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Judgment
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 common order passed by this Court in W.P.No.709 of 2017 and batch, dated 01.04.2022.
The common order passed in W.P.No.709 of 2017 and batch, dated 01.04.2022 is reproduced as under:-
“Regard being had to the controversy involved in the aforesaid cases, they were heard together and are being decided by a common order.
The facts of W.P.No.709 of 2017 are reproduced as under:-
The petitioners before this Court have filed this present writ petition claiming pay and allowances for the period they were under suspension.
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 11.11.2014 dropping the disciplinary proceedings. The petitioners have prayed for the following relief:-
“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 22.08.2016 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% 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, 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.”
The respondents have passed order dated 22.08.2016 rejecting the claims of the petitioners.
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.
The order passed by the Division Bench in paragraph Nos.14 to 23 is reproduced as under:-
“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:
54-B(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.
Provided that where such authority is of the opinion that the termination of the proceedings 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.
(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.”
In M. Gopalkrishna Naidu v. The State of M.P. (AIR 1968 SC 240), the Supreme Court analyzed the scope of Fundamental Rule 54 (Central Rules), which are in pari material 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.
In B.D. Gupta v. State of Haryana (AIR 1972 SC 2472), another Bench of the Supreme Court followed the ratio laid down in Gopalkrishna 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.
In O.P. Gupta v. Union of India (1987) 4 SCC 328, the principles laid down in Gopalkrishna 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 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.
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 justification for the suspension.
A careful look at the order dated 22.08.2016 would show that except stating that the suspension of 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.
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 service, was also without any notice to the petitioner. Therefore, both the orders are liable to be set aside.
Insofar 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 Washer) ((2015) 4 SCC 334) held that such a recovery is not possible where the employee was not at fault.
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 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.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.”
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.
Therefore, the writ petitions are allowed and the impugned orders are set aside. It will 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.
Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.”
In the light of the aforesaid, the present writ petition also stands allowed. The common order passed in W.P.No.709 of 2017 and batch, dated 01.04.2022, shall be applicable mutatis mutandis in the present case also.
Let a copy of the order passed by this Court in W.P.No.709 of 2017 and batch, dated 01.04.2022, be kept on record in the present case.
The miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.