R.L. Agrawal vs State of M.P. (now Chhattisgarh) and Others

Sunil Kumar Sinha, J.—The petitioner a Lower Division Clerk in District Treasury (DT), Raipur. He was served with a charge-sheet dated 17-2-1973 having two charges, First--"That he failed to properly check the entries of 8 bills, amounting to Rs. 1,18,231.20 p., original entries whereof were raised to the said higher amount without proper attestation, and thus failed to carry out conscientiously the duty entrusted to him thereby causing loss to the Government of the above amount"; and Second�"That he failed to properly check the entries of another 12 bills amounting to Rs. 47,548.50p. prepared incorrectly and irregularly and thus failed to maintain devotion to duty expected of him, and causing loss to the Government of the above amount". Later on, a Criminal Case under Sections 409, 420, 467, 471 and 120B, IPC was also registered against him and he was taken into custody on 16-3-1973. On 17-3-1973, the petitioner was suspended on account of registration of Criminal Case in which he was later on acquitted on 19-12-1990. In the meantime, the Departmental Enquiry (DE) was also conducted and the Enquiry Officer submitted his report dated 29-12-1977, in which the petitioner was found guilty of the First charge, however, he was exonerated from the Second charge. The Disciplinary Authority, after completion of other formalities, passed the order dated 27-7-1996 imposing penalty of stoppage of one increment with cumulative effect against the petitioner. The Disciplinary Authority also directed that the period of suspension shall be treated as period on duty for the purpose of pension only, it shall not be treated as on duty for any other purpose and the petitioner would not be entitled to any amount for the said period except subsistence allowances which he was already paid. Being aggrieved with the above order passed by the Disciplinary Authority, the petitioner filed an appeal before the Appellate Authority, but the appeal was dismissed on 17-6-1997. The petitioner, thereafter, filed Original Application (O.A.) No. 73/1998 before the M.P. State Administrative Tribunal (SAT) in which the petitioner only claimed that the two orders passed by the Statutory Authorities, so far as they relate to the non-payment of difference of salary to the petitioner may be quashed, that means the petitioner did not challenge the order of punishment imposed against him.

The petitioner mainly raised two contentions before the SAT, first, that the order of suspension invoking jurisdiction under Rule 9(2)(a) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (CCA Rule) was without jurisdiction, and second, before passing an order regarding non-payment of difference of pay for the period of suspension, the Disciplinary Authority would have issued a show-cause notice to the petitioner, therefore, the order relating to non-payment of monetary benefit for the period of suspension may be quashed.

The Tribunal did not find any force in the above two arguments and dismissed the Original Application, filed by the petitioner.

The petitioner, thereafter, has filed this writ petition. In the writ petition also, the petitioner has not challenged the main order of penalty and has simply prayed for quashing of the order so far as it relates to the above adjudication of the period of suspension and directing the respondents that the period of suspension may be treated as on duty for all purposes and to award all consequential benefits thereof.

Mr. Ratnesh Agrawal, learned Counsel appearing on behalf of the petitioner, has argued that in the above facts and circumstances of the case, the Disciplinary Authority, before passing such an order regarding the period of suspension, would have given a show-cause notice to the petitioner as per Fundamental Rules [F.R. 54-B (5)]. He cited the decisions of M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, and O.P. Gupta Vs. Union of India (UOI) and Others, .

On the other hand, Mr. U.N.S. Deo, learned Govt. Advocate appearing on behalf of the State, has opposed these arguments and supported the orders passed by the Statutory Authorities and the SAT.

We have heard Counsel for the parties.

In M. Gopalkrishna (supra), it was held vide Paras 5 and 7 that:--

.....Under F.R. 54 where a Government servant is reinstated, the authority has to consider and made a specific order (i) regarding pay and allowances payable to him for the period of his absence from duty, and (ii) whether such period of absence should be treated as one spent on duty. The consideration of these questions depends on whether on the facts and circumstances of the case the Government servant had been fully exonerated and in case of suspension whether it was wholly unjustified. If the authority forms such an opinion the Government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot form such an opinion the Government servant may be given such proportion of pay and allowances as the authority may prescribe. In the former case, the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the Government servant would be entitled to full pay and allowances.

.......The order as to whether a given case falls under Clause 2 or Clause 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the Government servant adversely if it is one made under Clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case, if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.

In O.P. Gupta (supra), the departmental inquiry was kept pending for a period of 20 years and the appellant was under suspension for a period of 11 years. There it was observed vide Paras 15 and 16 that "There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the malafide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years". It was further observed that "It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration". It was also observed that "It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case".

Sub-rule (1) of F.R. 54-B provides that when a Government servant, who has been suspended, is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, 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 ending with re-instatement or the date of his retirement on superannuation, as the case may be; and

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

Sub-rule (3) of F.R. 54-B further provides that where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant, shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended. As per proviso to sub-rule (3) the authority has been given power to direct less payment on account of delay in termination of the departmental proceeding attributed to the Government servant after giving due opportunity to make representation and after recording reasons in writing. In cases other than those falling under sub-rules (2) and (3), under sub-rule (5) the Government servant, shall, subject to the provisions of sub-rules (8) and (9), be paid such amount, not being the whole of 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 as per the provisions of this clause.

In the instant case, sub-rules (2) and (3) were not applicable, therefore, the case of the petitioner was to be dealt with by the provisions of sub-rule(5). The petitioner was suspended on 17-3-1973 on account of registration of a criminal case against him. During the pendency of the departmental proceedings, he was acquitted in the criminal case on 19-12-1990. The Inquiry Officer submitted his report on 29-12-1977, in which the petitioner was held guilty of the first charge. After submission of the inquiry report on 29-12-1977, the Disciplinary Authority passed the order of imposing penalty of stoppage of one increment with cumulative effect on 27-7-1996. Since the petitioner was neither dismissed nor terminated or removed from service, the Disciplinary Authority also direct that the period of suspension though shall be counted for pension, but it shall not be treated as on duty for any other propose and the petitioner would not be entitled to any monetary benefits for the said period except the subsistence allowances which he was already paid. Thus, the departmental enquiry initiated on 17-2-1973 came to an end on 27-7-1996 (about more than 23 years) and the above order was passed against the petitioner. The State has not explained as to why such a long period was spent in concluding the departmental inquiry, particularly when the inquiry report was submitted in the year 1977 and the petitioner was acquitted in criminal case in the year 1990 and even in all these situation, while passing the order regarding the nonpayment of full pay and allowances, no opportunity of hearing was given to the petitioner.

We are of the view that in light of the provisions of sub-rule (5) of F.R. 54-B, it was incumbent upon the Disciplinary Authority to give the petitioner a notice and to consider the representation, if any, submitted by him and then to pass an order keeping in mind the provisions of sub-rule (5) as also the principles laid down in above mentioned cases. It was so incumbent upon the Disciplinary Authority because, as held in M. Gopalkrishna (supra), the very nature of its function implies duty to act judicially and that the order ultimately passed had an adverse effect of huge monetary loss to the petitioner of about half of the salary of a very long period.

If the notice would have been given to the petitioner, the petitioner would have been in a position to oppose the above deduction and to show that the delay was not on his part and if he would have been re-intend from an early date, he would not have faced the monetary loss of such amplitude. Thus, an element of consideration before taking a decision, as inherent in sub-rule (5) which may have affected the decision of Disciplinary Authority, was there.

We are of the view that in the above facts situation the Disciplinary Authority had to afford a reasonable opportunity to the petitioner under F.R. 54-B (5) as also on the basic concept of justice and fair play and having not done so the order, so far as it relates to non-payment of monetary benefits during the period of suspension, must be held to be invalid.

In the result, the writ petition is allowed. The two orders passed by the Departmental Authorities as also the order passed by the SAT, so far as they relate to non-payment of monetary benefits to the petitioner for the period of suspension, are set aside. The Competent Authority is directed to consider the said question de novo after giving to the petitioner a reasonable opportunity to show cause against the action proposed against him. Since a very long time has elapsed in the proceeding, we direct that the concerned authorities shall ensure the completion of the proceedings within a period of six months from today. Cost made easy.