Jharkhand High CourtKamal Kumar Patnaik And Anr vs The State Of Jharkhand And Anr on 6 November, 2017Author:S.N. PathakBench:S.N. PathakIN THE HIGH COURT OF JHARKHAND AT RANCHI

                                  W.P.(S) No. 1074 of 2017
                                               .....

            1. Kamal Kumar Patnaik, son of Praful Patnaik
            2. Debasish Chakraborty, son of K.K. Chakraborty
                                                                            ....       Petitioners
                                           Versus
            1.     The State of Jharkhand.
            2.     The Deputy Commissioner, Jamshedpur.
                                                                             ....      Respondents

            CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK.

            For the Petitioners                : Mr. Anil Kumar Sinha, Sr. Advocate
                                                 Mr. Raunak Sahay, Advocate
            For the Respondents                : Mr. R.K. Shahi, JC to AAG

07/ Dated 6th November, 2017
                   Heard learned counsel for the petitioners and learned counsel for the
            respondents.
      2.            The petitioners have approached this court with a prayer for quashing the
             orders dated 20.02.2014 and 19.02.2014, whereby the respondents have rejected
             the claim of the petitioners regarding full salary after exoneration.
      3.            The factual matrix in narrow compass is that petitioner No. 1 is working
             as Assistant in the office of C.O. Dalbhumgarh and petitioner No. 2 is working
             as Head Clerk in Chakulia Block. It has further been stated that a criminal case
             was registered against Potka P.S. Case No. 60 of 2009 dated 23.08.2009,
             corresponding to G.R. Case No. 2144 of 2009, underSections 467,468,471,420,408,409,120B,34IPC. The Police, after investigation, vide final form did
             not find any materials against the petitioners and the Court, after hearing the
             informant on 04.04.2014, accepted the final form and exonerated the petitioners.
             The petitioners were put under suspension during pendency of the criminal case
             vide letter dated 08.08.2009. It was specifically mentioned that vide order dated
             20.02.2014and 19.02.2014, after perusing the police report, the order of
             suspension was withdrawn and further order was passed regarding salary and
             other allowances shall be taken only after conclusion of the Departmental
             Proceeding. It is the specific case of the petitioners that on 03.05.2016, a
             decision was taken that there is no material for initiation of Departmental
             Proceeding against the petitioners and accordingly, it was decided that no
             Departmental Proceeding is required to be initiated and period of suspension be
             treated on duty and accordingly, petitioners are entitled for full payment of the2period of suspension. Thereafter, the petitioners made representation to the
     authorities concerned for payment of entire dues of the petitioners for the period
     08.09.2009 to 18.02.2014, when they were put under suspension since
     subsistence allowances was not paid to the petitioner. As the representation of
     the petitioners were rejected vide memo No. 1198 and 1199 dated 19.12.2016,
     on the ground that since the attendance register was not signed by the petitioner
     during the period of suspension., they are not entitled for any payment.4.          Mr. Anil Kumar Sinha, learned senior counsel assisted by Mr. Raunak
     Sahay, learned counsel for the petitioners strenuously urges that the petitioners
     have been fully exonerated in the criminal as well as departmental proceeding,
     they are entitled for full salary of the period of suspension. Learned senior
     counsel further argues that as there was no material against the petitioner, there
     was no need to initiate departmental proceeding. In view of such finding and in
     view of Rule 97(2) of the Jharkhand Service Code, the petitioners are fully
     entitled for salary of the said period. Learned senior counsel draws the attention
     of the Court towards counter-affidavit filed by the respondents and submits that
     the respondents have illegally and arbitrarily taken into consideration the
     Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016
     and have rejected the case of the petitioners on the ground that as per Rule 10(b)
     of the said Rules, the petitioners are not entitled as they were not present in the
     headquarter and did not sign the attendance register. Learned senior counsel
     argues that the said Rule is contrary to Rule 97(2) and it is not a case that
     petitioners have approached this Court with a prayer for subsistence allowance.
     The petitioners have been fully exonerated in the departmental proceeding as
     well as in the criminal proceeding and as such, they are entitled for the salary of
     that period. Learned counsel places heavy reliance on the judgment reported in
     the case ofPrasenjit Ghosh Vs. State of Jharkhand[2004 (2) JCR 201] and
     submits that in view of the judgments passed in the aforesaid cases, the
     petitioners are fully entitled for the salary of the period of suspension i.e. from
     08.09.2009 to 18.02.2014 and as such, a direction be given to the respondents to
     pay the salary of that period.5.          Per contra counter affidavit has been filed. Mr. R.K. Shahi, learned JC to
     AAG vehemently opposes the contention of the learned counsel for the
     petitioners and argues that the petitioners are not entitled for the salary of the
     period of suspension. Learned counsel draws the attention of the Court towards
     Rule 10(b) of the Jharkhand Government Servants (Classification, Control &
     Appeal) Rules, 2016 and argues that in view of that Rule, the petitioners were3required to be present in the headquarter and to mark the attendance register and
     in absence of that, the impugned order has rightly been passed. Justifying the
     impugned order, learned counsel for the respondents argues that the petitioners
     are not entitled for the salary of the period of suspension.6.           Be that as it may, having gone through the rival submissions of the
     parties, this Court is of the considered view that that the cases of the petitioners
     need consideration. The petitioners are fully entitled for the salary of the period
     of suspension on the following grounds:-(i)     The petitioners have been fully exonerated in the criminal case as well as
             in the departmental proceeding.(ii)    There is specific finding of the authorities that in absence of any material
             fact against the petitioners, even the departmental proceeding cannot be
             initiated and as such, they are entitled for full salary of the period of
             suspension.Rule 97(2) of the Jharkhand Service Code reads as under:-"97(2) Where the authority mentioned in sub-rule (1),
                       is of opinion that the Government Servant has been
                       fully exonerated, or in the case of suspension, that it
                       was wholly unjustified, the Government servant shall
                       be given full pay and allowance to which he would
                       have been entitled has he not been dismissed,
                       removed or suspended, as the case may be."The same Rule finds place in Rule 11 of the Jharkhand Government
             Servants (Classification, Control & Appeal) Rules, 2016. Rule 11 (3) of
             the said Rules read as under:-"11. (3) Where the Disciplinary Authority is of the
                       opinion that the suspension was wholly unjustified,
                       the Government Servant shall, subject to the
                       provisions of sub-rule (8) of this Rule, be paid such
                       full pay and allowances to which he would have been
                       entitled, had he not been suspended. While making
                       such payment adjustment shall be made in respect of
                       subsistence allowance and other allowances already
                       paid."(iii)   Going through the judgments cited by the learned senior counsel for the
             petitioners, this Court is of the considered view that the same are fully
             applicable in the cases of the petitioners. It is not open to the respondents
             to read the Rule which convenient to them. The Rule which has been
             placed by the learned counsel for the respondents is totally misconceived.
             From perusal of Rule 11(3) of the 2016 Rules and Rule 97(2) of the
             Jharkhand Service Code, it is crystal clear that when an employee is4exonerated, he is entitled for full salary. In case of the subsistence
                     allowance, when an order of suspension has been passed in which it has
                     been mentioned in expressed language that the petitioners are required to
                     be present in the headquarter, then the same has to be followed and the
                     petitioners are entitled for subsistence allowance. In the instant case, the
                     petitioners have been fully exonerated in the enquiries and as such, they
                     are fully entitled for the salary of the said period.7.          As a cumulative effect of the aforesaid observations, rules, guidelines,
              judicial pronouncements and legal propositions, the orders dated 20.02.2014 and
              19.02.2014, whereby the respondents have rejected the claim of the petitioners
              regarding full salary after exoneration, are hereby quashed and set aside. In view
              of quashment of the aforesaid orders, the respondent No. 2, Deputy
              Commissioner, Jamshedpur, is directed to make payment of the entire salary for
              the suspension period i.e. from 08.09.2009 to 18.02.2014, within a period of six
              weeks from the date of receipt/ production of a copy of this order.8.          Resultantly, the writ petition stands allowed.(Dr. S.N. Pathak, J.)
kunal/