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1997 Supreme(Sikk) 3
HIGH COURT OF SIKKIM
M. SENGUPTA
MARTIN FORMING - Appellant
Versus
MANAGING DIRECTOR, S. B. S - Respondents
Writ Petition 17 Of 1996
Decided On : April 4, 1997
A.J.Sharma, O.P.Bhandari, S.P.WANGDI
An employee who is placed under suspension is not entitled to full pay and allowances during the suspension period, unless otherwise provided by law or contract. However, the employee may have a right to appeal against the order of suspension or reinstatement under the relevant service rules.
Headnote:
SUSPENSION - REVOCATION - SALARY AND ALLOWANCES - ENTITLEMENT - SIKKIM GOVERNMENT SERVICE RULES, 1974 - RULE 97 - INTERPRETATION - COURT'S DISCRETION - EMPLOYEE'S RIGHT TO APPEAL - SIKKIM GOVERNMENT SERVANTS (DISCIPLINE AND APPEAL) RULES, 1974 - RULE 10 - APPLICABILITY.
Fact of the Case:
The petitioner, an employee of the State Bank of Sikkim, was placed under suspension for alleged dereliction of duty and involvement in an unauthorized land transaction. A criminal case was initiated against him, but later withdrawn. The petitioner was reinstated in service subject to the condition that he would not claim any of his past forfeited remuneration during the suspension period.
Finding of the Court:
The court held that the petitioner was not entitled to full pay and allowances for the period of suspension, as the suspension order was valid and the petitioner had agreed to the condition of reinstatement. However, the court directed the bank to consider the petitioner's representation as an appeal under Rule 10 of the Sikkim Government Servants (Discipline and Appeal) Rules, 1974, and decide on the following points: (i) payment of full pay and allowances for the suspension period, (ii) grant of regular increments during the suspension period, (iii) notional fixation of initial pay on reinstatement considering earned increments, (iv) protection of seniority, and (v) counting of the suspension period towards service and retiral benefits.
Issues: 1. Whether the petitioner was entitled to full pay and allowances for the period of suspension. 2. Whether the petitioner had a right to appeal against the order of reinstatement under Rule 10 of the Sikkim Government Servants (Discipline and Appeal) Rules, 1974.
Ratio Decidendi: 1. The court held that the petitioner was not entitled to full pay and allowances for the suspension period, as the suspension order was valid and the petitioner had agreed to the condition of reinstatement. The court relied on the decisions in Punjab State v. Suledear Wazir Chand and Municipal Committee Buldana v. Dattatray Sadashiv Karve, which held that suspension suspends the contract of service and the employee is not entitled to claim wages during the suspension period as a matter of right. 2. The court held that the petitioner had a right to appeal against the order of reinstatement under Rule 10 of the Sikkim Government Servants (Discipline and Appeal) Rules, 1974, as he had filed a representation to the Managing Director of the bank within a reasonable time after receiving the order of reinstatement. The court relied on the decision in A. V. Venkateswaran v. R. S. Wadhwani, which held that a petitioner who has disabled himself from availing himself of a statutory remedy by his own fault in not doing so within the prescribed time cannot be permitted to urge that as a ground for the Courts dealing with the petition under Article 226 to exercise its discretion in his favor.
Final Decision: The court disposed of the writ petition without any orders as to costs and directed the bank to consider the petitioner's representation as an appeal under Rule 10 of the Sikkim Government Servants (Discipline and Appeal) Rules, 1974, and decide on the specified points.
( 1 ) - This is a petition filed under Article 226 of the Constitution of india by an employee of the State Bank of sikkim.
( 2 ) THE petitioner was appointed as a clerk in the State Bank of Sikkim on 17. 7. 1977. He was placed under suspension on 24. 9. 1986 and was reinstated in the same service on 11. 5. 1995. During this period a criminal case was started against the petitioner on 22. 11. 1986. The said case ended in a chargesheet dated 31. 5. 1991. The petitioner made several appeals to different authorities of the bank and also to the Chief Minister of the state. After long last. Government decided to withdraw the aforesaid case and the criminal proceeding was dropped as withdrawn on 11. 11. 1993.
( 3 ) THOUGH the order of suspension was revoked and the petitioner was reinstated in his service it was noted that the order of reinstatement was Subject to the condition that he shall not claim any of his past forfeited remuneration. " The petitioner joined his service on 24. 4. 1995 pursuant to the aforesaid order of reinstatment dated 11. 5. 1995. Sometime after joining the service as above, the petitioner filed a representation to the Bank on 29. 5. 1995 claiming his full pay and allowances including the increments accrued during the period of suspension. Since he did not get any favourable action or reply he filed the instant writ petition on 29. 5. 1996. just after a year from the date of his representation. Demand justice notice was sent on behalf of the petitioner on 11. 5. 1996.
( 4 ) IN this writ petition the petitioner prays for a writ in the nature of mandamus ensuring petitioner's right over his salary etc. during the period of his suspension and also to get other ancilliary service benefits.
( 5 ) THE writ is being contested by the state Bank of Sikkim who oppose the prayer made by the petitioner. It has been stated that the petitioner was suspended for various rea sons which included serious dereliction ot duty. It has also been stated that the petitioner involved himself in some unauthorised and illegal land transaction and. therefore, a criminal case was started against him. On investigation prima-facie case was established and a charge-sheet under Section 380/420/466/ 468/471/1pc was submitted against him. The petitioner was in hardship because of the order of suspension and approached all available authorities to exonerate him from the. hardship. Because of his persuation and considering his hardship, the Government decided to withdraw the case pending against the petitioner and the State Bank decided to revoke the order of suspension over the petitioner and to reinstate him in employment. The petitioner agreed to the condition that he would not be getting any arrear of pay, etc. The respondent Bank has also contended that the writ petition does not lie at all as the petitioner has approached the Court without availing himself of the scope of alternative remedy in the form of Appeal before the bank authorities.
( 6 ) IN this writ petition we are to see if the petitioner is entitled to get any benefit for the period during which he remained under suspension. We are also to see if the writ petition is not maintainable as having been filed prematuredly.
( 7 ) THE petitioner has cited huge number of decisions most of which do not have much relevance with the fact of this case. Decisions reported in Brahma Chandra v. Union of india and Maharaja Sayajiurao University v. R. S. Thakur as have been referred to on behalf of the petitioner do not help the petitioner in any manner. In Brahma Chandra's case the petitioner was acquitted after full trial and he was awarded full pay and allowances for the period from the date of his suspension till the elate of his reinstatement. In the University case the service of the incumbent was terminated because of long unauthorised absence. He filed a writ petition for getting reinstated in the service and also for arrears of pay. He passed through different fate
