IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4432 of 2022
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Ranjana Singh, Aged about 54 years, wife of Late Prabhat
Kumar Singh, Resident of Village Gorea Kothi, P.O & P.S
Gorea Kothi, District- Siwan (Pin-841434) (Bihar)
.....Petitioner
Versus
1. State of Jharkhand.
2.Law (Justice) Department through its Principal Secretary-
cum- Legal Remembrancer, Government of Jharkhand
having office at Project Building, P.O. & P.S. Dhurwa,
District-Ranchi
3. Principal District and Sessions Judge, Bokaro, P.O. &
P.S. Bokaro, District-Bokaro.
......Respondents
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CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : M/s. Atanu Banerjee,
Suman Kumar Ghosh, Advocates
For the Respondents :Ms. Pinky Tiwary, A.C to A.G
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12/31.07.2024 Heard learned counsel for the parties.
2.
The instant application has been preferred by
the petitioner praying therein for quashing of the Office
Order no. 156 dated 22.04.2020 (Annexure-8), whereby
the period of suspension from 20.07.2016 to 22.04.2020
are not treated as period of duty for which the petitioner’s
husband was entitled.
3.
The brief fact of the case is that the
er the
petitioner’s husband was in service und
respondents. On 20.07.2016, he was put under
suspension in contemplation of departmental proceeding.
On 28.07.2016, a memorandum was issued containing
article of charges against the husband of the petitioner
for misconduct, institution of criminal case for operating
illegal Ara Machine and taking house rent allowance
though living in pool quarter after reporting of vacating
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the same. Thereafter, the proceeding was initiated and on
28.02.2017 enquiry report was submitted and the
Enquiry Officer found the charges to be true against the
delinquent whose wife is the petitioner herein.
Thereafter on 16.03.2017 a second show-cause
notice was issued to the delinquent, to which he duly
replied vide his reply dated 03.04.2017. Finally, on
22.04.2020 the impugned order was passed by the
respondents against the husband of the petitioner by
inflicting punishment of reduction of last three
increments and it was also ordered in the punishment
that the period of suspension from 20.07.2016 to
22.04.2020 will not be treated as the period of duty and
he will be entitled only for subsistence allowance.
Further facts reveal that just after a week the
husband of the petitioner retired from the post of
Assistant in Civil Court, Bermo at Tenughat on attaining
the age of superannuation and after about 7 months he
died.
It further transpires from record that after the
death of the petitioner’s husband, all retiral benefits
including the pension intimation, gratuity payment order
was issued by the office of Accountant General and all
other post retiral benefits were made to the petitioner. On
7th April, 2022, the petitioner made a representation
before the respondent authorities requesting them for
payment of full pay for the suspension period as per 7th
Pay Commission from 2016 and also requested to
withdraw the penalty imposed upon the husband of the
petitioner and reconsidered the decision dated
22.04.2020.
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4.
Mr. Atanu Banerjee, learned counsel for the
petitioner at the outset confines his prayer only on the
issue that the petitioner should be entitled for full pay at
least from the date when he filed a reply to second show-
cause; inasmuch as, the reply to second show-cause was
filed by him on 03.04.2017, but for no reason the
impugned order has been passed on 22.04.2020.
He contended that there was no fault on the part
of the petitioner’s husband in delaying the matter;
inasmuch as, after receiving the second show-cause
notice on 16.03.2017; he immediately replied to the same,
but the concerned respondent took more than three years
in taking the decision for infliction of punishment.
5.
Accordingly, learned counsel submits that the
impugned order of punishment issued against the
petitioner’s husband may be modified to the extent that
the second part of the order that he will get only
subsistence allowance during the period of suspension at
least from the date of filing second show-cause be
modified and respondents may be directed to pay full
amount from the date of filing of second show-cause till
the date of impugned order.
He further submits that the other part which
required to be modified is that after modifying the second
part, it also requires that the suspension period should
not be taken as break in service. In order to buttress his
argument, he relies upon Rule 10 of Jharkhand
Government Servant (Classification, Control and Appeal)
Rules, 2016, wherein it has been stipulated as under: -
- (1) A
“Subsistence allowance during suspension :
Government Servant under suspension or deemed
to have been placed under suspension, shall be
entitled to the following payments namely :-
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a) subsistence grant an amount equal to
the leave salary which the Government
Servant would have drawn, if he had been
on leave, on half pay addition in dearness
allowance admissible on such half pay;
Provided that where the period of
suspension has exceeded twelve months,
the authority, which made or is deemed to
have made the order of suspension, shall be
competent to vary the amount of
subsistence grant for any period subsequent
to the period of the first twelve months, as
follows
–
i) The amount of subsistence grant may be
increased by a suitable amount not
exceeding fifty percent of the subsistence
grant admissible during the period of the
first twelve months, if in the opinion of the
said authority, the period of suspension
has been prolonged, for reasons to be
recorded in writing, not directly attributable
to the Government Servant.
ii) The amount of subsistence grant may be
reduced by a suitable amount, not exceeding
fifty percent of the subsistence grant
admissible during the period of first twelve
months, if, in the opinion of the said
authority, the period of suspension has been
prolonged, due to reasons to be recorded in
writing, directly attributable to the
Government Servant.
iii) The rate of dearness allowance will be
based on the increased or as the case may
be, the decreased amount of the subsistence
grant admissible under subclause (i) and (ii)
of this rule.
b) Any other compensatory allowance to
which a Government Servant may be
entitled from time to time on basis of pay,
which he received on the date of suspension.
Provided that the Government Servant shall
not be entitled to that compensatory allowance
unless the said authority is satisfied that the
Government Servant continues to meet the
expenditure for which they are granted.
Provided further that the Government
Servant shall be entitled to receive subsistence
allowance only for such period when he is
actually present at the headquarters, fixed by
the Disciplinary Authority during the suspension
period. He shall be required to mark his
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attendance in the attendance register meant for
such Government Servant.
Provided further that since the headquarters
cannot be fixed for the period of custody,
therefore marking of such attendance shall not be
required for the period of custody.”
Relying upon the aforesaid Rule, learned counsel
submits that the Rule is very clear where the period of
suspension has acceded 12 months, the authority which
may or is deemed to have made the order of suspension
shall be competent to vary the amount of subsistence
grant for any period subsequent to the period. Meaning
thereby to say, the authorities are duty bound to take a
periodic decision for the period of suspension, so that it
will not affect the livelihood of delinquent and his family.
He further referred to the judgment passed in the
case of Ajay Kumar Choudhary v. Union of India &
Anr. reported in (2015) 7 SCC 291 and submits that the
s held that the currency of
Hon’ble Apex Court ha
suspension order should not extend beyond three months
if within this period memorandum of charges is not
served on the delinquent and if the memorandum of
charge-sheet is served, a reasoned order must be passed
for the extension of suspension.
For brevity paragraph-21 is quoted hereinbelow:
We, therefore, direct that the currency of a
“21.
suspension order should not extend beyond three
months if within this period the memorandum of
charges/charge-sheet is not served on the delinquent
officer/employee; if the memorandum of
charges/charge-sheet is served, a reasoned order must
be passed for the extension of the suspension. As in the
case in hand, the Government is free to transfer the
person concerned to any department in any of its
offices within or outside the State so as to sever any
local or personal contact that he may have and which
he may misuse for obstructing the investigation against
him. The Government may also prohibit him from
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contacting any person, or handling records and
documents till the stage of his having to prepare his
defence. We think this will adequately safeguard the
universally recognised principle of human dignity and
the right to a speedy trial and shall also preserve the
interest of the Government in the prosecution. We
recognise that the previous Constitution Benches have
been reluctant to quash proceedings on the grounds of
delay, and to set time-limits to their duration. However,
the imposition of a limit on the period of suspension has
not been discussed in prior case law, and would not be
contrary to the interests of justice. Furthermore, the
direction of the Central Vigilance Commission that
pending a criminal investigation, departmental
proceedings are to be held in abeyance stands
superseded in vi
ew of the stand adopted by us.”
Relying upon the aforesaid Rule and the judgment
passed by Hon’ble Apex Court, it is clear that if the
authorities wants to continue with suspension of the
delinquent, they should take a decision in that matter;
however in the instant case there is no order to that effect
that for what reason the suspension was extended even
after filing the second show cause notice and admittedly
the respondents took more than three years in passing
the impugned order.
6.
Learned counsel for the respondents submits that
the contention of the petitioner is nonest in the eye of law;
inasmuch as, getting subsistence allowance during
suspension period is part of punishment and the
petitioner’s husband never challenged the said impugned
order within his life time and the petitioner, who is the
widow of the delinquent employee has challenged the
impugned order, which is nonest in the eye of law;
however, learned counsel for the respondent could not
dispute the fact that inquiry report was submitted to the
disciplinary authority on 28.02.2017 and just after two
weeks a second show cause notice was issued to the
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delinquent and just after two weeks the petitioner’s
husband replied to the show-cause notice, but for the
reason best known to the respondent the order was
passed after more than three years.
7.
Having heard learned counsel for the parties and
after going through the documents annexed with the
respective affidavits and the above referred judgment
Rules
passed by the Hon’ble Apex Court and the
governing the service condition of the petition’s husband;
it appears that admittedly; there is a delay on the part of
the authorities in passing the impugned order.
Admittedly, there was no fault on the part of the
ng the matter; inasmuch as,
petitioner’s husband in delayi
after receiving the second show-cause notice on
16.03.2017; he immediately replied to the same, but the
concerned respondent took more than three years in
taking the decision for infliction of punishment
Had there been a case; the impugned order would
have been passed with the same punishment in the year
2017 itself, then the petitioner would not have been
deprived of full salary from that period itself; however,
there is nothing on record to suggest that any order has
been passed for continuation of suspension period of the
petitioner. Not a single chit of paper has been shown by
the respondents to explain the delay in passing the order
of punishment is due to the fault of the petitioner.
8.
Accordingly, this Court holds that the passing of
the impugned order after a delay of three years from the
date of filing reply to 2nd show cause by the petitioner is
certainly against the natural justice and it has certainly
affected the petitioner’s family.
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As aforesaid, the petitioner is the widow of the
delinquent who died after six months of his retirement;
as such, natural of justice would be sufficed by modifying
the impugned order only to the extent that the
suspension period from May, 2017 till the date of
impugned order shall be considered for full salary of the
petitioner and it should not be treated as a break in
service. Ordered accordingly.
9.
With the aforesaid observations/directions, the
instant application stands partly allowed.
(Deepak Roshan, J.)
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