HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3088/2008 (OA No.525/1996) Date of Decision: March 24, 2009 Piar Singh Jamwal ……. Petitioner Versus State of H.P.& Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the petitioner : Ms. Ranjana Parmar, Advocate. For the respondents : Mr. R.K. Sharma, Sr.Addl. A.G. with Mr. Vivek Thakur, Addl. A.G. & Mr. Anil Jaswal, Dy. A.G. Sanjay Karol, J. (Oral) In the present petition, the petitioner has prayed for the following relief:- “a) that the impugned order dated 23.3.95 (Annexure A-3) may be quashed and set aside and the applicant may be treated on duty for all intents and purposes w.e.f. 24.3.90 to 19.3.95. b) The respondents may be directed to pay all pay and allowances to the applicant w.e.f. 24.9.90 to 19.3.95 forthwith along with interest at the rte of some Nationalized bank rate. c) that the respondents may be directed to fix the pay of the applicant w.e.f. 1.1.91 after releasing all the increments to the applicant and to pay arrears thereof forthwith along with interest at some nationalized bank rate. d) that the cost of the application may be allowed in favour of the applicant. 2 e) That the record of the case may be summoned for the perusal of this Hon’ble Court.” The petitioner was serving in the Education Department of the State as JBT teacher on regular basis. He was posted at Govt. Primary School, Gallian, Distt. Bilaspur. An FIR under Section 302 read with Section 34 IPC was registered against him and his family members and consequently he was arrested by the police. Vide orders dated 19.4.1990 (Annexure A-1), petitioner was put under suspension. Consequent to the registration of the FIR, challan was filed in the Court and after committal, charge was framed. The matter was finally decided by the Sessions Judge, Bilaspur, H.P. acquitting the petitioner of the charged offence. It is a matter of record that an appeal arising out of the judgment dated 20.12.1994 passed by the Sessions Judge, Bilaspur in Str. No. 18 of 1991 titled as State of Himachal Pradesh v. Rattan Lal & Ors., acquitting the petitioner is pending before this Court. Pursuant to the decision rendered in the said criminal case, the respondent, vide order dated 23.5.1995 (Annexure A-3) revoked the order of suspension with immediate effect. But, however, in exercise of the statutory powers under F.R. 54-B, the respondents passed certain orders with regard to his pay and allowances. The operative part of the order is reproduced as under:- “Now, therefore, the undersigned in exercise of the powers conferred by clause (C) of Sub-Rule (50 of Rule 10 of the CCS (CCA) Rules, 1965 hereby revokes the said order of suspension with immediate effect and posts him at GPS Balchurani (Ch-II Block) against a vacant post regulating his 3 pay and allowances for the period of suspension and treating the period of suspension under F.R. 54-B as under:- (a) the pay and allowances of the said Sh. Piar Singh for the period of suspension from 24.3.1990 to 19.3.1995 is restricted to the subsistence allowance already paid to him and the period will be treated as ‘Non Duty’. Thereafter the absence is treated as on duty on full pay and allowances. (b) The said Sh. Piar Singh shall resume his duties within a week’s time from the date of issue of the order.” In the present petition, the petitioner has assailed the impugned order (Annexure A-3), inter alia on the ground that prior to the passing of the said order no fair and reasonable opportunity of hearing or representation was afforded to him. Since it entails civil consequences, it was incumbent upon the respondents to have issued a show cause notice before passing of the order. From the reply filed by the respondents as also from the impugned order itself, it is evident that neither any show cause notice was issued to the petitioner, nor was he heard before the impugned order was passed. On the contrary, in the return, the respondents have taken a stand that notice would be issued only after the appeal in criminal case is decided. The Division Bench of this Court in Balwant & Anr. v. Union of India & Anr. {2003(3) SLR 443} has held that the acquittal in a criminal case cannot be nullified by mere filing of an appeal against the order of acquittal. Admittedly, the order of acquittal has not been stayed by any Court. Hence, the pendency of the appeal would have no bearing, whatsoever on the present proceedings. 4 The Apex Court in Gopalkrishna Naidu vs. State of M.P. {AIR 1968 SC 240}, after considering the relevant Fundamental Rule 54 held that the object and purpose of Rule 54-B(1) is to pass an order on the basis of finding arrived at on the facts and circumstances and such an order results in pecuniary loss to the Govt. servant. “The very nature of the function implies the duty to act judicially.” In such a case if an opportunity to show cause against the action proposed is not afforded, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. Fundamental Rule 54 contemplates a duty to act in accordance with the basic concept of justice and fairplay. The aforesaid view was further restricted by the Apex Court in O. P. Gupta v. Union of India & Ors. {1987(4) SCC 328}. In fact while dealing with the similar circumstances, the Court held that long continuation of suspension is punitive and affect the means of livelihood of the suspended employee. Further in Manzoor Ahmed Mazumdar v. State of Meghalaya & Ors. {1997 (11) SCC 374}, while dealing with the Assam Rules, which are similar to the Rules in issue, the Apex Court held that even in the absence of any statutory provision of affording prior opportunity of hearing, the principles of natural justice have to be considered to have been inbuilt in the said Rules itself. In the aforesaid cases, the Apex Court quashed the order passed by the relevant authorities for non-compliance of the principles of natural justice. For the aforesaid reasons, the impugned order dated 23.5.1995 (Annexure A-3) is quashed. The respondents are directed to issue a show cause notice to the petitioner within a period of three weeks 5 from today. Petitioner shall file response thereto within a period of two weeks from the receipt of the said show cause notice. Since the matter pertains to the year 1990, it is expected of the respondents to pass a reasoned order within a period of eight weeks from the date of the receipt of the petitioner’ response. Petitioner shall be afforded an opportunity of hearing. A copy of the order shall be communicated to the petitioner. Mr. Vivek Thakur, learned Addl. Advocate General has referred to the decisions rendered by the Apex Court in Krishankant Raghunath Bibhavnekar v. State of Maharashtra {AIR 1997 SC1434}, Management of Reserve Bank of India . v. Bhopal Singh Panchal {1994(1) SCC 541} and State of Assam and Anr v. Raghava Rajgopalachari {1972 S.L.R. 915}. I am afraid that these decisions do not decide the point in issue. In the said cases, the Court was considering the right of the employer to withhold the monetary benefits in exercise of its power under the relevant Rules. The ratio laid down in the said decisions, shall be considered by the appropriate authorities while passing the order. The present petition has been decided only on a limited point without touching the main merits. Liberty granted to approach the Court, if need be. The petition stands disposed of. ( Sanjay Karol ), Judge. March 23, 2009. (rana)