Union Of India And Others vs Sarat Chandra Khuntia And Another
2023 Latest Caselaw 7511 Ori

                      ORISSA HIGH COURT: CUTTACK
AFR
                           W.P(C) NO. 32684 OF 2020

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                   ---------------

Union of India and others ..... Petitioners

-Versus-

          Sarat Chandra Khuntia and another      .....     Opp. Parties


               For petitioners    : Mr. Shasi Bhusan Jena,
                                    Advocate.

For opp. parties : M/s. Nirmal Ranjan Routray, J. Pradhan, T.K. Choudhury & S.K. Mohanty, Advocates (O.P.1)

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

Date of hearing: 11.07.2023:: Date of judgment: 13.07.2023

DR. B.R. SARANGI, J. The Union of India and its functionaries, by

means of this writ petition, seek to quash the order dated

20.01.2020 passed by the Central Administrative Tribunal,

Cuttack Bench, Cuttack in O.A. No. 17 of 2011, directing

the present petitioners to treat the suspension period of opposite party no.1 from 03.04.2004 till the date of

compulsory retirement from service as qualifying service for

the purpose of pension and pensionary benefits and to

grant him all consequential benefits including arrear

differential pension and pensionary benefits as per

provisions of law within three months, if the same benefits

have not already been extended to him.

2. The factual matrix of the case, in brief, is that

opposite party no.1 was appointed as supporting staff

(Grade-I) in the office of the petitioner no.3 w.e.f.

07.04.1983 and subsequently promoted as supporting staff

(Grade-II) w.e.f. 26.08.1996. While opposite party no.1 was

continuing in service, he indulged in union activities and

challenged the action of petitioner no.3, who, on

contemplation of disciplinary proceeding, placed opposite

party no.1 under suspension vide order dated 07.07.2003.

A charge sheet was issued, which was challenged by

opposite party no.1 in O.A. No. 136 of 2004 before the

Central Administrative Tribunal, Cuttack Bench, Cuttack.

Subsequently, since there were some lacuna, petitioner

no.3 withdrew the charge sheet on 28.05.2004 with a

liberty to issue fresh charge sheet. Thereafter, charge sheet

was issued against opposite party no.1 on 21.07.2004. The

said charge sheet was challenged by opposite party no.1 in

O.A. No. 114 of 2005, which was dismissed by the Tribunal

on 06.02.2005. The said order of the Tribunal was

challenged by opposite party no.1 before this Court in

W.P.(C) No. 343 of 2006, where an interim order was

passed on 24.01.2006. Subsequently, after appearance of

the petitioners, this Court, vide order dated 06.04.2009,

vacated the interim order dated 24.01.2006. The petitioners

were given liberty to proceed with the disciplinary

proceeding and accordingly the petitioners proceeded with

the disciplinary proceeding and concluded the same by

passing the final order dated 16.04.2009 against opposite

party no.1 awarding major penalty of compulsory

retirement from service with immediate effect.

2.1 Opposite party no.1 filed another Original

Application before the Central Administrative Tribunal,

Cuttack Bench, Cuttack challenging the order of

suspension, which was passed on 07.07.2003, on the basis

of the information supplied to him under the Right to

Information Act, 2005 on 04.10.2010 pertaining to

periodical review of the order of suspension.

2.2 Opposite party no.1, being aware of imposition of

major punishment of compulsory retirement, submitted a

representation to petitioner no.3 on 25.10.2010 with a

prayer for deemed duty of reinstatement in service after

compulsory retirement. But petitioner no.3 did not pass

any order on the representation filed by opposite party

no.1. Thereafter, opposite party no.1 filed O.A. No. 17 of

2011 challenging the suspension order as well as M.A. No.

18 of 2011 for condonation of delay in filing the Original

Application.

2.3 The petitioners filed objection to the condonation

of delay and also filed counter to O.A. No. 17 of 2011. The

matter was listed on 05.09.2017. On that date, the counsel

for opposite party no.1 was absent on repeated calls, for

which the Tribunal dismissed the case for non-prosecution.

Thereafter, opposite party no.1 filed M.A. No. 572 of 2017

for restoration of O.A. No. 17 of 2011 as well as MA for

condonation of delay. Since MA was filed without affidavit,

the Tribunal dismissed the same. Therefore, opposite party

no.1 filed another MA with affidavit. Thereafter, the matter

was heard on 06.01.2020 and order was pronounced on

20.01.2020, allowing the Original Application and directing

the petitioners to treat the suspension period of opposite

party no.1 from 03.04.2004 till the date of compulsory

retirement from service as qualifying service for the purpose

of pension. Hence, this writ petition.

3. Mr. S.B. Jena, learned counsel appearing for the

petitioner vehemently contended that the Tribunal has

committed an error while passing the order impugned and

allowed the Original Application by taking the suspension

period as qualifying service from the date of suspension till

the date of compulsory retirement, and according to him

the Tribunal ought not have directed for extension of the

said benefit to opposite party no.1. He further contended

that even though petitioners had raised preliminary

objection regarding maintainability of the Original

Application before the Tribunal and also raised the

objection that the claim made by opposite party no.1 is

barred by limitation, but the Tribunal condoned the delay

on the ground that in the punishment order it has not been

mentioned as to how the suspension period was treated

and the parties have not placed any order on any pleading

as required under Sub-rule (5) of FR 54(B) and allowed the

MA for condonation of delay. It was also contended that

after award of major punishment of compulsory retirement,

opposite party no.1 had challenged the suspension order

dated 07.07.2003 with a prayer for deemed reinstatement

and the Tribunal had not whispered a single word with

regard to the contention raised by the petitioners in the

counter at paragraph-1. Thereby, it was contended that

grounds taken by the Tribunal for allowing the Original

Application filed by opposite party no.1 is, as per Sub-rule

(5) of FR 54-B, whether it was reviewed or not and in the

punishment order it has not mentioned as to how the

suspension period was treated, but, fact remains, from

Annexure-3 it is revealed that the order of suspension was

reviewed from time to time and the review was also made

for 9th time on 28.06.2008 and it was extended in favour of

opposite party no.1. But the learned Tribunal, without

appreciating the same, passed the impugned order, which

is not sustainable in the eye of law.

4. Per contra, Mr. N.R. Routray, learned counsel

appearing for opposite party no.1 contended that when the

order of compulsory retirement was passed, the authorities

have not taken into consideration as to how the period is to

be treated. In absence of any specific order with regard to

the manner of treating the suspension period, the order of

compulsory retirement passed by the petitioners cannot be

sustained in the eye of law. It is further contended that as

per Rule-10(6) and (7) of CCS (CCA) Rules, 1965, an order

of suspension is required to be reviewed within 90 days

and, as per Office Memorandum dated 19.03.2004, all

pending cases of suspension were required to be reviewed

on or before 02.04.2004. The review of the suspension

order was conducted on 30.08.2004, for which continuation

of his suspension from 03.04.2004 onwards was illegal and

he should be deemed to be reinstated in service with effect

from 03.04.2004 with all consequential service benefits. It

was also contended that in the Original Application

opposite party no.1 had filed MA No. 18 of 2011 for

condonation of delay in filing the O.A. on the ground that

the fact of non-review of his case, as per the Office

Memorandum dated 19.03.2004, came to his knowledge

after he obtained information under the Right to

Information Act, 2005 on 04.10.2010, after which he

submitted the representation. Therefore, delay in filing the

Original Application should have been condoned. Opposite

party no.1 had also filed MA No. 295 of 2018 for

amendment of the Original Application to quash the

proceeding of the review committee dated 30.08.2004 and

the said MA was pending. Therefore, the continuation of

the order of suspension from 03.04.2004 had been

challenged and it was not necessary to challenge the

proceedings of the review committee. Consequentially, MA

No. 295 of 2018 was dismissed. Finally, on 06.01.2020, the

OA as well as the MA for condoning the delay in filing the

OA were heard together. Since the order of compulsory

retirement had not indicated the position of the order of

suspension and as such, no independent order had been

passed as to how to treat the order of suspension period

while passing major punishment of compulsory retirement,

thereby, the Tribunal considered the same and passed the

order impugned. Consequentially, the Tribunal has not

committed any error apparent on the face of the record, so

as to exercise the writ jurisdiction of this Court to interfere

with the order so passed by the Tribunal.

5. This Court heard Mr. S.B. Jena, learned counsel

appearing for the petitioners and Mr. N.R. Routray, learned

counsel appearing for opposite party no.1 in hybrid mode

and perused the records. Pleadings have been exchanged

between the parties and with the consent of learned

Counsel for the parties, the writ petition is being disposed

of finally at the stage of admission.

6. Before delving into the merits of the case, for a

just and proper adjudication of the case Sub-rules (5) and

(7) of Fundamental Rules (FR) 54-B are referred to:-

"(5) In case other than those falling under sub rules (2) and (3) the Government servant shall subject to the provisions of sub-rules (8) and (9) be paid such amount not being the whole of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

xxx xxx xxx

(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.........."

7. The Tribunal, while considering the pleadings of

the parties, formulated two grounds, such as:-

(i) The applicant failed to raise the issue earlier when he had filed cases unsuccessfully challenging the suspension order and the punishment orders and hence, it is not open to raise the issue belatedly in this OA.

(ii) The OA is barred by limitation in view of delay which has not been explained satisfactorily.

While answering ground (i), the Tribunal extended the

benefit in favour of opposite party no.1. Similarly, while

answering ground (ii), the same was also decided in favour

of opposite party no.1.

8. Taking into consideration the factual matrix, as

delineated above, it is made clear that when the petitioner

was placed under suspension, as per the provisions

contained in sub-rules (6) and (7) of Rule 10 of the Central

Civil Service (Classification, Control and Appeal) Rules,

1965, the order of suspension has to be reviewed before

expiry of 90 days period. To substantiate such contention,

the opposite party no.1, having received the information

under the Right to Information Act, 2005, stated that no

order regarding review of his suspension was

communicated to him and the matter came to his

knowledge after receiving the information on

04.10.2010/21.10.2010 under the Right to Information Act,

2005, after which he submitted a representation on

25.10.2010 before the authorities.

9. But fact remains, while opposite party no.1 was

under suspension, the punishment of compulsory

retirement was imposed on him vide order dated

16.04.2009. The disciplinary authority had to pass an order

as to how the period of suspension will be treated. Sub-

rules (5) and (7) of the Fundamental Rules (FR) 54-B are

applicable to the period of suspension, when a suspended

government servant is punished in the disciplinary

proceeding. Needless to say, the order of punishment of

compulsory retirement was imposed, vide order dated

16.04.2009, in which nothing has been mentioned with

regard to the manner of treating the suspension period. As

per Sub-rule (5), the disciplinary authority should have

passed the order as to how the suspension period was to be

treated, but it was not done. The punishment order dated

16.04.2009 further implied that the suspension period

cannot be treated as on duty, as per Sub-rule (7) of FR 54-

B since no specific order to that effect was made by the

competent authority. As a consequence thereof, opposite

party no.1 could have challenged treatment of his

suspension period, while challenging the punishment order,

as both the issues were interlinked. But a solemn duty is

cast on the competent authority to pass an order, either as

a part of the punishment order or by a separate order about

treatment of the suspension period as required under Sub-

rule (5) of FR 54-B. But nothing has been placed on record

to indicate as to why the order of punishment has not

mentioned about the treatment of the suspension period,

though as per Sub-rule (7) of FR 54-B, it is incompetent on

the part of the competent authority to pass an order with

regard to the suspension of opposite party no.1 while

passing the order of punishment of compulsory retirement.

The disciplinary authority could have passed an order

under Sub-rule (5) of FR 54-B, which was necessary, since

opposite party no.1's qualifying service for the purpose of

pension/pensionary benefits depends on how the

suspension period was treated.

10. At this stage, it is of relevance to have a glance

on Rule 23 of the CCS (Pension) Rules, 1972, which reads

as follows:-

"23. Counting of periods of suspension.- Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified; in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare."

11. The above mentioned provision, on a careful

reading, also requires the competent authority to pass an

order as to what extent the suspension period would be

counted for the purpose of qualifying service of opposite

party no.1, on which the pension and pensionary benefits

of opposite party no.1 would depend. To what extent the

period of suspension has been considered for the purpose

of pensionary benefits has not been furnished by either of

the parties in the Original Application.

12. On general principles, an order of interim

suspension will end with a final order made in the enquiry

proceedings or the conclusion of the investigation or

enquiry or trial in relation to the criminal offence pending

which the order of suspension had been made.

In Om Prokash Gupta v. State of U.P., AIR

1955 SC 600, the apex Court held, the order of suspension

could only come to an end with an order replacing it. For

example, if as a result of the enquiry an order of dismissal

by way of penalty had been passed, the order of suspension

lapsed with the passing of the order of dismissal.

In H.L. Mehra v. Union of India, AIR 1974 SC

1281: (1974) 4 SCC 396, the apex Court held:-

"Now, when the order of dismissal is passed, the vinculum juris between the Government and the servant is dissolved: the relationship of master and servant between them is extinguished. Then the order of suspension must a fortiori come to an end."

13. In view of the above settled position of law, it is

made clear that even though the interim suspension order

passed by the authority merged with the final order of

compulsory retirement, but no order has been passed with

regard to treatment of the suspension period in the order of

compulsory retirement. As a consequence thereof, the

pensionary benefits of opposite party no.1 would be

affected, depending on how his suspension period was to be

treated. Therefore, the competent authority was required to

pass an order regarding suspension period of opposite party

no.1, which has not been done. Since no such order has

been placed either before the Tribunal or before us by the

parties in their pleadings as required under Sub-rule (5) of

FR 54-B, the contention raised by the learned counsel for

the petitioners, that opposite party no.1 did not raise this

issue earlier, will not be helpful for the petitioners, in view

of the aforesaid reasons. Therefore, this Court is of the

considered view that since no order has been passed with

regard to manner of treatment of the period of suspension,

it would affect the pension and pensionary benefits under

Rule 23 of CCS (Pension) Rules, 1972.

14. The stand of opposite party no.1 to treat him on

duty after 02.04.2004, since the suspension order was not

extended after review, as per Rule 10 (6) and (7) of the CCS

(CCA) Rules, 1965 read with the Office Memorandum dated

19.03.2004, cannot be accepted in view of Sub-rule (7) of

FR 54-B and since the punishment as per order dated

16.04.2009 was upheld by the Tribunal and the opposite

party no.1 failed to raise the issue in earlier Original

Application filed by him challenging the punishment order.

Therefore, the claim for payment of full salary/increments

during the said period of suspension treating it as on duty

cannot be sustained. However, the claim for counting the

above period for pension and pensionary benefits of

opposite party no.1 certainly deserves consideration.

15. Accordingly, the direction given by the Tribunal

to treat the suspension period of opposite party no.1 from

03.04.2004 till the date of compulsory retirement from

service as qualifying service for the purpose of pension and

pensionary benefits and to grant him all consequential

benefits, including arrear differential pension and

pensionary benefits, as per the provisions of law, cannot be

said to be faulted with so as to cause an interference by

this Court. Rather, there is ample force with regard to

extension of such benefit to opposite party no.1. As a

consequence thereof, this Court is not inclined to interfere

with the order dated 20.01.2020 passed by the Central

Administrative Tribunal in O.A. No. 17 of 2011 under

Annexure-6, rather directs the petitioners to comply the

same.

16. In the result, therefore, the writ petition stands

dismissed. However, there shall be no order as to costs.

                                                                       (DR. B.R. SARANGI)
                                                                             JUDGE

           M.S. RAMAN, J.                        I agree.


                                                                          (M.S. RAMAN)
                                                                              JUDGE



                            Orissa High Court, Cuttack
                            The 13th July, 2023, Arun




Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA

Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 13-Jul-2023 17:55:43