Alok Das vs State of Arunachal Pradesh and Others

Manisana, J.—This petition under Article 226 of the Constitution of India relates to entitlement of the Petitioner to pay and allowances for the period of suspension pending a criminal prosecution.

Facts,--The Petitioner was placed under suspension under order dated 30.6.78 of the Director of Public Instruction, Arunachal Pradesh, pending a criminal prosecution being GR Case No. 368(S)/78. The Petitioner was discharged and his suspension order was revoked. Thereafter, he was reinstated in his service under order dated 4.7.88 without taking disciplinary proceedings against the Petitioner. On 4.7.88 another order was issued by the Director to the effect that it was proposed that the Petitioner might be paid nothing more than what he had already received as subsistence allowance, and the Petitioner was given a notice to make representation, if so advised, against the proposed action. Thereafter, the Director made an order on 2.8.88 to the effect that the period of suspension would be treated as on duty for the purpose of pension and gratuity only; and that the Petitioner would not be entitled to any other amount than what he had already paid during that period. Being aggrieved by the said order, the Petitioner filed Civil Rule 105/90 in this Court. This Court on 11.4.91, quashed the order directing the Director to consider the matter afresh in accordance with the law. The Director issued notice dated 19.7.91 to the Petitioner directing him to submit representation, if any, within 15 days from the date of receipt of the notice. The Petitioner submitted representation dated 22.7.91. However, the Petitioner has filed this writ petition challenging the proceeding of the Director.

Sub-rule (5) of FR 54-B runs as follows:

In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowance 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 period (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.

In the instruction dated 28.3.59 issued by the Government of India (See Swamy''s Compilation of FRSR), it is stated that when a Government servant who has been suspended pending criminal prosecution is reinstated without taking disciplinary proceeding against him, his pay and allowances for the period of suspension will be regulated under FR 54-B. The present is a case where the Petitioner was reinstated without disciplinary proceedings against him and, therefore, FR 54-B shall be applicable.

Sub-rule (5) of FR 54-B itself contemplates for giving a notice to the Government servant to submit his representation against the quantum proposed. Besides, if an order affects the employee financially, it must be passed 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 see B.D. Gupta v. State of Haryana AIR 1975 SC 2472.

In the present case, in fact, a notice was given. The notice dated 4.7.88 referred to above is in terms of Sub-rule (5) of FR 54-B. It may be noted here that the order dated 2.8.89 was quashed by this Court mainly on the grounds that the order was not a speaking one and that the Director did not make the order after objective consideration and assessment of all relevant facts. This being the position, the petition is disposed of with direction that the Director of public Instruction, Arunachal Pradesh, shall dispose of the matter within a period of two months from the date of receipt of a copy of this judgment. If any document is to be relied on by the Director, he shall furnish copy of such document to the Petitioner, If the Petitioner is still aggrieved by the order of the Director, he may approach the appropriate forum.

With the aforesaid observations and direction, the petition is disposed of. No costs.