1. Heard learned counsel for the parties and perused the record.. As agreed by learned counsel for the parties, I proceeded to hear the matter finally at this stage under the Rules of the Court.
2. The only relief pressed before this Court is the salary for the period of suspension i.e. 1st August, 1968 to 22nd July, 1983 along with interest.
3. The petitioner has sought a writ of certiorari for quashing the order dted 23rd January, 2007 (Annexure 9 to the writ petition) whereby the above request of the petitioner has been turned down only on the ground that the petitioner has been found guilty of delay in disposal of the disciplinary proceedings and hence no salary is payable for the period of suspension. It is not in dispute that the petitioner was placed under suspension on 1st August, 1968 on account of certain irregularities allegedly committed by him while posted as Cooperative Supervisor, Gonda. A first information report was also lodged against him. While placing under suspension vide order dated 1st August, 1968 the petitioner was attached with the office of Assistant Registrar, Cooperative Societies, Gonda where he submitted his joining on 9th February, 1970. A charge sheet was issued to the petitioner on 7th February, 1972 which was replied by the petitioner on 9th March, 1972 stating that the matter is pending investigation by the police and therefore there is no occasion for holding a simultaneous enquiry by the Assistant Registrar. Thereafter the matter remained pending since trial was continuing in the Court.
4. The District Level Committee of the Society passed a resolution on 20.12.1982 that disposal of criminal trial in the Court would take time and therefore the petitioner may be reinstated in the meantime. It appears that against the charge sheet was served upon the petitioner on 19th January, 1982 which was replied by him on 22nd January, 1982. Additional District Cooperative Officer was appointed as enquiry officer by order dated 29th January, 1982 but later on the respondents decided to reinstate the petitioner tentatively as a consequence thereof the Deputy Registrar (Cooperative) by order dated 16th July, 1983 reinstated the petitioner observing that reinstatement shall not adversely affect the matter pending before the Court, the petitioner shall not be posted on a post of responsibility and no amount beyond one fourth of the subsistence allowance shall be paid.
5. In the criminal case i.e., Case No. 1309 of 1981 the Court of Additional Chief Judicial Magistrate, Faizabad acquitted the petitioner vide judgment dated 25.02.1986. Thereafter the petitioner requested the respondents to take a final decision in the matter of salary but no decision was taken. It appears that inquiry officer in the meantime had also submitted a report wherein he did not find any charge proved against the petitioner. The petitioner aggrieved by inaction on the part of respondents in taking final decision regarding payment of salary and other consequential benefits, approached this Court in Writ Petition No. 6845(S/S) of 1987 wherein an order was issued directing the competent authority to take a final decision in the matter within two months. Pursuant thereto the Deputy Registrar passed an order on 18.07.1988 closing the matter with recommendation for fixation of salary, increment, continuance of service, promotion etc. except full salary for the period of suspension which was directed to be confined only to the extent of subsistence allowance already paid. In taking this decision, the Deputy Registrar observed that it is the petitioner who was responsible for delay in proceedings.
6. The order dated 16.07.1988 was placed before this Court in the aforesaid pending writ petition which came to be finally decided on 15.03.2005 and this Court passed the following order:
"Sri Rakesh Kumar learned counsel for opposite party no.1 has fairly submitted that that this Court may provide that the opposite parties be allowed to issue show cause notice against the petitioner and pass appropriate orders after considering the reply of the petitioner to the said show cause notice.
In view of above, the writ petition is finally disposed of with the liberty to opposite party no.1 to issue such show cause notice regarding payment of salary to the petitioner for the period suspension. However, it is made clear that in the present case petitioner was suspended because of pendency of criminal trial which had resulted in clean and honorable acquittal of the petitioner. It will be for the employer to consider taking such a recourse as the petitioner was under suspension due to continuance of departmental enquiry. This Court is not interfering with the order of reinstatement and the benefits which accrued to the petitioner by issuance of such order. The petitioner has already retired on attaining the age of superannuation.
7. Pursuant to the above, a show cause notice dated 03.06.2005 was issued requiring the petitioner to show cause as to why applying the principle of "no work no pay", full salary during suspension period be declined. The petitioner submitted his reply on 25.07.2005 whereafter the impugned order dated 23.01.2007 has been passed.
8. Learned counsel for the petitioner submitted that no charge has been found proved against petitioner. His suspension was continued for about 15 years for the reasons beyond his control. For pendency of criminal case for more than a decade he was not responsible. It was always open to respondents to hold departmental inquiry and pass appropriate order therein but they chose not to do so. He also submitted where no charge has been found proved, there is no provision under which full salary for the period of suspension can be denied to an employee since during period of suspension though an employee is not asked to perform any duty but relationship of employer and employee continue to subsist, the employee cannot take up any other employment and, therefore, in absence of any statutory provision full salary for period of suspension cannot be denied unless it is found that the suspension was not wholly unjustified.
9. Sri Rakesh Kumar, learned counsel appearing for the respondents submitted that the petitioner himself was responsible for delay in proceedings inasmuch as he was attached with the office of Assistant Registrar by means of order of suspension but he joined the office of Assistant Registrar after almost two years and thereafter also did not cooperate in departmental inquiry and hence for this entire prolonged suspension, petitioner himself has to be blamed. He cannot be given any benefit and, therefore, full salary has rightly been denied by respondents.
10. The short question up for consideration needs to be adjudicated in this case in what circumstances full salary can be denied to an employee for the period he remained under suspension. In respect to the employees of the State Government the matter is governed by the statutory provisions like Fundamental Rule and Fundamental Rules 54, 54-A and 54-B takes care of such a situation. The cumulative effect of the aforesaid provision is where the suspension of the employee has resulted in a punishment, whether the employee would be entitled for full salary during the period of suspension would be decided by the competent authority after giving a show cause notice to him. But where the competent authority found that the suspension was wholly unjustified, or the employee is exhonerated in the disciplinary enquiry and reinstated, he would be entitled for full salary for the period of suspension.
11. In the case in hand, no provision similar or acin to Fundamental Rule 54, 54-A or 54-B have been shown. The counsels for the parties submitted that the said principles may be followed in the case in hand. However, even without adverting to the aforesaid provision, this Court proceeded to look into the question considering the nature of suspension and its influence on the relationship of employer and employee.
12. The nature and effect of suspension has been considered by Apex Court in The Management of Hotel Imperial, New Delhi & Ors. Vs. Hotel Workers' Union AIR 1959 SC 1342. The Apex Court said that the order of suspension only makes the contract of service between the employer and employee in abeyance but neither it results in cessation of said relation nor the parties would be free inasmuch as the employee cannot seek any employment and employer cannot make a substantive recruitment on the post treating the post vacant since the employee placed under suspension, continue to hold lien on the post he was holding. With respect to subsistence allowance the principle is well settled that unless regulated by the statutory rules or terms of contract otherwise, an employee placed under suspension would be entitled for full salary.
13. The contention of counsel for the petitioner that there is no provision under which full salary can be denied to petitioner when no charge against him has been found proved, which shows that suspension was wholly unjustified, could not be contradicted by learned counsel for the respondents since he could not place any provision authorizing respondents to deny full salary to petitioner even if no charge has been proved against him and he has been exonerated with all benefits except full salary for the period of suspension.
14. It appears that the respondents employer in this case got influenced in taking a decision on this aspect against petitioner on account of long period for which suspension had continued. No justification on the part of respondents has come forward for such prolonged suspension. It is a matter of common knowledge that a criminal trial would take much longer time and, therefore, what respondents had done in July, 1983, i.e., reinstatement of petitioner subject to decision in criminal case, could have been done even much earlier but for the reasons best known to them they took almost fifteen years to take such a decision and throughout this period kept the petitioner under suspension. Obviously, this venture on the part of respondents could be on their own risk and responsibility which they cannot shift or divert towards the petitioner. In the criminal case also petitioner has been acquitted. In so called departmental inquiry also nothing has been found proved against petitioner.
15. The suspension of petitioner, therefore, ex facie was wholly justified. In absence of any provision empowering and authorizing the respondents to deny full salary during the period of suspension, in my view, it cannot be denied to petitioner. Respondents cannot be allowed to take advantage of their own wrong. Petitioner cannot be penalized or victimized for a prolonged suspension by denying him full salary for the period even though neither on the question of delay he has any control nor he could have got the aforesaid suspension curtailed on his own volition. The periodical review ought to have been made by respondents which they admittedly have failed.
16. So far as the aspect of "no work no pay" is concerned, it has no application to the case in hand. Here the petitioner never shirked away from his responsibility or obligation to work but the respondents on their own made him incapable of performing any job by placing him under suspension.
17. This Court in the case of Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered the applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer.
18. Considering the right of petitioner to claim full salary during the period of suspension for the reason that nothing has been found proved against petitioner, I find that from whatever angle the matter is considered, it results in giving a verdict in favour of petitioner. Consequently, the writ petition deserves to succeed.
19. In the result the writ petition is allowed. The impugned order dated 23rd January, 2001 (Annexure 9 to the writ petition) is hereby quashed. The respondents are directed to pay full salary to petitioner for the period of suspension but while computing and making payment of full salary, as directed above, respondents shall be entitled to adjust the amount, if any, they have already paid towards subsistence allowance during the aforesaid period.
20. The petitioner shall also be entitled to cost which is quantified to Rs. 20,000/-.
Order Date :- 30.5.2011 KA