Mohd. Abbas Khan vs Begum Bilquees Latif
1996 Latest Caselaw 959 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioner Mohd. Abbas Khan was appointed as Physical In structer in the Bal Bhawan and National children Museum on 21st July, 1957. Vide order dated 10th January, 1969 he was placed under suspension on the ground that disciplinary proceedings against him were contemplated. A charge sheet dated 10th January, 1969 was served on him. The Enquiry Committee completed its proceedings on 11th May, 1969 and submitted its report dated 26th May, 1969. On the basis of the said report, the respondent provisionally came to the conclusion that the petitioner was not a fit person to be retained in service. The petitioner represented against that. His representation was not accepted hence vide order dated 9th July, 1969 he was compulsorily retired from service. The appeal/review preferred by him was also dismissed.

(2) Against the order of the compulsory retirement this petitioner preferred a Writ petition. That was listed as C.W.P No-662/70. The said petition was disposed of by the single Judge of this Court whereby the petition was accepted. The order of compulsory retirement as well as the report of the Enquiry Committee was set aside vide order dated 23rd April, 1981. However, this Court permitted the respondent to have a De novo enquiry against the petitioner from the stage of framing of the charge. This was permitted by the Court in order to enable the respondent to hold fresh enquiry because earlier report was set aside on technical ground. The respondent filed Letters Patent Appeal (in short LPA) against the order of the Single Judge. This was listed as LPA.No. 106/81. Vide order dated 23rd March, 1995 the Division Bench dismissed the LPA. The order of the learned Single Judge dated 23rd April, 1981 was confirmed by the Division Bench.-

(3) It is the case of the petitioner that after the dismissal of the Lpa, he wrote number of letters to the respondents for treating his suspension period on duty. It was also pointed out that he be paid arrears of salary as he continues to be in employment. The respondents instead of making payment informed him vide letter dated 5th July, 1995 that the matter was under consideration. Since the Lpa was dismissed, there was nothing for the respondents to consider except to implement the judgment of the learned Single Judge.

(4) It is again the case of the petitioner that the respondent as per the order of the learned Single Judge dated 23rd April, 1981 could only hold De novo enquiry. The compulsory retirement having been set aside and the petitioner having stood superannuated the respondent could not treat the petitioner deemed suspended. Even for a deemed suspension separate orders are required to be passed. The respondents till date have not passed any such order. The learned Single Judge in fact permitted only De novo enquiry and for facility to expedite the enquiry permitted not to serve the charge sheet again. The permission to hold a De novo enquiry did not mean that the petitioner would be deemed to be under suspension for all that since the compulsory retirement was set aside, the petitioner would be deemed to be in continuous service and thus became entitled to wages for that period. He has to be treated on continuous duty. Respondents have failed to pay consequential benefits inspite of the order of the Single Judge as well as of the Division Bench, this prima facie proves that respondents have committed contempt of this Court.

(5) Refuting that any case of contempt is made out, Mr. Vijay Makhija, counsel for the respondent took the plea that the petitioner on attaining the age of super annuation stood retired from service on 31st January, 1988. Since there was confusion as to how the order dated 28th July, 1988 was to be implemented, the matter was referred for opinion to the Ministry of Human Resources, Department of Education. The said Department vide its communication drew the attention of the respondents to Rule 10(4) of Ccs (CCA) Rules, 1965 and pointed out that where a penalty of dismissal, removal or compulsory retirement from service was having been set aside by the decision of the Court of law, the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further enquiry against him on the allegation on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order and shall continue under suspension till further orders. Thus the petitioner was only entitled to subsistence allowance from the date of his suspension till the date of his superannuation, in accordance with the provisions of F.R.53. Further the Central Government has also given clarification in this regard. Acting, on the advise rendered by the Central Government the respondents have treated the petitioner deemed to be under suspension. Since, the respondents have acted in good faith hence no contempt of any kind has been committed by the respondents.

(6) After having heard Mr. R.K. Saini for the petitioner and Mr. V.K. Makhya for the respondent, in order to determine whether contempt has been committed or not, we have to determine whether on account of De novo enquiry, the petitioner would be deemed to be under suspension from the original date even if no fresh order in this regard is passed. To support his argument that no fresh order of suspension was required the moment respondent decided to hold fresh enquiry. In this regard Mr. Makhija placed reliance on the Fundamental Rules 53 and 54 read with Rule 10(4) of Ccs (CCA) Rule, 1965. Relevant provision of F.R.54 and Rule 10(4) are reproduced as under: F.R.54. (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 a 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. Rule 10(4) of Ccs (CCA) Rules, 1965 : 10 (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders : Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case. So far as F.R.53 that provision is not attracted in the facts of this case. F.R.53 deals as to what pay and allowances are to be paid after reinstatement of an employee. It envisages that a suspended or deemed suspended employee will be paid subsistence allowance at an amount equal to leave salary which he would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance. This rule in fact comes into operation when order by the appointing authority is passed to reinstate the employee after his order of dismissal, removal or voluntary retirement/ suspension is set aside. That is not the question is issue. The petitioner instead of being reinstated stood superannuated in the meantime. The question for consideration is to how the period prior to Court's order dated 23rd April, 1981 has to be treated, on continuous duty or not? Whether for deemed suspension fresh application of mind required? Mr. R.K. Saini contended that once the order of suspension leading to compulsory retirement was set aside, the disciplinary authority had to pass a fresh order suspending the petitioner from the original date. That would be called deemed suspension. The deemed suspension also require a specific order indicating that the delinquent would be treated as under suspension from the date of the original order. To support his arguments that fresh order in this regard is required Mr. R.K.Saini drew the attention of this Court to the provisions of Rule 10(5) (b) of the Ccs (CCA) Rules, 1965 which are reproduced as under : 10(5) (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings. Reading of Sub-rule 5(b) of Rule 10 of Ccs (CCA) Rules, 1965 clearly stipulate that the competent authority has to record reasons for the continuous suspension of the delinquent until the termination of all or any of such proceedings. It means that when a De novo enquiry is ordered as in this case the competent authority was required to pass order giving reasons in writing that the petitioner would continue to be under suspension. Once such an order was passed giving reason it would have been treated deemed suspension. Having not passed any specific order in this regard as required under the rules it cannot be treated a case of deemed suspension. Merely because a De novo enquiry was permitted and in fact has been ordered that by itself did not empower the respondents to treat the petitioner under suspension from the original date. For deeming provision also specific order as stipulated under Sub Rule 5 of Rule 10 was required to be passed. For that respondents were required to give reasons. If reasons had been given those would have been open to scrutiny. Since, the respondent only ordered fresh enquiry without passing any order of deemed suspension hence it is clear that petitioner continues to be on duty during all that period till he superannuated. That order of 11th November, 1995 by which fresh enquiry instituted merely states that the de novo enquiry would be held. Reading of the letter issued by the disciplinary authority show that the authority has not passed any order directing the continuance of suspension from the original date. Therefore, there could not be any deemed suspension in this case. The order dated 11th November, 1995 reads as under : No. F. 777/GO/95/3598 11th November, 95 Order Whereas an inquiry under Rule 9 of the Central Civil Services (Pension) Rules, 1972 has been continued against Shri Mohd. Abbas Khan, Formerly Head Physical Education Section, Bbsi, New Delhi as permitted by the Division Bench of Delhi High court in their order dated 233.1995 in LPA. 106/81. And whereas the departmental proceedings shall be conducted in accordance with the procedure laid down in Rules 14 & 15 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. And whereas the undersigned considers that an Inquiry Authority should be appointed to inquire into the charges framed against the said Shri Mohd. Abbas Khan. Now, therefore, the undersigned, in exercise of the powers conferred by Sub-rule (2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 hereby appoints Shri K.K.Arora, Director (Retd.) Dept. of Posts, Ministry of Communications, New Delhi as the Inquiring Authority to inquire into the charges framed against the said Shri Mohd. Abbas Khan. sd/- (Dr.Madhu Pant) Director Copy to: Sh. Mohd. Abbas Khan Reading of this order shows that disciplinary authority had decided to hold enquiry afresh from the stage of chargesheet and nothing more. For the intervening period no order in writing was passed treating it to be deemed suspension. I find force in these submissions of Mr. R.K.Saini. Turning to the argument of Mr. Vijay Makhija that F.R.54 empowers the respondents not to treat the petitioner on duty because the order of his voluntary retirement was set aside on technical ground. That period cannot be treated as a period spent on duty. The question taking decision whether that period was spent on duty or not depends upon the outcome of fresh departmental enquiry report. This argument has no force in view of F.R.54 A(2) (i) which is reproduced as under : F.R.54-A(2) (i) - Where the dismissal removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and 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, 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. Reading of this provision clearly show that even where order of compulsory retirement is set aside by Court on technical ground, the delinquent official would be paid such amount to which he would have been entitled had not been so voluntarily retired. But in the case in hand neither the respondent determined the amount due to petitioner nor called upon him to make representation against any such decision. On the contrary, respondent has taken the stand that decision would depend on the outcome of fresh enquiry. This is contrary to law and the rules relied by the respondents themselves. Neither the reading of fundamental rules nor of Ccs (CCA) nor of Pension Rules support this contention of the respondent that decision for treating this period spent whether on duty or not depend on the outcome of de novo enquiry. In the absence of any such provision the action of the respondent linking the payment to the petitioner regarding his consequential benefits to the outcome of fresh enquiry, to my mind, amounts to flouting the order of this Court dated 23rd April, 1981. There is no quarrel with the proposition that fresh enquiry could be instituted and can continue even after retirement of an employee under Rule 9 of the Pension Rules. Rule 9 of the Pension Rules which is reproduced as under; Clearly show that the disciplinary authority could only withhold or withdraw the pension of the petitioner in case the enquiry report goes against him. At best the respondents can withhold the pension or order for recovery from his pension either whole or in part of the pecuniary loss caused to the respondents provided the petitioner is found guilty of misconduct or negligence for which he is charged. 9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding or withdrawing a pension or part thereof whether permanently or for a specified period, and of ordering recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed : Provided Further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of rupees three hundred and seventy five per mensem. To a retired government servant as per the pension rules, the disciplinary authority cannot impose any penalty. If he is found quality of any misconduct or negligence while he was in service, the disciplinary authority can recover the pecuniary loss caused to it from the pension or his pension can be withheld but nothing more. Therefore, the argument of Mr. Makhija that the question as to how the period of suspension prior to the order of voluntary retirement is to be treated or that it is linked with the outcome of the fresh departmental enquiry instituted against the petitioner has no force. Admittedly, the petitioner retired from the service way back in 1988. Therefore, even if the result of de novo enquiry is against him, as per Rule 9 of the Pension Rules, the Department can either withhold his pension in part or in full or recover the pecuniary loss suffered by it. But it cannot refuse the consequential benefits which have accrued to the petitioner after the order of compulsory retirement having been set aside. Hence, I find no merits in the objection raised by Mr. Makhija. Ordinarily having said that prima facie case of contempt is made out. I would have imposed punishment on the contemners. But in the interest of justice, one opportunity is given to the contemners to purge the same. In case respondents pay to the petitioner wages due to him within two months then no action would be taken against the respondents failing which they would be had guilty of contempt and punished. The petitioner is given liberty to approach this Court in case payment within two months is not made.