Allowed

Smt. Prema Rajeswari v. High Court of judicature at Hyderabad

Telangana HC1 Apr 2022WP/41481/2016

Case brief

AI extract

What is this about?

The High Court allowed multiple writ petitions challenging an order that denied claim for pay and allowances for a suspension period. Finding that the impugned order was passed without an opportunity of hearing, the Court set aside the rejection of the claims under Fundamental Rule 54-B while directing a proper notice. Recovery proceedings initiated based on the flawed suspension accounting were a

What did the court decide?

The impugned orders denying pay, allowances, and treating suspension as non-service were set aside; a notice under Fundamental Rule 54-B was permitted; recovery proceedings quashed.

Smt. Prema Rajeswari Vs High Court of… — Pension and Retirement Benefits | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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FRIDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI

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WRIT PETITION Nos.709 ot 2017 and 41156 & 41481 of 2016

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WRIT PETITION NO: 709 OF 2017

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Between:

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Pingle Vijender, S/o. Late P.Krishna Reddy, aged 60 years, R/o Villa No.57, Anthem villas, Gundla Pochampally, Medchal District.

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K.Ajitha'Simha Rao, S/o. K. Ramachandra Rao, Aged 55 years, Vlll Additional District Judge, Miryalaguda, Nalgonda District.

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...PETITIONERS

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AND

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High Court of Judicature at Hyderabad, For the State of Telangana & Andhra Pradesh, Hyderabad, Represented by Registrar (Vigilance) ,rO"rr?.1;[TTTONDENT

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Petition under Article 226 ol lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an order or direction more particularly one in the nature of Writ of Certiorari calling for records of the respondent pertaining to order in ROC No.1032/2010-Vigilance Cell dated 22.08.2016 denying to treat the suspension period from 28.08.2010 to 12.03.2013 as spent on duty and to accord permission to claim remaining 50% and 75^o/. of pay, Dearness Allowances, House Rent Allowances and other allowances as per rules including Travelling Allowances and Dearness Allowances for petitioners attendance in connection with enquiry proceedings at Hyderabad on various dates as arbitrary, unjust and in violation of rule 54-B of Fundamental Rules, Articles 14, 1 9 and 2'1 of the Constitution of lndia and consequently set aside the same and further direct the respondent to grant the said arrears of pay and allowances.

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t'.

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WPMP. NO: 789 OF 2^t17

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Petition under I ection 151 CPC^praying that^{in the circumst:tnces statedin} the affidavit filed in r upport of the^{petition,the High Court may be pleasedto} suspend the^proceed ngs dated 22.08.2016^{issuedby the Respondentpending} disposal of the Writ P, tition.

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Gounsel for the Petiti )ners: SRl. V.N. ANAGANI

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Counsel for the Resp )ndent: SRI SWAROOP OORILLA^{(SC FOR'fSHC)}

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WRIT PETITION NO: 41156 OF 2016

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Betwee n:

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Sri Shaik Razak Uz 1ama, Son of Late Abdul^Hannan, llnd Adrlitional Dist. & Sessions Judge, Sury:^pet, Nalagonda District. ..PETITIONER

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AND

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High Court of Judicatu e at Hyderabad, Forthe State ofTelangana & State of Andhra Pradesh, Hyde 'abad, Represented by its Registra( Vigilance), Hyderabad.

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...IlESPONDENT Petition under \rticle 226 of the Constitution of lndia^pray ng that in the circumstances stated in the affidavit filed therewith, the High Sourt may be pleased to issue a W it, Order, Orders or Directions more parlicularly one in the nature of Writ of Mz ndamus, declaring the order of the Respondent in ROC No.1 032/201 0-Vigilen :e Cell DT:- 22-08-2016 denying to treat tlle suspension period from 28-08-20' O to 12-03-2013 as duty period and to accor(l^permission to claim remaining 50% and 25o/o of pay, DA, HRA and other allolvances as per rules including TA nd DA for my attendance in connection with enquiry proceedings at Hyder rbad on various dates as arbitrary, unjust an(l in violation of Article 14,19,21 of the Constitution of lndia and consequently set as ide the same. WPMP. NO: 50696 OI 2016

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Petition under { ection 151 CPC praying that in the circumsternces stated in the affidavit filed in r Jpport of the petition, the High Court may be pleased to suspend the proceedi rgs in ROC No. 33/2016-81 Dli 21-09-2016 issued by the Respondent, pending iisposal of the main writ petition. Counsel for the Petiti rner: SRl. DEEPAK MISRA

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Counsel for the Resp rndent: SWAROOP OORILLA (SC FOR TSH())

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WRIT PETITION NO:41481 OF 2016

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Between:

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Smt. Prema Rajeswari, Wife of Shaik Razak Uz Zama, Vl Additional Dist. & Sessions Judge Cum Family Judge, Nalagonda District

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...PETITIONER

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AND

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High Court of^judicature at Hyderabad, For the State of Telangana & State of Andhra Pradesh, Hyderabad, Represented by its Registrar( Vigilance), Hyderabad.

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...RESPONDENT

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Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order, Orders or Directions more particularly one in the nature of Writ of Mandamus, declaring the order of the Respondent in ROC No. 10321201}-Yigilence Cell DT:- 22-O8-2O16 denying to treat the suspension^period from 28-08-2010 to 12-03-2013 as duty^period and to accord^permission to claim remaining 50% and 25% of pay, DA, HRA and other allowances as^per rules including TA and DA for my attendance in connection with enquiry proceedings at Hyderabad on various dates as arbitrary, unjust and in violation of Article 14,19,21 of the Constitution of lndia and consequently set aside the same. WPMP. NO: 51109 OF 2016

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in supiort of the petition, the High Court may be pleased suspend the^proceedings in ROC No.89B/2016-81 Dt- 22-09-2016 issued by the Respondent, pending disposal of the main writ petition.

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Counsel for the Petitioner: SRl. DEEPAK MISRA

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Counsel for the Respondent: SRI SWAROOP OORILLA (SC FOR TSHC)

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The Court made the following: COMMON ORDER

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THE HON'BLI THE CHIEF JUSTICE SATISH CHANDRA S,IARMA AND

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THE HOIVBLE SRI JUSTICE ABHINAND KUMAR SHA'/ILI

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w.P.No :.7O9 of 2Ol7 and 41156 & 41481 ol'2016

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COMMON OI IDER, fp.. tl''. ron'bte the chief Justice sansh chondra shannd./

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Regard being had to the controversy involverl in the aforesaid cas es, they were heard together and are being decided by a commor , order.

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The f Lcts of W.P.No.709 of 2077 are reproJuced as under:-

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The 6 :titioners before this Court have filed th is present writ petitio r claiming pay and allowances for the period they were under suspension.

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The rndisputed facts of the reveal that the petitioners were subjr 3ted to disciplinary proceedings, they u'ere placed under su ipension and linally an order was passed on 11.11.2O1 - dropping the disciplinary proceeclings. The petitionerr have prayed for the following relief:-

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"This lon'lc1e Court may be pleased to issue an or,ler or direct )n more particularly one in the nature of V/dt of Certic ari calling for records of the respondent pertaitring to order in ROC No lO32 /2OlO Vigilance Cell dated '22.O3.2016 denyi rg to treat the suspension period from 28.08.2010 to 12.03 2013 as spent on duty and to accord permission to claim rema ring 507o and 7 5o/o of pay, Dearness Allowances. House Rent Allowances and other allowances as per rules including Travt lling Allowances and Dearness Allo$,ances for petitioners

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attendance in connection with enquiry proceedings at Hyderabad on various dates as arbitrary, unjust and in violation of rule 54-B of Fundamental Rules, Articles 14, 19 and 21 of the Constitution of India and consequentLy set aside the same and further direct the respondent to grant the said arrears of pay and allowances and be pleased to pass such other order or orders as deem fit and proper in the circumstances of the case."

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The respondents have passed order dated 22.08.2016 rejecting the claims of the petitioners.

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Learned counsel for the petitioners has straightaway drawn'^-the attention of this Court towards an order dated 21.06.2018 passed by a Division Bench of the unified High Court for the States of Telangana and Andhra Pradesh in W.P.No.42239 of 2017.

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The order passed by the Division Bench in paragraph Nos.14 to 23 is reproduced as under:-

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Sub-rule (3) of Fundamental Rule 54-B makes it incumbent upon the authority competent to order reinstatement, to order full pay and allowances for the period of suspension, if the competent authority was of the opinion that the suspension was whoJ.ly unjustihed. Subrules⁽³⁾ and⁽⁴⁾ of Fundamental Rule 54-B read as follows:

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54-8(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 servaat had been

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dela1 :d due to reasons directly attributable to th(i Gove nment servant, it may, after giving him arr oppo tunity to make his representation within sixtt' days from the date on which the communication in this regar 1 is served on him and after considering th,r rept sentation, if any, submitted by him, direct, fo: reasr ns to be recorded in writing, that the Government servr nt shall be paid for the period of such delay onl;z sucb amount (not being the whole) of such pay antl allov ances as it may determine.

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(4) I r a case falling under sub-rule (3) the period cf susg:nsion shall be treated as a period spent on dutr' for a I purposes."

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-.,15^{In I t. GopalkrishaaNaidu v. The State of M.P. (AIR t968SC} 2401, the I upreme Court analyzed the scope of Fundamental Rule 54 (Central F :les), which are in pai mateial with Fundamental Rule 54-B of t re A.P. Fundamental Rules. The Court pointei out in paragraph 6 of the report that the authority competent to pass an order sho' .ld form a opinion as to whether the delinquent rvas fully exonerate( or not and as to whether the suspension war; wholly unjustifre< or not. In paragraph-7 of the report, it was indi:ated by the Supre ne Court that the very nature of the function pr:rformed under Fu rdamental Rule 54, implies the duty to act^jrrdicially. Therefore, the Court pointed out in paragraphs-6 & 7 that an opportuni y to show cause against the action, should be affolded.

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In B.D. Gupta v. State of Haryaaa (AlR 1972 S() 24721, another E -.nch of the Supreme Court followed the ratio laid down in Gopalkis .na Naid and held that an order passec under Fundame .tal Rule 54 should be after an objective cons deration and assel sment of all relevant facts and circumstances, z-nd after giving thr person concerned full opportunity to make out his o.'n case abou r that order.

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In O.P. Gupta v. Union of India (1987) 4 SCC 328, the principles laid down in Gopalkishna Naidu were reiterated and the Court po rted out in paragraph- 17 that the competent lruthority should pz:s a specific order (a) regarding the pay and allo'r ances to

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be paid to the Government servant for the period of his absence from duty; (b) directing whether or not the said period shall be treated as a period spent on duty. In paragraph- 18 the Court emphasized the need to hear the concerned Government servant under Fundamental Rule 54 before any prejudicial order was made. The decision in B.D. Gupta was also cited with approval in O.P. Gupta.

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From the law laid down in.the aforesaid decisions, it is clear that an order passed under sub-rule (3) of Fundamental Rule 54-B is an order vesting a person with civil consequences and that therefore any order prejudicial to that of the employee should be passed only after an opportunity of hearing and on an objective consideration of the material on record about the manner in which the charges were held not proved and about the^{justiflcation} for the suspension.

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A careful look at the order dated 22.0A.2016 would show that except stating that the suspension oI the officer was not wholly unjustified, the order does not reflect the objective consideration of the material on record. The order is also vitiated in as much as no opportunity was given to the petitioner, as per the requirement^of the decision of the Supreme Court cited supra.

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If this is the fate of the order dated 22.08.2016, the subsequent order of the Principal Accountant General dated 07.08.2017 directing recovery of huge amounts, by treating the period as not qualifying sewice, was also without any notice to the petitioner. Therefore, both the orders are liable to be set aside.

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lnsofar as the second order is concerned, we do not know how a recovery could be ordered even after complying with the principles of natural^justice. This is for the reason that the Supreme Court in State of PunJab v. Rafiq Masih (White Washerl^((2015) 4 SCC 334) held that such a recovery is not^possible where the employee^was not at fault.

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In view of the above, the writ petition is allowed and the impugned orders are set aside. It will be open to the respondents, to issue an appropriate notice under Fundamental Rule 54-B insofar as the treatment of the period of suspension is concerned with reference

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)

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to the p inciples laid down in the aforesaid cases and pass an order after prr viding an opportunity to the petitioner. But insofar as the second order is concerned, no such action can be initiated There shall be no order as to costs.

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I s a sequel, pending miscellaneous petitions, if any, shall stand cl sed.

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In tl e present case also, no opportunity was granted to the petitio lers while passing the impugned order. No reason has been ; .ssigned for not granting salary for the pt:riod spent under sus' rension.

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Ther :fore, the writ petitions are allowed and the impugned )rders are set aside. It will certainly be open for the responden .s to issue appropriate notice under Fu ndamental Rule 54-B insofar as the treatment of the period of r;uspension is concern :d and pass orders after providing an opportunity to the petiti )ners, keeping in view the aforesaid judgment delivered t y the Division Bench.

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Pen< ing miscellaneous applications, if any, s;hall stand closed. Tt sre shall be no order as to costs.

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That Rule Nisi h. s been^{made absoluteasabove.} witness the Hon 3le the chief^{Justice sATlsHCHANDRA SHARMA, o. this Friday,the} First day of April,^Two T^{rousand and Twenty Two.}

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SD/.'I .TIRUMALA DEVI ASSrS'TANIREGISTRAR //TRUE COPY, i 1l'

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S ECTION OFFICER

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