W.P. (C) No. 45 of 2013

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) A I Z A W L B E N C H :: A I Z A W L W.P. (C) No. 45 of 2013 Sh. J. Vanlalchhuanga, S/o Ralkapliana R/o Ramhlun, Aizawl, Mizoram. -Versus- 1. The State of Mizoram represented by the Chief Secretary to the Government of Mizoram. 2. The Secretary to the Govt. of Mizoram, Food & Civil Supplies Department, Aizawl. 3. The Director, Food & Civil Supplies Department, Govt. of Mizoram, Aizawl... Petitioner.. Respondents B E F O R E THE HON BLE MR.JUSTICE L.S. JAMIR For the petitioner :- Mr. B. Lalramenga, Advocate, Mr. J.C. Lalnunsanga, Advocate, Ms. Rosie Malsawmtluangi, Advocate, Ms. Zothanpari Sailo, Advocate, Mr. Roshan Subedi, Advocate. For the respondents :- Mr. A.K. Rokhum, Addl. A.G., Mizoram Date of hearing :- 4 th October, W.P. (C) No. 45 of 2013 Page 1 of 11

2 Date of Judgment & Order :- 4 th October, JUDGMENT AND ORDER (ORAL) Heard Mr. J.C. Lalnunsanga, learned counsel appearing for the petitioner as well as Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram appearing for the State respondents. [2]. This writ petition is directed against the order dated 21 st September, 2010 by which the petitioner was awarded a minor penalty under Rule 11(iii) & (iv) of the CCS (CCA) Rules, 1965 wherein at penalty No. 3, the period of suspension w.e.f till resumption of duty by the petitioner shall be treated as on duty for pensionary benefit only on his reinstatement and he shall not be entitled to full pay and allowances during the period of his suspension except subsistence allowance already paid to him. [3]. Mr. J.C. Lalnunsanga, learned counsel appearing for the petitioner submits that the petitioner was recruited on 5 th October, 1992 through open competition as Inspector in the department of Food, Civil Supplies & Consumer Affairs, Government of Mizoram. On 14 th November, 2003, he was W.P. (C) No. 45 of 2013 Page 2 of 11

3 suspended on the allegation of misappropriation of rice and sugar and a departmental enquiry was instituted against him. Thereafter, a departmental enquiry was conducted and on completion of the said departmental enquiry, the enquiry authority submitted its report dated Basing on the said enquiry report, memorandum dated 26 th March, 2010 was issued by the respondent No. 2 to the petitioner to make representation against the proposed penalty. The petitioner submitted his representation dated in response to the memorandum dated Thereafter, the respondent No. 2 by order dated 21 st September, 2010 revoked the order of suspension and reinstated the petitioner to the post of Inspector with immediate effect subject to finalization of his case kept pending against him. By the said order dated , the respondent No. 2 in exercise of the powers conferred by Rule 12 of CCS (CCA) Rule, 1965, awarded a minor penalty to the petitioner by ordering that Rs. 7000/- (Rupees seven thousand) shall be deducted from the monthly pay and allowances of the petitioner for onward recovery of liabilities amounting to Rs. 4,07,340/- with effect from the pay of October, His increments of pay was also withheld for a period of 3 years w.e.f without cumulative effect and all the increments during the penalty period of suspension will be enjoyed and W.P. (C) No. 45 of 2013 Page 3 of 11

4 restored on Further, the period of suspension w.e.f till resumption of duty by the petitioner shall be treated as on duty for pensionary benefit only on his reinstatement and he shall not be entitled to full pay and allowances during the period of his suspension except subsistence allowance already paid to him. The learned counsel for the petitioner also submits that despite the order of reinstatement, the petitioner had not been given proper salary since July, 2012 till date as the respondent No. 2 had wrongly stated in the order dated that there is a pending case against him. He also submits that the respondent No. 2 had issued an order dated 9 th November, 2011 modifying the earlier order dated ordering that there is no case pending against him and the minor penalty already awarded to the petitioner by order dated 21 st September, 2010 will remain unchanged. He further submits that the petitioner who was awarded minor penalty was denied full pay and allowances for the period of suspension while other equally circumstanced person has been given full pay and allowances which is discriminatory and therefore, the respondents should be directed to treat the petitioner equally as has been done to other persons by the respondents. He also submits that under the Fundamental Rules 54-B, it is stated that where departmental W.P. (C) No. 45 of 2013 Page 4 of 11

5 proceedings against a suspended employee for the imposition of major penalty finally ends with the imposition of minor penalty, the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order. However, in the case of the petitioner, the respondents have failed to follow the instructions under the Fundamental Rules 54-B whereas the other equally situated and circumstanced persons from the same department were given the benefit. The respondents have used a different yardstick in so far as the petitioner is concerned and therefore, the said penalty whereby he has been denied the benefit of full pay and allowances should be set aside and quashed. In support of his contentions, the learned counsel for the petitioner has placed reliance in the case of O.P. Gupta - vs- Union of India and Ors. reported in 1987 AIR 2257 as well as the judgment and order dated of this Court passed in W.P.(C) No. (SH) No. 351 of [4]. Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram appearing on behalf of the State respondents submits that the petitioner has misappropriated rice and sugar bringing in huge liabilities amounting to Rs. 4,07,340//-. Accordingly, the petitioner was placed under W.P. (C) No. 45 of 2013 Page 5 of 11

6 suspension in contemplation of a disciplinary proceeding against him. After following all the due process of law and prescribed procedures, the departmental enquiry was concluded and enquiry report submitted thereafter. On the basis of such enquiry report, the disciplinary authority had imposed minor penalty upon the petitioner. He also submits that this Court cannot go into all the aspects of the disciplinary proceedings as well as the punishment imposed upon the petitioner by sitting as an appellate Court. He, also contends that the penalty was imposed on the admission of guilt by the petitioner and therefore, submits that the penalty imposed upon the petitioner need not be interfered with and the present writ petition should be dismissed. [5]. After hearing the counsel for the parties, this Court for a proper appreciation of the case in hand, finds it necessary to quote the Central Government instructions, Department of Personnel & Training, O.M. No /15/85-Est.(A), dated 3 rd December, 1985 which reads as under :- (3) Period of suspension to be treated as duty if minor penalty only is to be imposed. Reference is invited to O.M. No. 43/56/64-AVD, dated [not printed], containing the guidelines for placing Government servants W.P. (C) No. 45 of 2013 Page 6 of 11

7 under suspension and to say that these instructions lay 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 restored to only in 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 imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances paid for the 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 W.P. (C) No. 45 of 2013 Page 7 of 11

8 concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable under F.R. 54-B. [6] From a reading of the instructions of the Central Government as regards the interpretation of FR 54-B, it is seen that if a departmental enquiry is initiated against the Government servant for imposition of major penalty but the enquiry ends up by awarding a minor penalty, the suspension of the Government servant is considered to be fully unjustified and therefore, he should be given full pay and allowances for the period of suspension by passing appropriate orders. [7]. While considering the order dated 24 th June, 2003 in connection with one Lalrinnunga, Storekeeper under the Directorate of Food & Civil Supplies, Mizoram, Aizawl who was suspended in connection with creating liabilities amounting to Rs. 8,73,248/- and after admitting the shortage by him the concerned authority after completion of departmental enquiry had imposed the same penalty as awarded to the present petitioner. However, in his case his suspension period was treated as duty for all purpose with full pay and allowances for that period. The said order has been annexed as Annexure 12(a) to the writ petition. W.P. (C) No. 45 of 2013 Page 8 of 11

9 [8]. Another order dared 2 nd May, 2012 by which one Velkima, Storekeeper under the Directorate of Food, Civil Supplies & Consumer Affairs, Mizoram, Aizawl was suspended for creating liabilities amounting to Rs. 22,53, There also on completion of disciplinary proceeding and on admission by the said Velkima, the concerned authority had imposed the same type of penalty that was imposed upon the petitioner but in that case also his suspension period was treated as on duty for all purposes and he was paid full pay and allowances during the period of his suspension subject to adjustment of the subsistence already drawn by him. The said order has been annexed as Annexure 12 (b) to the writ petition. [9]. The State respondents while filing their counter affidavit has not rebutted the said Annexures, namely, Annexure 12(a) and Annexure 12(b) i.e. the orders dated and [10]. Normally, this Court does not sit as an appellate authority over the findings of the enquiry officer nor upon the decision of the disciplinary authority to impose penalties upon the delinquent officers provided there is no procedure flaws mala fide and arbitrariness in such departmental proceedings. However, in the instant case in hand, this Court cannot ignore W.P. (C) No. 45 of 2013 Page 9 of 11

10 the fact that when similarly situated and equally circumstanced persons were reinstated after being imposed minor penalties, the period of suspension was treated as on duty with full pay and allowance i.e. the orders dated and In fact, in the case of Velkima, Storekeeper, the liability created by him was amounting to a huge amount of Rs. 22,53, However, the respondents had decided to impose minor penalty and allowed the suspensions period to be treated as on duty with full pay and allowances. When similarly situated and equally circumstanced persons had been treated in a different manner than that of the petitioner, this Court finds that the petitioner has been discriminated by the competent authority by not giving him the same treatment that has been given to others i.e. treating the period of suspension of the petitioner as on duty with full pay and allowances subject to deduction of the subsistence allowance already drawn by him. [11]. Accordingly, the penalty No. 3 contained in the order dated 21 st September, 2012 whereby the period of suspension w.e.f till resumption of duty by the petitioner is to be treated as on duty for pensionary benefit only on his reinstatement and he shall not be entitled to full pay and allowances during the period of suspension except subsistence allowance already paid to him is hereby set aside and quashed. W.P. (C) No. 45 of 2013 Page 10 of 11

11 The respondents are directed to treat the period of suspension of the petitioner as period spent on duty for all purposes by allowing him full pay and allowances subject to deduction of his subsistence allowance that has been drawn by him. The respondents shall pay the dues to the petitioner within a period of 3 (three) months from the date of receipt of the judgment and order of this Court. Further, the respondents are directed to consider the case of the petitioner for upgradation of pay under the MACP Scheme, 2010 within a period of 6 (six) months from the date of receipt of the judgment and order of this Court. [12]. Another aspect of the matter is that submission has been made that the petitioner is not receiving proper salary since November, 2010, and he has not been given salary since July, The respondents are directed to verify the same and if the petitioner s statements are correct, the respondents shall forthwith release the salary of the petitioner without any delay. [13]. Accordingly, this writ petition is allowed. No cost. JUDGE Sushil W.P. (C) No. 45 of 2013 Page 11 of 11