Madhya Pradesh High Court
Dewas Municipal Corporation vs Abdul Haseeb Khan on 27 September, 1989
Equivalent citations: 1990(0)MPLJ594
JUDGMENT R.K. Varma, J.
1. This is a First Appeal filed by the defendant, Dewas Municipal Corporation against the judgment and decree dated 18-11-1987 passed by the IInd Addl. Judge to the Court of the District Judge, Dewas, in Civil Suit No. 11-A/83 whereby the plaintiffs suit for payment of subsistence allowance amounting to Rs. 30,000/- has been decreed.
2. The material facts giving rise to this appeal, briefly stated, are as follows: -
While the plaintiff was working as a Tax Collector in the service of the defendant-Corporation, he was charged with the offence of embezzlement and a criminal case was instituted against him. He was placed under suspension on 30-6-1987 and a Departmental Enquiry was also instituted against him. On completion of the Departmental Enquiry, he was removed from service of the Corporation by Order dated 19-6-1975. The plaintiff employee filed an appeal before the Collector, Dewas and a Second Appeal before the Commissioner, Ujjain which were dismissed. Thereafter, the plaintiff filed a revision in the Board of Revenue which was allowed by Order dated 5-3-1980 whereby the order of removal passed by the Corporation against the plaintiff-employee was set aside on the ground that the Departmental Enquiry was conducted without following the principles of natural justice and also on the basis of a Government Circular advising that during the pendency of the Criminal Case against the plaintiff-employee the Departmental Enquiry should be withheld till the decision of the Criminal Court.
3. After the order of removal of the plaintiff was set aside by the Board's order dated 5-3-1980, as aforesaid, the plaintiff made an application! to the Corporation for payment of subsistence allowance for the period from 19-6-1975 when he was removed from the service of the Corporation upto 5-3-1980 when the Board of Revenue allowing the plaintiff-employee's revision set aside the said order of removal. But the Corporation dismissed the plaintiff's application on 31-7-1980. The plaintiff filed an appeal to the Collector, Dewas which was dismissed on 21-11-1980. Thereafter, the plaintiff filed a Second Appeal before the Commissioner, Ujjain, which was allowed on 22-3-1982 and the defendant-Corporation was directed to pay subsistence allowance to the plaintiff from 19-6-1975.
4. In pursuance of the order of the Commissioner dated 22-3-1982, passed in Second Appeal as aforesaid, the plaintiff filed applications Ex. P/7 and Ex. P/8 to the Corporation for payment of the subsistence allowance to him in accordance with the order of the Commissioner, but when no response was made to the applications of the plaintiff for payment of the subsistence allowance the plaintiff filed the instant suit against the Corporation on 21-9-1982 claiming Rs. 30,000/- being the amount of subsistence allowance payable to the plaintiff for the period from 19-6-1975 till the date of the suit.
5. The Corporation resisted the suit on various pleas including the plea that the suit was barred by time. By a subsequent amendment of the written statement on 5-8-1986, the defendant also pleaded that the plaintiff had not submitted a certificate certifying that he was not engaged in any other employment, business, profession or vocation which was apparently a requirement contemplated under Fundamental Rule 53(2).
6. After trial of the suit, the learned court below, on appreciation of evidence adduced in the case and after consideration of relevant rules applicable to the case of the plaintiff, has decreed the claim of the plaintiff holding him entitled to payment of subsistence allowance according to rules from 19-6-1975 till his services are terminated in accordance with law. However, the learned Court below also directed that in case the plaintiff had earned income from any other employment or vocation during the period he was out of employment of the Corporation, an adjustment in that regard would be permissible according to rules, and if the defendant raises any objection in that behalf the same could be disposed of during execution proceedings of recovery. But in any event the plaintiff shall not be disentitled from receiving subsistence allowance on the basis that the plaintiff had derived income by working elsewhere during the period he was out of employment of the Corporation. Being aggrieved by the judgment and decree passed by the learned Court below, the defendant-Corporation has filed this appeal.
7. The learned counsel for the appellant-Corporation submitted that the allowable claim of the plaintiff to the subsistence allowance on the date of suit (21-9-1982) ought to be limited to a period of three years prior to the date of filing of the suit since the rest of the claim was barred by time. The plaintiff has claimed in the suit subsistence allowance from 19-6-1975 till the date of the suit and, therefore, according to the contention of the appellant-defendant the claim for the period from 19-6-1975 till 21-9-1979 was barred by time. This contention of the learned counsel is unsubstantial as would be seen from the relevant facts which may be stated thus:
(i) The plaintiff was removed from service on 19-6-1975 pursuant to Departmental Enquiry. He challenged the legality of the order of removal before the appropriate authorities and ultimately succeeded in revision before the Board of Revenue which by its order dated 5-3-1980, set aside the order of removal and directed remand for fresh disposal of the plaintiffs case of the Departmental Enquiry. According to Rule 52 of the M. P. Municipal Service Rules, 1968, the procedure for imposing major and minor penalties on a municipal employee are to be regulated according to the procedure laid down in the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the General Book Circulars applicable to the Government Servants. Consequently, Rule 9 of the M. P. Civil Services Rules, 1966, relating to suspension is applicable to the plaintiff and sub-rule (3) thereof provides that where a penalty of dismissal, removal or compulsory retirement from service imposed on a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry of action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. As such, the plaintiff shall be deemed to have been under suspension for the period from the date of the order of removal viz., 19-6-1975, consequent upon that order having been set aside by the Board of Revenue. Rule 53(4) of M. P. Municipal Service Rules; 1968 provides that a Municipal employee who is placed under suspension shall during the period of such suspension be entitled to receive payment as subsistence allowance of such amount as may be admissible to him according to the provisions contained in Chapter VIII of the Fundamental Rules applicable to the Government Servants. Fundamental Rule 53(1) under Chapter VIII of the Fundamental Rules provides that a Government Servant under suspension or deemed to have been placed under suspension by an order of the appointing authority is entitled to payments as provided therein.
(ii) As a result of remand order passed by the Board of Revenue after setting aside the order of removal from service the plaintiff would be deemed to be under suspension by virtue of the Rules mentioned hereinabove. The plaintiff therefore, made a demand for payment of subsistence allowance for the period from 19-6-1975 and since no payment was made to him, he approached the Collector and then to the Commissioner. The Commissioner, by his order dated 22nd March, 1982 passed in appeal, directed payment of subsistence allowance to the plaintiff in accordance with Rule 53(4) of the M. P. Municipal Service Rules, 1968 but as the defendant Corporation did not pay the subsistence allowance, the plaintiff filed the instant suit on 21-9-1982. The order of the Board of Revenue dated 5-3-1980 and the order of the Commissioner dated 22-3-1982 provided the cause of action for the plaintiffs claim. The claim in suit is, therefore, not barred by limitation. The contention of the appellant-defendant in this behalf is therefore, rejected.
8. Learned counsel for the appellant-defendant next contended that the F. Rule 53(2) applicable to the case of the plaintiff provides that no payment under sub-rule (1) shall be made unless the Government Servant furnishes the certificate that he is not engaged in any other employment, business, profession or vocation and since the plaintiff did not furnish a certificate as required by F. Rule 53(2) he was not entitled to claim the subsistence allowance. This argument of the learned counsel also has no merit. F. Rule 53(2) is a provision of procedure to be followed for payment of the subsistence allowance to the suspended employee and it does not affect the entitlement of the plaintiff to the payment of subsistence allowance due to him. The plaintiff, shall, therefore, furnish the required certificate before receiving payment of subsistence allowance, as per the decree. Accordingly, the second contention of the learned counsel for the appellant is also rejected.
9. Learned counsel for the appellant has further submitted that although the learned Court below has held that an adjustment of the amount of income earned by the plaintiff during the period he was out of employment would be permissible according to Rules against the amount of subsistence allowance due to be paid to the plaintiff, it has instead of inquiring and determining the amount earned by the plaintiff during the relevant period, has wrongly left it for determination in execution. In the absence of proper pleading and specific evidence on record, on the question whether the plaintiff had earned any income from any alternative employment or vocation during the period he was out of employment of the Corporation, the learned Court below could not have given any finding in that behalf and as such no grievance can be made for non-determination of the amount, if at all, earned by the plaintiff.
10. Learned counsel has also referred to sub-rule (8) of Rule 54 of Fundamental Rules in this connection in support of the direction of the learned Court below, for adjustment of income earned by the plaintiff during the period he was out of employment, against' the subsistence allowance payable under the decree. The said sub-rule reads as under: -
"(8) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under the rule are equal to or less than the emoluments earned during the employment elsewhere, nothing shall be paid to the Government Servant."
-X- -X- -X-
11. A perusal of the Fundamental Rule 54 shows that it provides for pay and allowance on reinstatement of the employee. It is, however, not free from doubt whether the instant case of the plaintiff where the case has been remanded by the Board of Revenue for fresh disposal of the Departmental Enquiry against the plaintiff employee after setting aside the order of removal, would amount to reinstatement of the plaintiff within the meaning of Fundamental Rule 54. The plaintiff is certainly not re-established to a position prior to his suspension in connection with the Departmental Enquiry, since that position could be achieved by the plaintiff only when either the enquiry is dropped or after he has been exonerated of the charges which formed subject matter of the Departmental Enquiry. However, since there is no appeal by the plaintiff to challenge the direction of the learned Court below permitting enquiry in execution for the adjustment of amount if any earned, by the plaintiff during the period he was out of employment, it is not necessary for this Court to go into the question of legality or otherwise of the direction made by the learned lower Appellate Court.
12. In view of the discussion aforesaid, this appeal has no merit and deserves to be and is hereby dismissed. There shall, however, be no order as to costs in the circumstances of the case.