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Judgment
By way of the instant appeal, the appellants have assailed an order dated 14th December, 2017, passed by the learned Single Judge deciding SWP No. 2768/2013.
The facts giving rise to the instant appeal are within a narrow compass. It appears that the husband of respondent No.1, namely, Robert Kalyan came to be suspended by an order dated 14th January, 1993 while working as a Cashier in the Municipal Corporation. He was not re-instated even after a lapse of 22 years and no final view was taken with regard to the allegations against the said employee. Mr. Robert Kalyan retired from service on 31st of May, 2006.
On the contention that the appellant herein had failed to pay subsistence allowance to him during the period of suspension, Robert Kalyan filed SWP No. 2066/1999, which was decided by a judgment dated 31st May, 2001 with the direction to the Corporation to pay the subsistence allowance to this employee.
The Vigilance Organization was permitted to file challan against Mr. Robert Kalyan with regard to the allegations leveled against him, if the same had not already been filed.
Mr. Robert Kalyan has contended in the writ petition that the respondents paid only 50% of the subsistence allowance and by an order dated 4th May, 2006 directed the Joint Commissioner (A) of the Municipal Corporation not to release any emolument till the final outcome of the case.
We have been informed that Robert Kalyan expired on 16th April, 2017 during the pendency of SWP No. 2768/2013. Legal representatives were substituted in place of the petitioner-Robert Kalyan in the aforesaid case.
In SWP No. 2768/2013, Rakhil Gill (wife of Robert Kalyan)- respondent No. 1 herein, contended that even after a lapse of 22 years, as per her information, no charge sheet was ever filed in any Court of law as per the direction of the Court to the Vigilance Organization. In these circumstances, in her writ petition, the respondent No. 1 sought a mandamus to the respondents to release the full salary of the deceased employee along with interest @ 12% from the date when he was placed under suspension as also the retiral benefits thereof.
Considering the prayer for grant of his emoluments and prayer for retiral benefits, in the impugned order dated 14th December, 2017, the learned Single Judge extracted the Regulation 108-BB of the J&K Civil Services Regulations, which reads as follows:
"108-BB. Notwithstanding anything contained in sub-rule (8) (i) and (i) above, where a Government servant under suspension dies before disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purpose and his beneficiaries shall be paid full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid."
The mandate of the above Regulation is absolute and the employer has no discretion in the matter.
It is clearly directed that where a Government servant under suspension dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his beneficiaries shall be paid full pay and allowances for that period to which he would have been entitled to, had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
It is not the contention of the appellant before us that any disciplinary proceedings were initiated against Robert Kalyan or concluded during his life time. There is also no submission that any criminal proceedings were initiated, which were finally concluded.
In this backdrop, the direction of the learned Single Judge in the impugned order to pay the entire amount due and payable to the legal heirs of Robert Kalyan in terms of Regulation 108-BB of the Jammu and Kashmir Civil Services Regulations, cannot be faulted on any legally tenable grounds.
Before us, Mr. S. S.Nanda, Sr. AAG, submits that the appellants are actually aggrieved by the direction of the learned Single Judge in the impugned judgment to additionally pay a lump-sum amount of ₹ 1 lac as interest on account of the delay in payment of the retiral benefits. In making this direction, the learned Single Judge has relied on the decision of the Supreme Court in Dr. Uma Agarwal vs. State of U.P, AIR 1999 SC 1212 and decision of a Single Bench of this Court in Laxmi Rani Baloria vs. State and others, 2005 (1) JKJ 159.
In our view, this direction of the learned Single Judge is also unassailable. The respondents had suspended the deceased employee as back as in the year 1993. He expired in the year 2017. For the long period of twenty four years in between, the appellants were not even able to frame and serve a charge sheet, let alone initiate and complete disciplinary proceedings or criminal proceedings. This is the manner in which the appellants have proceeded even in a case where allegations of embezzlement stand made against the deceased employee. If the allegations against the employee are true, by the manner in which the appellants have proceeded, grave prejudice to the public interest and loss to public exchequer has been caused by the appellants.
The appellants are hereby directed to conduct an enquiry apportioning liability upon their employees, who have caused delay in completion of disciplinary proceedings and failed to initiate and complete the criminal proceedings against the deceased Robert Kalyan. The amount of ₹ 1 lac shall be pro-rata distributed amongst the person(s), who are found liable for the delay and pro-rata recovered from such persons. In addition, entire salary paid to Robert Kalyan should be recovered from them.
A list of other cases where suspended employees have been permitted to retire without commencement and/or conclusion of proceedings against them shall be prepared and filed before us.
The appellants shall also conduct a scrutiny of their records and identify all cases where employees stand suspended without initiation of any proceedings (disciplinary and/ or criminal) against them. Action shall be taken against those responsible for the non-action.
Action taken reports as above shall be filed within eight weeks from today.
List this case before the Court on 7th February, 2020.
Let a copy of this order be furnished to Mr. S. S. Nanda, Sr. AAG under the seal and signatures of the Joint Registrar-Cum-Bench Secretary to ensure compliance.
The Registry shall send a copy of this order to the Chief Secretary, Government of Union Territory of J&K for information.