question of payment of full salary. On the basis of the discussion that has been made above, it is necessary to reproduce herein below Rules 97(2), (3) and (4).

"Rule 97(2). Where the authority mentioned in Sub-rule (1) is of opinion that the Government servant has been fully exonerated, or in the case of suspension that it was wholly unjustified the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.

(3) In other case, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe.

(4) In a cased filling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes."

In the impugned order the word ''subsistence allowance'' has been used. In this context I wish to correct anything like subsistence allowance that exists in this writ, then I found that the proper word is subsistence grant has been used in Rule 95 of Section IV of the Code, which deals with the payments in cases of dismissal, removal or suspension.

Section 96(1)(A) reads as follows Government servant under suspension shall be entitled to the following payments, namely :--

"(a) Subsistence grant at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave, on half average pay, or on half pay and in addition cost living allowance based on such leave salary :

Provided that where the period of suspension exceeds twelve 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 of the first twelve months, as follows :

(i) the amount of suspension grant may be increased by a suitable amount not exceeding 50 per cent 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 attributed to the Government servant.

(ii) The amount of subsistence grant may be reduced by a suitable amount, nor exceeding 50 per cent 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 due to reasons to be recorded in writing directly attributed to the Government servant.

(iii) the rate of cost of living allowance will be based on the increased or as the case may be, the decreased amount of subsistence grant admissible under Sub-clause (i) and (ii) above."

Proviso (i) to Rule 96(1)(A) provides that due to no fault on the part of the petitioner, if the period of suspension has been prolonged then the amount of subsistence grant has to be increased in the ratio as has been provided therein and proviso (ii) to Rule 96(1)(A) provides that if the period of suspension has been prolonged due to laches on the part of the petitioner then the amount of subsistence grant may be reduced in the ratio provided therein.

Directly this petitioner has not delayed the proceeding. From the averments made from both the sides, it is clear that there was no laches on the part of the petitioner to delay the proceeding and, therefore, the petitioner cannot be blamed for continuance of such a proceeding for such a long period. Equally the authorities were also not squarely responsible for that because of the time consumed in appeal and other process. Consequently, proviso (i) to Rule 96(1)(A) will be applicable in the case of the petitioner, that provides that the amount of subsistence grant will have to be increased by a suitable amount not exceeding 50 per cent of the subsistence grant, which was admissible during the period of the first twelve months.

Now it is made clear that if the calculation of payment of salary has been made in accordance with this provision then the petitioner has got no grievance because the respondent authorities have acted in accordance with law, but if the petitioner finds that this provision has not been made applicable then definitely the petitioner has got a grievance but these are the questions of facts and question of calculation.

Consequently, with this direction only this writ application is disposed of that the respondent will check whether the payment that has been made to the petitioner for the period of suspension was in strict compliance of proviso (i) to Rule 96(1)(A) of the Code and if the payment has been made in accordance with the above provisions then the petitioner will not be entitled to anything more than what he has got/is getting. The petitioner may agitate the matter before the authority concerned. If the petitioner agitates the matter there, then the authority competent to grant the subsistence grant will dispose of the matter within two months from the date of receipt/production of a copy of this judgment.