Desh Raj Bhatia vs The State of H.P. and Others

Chet Ram Thakur, J.—The Petitioner, who was working as a clerk in the Medical Department, has prayed for quashing Annexure K dated 7-4-1973, whereby he was compulsorily retired from service with effect form 31-12-1968.

The Petitioner had joined service in the erstwhile Bilaspur State in the Medical Department. On 29th August, 1961 he was placed under suspension with effect from 18th July, 1961 for allegedly having embezzled Government money while performing the duties of the cashier. Five cases were registered u/s 409 I.P.C. and he was found guilty and convicted under the aforesaid section by the Magistrate 1st Class on 31st December, 1968, but on appeal the Additional Sessions Judge, Bilaspur, acquitted him of all the charges by his order, dated 8th July, 1970.

During the period of his suspension, the Himachal Pradesh Government revised the pay scales and he was fixed at Rs.170/-on 13-8-1968. However, he was not paid his salary but was only granted suspension allowance. After his acquittal, Respondent 3 on 22nd January, 1971, issued an order reinstating the Petitioner and it was also mentioned therein that the periodical increment certificates with effect from 1961 were being attached therewith for fixation order of the Petitioner in the revised pay scale, and further directions were issued for preparation of the arrear bill so as to pay the salary and the arrears to him. Before the reinstatement orders were issued the Petitioner on 31st December, 1970, attained the age of superannuation and as such retired from service. Before retirement he had submitted a joining report on 3rd November, 1970. According to the Petitioner although he had been reinstated yet till the filing of the petition no arrears had been paid to him from 18-7-1961 to 31-12-1970. He made several representations for payment of his arrears and for finalisation of his pension case but no action was taken thereon. On 11th December, 1970, he was informed by the Respondents that since he has been relieved from his duties because of attainment of age of superannuation the pension papers were being prepared shortly after the Government issues the reinstatement order. But, thereafter nothing has been heard. Since the Petitioner has not been paid his arrears, etc. despite several representations he filed this writ petition. It was also contended by him that under Fundamental Rule, 54, it was the bounden duty of the Respondents to have passed some order regarding the pay allowances of the Petitioner for the period of his suspension ending with the date of his retirement and whether or not the said period shall be treated as period spent on duty. Further that the Government had to record an opinion as to whether the Petitioner had been fully exonerated or not, or, as to whether his suspension was wholly unjustified or not. But, no such opinion had been recorded. According to the Petitioner he has been fully exonerated and his suspension was wholly unjustified. After the petition came up for hearing on 9th March, 1973, time was granted to the Advocate-General to enable the competent authority to pass suitable orders in respect of the payment of arrears of pay and allowances, etc. as required under Fundamental Rule 54 (i)(a)(b). Thereafter the Respondents passed the impugned order, Annexure K.

The Petitioner has challenged the order on the grounds that the Lt. Governor of Himachal Pradesh had declare the D.M.O. (Civil Surgeon) to be the appointing as also the competent authority to impose the penalty, and Respondent 2 had been declared to be an appellate authority. After the reinstatement order passed by Respondent 3, no appeal had been laid to the Director, Health Services, but he suo motu passed the impugned order which was without jurisdiction. This order was passed after three years of the order of acquittal. The order casts a stigma on the Petitioner, in as much as it states that the retention of the Petitioner in public service will be undesirable. No opportunity was afforded to the Petitioner before passing the impugned order. Further, the order retiring him from service retrospectively is bad in law. After his acquittal by the court of Additional Sessions Judge he actually joined service in September, 1970 and continued to discharge his duties till he attained the age of superannuation on 31st December, 1970 and as such the order was quite unwarranted. Under F.R. 54, it is only the authority competent to order reinstatement which could pass a specific order in respect of pay and allowances and the competent authority qua the Petitioner was only Respondent 3. Therefore, the order with regard to pay and allowances as also consequential orders passed by Respondent 3 are totally unwarranted. The Petitioner, therefore, made a prayer for quasning the order, Annexure K, and also prayed that the Respondents be directed to finalize the pension case of the Petitioner.

It was averred by the Respondents on the affidavit of Dr. Krishan Swaroop, the then Director, Health Services, that no writ for recovery of pay and allowances was maintainable. Further that the Petitioner had not been found to have been acquitted honorably and that his suspension was wholly justified. Respondent 2 being the head of the Department was fully competent to pass the impugned order as his reinstatement was not correct. Further, his acquittal also was not justified. The appointing authority of the Petitioner, who joined service as early as 1950, was the Chief Commissioner and he was promoted as a Clerk by the Chief Medical Officer, Bilaspur, in 1953. The Director, Health Services, being the Head of the Department was competent to over-rule "and supersede any order passed by his subordinate officer, which was patently wrong. Further, it had been averred that the impugned order had been passed on the basis of the direction of the court. Hence the question of issuing any notice by Respondent 2 to the Petitioner did not arise nor is any opportunity required to be given for an order of compulsory retirement.

The impugned order, Annexure K, was passed on 7-4-1973. By this order not only the Petitioner was compulsorily retired from service with effect from 31-12-1970, on which date he was convicted by the Magistrate 1st Class, Bilaspur, yet an order under F.R. 54 (1)(a)(b) was also passed to the effect that the period of suspension shall not be treated as period spent on duty and he shall not be entitled to any pay and allowances except the subsistence allowance and other allowances already drawn by him. The submission made by the Learned Counsel for the Petitioner firstly is that this order which was passed after a lapse of three years from the date of his acquittal by the Additional Sessions Judge on 8th July, 1970, was bad, inasmuch as no opportunity had been given to the Petitioner before passing the impugned order. It was incumbent on the authorities to have afforded him opportunity to show cause why he should not be retired retrospectively and secondly why the period of suspension should not be treated as spent not on duty. To support this he has placed reliance on (1) M. Gopala Krishana Naidu v. State of Madhya Pradesh 1967 S.L.R. (S.C.) 800 , (2) Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, (3) Union of India v. Baij Nath 1972 S.L.R. 3821; Shri B.H. Marwaha v. Union of India and Ors. 1973 (2) S.L.R. 315, (5) S. Natarajan v. The Superintendent of Police Tirunelvili and Ors. 1975 (1) S.L.R. 539; and (6) Shri J.P. Aggarwal, Regional Transport Officer, Dehradun v. State of U.P. through the Secretary Transport Department and Ors. 1973 (1) S.L.R. 194.

It is admitted that the Respondents did not afford any opportunity to the Petitioner before the impugned order was passed and this order purports to have been passed under F.R 54 whereby he was not only retired but his period of suspension was also treated as the period not spent on duty and as such he was not held entitled to any remunerations except the suspension allowance. The order of reinstatement was admittedly made on 22-1-1971. The only reply of the Respondent as contained in para 7 is that the orders of reinstatement were void. Even if the order was void, it was incumbent upon the Respondents to have afforded an opportunity to the Petitioner to show cause why his period of suspension should not be treated as a period not spent on duty. The Petitioner was reinstated, as already stated above, by order, dated 22nd January, 1971, and in that order, as mentioned in para 7 of the petition, it had been mentioned that the periodical increment certificates with effect from 1961 were being attached therewith for fixation of the said official in the revised pay scale, and further directions were issued for preparation of the arrears bill of the Petitioner so that the same may be paid to him. Therefore, it leaves no manner of doubt to hold that the authority which was competent to pass the order of reinstatement had already by implication allowed him the full salary for the period of suspension but the same was withdrawn from him by the impugned order, Annexure K, passed after about two years and a few months and in these circumstances it was incumbent upon the Respondent, who was the appellate authority, to issue a show cause notice because this order was not passed in any appeal, rather it was passed suo motu in his capacity as the Head of the Department. Since the Petitioner was adversely affected by this order, he should have been afforded reasonable opportunity of showing cause.

In the case M. Gopala Krishana Naidu (supra) their Lordships of the Supreme Court had the occasion to observe: "It is true that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Clause 2 or Clause 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the Government servant adversely if it is one made under els. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if any opportunity to show cause against the action proposed is not afforded, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice". F.R. 54, as it was at the time when the Petitioner was suspension read as:

(1) When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order:

(a) Regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty; and

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

(2) Where the authority mentioned in Sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.

In the instant case, the authority found that the acquittal of the Petitioner by the additional Sessions Judge was not honourable so as to hold that the suspension was unjustified and entitled the Petitioner to claim full salary and allowances for the suspension period. There is no doubt that there is no express provision made for a show cause notice to be issued to the employee by the concerned authority before passing an adverse order, but, as held in this authority, the rule casts a duty on the authority by implication and especially so when the employee is adversely affected by the order and that too after a lapse of over two years of his reinstatement by the competent authority. Therefore, this order having been admittedly passed without an opportunity to the Petitioner is bad in law.

Devendra Pratap Narain Rai Sharma (supra) is not applicable to the facts of the present case.

Union of India v. Baij Math; and Shri B.H. Marwaha v. Union of India (supra) are based on M. Gopala Krishna Maidu (supra).

S. Matarajan v. The Superintendent of Police (supra) also lays down the same principle that under Rule 54(2) and 54(3) where a person is entitled to get relief for suspension period and further as to whether on finding that the Government servant is not completely exonerated, the fact so recorded must be made only after an opportunity is given to him which is required by the principles of natural justice.

That being so the order passed by the authority holding that he was not fully exonerated and as such suspension period was justified and that he was not entitled to any salary for the suspension period except the subsistence allowance is wholly bad in law because the same has been passed in violation of the principles of natural justice.

The second argument raised is that the order has been passed retrospectively. He was acquitted by the Additional Sessions Judge on 8th July, 1970, and he submitted his joining report in September, 1970, as would be apparent from Annexure C. He continued to work till he attained the age of superannuation on 12th December, 1970. It is no doubt true that the reinstatement order, Annexure B to the petition was passed by the Civil Surgeon (D.M.O.) Bilaspur in whose office the Petitioner was working as a clerk-cum-cashier only on 22nd January, 1971. Respondent 2, who is the Director, Health Services, and is an appellate authority of the Petitioner passed the impugned order on 7-4-1973 suo motu retiring the Petitioner from service with effect from 31-12-1968. This order retiring the Petitioner with effect from 31-12-1968 is quite unwarranted, inasmuch as the Petitioner had filed an appeal to be Sessions Judge which was allowed and he was exonerated. If this order had been passed immediately after the order of conviction and before any appeal had been filed then there could be some justification, but the order has been passed three years after the acquittal of the Petitioner and after he had actually submitted his joining report and continued to work till the date of his superannuation, and again after the order of reinstatement whereby he was allowed entire salary and his pay was also ordered to be fixed by the competent authority. Therefore, this order retiring the Petitioner with effect from 31-12-1968 cannot be held to be valid. In this behalf, I mayquote Bhagirathi Patnaik v. State of Orissa and Anr. 1973 (2) S.L.R. 561 in which it has been held that the order of termination retrospectively is bad.

In Inder Jit Singh Kang v. Union of India etc. 1975 ILR HP 161 also it has been held: "The Indian Forest Service (Cadre) Rules, under which the order has apparently been made, do not in terms envisage the making of an order having retrospective operation. An order can be made with retrospective effect only if the statutory provision conferring such power envisages such an order". In the instant case, there is nothing in F.R. 54, which envisages the passing of an order of retirement with a retrospective date and especially when the Petitioner was permitted to join and he continued to remain in service till the date of his actual superannuation. His reinstatement although was made a little time after his superannuation yet in effect he was permitted to join and he actually worked and therefore he could not be retired with a retrospective date. Hance this order is wholly unwarranted.

I need not go into the question whether the order casts a stigma on the Petitioner because the case succeeds on the former two grounds. It is also not necessary to notice the case, The State of Assam and Anr. v. Raghava Rajgopalachari 1972 S.L.R. (S.C.) 915 which says that if on reading the judgment and order which acquits a Government servant of criminal offence, it appears to the Government or the Competent Authority that the Government servant has not been fully exonerated of the charges levelled against him, the Government or the Competent Authority would be entitled to come to the conclusion that Clause (b) of Fundamental Rule 54 would apply and not Clause (a). Further that before passing the adverse order by the appellate authority after the lapse of three years of his retirement and two years and three months of the order of his reinstatement by the competent authority the Petitioner was not afforded any opportunity and which was absolutely necessary, this order Annexure K cannot be sustained.

The Petitioner, therefore, is entitled to his pay and allowances for the period of his suspension and in this behalf I am also supported by Burmah Construction Co. Vs. The State of Orissa and Others, in which it has been held: "Order for payment of money can be made under Article 226 to enforce statutory obligation". Therefore, in these circumstances the Petitioner is also held entitled to his salary and allowances even for the suspension period because the order passed without affording him any opportunity is invalid. Moreover, he has been reinstated by the competent authority entitling him to the full pay and allowances and his salary was ordered to be refixed and the periodical increment certificates had been issued as would be apparent from Annexure B.

In view of the above, this petition must be accepted and the same is allowed and the order Annexure K is hereby quashed and the Petitioner is held entitled to his pay and allowances for the period of suspension. It is also directed that his pension shall be worked out in accordance with the pay last drawn on the basis of revised pay scale. The Petitioner is also held entitled to costs, assessed at Rs. 200/-.