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TMI Blog1987 (9) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... nd four adverse entries in the service book . Thereafter another notice (Annexure-23) was served on the petitioner mentioning, besides the earlier allegations, a fresh charge and asking him to show cause as to why he should not be discharged from service. The petitioner replied. Some further queries were made from the petitioner and the matter, thus, remained in correspondence for a considerable period and no final order was passed. Subsequently a fresh notice starling a separate departmental proceeding was issued but this proceeding also remained in a dormant state. The petitioner was to superannuate from service by the end of March, 1979 and in February, 1979, probably realising that fresh proceeding which had been initiated could not be concluded before his retirement, his suspension was withdrawn by the order in Annexure-27 and he was told' that a decision regarding the payment of his salary et cetera for the period of suspension would be taken later after final examination of the matter. The petitioner, thus, joined on 28-3-79 and retired three days later. He claimed, inter alia, his full salary for the period of his suspension in CWJC 63 of 1980, which was disposed of by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the decision in Shri B. D. Gupta v. State of Haryana (1973)ILLJ26SC is fully applicable to the present case. Dr. Sada Nand Jha followed Mr. Chatterjee and emphasised the right to be heard on the basis of a Division Bench decision of this Court dated 18.10, 1979 in C.W.J.C. 1896 of 1976 (Dr. Kapildeo Narain Tiwary v. State). He further argued that no proceeding can be started against a Government servant after his retirement in view of the observations in B. J. Shelat v. State of Gujarat and Ors. AIR 1978 SC 1109. Proceeding further, it was urged that an enquiry under Rule 97 (3) is also in the nature of a disciplinary proceeding and, therefore, cannot be commenced or continued after retirement. When the salary of a servant is refused to be paid, it results in pecuniary loss and must, therefore, be held to be penal in nature. The learned counsel alternatively said that the matter should not be remanded for further consideration by the State authorities and this Court should, in view of the circumstances of the case, hold in favour of the petitioner that as a result of the quashing of the order of punishment imposed by Annexure-34, the petitioner has to be paid his full s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowances are admissible. The further question whether the period of his absence from duty should be treated as period spent on duly for all or any specified purpose has been dealt with in Sub-rules (4) and (5) quoted below :-- 97. (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 spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose : Provided that if the Government servant 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. The provisions of Sub-rules (2) and (3) indicate that cases in which Government servants have been subjected to disciplinary enquiry are divided, for the question in issue, in two categories : first, where the competent authority is of opinion that the Government servant has been fully exonerated or in the case of suspension it was wholly unjustified; and the second catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the learned Judges in the present writ case, I do not think it is open to me to accept this part of the argument. 8. The cases relied upon by Dr. Jha do not support his argument that Sub-rule (3) is inapplicable to the present case. In Kirti Bhushan Singh v. State of Bihar (1987)ILLJ1SC , the Government servant was permitted to retire, and this order was later revoked and the petitioner was thereafter dismissed. The Supreme Court held that the order or retirement had become final in absence of any statutory provision entitling the State Government to revoke it, and consequently it was not open to the authority to proceed further against the petitioner. Similar was the position in Bijay Shelat v. State of Gujarat AIR 1973 S C 1109, where the appellant was allowed to retire with effect from 3rd December, 1973, and subsequently the departmental proceeding was started against him and he was suspended on 11th December, 1973. The Supreme Court pointed out that it was open to the competent authority to withhold permission to the appellant to retire, on the ground that a department proceeding was under contemplation, but this was not done and the appellant effectively retired befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly denied him. The court then proceeded to examine the facts and circumstances of the case and in that background set aside the High Court's decision against the appellant and quashed the impugned order. This decision once more emphasised the rule of audi alteram partem, and enforced the principle of natural justice, but it nowhere said that in every case of reinstatement of a Government servant in services he shall be entitled to full salary. 11. In Gopalkrishna Naidu's case (supra) the relevant rule being fundamental Rule 54 was also in similar terms. To appreciate the full import of the decision it is necessary to state briefly the facts. The appellant Gopalkrishna, who was a Government servant, was prosecuted under Section 161 of the Penal Code, but the trial was set aside in appeal on the ground of want of proper sanction for prosecution. He was again prosecuted and the trial judge quashed the charge-sheet on a technical ground. In revision, High Court did not agree with the trial judge, but recommended that in view of the long delay, the prosecution should not be proceeded with. Following this recommendation the case was dropped, but a departmental enquiry wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have remanded the matter for further consideration. The necessary inference which I draw from this decision is that the argument addressed on behalf of the petitioner, as mentioned, has no merit and must be rejected. 12. For the reasons mentioned above it must be held that the petitioner's claim for his entire salary during the period of his suspension has to be decided under Sub-rule (3). Since an adverse order against a Government servant affects him financially, it is necessary that before a decision is taken he is given a reasonable opportunity to place his case and all the relevant circumstances are considered by the appropriate authority. It has been contended on behalf of the petitioner that in the present case this Court should strike down the impugned decision, and order the payment of his full salary, with a further direction to treat the entire period as period spent on duty for all purposes. I am afraid, in view of the facts and circumstances of this case which I proceed to state briefly, that portion of the order in Annexure-34 which deprives him of these benefits, does not call for any interference. It has been stated by the petitioner in his application da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etirement and the basis for the said determination will be the benefits derived by his next junior in the cadre. The petitioner, thereafter, detailed the reliefs, he was claiming. 13. While explaining the delay in disposal of the petitioner's representation the respondents in their application dated 4th November, 1980 (at pages 240-253) set out in detail the process and the persons through whom the representation passed and the manner in which the claims of the petitioner were considered at different levels. In the course of this processing of the representation it is stated by the respondents, it was considered necessary to examine certain other relevant papers. Later, it is further said, that the Deputy Director recorded his opinion dealing with all the grievances of the petitioner and submitted the same to the Special Secretary on 17th September, 1980 . The matter was then examined by the Joint Secretary and the Special Secretary and it was decided to seek the opinion of the Department of Personnel. At that stage a complaint was made by the petitioner before this Court of undue delay. The respondent ultimately pleaded that a final decision would be taken by the Health ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker to the man proceeded against, the form, features and 'the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. It was further said that Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the miles of natural justice were sacred scriptures. Earlier in A. K. Kraipak and Ors. v. Union of India and Ors. [1970]1SCR457 , it had been observed that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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