l:i:i:-;:' ' • ' • ^wtin ^° \^ HIGHCOURT OF CHHATTISGARH, BILASPUR DB: Hon'ble Shri RaieevGuDta. C.J.& Hon'ble Shri Sunil Kumar Sinha. J. Writ Appeal No. 48 of 2009 A. S. Roy Vs. State of Chhattisgarh and others JUDGMENT For consideration Sd/- SUNIL KUMAR SINHA Judge HO^BLESHR! JUSTICE RAJEEV GUPTA J ^^^yc-c-. d —— Sd/- ChiefJustice Post for Judgment :(f, /02/2010 Sd/- ~7S'-/027201Cf 1-llj ;;;;•;! ;; HIGH COURT OF CHHATTISGARH. BILASPUR DB: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble ShriSunil Kumar Sinha, J. Writ Appeal No. 48 of 2009 APPELLANT RESPONDENTS 1 il'i A.S. Roy, aged about 43 years, s/o Shri D.C. Roy, working as Upper Division Teacher, At - Government Higher Secondary School, Kharsia, Distt. Raigarh (C.G), R/o Gaushala Marg, Kharsia, District Raigarh (C.G). yersus State of Chhattisgarh Through:- the Secretary , Department of Scheduled Caste and Scheduled Tribe Development, Mantralaya, D.K.S. Bhawan, Raipur(C.G.). The Director, Department of Scheduled Caste and Scheduled Tribe development, Chhattisgarh, H.Q - Pt. Ravishankar Shukla University Campus, Raipur The Chief Executive Officer cum Ex Officio Additional Director, Tribal Development, Raigarh, District - Raigarh (C.G) The Assistant Commissioner, Tribat Development, Raigarh, District Raigarh (C.G) (WritADDealundersectiOnZdloftheChhattisaarh Hiah Court (Appeal to Division Bench), Act2006) ADpearance: Mr. R. K. Kesharwani, counsel for the appellant. Mr. Kishore Bhaduri, Additional Advocate General, for the State/respondents. W.ANo. 48 of2009 JUDGMENT (/fc.02.2010) Following judgmentof the Court was delivered by Sunil Kumar Sinha, J. (1) _ Being aggrieved withthe order dated 25 of April, 2008 passed in W.P.(S).No.2365/2008 by the learned single Judge of this Court, the appellanVpetitioner has filed this writ appeal. '<>.- (2) The facts, briefly stated, are as under: The appellant was posted as an Upper Division Teacher in Government Girls Higher Secondary School, Jhal. He joined there on 20.03.1996. Thereafter, he attended the institution on 09.05.1996, 01.09.1996 & 15.05.1997 only, andwas through out absent from duty for a very long period. A criminal case u/ss 363 & 366 IPC was also regjstered against himvide Crime No.87/1998. Onaccount of this, he was suspended vide order dated 19.8.1998. A departmental enquirywas instituted against theappellant and he was served with a charge sheet op 15.09.1998. Two charges were framed against him - one aboutlong unauthorized absence from duty and the other about registration of the criminal case for abduction of a minor girl. The appellant did not file any reply to the above charge sheetdated 15.09.1998. Thereafter, a departmental enquiry was conducted. The appellant participated in the enquiry. His statementwas also recorded. Theenquiry officer submitted his report wherein it was held that the first charge relating to his unauthorized absence was proved and the second charge relating to abductionof a minor girl was not proved on account 6f non- examination of the girl. Thereafter, a show cause notice was issued to the appellant by the Disciplinary Authority. He filed reply to the said notice. After considering the reply, the disciplinary authority imposed punishment of withholding two increments with cumulative effect. While imposingsuch punishment, the disciplinary authority ^. specifically directed that the appellant would not be entitled to any 'l <. W.ANo.48of2009 other amount except the subsistence allowance for the period he remained under suspension. The appellant filed an appeal against the said order. In appeal, the appellate authority modified the punishment imposed by the disciplinary authority and directed to withhold two increments without cumulative effect. This order was challenged in writ petition. The learned single judge dismissed the writ petition holding that after having noticed some deficiency in departmental enquiry, the appellate authority hasalready converi:ed the major penalty to minor penalty, therefore, it is not necessary to interfere with the appellate order particularly looking the nature of charges which stands provedagainst the petitioner. The learned single judge further directed that it shall be open to the appellant/petitioner to agitate grantof pay during suspension period before the competent authority as no order has been passed with regard to suspension. (3) Mr. R. K. Kesarwani, learned counselappearing on behalf of the appellant argued that according to F.R. 54-B, if the major penalty was converted to a minor penalty, it was incumbent upon the appellate authority to treat the suspension period as on duty for all purposes and to direct full payment and emoluments for the said period. (4) On the other hand, Mr. Kishore Bhaduri, learned Addl. Advocate General appearing on behalf of the State/respondents opposed these arguments ahd supported the orders passed by the appellate authority and also the learned singlejudge. (5) We have heard learhed counsel for the parties at length and have also perused the records ofthewrit petition. •^^i^a^^ V K^ . ^. S 9^^'Sa. K W.ANo.48of2009 (6) Admittedly, the punishment of withholding two jncrements with cumulative effect amounts to major penalty and if the same is without cumulative effect, it shall fall within the purview ofthe minor penalty. (7) Firstly the appellant was awarded the punishment of withholding two increments with cumulative effect and thereafter in appeal, on finding certain deficiency in the disciplinary proceedings, the increments were directed to be withheld without cumulative effect and while doing so the appellate authority specifically mentioned that the other conditions of the order passed by the disciplinary authority shall remained as it is. That means the order passed by the disciplinary authority relating to payment ofsubsistence allowanceonly in the suspension period was kept as it is by the appellate authority. (8) Mr. Kesarwani contended that when the major penalty was converted to a minor penalty, direction for payment of full service emoluments during the period of suspension was a necessary consequence. (9) The contention appears to be misconceived. F.R.54-B provides that when a Government servant who has been suspended, is reinstated or would have been so reinstated but for his retirement on superannuation while undersuspension, the authority competent to order reinstament shall consider and make a specific order regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and whether or not the said period shall be treated as a period spent on duty. Sub-rule (3) of Rule 54-B .;;""y<ai>. ,;.>.-^~'<'%, 'W^'Ss^ tt /! -.^T-^i'' W.ANo.48of2009 provides that where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant, shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended . Sub-rule (4) provides that if a case falls under sub-rules (2) and (3), the period of suspension shall be treated as a period spent on dutyforall purposes. (10) A perusal of the above provisions would show that before allowing thefull emoluments and benefrtsofthe suspension period, an opinion has to be formed by the competent authority that the suspension was wholly unjustified. Therefore, the contention of Mr. Kesarwani that as soon as the major penalty was converted to minor penalty, the appellate authority ought to have awarded full pay and allowances for the suspension period as an essential consequencethereof, cannot be accepted. (11) In the present case, neither the appellate authority has said nor it appears to us that the suspension of the appellant was wholly unjustified. The appellant was suspended vide order dated 19.8.1998 in contemplation of a departmental enquiry, in which, a charge sheet .was issued on 15.9.1998 containing serious allegations against him. Looking to the aforesaid charges and the facts and circumstances of the case, the suspension of the appellant cannot be said to be wholly unjustified. Therefore, in the above facts and circumstances, if the appellate authority has not directed for payment of full pay and allowances and other service emoluments to the petitioner, the same cannot be held to be illegal or unjustified. til W.ANo.48of2009 ^ (12) For the foregoing reasons, we do not find any substance in this intra-court appeal. The appeal is liable to be dismissed and is hereby dismissed. (13) There shall be no order as to cost. SdA ChiefJustice Sd/- SUWL KUMAR SINHA Judge %. IRaol