Smt. Saroj Agarwal W/O Late Shri ... vs State Of Rajasthan ...
2023 Latest Caselaw 4402 Raj/2

  [2023:RJ-JP:20312-DB]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                  D.B. Special Appeal (Writ) No.295/2023

                                             In

                    S.B. Civil Writ Petition No.2229/2016

  Smt. Saroj Agarwal W/o Late Shri Amit Choudhary, Aged About
  61 Years, R/o 123, Sector 3, Rajeev Nagar, Vidhyadhar Nagar,
  Jaipur.
                                                                         ----Appellant
                                         Versus
  1.        State Of Rajasthan, Through Principal Secretary, P.H.E.D.,
            Secretariat, Jaipur.
  2.        Chief Engineer (Admn.) P.H.E.D., Rajasthan Jal Bhawan,
            Civil Lines, Jaipur.
  3.        Executive Engineer (Vigilance), P.H.E.D. Malpura Division,
            Malpura, District- Tonk.
                                                                      ----Respondents

For Appellant(s) : Mr. C.P. Sharma, Advocate For Respondent(s) : Mr. Anil Mehta, Additional Advocate General assisted by Mr. Prawal Mishra, Advocate

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MRS. JUSTICE SHUBHA MEHTA

Order REPORTABLE 31/08/2023

With the consent of the parties, this appeal is heard finally.

Since we are inclined to dispose off this appeal on one short

ground, we consider it unnecessary to give details of the facts

leading to filing of the writ petition and the order passed by the

Ld. Single Judge.

Quint-essential facts are that upon institution of a criminal

case, the appellant was placed under suspension. Institution of

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criminal proceedings eventually culminated in conviction. This lead

to termination of services. The appellant filed criminal appeal in

which she was successful and the conviction was set aside and she

was acquitted. This gave rise to necessity to reinstate the

appellant in service as the only basis for termination was a

criminal case and not a departmental inquiry. Though the

appellant was reinstated, while giving treatment to the period of

suspension, it was held that for the period from 28.12.2007 till

08.05.2015 i.e. the period during which appellant remained out of

employment on account of termination as a result of conviction,

the appellant would not be entitled to any wages. At this juncture,

the appellant filed writ petition challenging that part of the order

dated 23.06.2015.

Before the Ld. Single Judge, the appellant, amongst various

grounds, also challenged the decision on the ground of

impropriety in decision making process that the order was passed

without affording any opportunity of hearing. Ld. Single Judge,

however, was of the view that in the present case, as it was not a

case of honorable acquittal, the appellant was not entitled to any

relief.

The submission of learned counsel for the appellant is that

an order passed giving treatment to the period of suspension

results in civil consequences and, therefore, as held by the Hon'ble

Supreme Court in the case of State of Rajasthan & Another

Versus Mangat Lal Sidana, 2022 (5) SCALE 502, an

opportunity of hearing is must. He would submit that in these

circumstances the order impugned in the writ petition was liable to

be interfered with.

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Learned Additional Advocate General would submit that the

Ld. Single Judge has taken the view based on settled legal position

as adumbrated in Supreme Court's decision in the cases of

Ranchhodji Chaturji Thakore Versus Superintendent

Engineer, Gujarat Electricity Board, AIR 1997 SC 1802,

Union of India Versus Jaipal Singh, AIR 2004 SC 1005 and

Hindustan Zinc Ltd. Udaipur Versus Radhey Lal, 2007 (1)

SCT 446 (D.B. Civil Special (W) No.553/2004). Therefore, he

would submit that present is a case of foregone conclusion and

only because opportunity of hearing was not afforded, the

appellant is not entitled to any relief.

After hearing learned counsel for the parties, we are of the

view that non-affording of opportunity of hearing vitiated the

decision making process and the ultimate decision culminating in

issuance of impugned order dated 23.06.2015.

In the case of State of Rajasthan & Another Versus

Mangat Lal Sidana (supra) with reference to the exercise of

power contemplated under Rule 54 of the Rajasthan Service Rules,

1951 (hereinafter referred to as "the Rules of 1951"), their

Lordships in the Supreme Court authoritatively pronounced the

legal position applicable in such cases as below:-

"(12) The other aspect of the matter is about the observance of principles of natural justice. The employee must be given an opportunity before any order is passed. The matter is no longer res integra.

[See M. Gopalakrishna Naidu v. State of Madhya Pradesh AIR 1968 SC 240]. It does not need reiteration that even under Rule 54, the position is the same. Observance of principles of nature justice is of cardinal importance for the employee whose very life will be at stake for he would on the one hand if he is heard get an opportunity to pursuade the competent

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authority that his case would fall under Rule 54(2) and not under Rule 54(3). Denial of opportunity can have very serious consequences. In this case, the finding is that the principles of natural justice were not complied with. On this ground, the respondents would support the judgment.

(13) Dr. Manish Singhvi, learned Additional Advocate General appearing for the appellants would point out that in such circumstances, the course to be adopted would be to remit it back to the competent authority so that the competent authority may ensure that the respondents appear before the authorities and then the case is decided. In fact, we find that the course adopted by this Court finally in M.

Gopalakrishna Naidu (supra) was to remit the matter back to the competent authority to pass an order after hearing the employee. But then, learned counsel for the respondent would point out that the respondent is aged 76 and at this stage, remitting back the matter would be highly inequitable. In the leading case, we notice, at the time of admission, this Court had passed an order of stay subject to payment of 50 per cent of the backwages.

(14) Having heard the learned counsel for the parties, we are of the view that the following conclusions can be arrived at.

The disciplinary proceedings against the respondents in both the cases have not culminated in a situation where it could be said that they have been completely exonerated. This would take their case outside the four walls of Rule 54(2) of the Rules. Their suspension may not fall in the category of unjustified suspension. This inevitably and necessarily would bring their cases within the scope of Rule 54(3). This would necessarily mean that the exact amount of pay and allowances to be paid is to be less than the full pay and allowances. However, this exercise can be done only after notice to the employee. Admittedly, there is a failure by the appellants in this regard. But, at the same time, to remit it back for this purpose in our view would be inequitable. Hence we would rather adopt the middle path by directing that in the facts and circumstances of the case, the respondents be paid pay and allowances fixed at 50 per cent of the pay and allowances which they would have drawn for the period of their absence. Accordingly, the appeals

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are partly allowed. We direct that the respondents in both the cases will be paid the pay and allowances at 50 per cent of the amount which they would be entitled for the period in question.

The appeals are allowed as above. No orders as to costs."

As to what treatment is required to be given during the

period of suspension would lie within the discretion of the

authority. Therefore, it cannot be said that there is any straitjacket

formulae based on rule and facts. There is nothing in the

provisions contained in Rule 54 of the Rules of 1951, which leads

to one single conclusion without admitting any other conclusion on

the facts of the present case. Therefore, it cannot be said to be a

case of foregone conclusion, being an exception to the application

of principles of natural justice. We do not know whether an

opportunity of hearing to the appellant would have produced a

different conclusion by the competent authority. However, it

cannot be denied that the appellant was denied an opportunity of

hearing to convince the authority regarding payment of full or part

amount of the salary in respect of long period during which she

remained out of employment i.e. 28.12.2007 to 08.05.2015.

Therefore, only on the ground of violation of principles of natural

justice, the order impugned in the writ petition was liable to be set

aside.

We find that though the ground was raised before the Ld.

Single Judge, on this aspect the Ld. Single Judge has not recorded

any finding.

In view of the above consideration, we are inclined to allow

the appeal and set aside the order passed by the Ld. Single Judge

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as also impugned order dated 23.06.2015 only to the extent of

denial of back-wages. The Competent Authority shall afford the

appellant an opportunity of hearing and, thereafter, pass

appropriate order as may be considered in accordance with law

under Rule 54 of the Rules of 1951. We must hasten to add that

we have not commented upon the merits of the case insofar as

appellant's claim of full/part salary is concerned. It will be open for

the authority to apply its own mind and take a decision in the

matter, of course after affording an opportunity of hearing.

The appeal is accordingly allowed in the manner and to the

extent as stated above.

(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),J

Karan/92

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