Ravinder Raj vs Himachal Road Transport Corporation and Another

V.K. Sharma, J.—Though the petition has been filed for grant of as many as four substantive reliefs vide para 7(i) to (iv), yet at the time of hearing, the same has been restricted only qua the first three, which are as under:

7(i) That the Applicant may kindly be granted the stepping up at par with his juniors with effect from 2/1996.

(ii) That the Applicant be held entitled to full salary for the period from 15-10-92 to 13-7-1993 when he remained under suspension.

(iii) That the Applicant may be allowed the proficiency step up w.e.f. 5/98.

The Respondents have taken the following stand vide paras 1 to 3 of the preliminary submissions and para 3 on merits:

Preliminary submissions:

That the Original Application is not maintainable in the present form, in so much so, the relief, which is claimed in the Original Application will have direct bearing on earlier Original Application i.e., OA No. 1765 of 1997 filed by the Applicant which is pending adjudication before this Hon''ble Court.

That the Original Application is hit by the provisions of Section 10 of the CPC and the same summarily deserves dismissal.

That the Original Application is bad for non-joinder of necessary party, in so much so, the junior person who has been given seniority over the Applicant has not been arrayed as party in this Original Application.

On merits:

That in reply to para-3 of the Original Application, it is humbly submitted that the penalty imposed by the replying Respondent is as per law. However, the Applicant has challenged the penalty imposed upon him vide OA No. 1765/1997, which is pending adjudication before this Hon''ble Court. It is further submitted that penalty imposed on Applicant dated 26.12.1996 has not been given effect due to the reason that the Applicant has obtained stay from this Hon''ble Tribunal on the orders of penalty dated 26.12.1996. In view of these facts and circumstances, the present Original Application deserves dismissal.

Admittedly, another Original Application (OA) No. 1765 of 1997 filed by the Petitioner in the erstwhile HP State Administrative Tribunal, relating to the present proceedings, has been disposed of after the same was transferred to this Court on abolition of the said Tribunal. It being so, the said petition is not an impediment in the way of the Respondents to consider the case of the Petitioner.

It is seen that in seniority list (provisional) of the category of Senior Assistant (Accounts), as on 30.11.1999, whereas the Petitioner, who figures at serial No. 5, claims himself to be senior to those mentioned at serial No. 8, Shri Surinder Kumar, and serial No. 19, Shri Rajinder Rana, who ex facie, appear to be junior to the Petitioner, are stated to have been drawing more pay than the Petitioner. The Petitioner is seeking stepping up of his pay at par with them.

It is also seen that the Petitioner was proceeded against departmentally and was ultimately imposed minor penalty of reduction of pay for a period of two years. During the period of inquiry, he remained under suspension from 15.10.1992 to 13.07.1993. This period was ultimately restricted to the extent of the subsistence allowance already paid to him. However, according to the Petitioner, in case only a minor penalty is imposed, the period of suspension is to be treated on duty in terms of Administrative Instruction appearing at serial No. (3) under FR 54-B in Swamy''s Compilation of Fundamental Rules and Supplementary Rules, Part-I, 20th Edition - 2010, which is extracted below for the sake of convenience:

54(3) Period of suspension to be treated as duty if minor penalty only is imposed.- Reference is invited to O.M. No. 43/56/64-AVD, dated 22-10-1964 [ not printed ], containing the guidelines for placing Government servants under suspension and to say that these instructions law down, inter alia, that Government servant could be placed under suspension, if a prima facie case is made out justifying his prosecution or disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCS (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for the imposition of a major penalty, is finally awarded only a minor allowances paid for suspension period. Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B.

Another claim raised by the Petitioner is with regard to grant of proficiency step up w.e.f. May, 1998.

The record reveals that various representations dated 13.12.2010, Annexure A-7, 26.08.2003, Annexure A-8, 15.06.2004, Annexure A-9, 01.05.2006, Annexure A-10 and 03.07.2007, Annexure A-11, encompassing the above claims are pending consideration of the Managing Director/Chairman/Regional Manager of the Respondent-Corporation. However, as per communication dated 20th July, 2005, Annexure A-13, sent by Respondent No. 2 to the Petitioner, it is stated that his representation regarding suspension period could not be taken up as the matter was sub-judice before the Administrative Tribunal. However, since as already observed, the said matter has already been disposed of, now there is no impediment in considering the aforesaid representations submitted by the Petitioner and to take a final decision in the matter.

In view of the above, the petition is disposed of with a direction to Respondent No. 1 to consider the aforesaid representations submitted by the Petitioner and take a final decision in the matter within three months from the date of production of copy of this judgment by the Petitioner in accordance with law and by taking into consideration the observations made hereinabove in this judgment. Needless to say that consequential benefits, if any, shall follow decision on the representations and shall also be payable within the same time, as above, failing which interest @ 9% per annum shall also be payable.

The petition stands disposed of, so also pending CMP(s), if any.