PURSHOTTAM RAJAK vs DAYARAM RAJAK

In this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 7.2.2011 (Annexure P/6) whereby the department has decided on revocation of suspension and upon reinstatement of petitioner, he will not get any amount beyond the subsistence allowance which has already been paid to him. However, the suspension period (17.07.1996 to 19.12.2010) was regularized and it was held that the said period shall be treated as period of service for all practical purposes including for grant of annual increments. In nutshell, except the pay and allowances for the aforesaid period, the other benefits have been extended to the petitioner.

Petitioner submits that he was placed under suspension because he remained in police custody for more than 48 hours. The suspension order was passed on 3.8.1996. The petitioner and other persons were tried under various sections of the Indian Penal Code in Criminal Case No.868/96. The Magistrate by judgment dated 25.4.2003, convicted the petitioner under sections 147,325/149 and 323/149 IPC and sentenced him to undergo for RI 3 years,2 years and 1 year with fine 200/-,500/- and 300/- respectively. All the sentences were directed to run concurrently.

Aggrieved by the aforesaid judgment, the petitioner filed appeal before the learned Sessions Judge, who allowed the appeal in part and altered the sentence under section 323/149 IPC for RI 6 months with fine of Rs.1000/-. The petitioner then preferred a revision before this court. This Court set aside the remaining sentences awarded by the appellate court on the ground that petitioner has already undergone the sentence to some extent. However, this court imposed fine of Rs.3000/-.

After judgment of this court, the petitioner preferred a representation dated 29.10.2010 (Annexure P/3) seeking reinstatement. The Executive Engineer concerned, in turn, sent the report to the competent authority by communication dated 3.11.2010 (Annexure P/4). Thereafter, by order dated 20.12.2010, the petitioner was reinstated. It was made clear that a separate order would be passed for regularizing the period of suspension. Thereafter, by order dated 7.2.2011 (Annexure P/6), the suspension period was confined only upto the extent of grant of subsistence allowance.

The petitioner submits that the petitioner is entitled to get full salary during the suspension period. The suspension period ought to have been decided as per Fundamental Rule 54-B.

Shri Dilip Pandey, learned counsel for the petitioner submits that before regularizing the suspension period, the respondents have not issued any show-cause notice nor nay opportunity of hearing was given to him. In support of aforesaid contention, he placed reliance in the case of Smt. Mahmoodan Khan Vs. State of M.P. & Ors. 2008(2) MPHT-26 (DB).

Per contra, Ms Sonali Shrivastav, PL supported the impugned order. She submits that the claim of the petitioner is wholly misconceived because the petitioner had been placed under suspension as he was facing a criminal case in which he was convicted and such conviction was never set aside by any court. The petitioner has undergone the criminal trial because of his own conduct. Hence, the petitioner is not entitled to get any amount beyond the subsistence allowance.

During the course of arguments, learned counsel for the parties confined their arguments to the extent indicated hereinabove.

I have heard learned counsel for the parties and perused the record.

This is not in dispute between the parties that the order dated 07-02-2011 is passed without affording opportunity to the petitioner. A Division Bench of this Court in the case of Smt. Mahmoodan Khan (supra) dealt with the Rule 54-B of the Fundamental Rule.

I am bound and in respectful agreement with the view taken in the said case. Hence, I deem it proper to adopt the same course and direct that the offending portion of the order dated 07-02-2011 whereby it was held that the petitioner will not get pay and allowances during suspension period is set aside. The respondent No.3 shall issue a notice to the petitioner on the question of quantum of pay and allowances proposed and after considering the representation, if any, submitted by the petitioner take a final decision within 30 days. The outcome shall be communicated to the petitioner.

With the aforesaid directions and to the extent indicated above petition is allowed.

It is made clear that this Court has not expressed any opinion about the entitlement of the petitioner for pay and allowances during the period of suspension.