TMI Blog1987 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Civil Services (Classification, Control Appeal) Rules, 1965 on September 3, 1959. He remained on suspension till May 25, 1970 when on repeated representations the Chief Engineer, Central Public Works Department revoked the order of suspension and he was reinstated in service. During the aforesaid period of suspension, adverse remarks in his confidential reports for the period between April 1, 1957 and August 31, 1957 and between April 1, 1958 and March 31, 1959 were communicated to him on December 16, 1959. After a period of nearly five years, the departmental proceedings culminated in an order of dismissal from service dated March 12, 1964 but the same on appeal by him, was set aside by the President of India by order dated October 4, 1966 with a direction for the holding of a fresh departmental inquiry under r. 29(1)(c) of the Rules, with a further direction that he shall continue to remain under suspension. The order of suspension was revoked by the Chief F Engineer on May 8, 1970 but the departmental proceedings were kept alive. As a result of this, the appellant was reinstated in service on May 25, 1970. Immediately thereafter, he made representation to the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Judge also adversely commented on the failure of the Department to pass an order in terms of FR 54 consequent upon the reinstatement of the appellant on May 25, 1970 within a reasonable time. He observed that ordinarily he would have left it to the Department to pass an order under FR 54 as to whether the suspension of the appellant for the period from September 3, 1959 to May 25, 1970 was justified or not but due to the inactivity or refusal on the part of the Government to pass an order under FR 54, the Court was left with no other option but to deal with the question. After referring to the various stages of the departmental proceedings, the learned Judge held that the suspension of the appellant was not justified and the period of suspension must be regarded as spent on duty and therefore the appellant under FR 54(2) was entitled to full pay and allowances and the increments for that period. He further held that r. 9(2)(b) of the Central Civil Services (Pension) Rules, 1972 was not attracted and accordingly quashed the departmental proceedings. The operative part of the judgment of the learned Judge reads as follows: The petition, for the reasons stated above, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension shall be treated as a period spent on duty. Despite repeated representations made by the appellant, the Government failed in its duty to pass an order in terms of FR 54 within a reasonable time. The Government also failed to comply with the judgment of the learned Single Judge and pay to the appellant the arrears of pay and allowances amounting to about ₹ 86,000 till the High Court issued a notice for contempt. It is regrettable that respondent no. 4 Director General of Works had to enter personal appearance and tender a written apology. The payment of ₹ 86,000 to the appellant was therefore under threat of contempt and does not redound to the credit of the Government. The miseries of the appellant did not end with this. The Department apparently never forgave the appellant for having dragged the Government to litigation and compel the personal appearance of the Head of the Department. It was expected that the Government would act with good grace but just within a fortnight of the termination of the contempt proceedings, the Director General rejected the appellant's case for crossing of the efficiency bar at the stage of ₹ 590 w.e.f. October 5, 1966 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less it was with a view to penalise him financially. As already stated, the authority competent to order reinstatement failed to make an order in terms of FR 54 after the appellant had been reinstated in service on May 25, 1970 within a reasonable time. Looking to the long lapse of time, the High Court was entitled to go into the question as to whether the appellant upon his reinstatement was entitled to the full pay and allowances to which he would have been entitled had he not been suspended. Undoubtedly, the High Court gave a direction in terms in FR 54(2) that the appellant would be entitled to his full pay and allowances as also to his increments etc. but this would be the normal increment prior to the crossing of the efficiency bar for purposes of FR 54(2). There has to be a specific order in terms of FR 25 before a government servant can be allowed to draw his increments above the efficiency bar. The Government was justified in withholding increments under FR 25 pending the departmental inquiry but after the High Court had quashed the departmental inquiry, the question whether the appellant could be deprived of his increments under FR 25 was a live issue till the controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant concerned on specific imputations where departmental action is contemplated or that sanction for prosecution may be accorded where prosecution is proposed. Otherwise, the normal procedure should be followed. ..... The sealed cover should be opened after conclusion of the proceedings. If he is fully exonerated, the recommendations in the sealed cover may be considered by the competent authority who may lift the bar retrospectively from the date recommended by the D.P.C. In that case, the Government servant will be entitled to the arrears of the increment(s). In case, however, the proceedings do not result in complete exoneration of the Government servant, he cannot be allowed to cross the bar with retrospective effect. The relevant provision in r. 2.636 of the C.P.W.D. Manual, Vol. 1, 1956 edn. at p. 53 is in the following terms: 2.636. The Government of India have decided- (a) that a departmental examination shall be held by the Chief Engineer twice a year and as far as possible in the months of January and July every year, for all Divisional and Sub-Divisional Officers in the Central Public Works Department; (f) Divisional and Sub-Divisional Officers who fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the direction that the same should be considered sympathetically. In accordance therewith, on December 10, 1984 the appellant made a representation to the Director General of Works, Central Public Works Department. He thereafter addressed several communications to the authorities on the subject. Eventually, the Deputy Director of Administration by her letter dated April 9, 1985 informed the appellant that his representation had been rejected. She further intimated the appellant the following order with respect to his crossing of the efficiency bar under FR 25. I am further to inform you that your case for crossing the E.B. at the stage of ₹ 590 w.e.f. 5.10.1972 in the prerevised scale of ₹ 350-25- 500-30-590-EB-30-800-EB-30-830-35-900 and also at the stage of ₹ 810 in the revised scale of ₹ 650-30-740-35-810-EB-35-880-40-1000-EB-40-1200, w.e.f. 5-10.1973 or from any subsequent date upto the date of your superannuation viz. 31.3.1978 has also been considered carefully by the competent authority. It is regretted that you have not been found fit to cross the E.B. w.e.f. 5.10.1972 at the stage of ₹ 590 in the pre-revised scale of ₹ 350-25-500- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, [1958] SCR 1080 is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance-generally called subsistence allowance-which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is to remain alive as on food; to continue to exist . Subsistence means-means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in r. 11 of the rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Port of Bombay v. Dilip Kumar Raghav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled principles, we have no doubt whatever that the Government acted in flagrant breach of the rules of natural justice or fairplay in passing the impugned order. We do not see why the principles enunciated by the Court in M. Gopala Krishna Naidu v. State of Madhya Pradesh, [1968] 1 SCR 355 should not apply with equal vigour to a case like the present. There is no reason why the power of the Government to direct the stoppage of increments at the efficiency bar on the ground of unfitness or otherwise after his retirement which prejudicially affects him should not be subject to the same limitations as engrafted by this Court in M. Gopala Krishna Naidu while dealing with the power of the Government in making a prejudicial order under FR 54, namely, the duty to hear the government servant concerned after giving him full opportunity to make out his case. Under FR 54 when a government servant who had been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall make a specific order (a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty, and (b) directing whether or not the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is made against him. There has to be as laid down in M. Gopala Krishna Naidu's case an objective consideration and assessment of all the relevant facts and circumstances. We find it difficult to subscribe to the doctrine evolved by the Division Bench that if the competent authority declines to sanction the crossing of the efficiency bar of a government servant under FR 25, the Court has no jurisdiction to grant any relief. No doubt, there has to be a specific order in terms of FR 25 by the competent authority before the government servant can get the benefit of increments above the stage of efficiency bar. The stoppage of such increments at the efficiency bar during the pendency of a departmental proceeding is not by way of punishment and therefore the government servant facing a departmental inquiry is not entitled to a hearing. Ordinarily, therefore, the Court does not come into the picture at that stage. But in a case like the present where despite the fact that the departmental inquiry against the appellant had been quashed, and it has been held by the High Court that his suspension was wholly without justification. There was no occasion for the competent authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the competent authority must conform to the rules of natural justice. It would be a denial of justice to remit back the matter to the competent authority to reach a decision afresh under FR 25, in the facts and circumstances of the present case. The public interest in maintaining the efficiency of the services requires that civil servants should not be unfairly dealt with. The Government must view with concern that a departmental inquiry against the civil servant should have been kept alive for so long as 20 years or more and that he should have been placed under suspension without any lawful justification for as many as 11 years, without any progress being made in the departmental inquiry. It should also view with concern that a decision should have been taken by the competent authority to enforce the bar under FR 25 against the civil servant long after his retirement with a view to cause him financial loss. Such a course not only demoralises the services but virtually ruins the career of the delinquent officer as a government servant apart from subjecting him to untold hardship and humiliation. We hope and trust that the Government in future would ensure that departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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