Patna High Court
Ram Sagar Sinha vs State Of Bihar And Ors. on 31 March, 1995
Equivalent citations: 1995(2)BLJR1262
JUDGMENT Naresh Kumar Sinha, J.
1. In this application under Articles 226 and 227 of the Constitution of India the petitioner prays for quashing the order dated 16.3.85 (Annexure-1) passed by respondent No. 2 and for a direction to pay the full salary to the petitioner after deducting the suspension allowance paid to him.
2. The petitioner is a retired Headmaster of High School, Mahendrapur in the district of Begusarai. He was suspended with effect from 3.11.73 as he opposed the Secretary of the School in his attempt to embezzle the school amount. The petitioner filed a Title Suit against the order of suspension in which an interim injunction was first granted but was subsequently vacated. He also filed an application before the District Control Committee through the District Education Officer challenging the order of suspension. The Managing Committee of the school without notice to the petitioner and without holding any enquiry and hearing the petitioner discharged him on 29.8.74. Since the power of appointment, suspension and removal was taken away from the hands of the Managing Committee of all recognised high school and was vested in the Bihar Secondary Education Board from 21st May, 1974 by the repeal of Bihar Act 13 of 1960 by Bihar Ordinance No. 112 of 1974 on 21.5.74, the resolution of the Managing Committee dated 29.8.74 was void abinitio. The Secretary of the Managing Committee sent the resolution of the Committee regarding the discharge of the petitioner from service for approval to the District Education Officer (respondent No. 3) and the respondent No. 3 placed the matter before the District Control Committee and the District Control Committee in its meeting held on 16.12.74 approved the suspension of the petitioner but not of his discharge with a direction that the petitioner would be entitled to receive the suspension allowance as per rules. The aforesaid decision was communicated to the respondent No. 3 vide letter dated 20th December, 1974, a copy of which is Annexure-2. The petitioner thereafter continued to receive the suspension allowance. The District Control Committee again met on 12.1.76 and decided to lift the suspension order and in pursuance thereof order dated 13.8.76 was issued to the respondent No. 3 vide Annexure-3. The Managing Committee of the School then filed C.W.J.C. No. 1883 of 1976 against the order contained in Annexure-3 which was enclosed as Annexure-6 in the said writ petition. The Hon'ble High Court by its judgment and order dated 14th April, 1973 quashed the said order which as already referred to above is Annexure-3 to the present writ application. The petitioner continued to receive his suspension allowance. Meanwhile the Title suit filled by the petitioner against the order of suspension was dismissed for default. In a meeting held on 12.8.76 the District Control Committee again considered the matter and ordered that the suspension of the petitioner is being lifted and it also ordered for payment of back wages to the petitioner Meanwhile the petitioner retired from service on 5.3.77. The respondent No. 3 issued an order on 1st February, 1983, copy of which is Annexure-4, lifting the suspension of the petitioner and directing that he would be entitled to arrears of pay as per recommendation of the District Control Committee. Respondent No. 3 by his letter dated 7th Respondent No. 3 by his letter dated 7th March, 1983 directed the acting Headmaster of the School to comply with the order contained in Annexure-4 and a copy of the said letter is Annexure-5. The acting Headmaster of the school then filed C.W.J.C. No. 1668./83 in the High Court against the orders contained in Annexures-4 and 5 which were also Annexure-4 and 5 in the writ application of 1983. The Hon'ble court by its judgment and order dated 19.8.83 ordered for keeping Annexures-4 and 5 in abeyance and directed respondent No. 2 to consider and dispose of the matter within a month. In accordance with the direction given by the Hon'ble court respondent No. 2 heard the matter and passed the impugned order vide Annexure-1. By the impugned order respondent No. 2 after tracting out the chequered history of the case took note of the fact that the petitioner had retired with effect from 31.3.77 and hence he exonerated him from the charges without any enquiry but that he would not be entitled to any arrears of pay for the period commencing from the date of his suspension to the date of his superannuation.
3. Sri Rajendra Singh, learned Counsel of the petitioner argued that once Director of Secondary Education-cum-Special Secretary. Education Department, Government of Bihar (respondent No. 2) by the impugned order (Annexure-1) exonerated the petitioner of the charges levelled against him, he was duty bound to direct payment for arrears of salary for the period of suspension. In support of his contention Mr. Singh contended that the petitioner being a Government servant he would be guided in the matter by the provisions of Rule 97 of the Bihar-Service Code (in short the 'Code'). He referred to Clause (2) of Rule 97 of the Code which provides that in case the competent authority is of the 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 allowances to which he would have been entitled had he not been dismissed, removed or suspended as he case may be. Learned G.P. III appearing on behalf of respondents, however, contended that the petitioner having superannuated, responded No. 2 in pursuance of the judgment and order of the Hon'ble Court dated 19.8.83 in C.W.J.C. No. 1668/83 considered the matter and passed the impugned order specifically mentioning that the petitioner would not be entitled to arrears of pay during the period of his suspension. On behalf of (he State-respondent it was further contended that the provisions of the Code even if applicable to the order exonerating the petitioner of all the charges levelled against him had been passed only on account of the fact that he had superannuated on 31.3.77. Learned G.P. III relied on a decision of the Apex Court reported in A.I.R. 1974 S.C. 1074. The decision, however, does not appear relevant in the facts of the present case. It may be mentioned that whereas the impugned order gives the date of superannuation of the petitioner as 31.3.77, the petitioner's own case is that he superannuated on 5.3.77. The State-respondents for the reasons best known to them did not file any counter affidavit
4. Thus the short question raised for consideration is whether the petitioner was entitled to arrears of pay for the period he was under suspension. There is no dispute between the parties that the period of suspension would be with effect from 3.11.73 when the petitioner was put under suspension until his retirement in March, 1977 when he superannuated from service. It is also not in dispute that the petitioner has already been paid the subsistence allowance for the aforesaid period. The petitioner's claim thus is for payment of salary for the said period minus the allowance of subsistence already paid to him.
5. It is not necessary to take notice of the details of the case and for the limited purpose of disposal of the petition it can be surely assumed that the petitioner had been put under suspension pending enquiry in respect of certain charges levelled against him. The nature of the charges levelled have not been disclosed. However, it follows that for one reason or other the enquiry could not be completed. As mentioned in the petition some orders in favour of the petitioner were passed and at one stage respondent No. 3 had issued an order lifting the suspension of the petitioner and directing payment of salary for the period of suspension. That order could not be implemented because of some orders passed by the Hon'ble Court and it is not necessary to go into their details. The undisputed facts remain that even during the period of more than 3 years that the petitioner remained under suspension, the proposed enquiry against him in respect of the charges were not concluded. The only reason given in the impugned order for exonerating the petitioner of all the charges without any enquiry is that he had superanuated. If respondent No. 2 the competent authority had chosen not to continue with the enquiry for the aforesaid reason and exonerated the petitioner of all the charges, it was nonetheless an exoneration of the petitioner of the charges levelled against him. Provisions of Rule 97 of the Code reads as follows:
97. (1) When a Government servant who has been dismissed, removed, or suspended, is reinstated, the authority competent to order the reinstatement shall consider and make specific order-
(a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in Sub-rule (1), is of opinion that the Government servant has been 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 cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe:
Provided that the payment of allowance under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.
6. There is a clear provision that when a government servant has been dismissed, removed or suspended is reinstated, the authority competent is to order regarding the pay and allowance to be paid to the government servant for the period of absence from duty and whether or not the said period shall be treated as a period spent on duty. This is provided by Clause 1(b) of Rule 97. Sub-clause (2) then provides that where the authority mentioned in Sub-rule (1) is of opinion that 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. Once the competent authority chose to exonerate the petitioner of all the charges for whatever reason it was a case where the government servant had been fully exonerated within the meaning of Clause (2) of Rule 97 of the Code and the petitioner would be entitled had he not been suspended. In view of the aforesaid provisions of the Code the competent authority after exonerating the petitioner of all charges without any enquiry had no option but to make an order that the petitioner would be given full pay and allowance for the period of his suspension. In this view of the matter the part of the impugned order which directs that the petitioner would not be entitled to his arrears of pay for the period commencing from the date of his suspension to the date of his superannuation was illegal and cannot be sustained. The impugned order (Annexure-1), to the extent mentioned above is accordingly quashed.
7. This writ petition is accordingly allowed. The petitioner shall be paid the arrears of salary for the period commencing from the date of his suspension to the date of his superannuation less the amount of subsistence allowance already drawn by him along with interest calculated at the rate of 10% per annum from the date of filing of the writ petition until payment which shall be made within six weeks from today.