Khairunnissa Rasool Golandaj Vs. State of Maharashtra (Through the Secretary, Public Health Department and Another - Court Judgment

Excerpt:
g.s. kulkarni, j. 1. by this petition under article 226 of constitution of india, the petitioner who is a widow of late rasool gulam mohammed golandaj who was an employee of the employees state insurance scheme of the government of maharashtra (for short the 'deceased employee') challenges the judgment and order dated 1.4.2005 passed by the maharashtra administrative tribunal in original application no.306 of 2003. by the impugned judgment, the maharashtra administrative tribunal (for short 'administrative tribunal') has directed the respondents to determine the proportion of the pay and allowances to be paid to the deceased employee for a period from 27.10.1965 to 21.12.1967 (of about 2 years and 2 months) in accordance with rule 72(5) of maharashtra civil services (joining time, foreign.....

Judgment:

G.S. Kulkarni, J.

1. By this petition under Article 226 of Constitution of India, the petitioner who is a widow of Late Rasool Gulam Mohammed Golandaj who was an employee of the Employees State Insurance Scheme of the Government of Maharashtra (for short the 'deceased employee') challenges the judgment and order dated 1.4.2005 passed by the Maharashtra Administrative Tribunal in Original Application no.306 of 2003. By the impugned judgment, the Maharashtra Administrative Tribunal (for short 'Administrative Tribunal') has directed the respondents to determine the proportion of the pay and allowances to be paid to the deceased employee for a period from 27.10.1965 to 21.12.1967 (of about 2 years and 2 months) in accordance with Rule 72(5) of Maharashtra Civil Services (Joining Time, Foreign Service and Payment during suspension, Dismissal and Removal) Rules, 1981. In pursuance of an ad-interim order passed by this Court the second responded has taken a decision as per directions of the Administrative Tribunal and informed the Petitioner by a communication dated 1.3.2007 that for the suspension period from 27.10.1965 to 21.5.1967 subsistence allowance already paid to the deceased employee was proper. The benefit of the regular pay scale and other permissible benefits during the said suspension period were, therefore, not granted to the deceased employee. The petitioner has amended the writ petition and has further challenged the said decision as contained in the communication dated 1.3.2007 of the second respondent.

2. The case has a chequered history and a painful one in regard to the manner in which the deceased employee was treated at the hands of the respondents. We are not the first to observe this but in the first round of litigation the Administrative Tribunal in so many words have expressed pains and anguish at the way the respondents treated the deceased employee. Such is the plight that before he could actually enjoy the fruits of the litigation which lasted for almost thirty years, he succumbed. Now the widow is dragged into litigation by the respondents who is pursuing the enforcement of the rights of her deceased husband so that she gets a legitimate family pension.

3. Before adverting to the submissions which are made on behalf of the learned Counsel for the respective parties, the relevant facts are noted by us below.

4. The petitioner's husband- the deceased employee joined the services of the State Government in the year 1957 as a Junior Clerk. He was appointed at the Central Mental Hospital, Yerawada, Pune. He was promoted as a Senior Clerk on 2.12.1963 and was continued at the Pune posting. On 1.6.1964 he was transferred from Pune to the Diagnostic Centre, ESI Scheme, Solapur as Head Clerk. The problems started at this posting. On 4.8.1965 the deceased employee was required to suddenly go on leave for some domestic reason without obtaining prior sanction for such leave. During his absence from the office, the Medical Officer In-charge on 2.9.1965 without verification of the correct facts lodged a police complaint against the deceased employee at Sadar Bazar Police Station alleging that the deceased employee was absconding with an amount of Rs.10,064.50/-. The deceased employee reported on duty on 7.9.1965 at which time police were present alongwith the panchas. The office cupboard was opened, it was revealed that the cash was intact as per the cash book balance. The explanation given by the Medical Officer was that he has lodged a police complaint on a misunderstanding. It was later on revealed that the complaint was lodged at the behest of the Administrative Officer, Western Maharashtra Region, Pune, Dr.Walawalkar, who had a personal grudge against the deceased employee.

5. The things did not stop at this. Within a very short time i.e. on 27.10.1965 the Medical Officer issued a Memorandum placing the deceased employee under suspension. The suspension order stated that the deceased employee was suspended with effect from 27.10.1965 for alleged defalcation of Government money. Though no facts were set out in the suspension order, it was revealed that a police complaint was lodged at the behest of the Administrative Officer on a complaint of one Dhanrajgiriji Hospital Authorities in whose premises the ESI Diagnostic Centre was located, alleging that the deceased employee had misappropriated two sums of Rs.827.42/- and Rs.2,028/- pertaining to the bills of Dhanrajgiriji Hospital. Two criminal cases were accordingly filed against the deceased employee in respect of the said amounts. Charges under Section 409, 467, 471, 477 of Indian Penal Code were framed. The criminal cases were committed to the Sessions Court, Solapur for trial. In the criminal case concerning misappropriation of Rs.827.42, the Sessions Judge convicted the deceased employee and sentenced him to undergo rigorous imprisonment for 3 years and fine of Rs.1000/-. In the other case concerning an amount of Rs.2028/-, the deceased employee was acquitted.

6. In view of the conviction of the deceased employee respondent no.2 passed an order dated 6.2.1968 dismissing the services of the deceased employee without holding an inquiry.

7. The deceased employee had preferred a criminal appeal before this Court being Criminal Appeal no.1568 of 1967 against the conviction and by the Sessions Court. The criminal appeal was dismissed by this Court. Against the said dismissal of the appeal, the deceased employee approached the Supreme Court in a Special Leave Petition. An interim bail was granted to the deceased employee by the Supreme Court while granting leave to appeal on the Special Leave Petition. As the deceased employee could not furnish the security which was a condition for bail, the deceased employee suffered the full sentence of imprisonment for three years. The deceased employee had also innumerable difficulties to deposit an amount of Rs.900/- in the office of the Supreme Court for the transmission and printing charges necessary to be paid in the Criminal appeal. Due to inability to pay the said amount, he had lost all hopes that he would be in a position to pursue the matter further. This small amount of Rs.900/- was not permitted to be withdrawn by the respondents from the deceased employee's own money in the Government Provident Fund (GPF) despite several attempts.

8. Added to the suffering of the deceased-employee was a further shock of a civil suit instituted by the respondents being Civil Suit No.998 of 1973 for recovery of the said alleged amount of Rs.2028/- and Rs.827.42/- due from him. In the said Civil Suit, the respondents had obtained an ex-parte decree for the amount of Rs.8560/- against the deceased employee and same was put into execution for the recovery of the principal amount alongwtih the interest. The deceased employee, therefore, moved an application for setting aside the ex-parte decree in Civil Suit No.998 of 1973. In the course of the proceedings pertaining to the said Civil Suit on 4.10.1980, the deceased employee learnt that he was acquitted in the criminal case by the Supreme Court. The deceased employee made efforts to obtain a copy of the judgment of the Supreme Court and on receipt of the same, on 10.10.1980 made an application to the respondents seeking reinstatement in service and further requesting for protection of seniority and grade, and payment of back-wages till reinstatement. In regard to this reinstatement application the respondents made the deceased employee run from pillar to post. The respondents insisted for several compliances including payment of the decreetal amount in Civil Suit No.998 of 1973, despite ex-parte decree being set aside. The deceased employee approached several authorities requesting for reinstatement including the Chief Minister of State of Maharasthra, the Health Minister and ultimately the Prime Minister of India. However, none of the authorities showed any willingness to take any decision. In fact the Administrative Officer after about 7 years of the setting aside of the ex-parte decree issued a letter dated 18.11.1987 calling upon the deceased employee to deposit an amount of Rs.5710/- plus interest at the rate of 6% within eight days, failing which an action was threatened against the deceased employee. Again the deceased employee informed that the ex-parte decree was set aside and no such amount was due. All this shows that the consequence of reinstatement which was required to be granted as a matter of course to the deceased employee on setting aside the conviction by the Supreme Court was being deliberately avoided on one pretext or the other and the respondents were successful in doing so for about 7 years.

9. In this situation the deceased employee approached this Court by filing a writ petition being Writ Petition no.318 of 1988 under Article 226 of Constitution of India, inter alia praying for setting aside the order of dismissal and praying for reinstatement with continuity of service and full backwages. The ordeal for the deceased employee, however, did not stop there despite passage of about 8 years. The respondents-authorities issued a memorandum to the deceased employee inter alia stating that the deceased employee is being reinstated, however, a departmental inquiry is imposed. It was stated that a decision on the suspension period would be taken after departmental inquiry was completed. A memorandum dated 22.3.1988 to that effect was issued. The writ petition was thus withdrawn. The deceased employee was called upon to report on duty at the ESI Hospital, at Nagpur with effect from 8.4.1988. It is astonishing that it took about seventeen long years after the conviction was set aside by the Supreme Court for respondents to reinstate the deceased employee and that too with a departmental enquiry being imposed belatedly on charges which would relate back to 1965.

10. A chargesheet was issued to the deceased employee on 10.5.1989 in regard to the same alleged actions which had taken place more than 25 years back. In fact on the same charges the deceased employee was prosecuted as also a civil suit was filed against him. The charges were as under:-

œ(i) That the conduct of Shri.Golandaj while working as Head Clerk at the Diagnostic Centre, ESIS, Sholapur was in breach of the Civil Service (Conduct) Rules.

(ii) That the Government had to suffer a loss of Rs.2855.42 while Shri.Golandaj was working as Head Clerk at the Diagnostic Centre, Sholapur.?

The deceased employee submitted his reply to the chargesheet and an inquiry was undertaken. Surprisingly the witness in the criminal case acted in the capacity as a Disciplinary Authority and passed an order dated 20.12.1990 awarding the following punishment:-

œ(a) the period from 27.10.1965 to 31.12.1967 was treated as suspension.

(b) the period from 1.1.1968 to 7.4.1988 was treated as unauthorised absence.?

The deceased employee was also directed to pay an amount of Rs.827.42 and Rs.2028/-. The order dated 20.12.1990 was modified to correct the mistake of date by a further order dated 1.2.1991 so as to read as under:-

œ(a) The period from 27.10.1965 to 21.12.1967 may be treated as suspension; and

(b) The period from 22.12.1967 to 7.4.1988 may be treated as unauthorised absence.?

11. The manner in which the respondents acted against the deceased employee in this departmental inquiry was most shocking. Apart from some other irregularities, the one which was glaring was that a copy of the inquiry report was not furnished to the deceased employee. It was revealed that in fact the Inquiry Officer had submitted a report exonerating the deceased employee from all the charges. Despite this Disciplinary Authority without recording any reasons for dis-agreement and without issuing a Show Cause Notice to the deceased employee imposed the said punishment. The arbitrariness and the victimization was writ large the reasons for which only the Respondents were aware. The departmental appeal against the order of punishment was also rejected by the Commissioner of ESIS. Further the appeal to the State Government was also rejected.

12. Against the order of punishment, the deceased employee approached to the Administrative Tribunal by filing Original Application no.61 of 1994, inter alia praying for quashing and setting aside of order of punishment dated 20.12.1990 as modified by a further order dated 1.2.1991. The Administrative Tribunal decided the said Original Application by its Judgment and Order dated 8.5.1995, partly allowing the original application. The Administrative Tribunal in its judgment expressed pain and anguish on the way the deceased employee was treated by the respondents. The Administrative Tribunal in allowing the Original Application of the deceased employee passed the following order:-

œ21. In the result, the application succeeds, we direct as under:-

i) The impugned order dated 20.12.1990 and as confirmed in the Departmental Appeal on 25.04.1991 in so far as it relates to penalty of recovery of Rs.2855.42 p. from the applicants stands hereby quashed and set aside. The said amount or any part of it if recovered from the applicant shall be returned to him within a month from today.

ii) The aforesaid impugned order in so far it relates to treating the period between 22.12.1967 to 07.04.1988 as unauthorised absence from duty is also hereby quashed and set aside. Instead, the said period shall be treated as the period spent on duty. The Applicant shall be paid the full pay and allowance including the due increments in respect of the said period, as also the arrears of pay and allowances including increments in respect of the subsequent period till the date of his superannuation i.e. till 31.07.1992.

All these arrears shall be worked out as expeditiously as possible and the same shall be paid to him in any event within six months from today.

iii) The applicant shall be promoted to the next promotional post or posts giving deemed date or dates on the basis of 'next below rule' i.e. the date on which his immediate junior is promoted or deemed to have been promoted. If he is so promoted he shall be paid the arrears of pay and allowance in that respect. These directions as to promotion shall be carried out within four months from today and if he is given the deemed dated promotions, the arrears of pay and allowances in that regard shall be worked out within the next four months and the same shall be paid to him within a month thereafter.

iv) The Respondents shall pay 20% of the total arrears of pay and allowance due to him as per above directions by way of interest in a lumpsum.

v) The period between 22.12.1967 and 07.04.1988 which is directed to be treated as on duty in item No.(ii) above shall be taken into account in computing the qualifying service of the applicant for the purpose of pension, and he shall be entitled to pension and other terminal benefits if he fulfills the qualifying service, as per rules.?

13. After seven days of delivery of the aforesaid judgment by the Administrative Tribunal i.e. on 15.5.1995 the deceased employee expired leaving behind the petitioner- his widow and the children.

14. The sorrow for the family did not stop. The respondents filed a Review Petition No.40 of 1995 before the Administrative Tribunal seeking review of the judgment and order dated 8.5.1995 on several grounds. The review petition was rejected by the Tribunal on 6.10.1995. The petitioner, thereafter, pursued with the respondents for implementation of the order dated 8.5.1995 of the Administrative Tribunal. The petitioner also demanded calculation of the dues which were payable to her deceased husband. Several letters were addressed and the petitioner personally met the officers, however, there was no response. At last the petitioner took the help of an Advocate to address a notice dated 31.8.2000. However, there was no reply for about five years after the death of the deceased employee. The respondents approach for compliance of the Tribunal's order was totally indifferent. As a last resort the petitioner again approached the Maharashtra Administrative Tribunal by filing Original Application no.306 of 2003, inter alia praying that the amounts due to the deceased employee and then to the widow under the judgment of the Administrative Tribunal dated 8.5.1995 be directed to be released. The said original application was vehemently opposed by the respondents raising untenable pleas. For the first time, a statement of calculation of the amounts payable to the deceased employee was placed on record of the original application. It was revealed that the respondents did not calculate the salary payable to the petitioner's deceased husband for the period from 27.10.1965 to 21.12.1967 being the period during which he was placed under suspension pending the criminal case which finally resulted in acquittal of the deceased employee by virtue of the judgment of the Supreme Court. On this new circumstance having come to the knowledge, the petitioner filed Miscellaneous Application no.406 of 2004 for amendment of the original application to seek a relief in respect of the salary payable to the deceased employee for the period from 27.10.1965 to 21.12.1967. In the miscellaneous application, the petitioner raised a plea on the basis of Rule 70 of the Maharashtra Civil Services (Joining Time, Foreign Service and Payment during Suspension, Dismissal and Removal) Rules,1981, to contend that it was obligatory on the part of the respondents to regulate the period of suspension on reinstatement.

15. By the impugned judgment and order, the original application filed by the petitioner alongwith the miscellaneous application were adjudicated by the Administrative Tribunal resulting in the following directions issued to the respondents:-

œ11. In the light of the above, the Misc.Application is disposed of. This Original application is disposed of with the direction that the Respondents should determine the proportion of the pay and allowances to be paid from 27.10.1975 to 21.12.1967 to the applicant in accordance with Rule 72 (5) within a period of three months from the date of this order. No order as to cost.?

The petitioner being aggrieved by these orders of the Administrative Tribunal has filed the present writ petition, inter alia contending that the Administrative Tribunal was not justified in issuing directions to the respondents to decide in regard to the suspension period of 27.10.1965 to 21.12.1967, as Rule 72(5) was per-se not applicable. By an ad-interim order dated 4.2.2008 passed in this writ petition, the respondents were directed to decide about the entitlement of the deceased employee as per the directions of the Administrative Tribunal in the impugned judgment. In pursuance thereto respondent no.2 issued a Communication dated 1.3.2007 rejecting the entitlement of the deceased employee for the benefits of the suspension period. It is held that the deceased-employee would not be entitled for regularization of the suspension period and the punishment imposed in that regard is proper the petitioner has also assailed this decision by an amendment to the present writ petition.

16. The learned Counsel appearing on behalf petitioner submits that the directions of the Administrative Tribunal to decide the proportion of pay and allowance to be paid to the deceased employee for the period from 27.10.1965 to 21.12.1967 (œthe suspension period?) in accordance with the Regulation 72(5) of the said Rule, is erroneous and not sustainable, also a challenge is raised to the impugned decision dated 1.3.2007 declining the deceased employee the regular pay scale for the suspension period on the following submissions:-

(I) That Rule 72(5) of the Maharashtra Civil Services (Joining Time, Foreign Service and payment during Suspension, Dismissal and Removal) Rules,1981 was not applicable in the case of the deceased employee for the reason that the suspension order itself was dated 27.10.1965 which was on the ground of defalcation of Government money pending criminal trial.

(II) The deceased employee was acquitted by the Supreme Court on 25.11.1971 and subsequently reinstated by an order dated 22.3.1988.

(III) That in fact the period of suspension ought to have been regularised at the time of reinstatement itself as per the provisions of Regulation 70 of the Maharashtra Civil Services (Joining Time, Foreign Service and payment during Suspension, Dismissal and Removal) Rules,1981.

(IV) That there is other provision in the Maharashtra Civil Services (Joining Time, Foreign Service and payment during Suspension, Dismissal and Removal) Rules,1981 governing the situation of the kind as in the facts of the present case.

(V) That in the absence of any Rules and Regulations authorising the Government to regulate the payment to the employee during suspension, the employee is entitled to full salary and allowances during the period of suspension.

(VI) Even assuming that there is a power with the Government to suspend the employee in the sense that he would not be given any work during the period, however, there must be power with the employer (the Government) to regulate the payment to the employee and in the absence of any such power the employee is entitled to full salary and allowance during the said period.

(VII) That the order dated 1.3.2007 under Rule 72(5) of the said Regulation passed by the respondent no.2 holding that payment of subsistence allowance during the period of suspension from 27.10.1965 to 21.12.1967 is arbitrary.

(VIII) That the respondents ought to have regulated the period of suspension and complete monetary benefits to that effect ought to have been granted.

17. In support of the aforesaid submissions that the respondents have no authority under the Rules, the learned Counsel appearing on behalf of the petitioner has relied on the decisions the case of The Management of Hotel Imperial vs. Hotel Workers Union (AIR 1959 SC 1342); Cajee (T) vs. Jormanik Siem (V) (1961 1 LLJ 652); Devendra Pratap Narain Rai Sharma Vs. State of Uttar Paradesh ((1962) 1 SCR 315);. M.Gopalkrishna Naidu Vs. The State of Madhya Pradesh (AIR 1968 Supreme Court 240); Balvantrai Ratilal Patel vs. State of Maharashtra (AIR 1968 SC 900);V. P. Gidhroniya vs. The State of Madhya Pradesh ((1970) 1 SCC 362); Brahma Chandra Gupta vs. Union of India (AIR 1984 SC 380); Workmen of Firestone Tyre and Rubber vs The Firestone Tyre and Rubber Co., (1976 Lab IC 1154).

18. On the other hand, the learned Additional Government Pleader appearing on behalf of the respondents has made submissions in support of the judgment of the Administrative Tribunal and the order dated 1.3.2007 passed by respondent no.2 under Regulation 72(5) of the said Regulations, justifying the payment of subsistence allowance for the suspension period of the deceased employee. The learned AGP submits that the deceased employee was not entitled for regularisation of suspension period and hence, the order dated 1.3.2007 passed by respondent no.2 is proper and correct.

19. We have perused the record of the aforesaid petition with the assistance of the learned Counsel appearing for the parties. There is no merit in the submissions made by the learned Counsel for the petitioner that the deceased employee was entitled for regularisation of the period of suspension and all the benefits pertaining thereto. However, for the reasons as we are set out herein detail, we are not impressed with the submissions that the respondents had no power under Rule 72 to decide about suspension period. We are, therefore, not inclined to go into the judgments cited on behalf of the learned Counsel for the petitioner for the reasons cited on behalf of the petitioner.

20. The facts in the present case are peculiar. The issue which falls for consideration is 'as to whether the deceased employee was entitled for regular salary and pay scale and other incidental benefits for the period of suspension i.e. with effect from 27.10.1965 to 21.12.1967'. In other words 'whether the suspension period can be considered to be a period of regular service for all the terminal benefits in the facts of the present case.

21. Before we proceed to answer the legal issue we may note that the respondents in the present case have acted in a most arbitrary manner in dealing with its own employee. The respondents have violated all principles of fairness, reasonableness. The respondents did not adhere to the Rules and Regulations in the departmental action taken against the deceased employee which was taken almost after more than 25 years of the alleged incident and therefore, the present case is required to be dealt with in the peculiar facts as they arise. In a normal situation, it cannot be conceived that the suspension which relates to the period from 27.10.1965 to 21.12.1967 about 47 years ago could be required to be considered for its effect qua the terminal benefits in the year 2014, but this is an exceptional case. The respondents have forgotten their obligation under law and the implications of the orders of the Court. Further human considerations appear to be of no value in any of their dealings in the present case. Such is a sorrow state of affairs. It was expected that at least a widow would be spared from the harassment now at this late age required to pursue the present case. What could have been the harm in resolving the issue with such immense powers at the disposal of the respondents.

22. From the analysis of the facts and application of the Regulations, we are of the opinion that the period of suspension of the deceased employee from 27.10.1965 to 21.12.1967 ought to have been regularised by the respondents and that full benefits of the said period as actual period of duty ought to have been granted. We are of this view for the following reasons:-

23. It is an admitted position that the deceased employee was suspended by an order dated 27.10.1965. The suspension order recorded the reason that the suspension was for alleged defalcation of Government Money. After the conviction by the Sessions Court, the order dated 27.10.1965 was passed dismissing the deceased employee from the services of the respondents. The Supreme Court finally acquitted the deceased employee by its judgment dated 25.11.1971. In view of the acquittal, on an application dated 10.10.1980 made by the deceased employee, the respondents reinstated the deceased employee on 8.4.1988 after about seventeen years by an order dated 22.3.1988. This order dated 22.3.1988 reinstating the deceased employee reads as under:-

œAs per the aforesaid Government orders Shri.R.M.Golandaj is reinstated in the vacant post of senior Clerk in State Employees Insurance Scheme Hospital, Nagpur. The above reinstatement is subject to the departmental enquiry and after the departmental enquiry is completed his absence/suspension period will be regularised his reinstatement will be from the date of his resuming duty. Shri Golandaj is instructed to report for work at the place of posting immediately.

A reading of the aforesaid order of reinstatement clearly shows that a departmental inquiry was contemplated against the deceased employee. The order also categorically records that absence / suspension period would be regularised after the completion of departmental inquiry.

24. In fact at this juncture when the order of reinstatement dated 22.3.1988 was issued, Regulation 70(2) of the said Regulations became operational which enable the Government to take a decision to dis-entitle an employee for the reasons to be recorded in writing to regulate the benefits of full pay and allowance for the period of suspension. Regulation 70(2) of the said Regulations is clear in that regard. However, in the present case in issuing the order of reinstatement dated 22.3.1988, the respondents deviated from the application of said Rule and postponed the regularisation of the suspension period subject to the departmental inquiry to be held.

25. It is not in dispute that the suspension of the deceased employee vide order dated 27.10.1965 was on account of contemplated prosecution as can be inferred from the reading of the suspension order dated 27.10.1965. It is further undisputed that the conviction was set aside by the Supreme Court and in pursuance of which the order of reinstatement was granted and only after reinstatement fresh chargesheet contemplating similar charges which was the basis of prosecution was again issued to the delinquent employee. It was revealed that in this departmental inquiry, the Inquiry Officer exonerated the deceased employee from all the charges, a report to that effect was submitted. The Disciplinary Authority, however, acted in a highhanded manner and without giving any reason for disagreement with the finding of the Inquiry Officer and a show cause notice to the deceased employee, issued an order of punishment dated 20.12.1990 as modified on 1.2.1991. The said order contemplated two fold punishment, firstly the suspension period from 27.10.1965 to 21.12.1967 was ordered to be treated as suspension and secondly the period from 22.12.1967 to 7.4.1988 i.e. period from dismissal till reinstatement was ordered to be treated as unauthorized absence. The Administrative Tribunal in Original Application no.61 of 1997, interfered with the second portion of the punishment namely the period from dismissal upto reinstatement to be treated as unauthorized absence was set aside, however, the period of suspension from 27.10.1965 to 21.12.1967 was not interfered with. The Administrative Tribunal, however, has made pertinent observations in paragraph 16 of the order which reads as under:-

œ16. Now coming to the other part of the impugned order relating to determination of nature of the period from 27.10.1965 to 7.4.1988, it will be seen that it consists two parts. One relating to the period between 27.10.1965 and 21.12.1967 and another between 22.12.1967 and 7.4.1988. The first part is in respect of the period when he was placed under suspension. This period is determined as the period under suspension and the second part as the unauthorised absence from duty. It cannot be disputed that the above periods have to be regularised in accordance with rule 70 of the Maharashtra Civil Services (Joint time, Foreign Services and payment during the suspension, dismissal and removal from Service) Rules 1981. It is not necessary to dilate much to say that a show cause notice was required to be given to the applicant before determining the nature of the above periods as giving of such a notice is inbuilt under the said provisions when it is proposed not to treat the periods in question as on duty and to pay the full pay and allowances. Such a show cause notice was not given to the applicant before passing the order determining the nature of the said periods. On this ground alone, the order determining the nature of the above periods requires to be quashed as it is opposed t the principles of natural justice as also being contrary to the statutory provisions. .? (emphasis supplied)

26. In pursuance of the ad-interim order dated 12.2.2007 passed by this Court, the second respondent has purportedly decided the issue as per Rule 72(5) and communicated his decision by letter dated 1.3.2007 as impugned by the petitioner. The decision reads as under:-

œThere was criminal case No.81 of 1967 against late Shri Golandaj in Court of Addl.Sessions Judge, Sholapur. By the Judgment dated 05.10.1967 Shri Golandaj was found guilty by the Sessions Court in the said Criminal Case No. 81/1967 and was punished by rigorous imprisonment by 3 years and Rs.1000/-as fine. Late Shri Golandaj filed Appeal against the said order by writ petition no.1568 of 1967. But the Honourable High Court dismissed the same and therefore Shri Golandaj had to undergo rigorous imprisonment for 3 years. Thereafter the Honourable Supreme Court of India by giving benefit of doubt acquitted Shri Golandaj. Thereafter Shri Golandaj was reinstated in service and he retired form service in 1992. Thereafter Shri Golandaj made Original Application No.612 of 1994 before the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal gave order on 8.5.1995. Thereafter Shri Golandaj died on 15.05.1995 and the benefits of the said order in the Original Application were given to you, accepting you as his legal heir. After taking into consideration the above position and your representation dated 23.2.2007 pursuant to the order dated 1.04.2005 of the Maharashtra Administrative Tribunal in Original Application No.306/2003 I, Commissioner E.S.I. Scheme, Mumbai order under rule 72 (5) of the Maharashtra Civil Service (Joining Time,Foreign Service and Supervision, Dismissal and Removal Allowance) Rules 1981 that the Golandaj be treated as suspension and the subsistence allowance already paid was proper and is confirmed.?

27. A plain reading of the decision of the second respondent as taken under Rule 72(5) of the said Rules clearly shows that there is no application of mind on the part of the second respondent, in deciding as regards the period of suspension. The purported order is nothing but narration of facts. No reasons whatsoever are given in the impugned order as to why the benefit of suspension period from 27.10.1965 to 21.12.1967 in declining the request for regularization of suspension and grant of full benefits thereof. It was expected that the second respondent in view of chequered history of the case would give adequate reasons, however no justifiable reasons are given. Be that as it may we have entered adjudication of the old controversy underlying these proceeding with a sincere hope that the litigation which started in 1965 would come to an end, we accordingly deal with the rival submissions.

28. As regards the submission of the learned Counsel for the petitioner that the respondents have no power to regulate the period of suspension under the provisions of Rule 72 of the said Rule and that same would not be applicable in the present case. We do not agree with this submission. Rule 72 is applicable as reinstatement was granted after acquittal of the deceased employee and therefore, the Tribunal was justified in applying Rule 72(5) in regard to the decision to be taken by the respondents in respect of suspension period. It is quite settled that even after acquittal of an employee in a criminal case, the employer could be entitled to pursue a departmental action against the employee and test the suitability and decide in the inquiry proceedings as to whether the employee is a person fit to be continued in the employment. In the present case the deceased-employee had accepted the charges in the chargesheet issued to him after reinstatement and faced the departmental inquiry. However what is significant is that the Inquiry officer in fact exonerated the deceased employee from all the charges as levelled against him as submitted in the Enquiry Report. However, the Disciplinary Authority without recording any independent reasons for disagreement with the findings of the Inquiry officer, imposed punishment, inter alia to treat the suspension period as valid and proper. In our opinion, it was not proper for the Disciplinary Authority to adopt such approach for two reasons, firstly that there was no material whatsoever as noted by the Inquiry Officer which could prove the charges levelled against the deceased employee if such material was existing then the Disciplinary authority ought to have issued a show cause notice to the deceased employee informing him of the reasons the disciplinary authority disagreed with the enquiry officer. However, this has not happened. The learned AGP for respondents also would not show any material against the deceased employee so as to justify the punishment awarded to him. Secondly, in the absence of any such material in the inquiry report, there was no foundation for the Disciplinary Authority to connect the suspension period from 27.10.1965 to 21.12.1967 so as to be a punishment in the disciplinary inquiry.

29. It is settled principle of law that when the Disciplinary Authority has failed to bring home the charges and there was no basis whatsoever to hold that the charges against the deceased employee were proved, there was no question of such punishment to be imposed on the deceased employee. The Supreme Court in its decision in the case 'State of West Bengal and Others Vs. Bata Krishna Burman, (1970(3) Supreme Court Cases 612)? has held that if the charges as levelled against the employee are not proved, the consequence would be that the employee cannot be held guilty of any misconduct and that being so one would failed to understand as to how the order of suspension and only payment of subsistence allowance as disciplinary measure can at all be passed.

30. In a recent judgment the Supreme Court in the case of œSharda Singh Vs. State of Uttar Pradesh and others? reported in œ(2009) 11 Supreme Court Cases 683? in the context of suspension and regularisation of suspension period concerning the appellant-employee in that said case, the Supreme Court has made the following observations:-

œ12. It seems to us that the view taken by the High Court cannot be sustained. The Court while declining to set aside the order dated 13.9.2004 passed by the District Magistrate, Sitapur could have sustained the order passed by relying on the rules which govern the parties to the lis and in the alternative on the legal principles evolved by this Court. This appears to be not even attempted by the High Court. We say so for the reason that a government servant exonerated of the charges framed against him cannot be deprived of any portion of his pay for the period of suspension. (See State of W.B.vs Bata Krishna Burman).

13. Then again there could be a rule or regulation which may provide that during the period of suspension an employee would be entitled only for suspension allowance, dehors the ultimate result of the enquiry proceedings. This grey area either should have been determined by the Court or should have asked the authorities to determine the claim with reference to the prevailing rules/regulations.?

31. In view of the aforesaid clear position of law as laid down by the Supreme Court , we are of the view that the order dated 1.3.2007 passed by the respondents is wholly unsustainable for two fold reasons, firstly that the entire approach of the Disciplinary Authority in awarding a punishment to treat as period from 27.10.1965 to 21.12.1967 as punishment and not regularising the same itself was unjustified inasmuch as the charges against the deceased employee were held to be not proved in the finding of the Inquiry officer. Further in the absence of any material/evidence the disciplinary authority could not imposed such a punishment. This is fortified from the fact that the Disciplinary Authority has failed to give any reasons on dis-agreement with the enquiry officer nor a show cause notice was issued before issuing the order dated 22.12.1990/1.2.1991 of imposing such punishment. The impugned decision dated 1.3.2007 also does not give any reason whatsoever to justify the imposition of the punishment qua the suspension period. This is an undisputed position that there is nothing on record to justify the imposition of the punishment to decline the benefits of the suspension period. We may, therefore, observe that the directions of the Administrative Tribunal in the impugned judgment that the respondents should decide in regard to the period of suspension under Rule 72(5), was not justified, in view of the glaring facts of the present case, more particularly when the charges were not proved against the deceased-employee. The Tribunal was under a genuine apprehension that the respondents possibly would act fairly and give the benefits of the suspension period. However, the said did not happen but in pursuance of such directions, the impugned decision dated 1.3.2007 has been taken by the respondents during the pendency of the present writ petition. The plain reading of this decision also shows total lack of foundation and patently a mechanical exercise in declining to grant to the deceased employee the benefits of suspension period from 27.10.1965 to 21.12.1967. As we have observed that there is no reason much less justifiable for the second respondent to decline benefit of suspension allowance. We have, therefore, no hesitation to quash and set aside the impugned decision dated 1.3.2007 of the Second respondent. In any event the suspension order dated 27.10.1965 can be understood to mean that the suspension was either pending the prosecution or a contemplated departmental inquiry. Hence, at the relevant time the suspension was not a punishment as a consequence of a departmental inquiry. The deceased employee was dismissed by an order dated 6.2.1968 and subsequently on his acquittal, was reinstated by order dated 22.3.1988, however with further order of a contemplated departmental enquiry. In the normal course suspension lapses on termination and termination having been set aside, the period of suspension which was in aid to achieve a final result in the departmental proceedings would cease to have any effect. In the present case when the order of reinstatement dated 22.3.1988 was passed no reasons whatsoever were given to justify the non-regularization of suspension period but the same was postponed and made subject to the outcome of the departmental inquiry to be initiated after the reinstatement of the deceased-employee. Further in the departmental proceedings culminating into an order of punishment dated 20.12.1990 by which the suspension period has been ordered to be a penalty it is an admitted position on record that the charges are not proved. The Inquiry officer had given findings to that effect. The Disciplinary Authority had no independent reasons to disagree to the finding of the Inquiry officer but however in an arbitrary manner proceeded to impose a penalty without evidence. The position being that neither at the time of reinstatement the respondent had any reason not to account for the suspension period nor there is a reason in the departmental proceedings to justify the penalty of non recognition of the suspension period. We fail to understand as to how such action look from any angle can be held to be legal and valid. We therefore see no justification for the respondents not granting to the deceased employee the benefit of full pay for the suspension period from 27.10.1965 to 21.12.1967.

32. In view of the aforesaid discussion, we direct the respondents to regularise the suspension period of the deceased employee from 27.10.1965 to 21.12.1967 and grant all the benefits in regard to the said period to the Petitioner by calculating all the monetary/pensionary benefits to the petitioner within a period of four weeks. Taking into consideration the pain, agony and harassment as suffered by the petitioner, we direct the respondents to pay to the petitioner costs quantified at Rs.50,000/- (Rupees Fifty thousand only) to be paid within a period of four weeks.