STATE OF RAJASTHAN & ANR. versus MANGAT LAL SIDANA on 23 March 2022

STATE OF RAJASTHAN & ANR.

v.

MANGAT LAL SIDANA

(Civil Appeal No. 2386 of 2022)

MARCH 23, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Rajasthan Service Rules, 1951 – r.54 – Scope and purport of– Held: Whenever there is reinstatement in the circumstancesattracting r.54, the authority is to pass a specific order relating tothe pay and allowances to be paid and also as to whether the periodof such absence is being treated as period spent on duty – Wherethe employee is not fully exonerated and therefore is governed byr.54(3), then the period of absence is not to be treated as duty unlessthe authority specifically directs that it shall be duty for any specifiedpurpose – Further, proviso to r.54(5) contemplates that it is open tothe Government to direct that the period of absence shall beconverted into leave of any kind due and admissible for Governmentservant – In the present case, the respondents have not been fullyexonerated as such – This would take their case outside the fourwalls of r.54(2) – Their suspension may not fall in the category ofunjustified suspension – This would bring their cases within thescope of r.54(3) which means that the exact amount of pay andallowances to be paid is to be less than the full pay and allowances– However, this exercise can be done only after notice to theemployee which was not done but, to remit it back for this purposewould be inequitable – On facts, the respondents be paid pay andallowances fixed at 50 % of the pay and allowances which theywould have drawn for the period of their absence – Principles ofNatural Justice – Rajasthan Civil Services (Classification, Control& Appeal) Rules, 1958 – r.34 – Punjab Civil Services Rules – ServiceLaw.

Service Law – Rajasthan Service Rules, 1951 – r.54 –Principles of natural justice – Observance of – Held: The employeemust be given an opportunity before any order is passed – Even u/r. 54, the position is the same – Observance of principles of naturejustice is of cardinal importance for the employee whose very life

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Awill be at stake for he would on the one hand if he is heard get anopportunity to pursuade the competent authority that his case wouldfall under r.54(2) and not under r.54(3) – Denial of opportunitycan have very serious consequences.

Partly allowing the appeals, the CourtB

HELD: 1.1 Rule 54 is a provision which is a commonprovision in both the State services and also the Central services.The counter part in the Central Services is Rule 54 of the Rules.In fact, Rule 7.3(B) of the Punjab Civil Services Rules is a separateprovision which deals with a person being placed under suspensionCand who is reinstated without there being a penalty imposed. Rule54 with which this Court is concerned contemplates an amalgamof situations which deal with disciplinary proceedings culminatingin dismissal, compulsory retirement and removal and it also dealswith absence from duty on account of suspension. In other words,when an employee at the end of the disciplinary proceedings isDpunished in terms thereof and as a result of the order passed isreinstated, then the competent authority is called upon to considerand pass specific order regarding the pay and allowances to bepaid for the period for absence from duty. The Rule appears toseparately contemplate the duty to provide for the pay andEallowances for the period of suspension ending with the date ofretirement on superannuation as the case may be. In other words,the Rule in its application contemplates a situation wherein aGovernment servant being dismissed, removed, compulsoryretired or suspended is reinstated. It also takes in a case wherebut for his retirement, he would have been reinstated while underFsuspension. In both these cases, the duty of the competentauthority is to pass the order within the contemplation of Rule54(1)(a) and (b). This means that apart from dealing with pay andallowances, as to whether the period of absence is to be treatedas duty must be dealt with. This flows from Rule 54(1)(b). TheGmanner in which the authority is to pass the order is regulated bysubsequent provisions in Rule 54. Sub-rule 54(2) contemplatesthat the competent authority must examine the proceedings, applyits mind, and find whether it is a case where the Governmentservant at the end of the day has been fully exonerated. In thecase of suspension where a person being under suspension isH

reinstated, the duty lies on the competent authority to considerthe question as to whether the suspension was justified or whollyunjustified. If the suspension was wholly unjustified, theGovernment servant would be entitled to be paid the full pay anddearness allowance which he was entitled to had he not beensuspended. The same is the case of the Government servantvisited with the penalty of dismissal, removal or compulsoryretirement. If it is found that at the end of the day that the penaltywas wholly unjustified in that, on merit it is found that theemployee stands completely exonerated, he would be entitled toget full pay and dearness allowance. Rule 54(3) is the residuaryclause. The provisions of Rule 54(2) and (3) are mutuallyexclusive. In other words, if an employee is not fully exonerated,he is to be given such proportion of the pay and allowances asthe competent authority may prescribe. Sub-rule (4) of Rule 54is relatable to sub-rule 54(1)(b). In other words, whenever thereis re-instatement in the circumstances attracting Rule 54, theauthority is to pass a specific order relating to the pay andallowances to be paid and also as to whether the period of suchabsence is being treated as period spent on duty. Both theseaspects must be reflected in the order. [Paras 8, 9][773-D-H;774-A-E]

1.2 In the case where there is full exoneration, the rule-maker had made it clear that the period of absence is to be treatedas duty for all purposes. However, the provisions of Rule 54(5)contemplate a situation where the employee is not fully exoneratedand therefore is governed by Rule 54(3). Then the period ofabsence is not to be treated as duty unless the authorityspecifically directs that it shall be duty for any specified purpose.The proviso to Rule 54(5) contemplates that it is open to theGovernment to direct that the period of absence shall beconverted into leave of any kind due and admissible forGovernment servant. This would appear to be the scope andpurport of Rule 54. [Para 10][774-F-G]

1.3 This is a case where the respondents have not beenfully exonerated as such. The proof of the same is to be found inthe fact that they have been visited with a penalty as the disciplinaryproceedings have admittedly culminated in the penalty being AB

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Apassed which may be a minor penalty. The other aspect of thematter is about the observance of principles of natural justice.The employee must be given an opportunity before any order ispassed. The matter is no longer res integra.[See M. GopalakrishnaNaidu v. State of Madhya Pradesh AIR 1968 SC 240]. It does notneed reiteration that even under Rule 54, the position is theBsame. Observance of principles of nature justice is of cardinalimportance for the employee whose very life will be at stake forhe would on the one hand if he is heard get an opportunity topursuade the competent authority that his case would fall underRule 54(2) and not under Rule 54(3). [Paras 11, 12][774-H; 775-CA-C]

1.4 Learned Additional Advocate General appearing for theappellants would point out that in such circumstances, the courseto be adopted would be to remit it back to the competent authorityso that the competent authority may ensure that the respondentsDappear before the authorities and then the case is decided. Infact, the course adopted by this Court finally in M. GopalakrishnaNaidu was to remit the matter back to the competent authorityto pass an order after hearing the employee. But then, learnedcounsel for the respondent would point out that the respondentis aged 76 and at this stage, remitting back the matter would beEhighly inequitable. In the leading case, this Court noticed, at thetime of admission, this Court had passed an order of stay subjectto payment of 50 per cent of the backwages. Denial of opportunitycan have very serious consequences. In this case, the finding isthat the principles of natural justice were not complied with. On Fthis ground, the respondents would support the judgment. [Paras12, 13][775-D-F; C-D]

1.5 The disciplinary proceedings against the respondentsin both the cases have not culminated in a situation where it couldbe said that they have been completely exonerated. This wouldGtake their case outside the four walls of Rule 54(2) of the Rules.Their suspension may not fall in the category of unjustifiedsuspension. This inevitably and necessarily would bring theircases within the scope of Rule 54(3). This would necessarily meanthat the exact amount of pay and allowances to be paid is to beless than the full pay and allowances. However, this exercise canH

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be done only after notice to the employee. Admittedly, there is afailure by the appellants in this regard. But, at the same time, toremit it back for this purpose in our view would be inequitable.Hence this Court would rather adopt the middle path by directingthat in the facts and circumstances of the case, the respondentsbe paid pay and allowances fixed at 50 per cent of the pay andallowances which they would have drawn for the period of theirabsence. Accordingly, the appeals are partly allowed. This Courtdirects that the respondents in both the cases will be paid thepay and allowances at 50 per cent of the amount which they wouldbe entitled for the period in question. [Para 14][775-G-H; 776-A-B]

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M. Gopalakrishna Naidu v. State of Madhya PradeshAIR 1968 SC 240 : [1968] 1 SCR 355 (12) – reliedon.

Case Law Reference

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[1968] 1 SCR 355relied onPara 12

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2386of 2022.

From the Judgment and Order dated 28.04.2016 of the High Courtof Judicature for Rajasthan at Jodhpur in DB Civil Special Appeal (Writ)ENo. 493 of 2008.

With

Civil Appeal No. 2365 of 2022.

Dr. Manish Singhvi, Sr. Adv., Arpit Parkash, Sandeep Kumar Jha, F

Advs. for the Appellants.

Ajay Choudhary, Ms. Archana Pathak Dave, Prateek Kasliwal,Avnish Dave, Ms. Vanya Gupta, Kumar Prashant, Advs. for theRespondents.

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The Judgment of the Court was delivered by

K. M. JOSEPH, J.

Leave granted.

Since both the appeals raise common issues, we dispose of thesame by a common judgment.

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A(1) We take the appeal arising out of SLP (C)No. 32112 of 2016as the leading case, i.e. Civil Appeal No. 2386 of 2022. The respondentherein was employed with the appellants and working in the cadre ofAssistant Engineer. Disciplinary proceedings was taken against therespondent. Apparently, in contemplation of the disciplinary proceedings,the respondent was placed under suspension by an order in the yearB1981. In the case of the respondent in the leading case, proceedingsculminated in penalty of compulsory retirement. The respondent filed acivil suit. The civil Court granted relief by which the appellants weredirected to consider the matter afresh. Fresh consideration resulted inthe respondent being visited with the penalty of withholding of threeCgrade increments with cumulative effect. The respondent carried thematter further in the departmental proceedings. Suffice is to say that inexercise of the power under Rule 34 of the Rajasthan Civil Services(Classification, Control & Appeal) Rules, 1958, an order came to bepassed substituting the penalty with penalty of censure. Thereafter, furtherproceedings were taken within the meaning of Rule 54 of the theDRajasthan Service Rules, 1951 (hereinafter referred to as ‘Rules’ forbrevity).

This proceeding resulted in the impugned order which was finallyimpugned in the writ petition which has given rise to the present appeal.

E(2) The substance of the order in the leading case is as follows:

The period of absence from duty which comprises of the periodof suspension in which the first respondent was placed was treated asduty only for the purpose of pension. It is further ordered that no amountother than subsistence allowance shall be payable. This triggered filingFof the writ petition by the respondent. The learned Single Judge allowedthe writ petition and the following is the operative portion of the order:

“Accordingly, this petition for writ is allowed. The orderdated 3.9.2001 to the extent it treats the period during which thepetitioner was out of employment as a consequent to an order ofGcompulsory retirement as “disa-non” and also denies payment offull wages for the period he remained under suspension is declaredillegal and, therefore, the same is quashed. The petitioner declaredentitled for full wages for the period he remained under suspension.The respondents are further directed to consider candidature ofthe petitioner afresh for the purpose of promotion to the post ofHAssistant Engineer against the vacancies of the year 1978-79. In the event the petitioner is found suitable for promotion against thevacancies of the year 1978-79, the promotion be recorded to himas such with all other consequential benefits.

No order to costs.”

The appeal carried by the appellants was unsuccessful.

(3) The respondent in other case also came to be initially visitedwith penalty of withdrawal of increments. He also obtained relief in theform of substituting of the penalty with the penalty of censure. He alsofiled a writ petition feeling aggrieved by the order passed purporting tobe under Rule 54 of the Rules. The learned Single Judge in his casefollowed the judgment in the case of Mangat Lal Sidana (the leadingcase) and granted relief which was sought on similar lines. The appealfiled by the appellants in this case was also unsuccessful. Hence theappeals.

(4) We have heard Dr. Manish Sighvi, learned Additional AdvocateGeneral, Ms. Archana Pathak Dave, learned counsel for the respondentin SLP (C)No. 32112/2016 and have also heard Mr. Ajay Choudhary,the learned counsel appointed as Amicus Curiae finding that therespondent in SLP (C)No. 30740/2017 did not put in appearance.

(5) The principal bone of contention appears to arise from thetrue purport of Rule 54 of the Rules.

According to Dr. Manish Singhvi, learned Additional AdvocateGeneral appearing for the appellants, Rule 54 contemplates giving of fullbenefits by way of pay and allowances in a case where the employeewho has been reinstated was actually the victim of harassment, in that itwas found by the disciplinary authority that he was completely blamelessand what is more, he stands completely exonerated. If an employee isnot fully exonerated, the case would have to be dealt with under sub-rule (3) of Rule 54. This means that the employee would not be entitledto the award of full pay and allowances which he would have otherwisedrawn. The case at hand before us, according to the learned AdditionalAdvocate General appearing for the appellants, is to be decided withreference to Rule 54(3). According to him, the High Court has erred innot noticing that at the end of the day, the respondents in both caseshave not been fully exonerated. On the other hand, disciplinary proceedingshave admittedly attained finality in the form of penalty being imposed onthem. The penalty may be a minor penalty but what is relevant is whether A

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Athe employee was fully exonerated within the meaning of Rule 54(2). Itis his submission that they were not fully exonerated and, therefore, thevery foundation of the judgment of the High Court is flawed.

(6) Per contra, learned counsel for the respondent in the leadingcase, Ms. Archana Pathak Dave, would point out that the judgment ofBthe High Court must be upheld on another ground which is that beforepassing the impugned order purporting to be under Rule 54 of the Rules,no notice was issued to the respondents. Support is laid on the judgmentsof this Court. She further points out that having regard to the nature ofthe penalty which has been imposed which is a minor penalty and thefindings which have been entered into, the impugned judgment is only toCbe supported. Learned Amicus Curiae, in other case, with reference toRule 54, makes his submission on the effect of Rule 54 to be that Rule54 contemplates that on exoneration, employee is entitled to full pay andallowances.

Whereas, in the other case, the case would have been whereinDthe employee may not be getting full pay and allowances.

(7) Rule 54 of the Rules reads as follows:

54. Re-instatement—

(1) When a Government servant who has been dismissed, removed,compulsorily retired or suspended is re-instated or would haveEbeen re-instated but for his retirement on superannuation whileunder suspension, the authority competent to order the re-instatement shall consider and make a specific order:—

(a) regarding the pay and allowances to be paid to the Governmentservant for the period of his absence from duty or for the periodFof suspension ending with the date of his retirement onsuperannuation as the case may be;and

(b) Whether or not the said period shall be treated as a periodspend on duty.

(2) Where such competent authority holds that the GovernmentGServant has been fully exonerated or, in the case of suspensionthat it was wholly unjustified, the Government servant shall begiven the full pay and dearness allowance to which he wouldhave been entitled had he not been dismissed, removed orcompulsorily retired as a penalty or suspended, as the case maybe.

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(3) In other cases, the Government servant shall be given suchproportion of such pay and dearness allowance as such competentauthority may prescribe.

(4) In a case falling under clause (2) the period of absence fromduty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (3) the period of absence fromduty shall not be treated as a period on duty unless such authorityspecifically directs that it shall be so treated for any specifiedpurpose:

Provided that if the Government so desires, such authoritymay direct that the period of absence from duty shall be convertedinto leave of any kind due and admissible to the Governmentservant.

(8) Rule 54 is a provision which is a common provision in both theState services and also the Central services. The counter part in theCentral Services is Rule 54 of the Rules. In fact, Rule 7.3(B) of thePunjab Civil Services Rules is a separate provision which deals with aperson being placed under suspension and who is reinstated withouttherebeing a penalty imposed.

(9) Rule 54 with which we are concerned contemplates anamalgam of situations which deal with disciplinary proceedingsculminating in dismissal, compulsory retirement and removal and it alsodeals with absence from duty on account of suspension. In other words,when an employee at the end of the disciplinary proceedings is punishedin terms thereof and as a result of the order passed is reinstated, thenthe competent authority is called upon to consider and pass specificorder regarding the pay and allowances to be paid for the period forabsence from duty. The Rule appears to separately contemplate theduty to provide for the pay and allowances for the period of suspensionending with the date of retirement on superannuation as the case maybe. In other words, the Rule in its application contemplates a situationwherein a Government servant being dismissed, removed, compulsoryretired or suspended is reinstated. It also takes in a case where but forhis retirement, he would have been reinstated while under suspension.In both these cases, the duty of the competent authority is to pass theorder within the contemplation of Rule 54(1)(a) and (b). This means thatapart from dealing with pay and allowances, as to whether the period of A

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Aabsence is to be treated as duty must be dealt with. This flows fromRule 54(1)(b). The manner in which the authority is to pass the order isregulated by subsequent provisions in Rule 54. Sub-rule 54(2)contemplates that the competent authority must examine the proceedings,apply its mind, and find whether it is a case where the Governmentservant at the end of the day has been fully exonerated. In the case ofBsuspension where a person being under suspension is reinstated, theduty lies on the competent authority to consider the question as to whetherthe suspension was justified or wholly unjustified. If the suspension waswholly unjustified, the Government servant would be entitled to be paidthe full pay and dearness allowance which he was entitled to had he notCbeen suspended. The same is the case of the Government servant visitedwith the penalty of dismissal, removal or compulsory retirement. If it isfound that at the end of the day that the penalty was wholly unjustified inthat, on merit it is found that the employee stands completely exonerated,he would be entitled to get full pay and dearness allowance. Rule 54(3)is the residuary clause. The provisions of Rule 54(2) and (3) are mutuallyDexclusive. In other words, if an employee is not fully exonerated, he is tobe given such proportion of the pay and allowances as the competentauthority may prescribe. Sub-rule (4) of Rule 54 is relatable to sub-rule54(1)(b). In other words, whenever there is re-instatement in thecircumstances attracting Rule 54, the authority is to pass a specific orderErelating to the pay and allowances to be paid and also as to whether theperiod of such absence is being treated as period spent on duty. Boththese aspects must be reflected in the order.

(10) In the case where there is full exoneration, the rule-makerhad made it clear that the period of absence is to be treated as duty forFall purposes. However, the provisions of Rule 54(5) contemplate a situationwhere the employee is not fully exonerated and therefore is governedby Rule 54(3). Then the period of absence is not to be treated as dutyunless the authority specifically directs that it shall be duty for any specifiedpurpose. The proviso to Rule 54(5) contemplates that it is open to theGovernment to direct that the period of absence shall be converted intoGleave of any kind due and admissible for Government servant. This wouldappear to be the scope and purport of Rule 54.

(11) We have seen the order passed in the leading case.

This is a case where the respondents have not been fullyHexonerated as such. The proof of the same is to be found in the fact that they have been visited with a penalty as the disciplinary proceedingshave admittedly culminated in the penalty being passed which may be aminor penalty.

(12) The other aspect of the matter is about the observance ofprinciples of natural justice. The employee must be given an opportunitybefore any order is passed. The matter is no longer res integra. [SeeM. Gopalakrishna Naiduv. State of Madhya Pradesh AIR 1968 SC240]. It does not need reiteration that even under Rule 54, the position isthe same. Observance of principles of nature justice is of cardinalimportance for the employee whose very life will be at stake for hewould on the one hand if he is heard get an opportunity to pursuade thecompetent authority that his case would fall under Rule 54(2) and notunder Rule 54(3). Denial of opportunity can have very seriousconsequences. In this case, the finding is that the principles of naturaljustice were not complied with. On this ground, the respondents wouldsupport the judgment.

(13) Dr. Manish Singhvi, learned Additional Advocate Generalappearing for the appellants would point out that in such circumstances,the course to be adopted would be to remit it back to the competentauthority so that the competent authority may ensure that the respondentsappear before the authorities and then the case is decided. In fact, wefind that the course adopted by this Court finally in M. GopalakrishnaNaidu (supra) was to remit the matter back to the competent authorityto pass an order after hearing the employee. But then, learned counselfor the respondent would point out that the respondent is aged 76 and atthis stage, remitting back the matter would be highly inequitable. In theleading case, we notice, at the time of admission, this Court had passedan order of stay subject to payment of 50 per cent of the backwages.

(14) Having heard the learned counsel for the parties, we are ofthe view that the following conclusions can be arrived at.

The disciplinary proceedings against the respondents in both thecases have not culminated in a situation where it could be said that theyhave been completely exonerated. This would take their case outsidethe four walls of Rule 54(2) of the Rules. Their suspension may not fallin the category of unjustified suspension. This inevitably and necessarilywould bring their cases within the scope of Rule 54(3). This wouldnecessarily mean that the exact amount of pay and allowances to bepaid is to be less than the full pay and allowances. However, this exercise AB

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Acan be done only after notice to the employee. Admittedly, there is afailure by the appellants in this regard. But, at the same time, to remit itback for this purpose in our view would be inequitable. Hence we wouldrather adopt the middle path by directing that in the facts andcircumstances of the case, the respondents be paid pay and allowancesfixed at 50 per cent of the pay and allowances which they would haveBdrawn for the period of their absence. Accordingly, the appeals are partlyallowed. We direct that the respondents in both the cases will be paidthe pay and allowances at 50 per cent of the amount which they wouldbe entitled for the period in question.

The appeals are allowed as above. No orders as to costs.C

Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeals partly allowed.

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