Bhagmal vs The Registrar
2024 Latest Caselaw 13463 HP

Himachal Pradesh High Court

Bhagmal vs The Registrar on 10 September, 2024

Author: M.S. Ramachandra Rao

Bench: M.S. Ramachandra Rao

( 2024:HHC:8183 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.1069 of 2024 Reserved on:29.08.2024

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                                        Pronounced on:10.09.2024





Bhagmal                                                         ...Petitioner
                                Versus

The Registrar, Co-operative Societies & Others ...Respondents __________________________________________________________

Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?

For the petitioner : Mr. Rakesh Kumar Dogra, Advocate.

For the respondents : Mr. Anup Rattan, Advocate General with

Mr. Gobind Korla, Additional Advocate General, for respondent no.1.

Mr. Sunil Mohan Goel & Mr. Raman Jamalta, Advocates, for respondents no.2

to 4.

M.S. Ramachandra Rao, Chief Justice.

The petitioner was employed as Peon in the Himachal Pradesh

State Co-operative Bank Ltd. (respondent no.3-Bank).

2. While discharging his duty as a Peon, he was placed under

suspension by the Managing Director of the 3rd respondent on

06.05.2023 and the Head Quarters of the petitioner was fixed at District

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Office Chamba in District Chamba.

3. Later, the petitioner was served with a charge-sheet

dt. 18.07.2023 under Clause (a) of Rule 55 of the HPSCB Employees

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(Terms of Employment and Working Conditions) Rules, 1979, for

certain charges of misconduct spelt-out in the charge sheet.

4. Petitioner addressed a letter dt. 29.01.2024 to the Inquiry

Officer/respondent no.5 appointed to conduct enquiry on the charge-

sheet issued to him to permit him to engage a retired Assistant Manager

(Accounts) as his Defence Assistant to represent his case before the

Inquiry Officer.

5. However, there was a provision contained in Rule 56(b)(iv) of the

above Rules, which permitted an employee to be defended only by

another employee of the Bank, if he so desired, but prohibited an

outsider to defend the delinquent employee.

6. The 5th respondent, who was the Inquiry Officer, therefore,

refused on 31/1/2024 to permit the petitioner to engage an outside

person as a Defence Assistant to defend the petitioner.

7. This was assailed by the petitioner in the Writ petition and he

challenged the said Rule, and inter alia, he also sought quashing of the

charge-sheet and the decision dt. 31.01.2024 of the 5th respondent.

8. He further contended that he had been placed under suspension

through an order dt. 06.05.2023, but the period of suspension cannot be

( 2024:HHC:8183 )

continued beyond 90 days, and that respondents no.3 to 5 should be

restrained from proceeding further in the enquiry proceedings.

9. In the meantime, when the Writ petition was pending, on

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29.06.2024, an order was passed by the Disciplinary Authority

(respondent no.4) dismissing the petitioner from service on the basis of

an Inquiry Report submitted by the 5th respondent on 17.05.2024,

concluding the enquiry ex parte.

10. The petitioner then filed CMP no.12005 of 2024 to stay the

operation of the order of punishment dt. 29.06.2024 passed by the 4 th

respondent, and in that application, specifically raised a plea in Para 6

that he was not paid subsistence allowance in accordance with law by

respondents no.2 to 4 on the pretext that he did not mark his attendance

at his Headquarters; that he could not attend the hearing in the

disciplinary proceedings due to paucity of funds; and the imposition of

major penalty of dismissal on him through the impugned order dt.

29.06.2024, is unsustainable.

11. In the reply filed to the said application by the respondents, it is

contended that in view of the order dt. 29.06.2024, the Writ petition had

become infructuous. It is contended that despite several opportunities

being granted to the petitioner to participate in the disciplinary inquiry,

he had chosen to be ex-parte, and therefore, the order of dismissal

passed by the Bank is in accordance with the Bank Service Rules.

( 2024:HHC:8183 )

12. The 1st respondent filed a reply, stating that it is for the Bank to

defend the proceedings, but raised a plea that the Bank did not fall

within the definition of "State" under Art.12 of the Constitution of India

.

and so the Writ petition was not maintainable. However, this point was

not pressed by the counsel for the Bank or the counsel for the 1 st

respondent.

13. An additional reply was also filed on behalf of the Bank, stating

that for the period from May, 2023 to 29.06.2024, the petitioner had

reported attendance at Headquarters only for 36 days, and he was paid

only Rs.8,250.87 towards subsistence allowance on the pretext that for

the other days he was not present at the Headquarters.

14. It is asserted that the Bank had fixed the hearing of the

disciplinary proceedings at the Headquarters where he was posted on

suspension and even at the Branch of his native place.

15. Reliance is placed on an order dt. 09.12.2020 issued by the Bank,

mandating all suspended employees to mark their attendance in the

Attendance Register manually maintained at Headquarters.

Consideration by the Court

16. As regards challenge laid by the petitioner to Rule 56(b)(iv) of the

Rules prohibiting outsiders to be engaged as a defence counsel in a

disciplinary proceedings is concerned, we do not find it to be arbitrary

or illegal.

( 2024:HHC:8183 )

17. In Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi1 ,

the Supreme Court held:

" 11. A delinquent appearing before a Tribunal may feel that the

.

right to representation is implied in the larger entitlement of a fair hear-

ing based on the rule of natural justice. He may, therefore, feel that re- fusal to be represented by an agent of his choice would tantamount to de-

nial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of one's choice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Represen-

tation through counsel can be restricted by law as for example, Section 36 of the Industrial Disputes Act, 1947, and so also by certified Standing Or- ders. In the present case the Standing Orders permitted an employee to be

represented by a clerk or workman working in the same department as

the delinquent. So also the right to representation can be regulated or re- stricted by statute. Such provisions in fact serve to underline the impor- tance attached to the right to representation. In Maclean v. Workers'

Union2 Maugham, J. observed that counsel have no right of audience be- fore a Tribunal.

.........

17. It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or reg-

ulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specif- ically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent's right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on

(1993) 2 SCC 115

( 2024:HHC:8183 )

Sections 21 and 22(ii) permitting representation through an officer, staff-

member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged

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endlessly. Secondly, when the person defending the delinquent is from the

department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant

rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the princi-

ples of natural justice."

(emphasis supplied)

In view of this settled legal position, the Rule 56(b) (iv) of the

Rules cannot be declared invalid.

18. Petitioner placed reliance on the judgment of the Andhra Pradesh

High Court in Zonal Manager, Food Corporation of India & Ors. vs.

Khaleel Ahmed Siddiqui2 and contended that the condition imposed by

the respondents 2 to 4 that he should stay at the Head Quarters only

during period of suspension and then only he would get subsistence

allowance, is unsustainable.

In that case also during the pendency of disciplinary proceedings,

an order was passed placing the employee under suspension, and it was

stated that during the period of suspension, the Headquarters of the

employee should be at a particular place and he should not leave the

1982(2) SLR 779 = MANU/AP/0206/1981 (DB)

( 2024:HHC:8183 )

Headquarters without obtaining the previous permission of a Senior

Regional Manager-in-Charge; and that he should mark his attendance in

the Register maintained for this purpose at Divisional Office

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Sanathnagar of the Corporation on all working days at any time during

the working hours.

This order was challenged by the employee in a Writ petition

before the Court and the learned Single Judge held that the direction to

the employee to mark his attendance every day in the office was illegal

and contrary to the Rules governing the Service Conditions of the

employees. He therefore set aside the order of suspension to the extent

it insisted on the employee to attend the office of the Corporation at

Sanathnagar on every working day and mark his attendance in the

Attendance Register.

The Corporation challenged the said order in appeal before the

Division Bench.

The Corporation placed reliance on a "Circular" dt. 27.09.1980

issued by its Head Office in New Delhi, which Circular also stated that

the employees under suspension should not leave their Headquarters

without prior permission of the competent authority and that they should

remain available at the Headquarters; that such employees should mark

their attendance in a separate Attendance Register to be maintained for

this purpose by all offices on all working days at any time during the

( 2024:HHC:8183 )

working hours; and failure on the part of employees to comply with

these instructions, would make them liable to severe disciplinary action.

The Division Bench held that when an employee is debarred

.

temporarily from service through an order of suspension, he cannot be

compelled to attend office and mark his attendance daily and also be

visited with penalty if he does not mark his attendance.

It held that a person under suspension is entitled to all allowances

mentioned in the Regulations other than conveyance allowance, which

indicates that a person under suspension is not expected to attend office

or claim conveyance for his attendance.

It therefore held that suspension by its very nature would not

contemplate attendance of the employee at the office and marking his

attendance daily.

The Division Bench also held that even if the petitioner had

sought quashing of only the order of suspension on the ground that the

authority was not competent to pass the order, and did not question the

latter portion of the order directing him to attend office every day, it is

the duty of the Court to interfere in the exercise of its jurisdiction, and

since the whole order of suspension was under challenge, the portion

which directed attendance at the Headquarters, also can be quashed.

19. We agree with the view taken by the Division Bench of the

Andhra Pradesh High Court in Zonal Manager, Food Corporation of

( 2024:HHC:8183 )

India & Ors. ( 2 supra) and hold that the office order dt. 09.12.2020,

which mandates the suspended employees, like the petitioner, to mark

their attendance in the Attendance Register manually maintained at the

.

Headquarters, cannot be sustained, since it is not the case of respondents

no.4 to 5 that during the period of suspension when he is debarred

temporarily from service, petitioner is expected to work during the

period of suspension.

The instructions contained in the proceeding dt. 09.12.2020, no

doubt, are reiterated in Rule 59(b) of the Service Rules also, but in the

light of the legal position set-out in Zonal Manager, Food Corporation

of India & Ors.( 2 supra), failure of the petitioner to stay at the

Headquarters during the period of his suspension, cannot be made a

ground to deny him subsistence allowance, which he is entitled to as per

the Rules during the period of suspension.

20. As per Rule 59(b) of the Rules, the suspension allowance is half

of the total pay; and is to be paid as subsistence allowance during the

period of suspension; the period of suspension should not normally

exceed six months; and if it is extended, it has to be enhanced by the

competent authority as per the State Government Rules.

21. Since the petitioner had been suspended on 06.05.2023 and

terminated on 29.06.2024, more than a year later, he should have been

( 2024:HHC:8183 )

paid the subsistence allowance equal to half of the total pay for the first

six months and thereafter it ought to have been enhanced.

22. The Bank has given the following Table which shows that what

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was to be paid as subsistence allowance to the petitioner for the entire

period of more than a year from 06.05.2023 to 29.06.2024 was not paid,

and he was paid the subsistence allowance only for 36 days.

"Sr. Month Attendance Gross Net amount Remarks

No. reported at amount paid after HQ (In Rs.) statutory (In days) deduction to Bhagmal (In Rs.) 1 May,2023 r 5 days 1950 1650 Not present (08-05-23 at

to 09-05-23) & headquarter (29-05-23 to on other 31-05-23) days

2. June,2023 11 days 4426 2014.87 Not present (01-06-23 at

to 07-06-23) & headquarter 27-06-23 to on other 30-06-23) days 3 July,2023 6 days 2335 975 Not present

(01-07-23 at to 06-07-23) headquarter on other

days 4 07-07-23 to NA NA NA Not present 30-11-2023 at

headquarter 5 December,2023 6 days 2335 975 Not present (26-12-23 to at 31-12-23) headquarter from 01-12-23 to 25-12-23 6 January, 2024 8 days 3116 2636 Not present (01-01-24, at 08-01-24 headquarter to 14-01-24) on other days

( 2024:HHC:8183 )

7 15-01-2024 to NA NA NA Not present 29-06-2024 at headquarter from 15-01-24 to 29-06-2024 TOTAL 36 days 14162 8250.87

.

23. The Constitution Bench of the Supreme Court in Ghanshyam Das

Shrivastava vs. State of Madhya Pradesh3, held that lack of timely payent of subsistence allowance to an employee facing inquiry during

period of suspension, when the employee has no other financial reources, and when the employee is also required to attend inquiry proceedings away from his home, vitiates ex-parte departmental inquiry conducted

against him, particularly, when the respondents have not placed anything

on record material to show that the employee had other sources of inome other than his pay.

24. In Capt. M Paul Anthony vs. Bharat Gold Mines Ltd & Anr.4, the Supreme Court held that suspension notwithstanding, non-payment

of subsistence allowance is an inhuman act which has an unpropitious

effect on the life of an employee, and that when an employee is placed under suspension, he is demobilized and the salary is also paid to him at

a reduced rate under the nick name of "Subsistence Allowance", so that the employee may sustain himself.

It held that if even subsistence allowance amount is not paid as per the entitlement of the suspended employee, then the very object of payng

(1973) 1 SCC 656

(1999) 3 SCC 679

( 2024:HHC:8183 )

the reduced salary to the employee during the period of suspension would be frustrated.

It declared that the act of non-payment of "Subsistence

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Alowance" can be likened to slow-poisoning, as the employee, if not permitted to sustain himself on account of non-payment of "Subsistence

Allowance", would gradually starve himself to death.

It explained that on joining Government service, a person does not

mortgage or barter away his basic rights as a human being, including his fundamental rights in favour of the Government, and that the Governent, only because it has the power to appoint does not become the "master of

the body" and "soul of the employee"; the provision for payment of

subistence allowance made in the Service Rules, only ensures non-viola- tion of the "Right to Life" of the employee.

25. The Supreme Court in Capt. M.Paul Anthony ( 4 supra) also referred to its decision in Fakirbhai Fulabhai vs. Presiding Officer &

Anr.5, wherein, it had held that if an employee could not attend the

departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake

a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings, would stand vitiated.

It held that since the employee in that case was not provided subsistence allowance during period of suspension and the adjournment

?

(1986) 3 SCC 131

( 2024:HHC:8183 )

prayed for by him on account of his illness duly supported by "Medical Certificates" was refused, resulting an ex-parte proceedings against him, the employee had been punished in total violation of Principles of

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Natural Justice and was literarily not afforded any opportunity of

hearing, and consequently, the inquiry stood vitiated.

26. In Jagdamba Prasad Shukla vs. State of U.P. & Ors.6, the Supreme Court reiterated that payment of subsistence allowance in accordance with the Rules to an employee under suspension is not a

bounty; that it is a right; and if there is no justifiable ground made out for non-payment of subsistence allowance all through the period of

suspension, i.e. from suspension till removal, and one of the reasons for

not appearing in the enquiry was the financial crunch on account of non-payment of subsistence allowance, there would be a clear breach of

Principles of Natural Justice on account of denial of reasonable opportunity to the employee to defend himself in the departmental

enquiry; and the enquiry as well as the order of removal from service

have to be quashed.

27. From the above settled legal position, it therefore follows that

non-payment of subsistence allowance to the petitioner has caused him grave prejudice, and because of paucity of funds, he could not defend himself properly in the disciplinary enquiry. Consequently the disciplinary proceedings as well as the order of removal passed on 29.06.2024, are quashed. The respondents are directed to reinstate the

(2000) 7 SCC 90

( 2024:HHC:8183 )

petitioner into service with back wages less the amount paid towards subsistence allowance within 8 weeks and allow him to work as a Peon.

28. Since it is not in dispute that an F.I.R. had also been registered

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against the petitioner and that criminal proceedings are pending though charge-sheet has not been filed, in the event of his conviction in the

criminal case, it is open to the respondents no.2 to 4 to take appropriate action against the petitioner. No costs.

29. Pending miscellaneous application(s), if any, shall also stand

disposed of. r (M.S. Ramachandra Rao)

Chief Justice

(Satyen Vaidya)

September 10, 2024 Judge (Yashwant)