Gauhati High Court
Nripen Sharma vs The State Of Assam And 2 Ors on 16 May, 2017
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) NO.2627 OF 2016
Sri Nripen Sharma,
Son of Late Upen Sharma,
Resident of Village: Kochpara, PO: Mirza,
PS: Palasbari, District: Kamrup, Assam.
........Petitioner
-Versus-
1. The State of Assam, represented by the Commissioner
& Secretary to the Government of Assam, Education
(Secondary) Department, Dispur, Guwahati - 6.
2. The Director of Secondary Education, Assam, Kahilipara,
Guwahati - 791019.
3. The Inspector of Schools, Kamrup District Circle,
Guwahati - 781019.
........Respondents
B E F O R E
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
For the petitioner : Mr. D.K. Sarma, Advocate.
For respondents : Mr. C. Bhattacharyya, Standing Counsel,
Education (Secondary) Department.
Date of hearing & Judgment & Order : 16th May, 2017.
JUDGMENT & ORDER (ORAL)
Heard Mr. D.K. Sarma, learned counsel for the petitioner. Also heard Mr. C. Bhattacharyya, learned standing counsel, Education (Secondary) Department, appearing for the respondents.
2. The petitioner was appointed temporarily as Subject Teacher (Chemistry) by letter dated 17.07.1984 in R.B. Higher Secondary and M.P. School, Mirza.
WP(C) No.2627/2016 Page 1 of 73. Subsequently, his service was regularized vide order dated 01.09.1986 as per recommendation of the State Selection Board, Assam. His service was confirmed by order dated 13.02.2004.
4. In connection with Palasbari P.S. Case No.150/2004 under Sections 120A/122/387 IPC read with Section 10 and 13 of the Unlawful Activities (Prevention) Act, 1967, he was arrested on 25.10.2005. Subsequently, he was released on bail on 30.11.2005. He was placed under suspension by the Director of Secondary Education by an order dated 02.01.2006 pending drawal of departmental proceeding with effect from 25.10.2005, i.e. the date of arrest of the petitioner.
5. The petitioner had put to challenge the aforesaid order of suspension by filing a writ application registered as WP(C) No.3132/2010. This Court by an order dated 24.3.2011 set aside and quashed the order of suspension dated 02.01.2006 and directed the respondents to re-instate the petitioner forthwith. The respondent No.3 was directed to pay the arrear pay and allowances to the petitioner as per his entitlement in accordance with the relevant rules.
6. Perusal of the aforesaid judgment goes to show that till the date of passing of the judgment, departmental proceeding was not initiated and that even charge-sheet was not filed in the police case. Although the direction was for re-instatement of the petitioner forthwith, the petitioner was not re-instated immediately and only after a lapse of 4(four) years, the petitioner was re- instated by an order dated 26.05.2015.
7. In the said order dated 26.05.2015, it is also observed that departmental proceeding is to be concluded at the earliest. It is, however, to be noted that no departmental proceeding had been initiated till the passing of the order dated 26.05.2015. Only thereafter, 6(six) months down the line, the respondent No.2 issued a show cause notice under the Assam Services (Discipline and Appeal) Rules, 1964, (for short, "1964 Rules"), dated 21.12.2015, WP(C) No.2627/2016 Page 2 of 7 on the allegation that while the petitioner was serving as Subject Teacher (Chemistry), he was arrested in connection with Palasbari P.S. Case No.150/2004 and was in custody. The petitioner was charged with involvement of criminal activity. The petitioner submitted show cause and thereafter, an order dated 08.04.2016 was passed holding that the petitioner is not entitled to arrear pay and allowances for the period he remained under suspension. However, by the said order, while concluding the departmental proceeding, no penalty was imposed upon the petitioner under Rule 7 of the 1964 Rules.
8. An affidavit was filed by the respondent No.2 supporting the stand taken in the order dated 08.04.2016, which is under challenge in this writ petition.
9. A perusal of the order dated 08.04.2016 goes to show that the police case that was registered, in which the petitioner was arrested, had ended in Finale Report. It also appears that the Chief Judicial Magistrate, Kamrup vide order dated 08.09.2006, had discharged all the accused persons due to want of sufficient evidence.
10. In the order dated 08.04.2016, it was observed as follows:
"Considering his discharge, I do not want to inflict any penalty as contemplated under Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. But, I cannot treat the period he spent on suspension as on duty for all purposes. Hence, under FR 54 (b) 7 the period spent on suspension by the delinquent government servant will be treated as on duty only for the purpose of counting his qualifying service for pensionery purpose. He shall not get any pay and allowances for the period except the subsistence allowances he has already drawn or has to be drawn by him. No leave of any kind shall be accrued to his Leave Account of the government servant for the suspension period."WP(C) No.2627/2016 Page 3 of 7
11. In the said order, there is no explanation, whatsoever, as to why it took the department 4(four) long years to re-instate the petitioner despite clear direction for re-instatement of the petitioner forthwith by this Court. In the order dated 8.4.2016, the respondent No. 2 observed that the suspension of the petitioner from 25.10.2005 to 26.5.2015 was not illegal. It is not understood how the authority could justify and conclude that suspension for the period commencing from the date of judgment to the date of his ultimate re- instatement is valid in law when this Court had directed vide judgment and order dated 24.3.2011 to re-instate the petitioner in service forthwith. It depicts total non-application of mind.
12. FR 53 provides for payment to which a Government servant under suspension is entitled.
13. It will also be relevant to take note of the Scheme of FR 54-B as the respondent No.2 had exercised power under FR 54-B(7) in denying full pay and allowances to the petitioner for the period the petitioner had remained under suspension. FR 54-B(1) 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. FR 54-B(2) deals with situations where a Government servant under suspension dies before the disciplinary or Court proceeding instituted against him is concluded. We are not concerned with FR 54-B(2). FR 54-B(3) 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 which he would have been entitled, had he not been suspended. Proviso to FR 54-B(3) lays down that where such authority is of the opinion that WP(C) No.2627/2016 Page 4 of 7 the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after considering the representation, if any submitted by him, direct for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such proportion of such pay and allowances as it may determine. FR 54-B(4) provides that in a case falling under FR 54-B(3), the period of suspension shall be treated as a period spent on duty for all purposes. FR 54-B(5) deals with cases other than those falling under FR 54-B(2) and (3). It provides that the Government servant shall subject to the provisions of FR 54-B(8) and (9) be paid such proportion of the full 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 which in no case shall exceed sixty days from the date of the notice which has been served as may be specified in the notice. FR 54-B(6) applies to a situation where suspension is revoked pending finalization of the disciplinary or court proceeding. It stipulates that any order passed under Sub-rule (1) of FR 54-B before the conclusion of the proceedings against the Government servant shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (3) or (5) of FR 54-B as the case may be. FR 54-B(7) provides that in a case falling under Sub-rule (5) of FR 54-B, the period of suspension shall not be treated as period spent on duty, unless the competent authority specifically directs that it shall be treated for any specified purpose. FR 54-B(8) provides that payment of allowances under Sub-rule (3) or Sub-rule (5) of FR 54-B shall be subject to all conditions under which such allowances are admissible. FR 54-B (9) provides that the proportion of the full pay and allowances determined under the proviso to Sub-rule (3) or under Sub-rule (5) of FR 54-B shall not be less that the subsistence allowance and other allowances admissible under Rule 53.
WP(C) No.2627/2016 Page 5 of 714. In the instant case, pending drawal of departmental proceeding, petitioner was suspended. After revocation of the suspension order on 26.5.2015, show cause notice under Rule 9 of 1964 Rules was issued on 21.12.2015. By the order dated 08.04.2016, departmental proceeding was concluded. Accordingly, in terms of FR 54-B(6), an order was required to be passed according to the provisions of either Sub-rule (3) or Sub-rule (5) of FR 54-B. The respondent No.2 had taken recourse to FR 54-B(7) while holding that period spent on suspension will be treated as on duty only for the purpose of counting his qualifying service for pensionary benefits and that he shall not get any pay and allowances except the subsistence allowance which he had already drawn or has to be drawn by him and that no leave of any kind shall accrue to the leave account of the petitioner for the suspension period.
15. FR 54-B(7) comes into play only in a case which falls under FR 54- B(5). Now the question is whether the case of the petitioner falls under Sub-rule (5) or Sub-rule (3) of FR 54-B. If it falls under Sub-rule (3) of FR 54-B, there cannot be any occasion for taking recourse to FR 54-B(7). Even if FR 54-B(5) applies, then also a notice is to be given to the Government servant on the quantum proposed, enabling him to file representation, which, admittedly, was not issued in the instant case.
16. The respondent No.2 did not consider a very vital aspect of the matter, namely, that though the petitioner was arrested in connection with the police case, he was discharged by the learned Chief Judicial Magistrate, Kamrup. The petitioner was also not imposed any penalty in the disciplinary proceeding. Merely because the petitioner was arrested cannot lead to the inevitable conclusion that the suspension is justified, more so, when disciplinary proceeding was not drawn up for almost 10(ten) years after the petitioner was suspended.
17. Having regard to the aforesaid, it must be construed that continued suspension of the petitioner was wholly unjustified. There was no periodical review of the suspension of the petitioner and as noted earlier, even after this WP(C) No.2627/2016 Page 6 of 7 Court had directed re-instatement, it took four years for the authority to re- instate the petitioner. Attending facts and circumstances are pointer to the fact that case of the petitioner will be one under FR 54-B(3).
18. In view of the above, I am of the considered opinion that the petitioner will be entitled to full pay and allowances during the period of suspension along with all admissible benefits including leave.
19. In view of the determination made herein above, the petitioner will be paid the full pay and allowances along with all consequential benefits for the aforesaid period within a period of three months from the date of receipt of a certified copy of this order. The petitioner will be entitled to interest at the rate of 7% per annum, if the amount is not paid within the aforesaid period, till the amount is paid. The order dated 08.04.2016 will stand modified in terms of the directions and observations, as indicated above.
20. The writ petition stands allowed. No cost.
JUDGE mcd WP(C) No.2627/2016 Page 7 of 7