Sarwan Kumar vs The Union Of India And 6 Ors
2025 Latest Caselaw 803 Gua

Gauhati High Court

Sarwan Kumar vs The Union Of India And 6 Ors on 4 June, 2025

Author: Suman Shyam

Bench: Suman Shyam

                                                                Page No.# 1/22

GAHC010030072022




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

                        Case No. : WP(C)/1306/2022


         SARWAN KUMAR
         S/O LATE SHANKAR DAS, P/R/A 704 SYMPHONY FLOOR, M2K, SECTOR 51,
         GURGAON, DIST- GURGAON, HARYANA, P/R/O VILL- KHERABAD, DIST-
         HOSHIYARPUR, PUNJAB, PIN-144205



         VERSUS


         THE UNION OF INDIA AND 6 ORS
         REPRESENTED BY SECRETARY MINISTRY OF HOME AFFAIRS, NORTH
         BLOCK, CENTRAL SECRETARIAT, NEW DELHI-1

         2:THE DIRECTOR GENERAL
          SASHATRA SEEMA BAL
          BLOCK V (EAST)
          R.K. PURAM
          NEW DELHI-110066

         3:THE ASSISTANT DIRECTOR (PERS-I)
          O/O DIRECTOR GENERAL
          SASHATRA SEEMA BAL
          BLOCK V (EAST)
          R.K. PURAM
          NEW DELHI-110066

         4:YJE INSPECTOR GENERAL (PERS)
          O/O DIRECTOR GENERAL
          SASHATRA SEEMA BAL
          BLOCK V (EAST)
          R.K. PURAM
          NEW DELHI-110066
                                                                         Page No.# 2/22


            5:THE INSPECTOR GENERAL
             FRONTIER HEADQUARTERS
             SSB
             HOUSE NO. 345
             NIKITA COMPLEX
             KHANAPARA
             GUWAHATI-781022

            6:THE DEPUTY INSPECTOR GENERAL
             O/O INSPECTOR GENERAL
             FRONTIER HEADQUARTERS
             SSB
             HOUSE NO. 345
             NIKITA COMPLEX
             KHANAPARA
             GUWAHATI-781022

            7:THE COMMANDANT (ADMN)
             O/O INSPECTOR GENERAL
             FRONTIER HEADQUARTERS
             SSB
             HOUSE NO. 345
             NIKITA COMPLEX
             KHANAPARA
             GUWAHATI-78102

Advocate for the Petitioner   : MR. U K NAIR, MR. U PATHAK,MR H K DAS

Advocate for the Respondent : ASSTT.S.G.I.,

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 20.05.2025.

Date of judgment :        04.06.2025.


                               JUDGMENT & ORDER (CAV)

Heard Mr. H. K. Das, learned counsel appearing for the writ petitioner. I have Page No.# 3/22

also heard Ms. B. Sarma, learned Central Government Counsel (CGC) appearing for

the respondents.

2. The writ petitioner herein had retired as an Inspector General (IG) under the

Sashatra Seema Bal (SSB), on attaining the age of superannuation with effect from

31.01.2020. After his retirement, the writ petitioner had been drawing provisional

pension till date as the regular pension of the petitioner has been withheld. Being

inter-alia aggrieved by the fact that even after the lapse of several years since his

retirement, the regular pension of the petitioner has not been sanctioned nor has his

retirement dues been paid in full, the instant writ petition has been filed seeking the

intervention of this Court. The facts and circumstances of the case, shorn of

unnecessary details, are narrated herein below.

3. It appears from the materials available on record that the petitioner herein

had originally joined service under the Border Security Force (BSF) in the year 1981 as

a Sub-Inspector. In the year 1984, he was appointed as a Gazetted Officer (D.A.G.O.)

in the SSB. Over the period of time, the petitioner was promoted on several occasions.

Eventually, he was promoted to the rank of Inspector General in the year 2016. While

serving in the post of Inspector General, Frontier Headquarters, SSB, Ranikhet, vide

order dated 21.11.2017 the petitioner was placed under suspension in exercise of

powers conferred under Rule 41(1)(i) of the SSB Rules, 2009 on the ground that a

Court of Inquire (COI) was sought to be conducted against him. Subsequently, vide

communication dated 25.01.2018, the petitioner was attached at the FHQ, SSB, New

Delhi, till completion of the COI contemplated against him. The period of suspension Page No.# 4/22

of the petitioner was to come to an end on 20.02.2018. Therefore, by the order dated

19.02.2018, the period of suspension was extended by another 90 days beyond

20.02.2018. Thereafter, it was extended again for a further period of another 90 days

beyond 21.05.2018, by issuing office order dated 21.05.2018. In the meantime, by the

order dated 23.03.2018, a Court of Inquiry (COI) was ordered against the petitioner so

as to enquire into the circumstances pertaining to alleged (i) misuse of manpower,

and (ii) irregularities during the recruitment test of Ct. (Dvr.) and Ct (Tradesmen) in SSB

for the year 2017. Accordingly, the writ petitioner was asked to make his statement

and also to produce any person as defence witness and/or any evidence in the

matter.

4. On 28.03.2018 the petitioner submitted a representation inter-alia contending

that the extension of the period of his suspension after the lapse of the mandatory

period for review was illegal, more so, since there was no progress in the Inquiry. The

petitioner had also contended that the respondents have failed to submit charge-

sheet during the period of his suspension thus having a vitiating affect on his

suspension itself.

5. On 07.08.2018, an additional Court of Inquiry was initiated against the

petitioner with instructions issued to him to attend the enquiry on 17.08.2018 at 10

hours in the chamber of Additional Director General of SSB. However, no convening

order of the additional Court of Inquiry was furnished to the petitioner. As such, the

writ petitioner had requested the Director General of SSB to furnish him with a copy of

the convening order dated 07.08.2018. The petitioner participated in the additional Page No.# 5/22

Court of Inquiry. When the matter rested at thus, vide order dated 30.08.2018 issued

by the Inspector General (Pers), the suspension of the petitioner was revoked with

immediate effect. On 21.05.2019, the petitioner had received a communication

intimating him that the COI and the Additional COI have been completed and

correspondences with the Ministry of Home Affairs (MHA) was under progress. In the

said communication, it was also mentioned that the final outcome of the process will

be intimated to him. It is the specifically pleaded case of the petitioner that the

respondents have neither intimated him about the outcome of the COI and the

Additional COI till today nor is there any departmental proceeding and/or charge-

sheet submitted against him in any legal proceeding. As such, according to the writ

petitioner, it was not permissible for the authorities to withhold his pension.

6. Apart from the claim pertaining to grant of regular pension, the writ petitioner

is also aggrieved by the order dated 04.08.2020 issued by the Commandant (Admin),

FTR. HQs, SSB, Guwahati whereby, it was ordered that a sum of Rs.2,93,698/- be

recovered from the writ petitioner as over-payment/excess payment. It appears from

the materials on record that vide order dated 18.10.2019, financial upgradation

under the Non-Functional Financial Upgradation (NFFU) scheme for the "Senior

Administrative Grade (SAG)" was granted to the petitioner and the benefits were

computed by applying the fitment factor of 2.67. Consequently, arrear amount of

pay and allowances for a sum of Rs.4,64,310/-, before deduction of tax, educational

cess etc. was paid to the petitioner. However, subsequently it was detected that the

correct multiplier to be applied in his case ought to have been 2.57 instead of 2.67.

Page No.# 6/22

7. According to the respondents, due to the application of the incorrect

multiplier, excess amount has been paid to the petitioner under the NFFU Scheme

which amount was liable to be recovered from him. By the order dated 05.02.2020,

the Commandant (Admin), FTR, HQrs, SSB, Guwahati i.e. the respondent No.7 herein,

had clarified that excess payment, so made due to erroneous fixation of pay shall be

recovered from the officer viz., the writ petitioner, without further notice. The Drawing

and Disbursing Officer of FTR, HQR, SSB, Guwahati had thereafter, issued the order

dated 19.02.2020 asking the petitioner to refund the excess amount of Rs.2,93,698/-

through cheque/DD as early as possible.

8. On 15.05.2020, the Inspector General, SSB, Frontier Headquarters, Guwahati

had addressed a communication to the writ petitioner informing him that the request

for waiver/non-recovery of the excess payment made by his application dated

24.03.2020 cannot be considered as he did not fall in Class-III and Class-IV service (or

Group C and D service). In the said communication, a reference was also made to

the undertaking obtained from the officer while exercising the option for pay fixation

permitting recovery of any excess payment. Since the petitioner had refused to

refund such amount, the communication dated 04.08.2020 for recovery of the

amount, as noted above, was issued by the authorities which order is also under

challenge in the present proceeding.

9. By filing this writ petition the petitioner has, therefore, inter-alia prayed for

setting aside the orders dated 19.02.2018 and 21.05.2018 by means of which the

period of suspension of the petitioner was extended on two occasions and for setting Page No.# 7/22

aside the orders dated 05.02.2020, 19.02.2020, 15.05.2020 as well as 04.08.2020 as well

as for issuance of a direction for extending all consequential benefits to the

petitioner.

10. From the prayer portion in the writ petition, I find that the petitioner has also

prayed for a writ of mandamus directing the respondents to refund the amount of

Rs.2,93,698/- recovered from him along with interest accrued @ 18% per annum.

However, during the course of argument, Mr. Das has clarified that no such recovery

was actually made from the petitioner and therefore, he was not pressing the prayer

for refund of Rs.2,93,698/- along with interest accrued @ 18% per annum.

11. The respondent Nos.1, 2, 3, 4, 5, 6 and 7 have filed joint affidavit contesting the

case of the petitioner. Responding to the above, the writ petitioner has filed his

rejoinder affidavit.

12. Mr. Das, learned counsel for the petitioner has argued that although, neither

any departmental proceeding nor any charge-sheet has been submitted against the

writ petitioner, his pension has been illegally withheld. Referring to the provisions of

Rule 69 of the Central Civil Services (Pension) Rules, 1972 Mr. Das has further argued

that the writ petitioner cannot be compelled to draw provisional pension since no

departmental or judicial proceeding is pending against him. As such, submits Mr. Das,

the present is a fit case for issuance of a writ of mandamus directing the respondents

to settle the pension of the petitioner without any further delay.

13. In so far as the attempt on the part of the respondents to recover the excess

amount due to excess drawal by the petitioner is concerned, Mr. Das has invited the Page No.# 8/22

attention of this Court to the recovery already made from his client of an amount of

Rs.10,26,362/- being the pay and allowances due and payable to the petitioner for

the period of his suspension and submits that his client is entitled to an order

regularizing the period of suspension under F.R. 54-B(3). According to Mr. Das, as and

when such order regularizing the period of suspension is issued, the petitioner would

be entitled to refund of the amount of Rs.10,26,362/-. As such, the question of making

any further recovery from the petitioner at this stage does not arise.

14. In the above context Mr. Das has further argued that after the decisions of the

Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White

Washer) and others reported in (2015) 4 SCC 334 as well as in the case of Jogeswar

Sahoo and others Vs. District Judge, Cuttack and others [ 2025 SCC OnLine SC 724]

law is well settled that no recovery can be made from a retired employee in case of

excess drawal/payment unless a case of misrepresentation or fraud is made out. Mr.

Das, therefore, submits that in view of the aforesaid decisions of the Supreme Court, it

is now well-settled that even if an undertaking is given by the employee permitting

such recovery, the same will not be of any relevance in case of a retired employee.

Under such circumstances, submits Mr. Das, the impugned order dated 04.08.2020 is

illegal and hence, liable to be quashed by this Court.

15. Responding to the above submissions of the petitioner's counsel, Ms. B. Sarma,

learned Central Government Counsel has argued that after completion of the COI

and Additional COI, the matter had been referred to the Ministry of Home Affairs and

thereafter, to the Central Bureau of Investigation (CBI) for appropriate action. The Page No.# 9/22

matter is still pending with the CBI. It is on such that the respondents could not finalise

the pension of the petitioner due to the pendency of the matter before the CBI.

16. In so far as the resistance offered by the writ petitioner opposing the recovery

of the excess drawal is concerned, Ms. Sarma has contended that such recovery is

permissible under the Office Memorandum dated 02.03.2016 of the DoPT. Moreover,

since there is an undertaking issued by the petitioner agreeing to refund any excess

payment made to him, the plea of estoppel raised by the petitioner's counsel would

not be of any assistance to him in the facts of the present case. Contending that until

such time the CBI takes a final decision in the matter, the departmental authorities

would not be in a position to finalise the pension of the petitioner, she submits that

since the petitioner is receiving provisional pension, hence, there is no justifiable

ground for him to agitate the issue before this Court.

17. I have considered the submissions made at the Bar and have also gone

through the materials available on record.

18. At the very outset, it deserves to be mentioned herein that although the

departmental authorities had initiated a COI and thereafter an Additional COI

against the writ petitioner way back in the year 2017-2018, yet, the said process has

admittedly and evidently not been brought to its logical conclusion till today. There is

also no plausible explanation for the delay on the part of the respondents for not

doing so. A careful scrutiny of the materials available on record prima-facie goes to

show that there is no specific allegation brought against the petitioner regarding any

financial irregularity committed by him or any other misconduct having the Page No.# 10/22

ingredients of a cognizable offence. Notwithstanding the same, the pension of the

petitioner has been withheld allegedly on the ground of pendency of the matter

before the CBI. On a pointed query made by this Court as to whether, there is any

allegation of financial irregularities against the petitioner and if so, whether any case

has been registered against him by the CBI, the learned counsel for the respondents

could not provide any satisfactory answer.

19. In the above context, it would further be pertinent to note herein that

considering the stand taken by the department furnishing the reason for non-

finalisation of the pension of the petitioner, this Court had passed order dated

01.04.2025 directing the learned Central Government Counsel to obtain up-to-date

instruction as to whether, the representations submitted by the petitioner for release

of his pension has been acted upon by the authorities and also as to whether, any

decision has been taken by the authorities pursuant to the Court of Inquiry and

Additional Court of Inquiry by fixing the matter on 22.04.2025. The matter was again

adjourned on 22.04.2025 so as to enable the learned CGC to obtain instruction by

fixing it on 20.05.2025. However, when the case was called up today, Ms. Sarma has

once again submitted that despite the communications issued by her to the

concerned authorities seeking instruction as per the Court order, no response has

been received till date. Ms. Sarma has also not been able to draw the attention of

this Court to any provision in the CCS (Pension) Rules of 1972 permitting the

respondents to withhold the pension of the petitioner merely because some enquiry is

pending against him before some agency.

Page No.# 11/22

20. There is no dispute about the fact that the right of the petitioner to receive

pension is governed by the provisions of Central Civil Services (Pension) Rules, 1972

[herein after referred to as the Rules of 1972]. Under Rule 9 of the Rules of 1972 the

President has the right to withhold or withdraw pension or gratuity or both either in full

or in part, whether permanently or for a specified period and also for ordering

recovery from pension or gratuity of the whole or in part of any pecuniary loss caused

to the Government if in a departmental or judicial proceeding the petitioner is found

guilty of grave misconduct or negligence during the period of his service. In the case

of Union of India and others Vs. B. Dev reported in (1998) 7 SCC 691 the Supreme

Court has held that the power of the President of withholding or withdrawing pension

under Rule 9 of the Rules of 1972 would not be confined merely to a case where any

pecuniary loss is caused to the Government but such power can be invoked even in

cases of grave misconduct. However, even in order to do so, the principles of natural

justice would have to be complied with and the Government servant will have to be

provided with an opportunity of being heard in the matter.

21. In the present case, as has been noted herein above, not to speak of any

departmental or judicial proceeding pertaining to financial loss to the Government,

there is no proceeding, either departmental or judicial, pending against the

petitioner pertaining to any misconduct on his part. That apart, no show-cause notice

had been served upon the petitioner for withholding his pension. There is also no

allegation brought against the writ petitioner of any grave misconduct. Admittedly,

no order under Rule 9 of the Rules of 1972 has also been issued by the competent

authority withholding the pension of the petitioner. Under such circumstances, this Page No.# 12/22

Court is of the considered opinion that there is no legally justifiable ground for the

respondent authorities to withhold the regular pension and other retirement benefits

of the writ petitioner.

22. Rule 69 of the Rules of 1972 clearly provides that provisional pension would be

payable only in case where a departmental or judicial proceeding is pending and

the Government servant is placed under suspension or when a charge-sheet has

been submitted. Rule 69 of the Rules of 1972 is reproduced herein below for ready

reference :-

"69. Provisional pension where departmental or judicial proceedings may be pending.--- (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.

(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon :

Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be Page No.# 13/22

paid to the Government servant.

(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."

23. Having regard to the facts and circumstances of the case and the mandate

of Rule 69 of the Rules of 1972, this Court is left with no manner of doubt that mere

pendency of an Inquiry before the CBI could not have been a valid ground for the

authorities to withhold the pension of the petitioner, that too, for a period more than

four years after his retirement. Moreover, the materials brought on record by the

respondents also do not, even remotely, indicate the presence of ingredients of a

cognizable offence whereby, a premier investigating agency such as the CBI could

have a genuine role to play. Under such circumstances, this Court is of the unhesitant

opinion that the petitioner has made out a strong case for interference by this Court.

24. In so far as the attempt to recover the excess dues from the petitioner is

concerned, it is not in dispute that the impugned order dated 04.08.2020 seeking to

recover a sum of Rs.2,93,698/- had been issued after the date of retirement of the

petitioner. Not only that, even the original order dated 05.02.2020 wherein, it was

indicated that the excess amount shall be liable to be recovered, was also issued

after the date of superannuation of the petitioner. Therefore, it is a clear case where

an attempt has been made by the authorities to recover the sum of Rs.2,93,698/- from

a retired employee which is impermissible under the law. The aforesaid issue has been

conclusively dealt with by the Hon'ble Supreme Court of India in the case of Rafiq Page No.# 14/22

Masih (supra) wherein the following observations were made in paragraph 16, which

are reproduced herein below:-

"16. This Court in Syed Abdul Qadir v. State of Bihar [(2009)3 SCC 475] held as follows:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis is ours)

Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping Page No.# 15/22

the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."

25. Following the decision of the Supreme Court rendered in the case of Rafiq

Masih (supra), the Government of India in the Ministry of Personnel, Public Grievance

& Pension, Department of Personnel & Training had issued Office Memorandum

dated 02.03.2016. The criteria laid down in para 4 of the Office Memorandum dated

02.03.2016 are relevant for this case and therefore, are reproduced herein below for

ready reference :-

"4. The Hon'ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-

(i) Recovery from employees belonging to Class-II and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been Page No.# 16/22

required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

26. From the above, it is apparent that the case of the writ petitioner would be

covered under paragraph 4(ii) of the DoPT circular dated 02.03.2016. As such, no

recovery with regard to excess drawal from the writ petitioner would be permissible

from the writ petitioner after his retirement unless it is shown to be a case of fraud or

misrepresentation by the employee. The aforesaid proposition of law has been re-

stated again in the recent decision of the Supreme Court in the case of Jogeswar

Sahoo and others (supra).

27. Coming to the next question as to whether an undertaking given by the

employee can be the basis for the authorities to make recovery of excess drawal

even from a retired employee, the said aspect of the matter also appears to have

been resolved by the decision rendered in the case of Jogeswar Sahoo and others

(supra) wherein the above question was also involved. The law has been finally

settled that no recovery of excess payment/drawal from a retired employee would

be permissible save and except in those cases where misrepresentation or fraud on

the part of the employee is detected.

28. From a careful analysis of the decisions of the Supreme Court as referred to

above as well as the Office Memorandum dated 02.03.2016, this Court is convinced Page No.# 17/22

that no recovery of excess drawal can be made from the writ petitioner in a process

initiated after his retirement, more so, when there is no allegation of misrepresentation

or fraud against him.

29. In the above context it would be pertinent to note herein that as per the

materials available on record, it appears that after the suspension order of the

petitioner was revoked on 30.08.2018 and he was reinstated in service, the writ

petitioner had made oral requests before the authorities to pay the regular salary and

allowances pertaining to the period of suspension. It further appears that, acting on

the basis of such requests made by the petitioner, the Zonal Paying Office had

examined the bills submitted for that purpose and also the revocation of suspension

and after due scrutiny of the bills, had cleared the same permitting the release of

arrear pay and allowances applicable to the petitioner for the period of his

suspension. Consequently, a sum of Rs.10,26,363/- was deposited in the Bank account

of the petitioner. Immediately thereafter, the Inspector General (Pers), SSB, New Delhi

had issued orders dated 09.08.2019 and 05.09.2019 providing for recovery of the sum

of Rs.10,26,363/- from the salary of the petitioner with effect from the month of

September, 2019 till January, 2020 @ Rs.1,18,608/- per month and the balance

amount of Rs.4,33,322/- to be recovered from the DCRG of the petitioner allegedly on

the ground that such amount had been illegally paid to the writ petitioner.

30. On 17.10.2019, a show-cause notice was served upon the petitioner whereby,

he was informed that a COI was ordered against him vide order dated 14.05.2019 on

the following terms of reference :-

Page No.# 18/22

"i) To find out the circumstances under which pay and allowances for the suspension period of Sh. Sarwan Kumar, IG were claimed without specific orders of the Competent Authority with respect to regularization of the suspension period.

ii) To find the responsibility of erring officers/officials connected in processing the case for payment without any lawful orders of the Competent Authority."

Accordingly, the petitioner was asked to show cause as to why, disciplinary action

should not be initiated against him for the above acts of omission and commission.

31. On 04.12.2019, the petitioner had submitted his show-cause reply denying the

allegation. It would be noteworthy that as per the materials available on record, it

appears that no further action has been taken by the authorities pursuant to the

show-cause notice dated 17.10.2019.

32. From the above, what can be seen is that merely for requesting release of

arrear salary and allowances for the period of suspension, which request was also

duly verified and thereafter acted upon by the concerned authorities by depositing

an amount of Rs.10,26,363/- in the bank account of the petitioner, not only have the

respondents recovered the said amount from the salary of the petitioner but had also

served a notice asking him to show cause as to why, disciplinary proceeding should

not be initiated against him for misconduct. Making a request for depositing arrear

pay and allowances for the period of suspension, even if not maintainable in law,

cannot, by any stretch of reasonable reckoning, be treated as an act of omission or

commission on the part of the petitioner constituting a misconduct. It is not the case

of the respondents that the amount of Rs.10,26,363/- was procured by the petitioner Page No.# 19/22

by illegal means and/or by making misrepresentation before the authorities. Since

there is no order passed by the authorities within the meaning of F.R. 54-B(3) holding

that the period of suspension of the petitioner was justified, this Court is of the opinion

that the recovery of the amount of Rs.10,26,363/- from the petitioner and also the

show-cause notice dated 17.10.2019 served upon him was not only wholly arbitrary

and illegal but was also a clear attempt on the part of the authorities to cause undue

harassment to the petitioner.

33. Mr. Das has argued that as per F.R. 54-b(3), it was incumbent upon the

authorities to pass an order pursuant to the revocation of suspension and the

reinstatement of the petitioner laying down as to whether, the suspension was justified

or not. However, no such order has been passed till today. Considering the fact that

no departmental proceeding or judicial proceeding had been initiated against the

petitioner till date, the order of suspension, according to Mr. Das, ought to be held to

be unjustified and therefore, a declaration to that effect ought to be made by this

Court.

34. While dealing with the issue of duty of the authorities to pass appropriate order

under F.R. 54, the Supreme Court of India in the case of M. Gopalkrishna Naidu Vs.

The State of M.P. reported in 1968 0 AIR(SC) 240 has observed as follows :-

"5. The first question which requires consideration is whether there was a duty on the competent authority to afford an opportunity to the appellant to show cause before that authority formed the opinion as to whether he was fully exonerated and whether his suspension was wholly unjustified. Under F.R. 54 where a Government servant is reinstated, the authority has to consider and Page No.# 20/22

make a specific order (i) regarding pay and allowances payable to him for the period of his absence from duty and (ii) whether such period of absence should be treated as one spent on duty. The consideration of these questions depends on whether on the facts and circumstances of the case the Government servant had been fully exonerated and in case of pension whether it was wholly unjustified. If the authority forms such an opinion the Government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot form such an opinion the Government servant may be given such proportion of pay an allowances as the authority may prescribe. In the former case the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the government servant would be entitled to full pay and allowances."

35. It is no doubt correct that the consequences of an order under F.R. 54-B or the

failure on the part of the authorities to issue such an order upon reinstatement of a

Government servant on revocation of suspension would depend on the facts and

circumstances of each case and no straight jacket formula can be laid down in

respect thereof to be applied to the facts of each case. However, in the present

case, having regard to the nature of allegation brought against the petitioner, the

failure on the part of the authorities to bring the Court of Inquiry and Additional Court

of Inquiry to its logical conclusion even after the lapse of several years and also the

absence of any departmental or judicial proceeding against the petitioner would

unequivocally go to show that the very exercise of placing the petitioner under

suspension during the period from 21.11.2017 till his reinstatement vide order dated Page No.# 21/22

30.08.2018 was wholly unjustified inasmuch as no guilt or misconduct on the part of

the petitioner has either been established till today nor is there any valid attempt on

the part of the authorities to do so. Under such circumstances, the only conclusion

that can be drawn in the facts and circumstances of the present case is that there

was no legal justification for placing the petitioner under suspension.

36. For the reasons stated herein above, this writ petition succeeds and is hereby

allowed.

The writ petition is disposed of with a direction upon the respondents to pass

appropriate order under Rule 54-B(3) of the F.R. pertaining to regularization of the

period of suspension of the petitioner with effect from 21.11.2017 till his reinstatement,

in the light of the observations made herein above, within 30 days from receipt of a

certified copy of this order. Thereafter, the respondents shall pass final order

pertaining to the claim of regular pension and other retirement dues, if any, payable

to the petitioner under the rules, within a further period of 90 days (ninety days).

In so far as the attempted recovery of excess amount is concerned, the

impugned orders dated 05.02.2020, 19.02.2020, 15.05.2020 and 04.08.2020 are hereby

set aside.

It is made clear that if the respondents fail to comply with the order of this Court

within the period mentioned above, the arrear amounts due and payable to the

petitioner shall attract interest @ 12% per annum with effect from the date on which

the same had become due till realization.

The writ petition stands disposed of accordingly.

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Parties to bear their own costs.

JUDGE

T U Choudhury/Sr.PS

Comparing Assistant