2019 (9) TMI 1653 - HC - Indian Laws

Entitlement to a Government servant to full pay and allowances during the period of his suspension - Rule 97(3) of the Bihar Service Code - HELD THAT - The conclusions are summarized as follows (i) The competent authority is empowered to exercise the jurisdiction with regard to entitlement of full salary during the period of suspension for those who have already superannuated from the service, but while considering the claim, the principle mentioned in Rule 97 of the Bihar Service Code will be invoked. (ii) If in the departmental proceeding, the Government servant has been fully exonerated, he will be entitled to full pay and allowances for the period of suspension. (iii) In case the departmental proceeding has been initiated but, could not be concluded or was dropped or in any manner does not come to its finality, the delinquent Government employee cannot be deprived of his full pay and allowances on account of non-completion of the inquiry proceeding or non- submission of the inquiry report. (iv) If the departmental proceeding has been rendered infructuous and not converted under Rule 43(b) of the Bihar Pension Rules and no inquiry report has been submitted, in that circumstances, the retired Government servant will be entitled to the entire salary. (v) If the departmental proceeding has been initiated, the inquiry proceeding has been concluded and in case any substantive order has been passed after superannuation, which cannot be upheld on account of cession of relationship of master and servant, in that circumstance, the competent authority is empowered to take a decision on the principle of Rule-97(3) read with Rule 97(5) of the Bihar Service Code. (vi) If the Government servant has been prosecuted departmentally and the order of punishment has been passed while in service and he has filed an appeal but by that time he superannuates and the appeal is remanded back on technical ground, in that circumstance, Rule-97 (3) read with Sub- rule (5) will play an important factor for entitlement of full salary during the period of suspension. (vii) If the two members of the Division Bench record a difference of opinion, the reference would be made to the third Judge either Single or Division Bench in terms of Clause- 28 of the Letters Patent of the Patna High Court and the third Judge will confine his opinion to the point which has been referred and will not embark on the point or points not referred. After recording his/their opinion, the referee Judge will return his/their opinion to the referral Bench in terms of Clause-28 of the Letters Patent of Patna High Court and the point shall be decided according to the opinion of the majority of Judges, who have heard the case including those who first heard, whereupon the referral Bench would finally pronounce the judgment. In the event, the referee Bench decides the point apart from the point referred for adjudication, the opinion recorded by the referee Bench will be subject matter of discussion before the referral Bench and the decision of the Division Bench will be treated to be the final opinion on that point or points and the same will be treated to be the part of the judgment and in that event, the principle laid down in Clause- 28 of the Letters Patent of Patna High Court will not be applicable for deciding the majority opinion. (viii) The contention of Mr. Mauli, learned Advocate, that the judgment of Dr. Lakshmi Narain Singh 1987 (9) TMI 431 - PATNA HIGH COURT is a Full Bench Judgment, cannot be approved and accepted as the judgment has been delivered by Single Bench and not remitted to Division Bench for final approval. Hence, the said judgment is a Single Bench Judgment. The notice dated 07.03.1995, issuing show-cause and the ultimate action taken by the respondent authorities vide order dated 30.06.1995, do not suffer from any patent illegality, irrationality or perversity and procedural irregularity - Appeal dismissed.

Summary

Issues Involved:
1. Entitlement to full pay and allowances during suspension if a government servant is exonerated.
2. Arbitrary deprivation of full pay and allowances during suspension under Rule 97(3) of the Bihar Service Code if the departmental proceeding is not concluded.
3. Entitlement to full pay and allowances if disciplinary proceedings are rendered infructuous due to superannuation.

Detailed Analysis:

1. Entitlement to Full Pay and Allowances During Suspension if Exonerated:
The judgment clarifies that if a departmental proceeding is initiated against a government servant and they are ultimately exonerated, they are entitled to full pay and allowances during the suspension period. This is explicitly stated under Rule 97(2) of the Bihar Service Code, which mandates full pay and allowances if the suspension is found to be wholly unjustified or if the government servant is fully exonerated.

2. Arbitrary Deprivation of Full Pay and Allowances During Suspension Under Rule 97(3) of the Bihar Service Code if the Departmental Proceeding is Not Concluded:
The judgment discusses the arbitrary nature of depriving a government servant of full pay and allowances during the suspension period if the departmental proceeding is not concluded. It is stated that if the disciplinary proceeding is not concluded, it would be arbitrary to deprive the government servant of their full pay and allowances under Rule 97(3) of the Bihar Service Code. The judgment emphasizes that the competent authority must decide on the entitlement of pay and allowances based on the specific circumstances of each case.

3. Entitlement to Full Pay and Allowances if Disciplinary Proceedings are Rendered Infructuous Due to Superannuation:
The judgment elaborates that if disciplinary proceedings are rendered infructuous due to the superannuation of the concerned government servant, the order of suspension must also be revoked, and the government servant is entitled to full pay and allowances for the suspension period. This is supported by the provisions of Rule 97(3) and (5) of the Bihar Service Code, which state that the period of suspension should be treated as a period spent on duty unless specifically directed otherwise by the competent authority.

Additional Points:

Judicial Review:
The judgment highlights the principles of judicial review in administrative decisions, emphasizing that courts will interfere only if the decision suffers from perversity, patent illegality, irrationality, or procedural irregularity. The court's role is to ensure that the decision-making process is fair and just, rather than substituting its judgment for that of the administrative authority.

Reference to Third Judge:
The judgment clarifies the procedure when there is a difference of opinion between two judges in a Division Bench. It states that the matter should be referred to a third judge, who will confine their opinion to the point of difference. The final decision will be according to the majority opinion of the judges who have heard the case, including the third judge.

Conclusion:
The judgment concludes that the competent authority has the jurisdiction to decide on the entitlement of full salary during the suspension period for government servants who have superannuated, applying the principles of Rule 97 of the Bihar Service Code. It also emphasizes that the decision-making process must be fair and just, and any arbitrary deprivation of pay and allowances would be subject to judicial review. The appeal in the present case was dismissed, upholding the actions of the respondent authorities.