State Of Rajasthan vs Mangat Lal Sidana

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2386 OF 2022 (Arising out of SLP (C)No. 32112 of 2016)

STATE OF RAJASTHAN & ANR. Appellant(s)

VERSUS

MANGAT LAL SIDANA Respondent(s)

WITH

CIVIL APPEAL NO. 2365 OF 2022 (Arising out of SLP (C)No. 30740 of 2017)

J U D G M E N T

K. M. JOSEPH, J.

Leave granted.

Since both the appeals raise common issues, we dispose

of the same by a common judgment.

(1) We take the appeal arising out of SLP (C)No. 32112 of

2016 as the leading case, i.e. Civil Appeal No. 2386 of

2022. The respondent herein was employed with the

appellants and working in the cadre of Assistant Engineer.

Disciplinary proceedings was taken against the respondent.

Apparently, in contemplation of the disciplinary

proceedings, the respondent was placed under suspension by Signature Not Verified Digitally signed by Nidhi Ahuja an order in the year 1981. In the case of the respondent in Date: 2022.03.30 17:32:09 IST Reason:

the leading case, proceedings culminated in penalty of

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compulsory retirement. The respondent filed a civil suit.

The civil Court granted relief by which the appellants were

directed to consider the matter afresh. Fresh consideration

resulted in the respondent being visited with the penalty of

withholding of three grade increments with cumulative

effect. The respondent carried the matter further in the

departmental proceedings. Suffice is to say that in

exercise of the power under Rule 34 of the Rajasthan Civil

Services (Classification, Control & Appeal) Rules, 1958, an

order came to be passed substituting the penalty with

penalty of censure. Thereafter, further proceedings were

taken within the meaning of Rule 54 of the the Rajasthan

Service Rules, 1951 (hereinafter referred to as ‘Rules’ for

brevity).

This proceeding resulted in the impugned order which

was finally impugned in the writ petition which has given

rise to the present appeal.

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

follows:

The period of absence from duty which comprises of the

period of suspension in which the first respondent was

placed was treated as duty only for the purpose of pension.

It is further ordered that no amount other than subsistence

allowance shall be payable. This triggered filing of the

writ petition by the respondent. The learned Single Judge

allowed the writ petition and the following is the operative

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portion of the order:

“Accordingly, this petition for writ is allowed. The order dated 3.9.2001 to the extent it treats the period during which the petitioner was out of employment as a consequent to an order of compulsory retirement as “disa-non” and also denies payment of full wages for the period he remained under suspension is declared illegal and, therefore, the same is quashed. The petitioner declared entitled for full wages for the period he remained under suspension. The respondents are further directed to consider candidature of the petitioner afresh for the purpose of promotion to the post of Assistant Engineer against the vacancies of the year 1978-79. In the event the petitioner is found suitable for promotion against the vacancies of the year 1978-79, the promotion be recorded to him as 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

visited with penalty of withdrawal of increments. He also

obtained relief in the form of substituting of the penalty

with the penalty of censure. He also filed a writ petition

feeling aggrieved by the order passed purporting to be under

Rule 54 of the Rules. The learned Single Judge in his case

followed the judgment in the case of Mangat Lal Sidana (the

leading case) and granted relief which was sought on similar

lines. The appeal filed by the appellants in this case was

also unsuccessful. Hence the appeals.

(4) We have heard Dr. Manish Sighvi, learned Additional

Advocate General, Ms. Archana Pathak Dave, learned counsel

for the respondent in SLP (C)No. 32112/2016 and have also

heard Mr. Ajay Choudhary, the learned counsel appointed as

3 CA No.2386/ 2022 (@ SLP (C)No. 32112/ 2016) etc.

Amicus Curiae finding that the respondent in SLP (C)No.

30740/2017 did not put in appearance.

(5) The principal bone of contention appears to arise from

the true purport of Rule 54 of the Rules.

According to Dr. Manish Singhvi, learned Additional

Advocate General appearing for the appellants, Rule 54

contemplates giving of full benefits by way of pay and

allowances in a case where the employee who has been

reinstated was actually the victim of harassment, in that it

was found by the disciplinary authority that he was

completely blameless and what is more, he stands completely

exonerated. If an employee is not 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 entitled to

the award of full pay and allowances which he would have

otherwise drawn. The case at hand before us, according to

the learned Additional Advocate General appearing for the

appellants, is to be decided with reference to Rule 54(3).

According to him, the High Court has erred in not noticing

that at the end of the day, the respondents in both cases

have not been fully exonerated. On the other hand,

disciplinary proceedings have admittedly attained finality

in the form of penalty being imposed on them. The penalty

may be a minor penalty but what is relevant is whether the

employee was fully exonerated within the meaning of Rule

54(2). It is his submission that they were not fully

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exonerated and, therefore, the very foundation of the

judgment of the High Court is flawed.

(6) Per contra, learned counsel for the respondent in the

leading case, Ms. Archana Pathak Dave, would point out that

the judgment of the High Court must be upheld on another

ground which is that before passing the impugned order

purporting to be under Rule 54 of the Rules, no notice was

issued to the respondents. Support is laid on the judgments

of this Court. She further points out that having regard to

the nature of the penalty which has been imposed which is a

minor penalty and the findings which have been entered into,

the impugned judgment is only to be supported. Learned

Amicus Curiae, in other case, with reference to Rule 54,

makes his submission on the effect of Rule 54 to be that

Rule 54 contemplates that on exoneration, employee is

entitled to full pay and allowances.

Whereas, in the other case, the case would have been

wherein the 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 have been re-instated but for his retirement on superannuation while under 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 Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the

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case may be;and

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

(2) Where such competent authority holds that the Government Servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be.

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

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

(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.

(8) Rule 54 is a provision which is a common provision 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 separate provision which deals with a person

being placed under suspension and who is reinstated without

there being a penalty imposed.

(9) Rule 54 with which we are concerned contemplates an

amalgam of situations which deal with disciplinary

proceedings culminating in dismissal, compulsory retirement

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and removal and it also deals with absence from duty on

account of suspension. In other words, when an employee at

the end of the disciplinary proceedings is punished in terms

thereof and as a result of the order passed is reinstated,

then the competent authority is called upon to consider and

pass specific order regarding the pay and allowances to be

paid for the period for absence from duty. The Rule appears

to separately contemplate the duty to provide for the pay

and allowances for the period of suspension ending with the

date of retirement on superannuation as the case may be. In

other words, the Rule in its application contemplates a

situation wherein a Government servant being dismissed,

removed, compulsory retired or suspended is reinstated. It

also takes in a case where but for his retirement, he would

have been reinstated while under suspension. In both these

cases, the duty of the competent authority is to pass the

order within the contemplation of Rule 54(1)(a) and (b).

This means that apart from dealing with pay and allowances,

as to whether the period of absence is to be treated as duty

must be dealt with. This flows from Rule 54(1)(b). The

manner in which the authority is to pass the order is

regulated 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 Government servant at the end of the day has

been fully exonerated. In the case of suspension where a

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person being under suspension is reinstated, the duty lies

on the competent authority to consider the question as to

whether the suspension was justified or wholly unjustified.

If the suspension was wholly unjustified, the Government

servant would be entitled to be paid the full pay and

dearness allowance which he was entitled to had he not been

suspended. The same is the case of the Government servant

visited with the penalty of dismissal, removal or compulsory

retirement. If it is found that at the end of the day that

the penalty was wholly unjustified in that, 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 mutually exclusive. In other words, if an

employee is not fully exonerated, he is to be given such

proportion of the pay and allowances as the competent

authority may prescribe. Sub-rule (4) of Rule 54 is

relatable to sub-rule 54(1)(b). In other words, whenever

there is re-instatement in the circumstances attracting Rule

54, the authority is to pass a specific order relating to

the pay and allowances to be paid and also as to whether the

period of such absence is being treated as period spent on

duty. Both these aspects must be reflected in the order.

(10) In the case where there is full exoneration, the rule-

maker had made it clear that the period of absence is to be

treated as duty for all purposes. However, the provisions

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of Rule 54(5) contemplate a situation where the employee is

not fully exonerated and therefore is governed by Rule

54(3). Then the period of absence is not to be treated as

duty unless the authority specifically directs that it shall

be duty for any specified purpose. The proviso to Rule

54(5) contemplates that it is open to the Government to

direct that the period of absence shall be converted into

leave of any kind due and admissible for Government servant.

This would appear 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

fully exonerated 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 proceedings have admittedly culminated

in the penalty being passed which may be a minor penalty.

(12) The other aspect of the matter is about the observance

of principles of natural justice. The employee must be

given an opportunity before any order is passed. The matter

is no longer res integra. [See M. Gopalakrishna Naidu v.

State of Madhya Pradesh AIR 1968 SC 240]. It does not need

reiteration that even under Rule 54, the position is the

same. Observance of principles of nature justice is of

cardinal importance for the employee whose very life will be

at stake for he would on the one hand if he is heard get an

opportunity to pursuade the competent authority that his

case would fall under Rule 54(2) and not under Rule 54(3).

9 CA No.2386/ 2022 (@ SLP (C)No. 32112/ 2016) etc.

Denial of opportunity can have very serious consequences.

In this case, the finding is that the principles of natural

justice were not complied with. On this ground, the

respondents would support the judgment.

(13) Dr. Manish Singhvi, learned Additional Advocate

General appearing for the appellants would point out that in

such circumstances, the course to be adopted would be to

remit it back to the competent authority so that the

competent authority may ensure that the respondents appear

before the authorities and then the case is decided. In

fact, we find that the course adopted by this Court finally

in M. Gopalakrishna Naidu (supra) was to remit the matter

back to the competent authority to pass an order after

hearing the employee. But then, learned counsel for the

respondent would point out that the respondent is aged 76

and at this stage, remitting back the matter would be highly

inequitable. In the leading case, we notice, at the time of

admission, this Court had passed an order of stay subject to

payment of 50 per cent of the backwages.

(14) Having heard the learned counsel for the parties, we

are of the view that the following conclusions can be

arrived at.

The disciplinary proceedings against the respondents

in both the cases have not culminated in a situation where

it could be said that they have been completely exonerated.

This would take their case outside the four walls of Rule

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54(2) of the Rules. Their suspension may not fall in the

category of unjustified suspension. This inevitably and

necessarily would bring their cases within the scope of Rule

54(3). This would necessarily mean that the exact amount of

pay and allowances to be paid is to be less than the full

pay and allowances. However, this exercise can be done only

after notice to the employee. Admittedly, there is a

failure by the appellants in this regard. But, at the same

time, to remit it back for this purpose in our view would be

inequitable. Hence we would rather adopt the middle path by

directing that in the facts and circumstances of the case,

the respondents be paid pay and allowances fixed at 50 per

cent of the pay and allowances which they would have drawn

for the period of their absence. Accordingly, the appeals

are partly allowed. We direct that the respondents in both

the cases will be paid the pay and allowances at 50 per cent

of the amount which they would be entitled for the period in

question.

The appeals are allowed as above. No orders as to

costs.

………………………………………………………………………., J.

[ K.M. JOSEPH ]

………………………………………………………………………., J.

[ HRISHIKESH ROY ] New Delhi;

23rd March, 2022.

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