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2004 Supreme(Guj) 681
Gujarat High Court
Judgename :M.S.Shah
RAMANBHAI PARSHOTTAMBHAI HARIJAN - Appellant
Versus
DISTRICT DEVELOPMENT OFFICER - Respondent
S.C.A.18193 of 2003
Decided On : 10/21/2004
Headnote:(a) Service & Employment - Departmental inquiry or prosecution - Suspension - Regularisation of period of suspension after inquiry or prosecution - Nature of order - Scope of - Indicated.
If the suspended employee is exonerated in the departmental inquiry, the period of suspension will be treated as spent on duty. In that case under Sub-rule (2) of Rule 152 upon reinstatement the employee is entitled to get the arrears of full salary and allowances after adjusting the amount of subsistence allowance against such arrears of salary, obviously because the employee is not to be paid twice over. [Para 6.1]
In case where the disciplinary authority is of the view that the suspension was justified and is required to be treated as suspension by way of penalty, such order of penalty can be passed under the relevant discipline and appeal rules, after giving the employee an opportunity of being heard. When the suspension initially imposed as a preventive measure during pendency of the departmental inquiry or prosecution is converted into a penal measure after hearing the employee, there would be no question of paying any amount over and above the subsistence allowance already paid to the employee during the period of suspension. Of course, the employee would be treated as continuing in service without any break. [Para 6.2]
In case the disciplinary authority finds that the suspended employee is not fully exonerated and, therefore, the period of suspension is not to be spent as on duty nor is it a case where the misconduct proved is not so serious as to warrant treating the period as suspension by way of penalty, the disciplinary authority regularizes the period of suspension as full pay leave or half pay leave or when there is not sufficient leave to the credit of the employee, the balance period after adjusting the leave lying in the leave account of the employee the disciplinary authority would treat it as leave without pay. [Para 6.3]
(b) Service & Employment - Subsistence allowance - Refund of - Since suspended employee continues to be the employee of the employer and cannot take up any other job or occupation during the period of suspension, he has to provide for subsistence allowance to maintain himself and his family - He cannot, therefore, be obliged to refund subsistence allowance irrespective of result of departmental inquiry or prosecution - Judgment of Tribunal on this issue suffers from an error of law apparent on the face of it - Consequently impugned order set aside.
Since such employee continues to be the employee of the employer (who has suspended him), the suspended employee cannot take up any other job or occupation and, therefore, the employer has to provide for subsistence allowance to the suspended employee so that he can maintain himself and his family in short to subsist. Subsistence allowance is, therefore, not to be refunded by the employee even if he is found guilty of the charges levelled against him in the departmental inquiry or even if he is convicted in the criminal case during the pendency of which he was suspended. The Gujarat Civil Services Tribunal does not at all appear to have considered this settled legal principle at all. The judgment of the Tribunal on this issue, therefore, suffers from an error of law apparent on the face of the record and deserves to be set aside.
Cases Referred :
O.P. Gupta vs. Union of India, 1987 (4) SCC 328 = AIR 1987 SC 2257;; Khem Chand vs. Union of India, AIR 1958 SC 300;; Jagdamba Prasad Shukla vs. State of U.P., AIR 2000 SC 2806.
( 1 ) THE petitioner was appointed as a Talati-cum-Mantri in the year 1971. In 1988, the petitioner was suspended on the ground that the petitioner had committed misappropriation of a sum of Rs. 2175. 00. A criminal case was filed against the petitioner and the petitioner was charge sheeted in Criminal Case No. 622 of 1989. However, by judgment dated 23. 4. 1992, the petitioner was acquitted. While the petitioner came to be reinstated in service in view of the aforesaid order of acquittal, the Deputy District Development Officer, Surat i. e. the disciplinary authority held departmental inquiry and passed order dated 3. 3. 1993 under Rule 5 (4) of the Gujarat Panchayat (Disciplinary and Appeal) Rules, 1964 imposing the penalty of stoppage of two increments with future effect. The Deputy District Development Officer also passed order dated 30. 6. 1993 regularizing the period of suspension from 12. 5. 1988 to 7. 4. 1993 as period of leave under Rule 152 of the BCSR. Thereafter, the Taluka Development Officer, Valsad passed consequential order dated 29. 6. 1995 (Annexure "b") regularizing the period of suspension as leave without pay between 27. 3. 1989 to 7. 4. 1993 after adjusting the period from 12. 5. 1988 to 26. 3. 1989 against leave with pay and leave with half pay. The Taluka Development Officer by the same order also directed recovery of the amounts paid to the petitioner as subsistence allowance during the period of suspension from 27. 3. 1989 to 7. 4. 1993. It is the said order dated 29. 6. 1995 (Annexure "b") which came to be challenged before the District Development Officer, Surat who dismissed the appeal on 22. 1. 1998 (Annexure "c" ). The petitioner carried the matter in further appeal being Appeal No. 197 of 1999 before the Gujarat Civil Services Tribunal. The Tribunal also dismissed the appeal by judgment dated 25. 8. 2003 (Annexure "d") which is challenged in this petition, purporting to be one under Articles 226 and 227 of the Constitution, but which is in substance a petition under Article 227 of the Constitution.
( 2 ) RULE 151 (1) of the BCSR provides that a Government servant under suspension is entitled to a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay; with a proviso that where the period of suspension exceeds six months the authority may vary the amount of subsistence allowance by increasing it upto 50% of the subsistence allowance admissible during the period of the first six months. The instructions below Rule 151 specifically provide that subsistence allowance shall not paid unless the Government servant furnishes a certificate that he did not accept any private employment or engage himself in trade or business during the period in question and in case of doubt, the authority may get such certificate verified and in case the certificate is found to be a false one that itself would amount to an act of misconduct and made an additional charge against him. Rule 152 of the BCSR reads as under :-"152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order :- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty. (2) where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. (3) in other case, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe : provided that the payment of
