Nirupa Kumar Vs State Of Chhattisgarh And Ors.

1 - State of Chhattisgarh, Through The Secretary Department of Scheduled Tribe And Scheduled Caste Development Mahandi Bhawna Mantralaya Post And Ps Mandir Hasaud Raipur, Chhattisgarh

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2 – Collector, District- Gariyabandh, Chhattisgarh

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3 – Commissioner, Raipur Division District- Raipur, Chhattisgarh

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---Respondents/State

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For Petitioner : Mr. Jitendra Pali, Advocate. For State/Respondents : Mr. Akhilesh Kumar, Government Advocate.

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Hon'ble Smt. Justice Rajani Dubey

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C A V ORDER

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The petitioner has filed this petition under Article 226 of the Constitution of India by challenging the legality, validity and propriety of the order dated 02.06.2014 passed by the Commissioner, Raipur Division, Raipur in Appeal Case No. 184/B121, Year 2013-2014. So, this petition is sought by the petitioner for

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the following reliefs:-

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“i. To kindly call for the records of the case from the respondents.

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ii. To kindly quash the impugned order dated 02.06.2014 (Annexure P/1) passed by the Commissioner, Raipur Division, Raipur in Appeal Case No. 184/B-121 Year 2013-14 and kindly quash the order passed by the Disciplinary Authority (Collector) dated 16.04.2013 (Annexure P/8).

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Iii. To kindly direct the respondents to grant full salary of suspension period i.e. from 07.05.2010 to 20.12.2011 to the petitioner with 18 % interest.

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iv. To kindly make any other order that may be deemed fit and just in the facts and circumstances of the cases including awarding of the costs to the petitioner.

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The facts of the case, as projected in the present writ petition, in brief, petitioner was giving her services as Accountant in the office of Additional Commissioner (Tribal Development), Raipur (C.G.). In the year, 2010 vide order dated 28.04.2010, the petitioner was posted at Government High School, Chhura, Raipur. The petitioner was relieved on 01.05.2010, just after six days, the Collector suspended the petitioner vide order dated 07.05.2010 for carelessness and irregularities in the distribution of Post Metric Scholarship for the past two years. A charge memo was given to the petitioner, though the petitioner replied yet the departmental enquiry was initiated against the petitioner. The petitioner vide order dated 20.12.2011 (Annexure P/6) was reinstated and posted in the same school. During the departmental enquiry, the Enquiry Officer without looking to the defence of the petitioner, picked one sentence of the petitioner stated by her during departmental enquiry that due to work pressure, she could not make some entries in the register. Taking such statement as on admission, the Enquiry Officer submitted his report on 29.10.2012 (Annexure P/7) and held that the charges against the petitioner were partially proved. The

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Additional Commissioner without giving any final show cause notice to the petitioner directly passed the final order dated 16.04.2013 and upon acceptance of the enquiry report imposed a minor penalty of stopping of one increment without cumulative effect. With regard to the suspension period, it was decided that the subsistence allowance would be treated as pay and the suspension period would be treated as period in service for all other purposes. No opportunity was given to her to submit on the point of suspension period, which is mandatory as per Rule 54-B of the Fundamental Rules. Moreover, the State under its executive powers had issued Circulars clearly stating that the government servant against whom a departmental enquiry has been initiated for imposing minor penalty, then he/she should not be suspended. It has been further clarified that a government servant in case of imposing minor punishment would be entitled for full salary and allowances of suspension period under the provisions of 54-B of the Fundamental Rules. The petitioner had preferred an appeal against such order before the Commissioner, Raipur Division (respondent No. 3 herein), which has been rejected. Hence, this present petition filed by the petitioner.

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Learned counsel for the petitioner submits that the impugned order is illegal and bad in the eye of law, the petitioner cannot be punished on the sole ground of admission not made by her. The petitioner has been imposed punishment vide Rule 10 (iv) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity ‘Rules of 1966’), which is a minor punishment, therefore, even if the petitioner was found guilty, then also she would be entitled for full

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salary and allowances for the suspended period as per the Circular dated 23.11.2010 (Annexure P/11) and thus, the order of the Disciplinary Authority (respondent No. 2 herein) as well as the Appellate Authority (respondent No. 3 herein) are contrary to the aforesaid circular issued by the State Government. The enquiry officer did not act properly while not considering this fact that the record of the post metric scholarship was not done since 2007 and the petitioner got the charge only on September, 2009 and no material was considered by the Enquiry Officer and the enquiry report has been submitted on the basis of alleged admission which is not an admission on the part of the petitioner. The Additional Commissioner committed illegality while directly taking the decision on suspension period without following the provisions of Rule 54-B of the Fundamental Rules. The petitioner was not heard on the question of decision on suspension period which is mandatory. It is well settled principle by the State Government that on the occasion of imposition of minor penalty after departmental enquiry, full payment of salary of suspension period is to be made. However, the respondents have acted illegally while not granting full payment of suspension period. It has been further argued by learned counsel for the petitioner that respondent No. 3 acted illegally in dismissing the appeal of the petitioner without application of mind on the legal and factual aspects of the matter, as such the impugned orders dated 02.06.2014 (Annexure P/1) & 16.04.2013 (Annexure P/8) deserve to be quashed and the respondents may be directed to grant full salary of suspension period i.e. from 07.05.2010 to 20.12.2011 to the petitioner with 18% interest.

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On the contrary, learned counsel for respondents/State strongly and vehemently opposes the above prayer made by learned counsel for the petitioner and submits that the petitioner was working as an Accountant in the Office of Additional Commissioner (Tribal Development), Raipur (C.G.) up to the year 2010. The petitioner was posted at Govt. High School, Chhura, Raipur vide order dated 28.04.2010 (Annexure P/2) and was relieved vide order dated 01.05.2010 (Annexure P/3) to join the new place of posting. While the petitioner entrusted with the work of Post Metric Backward Class Scholarship Branch during her tenure, it was found that she was careless/reckless towards her work and did not complete her work in time, thus the difficulties were faced by different institutions where students of backward class were studying and due to her negligence/carelessness, there was delay in sanctioning the scholarship and even after the sanction for long time, the institutions did not receive the same and various other allegations were also against her and thus, she was charge-sheeted vide 05.06.2010 (Annexure P/4). Prior to issuance of charge-sheet, the petitioner was kept under suspension vide order dated 07.05.2010 and during the pendency of the departmental enquiry, the petitioner was reinstated vide order dated 20.12.2011 (Annexure P/6). It is further submitted that an enquiry was conducted against the petitioner in pursuance of the charge-sheet dated 05.06.2010 (Annexure P/4) and the petitioner in her statement before the Enquiry Officer accepted that there had been carelessness on her part and she could not complete the work in time because of overload of work. In her cross-examination to the charge No. 1, the

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petitioner accepted that due to overload of work, she could not make entries in the register and in view of her admission, it was rightly held by the Assistant Commissioner in his order dated 16.04.2013 (Annexure P/8) that the allegations/charges levelled against the petitioner has been proved and the petitioner was rightly punished with minor penalty i.e. stoppage of one increment without cumulative effect. So far as the suspension period is concerned, the order dated 16.04.2013 (Annexure P/8) suffers with no illegality inasmuch as the subsistence allowance was paid to the petitioner during her period of suspension and the same was treated to be sufficient and she was not entitled for payment of full salary for the said period. Thereafter, the appeal preferred by the petitioner has been rightly dismissed by respondent No. 3/Commissioner, as no illegality has been found in the order passed by the Assistant Commissioner. Petitioner is taking shelter of Rule 54-B of the Fundamental Rules and has submitted that she was not given an affordable opportunity of hearing regarding the decision of suspension period. The Rule 54-B of the Fundamental Rules provides that the Authority competent to order re-instatement shall consider and make a specific order regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement and whether or not the said period shall be treated as a period spent on duty. Sub- Rule (3) of Rule 54- B provides that where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant, shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which, he/she

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would have been entitled, had he/she not been suspended . In the present case, the competent authority applies its mind and held that the petitioner is only entitled for subsistence allowance during her suspension period and is not entitled to be paid full pay and allowances during the period for which, she was kept under suspension. Thus, Rule 54-B of the Fundamental Rules is of no help to the petitioner as has been pleaded by the petitioner in para 8.7 of the petition. Therefore, the instant petition being devoid of merit, liable to be dismissed.

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I have heard learned counsel for the respective parties and perused the material available on record including the impugned orders.

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It is not disputed in this case that petitioner was working as an Accountant in the Office of Additional Commissioner (Tribal Development), Raipur (C.G.) in the year 2010 and the petitioner was posted at Government High School, Chhura, Raipur vide order dated 28.04.2010 (Annexure P/2). She was relieved on 01.05.2010 to join the new place of posting and on 07.05.2010, she was suspended from work for her carelessness and irregularities in the distribution of post metric scholarship. A charge-sheet was issued against the petitioner and during departmental enquiry vide order dated 20.12.2011(Annexure P/6), the petitioner was reinstated and posted in the same school. After departmental enquiry, minor penalty was imposed upon the petitioner vide order dated 16.04.2013 (Annexure P/8). Against this order, the petitioner had preferred an appeal before the Commissioner, Raipur Division, Raipur, but the Appellate Authority has also dismissed the appeal of the petitioner vide impugned order dated 02.06.2014 (Annexure P/1).

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The main grievance of the petitioner is that she is entitled for full salary of her suspension period as per Rule 54-B of Fundamental Rules and as per Circular dated 23.11.2010 (Annexure P/11) issued by General Administration Department, Secretariat, Dau Kalyan Singh Bhawan, Raipur, where, it is clearly mentioned in Clause 6, which is reproduced hereinbelow for ready reference as under:-

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“6. मुख्यशाቜኌ��हे�ुसंቜኌ��वि�भागीयजांचमेंयवि�वि�सीवि�लቜኌ��शास�ीयसे��पर जांचउपरां�लघुशाቜኌ��हीअधि$रोविप��ीजा�ीहै�ोउस�ावि�ल��औधिचत्यपू्ቓ+ �हीं मा�ाजास��ा।अ�ःराज्यशास��ेवि�्ቓ+यलिलयाहैवि�ऐसेमामलोंमेंसं�ंधि$�शास�ीय से��ीवि�ल��अ�धि$ �ोमूलभू�वि�यम 54- �ी�ेपरिर्ቚेቌኚयमें��+व्यअ�धि$ मान्य�र वि�ल��अ�धि$ �ेस�पू्ቓ+ �े��-भ्ቈे (शास�ीयसे��ो. वि�ल��अ�धि$ मेंगुग�ा�वि�ए गए "जी��वि��ा+हभ्ቈे " �ीराशिश�ासमायोज��र) वि�एजाएं।यहवि�्ቓ+यइस्ሺ ाप��े सारिर�हो�े�ेधि�शि�सेलागूहोगा��ाजिज�्ቚ �र्ቓोंमेंवि�्ቓ+यलिलयाजाचु�ाहै, �ेपु�ः

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�हींखोलेजाएंगे। "

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It is quite vivid from the aforementioned circular that as per Clause 6, government servant, who was imposed minor penalty is entitled for full salary for his/her suspension period.

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The petitioner filed punishment order dated 16.04.2013 (Annexure P/8) passed by Assistant Commissioner and order dated 02.06.2014 (Annexure P/1) of Appellate Authority (Respondent No. 3 herein). It is clear from punishment order dated 16.04.2013 (Annexure P/8) that while imposing minor penalty, it is ordered that she is not entitled for her full salary. Operative para of Annexure P/8 is reproduced hereinbelow for ready reference as under:-

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" फल��रूपछ्ቈीसगढ़जिसवि�लसे�ा (�गC�र्ቓ , वि�यं्ቔ्ቓ ए�ंअपील) वि�यम 1966 �ेवि�यम 10 (04) �ेअ�ुसार्ቦ ीम�ी�ुमार�ीए��ाቧኌG��े��ृधिI असंचयी्ቚ भा�सेअ�रूI �ीजा�ीहैं, वि�लं��अ�धि$ में्ቚ ा्቎ जी��वि��ा+हभ्ቈा �ोपया+्቎ मा��ेहुएउ्ሹ अ�धि$ �ा�े��ेय�हींहोगाए�ंवि�लं��अ�धि$ �ो अन्य्ቚ योज�ो�ेलिलयेसे�ा�ालमान्यवि�याजा�ेगा। "

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But, it is vivid from this order that Disciplinary Authority (Respondent No. 2 herein) did not consider as to why she is not

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entitled for full salary as per Circular dated 23.11.2010 (Annexure P/11) and Rule 54-B of Fundamental Rules. Appellate Authority (Respondent No. 3 herein) has also not considered both circular and Rule 54-B of Fundamental Rules and thereby dismissed the appeal of the petitioner.

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Rule 54-B of Fundamental Rules is reproduced herein for ready reference as under:-

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“ FR. 54-B.- (1) When a Government servant, who has been suspended, is reinstated while under been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re- statement shall consider and make a specific order-

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(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and

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(b) whether or not the said period shall be treated as a period spent on duty.

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(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension, dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death, shall be treated as duty for all purposes and his family, shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

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(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant, shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended:

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Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving

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him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served on him] and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances, as it may determine.

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(4) In a case falling under sub-rule (3), the period of suspension, shall be treated as a period spent on duty for all purposes.

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(5) In cases other than those falling under sub-rules (2) and (3), the Government servant, shall, subject to the provisions of and allow (8) and (9), paid such¹ [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 period² [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.

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(6) Where suspension is revoked pending finalization of the disciplinary or Court proceedings, any order passed under sub-rule (1) before, the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1), who, shall make an order according to the provisions of sub- rule (3) or sub-rule (5), as the case may be.

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(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:

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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. ’’

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It is vivid from documents filed by the petitioner that neither opportunity of hearing was afforded to her while passing impugned

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orders by respondent authorities nor any show cause notice was filed by the respondent authorities before this Court, which shows that before passing these orders, any show cause notice was issued to the petitioner, Disciplinary Authority (respondent No. 2 herein) and Appellate Authority (respondent No. 3 herein) did not state any grounds as to why she is not entitled for full salary as per Circular dated 23.11.2010 (Annexure P/11) and Rule 54-B of Fundamental Rules. However, it is not disputed that minor penalty was imposed upon the petitioner.

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It is vivid from departmental enquiry that petitioner had admitted some charges and as per enquiry report charges were partly proved against the petitioner and the Disciplinary Authority (respondent No. 2) has rightly imposed minor penalty, but the Disciplinary Authority while imposing minor penalty upon the petitioner, has also passed the order regarding dis-entitlement of the petitioner to full salary during her suspension period, which does not fall under the ambit of Circular of State Government and Rule 54-B of Fundamental Rules.

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As such looking to the facts and circumstance of the case and looking to the Circular dated 23.11.2010 (Annexure P/11) of State Government, this petition is partly allowed. While maintaining the punishment part imposed upon the petitioner, the impugned orders dated 02.06.2014 (Annexure P/1) & 16.04.2013 (Annexure P/8) passed by Disciplinary Authority (Respondent No. 2 herein) and the Appellate Authority (Respondent No. 3 herein), so far as they relate to non-payment of full salary to the petitioner for the period of suspension, are hereby set aside and the respondents are directed

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to pay full salary of suspension period from 07.05.2010 to 20.12.2011 to the petitioner. This exercise must be completed within 60 days from the date of receipt of copy of this order.

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Sd/-

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Digitally signed by AMIT PATEL Date: 2025.01.07 04:21:38 +0530

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(Rajani Dubey)

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JUDGE

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AMIT PATEL

Nirupa Kumar v. State Of Chhattisgarh And Ors.

Case brief

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Nirupa Kumar v. State Of Chhattisgarh And Ors.

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