Raghu Nandan Das vs The State Of Jharkhand
2021 Latest Caselaw 2978 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S) No.2637 of 2010
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   Raghu Nandan Das                             ..... Petitioner
                               Versus
      1. The State of Jharkhand

2. The Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, State of Jharkhand

3. The Secretary, Department of Rural Development, State of Jharkhand

4. The Deputy Commissioner, Sahibganj ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Abhijeet Kr. Singh, Advocate For the Respondents : Ms. Soumya Pandey, A.C. to G.P.-II

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09/18.08.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying for quashing the order of punishment passed under Memo No. 6073 dated 11.11.2006 whereby the petitioner has been awarded punishment of censor. The petitioner has further assailed the order dated 2889 dated 04.05.2009, wherein it has been ordered that petitioner will not be paid anything except subsistence allowance during the period of suspension as per Rule 97 of Jharkhand Service Code.

During pendency of the instant writ application the petitioner has filed an amendment application for adding a new prayer that since grant of benefit of A.C.P. and M.A.C.P. was considered with respect to this petitioner and others but no final decision was taken as such the respondent authorities may further be directed to take final decision accordingly.

3. Mr. Abhijit Kumar Singh, learned counsel for the petitioner confines his prayers on two issues. Firstly, the petitioner may be allowed to approach the concerned respondent to consider his case for promotion, A.C.P./ M.A.C.P. benefits. Secondly, the order issued under Memo No. 2889 dated 04.05.2009 whereby it has been ordered that the petitioner will get only the subsistence allowance and not

the full salary during the period of suspension; be quashed as no notice was given to this petitioner before passing of the said order.

He further relied upon the judgment passed in the case of Vidya Sinha Vs. State of Bihar reported in 1995 2 PLJR 616 and submits that it is true that it is the authority who will decide the question as to what amount should be paid to the delinquent during the suspension period but if the order has been passed behind the back of the petitioner and without giving him any opportunity; same should be quashed.

4. Ms. Soumya Pandey, learned counsel appearing for the respondent State fairly submits that from record it does not transpires as to whether any notice was served upon the petitioner; as such so far as the prayer of the petitioner with regard to full salary during the suspension period is concerned; the matter may be remitted back to the authority who shall proceed in accordance with law and decide the question as to whether the petitioner will be entitled to full salary or only subsistence allowance.

5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein; it appears that the punishment of censor was imposed upon this petitioner vide order dated 11.11.2006 in contemplation with a departmental proceeding which was further upheld by the appellate authority. It further transpires that pursuant to the aforesaid order of punishment, the respondent authorities have issued another order under Memo No. 2889 dated 04.05.2009 and ordered that the petitioner will be paid only subsistence allowance and nothing else.

From record it does not transpires that the subsequent order dated 04.05.2009 has been passed after giving any opportunity to this petitioner. In the case of Vidya Sinha Vs. State of Bihar (Supra), the Patna High Court has laid down the law in Paragraph 5 as under:

"5. Where the delinquent superannuates from service in a state of suspension, the proceeding cannot be continued except for the purpose of with-holding of pension (or gratuity) under Rule 43(b) of the Bihar Pension Rules. For other purposes it comes to an end. Therefore, there is no question of his being exonerated of the suspension being found to be unjustified for the purpose of entitlement to pay and allowances under Rule 97(2). That would not, however, mean that the charges which he was facing whether a formal proceeding was pending or not would automatically get wiped out. In my opinion, in such a situation it would be permissible to the competent authority to consider whether the person should be paid salary and allowances for the suspension period after, of course, giving opportunity of hearing to him. There cannot be any doubt that any order denying salary and allowances for the suspension period is not a penalty within the meaning of the service rules but.

nevertheless, is penal in nature and effect and, therefore, cannot be passed except after giving opportunity of hearing. While in the case of Government servants in service, the order is to be passed under Rule 97 of the Service Code, after his superannuation, it will be deemed to be an independent order and not under Rule 97 but the consideration will more or less be the same. I would accordingly, hold that the State Government is competent to deny salary for the suspension period on valid grounds even after superannuation after giving opportunity of hearing. The law has been brought to my notice

prohibiting the State Government from passing such an order. As a matter of fact, a learned Judge of this court, on difference of opinion between the judges, in the case of Dr. Laxmi Narain Singh V/s. The State of Bihar [1989 BBC J, 14] has taken a similar view."

6. Even otherwise, the law is well settled that any order which affects the delinquent; a proper show cause notice must be given following principle of natural justice and after getting the reply, if any, formal order should be passed. In the instant case there is nothing on record to suggest that any show cause notice was issued.

7. In view of the aforesaid facts the instant writ application is partly allowed and the order issued under Memo No. 2889 dated 04.05.2009 is quashed and set aside. The matter is remitted back to the respondent authorities to issue fresh show cause notice on the issue of payment of full salary during the period of suspension under Rule 97 (2) and pass an order after following principles of natural justice.

It goes without saying that since the matter is very old as such the disciplinary authority shall pass the final order within a period of four months from the date of receipt/production of a copy of this order. It is made clear that the petitioner shall fully cooperate in giving reply.

It is also pertinent to mention here that if the respondent authorities will not pass an order within the aforesaid stipulated period then the petitioner shall be entitled for full salary during the period of suspension and it would be deemed that the respondents have nothing to do in the matter.

The petitioner shall also be at liberty to file fresh representation before the Respondent No.2 with regard to his claim for promotion and A.C.P./M.A.C.P. benefits within a period of two months from today and if any such representation is filed; the respondent no. 2 shall pass a

reasoned and speaking order within a period of four months from the date of receipt of such representation. If any amount would be found payable; same shall be paid to the petitioner within a further period of eight weeks.

8. With the aforesaid directions, the instant writ application stands disposed of.

(Deepak Roshan, J.)

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