Shri Trilok Chand Sharma vs Himachal Pradesh State Electricity Board and Others

Surinder Singh, J.—The present petition was filed u/s 19 of the H.P. Administrative Tribunal Act in the erstwhile Tribunal, which after its abolition has been transferred to this Court and registered as CWP (T) No. 5482 of 2008.

In this petition, the petitioner sought the following reliefs:

a) That the impugned order Annexures A-1 and A-2 may please be quashed.

b) That the period w.e.f. 5.9.1996 to 15.12.1996 may please be treated as the period spent on duty or the period w.e.f. 5.9.1996 to 15.9.1996 may be ordered to be treated as the period of leave of kind due

c) That the pay of the applicant for the period from 5.9.1996 to 15.12.1996 may please be paid to the applicant alongwith interest till date of payment.

Heard learned Counsel for the parties and carefully gone through the record.

Learned Counsel for the petitioner confined his arguments to the extent that the penalty imposed as contained in Annexure A-1 is absolutely not a penalty in the eyes of law and in so far as the period w.e.f. 5.9.1996 to 12.9.1996 is concerned, the same be treated as medical leave and suspension period w.e.f. 13.9.1996 to 15.12.1996, which was treated as leave without pay, is without any justification and requires to be quashed.

Learned Counsel for the respondents submitted that the disciplinary authority was quite justified in passing the impugned order, as per its decision held earlier to maintain discipline in the service.

The facts giving rise to this petition can be stated thus. The petitioner was serving as Assistant Engineer in the Himachal Pradesh State Electricity Board (HPSEB), Manikaran, from where he was transferred to Hydel Investigation Sub Division HPSEB, Bharmour vide Office Order dated 20.8.1996 passed by the Secretary of the respondent-Board. In compliance thereof he handed over the charge and was relieved on 26.8.1996 forenoon to join his new place of posting on or before 7.9.1996 after availing usual joining time permissible under the Rules. The petitioner is stated to have left on 4.9.1996 to take up his new assignment at Bharmour, after getting his salary for the previous month, but according to him, he fell ill on his way to Bharmour, i.e., at Nagrota Bagwan, where he was staying with his maternal uncle, as such he had to break his journey and got himself medically checked-up in Government Civil Dispensary on 5.9.1996. The Block Medical Officer (B.M.O.) advised him to take complete rest with effect from 5.9.1996 to 11.9.1996. After getting the fitness certificate he started his onward journey on 12.9.1996 and joined at new place of his posting at Bharmour on 13.9.1996.

On 23.9.1996 he was served with the suspension order dated 23.9.1996 (Annexure A-4) issued by the Secretary of the Board conveyed through the Executive Engineer, Hydel Investigation Division, Bharmour, suspending him with effect from 13.9.1996 and fixing his headquarters in the office of his Division. Thereafter he made the representation to the disciplinary authority and the disciplinary authority after considering it revoked his suspension vide Annexure A-5 dated 3.12.1996 in exercise of the powers conferred in it under Rule 10(5)(c) of the Control Civil Services (Classification, Control and Appeal) Rules, 1965, in short ''the Rules''. Subsequently, the petitioner was served with Memorandum Annexure A-6=RA-I under Rule 16 of the Rules. The statement of imputation of misconduct or misbehaviour on which the disciplinary authority proposed to take action was conveyed to the petitioner, to which he submitted his reply Annexure A-7 dated 14.1.1997 whereby he made the submission with regard to his falling ill on the way while performing journey, as stated above. He also denied having received any telegram from his Department and submitted that he never intended to disobey the orders, but it was owing to the above circumstances. His suspension was revoked. But after considering the reply to the memorandum (Annexure A-6) dated 14.1.1997 supra, the disciplinary authority passed the impugned order Annexure A-1 dated 3.6.1997, which is reproduced hereunder:

Himachal Pradesh State Electricity Board.

"ORDER"

Whereas Er. Trilok Chand Sharma, Assistant Engineer (C/M) was served with a Memo of statement of imputation of mis-conduct or misbehaviour under Rule16 of CCS (CCA) Rules, 1965 vide No. HPSEB (Sectt)/101-13/96-145905-12 dated 8.1.97.

Whereas the said Er. Trilok Chand Sharma, Assistant Engineer (C/M) submitted the reply of above referred Memo vide his letter No. TCS/PF/96-97-2-B dated 14.1.97.

Whereas the reply of Memo of statement of the imputation of misconduct or misbehaviour submitted by the said Er. T.C. Sharma, Assistant Engineer (C/M) has been considered by the Disciplinary authority.

And after considering the reply of above referred Memo, the disciplinary authority has decided to treat the period under dispute w.e.f.5.9.96 to 12.9.96 and suspension period from 13.9.96 to 15.12.96 as leave without pay and to issue a simple warning to the said Er. Trilok Chand Sharma, Assistant Engineer (C/M).

Now thereafter, Er. Trilok Chand Sharma, Assistant Engineer (C/M) is hereby served with a simple warning not to repeat such lapses in future. The period under dispute i.e. from 5.9.96 to 12.9.96 and suspension period from 13.9.96 to 15.12.96 shall be treated as leave without pay.

For and on behalf of the

Disciplinary Authority.

Sd/- Secretary, H.P. State Electricity Board Shimla-4.

No. HPSEB(SECTT)/PF-9-1442/97-21333-39 dated 3 Jun, 1997

Now, against the aforesaid facts, it shall be relevant here to reproduce FR 54-B (1) of the Fundamental Rules, which attracts in the present case. It reads as under:

F.R. 54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement including premature retirement while under suspension, the authority competent to order reinstatement 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 reinstatement or the date of his retirement including premature retirement, as the case may be; and

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

Whereas Sub-rule 3 thereof depicts that where the authority competent to order reinstatement 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.

Further, administration instruction of the Government of India issued on 3rd December, 1985 published in G.I. Department of Personnel and Training, O.M. No. 11012/15/85-Estt. (A), which is reproduced as Instruction No. 3 in FR below FR 54-B while inviting the reference to O.M. No. 43/56/64-A VD dated 22.10.1964, containing the guidelines for placing Government servants under suspension, says that these instructions lay down, inter alia, that Government servant could be placed under suspension if a prima facie case is made out justifying his prosecution or disciplinary proceeding which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCS (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for the imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances paid for suspension period. Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order and these orders were made effective from the date of issue and the cases prior to it were not to be reopened.

In the instant case, the petitioner was charge-sheeted under Rule 16 of the Rules for the minor penalty which was conveyed through memorandum Annexure A-6=RA-I for the minor penalty by the disciplinary authority and after considering his reply/representation, it appears that disciplinary authority decided to issue warning, which is not interceded per Rule 11 of the Rules, it only says about "censure", but however, it simultaneously ordered that the period under dispute w.e.f. 5.9.1996 to 12.9.1996 when the petitioner was under medical treatment and the suspension period w.e.f. 13.9.1996 to 15.12.1996 would be without pay to him, prima facie appears to be contrary to FR 54-B read with Government of India''s Instructions referred to above. Thus, this part of the order Annexure A-1 dated 3.6.1997 is unsustainable and is accordingly quashed and set aside.

Thus the respondent-Board is hereby directed to consider the case of the petitioner for the grant of medical leave w.e.f. 5.9.1996 to 12.9.1996 further it shall also consider the suspension period w.e.f. 13.9.1996 to 15.12.1996 as on duty with all consequential benefits.

In result, the petition is allowed to the above extent. Respondent-Board is directed to comply with the judgment of this Court within three months from today. The matter stands finally disposed of.