Allowed

K.Hanumantha Rao, S/ o. Sri Ram Murthy, v. The High Court of Judicature at Hyderabad (for the State

Telangana HC18 Apr 2022WP/8692/2017

Case brief

AI extract

What is this about?

The Telangana High Court allowed a writ petition seeking salary and allowances for suspension periods. Quashing the impugned orders that denied pay and failed to record reasons, the Court held the authorities violated procedural fairness under Fundamental Rule 54-B and mandated a regular process.

What did the court decide?

Impugned orders dated 22.08.2016 and 07.04.2017 were set aside. Respondents directed to issue notice under Fundamental Rule 54-B for fair consideration of salary claims.

K.Hanumantha Rao, S/ o. Sri Ram Murthy, Vs… — Pension and Retirement Benefits | Telangana HC (2022)

¶1

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

¶2

IMONDAY, THE EIGHTEENTH DAY OF APRIL IWO THOUSAND AND TWENTY TWO

¶3

PRESENT

¶4

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

¶5

WRIT PETITION NO: 8692 OF 2017

¶6

Between:

¶7

K.Hanumantha Rao, S/o. Sri Ram Murthy, Age 59^ye ars, working as Senior Xl Addl. Metropolitan Magistrate, Secunderabad, Hyderabad.

¶8

...PETITIONER

¶9

AND

¶10

The High Court of Judicature at Hyderabad^(for the^{State,of Telangana and} for the"State of Andhra Pradesh), Rep by its Registrar^{(Vigilance), Hydelabad.}

¶11

The Registrar, Administration, High Court of Judicature,^{at Hyderabad (for the} State ofTelangana and for the State of^{Andhra Pradesh), Hyderabad.}

¶12

...RESPONDENTS

¶13

Petition under Article 226 of the Constitution^{of lndiapraying that in the} circumstances stated in the affidavit^{filed therewith,the High Court may be} pleased to issue a writ order or direction especially one^{in the nature of writ of} mandamus declaring that:

¶14

a) the orders issued in ROC^{No.1032/201O-VIGILANCECELL} :^{22-8-2016are un.justand therefore lialbe to be set aside.}

¶15

b) declare that^petitioner is entitled^{for regularizationof the suspension} period from 25-8-2010 to 8-3-2013 and also entitled for sanction^{of annual grade} increments for the said Period.

¶16

WPMP. NO: 10771 OF 2017

¶17

Petition under Section 151 CPC^{praying that in the circumstancesstated} in the affidavit filed in support of the^{petition, the HighCourt may be pleased to} expedite the hearing of the writ^{petition at an early date,pendingdisposal of the} Writ Petition

¶18

Counsel for the Petitioner: SRl.^{SRINIVASA RAO MADIRAJU}

¶19

Counsel for the Respondents:^{SRI SWAROOP OORILLA (SC FOR TSHC)}

¶20

The Court made the following:^ORDER

¶21

¶22

TIIE HON'BLE THE CHIEF^{JUSTICESATISH CHANDRA SHARMA} AND

¶23

THE HON'BLE SRI JUSTICE ABHINAND^{KUMAR SHAVILI}

¶24

WRIT PETITION No.8692 of 2Ol7

¶25

ORDER! Per the Hon'ble^{the ChiefJustice SatishCtnndraSholma)}

¶26

Learned counsel for the^{parties have informed this} Court that the controversy^{involved in the present case has} already been adjudicated on^{account of a commonorder} passed by this Court in W.P.No.709 of 2Ol7^{and batch,} dated O1.O4.2O22.

¶27

The common order^passed in^{W.P.No.709 of 2077 and} batch, dated 01.04.2022^{is reproducedas under:-}

¶28

"Regard being had^{to the controversy involvedin} the aforesaid cases, they^{were heard togethera-ndare} being decided by a common^order.

¶29

The facts of W.P.No.7O9 of 2017^{are reproduced} as under:-

¶30

The petitioners before this^{Court have filed this} present writ petition claiming^{pay and allowancesfor the} period they were under suspension

¶31

The undisputed facts of the^{reveal that the} petitioners were subjected to disciplinary^proceedings, they were^placed under^{suspensionand frnallyan order} was passed on I1.11.2014^{droppingthe disciplinary}

E-

proceedings. The petitioners have prayed for the followrng

¶36

relief: -

¶37

"This Hon'ble 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 22.08.20),6 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 7 5y" 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, t9 and 21 of the Constitution oI lndia and consequently set aside the same and further direct the respondent to grant the said arrears o[ pay and allowances and be pleased to pass such other order or orders as deem fit and proper in the circumstances of the case.'

¶38

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

¶39

Learned counsel for the petitioners has straightaway drawn the attention of this Court towards an order dated 21.06.20 18 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.

¶40

The order passed by the Division Bench in

¶41

paragraph Nos. 14 to 23 is reproduced as under:-

¶42

"14. Sub-rule (3) of Fundamental Rule 54-B makes it incumbent upon the authority competent to order reinstatement, to order fuil pay and allowances for the period of suspension, if the competent authority was of the opinion that the suspension was wholly unjustified. Sub- rules (3) and (4) of Fundamental Rule 54-B read as follows:

¶43

5.1-B(3)i Where the authority competent to order reinstatement is of the opinion tlat the suspension was rvholly unjustifled, the Govemment servaJlt shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entided, had he flot been suspended.

¶44

Provided that where such autho.ity is ol t}le opinion that the termination of the proceedings ilrstituted against the Govemmeflt servant had been delayed due to reasons dlrectly attributable

¶45

¶46

¶47

to tJle Govemment sewant, it may,^{alter giving} him an opportunity to make his^{representatlon} within sixty days from the date on which tie communication in this regard is serued^{on him} and after considering the lepresertation, if any, submitted by him, direct, for rcasons to be recorded in writi!8, that the Govemment servant shall be paid for tie period of such delay only such afiount (not being the whole) of such^pay and a.llowances as it may determine. (4) ln a case falling under sub-rule (3) the period of

¶48

suspension shall be tieated as a^{period spent on} duty for all purposes.'

¶49

¶50

In M. Gopalkrishna Naldu v, The State of^M.P. (AIR 1968 SC 240), the Supreme Court analyzed the scope of Fundamental Rule 54^(Central Rules),^whichare io pari matertal with Fundamental Rule 54-B^{of theA.P.} Fundamental Rules. The Court pointed out in^paragraph 6 of the report that the authority competent to^{pass an} order should form a opinion as to whether the delinquent rvas fully exonerated or not and as to whether the suspension was wholly unjustihed or not. In^paragraph-7 oI the report, it was indicated by the Supreme Court^that the very nature of the function^{performed under} Fundamental Rule 54, implies the duty to act^judicially. Therefore, the Court^pointed out in^paragraphs-6 &⁷ that an opportunity to shorv cause against the^action, should be afforded.

¶51

In B.D. Gupta v. State of Haryana (AIR 1972 SC 2472j, a\other Bench of the Supreme Court folloq'ed^the ratio laid dorvn in Gopalknshna Naid and held that^an order passed under Fundamental Rule 54^{should be alter} an objective consideration and assessment of^{all relevant} facts and circumstances, and after^giving the^person concerned full opportunity to make out his own^case about that order.

¶52

In O.P. Gupta v. Uaion of Indta⁽¹⁹⁸⁷⁾ 4 SCC 328, the^principles laid down in GopaLkrtshna^{Naidu were} reiterated and the Court^pointed out in^paragraph-17 that the competent authority should^pass a specific^order (a) regarding the pay and allowances to be paid to the Govemment servant for the^period of his^absencefrom duty; (b) directing whether or not the said^{period shallbe} treated as a^period spent on duty. In^{paragraph-18the} Court emphasized t}le need to hear the^concerned Government servant under Fundamental Rule 54 before any prejudicial order was made. The decisionⁱⁿ B.D. Gupto was also cited with approvalⁱⁿ O.P. Gupta.

¶53

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^personwith civil consequences and that therefore any order prejudicial to that oi the employee should be passed only after an opportunity of hearing and on an objective

¶54

¶55

-'::.--

¶56

,-s.{-

¶57

*r F:ars.:--

¶58

-t

¶59

consideration^{of thematerial on recordabout the manner} ii *rri"}r-irl" "t "tges were held^{notprovedand aboutthe} justification for the susPension

¶60

A careful^{look at the order dated 22'Oa'2O16-} ""il'J";th;a except stating^{that the susPension of} iirl"in""i."not whollvuniuitified,the order does not ."n"",'G" "U:"",i"e^{considirationoi the materialon} ;;.;;. il"^{order is alsovitiated in as muchas no} ;;;;; was given to^{the petidoner'} T^ner .th9 ,aq,.rita-"ttt^{of the decision of the Supreme counclreo} supra.

¶61

If this is^{the fate of the orderdated22'08'2016'} of t he Principal^{Accountant General} J"iJ ,h" ";;;;;;;;,;;;er oz.oa^{zorz directingrecovery of hugeamounts',by} ireating the^{period as nor qualifyingservice'wasalso} *i,n"ui ^nu notice to^{the petitioner' Therefore' bot'h the} orders are iitbl"^{to b" set aside'}

¶62

Insofar^{as the secondorderis concemed' wedo} not know^{how a recoverycould be ordered even after} i,i. :;;,;;;^'l#""r'"."on *itr, ir,"^{thai p'intipr"s the Supreme of natural courr jusrice in state rhis ofis-} i1r"iJ ". *nn^Masth lwhi'te^{qlasher)((2015)4 SCC} is+j r-,"ri',i"i^{J"lh u t"to"ry is not possible where the} employee^{was notat fauLt}

¶63

la^{viewof the above, the writ Petitio!} -is^allowed .nJit " l-prg,,"d^{ordersare set aside'It will be opento} ir,"- ,".oond"i,a,^{1o issue an appropriatc notice under} iundamental^{Rulc5a-B insofaras the treatmentol tne} "..i"J^{.r susDensionis concernedwith referenceto rhe} I.'".l"r""lrii down in^{rhe aforesaid cases and pass an} ;;;;;';ii;t';;;,'ding^{an opportunitv to the petitioner'But} insofa,^{as ihesecond order is concerned' no such acuon} can initiated.^{There shall be no orderasto costs'}

¶64

As a^{sequel, pending miscellaneous petitions'if} any, shall^standclosed'

¶65

In the^{presentcase also' no opportunitywas} granted to the^{petitionerswhile passing the impugned} order. No^{reason has been assignedfor not grantinC} sa.lary for^{the period spentunder suspension'}

¶66

Therefore,^{the writ petitionsare allowedandthe} impugned^{ordersale set aside' it will certainly be open} for the respondents^{to issue appropriatenotice under} Fundamenta-l^{Rule 54-B insofar as the treatmentof the} peliod of suspension^{is concerned and pass orders after}

¶67

¶68

V' (

¶69

providiflg an opportunity to the^{petitioners, keeping in} view the aforesaid^{judgment delivered by the Division} Bench.

¶70

Pending miscellaneous applications, if^any,sha11 stand closed. There^sha-ll be^no order^{as to costs."}

¶71

In the light of the aforesaid, the^{present writ petition} also stands allowed. The common order^passedin W.P.No.7O9 of 2017 and batch, dated 01.04.2a22,^shallbe

¶72

applicable mutatis mutandis in^{the presentcase also.}

¶73

Let a copy of the order passed by this^{Court in} W.P.No.709 of 2OL7 and batch, dated 01.04.2022,^{be kept} on record in the Present case.

¶74

The miscellaneous applications^pending, if any,^shall

¶75

stand closed. There shall be no order as to^costs.

¶76

That Rule Nisi has been made absolute as above.

¶77

Witness the Hon'ble the Chief Justice SATISH CHANDRA SHARMA, on

¶78

this Monday, the Eighteenth day of April, Two Thousand and Twenty Two.

¶79

SD/. P.PADMANABHA REDDY ASSISTANI REGISTRAR //TRUE COPY, ( ys

¶80

SECTION OFFICER

¶81

To,

¶82

1 The Registrar (Vigilance), High Court for the State of Telangana, Hyderabad. 2 The Registrar (Administration), High Court for the State of ielangana, Hyderabad. a One CC to Sri Srinivasa Rao Madiraju, Advocate IOPUC] 4 One CC to Sri Swaroop Oorilta (SC FOR TSHC) t-OpUCi Two CD Copies 6 One Spare Copy

¶83

(Afong with a Copy of Order dated 01.04.2022 in W.p.No.709 of 20,t7 and batch) CHR BS

i5'.-.---.jJ..-_

HIGH COURT

DATED:1 810412022

ORDER

W.P.No.8692 of 2017

( ot 1 H E S 14 rc
cJ
1O JUN 2W Ez
*
-k
PATC t{eg

¶91

ALLOWING THE WRIT PETITION WITHOUT COSTS

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA

¶96

AND

¶97

THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

¶98

W.P.Nos.7O9 of 2017 and 41156 & 4L48L of 2o16

¶99

COMMON ORDER : pe.rhe Hon'bte the cluelrusrre sor,sh cna ndla shoma)

¶100

Regard being had to the controversy involved in the aforesaid cases, they were heard together and are being decided by a common order.

¶101

The facts of W.P.No.709 of 2Ol7 are reproduced as under:-

¶102

The petitioners before this Court have fi1ed this present writ petition claiming pay and allowances for the period they were under suspension.

¶103

The undisputed facts of the reveal that the petitioners were subjected to disciplinary proceedings, they were placed under suspension and finally an order was passed on 1 1 . 1 I .2014 dropping the discipiinary proceedings. The petitioners have prayed for the following relief:-

¶104

"This Honble 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 lo32l 2O1O 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 75Vo of pay, Dearness Allowances, House Rent Allowances and other allowances as per rules including Travelling Allowances and Dearness Allowances for petitioners

¶105

¶106

¶107

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."

¶108

The respondents have passed order dated 22.O8.2016 rejecting the claims of the petitioners.

¶109

Learned counsel for the petitioners has straightaway drawn the attention of this Court towards an order dated 2l .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 2077.

¶110

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

¶111

"14. 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 wholly unjustified. Sub- rules (3) and (4) of Fundamental Rule 54-B read as follows:

¶112

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 (g) be paid the ful pay and allowances to which he would have been entitled, had he not been suspended.

¶113

Provided that where such authority is of the opinion that the termination of the proceedings

¶114

¶115

instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty 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.

¶116

(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for a1l purposes."

¶117

In M. Gopalkrlshna Naidu v. The State of M.p. (AIR 196g SC 24O), lhe Supreme Court analyzed the scope of Fundamentat Rule 54 (Central Rules), which are tn pai mateial with Fundamental Rule 54-B of the A.P. Fundamental Rules. The Court pointed out in paragraph 6 of the report that the authority competent to pass an order should form a opinion as to whether the delinquent was fully exonerated or not and as to whether the suspension was wholly unjustified or not. In paragraph-7 of the report, it was indicated by the Supreme Court that the very nature of the function performed under Fundamental Rule 54, implies the duty to act judicially. Therefore, the Court pointed out in paragraphs_6 & 7 that an opportunity to show cause against the action, should be afforded.

¶118

In B.D. Gupta v. State of Haryana (AIR 1972 SC 2472), another Bench of the Supreme Court followed the ratio laid down in Gopalkishna Naid and held that an order passed under Fundamental Rule 54 should be after an objective consideration and assessment of all relevant facts and circumstances, and after giving the person concerned full opportunity to make out his own case about that order.

¶119

In O.P, Gupta v. Union of India (1987) 4 SCC 328, the principles laid down in Gopatkrishna Naidu were reiterated and the Court pointed out in paragraph-l7 that the competent authority

¶120

¶121

should^pass a specific order^{(a) regarding the pay and allowancesto} be paid to the Government servant^{for the period of his absencefrom} duty; (b) directing whether or not the^{said periodsha-llbe treatedas 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 madeThe decision in} B.D. Gupta was also cited with approval in O.P. Gupta.

¶122

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^chargeswere held not proved and about the^{justification} for the^suspension.

¶123

A careful look at the order dated 22.O8.2016 would show that except stating that the suspension of the oflicer ivas not wholly unjustifred, 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.

¶124

If this is the fate of the order dated 22.08.2016, the subsequent order of the Principal Accountant General dated O7.OA.2O|7 directing recovery of huge amounts, by treating the period as not qualifying service, was also without any notice to the petitioner. Therefore, both the orders are liable to be set aside.

¶125

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

¶126

ln 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

¶127

l\i: --

¶128

the treatment of the period of suspension is concerned with reference to the principles laid down in the aforesaid cases and pass an order after providing 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.

¶129

As a sequel, pending miscellaneous petitions, if any, shall stand closed. "

¶130

In the present case also, no opportunity was granted to the petitioners while passing the impugned order. No reason has been assigned for not granting salary for the period spent under suspension,

¶131

Therefore, the writ petitions are allowed and the impugned orders are set aside. It wili certainly be open for the respondents to issue appropriate notice under Fundamental Rule 54-B insofar as the treatment of the period of suspension is concerned and pass orders after providing an opportunity to the petitioners, keeping in view the aforesaid judgment delivered by the Division Bench.

¶132

Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.

¶133

SATISH CHANDRA SHARMA, CJ

¶134

ABHINAND KUMAR SHAVILI, J

¶135

o1.o4.2022 JSU

K.Hanumantha Rao, S/ o. Sri Ram Murthy, v. The High Court of Judicature at Hyderabad (for the State

Case brief

What is this about?

What did the court decide?

K.Hanumantha Rao, S/ o. Sri Ram Murthy, v. The High Court of Judicature at Hyderabad (for the State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt, Ganamalla Kalavathi, Vs M/s.Singareni Collieries Company Limited

Saini Satish Kumar, Bhongir Dist Vs Prl Secy, Panchayat Raj Dept., Hyd and 9 Ot

Ch.Prakash Rao, Vs Principal Chief Conservator of Forest and

Anugu Rahul Kumar Reddy, Rr Dist Vs Chief Secretary, State of Telangana, Hyd and 3 Others

P Renukadevi, R.R.Dist Vs the Ap Social Welfare Residential Educ. Ins. Society, Hyd.

Dr. C. Siva Leela Vs State of Andhra Pradesh