The Apex Court dealt with an appeal challenging the impugned orders of the High Court pertaining to grant of benefits and allowance to an employee who disappeared at the time of his order of suspension and did not challenge the same until it was revoked by the State. The Top Court permitted only subsistence allowance and held that the employee cannot take advantage of his own absence as the same is against the principles of service jurisprudence.
Factual background of the case was that the respondent was employed as a clerk in the Health Department of State of Bihar. Thereafter the respondent was suspended vide Order dated February 15, 1991 of a Civil Surgeon-cum-CMO, Giridih, Giridih. It appears from the materials on record that the said order could not be served to the respondent as he disappeared from the scene.Notably, the respondent did not assail the suspension nor did he question the disciplinary proceedings not being conducted in pursuant to the suspension order. Later in the year, 2003 the Deputy Secretary, Department of Health &Family Welfare, Government of Jharkhand revoked the suspension order dated February 15, 1991 and posted the respondent as Clerk under Civil Surgeon, Ranchi. Directions were issued to the Civil Surgeon, Giridih to frame charges and initiate departmental proceedings against the respondent. As there was an opening to the post of Head Clerk under Civil Surgeon Koderma, he was assigned to the same post on July 4, 2003. The cause of action arose immediately after the appointment, as the respondent started demanding admissible allowances, benefits and
promotion for the period February 15,1991 till March 31, 2003 inter alia on the grounds that no proceedings have been initiated against him during that period and claims were also made in respect to the salary for the period June, 2003 to February, 2004 as per
the Last Pay Certificate. The appellant challenged the same by way of writ petition moved before the High Court of Jharkhand, the writ petition was allowed by the single- judge of the High Court by observing that no disciplinary proceedings were initiated against the respondent is undisputedly an incorrect fact. In pursuant to the same a review petition was filed by the appellant concerning the fact that no departmental proceedings were initiated against the respondent. The same was, however, dismissed by an order dated January 30, 2015 recording that the High Court order stating that the disciplinary proceedings were not initiated is not correctly noted. It was further submitted that in view of the High Court, it was opined that if the proceedings had been initiated, subsequently they would have faced their own fate. The respondent challenged the above stated orders by way of LPA, and the same was dismissed in the same manner as the order of the Single- Judge of the High Court was dismissed by a cryptic order dated May 9, 2016, the impugned order in the present proceedings. The Court in its order primarily dealt with the part concerning the initiation of disciplinary proceedings. The Court noted that the direction to initiate the proceedings was issued in an order dated May 13, 2015. The respondent was not found to be guilty of committing irregularities and any sort of misappropriate behavior on account of relevant facts found missing. However, the Court took into consideration the charge of unauthorized absence from April 4, 1989 to February 14, 1991 and irregular absence from February 15, 1991 to March 31, 2003 (suspension period) continuously for 13 years and the same was proved and the punishment was imposed. Extract from order dated May 13, 2015 is as follows: “(I) Censure
(II) No payment shall be made for the period of unauthorized absence from April 4, 1989 to February 1, 1991 according to the principle of ‘No work no pay’ and this period shall not be taken into account in service for any purpose. (III) Period from February 15, 1991 to March 31, 2003 (suspension period) shall be regularized in such a way according to the provision of rule 97(1)(A)(B) of the Service Code that only subsistence allowance shall be payable for the above period.”
The above stated order was never assailed by the respondent and the complete opposite observation of the impugned orders will be to give the benefits to the respondent, which this Court refused to accept. This Court was therefore of the view that respondent neither reported to work after the suspension order nor did he assail the . same till his suspension order was revoked by the State of Jharkhand. It was further added that it will be contrary to a service jurisprudence principle if the employee is able to take the advantage of his own absence for this period of time. If he was aggrieved by the fact that disciplinary proceedings were not initiated after his suspension, the same should have been brought to the surface by the respondent, the Court stated. However, the Court also noted that the State of Bihar also did not take any action is another part of the story. By making the above observations, the Court held that impugned orders shall be set aside, the respondent shall be entitled to benefit in accordance with the order dated March 13, 2015. It was also added that the aforesaid would have been rationally open to challenge, however with the passage of seven years of tenure it was too late for the respondent to challenge their claim.
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