Chandradhar Das vs The Registrar Of Coop. Society And ...
2021 Latest Caselaw 3031 Gua

                                                               Page No.# 1/9

GAHC010012202014




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/3429/2014

         CHANDRADHAR DAS
         S/O LT. TAJURAM DAS EX-JUNIOR INSPECTOR/AUDITOR, CO-OPERATIVE
         SOCIETY, ASSAM, SINCE RETIRED OFFICE OF THE ASSISTANT
         REGISTRAR, CO-OPERATIVE SOCIETY, ASSAM, KHANAPARA, GUWAHATI-
         22, R/O SANPARA, P.O. JHAROBARI, P.S. PALASBARI, DIST. KAMRUP
         RURAL, ASSAM.



         VERSUS

         THE REGISTRAR OF COOP. SOCIETY and ORS.
         ASSAM,, KHANAPARA, GUWAHATI-22, DIST. KAMRUP METRO, ASSAM.

         2:THE ADDITIONAL REGISTRAR

          CO-OPERATIVE SOCIETY
          ASSAM
          KHANAPARA
          GUWAHATI-22.

         3:THE ASSISTANT REGISTRAR
          CO-OPERATIVE SOCIETY
          KHANAPARA
          GUWAHATI-22
         ASSAM.

         4:THE COMMISSIONER and SECRETARY

          FINANCE
          GOVT.OF ASSAM
          DISPUR
          GUWAHATI-6.
                                                                                  Page No.# 2/9

            5:DELETED VIDE H.C.O DATED 18.07.2014


            6:THE PRINCIPAL
            ACCOUNTS GENERAL A and E ASSAM
             BELTOLA
             GUWAHATI-29
            ASSAM

Advocate for the Petitioner   : MRR CHAKRABORTY

Advocate for the Respondent : MRR K NEOG

BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

JUDGMENT & ORDER(CAV) Date : 23-11-2021

Date of hearing : 10.11.2021

Heard Mr. R. Chakraborty , learned counsel for the petitioner . Also heard Ms. M. D.

Bora, learned Standing counsel Cooperative department, Mr. N. Dhar, learned Standing

Counsel A.G and Mr. J.K.Goswami, learned Standing Counsel Pension and Mr. B. Gogoi,

learned counsel Finance Department for all the respondents.

2. By way of this writ petition, the petitioner challenges the order of suspension bearing

No. CE(P) 470/94/182 dated 2.6.2008 and also prays for balance salary and increment as

admissible with effect from 27.4.2005(first suspension) to 2.8.2005 (reinstatement) and

w.e.f. 28.3.2007(second suspension) to 28.8.2007(reinstatement). The petitioner also prays

for a direction for release of his pensionary benefit including DCRG. The facts of the case of

the petitioner are as follows:

Page No.# 3/9

(i) The petitioner was working as non cadre Secretary in Rani Bholagaon Samabai Samiti and

the service of the petitioner was encadred as cadre Secretary vide order dated 5.11.1993.

(ii) On 27.4.2005 he was put under suspension and subsequently he was reinstated on

2.8.2005. Subsequently the petitioner was again put under suspension again on 28.3.2007 by

Registrar of Cooperative Society , Assam for alleged misappropriation of Rs 90,000/-. After

filing of show cause reply. The petitioner was reinstated in service on 29.8.2007.

(iii) Such suspension was challenged before this court and according to the petitioner the

recovery as directed was stayed. Subsequently the petitioner was once again suspended on

2.6.2008. During the period of suspension the petitioner retired on superannuation on

31.5.2010 which was communicated to the petitioner vide communication

31.5.2010(Annexure-5).

(iv) According to the petitioner he received subsistence alongwith @ 50% w.e.f. 27.4.2005

till his reinstatement on 2.8.2005 and thereafter at the same rate w.e.f. 28.3.2007 to

28.8.2007. Thereafter he received subsistence allowance @ 75% till his date of

superannuation.

(v) Though the petitioner prayed before the authority for release of his pensionary benefits

and the salaries during the period of suspension nothing was forthcoming . It is also the case

of the petitioner that the petitioner has not been punished in any departmental proceeding

nor any departmental proceeding was concluded. Therefore he is entitled for regularisation

of his period of suspension and payment of his pensionary benefits.

(vi) Subsequently, vide communication dated 18.9.2014 bearing No. CE (P) 470-94-258 Page No.# 4/9

issued by the Registrar of Cooperative Societies, Assam addressed to the Accountant

General(A & E) the former intimated the later interalia, amongst others that the petitioner

has not completed 20 years of service and was also not confirmed in any post. But he was

provincialised w.e.f. 22.9.1994. The petitioner claims that he is entitled for the pensionary

benefits under the policy decision taken by the State authorities even he as not completed

the 20 years of service. Learned counsel for the petitioner submits that since his service

has been provincialised, ten years continuous service will entitled him for pensionary

benefits.

3. From the affidavit in opposition, it is crystallized that a show cause was issued vide

communication dated 2nd June 2005, wherein no allegation of misappropriation was leveled

against the petitioner. Petitioner filed reply to such show cause and the authority being

satisfied with such reply vide communication dated 2.8.2005, was pleased to reinstate him

in service with a caution to be careful in future . Subsequently, as recorded hereinabove,

the petitioner was put under suspension for the second time and this time with allegation

of misappropriation of public fund . Show cause dtd 11.5.2007 was issued with three charges,

with allegation of misappropriation funds. Subsequently, the suspension order dated

28.3.2007 was vacated and the petitioner was reinstated. Thereafter, yet another show cause

notice was issued on 11.6.2008 with a single charge of misappropriation of public fund. It is

discernible from the said show cause that an order of recovery was also issued. The

petitioner contends that such recovery was stayed by this Court by order dated 11.8.2008

passed in WP(C) No. 3304/2008. According to the respondents such writ petition was

dismissed for non prosecution subsequently.

Page No.# 5/9

4. The respondents alleges involvement of the petitioner in misappropriation of public

fund and stresses on the fact of multiple suspensions of the petitioner but there is no

statement whatsoever that the departmental proceeding were concluded or that any

punishment was inflicted upon the petitioner subsequent to any departmental proceeding

during his service period or after the superannuation of the petitioner. There is no statement

that the petitioner's pensionary benefit has been withheld by virtue of any action under Rule

21 of the Assam Services (Pension) Rules' 1969. Rather State respondent in their affidavit at

paragraph 28 stated that subsistence allowance was paid and provisional pension could not

be processed earlier for want of submission of required paper by the petitioner.

5. By way of a reply affidavit, the petitioner brings the documents on record a

communication dated 17.5.2018 authored by the i/C Registrar of Co-operative Societies

Assam and addressed to the Additional Chief Secretary to the Govt. of Assam, Cooperation

Department. The said communication reflects that in similar circumstances, where the

qualifying period for entitlement pensionry benefits fell short, the Government granted

pensionary benefits by confirming the service of those persons and accordingly vide said

communication dtd 17.5.2018 prayer was made to give a similar effect to the petitioner.

Such communication has not been denied by the respondent authorities.

6. During the court's hearing the learned counsel for the Cooperation department

submitted a document being No. CE(P) 61-94-155 dated 3.1.2020. As per the said

communication the Accountant General (A&E) has returned the pension file of five persons

including the petitioner for want of bench mark qualifying service of 20 years. The view of

the Cooperation department is as expressed in the said communication is that as the service Page No.# 6/9

of petitioners and similarly situated cadre Secretaries were provincialised vide notification

No. COOP:118/90/Pt.I/36 dated 22.9.1994, these persons are entitled for pensionary benefit

and request was made to the department of Pension and Public grievance to pass necessary

order for relaxation of condition laid under Clause 5 of the Finance Department OM No.

FPN.T8/83/40 dated 10.8.1983 and other provisions of Pension Rules, 1969( a copy of such

document is kept as a part of record and marked as 'X' ).

7. The counsel for the Accountant General(A&E) also submitted a communication

addressed to him with certain documents whereunder it was intimated that the pension

papers of the petitioner was returned vide letter dated 9.10.2014 for curing the defects and

such pension papers has not yet been resubmitted in the office. The learned counsel for the

Accountant General (A&E) submits that he has instruction to state that as and when the

papers are submitted curing the defects the pension will be paid within a period of one

month. (A copy of the said communication addressed to the learned counsel for the

Accountant General(A&E) is also kept on record marking as 'Y).

8. From the aforesaid facts and circumstances none of the respondent now dispute that

the petitioner is entitled for his pensionary benefits and that they are working on to give the

petitioner his pensionary benefits.

9. In such view of the matter, and submissions, it is directed that the respondent

Cooperation Department shall resubmit the pension papers of the petitioner before the

Accountant General (A&E) within a period of a month from receipt of this order and the

petitioner shall submit copy of such order before the Departmental Secretary within a period

of 10 days from receipt of certified copy of the present order. Needless to say that the Page No.# 7/9

petitioner will cooperate in this regard and provide the required documents. Thereafter the

petitioner's benefits shall be paid within a period of three months.

10 Coming to the issue of regularising of the suspension, there is no dispute regarding

the period of suspension of the petitioner and his resultant reinstatement in service twice.

However, he superannuated during the period of third suspension. The fact also remains

that the departmental proceeding remained inconclusive till date and no punishment was

inflicted upon the petitioner.

11. There can be hardly any doubt about the fact that no person can be allowed to

misappropriate money belonging to any institution, be it public or private. But if the allegation

of misappropriation of money is not admitted by the concerned person, then, law would

require that the charges be established in accordance with law. It is only when the charges

brought against the employee is established in any proceeding recognized by law that the

person can be said to be guilty of such misconduct and can be accordingly proceeded

against.

12. In the present case also, allegations of misappropriation of fund has been made

against the petitioner with a demand for recovery of amount allegedly taken by him. But the

demand for recovery would not be maintainable unless the allegation is established in an

appropriate proceeding. The respondents had initiated a disciplinary proceeding by issuing

the show cause notice as stated herein above wherein specific charges were framed. But

nothing proceeded thereafter. There is also no cogent explanation on record as to why the

disciplinary proceeding has not been concluded till date. This is also not a case of the

respondent that pension has been withheld for the reason of pendency of the departmental Page No.# 8/9

proceeding. It is by now well settled that undue delay in conclusion of disciplinary

proceeding would result into serious prejudice to the interest of the Government servant

and therefore , could be a valid ground for quashing the charge memo as well as the

disciplinary proceeding.

13. The Rule 1961 of Assam Services (Pension Rules 1969) provides that time passed

under suspension pending enquiry into conducted accounts in full where of conclusion of

the enquiry , the Government servant has been fully exonerated or the suspension is held to

be wholly unjustified. The said Rule also mandates that the period of suspension does

not count unless the authority competent to pass orders under fundamental Rule 54

expressly declares at the time that itself count. FR 54 (B) provides that when a person

superannuates while under suspension, the competent authority to pass order regarding pay

and allowances to be paid the Government servant for a period of suspension and where or

not said period shall be treated as period spent on duty .

14. In view of above provision of law it is directed to the respondent authority i.e.

department of Cooperation department to exercise its power under Rule 61 of the Pension

Rules, 1969 read with FR 54 B so far relating to the period of suspension of the petitioner.

Such conclusion should be carried out and speaking order shall be passed within a period of

two months from the receipt of a copy of this order.

15. While taking such decision, the said authority shall take note of the findings and

observations made by this court in the instant proceeding. They will also pass an order on the

claim of the petitioner regarding nonpayment of subsistence allowance during suspension

period.

Page No.# 9/9

16. Rule 197 A of the Pension Rules provides for interest of delayed payment of pension

and gratuity . The procedure for determination of such interest is clearly stipulated in the

same Rule i.e. Rule 197 A. The jurisdiction and responsibility to determine such entitlement

of interest is vested upon the Secretary of the department. Admittedly the petitioner retired

on 31.5.2010 and he has not been paid his pension till date, that too without any order

being passed under Rule 21 of the Pension Rules, 1969.

17. Therefore the Departmental Secretary of Cooperation department is directed to

exercise his power under Rule 197 A(2) of the Pension Rules and pass a speaking order

within a period of two months from receipt of this order regarding entitlement of the

petitioner of interest on delayed payment, if any.

18. With the aforesaid observation and determination, this writ petition is allowed.

However no order as to cost.

JUDGE

Comparing Assistant