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[Cites 5, Cited by 0]

Jharkhand High Court

Dineshwar Prasad Sharma vs State Of Jharkhand & Anr. on 15 December, 2016

Equivalent citations: 2017 (3) AJR 136

Author: Pramath Patnaik

Bench: Pramath Patnaik

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No. 634 of 2009

Dineshwar Prasad Sharma, son of Late R.S. Sharma, resident of Bariatu,
P.O. and P.S. Bariatu, District Ranchi.            .....     Petitioner
                          Versus

1. State of Jharkhand.
2. The Secretary, Animal Husbandry and Fishery Department, Government
of Jharkhand, Ranchi.                       ......                Respondents
                        ---------
CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
                        ----------
For the Petitioner       : Mr. Saurabh Shekhar, Adv.
For the Respondents      : Mr. Sunil Singh, J.C to S.C (Mines)

CAV on:30th June, 2016                         Pronounced on 15/12/2016
Per Pramath Patnaik, J.:
1.      Initially the writ application, contained for two-fold prayers.
Subsequently, vide order dated 11.02.2016 passed in I.A No.2395 of 2015,
amendment has been made to the writ application and in the amended writ
application, following prayers have been sought for by the petitioner:
(i)     For direction to the respondents to release the arrears of salary to the
tune of Rs.17,839/-, arrears of dearness allowance to the tune of Rs.4,995/-,
total comes to Rs.22,834/- along with penal interest.
(ii)    For direction to the respondents for quashing the order dated
25.04.2014

to the extent wherein under paragraph 4 (Ka) it has been ordered that the petitioner is entitled for subsistence allowance only for the specified period out of the whole period, during which he was under suspension and it has been ordered that the payment of entire amount (full salary), during that period shall be kept pending, therefore, petitioner has sought for direction to the respondents for release of full salary during the period of suspension.

(iii) For direction to the respondents to fix and finalize the pension of the petitioner on the revised pay scale according to the 6th pay revision commission and for payment of arrears of salary on the basis of increment due to the 1st A.C.P Scheme and 2nd A.C.P Scheme and Modified Career Progression Scheme and further increments on the basis of 6th pay revision commission from the due date.

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(iv) For direction to the respondents to forthwith release the retiral dues like leave encashment, gratuity and the amount of general provident fund along with statutory interest.

2. The factual matrix, as averred in the writ application, in a nutshell is that while the petitioner was serving as Touring Veterinary Officer, Animal Husbandry and Fishery Department, remained under suspension from 21.03.2002 to 29.02.2012 till the date of his retirement and his suspension order was passed under Rule 49 A of the Civil Services (CCA) Rules. During pendency of criminal case i.e. R.C.45(A)/1996, no specific order for revocation of order of suspension was passed till the petitioner attained the age of superannuation i.e. 29.02.2012. The aforesaid criminal case as mentioned above initiated in the year 1996 is pending for disposal. While the petitioner was continuing in service, a departmental proceeding was initiated on the self same charges on 05.03.2009 vide notification no.470 but the said proceeding was dropped on 01.10.2009 as per Annexure-11 of the rejoinder to the counter affidavit of the amended writ application.

3. In order to substantiate the prayer no.1, learned counsel for the petitioner submits that the release of suspension allowance for the period from 21.03.2002 to 04.09.2002, 29.03.2003 to 08.03.2006 and 09.03.2006 to 30.04.2007 has been denied, on the ground of non attendance in the headquarter fixed at District Animal Husbandry office, Palamu, during the period of suspension. But the petitioner is entitled to subsistence allowance as laid down under Rule 96 of the Service Code. Learned counsel for the petitioner submitted with vehemence that supplying of certificate of no employment in any other organization, during the suspension period is to be complied and no extra condition of daily attendance at the headquarter has been made as has been held by the Hon'ble Apex Court in the case of State of Bihar vs. Arbind reported in AIR 2013 SC 3329. So far as prayer no.2 in the amended writ petition is concerned, learned counsel for the petitioner submits that the same relates to payment of full salary for the suspension period after retirement. Learned counsel for the petitioner submits that since salary does not form part of the pension, hence it cannot be withheld after retirement. Since the leave encashment, which is salary cannot be touched after retirement as dealt in Full Bench decision of this Court in case of Doodh Nath Pandey vs. State of Jharkhand & Ors. reported in 2007 (4) JCR 1 (Jhr) (FB), the principle of which has been upheld in Jitendra Kumar 3 Srivastava's case. Therefore, the counsel for the petitioner submits that the petitioner is entitled to full salary as there is no specific provision to deal with the period of suspension after retirement as per the decision of the Hon'ble Apex Court reported in AIR 1964 SC 787 (R.P. Kapur vs. Union of India and Anr.). So far as prayer no.3, which pertains to fixation of pensionary benefits on full salary on the date of retirement after adding the increments pursuant to 6th pay revision commission. Learned counsel for the petitioner submitted that after retirement the order of suspension was merged with normal superannuation of the petitioner. Since on the date of retirement there was no finding of grave misconduct or the pecuniary loss is proved or the service record is found unsatisfactory or future conduct doubtful, therefore, the petitioner is entitled to the said reliefs. So far as prayer no.4 of the amended writ petition is concerned, learned counsel for the petitioner by referring to various circulars 14.08.2002, 01.09.2009, 11.09.2002 and 20.11.2008, which have been annexed as Annexure-12 series to the rejoinder to the counter to the amended writ petition, submitted that the petitioner is entitled to get the increments and the said increments can be recovered, if ultimately the petitioner is found guilty in the criminal case.

4. A supplementary counter affidavit to the interlocutory application on behalf of respondents has been filed, controverting the averments made in the writ application. Learned counsel for the State has reiterated the submissions made in the counter affidavit. Learned counsel for the State during course of hearing has assiduously submitted that so far as grant of ACP and MACP is concerned, the same shall be considered by the State Government by placing the same before the Screening Committee in the next meeting, but the petitioner is not entitled to the benefit of 6th pay revision in the light of paragraph 3 of the resolution memo dated 28.02.2009 issued by the Finance Department, Government of Jharkhand as evident from Annexure-I to the reply to the interlocutory application filed on behalf of the respondents. It has been averred that because of the fact that the resolution was effective from 01.01.2006 and the petitioner was under

suspension prior to 01.01.2006 and the period of suspension continued till 29.02.2012 and the reasons for suspension of the petitioner was because of his implication in Fodder Scam Case No.R.C.45(A)/1996 (Pat) and the said criminal case has not been finalized, therefore, no full salary to the suspended employee is admissible. It has further been submitted by learned 4 counsel for the State that the petitioner challenged the order of suspension dated 21.03.2002 in W.P.(S) No.1582/2003 and the said writ petition was dismissed as withdrawn. Thereafter, the petitioner did not submit his joining for about four years, therefore the period from which petitioner remained present in headquarters has been calculated as mentioned in paragraph 21 of the reply to the interlocutory application.

5. Learned counsel for the State further submits that so far as pension, gratuity, leave encashment and general provident fund are concerned the same have already been sanctioned to the petitioner in view of the ratio laid down by the Hon'ble Supreme Court in the case of State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava and also the arrear of salary amounting to Rs.22,834/- has already been sanctioned to the petitioner. Learned counsel for the petitioner further submits that the claim of the petitioner for full salary is not permissible in view of the provisions as mentioned in Rule 97 (2) of the Jharkhand Service Code and as laid down in a case reported in 2003(3) JCR 776 (Jhr.) (Anant Pandey & Ors. vs. State of Jharkhand & Ors.) and the case of the petitioner is squarely covered by the aforesaid decision.

6. After perusing the relevant documents on record and having heard the rivalised submissions of the counsel for the respective parties, the points for determination boils down, as to whether any suspended employee remaining as such for a pretty long period, on attaining the age of superannuation, would be entitled to full salary for the period of suspension in the absence of conclusion of departmental or criminal proceeding.

7. In order to dwell upon the aforesaid point, it would be apposite to refer to Rule 97 of the Jharkhand Service Code, 2001 which reads as under:

"97. (1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order-
(a) regarding the pay and allowances 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 fully exonerated, or in the case of suspension, that it was 5 wholly unjustified, the Government servant shall be given full pay and allowances to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such promotion of such pay and allowances 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 allowance 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 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."

8. In the instant case, the criminal case against the petitioner i.e. Case No.R.C.45(A)/1996 (Pat) as stated by the respective parties, has not been finalized and the similar issue has already been decided in the case Anant Pandey & Ors. vs. State of Jharkhand & Ors. reported in 2003(3) JCR 776 (Jhr.) wherein, the Hon'ble Court after referring to various decision in paragraph 17 has been pleased to summarise as thus:

"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;

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(iii) A suspended employee of the State Government is not entitled for Subsistence Grant (Allowance) in the revised scale of pay.

9. I am in respectful agreement with the view expressed by the Hon'ble Court referred to Anant Pandey (supra). In that view of the matter, the petitioner is not entitled to full salary as per the Rule 97(2) of the Jharkhand Service Code and the ratio laid down in the case of Anant Pandey (supra) and the entitlement of full pension of salary has to be decided as per the ratio decided therein.

10. Accordingly, the writ petition stands disposed of.

(Pramath Patnaik, J.) Saket/-