Court No. - 16
Case :- WRIT - A No. - 27513 of 2018 Petitioner :- Veer Bahadur Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anil Kumar,Wasim Alam Counsel for Respondent :- C.S.C.,Rohit Yadav
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for petitioner and learned Standing Counsel who appears on behalf of State and Shri Manoj Nigam appearing on behalf of the respondents No. 2 and 3.
2. The counsel for petitioner has submitted that suspension order dated 04.12.2018 could not have been passed with retrospective effect. He has referred to Regulation 85 of the U.P. Cooperative Societies Employees Service Regulations, 1975 and Clause (vii)(f) of Sub Regulation - 2 thereof.
3. I have carefully perused the Regulation - 85 (vii)(f) of the Regulations. The relevant extract of the Regulation -
85 relating to the controversy is being quoted herein below:-
"85. Disciplinary proceedings.- (i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer (referred to in clause (iv) below) with due observance of the principles of natural justice for which it shall be necessary that - --
(a) ............................................
(b) ............................................
(c) ............................................
(ii) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the employee has absconded and his whereabouts are not known to the society for more than three months; or
(c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring officer when specifically called upon in writing to appear; or
(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him, the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings.
(iii) Disciplinary proceedings shall be taken by the society against the employee on a report made to this effect by the inspecting authority or an officer of the society under whose control the employee is working.
(iv) The Inquiring Officer shall be appointed by the appointing authority or by an officer of the society authorised for the purpose by the appointing authority:
Provided that the officer at whose instance disciplinary action was started shall not be appointed as an Inquiring Officer nor shall the Inquiring Officer be the appellate authority.
(v) In the case of an erring employee falling in sub-section (c) of Clause (I) or sub-clause (a) of clause (ii) of Regulation No.5, the committee of management of the society, and if so provided in the bye-laws the Chairman or the Secretary of the society, shall draw up a duplicate charge sheet against the employee and the same shall be communicated to the parent employer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the society and take disciplinary action against him.
(vi) An employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purpose:
(a) When the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee.
(b) When an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society.
(c) When a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a court of law for offence under the Indian Penal Code, U.P. Cooperative Societies Act, 1965 or any other Act or charges have been framed against him by the criminal court: Provided that suspension shall be obligatory where it is called for in terms of clause (I) of Regulation No.83.
(vii) (a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to State Government employees from time to time:
Provided that an employee who is under suspension on the date of coming into force of these regulations shall continue to draw such portion of pay and such allowances as he was allowed to draw for the period of suspension: Provided further that no payment of the subsistence allowance shall be made unless the employee has furnished a certificate, and the authority passing the order of suspension is satisfied that the employee was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefor during the period under suspension.
(b) (1) When an employee is reinstated, the authority competent to order the reinstatement shall make specific order regarding pay and allowances to be paid for the period of suspension and whether or not the said period shall be treated as a period spent on duty:
Provided that where the authority passing the order of reinstatement is of the opinion that the employee has been fully exonerated or the suspension was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been suspended.
(2) In cases not covered by the proviso to foregoing sub- clause (1) the employee shall be given such proportion of pay and allowance as the competent authority may order.
(c) In cases falling under proviso to clause (b) (1) the period of suspension shall be treated as a period spent on duty for all purposes.
(d) In cases falling under clause (b) (2) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated.
(e) The order of suspension shall not take retrospective effect.
(f) Leave shall not be granted to an employee under suspension.
(g) An employee against whom proceedings have been taken either for his arrest for debt or a criminal charge or who is detained under any law for preventive detention shall be considered as under suspension for the period during which he is so detained in custody or is undergoing imprisonment and not be allowed any pay and allowances other than the subsistence allowance admissible under sub-clauses (a) and (b) for such period until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty as the case may be.
(viii) In case of fine, the total amount of fine shall not exceed half month's pay or maximum fine, chargeable under the Payment of Wages Act, 1936, where this Act is applicable to the employee concerned and it shall be deducted from his pay in monthly instalments, each such instalment not exceeding one-fourth of his monthly salary.
(ix) The order of suspension may be revoked by
(a) The authority which passed the orders, or
(b) The appointing authority, if there are sufficient reasons for revocation and the same shall be recorded in the order of revocation.
(x) No employee shall ordinarily remain under suspension for more than 6 months:
Provided that this conduction shall not apply to such cases where the suspension is made on criminal charges on the direction of the court."
4. The relevant extract of Regulation 83 is also quoted herein below:-
"83. (i) An employee arrested for debt or on a criminal charge shall be placed under suspension from the date of his arrest:
Provided that if he is released on bail or on recognizance, he may with the approval of the Registrar, be permitted to resume and continue on duty until charges are framed against him by the trying court:
(vi) An employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purpose —
(a) when the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee;
(b) When an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society;
(c) When a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a court of law for offence under the Indian Penal Code, U.P. Cooperative Societies Act, 1965 or any other Act or charges have been framed against him by the criminal court :
Provided that suspension shall be obligatory where it is called for in terms of clause (i) of Regulation No. 83"
5. A perusal of the Regulation - 83 of the same Regulations shows that an employee arrested for debt or on a criminal charge shall be placed under suspension from the date of his arrest. An exception has been carved out with respect to Clause - 6 (c) by the proviso which shows that the suspension shall be obligatory where it is called for in terms of clause - 1 of the Regulation - 83.
6. In the case of the petitioner Shri Nigam has pointed out that the petitioner had been concealing the fact of his arrest from his employers right from the very beginning. He also made an application for earned leave and when a fact finding inquiry was conducted in the matter, it was found that the petitioner had been arrested after his surrender on a criminal charge. Therefore, the Regulation - 85 Clause -
(vii) (f) would not apply in his case.
7. The counsel for petitioner has placed reliance upon a Division Bench decision of the Hon'ble High Court of Patna in Jethan Prasad Vs. State of Bihar, 1981 Labour and Industrial Cases 453.
8. I have carefully perused the judgement relied upon by the learned counsel for petitioner. In the said judgement the writ petitioner was suspended on the charge of receiving illegal gratification under the Prevention of Corruption Act and Indian Penal Code (IPC). He was arrested on 10.11.1978 but released on bail on 09.01.1979. On being released, he went to join his office, he was served with a suspension order sometime in September, 1979. The counsel for the writ petitioner in the aforesaid case had placed reliance upon a judgment of the Patna High Court in Satya Narayan Prasad Srivastava Vs. State of Bihar and others, 1978 BBCJ 208 wherein it was held that Rule - 100 of Bihar Service Code had given power to the respondents to pass an order of suspension of a government servant but it did not in express terms provide that such an order can be passed retrospectively as well. Therefore, the Division Bench after looking into the provisions of Bihar Service Code and Rule - 100 thereof came to the conclusion that the writ petitioner could not be suspended with retrospective effect.
9. The learned counsel for the petitioner has also placed reliance upon a judgment of the Hon'ble High Court, Calcutta by a Division Bench in Appeal No. 654 of 1979: West Bengal Khadi and Village Industries Board Vs. Dibyendu Prokash Bhattacharya, 1980 (3) SLR 136. The disciplinary proceedings against the respondent in aforesaid appeal had been drawn up for insubordination and neglect of duty and other charges. He was placed under suspension by an order dated 19.07.1978 w.e.f. 10.07.1978 i.e. with retrospective effect. The writ court had set aside the order of suspension on the ground that it could not have been given effect to retrospectively. The West Bengal Khadi and Village Industries Board challenged the order before the Division Bench in Letters Patent Appeal. The Division Bench referred to the West Bengal Khadi and Village Industries Board Rules, 1960 which, admittedly, governed the conditions of service of the respondent therein and also the West Bengal Service (Classification, Control and Appeal) Rule, 1971 and thereafter observed that the Board Rule and Regulation, 1960 covered the entire sphere of service condition s from appointment to termination but omits the word "suspension". The Administrative Control being exercised by the Chairman of the Board with respect to the employees of the Board, thus, brings within the power of suspension as also the power of initiation of disciplinary proceedings. However, the power to suspend retrospectively in contemplation of an inquiry unless the employee is already charge-sheeted has to be given through a specific statutory provision. The appeal filed by the Board was allowed only partly with respect to the power of exercise of the administrative control over the employees of the Board were concerned. But with respect to other grounds taken therein there was no observation by the Division Bench.
10. In both the cases on which reliance has been placed by the learned counsel for petitioner decisions have been passed by the Division Benches of Patna High Court and Calcutta High Court which have only a persuasive value for this Court in case they relate to any observations made on the general principles of Law. Since both the cases have considered the specific statutory regulations applicable to the writ petitioners therein, they are distinguishable on facts.
11. It is settled law that no judgement can have a binding and precedential value if quotedo ut of the context. Nothing can be inferred from a judgement. A judgement has to be read as it is. One additional fact here or there i.e. either present or absent would change the circumstances in which the judgement has been passed. [(See Bhavnagar University v/s Palitana Sugar Mill Pvt. Ltd. and others,2007 AIR (SC) 3166]
12. Therefore, this Court finds that in view of the facts as mentioned herein above with regard to the aforesaid two cases, they are clearly inapplicable to the writ petitioner herein.
13. In the case of petitioner he is governed by the U.P. Cooperative Societies Employees Service Regulations, 1975 and the specific Regulations, 83 thereof. Therefore, the writ petition is dismissed. No order as to costs.
Order Date :- 20.12.2018 LBY