Dr. Vinod Shanker Dubey vs State Of U.P. And Others
2017 Latest Caselaw 3516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 
Case :- WRIT - A No. - 51545 of 2010
 
Petitioner :- Dr. Vinod Shanker Dubey
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Rajeev Misra
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Rajeev Misra, learned counsel for the petitioner and the learned Standing Counsel for the respondent nos. 1, 2 and 3.

The petitioner is a Medical Officer in the Provincial Health Services of the State of U.P. He was charge-sheeted and subjected to a disciplinary enquiry on the allegation of unauthorized absence and for not residing at the headquarters and discharging his duties as a result whereof an enquiry was held whereafter, the punishment awarded to the petitioner was to the effect that a censor entry for the year 2003-2004 shall be endorsed in his service book on account of the said charges having been found to be proved. 

During the pendency of the enquiry, the petitioner was placed under suspension from 8.8.2002 to 20.9.2003.

Upon the award of punishment, the petitioner claimed his entitlement to salary of eight months plus the full salary for the period of his suspension that remained pending and consequently, the petitioner was compelled to file Writ Petition No. 41520 of 2004 that was disposed of on 4th January, 2008 by the following judgment:-

"The petitioner was suspended on 8.8.2002, an inquiry was started against him. After the enquiry the petitioner was given adverse entry and was reinstated on 30.9.2003. It was also mentioned in the order that decision regarding payment of salary for the suspension period subsequently. Neither any decision has been taken by the respondents nor any salary has been paid to the petitioner. Hence the present writ petition.

2. We have heard counsel for the petitioner and Standing Counsel for the respondents.

3. In the circumstances of the case, the petitioner may file a representation before the respondent no. 2. In case the representation is filed, it may be decided by the respondent no. 2 by a speaking order if possible, within three months from the date of receipt of the representation. The petitioner will file a certified copy of this order, other necessary documents and a duly stamped self addressed envelope alongwith his representation. Respondent no. 2 after taking decision will communicate the same to the petitioner.

Needless to say, if any salary is required to be paid to the petitioner then respondent no. 2 will ensure that it is paid to him by the concerned authority.

4. With these observations the writ petition is disposed of."

The petitioner thereafter, filed a representation before the State Government on 29th January, 2008 alongwith a copy of the aforesaid judgment praying for release of the salary for the aforesaid period.

On account of non-compliance of the directions, the petitioner also filed a Contempt Application No. 1990 of 2009 which was disposed of with a direction to the Director General Medical and Health Services U.P. to decide the said claim of the petitioner. The Director General in turn issued an office memo dated 25th March, 2010 on the strength of the communication and order of the State Government dated 24th February, 2010 informing the petitioner that the State Government has taken a decision not to make payment of salary for the period of suspension as no justification was found for the same. It is this communication dated 25th March, 2010 which has been assailed before this Court contending, that firstly the said deduction of salary amounts to an order in continuation of the punishment order dated 30th September, 2003 and the same could not have been passed without putting the petitioner to a show cause entailing the reasons as to why the State Government did not find the payment to be justified. It is urged that no such show cause notice was issued to the petitioner and the impugned order was communicated after the direction of the High Court was brought to the notice of the Director General Medical and Health, keeping in view the orders passed by the contempt court on 5.11.2009. It is therefore, submitted that the impugned order is in violation of principles of natural justice and in non-conformity with the Rules applicable to the controversy without any opportunity to the petitioner to contest the nature of the justification for such deduction.

Learned counsel then contends that even otherwise the recital contained in the impugned order that there is no justification to pay the salary is not supported by any reason or description of any of the parameters on the basis whereof such deduction can be sustained more so, when the petitioner was awarded a minor penalty of censor. It is therefore, urged that in the absence of any such reasons and a mere conclusion of no justification having been found, the impugned order communicating the decision of the State Government is violative of Article 14 of the Constitution of India. Learned counsel has also cited the Division Bench judgment in the case of Devendra Kumar Jain Vs. State of U.P. & Another 2014 (8) ADJ 144.

The learned Standing Counsel has however invited the attention of the Court to the contents of the counter affidavit to urge that so far as the salary of eight months is concerned, the same has been paid to the petitioner and in the absence of any justification on the part of the petitioner having remained absent from duty and the said charge having been found to be proved, the non-payment of salary for the period of suspension is justified. It is urged that the order does not suffer from any infirmity or violation of U.P. Government Servant (Discipline And Appeal) Rules, 1999 and consequently once the direction issued by the High Court had been complied with and the petitioner had represented his matter before the Director General Medical and Health Services, there is no violation of principles of natural justice. The impugned order has been passed on a careful consideration of the material that was on record including the elements as described in the punishment order dated 30th September, 2003.

We have considered the submissions raised. The power to suspend a Government servant pending enquiry emanates from the provisions of Rule 4 of the 1999 Rules. The suspension order is subject to any final orders being passed by the disciplinary authority. The disciplinary authority in the present case passed a final order of punishment on 30.9.2003 for endorsing an adverse censor entry in the service record of the petitioner. No other punishment has been awarded. So far as payment of salary for the period of suspension is concerned, the disciplinary authority was of the opinion that a separate order shall be passed in relation thereto.

It may be noted that a Government servant placed under suspension is entitled to subsistence allowance during the period of suspension in terms of Rule 53 of the Financial Hand Book Volume II Part II to IV. However, payment of salary after the conclusion of the disciplinary proceedings is subject to the provisions of Rule 54 and Rule 54A, 54B of the Financial Hand Book referred to hereinabove. The power of the competent authority to pass an order in respect of the pay and allowances during the period of suspension is en-grafted in Rule 54 of the Financial Hand Book which is extracted hereinunder:-

"(1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order 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 including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be: and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) When the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated the Government servant shall, subject to the provisions of sub-rule(6), be paid the full pay allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:

Provided that where such authority is of opinion that 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 giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.

(3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) [including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held], the Government servant shall, subject to the provision of sub-rules (6) and (7) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be 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 on which the notice has been served) as may be specified in the notice.

(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the 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 including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servant."

.......................

It is therefore in exercise of such powers that the competent authority had to pass a separate order for payment of salary to the petitioner for the period of suspension. The authority therefore, has to form an opinion in such matters, and sub-Rule (4) of Rule 54 requires the giving of a notice to the Government servant prior to such determination.

The right of a Government servant to represent his cause is protected under the aforesaid Rules read with Rule 5 of the 1999 Rules. Rule 5 of the 1999 Rules is extracted hereinunder:-

"5. Pay and allowances etc. of the suspension period- After the order is passed in the departmental enquiry or in the criminal case, as the case may be, under these rules, the decision as to the pay and allowances of the suspension period of the concerned Government servant and also whether the said period shall be treated as spent on duty or not, shall be taken by the disciplinary authority after giving a notice to the said Government servant and calling for his explanation within a specified period under Rule 54 of the Financial Hand Book, Volume II, Parts II to IV."

A combined reading of Rule 5 of the 1999 rules read with Rule 54 extracted hereinabove makes it is clear that giving of a notice to the Government servant and calling for an explanation prior to determination of payment, deduction or otherwise, of all pay and allowances for the period of suspension is a sine qua non.

Learned counsel for the petitioner Sri Rajeev Misra has rightly submitted that the purpose of such a notice is to put the government servant on guard about the proposed action to be taken for deducting his pay allowances or otherwise. This therefore, entails following of a compulsory procedure provided in the Rules itself for protecting the right of the Government servant to raise any objection in the event the employer is proceeding or intending to cause any deduction from such payments. In our considered opinion also, this right of the Government servant to take an objection against any such intention of deduction of payment therefore stands protected under the aforesaid statutory provisions which in our opinion are mandatory. This being the purpose of the issuance of a show cause notice, the same can neither be obviated nor avoided by the employer.

In the instant case, no such procedure was followed inasmuch as the petitioner on his own filed a writ petition and claimed his salary for the said period through a representation. It was never made known to the petitioner by the respondents at any stage as to why it was found necessary to deduct the salary for the period of suspension. Thus, the said procedure having not been complied with, there is a clear violation of the statutory rules aforesaid thereby prejudicially affecting the rights of the petitioner in violation of principles of natural justice.

Apart from this, had the petitioner been made aware of the cause for deduction of payment of salary for the period of suspension, he would have had the opportunity to raise an objection which opportunity was obviously not given on the facts of the present case. The filing of the representation of the petitioner and the direction of the High Court voluntarily on the part of the petitioner cannot be said to be a compliance of the procedure aforesaid as prescribed in law. The petitioner had simply filed a writ petition claiming his salary and to the same effect was his representation. The purpose of the notice for determining the justification for deduction therefore was not fulfilled nor did the petitioner had any opportunity to defend his cause in relation to the proposed deduction. The impugned order was passed straightaway on the strength of the orders of the State Government dated 24th February, 2010.

The order dated 24th February, 2010 is Annexure CA1 to the counter affidavit. The same appears to have been issued after the contempt application had been filed by the petitioner. The order emanates from the Special Secretary and is addressed to the Director General calling upon the Director General to inform the State Government about the status of the payments made to the petitioner. In our considered opinion, the said order is not a valid order of the State Government authorizing deduction of payment of salary or allowances for the period of suspension for the above mentioned reasons.

It is in violation of principles of natural justice and the procedure prescribed hereinabove inasmuch as the said order dated 24th February, 2010 nowhere discloses of giving of a notice to the petitioner and then taking a decision for refusing to make payment of salary. The order dated 24th February, 2010 only amounts to an expression of an opinion for having not found any justification for payment of salary and cannot be said to be an order passed in compliance of Rule 5 of the 1999 Rules or Rule 54 of the Financial Hand Book referred to hereinabove.

On a consideration of the entire facts, we find that neither the said order of the State Government dated 24th February, 2010 nor the communication thereof by the Director General under the impugned memo dated 24th March, 2010 can be stated to be orders passed in compliance of the provisions aforesaid.

We therefore, find both the orders of the State Government dated 24th February, 2010 and the order of the Director General dated 24th February, 2010 to be clearly vitiated. The writ petition therefore, deserves to be allowed for all the reasons aforesaid. The impugned order dated 24.2.2010 and 25.3.2010 are hereby quashed. The respondents shall pass fresh orders on the claim of the petitioner in accordance with law and the observations made hereinabove within three months of this order. No orders as to costs.

Order Date :- 23.8.2017

S.Chaurasia