Madhya Pradesh High Court
Jagdish Prasad Mishra vs The State Of Madhya Pradesh on 19 August, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 WP-2049-2019
The High Court Of Madhya Pradesh
WP-2049-2019
(JAGDISH PRASAD MISHRA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 19-08-2019
Shri Arun Pandey, learned counsel for the petitioner.
Shri H.K. Upadhyay, learned Government Advocate for the
respondents/ State.
Heard on the question of admission.
By the instant petition, the petitioner is challenging the order dated 16.11.2018 (Annexure-P/7) whereby the disciplinary authority has passed an order in respect of the period of suspension holding that since the petitioner has not been exonerated from the charges levelled against him in a departmental proceeding, the said period shall be treated as the period under suspension, meaning thereby he would be entitled to get only subsistence allowance during that period.
There was a disciplinary proceeding initiated against the petitioner, in which he was held guilty and punishment of withdrawing 15% pension for a period of three years has been inflicted. Although separate order regarding period of suspension was passed on 16.11.2018 (Annexure-P/7), which is impugned in this petition.
Learned counsel for the petitioner submits that the order impugned is illegal as has been passed contrary to the requirement of fundamental Rule 54-B of the M.P. Fundamental Rules, 1956. He further submits that the disciplinary authority is under obligation to decide the period of suspension and as per the requirement of fundamental Rule 54-B, the competent authority is under an obligation to pass a specific order in respect of suspension indicating Digitally signed by PRACHI KUNTE Date: 22/08/2019 14:39:51 2 WP-2049-2019 therein for what amount of pay and allowances, the petitioner would be entitled during the period of suspension, after giving notice to the government servant of the quantum of pay and allowances proposed and after considering the representation, if any, submitted by the government servant in that connection. He further submits that if ultimately the petition succeeds, the authority shall be given direction to consider the claim of the petitioner by giving him an opportunity of hearing.
In support of his contentions, learned counsel has relied upon a decision of the Division Bench of this Court reported in 2008(2) MPHT 26 parties being Smt. Mahmoodan Khan Vs. State of M.P. & Others.
It is observed by the Division Bench of this Court that as per the provision of fundamental Rule 54-B, the disciplinary authority is under obligation to pass an order in respect of entitlement of the employee who has been placed under suspension and thereafter, reinstate as to on what rate, pay and allowances should have been paid to him or he should be paid on the basis of the principle of 'No Work No Pay'. It is further observed that the petitioner should be given notice indicating proposed pay and allowances for which he is being held entitled so that he may make a representation before the authority and the same shall be decided by the authority. The Division Bench, in Paragraphs-6 and 7, has held as under:-
"6. It will be clear from the provisions of Fundamental Rule 54-B quoted above that the aforesaid Fundamental Rule makes elaborate provisions how a Government servant will be dealt with after revocation of his suspension and on re-instatement in service. Sub-rule (1) of Fundamental Rule 54-B provides that when a Digitally signed by PRACHI KUNTE Date: 22/08/2019 14:39:51
3 WP-2049-2019 Government servant who has been suspended is re- instated or would have been so re-instated, 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 and (b) whether or not the period of suspension shall be treated as period spent on duty. Sub-rule (3) of Fundamental Rule 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. Sub-rule (4) of Fundamental Rule 54-B states that in a case falling under Sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. Sub-rule (5) of Fundamental Rule 54-B further states that in cases other than those falling under Sub-rule (3), the Government servant, shall subject to the provisions of Sub-rules (8) and (9) be paid such amount 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 within such period as may be specified in the notice. Sub-rule (7) of Fundamental Rule 54-B states that in a case falling under Sub-rule (5), the period of suspension shall not be treated as a period spent on duty, unless the Competent Authority specifically directs that it shall be so treated for any specified purpose.
7. It is, thus, clear that the authority competent to order re-instatement has to form an opinion whether the suspension was justified or unjustified and if he finds that the suspension was wholly unjustified, he will treat the period of suspension as spent on duty for all purposes and in that case the Government servant would be entitled to his full pay and allowances subject to the provisions of Sub-rule (8). But in cases where he finds some justification for the suspension of the Government servant he has to pass a specific order indicating therein what amount of pay and allowances he would be entitled during the period of suspension after giving notice to the Government servant of the quantum of pay and Digitally signed by PRACHI KUNTE Date: 22/08/2019 14:39:51 4 WP-2049-2019 allowances proposed and after considering the representation, if any, submitted by the Government servant in that connection. It appears that these provisions of Fundamental Rule 54-B have not been complied with by the District Education Officer, Rewa, in the present case before issuing the direction in the order dated 23-2- 2007 that the appellant will not be entitled to pay and allowances during the period of suspension on the principle of "no work no pay."
Learned Government Advocate submits that if the order is defective to that aspect, then this petition can be allowed and order impugned can be set-aside giving liberty to the respondent authority to consider the said aspect and decide the entitlement of the employee/petitioner for the period of suspension after giving him a notice and opportunity for making representation.
Considering the contentions of learned counsel for the petitioner that no notice was issued to the petitioner before passing the impugned order and the petitioner was not given any opportunity to make a representation before the competent authority in respect of the proposed pay and allowances, for which the petitioner was held entitled, I find substance in the contentions advanced by learned counsel for the petitioner. Accordingly, this petition is allowed. The order impugned dated 16.11.2018 (Annexure-P/7) in respect of the present petitioner, is hereby set-aside.
The disciplinary authority is granted liberty to issue show-cause notice to the petitioner asking him to submit representation in respect of the proposed wages and allowances for which he is being held entitled and thereafter, appropriate order be passed by the authority in accordance with law, especially keeping in view the requirement of fundamental Rule 54-B of the M.P. Fundamental Rules, 1956.
With the aforesaid directions, this petition stands allowed and Digitally signed by PRACHI KUNTE Date: 22/08/2019 14:39:51 5 WP-2049-2019 disposed of.
Certified Copy as per rules.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI KUNTE Date: 22/08/2019 14:39:51