Rajasthan Service Rules, 1951 – r.54 – Scope and purport of – Held: Whenever there is reinstatement in the circumstances attracting r.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 – Where the employee is not fully exonerated and therefore is governed by r.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 – Further, proviso to r.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 – In the present case, the respondents have not been fully exonerated as such – This would take their case outside the four walls of r.54(2) – Their suspension may not fall in the category of unjustified suspension – This would bring their cases within the scope of r.54(3) which means 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 which was not done but, to remit it back for this purpose would be inequitable – On facts, the respondents be paid pay and allowances fixed at 50 % of the pay and allowances which they would have drawn for the period of their absence – Principles of Natural Justice – Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 – r.34 – Punjab Civil Services Rules – Service Law.
Service Law – Rajasthan Service Rules, 1951 – r.54 – Principles of natural justice – Observance of – Held: The employee must be given an opportunity before any order is passed – Even u/r. 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 r.54(2) and not under r.54(3) – Denial of opportunity can have very serious consequences.
Partly allowing the appeals, the Court
HELD: 1.1 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. Rule
54 with which this Court is concerned contemplates an amalgam of situations which deal with disciplinary proceedings culminating in dismissal, compulsory retirement 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 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. [Paras 8, 9][773-D-H; 774-A-E]
1.2 In the case where there is full exoneration, the rulemaker had made it clear that the period of absence is to be treated as duty for all purposes. However, the provisions 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. [Para 10][774-F-G]
1.3 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. 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). [Paras 11, 12][774-H; 775A-C]
1.4 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, the course adopted by this Court finally in M. Gopalakrishna Naidu 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, this Court noticed, at the time of admission, this Court had passed an order of stay subject to payment of 50 per cent of the backwages. 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. [Paras 12, 13][775-D-F; C-D]
1.5 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 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 this Court 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. This Court directs 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. [Para 14][775-G-H; 776A-B]
M. Gopalakrishna Naidu v. State of Madhya Pradesh AIR 1968 SC 240 : [1968] 1 SCR 355 (12) – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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