Jharkhand High Court
Anant Pandey And Ors. vs State Of Jharkhand And Ors. on 20 August, 2003
Equivalent citations: [2003(3)JCR776(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. In all these cases, as common question of law involved and almost common relief has been sought for, they were heard together and are being disposed of by this common judgment at the stage of admission with the consent of the counsel for the parties.
2. The petitioners while in the services of the State were suspended on different dates and subsequently retired on attaining the age of superannuation i.e., 58 years, while under suspension. They have prayed for direction on the respondents to pay them full salary of the period of suspension in the revised scale of pay.
3 The petitioner, Anant Padney of WP (S) No. 2085 of 2003, being an accused in the Fodder (A.H.D). Scam was suspended vide Memo No. 139 dated 8th February, 1996, an FIR having lodged against him. While under suspension, he retired on 31st January, 2002 on attaining the age of 58 years.
The petitioner, Parshidh Narayan Singh of WP (S) No. 2086 of 2003 being also an accused in Fodder (A.H.D.) Scam was suspended vide Memo No. 139 dated 8th February, 1996, one FIR having lodged against him. He also retired from the services of the State on 31st May, 2000 on attaining the age of superannuation.
The other petitioner, Kodai Ram of WP (S) No. 2087 of 2003 being also an accused in Fodder (A.H.D.) Scam, was suspended from the date he was taken in custody i.e., w.e.f. 4 February, 1996. He retired on 31st July, 1998 while under suspension.
Same is the case of other petitioner, Jagdish Sharma of WP (S) No. 3748 of 2002 who was also suspended on account of his being involved in the Fodder (A.H.D. Scam w.e.f. 14th February, 1996 and remained under suspension till the date of his superannuation i.e., till 31st May, 1998.
4. The question involved in these cases are :--
(i) Whether an employee of the State of Jharkhand under suspension would get automatically exonerated from the charges and is entitled for full salary of the period of suspension if no final order is passed in the departmental proceeding during the service period and the delinquent retires while under suspension?
(ii) Whether a suspended employee of the State of Jharkhand is entitled for subsistence grant (allowance) in the revised scale of pay?
5. The counsel for the petitioners relied on Rule 97 of the Bihar (Jharkhand) Service Code, 1952 (hereinafter referred to as the Service Code) and a Division Bench decision of Patna High Court in the case of State of Bihar and Ors. v. Kameshwar Prasad Gupta, reported in 2000 (2) BLJ 310.
In the said case, the employee was involved in a murder case and ultimately, convicted by the trial Court. The appeal preferred by him was also dismissed by the High Court. The said employee was placed under suspension, both because of criminal case and the departmental enquiry, but before any final order could be passed in the departmental proceeding, he superannuated on 31st January, 1997. The employee preferred a writ petition for payment of full salary of the period of suspension and retirement benefits which was allowed by the learned Single Judge. The State of Bihar preferred LPA No. 687 of 1999 against the judgment of learned Single Judge. Taking into consideration the facts and circumstances of the said case of the employee, Kameshwar Prasad Gupta and the provisions of Rule 97 of the Service Code, the Division Bench held, as follows :--
"In our view, the provisions of Rule 97 of the Bihar Service Code, as referred to above, is not applicable, to the present case, Because, admittedly, in this case, neither any order for revocation of the suspension was passed nor any order for reinstatement of the concerned respondent had been recorded. Therefore, in our view the learned Judge, has rightly directed the appellants to make payment of the salary to the respondent for the period he was under suspension."
"Now coming to the question regarding payment of retirement benefits true it is the State Government in appropriate cases can pass order under Rule 43 of the Bihar Pension Rules, even if the concerned Government servant is superannuated pending a departmental proceeding. But in this case, admittedly till this date no order has been passed under that provision to withhold the pension and other retirement benefits of the respondent although he retired from service w.e.f. 31.1.1997. Therefore, we are not inclined to interfere with the impugned order under appeal. The State Government is always at liberty to pass appropriate order under Rule 43 of the Bihar Pension Rules in accordance with law."
6. To decide the issues, it is desirable to notice certain provisions of law relating to suspension, the amount payable to a suspended employee and continuation of departmental/criminal proceeding after superannuation.
Under Rule 96(1)(a) of the Service Code, a Government servant under suspension is entitled to get 'Subsistence grant' at an amount equal to leave salary, the Government servant would have drawn, if he had been on leave, on half average pay, or on half pay and in addition to the cost of living allowance based on such leave salary. If the period of suspension exceeds 12 months, the competent authority may vary the amount of 'Subsistence Grant'.
Sub-rule (a) (ii) and (iii) of Rule 96 prescribes conditions to increase or decrease the 'Subsistence Grant' not exceeding 50% of the 'Subsistence Grant' admissible during the first year. If there is no laches on the part of the employee then it may increase up to 75% of the pay after one year. But, while the period of suspension is prolonged directly attributable to the delinquent employee, in such case, the 'Subsistence Grant' may be reduced by a suitable amount, up to 25% of the average pay.
After retirement, for the purpose of determination of Pension, it is to be determined whether the period under suspension is to be counted for the purpose of retirement benefits or to be treated as an interruption in the service as per Rule 99 of the Bihar (Jharkhand) Pension Rules, 1950 (hereinafter referred to as the Pension Rules).
7. Similar question fell for consideration before a Division Bench of Patna High Court in the case of Lakshmi Narayan Singh, a Civil Assistant Surgeon of Government of Bihar, reported in 1989 BBCJ 147, Dr. Lakshmi Narayan Singh v. State of Bihar. He was suspended and a departmental proceeding was initiated against him. The proceeding remained in dormant stage and the charged employee superannuated in the end of March, 1979. He claimed full salary for the period of suspension, but having rejected, he preferred a writ petition, CWJC No. 2095 of 1980 against the order of rejection and prayed for full salary of the period of suspension. The case was heard by a Division Bench of Patna High Court consisting of Mr. Justice H.L. Agrawal and Mr. Justice M.P. Varma (as they then were). One of the questions before them for determination was whether the said petitioner, in the circumstances, was entitled to claim full salary for the period of suspension or not. In the said case, the learned Judges took divergent views.
Interpreting Rule 97 of the Service Code, Mr. Justice Agrawal, held that as a general rule, a Government servant cannot be held to be entitled to his full pay, in every case, where a disciplinary proceeding ultimately ends without imposing punishment on him. He further held that in the circumstances, the petitioner of the said case was not entitled to any relief on this account.
Mr. Justice Verma held that the discretion to refuse payment of full salary to the Government servant can be exercised only in a case which is covered by Sub-rule (3) of Rule 97 and held the case of the said petitioner was not governed by the said rule to refuse the claim for salary.
8. On a difference of opinion between the two learned Judges, the case was referred to a third learned Judge, Mr, Justice L.M. Sharma (as he then was). The third learned Judge noticed Rule 97 of the Service Code and held, as follows :--
"5. The right of a Government servant to get his salary for the period he has been under suspension pending a disciplinary enquiry has to be determined in accordance Sub-rules (2) and (3) of Rule 97, which are in the following terms :--
"97. (2) Where the authority mentioned in Sub-rule (1), is of opinion that the Government servant has been exonerated, or in the case of suspension that it was 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 case, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe :
Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowances are admissible."
The further question whether the period of his absence from duty should be treated as period spent on duty for all or any specified purpose has been dealt with in Sub-rules (4) and (5) quoted below :--
"97. (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."
The provisions of Sub-rules (2) and (3) indicate that cases in which Government servants have been subjected to disciplinary enquiry are divided, for the question in issue, in two categories; first, where the competent authority is of opinion that the Government servant has been fully exonerated or in the case of suspension it was wholly unjustified; and the second category, in which all other cases are included. In the first case, the Government servant is entitled to the full pay and allowance, while in the second, the competent authority has to take a decision as to the proportion of the pay and allowance to be paid to him. It need not be said that while exercising his discretion the competent authority is expected to follow the rule of just and fair play and should, therefore, take into account all factors which may be relevant. The principle laid down by Sub-rules (2) and (3) covers all cases of disciplinary proceeding. It cannot be assumed that the rules were framed to apply only to some of such cases, leaving the other cases uncovered. While deciding the question as to whether a given case comes under the first category or the second, it has to be appreciated that the second category is residuary in nature, and if a case is held to be not included in the first one, it must be deemed to belong to the second. The further question in regard to cases of the second category has to be answered with reference to Sub-rule (5)."
9. The third learned Judge agreed with the views expressed by Mr. Justice H.L. Agrawal (as he then was).
10. Similar question fell for consideration before another Bench of Patna High Court (Single Judge), in the case of Smt. Vidya Sinha v. State of Bihar and Ors., reported in 1995 (2) PLJR 616. In the said case, the Court noticed Rule 97 of the Service Code. Relying on the decision in the Case of Dr. Lakshmi Narayan Singh v. State of Bihar and Ors., the Court held, as follows :--
"5. Where the delinquent superannuates from service in a state of suspension, the proceeding cannot be continued except for the purpose of withholding of pension (or gratuity) under Rule 43(b) of the Bihar Pension Rules. For other purposes it comes to an end. Therefore, there is no question of his being exonerated or the suspension being found to be unjustified for the purpose of his entitlement to pay and allowances under Rule 97(2). That would not, however, mean that that the charges which he was facing, whether a formal proceeding was pending or not would automatically get wiped out. In my opinion, in such a situation it would be permissible to the competent authority to consider whether the person should be paid salary and allowances for the suspension period after, of course, giving opportunity of hearing to him. There cannot be any doubt that any order denying salary and allowances for the suspension period is not a penalty within the meaning of the service rules but, nevertheless, is penal in nature and effect and, therefore, cannot be passed except after giving opportunity of hearing. While in the case of Government servants in service, the order Is to be passed under Rule 97 of the Service Code, after his superannuation, it will be deemed to be an independent order and not under Rule 97 but the consideration will more or less be the same. I would, accordingly, hold that the State Government is competent to deny salary for the suspension period on valid grounds even after superannuation after giving opportunity of hearing. No law has been brought to my notice prohibiting the State Government from passing such an order. As a matter of fact, a learned Judge of this Court, on difference of opinion between the Judges, in the case of Dr. Laxmi Narain Singh v. The State of Bihar, 1989 BBCJ 147, has taken a similar view.
11. Though the Division Bench of Patna High Court decided the case of Kameshwar Prasad Gupta. 2000 (2) BLJ 310, later on but the Larger Bench decision of Patna High Court in the case of Dr. Lakshmi Narain Slngh, 1989 BBCJ 147, or the decision in Smt. Vidya Sinha, 1995 (2) PLJR 616, were not brought to the notice of the Division Bench. The provision of Rule 96 of the Service Code, which deals with the payment of subsistence grant to a suspended employee was nor noticed, nor Rule 99 of the Pension Rules was noticed by the Court which deals with the issue whether the period of suspension pending enquiry should be counted for the purpose of pension or not.
12. In the case of Delhi Municipal Corporation v. Gurnam Kaur, AIR 1989 SC 35, the Supreme Court held that a decision should be treated as given per in-curiam, when it is given in ignorance in terms of a statute, or of a rule having the force of a Statute.
A decision of a Court is not a binding precedence if given per incuriam i.e., without the Court's attention having been drawn to the relevant authorities, or statute (The Law Lexicon, of P. Ramanatha Aiyar, reprint 2002, Publisher, Wadhwa and Co, Nagpur.)
13. For the reasons aforesaid, the petitioners cannot derive any advantage of the decision of the Division Bench of Patna High Court in the Case of Kameshwar Prasad Gupta, reported in 2000 (2) BLJ 310, it having no binding precedence.
Similar is the position with regard to the case of Rana Subodh Sharma v. State of Jharkhand, 2001 (3) JCR 28. WP (S) 2309 of 2001, disposed of by this Court on 11th June, 2001, it being based on the decision of Kameshwar Prasad Gupta (supra). It also has no binding precedence.
14. In the case of Ganpati v. Waman, reported in AIR 1981 SC 1956. the Supreme Court noticed that the matter involved, decided previously by four Judges of the Supreme Court. Another decision of three Judges on the point of dispute was delivered discordant to decision of four Judges. The Supreme Court held that the subsequent decision of three Judges even assuming to be on point in dispute and discordant to decision of four Judges, cannot be taken into account till the dictum of four Judges holds the field.
The Patna High Court in the case of Lakshmi Narayan Singh, reported in 1989 BBCJ 147, being of three Judges, it having not overruled, will hold the field over the decision given by two Judges in the case of Kameshwar Prasad Gupta, reported in 2000 (2) BLJ 310.
15. The question whether the departmental proceeding initiated against a State Government employee during the service period continue even after retirement, stands decided by a Full Court decision of Patna High Court in Shambhu Sharan v. State of Bihar, (FB), reported in 2000 (1) PLJR 665. Taking into consideration Rules 43(b) and 139 of the Pension Rules, the Full Bench of Patna High Court held that the scope of the two Rules are quite different. The Court further held that a departmental proceeding pending at the time the Government servant retires shall continue after his retirement under Rule 43(b) of the Pension Rules. No specific or express order of the Government to this effect is necessary.
16. A State Government employee under suspension cannot claim for Subsistence Grant (Allowance) in the revised scale for two reasons :--
(a) A suspended employee is not entitled for salary in any scale of pay. He is merely entitled for Subsistence Grant (Allowance) at an amount equal to the 'leave salary', which the Government servant would have drawn, if he had been on leave, on half average pay (Refer Rule 96 of the Service Code).
(b) Whenever the State Government accepted the recommendations of the Pay Revision Committee/Fitment Committee to grant revised scale of pay, made it clear that the revised scale of pay shall not be applicable to the employees who are under suspension or on leave or was not on duty, on or after the date on which the revised pay is made applicable to the employees, which will be evident from paragraph No. 9 to the Government of Bihar, Finance Department's Resolution No. 3-M-2-5- VE-PU-1/99-660/(F/2) dated 8th February, 1999, whereby the recommendations of the Pay Revision Committee were accepted. (Annexure-A to the counter affidavit filed in WP (S) No. 2087 of 2003).
17. From the decisions of the Courts and discussions as made above, it will be evident that :--
(i) An employee of the State Government under suspension is not exonerated from the charges automatically on retirement as the proceeding deemed to be a proceeding under Rule 43(b) of the Pension Rules;
(ii) Immediately on retirement, a suspended Government employee is not entitled for full salary for the period of suspension. The question of payment of salary of the period of suspension shall depend on the final order as may be passed under Rule 43(b) of the Pension Rules on the basis of the finding in the departmental proceeding/or the criminal proceeding; and
(iii) A suspended employee of the State Government is not entitled for Subsistence Grant (Allowance) in the revised scale of pay.
18. Both the question are, accordingly, answered against the petitioners. The prayer of petitioners is rejected.
19. There being no merit, all the writ petitions are dismissed. However, there shall be no order, as to costs.