Dharamdas Hedaoo (Died) Through ... vs State Of M.P.
2023 Latest Caselaw 14876 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                       BEFORE
                                                  JUSTICE SUJOY PAUL
                                          ON THE 11 th OF SEPTEMBER, 2023
                                           WRIT PETITION No. 3164 of 2020

                         BETWEEN:-
                         DHARAMDAS HEDAOO (DIED) THROUGH LRS. SMT.
                         KAMLA HEDAOO W/O LATE SHRI DHARMDAS
                         HEDAOO, AGED ABOUT 64 YEARS, R/O GALPETH
                         CHOWK, WARD NO.4, SAUSAR, CHHINDWARA
                         (MADHYA PRADESH)

                                                                                    .....PETITIONER
                         (BY SHRI NAVEEN KUMAR SALUNKE - ADVOCATE)

                         AND
                         1.    STATE OF M.P., THR. COMMISSIONER TRIBAL
                               DEVELOPMENT SATPURA BHAWAN BHOPAL
                               (MADHYA PRADESH)

                         2.    DEPUTY     COMMISSIONER         (TRIBAL
                               DEVELOPMENT) DISTT-CHHINDWARA (MADHYA
                               PRADESH)

                         3.    THE     COLLECTOR (TRIBAL DEVELOPMENT)
                               DISTT-CHHINDWARA (MADHYA PRADESH)

                         4.    THE    DISTRICT     EDUCATION   OFFICER
                               CHHIN D WAR A DISTT-CHHINDWARA (MADHYA
                               PRADESH)

                         5.    THE TREASURY OFFICER, CHHINDWARA DISTT-
                               CHHINDWARA (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                         (BY SHRI JUBIN PRASAD - PANEL LAWYER)

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                          ORDER

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With the consent, finally heard.

2. The singular prayer advanced by learned counsel for the petitioner is to count the period of suspension as qualifying service only for the purpose of retiral dues.

3. The relevant facts are that the petitioner was placed under suspension on 01/08/1997 (Annexure P/1). The petitioner remained under suspension till 08/11/2005 when his services were terminated. The petitioner was reinstated by order dated 08/04/2013 (Annexure P/5). Thereafter by order dated 27/11/2014, it was made clear that petitioner's services during suspension period shall not be treated as spent on duty for all purposes. The departmental

enquiry instituted against him was dropped.

4. Shri Salunke, learned counsel for the petitioner submits that the petitioner is not claiming any monetary benefits for the period he remained under suspension. The only relief claimed by the petitioner is that the period of suspension be treated as qualifying service for the purpose of counting retiral dues. He placed reliance on the order passed by this Court in W.P.No.13939 of 2005 (S) Badri Prasad vs. Union of India and others dated 17/09/2019.

5. Shri Jubin Prasad, learned Panel Lawyer opposed the prayer by contending that the impugned order dated 27/01/2014 is appealable and the petitioner was reinstated on the basis of judgment of Supreme Court and Policy decision taken by the Government dated 17/03/2011.

6. No other point is pressed by learned counsel for the parties.

7. The aforesaid factual backdrop makes it clear that the petitioner was 'reinstated'.

8. The word 'reinstatement' has definite connotation in service law.

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Kranti Junior Adhyapak Mahavidhyalaya (D.Ed.) and others, opined as under :-

"21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word "reinstate" means to reinstall; to re- establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., "reinstatement" means: "To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."

(Emphasis supplied)

9. This Court in Badri Prasad (supra) opined as under :-

"8. This is settled that during the period an employee remains under suspension the employee-employer/master-

servant relation does not come to an end. The said relation is kept in abeyance by not permitting the employee to render the actual services. Thus, by no stretch of imagination it can be said that because of suspension (for a period of about 10 years), petitioner was not the employee of the department. Thus, there is no justification in not treating the said period of suspension for the purpose of qualifying service. It is apposite to consider certain judgments on the point whether suspension period can be counted for the purpose of qualifying service for grant of pension. In Bibhuti Bhusham Chaudhary v. Union of India (1997) 11 SCC 373, the Apex Court has held as Signature Not Verified Signed by: MANJU Signing time:

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under:

"3. ...... .Having regard to the fact that the petitioner has been paid the subsistence allowance for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner and the pension payable to the petitioner should be calculated by taking into account the said period of suspension as part of his qualifying service. It is, therefore, directed that the petitioner is entitled to count the period of suspension as part of his qualifying service for the purpose of computing the pension payable to him........"

In Ashok Kumar v. Union of India [1999 SCC (L&S) 1226] the Apex Court has held as under:

"3. ......It is clear from the order made by the Government that there was no application of mind to this aspect of the matter. In the circumstances, we do not think that there is any good reason to state that the appellant should be deprived of the benefit of counting qualifying service even though he had been placed under suspension, the only charge against him being one of overstaying beyond the period of deputation in a foreign country.

4. In the circumstances, we allow this appeal in part while upholding the order of compulsory retirement made by the Government as confirmed by the Tribunal. We make it clear that the period of suspension made against the appellant from the date of compulsory retirement shall be treated as qualifying service and his pension computed accordingly.

A Division Bench of this Court in Prakash Kumar Sahu v. Union of India and others [2012 (1) MPHT 123 (DB] opined as under "21. Rule 3 (q) of the Rules, 1972 defines "qualifying service" which means "service rendered while on duty or otherwise which shall be taken into account for the purpose of pension and gratuities admissible under these rules. Thus, it is the service rendered while on duty or otherwise which entitles/qualifies a Government servant for pension, and not the duty alone. Thus, in a case, as the given one there is no break in service, a non-duty period cannot be Signature Not Verified Signed by: MANJU Signing time:

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excluded from counting the said period of suspension for the purpose of pension. The decision of the Competent Authority for not treating the period of suspension, having condoned the break in service, being patently erroneous, cannot be given approval.

22. In the result though the order of treating the period of suspension as non-duty and that the petitioner shall not be entitled for further pay and allowances for the said period except the subsistence allowance and that the period shall not be treated as break in service cannot be faulted with. However, for the reasons that the period of suspension having not been treated as break in service, the order is modified to the extent that the period spent on suspension shall be counted towards pension."

9. On a specific query from the Bench, learned counsel for the employer is unable to show any provision which permits the employer to deprive the petitioner from counting that period of suspension on notional basis for the purpose of qualifying service. Interestingly, while passing the order dated 4th April, 2003 (Annexure A-4), the department itself made it clear that the said period of suspension cannot be treated to be cessation from service.

10. In view of our findings contained in para 6 of this order, it is clear that the Tribunal while deciding OA No.283/2003 on 3rd September, 2004 made it clear that for intervening period (during which petitioner remained under suspension), the petitioner shall not get back wages but said period shall be counted as period of service without any break. This finding of Tribunal, in absence of any challenge to it, had attained finality. Thus, we are unable to hold that by any process of reasoning, the petitioner can be deprived from the benefit of adding the intervening period in qualifying service for the purpose of computation of pension. Consequently, the petitioner's services shall be treated as continued from the date of initial appointment till his retirement for the purposes of computation of pension. Needless to emphasize, the petitioner cannot claim any monitory benefit for the intervening period. The benefit arising out of said period shall be available on notional basis."

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10. Once the petitioner is reinstated, it is clear that clock is put back to the place and position from where he was terminated. Thus, intervening period between suspension to termination cannot be treated as dies non or a period which was not spent on duty.

11. In view of meaning of 'reinstatement' and law laid down in Badri Prasad (supra) and other judgments mentioned above, I find substance in the argument of Shri Salunke, learned counsel for the petitioner. The Government Policy on which reliance is placed nowhere deprived the petitioner from treating the period of suspension as qualifying service.

12. The petitioner is claiming the benefit on the basis of settled law and there are no disputed questions of fact. Thus, at this stage, I am not inclined to relegate a retired employee to avail the remedy of appeal. Resultantly, this technical objection of Government Advocate is rejected.

13. In view of foregoing discussion, the petitioner is entitled to count the suspension period as qualifying service. Resultantly, order dated 27/01/2014

(Annexure P/7) to the extent it deprived the petitioner from counting the said period as qualifying service is set aside. The said period shall be counted as qualifying service for pension and retiral dues on notional basis. As a consequences, the respondents shall recalculate the retiral dues of the petitioner and pay the revised retiral dues within 90 days from the date of production of copy of this order.

14. The petition is allowed to the extent indicated above.

(SUJOY PAUL) JUDGE manju Signature Not Verified Signed by: MANJU Signing time:

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