Allowed

Chandradhar Das v. the Registrar of Coop. Society and Ors.

Gauhati HC23 Nov 2021WP(C)/3429/2014

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging suspension orders and denial of pension. The court directed the authorities to regularize suspension, treat the period as duty, process pension benefits with relaxation of service rules, and pay interest on delayed pension.

What did the court decide?

The writ petition allowed. Directs Cooperation Department to regularize suspension, treat suspension period as duty, submit pension papers for payment with relaxation of rules, and determine interest

Chandradhar Das Vs the Registrar of Coop… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010012202014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3429/2014

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CHANDRADHAR DAS

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S/O LT. TAJURAM DAS EX-JUNIOR INSPECTOR/AUDITOR, CO-OPERATIVE SOCIETY, ASSAM, SINCE RETIRED OFFICE OF THE ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETY, ASSAM, KHANAPARA, GUWAHATI22, R/O SANPARA, P.O. JHAROBARI, P.S. PALASBARI, DIST. KAMRUP RURAL, ASSAM.

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VERSUS

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THE REGISTRAR OF COOP. SOCIETY and ORS. ASSAM,, KHANAPARA, GUWAHATI-22, DIST. KAMRUP METRO, ASSAM.

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2:THE ADDITIONAL REGISTRAR

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CO-OPERATIVE SOCIETY ASSAM KHANAPARA GUWAHATI-22.

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3:THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETY KHANAPARA GUWAHATI-22 ASSAM.

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4:THE COMMISSIONER and SECRETARY

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FINANCE GOVT.OF ASSAM DISPUR GUWAHATI-6.

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5:DELETED VIDE H.C.O DATED 18.07.2014

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6:THE PRINCIPAL ACCOUNTS GENERAL A and E ASSAM BELTOLA GUWAHATI-29 ASSAM

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Advocate for the Petitioner : MRR CHAKRABORTY

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Advocate for the Respondent : MRR K NEOG

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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JUDGMENT & ORDER(CAV)

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Date : 23-11-2021

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Date of hearing : 10.11.2021

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Heard Mr. R. Chakraborty , learned counsel for the petitioner . Also heard Ms. M. D.

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Bora, learned Standing counsel Cooperative department, Mr. N. Dhar, learned Standing Counsel A.G and Mr. J.K.Goswami, learned Standing Counsel Pension and Mr. B. Gogoi, learned counsel Finance Department for all the respondents.

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By way of this writ petition, the petitioner challenges the order of suspension bearing No. CE(P) 470/94/182 dated 2.6.2008 and also prays for balance salary and increment as admissible with effect from 27.4.2005(first suspension) to 2.8.2005 (reinstatement) and w.e.f. 28.3.2007(second suspension) to 28.8.2007(reinstatement). The petitioner also prays

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for a direction for release of his pensionary benefit including DCRG. The facts of the case of the petitioner are as follows:

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(i) The petitioner was working as non cadre Secretary in Rani Bholagaon Samabai Samiti and the service of the petitioner was encadred as cadre Secretary vide order dated 5.11.1993.

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(ii) On 27.4.2005 he was put under suspension and subsequently he was reinstated on 2.8.2005. Subsequently the petitioner was again put under suspension again on 28.3.2007 by Registrar of Cooperative Society , Assam for alleged misappropriation of Rs 90,000/-. After filing of show cause reply. The petitioner was reinstated in service on 29.8.2007.

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(iii) Such suspension was challenged before this court and according to the petitioner the recovery as directed was stayed. Subsequently the petitioner was once again suspended on 2.6.2008. During the period of suspension the petitioner retired on superannuation on 31.5.2010 which was communicated to the petitioner vide communication 31.5.2010(Annexure-5).

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(iv) According to the petitioner he received subsistence alongwith @ 50% w.e.f. 27.4.2005 till his reinstatement on 2.8.2005 and thereafter at the same rate w.e.f. 28.3.2007 to 28.8.2007. Thereafter he received subsistence allowance @ 75% till his date of superannuation.

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(v) Though the petitioner prayed before the authority for release of his pensionary benefits and the salaries during the period of suspension nothing was forthcoming . It is also the case of the petitioner that the petitioner has not been punished in any departmental proceeding nor any departmental proceeding was concluded. Therefore he is entitled for regularisation of his period of suspension and payment of his pensionary benefits.

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(vi) Subsequently, vide communication dated 18.9.2014 bearing No. CE (P) 470-94-258

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issued by the Registrar of Cooperative Societies, Assam addressed to the Accountant General(A & E) the former intimated the later interalia, amongst others that the petitioner has not completed 20 years of service and was also not confirmed in any post. But he was provincialised w.e.f. 22.9.1994. The petitioner claims that he is entitled for the pensionary benefits under the policy decision taken by the State authorities even he as not completed the 20 years of service. Learned counsel for the petitioner submits that since his service has been provincialised, ten years continuous service will entitled him for pensionary benefits.

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From the affidavit in opposition, it is crystallized that a show cause was issued vide communication dated 2^nd June 2005, wherein no allegation of misappropriation was leveled against the petitioner. Petitioner filed reply to such show cause and the authority being satisfied with such reply vide communication dated 2.8.2005, was pleased to reinstate him in service with a caution to be careful in future . Subsequently, as recorded hereinabove, the petitioner was put under suspension for the second time and this time with allegation of misappropriation of public fund . Show cause dtd 11.5.2007 was issued with three charges, with allegation of misappropriation funds. Subsequently, the suspension order dated 28.3.2007 was vacated and the petitioner was reinstated. Thereafter, yet another show cause notice was issued on 11.6.2008 with a single charge of misappropriation of public fund. It is discernible from the said show cause that an order of recovery was also issued. The petitioner contends that such recovery was stayed by this Court by order dated 11.8.2008 passed in WP(C) No. 3304/2008. According to the respondents such writ petition was dismissed for non prosecution subsequently.

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The respondents alleges involvement of the petitioner in misappropriation of public

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fund and stresses on the fact of multiple suspensions of the petitioner but there is no statement whatsoever that the departmental proceeding were concluded or that any punishment was inflicted upon the petitioner subsequent to any departmental proceeding during his service period or after the superannuation of the petitioner. There is no statement that the petitioner’s pensionary benefit has been withheld by virtue of any action under Rule 21 of the Assam Services (Pension) Rules‘ 1969. Rather State respondent in their affidavit at paragraph 28 stated that subsistence allowance was paid and provisional pension could not be processed earlier for want of submission of required paper by the petitioner.

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By way of a reply affidavit, the petitioner brings the documents on record a communication dated 17.5.2018 authored by the i/C Registrar of Co-operative Societies Assam and addressed to the Additional Chief Secretary to the Govt. of Assam, Cooperation Department. The said communication reflects that in similar circumstances, where the qualifying period for entitlement pensionry benefits fell short, the Government granted pensionary benefits by confirming the service of those persons and accordingly vide said communication dtd 17.5.2018 prayer was made to give a similar effect to the petitioner. Such communication has not been denied by the respondent authorities.

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During the court’s hearing the learned counsel for the Cooperation department submitted a document being No. CE(P) 61-94-155 dated 3.1.2020. As per the said communication the Accountant General (A&E) has returned the pension file of five persons including the petitioner for want of bench mark qualifying service of 20 years. The view of the Cooperation department is as expressed in the said communication is that as the service

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of petitioners and similarly situated cadre Secretaries were provincialised vide notification No. COOP:118/90/Pt.I/36 dated 22.9.1994, these persons are entitled for pensionary benefit and request was made to the department of Pension and Public grievance to pass necessary order for relaxation of condition laid under Clause 5 of the Finance Department OM No. FPN.T8/83/40 dated 10.8.1983 and other provisions of Pension Rules, 1969( a copy of such document is kept as a part of record and marked as ‘X’ ).

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The counsel for the Accountant General(A&E) also submitted a communication addressed to him with certain documents whereunder it was intimated that the pension papers of the petitioner was returned vide letter dated 9.10.2014 for curing the defects and such pension papers has not yet been resubmitted in the office. The learned counsel for the Accountant General (A&E) submits that he has instruction to state that as and when the papers are submitted curing the defects the pension will be paid within a period of one month. (A copy of the said communication addressed to the learned counsel for the Accountant General(A&E) is also kept on record marking as ‘Y).

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From the aforesaid facts and circumstances none of the respondent now dispute that the petitioner is entitled for his pensionary benefits and that they are working on to give the petitioner his pensionary benefits.

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In such view of the matter, and submissions, it is directed that the respondent Cooperation Department shall resubmit the pension papers of the petitioner before the Accountant General (A&E) within a period of a month from receipt of this order and the petitioner shall submit copy of such order before the Departmental Secretary within a period of 10 days from receipt of certified copy of the present order. Needless to say that the

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petitioner will cooperate in this regard and provide the required documents. Thereafter the petitioner’s benefits shall be paid within a period of three months.

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10 Coming to the issue of regularising of the suspension, there is no dispute regarding the period of suspension of the petitioner and his resultant reinstatement in service twice. However, he superannuated during the period of third suspension. The fact also remains that the departmental proceeding remained inconclusive till date and no punishment was inflicted upon the petitioner.

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There can be hardly any doubt about the fact that no person can be allowed to misappropriate money belonging to any institution, be it public or private. But if the allegation of misappropriation of money is not admitted by the concerned person, then, law would require that the charges be established in accordance with law. It is only when the charges brought against the employee is established in any proceeding recognized by law that the person can be said to be guilty of such misconduct and can be accordingly proceeded against.

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In the present case also, allegations of misappropriation of fund has been made against the petitioner with a demand for recovery of amount allegedly taken by him. But the demand for recovery would not be maintainable unless the allegation is established in an appropriate proceeding. The respondents had initiated a disciplinary proceeding by issuing the show cause notice as stated herein above wherein specific charges were framed. But nothing proceeded thereafter. There is also no cogent explanation on record as to why the disciplinary proceeding has not been concluded till date. This is also not a case of the respondent that pension has been withheld for the reason of pendency of the departmental

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proceeding. It is by now well settled that undue delay in conclusion of disciplinary proceeding would result into serious prejudice to the interest of the Government servant and therefore , could be a valid ground for quashing the charge memo as well as the disciplinary proceeding.

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The Rule 1961 of Assam Services (Pension Rules 1969) provides that time passed under suspension pending enquiry into conducted accounts in full where of conclusion of the enquiry , the Government servant has been fully exonerated or the suspension is held to be wholly unjustified. The said Rule also mandates that the period of suspension does not count unless the authority competent to pass orders under fundamental Rule 54 expressly declares at the time that itself count. FR 54 (B) provides that when a person superannuates while under suspension, the competent authority to pass order regarding pay and allowances to be paid the Government servant for a period of suspension and where or not said period shall be treated as period spent on duty .

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In view of above provision of law it is directed to the respondent authority i.e. department of Cooperation department to exercise its power under Rule 61 of the Pension Rules, 1969 read with FR 54 B so far relating to the period of suspension of the petitioner. Such conclusion should be carried out and speaking order shall be passed within a period of two months from the receipt of a copy of this order.

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While taking such decision, the said authority shall take note of the findings and observations made by this court in the instant proceeding. They will also pass an order on the claim of the petitioner regarding nonpayment of subsistence allowance during suspension period.

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Rule 197 A of the Pension Rules provides for interest of delayed payment of pension and gratuity . The procedure for determination of such interest is clearly stipulated in the same Rule i.e. Rule 197 A. The jurisdiction and responsibility to determine such entitlement of interest is vested upon the Secretary of the department. Admittedly the petitioner retired on 31.5.2010 and he has not been paid his pension till date, that too without any order being passed under Rule 21 of the Pension Rules, 1969.

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Therefore the Departmental Secretary of Cooperation department is directed to exercise his power under Rule 197 A(2) of the Pension Rules and pass a speaking order within a period of two months from receipt of this order regarding entitlement of the petitioner of interest on delayed payment, if any.

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With the aforesaid observation and determination, this writ petition is allowed. However no order as to cost.

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JUDGE

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Comparing Assistant

Chandradhar Das v. the Registrar of Coop. Society and Ors.

Case brief

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Chandradhar Das v. the Registrar of Coop. Society and Ors.

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