Jayanta Kumar Biswas, J.
1. It is not possible to get a clear idea of the grievances of the Petitioner in this writ petition, unless the miscellaneous application (CAN 2519 of 2001), subsequently filed by him, is read. It is only to this application that he annexed the decision of the Respondent company dated August 13/17, 1998 refusing some financial benefits and benefits of promotion, to which according to him he was entitled.
2. On May 4, 1985 he was suspended. At that date he was working in E-4 grade and was officiating in E-5 grade. He suffered the suspension because of an F.I.R. lodged by his employer with Kulti police station on May 1, 1985 under the Essential Commodities Act, 1955, Section 7(1)(a)(ii), as well as under the Indian Penal Code, 1860, Sections 379, 411, 420 and 120B. Allegations were also made regarding commission of offences under the Coal Mines (Nationalisation) Act, 1973, Section 30(2) and the Prevention of Damage to Public Property Act, 1984, Section 4.
3. The first information report gave rise to two cases : (1) G.R. case No. 1930 of 1985, arid (2) Special Court case No. 17 of 1987. In the G.R. case charges were framed on July 3, 1989. Charge-sheet was also filed in the special court case. In 1992 he filed two applications in this Court for orders to quash the criminal cases. By judgment and order dated January 28, 1993 the G.R. case was quashed.
4. After the G.R. case was quashed he prayed for revocation of the suspension order. Since he did not get any relief from his employer, he moved this Court by filing a writ petition in which an order was passed on January 26, 1994. The order has, however, not been produced before me. It is not disputed that because of the order passed in the writ petition his employer passed an office order dated February 10, 1994 revoking the suspension with effect from February 6, 1994. He was permitted to resume duties. On March 31, 1994 he retired from service on reaching the age of superannuation. Then by judgment and order dated April 25, 1996 the special court case was also quashed by this Court.
5. Although he retired from service, his employer did not give him the financial benefits for the period from May 4, 1985 to February�s, 5, 1994 (the period of suspension). Feeling aggrieved he moved this Court again by filing Writ Petition No. 4535 (W) of 1998. It was disposed of by order dated May 15, 1998 directing his employer to consider his representation and communicate the decision. It is in compliance with this order that the decision dated August 13/17, 1998 (challenged in this writ petition) was given by his employer.
The decision reads:
In pursuance of High Court order dated 15.05.1998 in W.P. No. 4595 of 1998 in case of Shri Pradyut Kumar Mukherjee alias P.K. Mukherjee v. Sail and Ors. the Petitioner Shri P.K. Mukherjee was sent a notice to cause appearance to explain his case. Head. The following order is passed:
1. Shri P.K. Mukherjee is allowed payment of Basic Pay, VDA, Coal Field allowances, Company's contribution to Provident Fund alongwith interest and Gratuity. Other than the P.F. amounts stated above, it will not be possible to pay interest on any other item. The amount of subsistence allowance paid to him during the period of suspension shall be deducted from the amounts payable to him;
2. He is not allowed any payment on account of underground allowance in view of the fact that during the suspension period there was no occasion when he could perform any duties, leave alone the underground dutie;
3. He is also not allowed any payment on account of magazine and entertainment allowances as the same are in the nature of reimbursement, if actually incurred his duties, the same is disallowed;
4. He is also not allowed any reimbursement of local travelling expenses due to the fact that he was not supposed to perform any official duty where his vehicle could be used;
5. Shri P.K. Mukherjee is not considered for promotion during the period of his suspension in view of the fact that the delay in his acquittal was on account of inaction on part of the Petitioner, the State or both. In any event, in terms of promotion policy, even the consideration of the Petitioner for promotion would be of academic interest in view of the fact that no financial benefit can be granted without his assuming charge of the higher post. Shri Mukherjee having already retired w.e.f. 31.03.1994, the question of his assuming charge of next higher post does not and cannot arise.
6. Shri P.K. Mukherjee is hereby advised to collect the payments aforesaid from Chanalla Colliery on any working day.
6. It is not disputed that full pay and allowances (except a few) to which he would have been entitled, had he not been suspended, were given by his employer, which treated him as on duty for all purposes. His employer even granted him interest on the employer's contributions of provident fund to which he would have been entitled, had his provident fund contributions been duly deposited by his employer during the period of suspension.
7. The allowances which would have been payable to him on his actually discharging the duties (like discharging duties inside the mine) and the allowances which would have been payable to him by way of reimbursement (like allowances payable on account of purchase of periodicals and journals) and for each of which rules provided a maximum amount, were not given to him on the grounds that he did not actually discharge the duties and that he did not actually incur the expenses. Interest on employee's contributions of provident fund was not granted on the ground that no contribution was made by him. He was also not considered for promotions to E-5 and E-6 grades.
8. His counsel argues that once the Respondents treated his client on duty for all purposes and paid him full pay and virtually full allowances, there was no scope to deprive him of some of the allowances. His contention is that the benefits were denied without any sanction of law. Regarding the promotions his argument is that since the suspension was revoked and for the institution of the criminal cases the Respondents were only to be blamed, the Petitioner was entitled to be considered for the promotions.
9. Counsel for the Respondents draws my attention to the Indian Iron and Steel Co. Ltd. Conduct, Discipline and Appeal Rules, 1977, Rules 5, 15, which is:
5.15 Treatment of the period of suspension:
5.15.1 When the employee under suspension is reinstated, the Competent Authority may grant to him the following pay and allowances for the period of suspension.
(a) If the employee is exonerated and not awarded any of the penalties mentioned in Rule 5.11, the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him; and
(b) If otherwise, such proportion of pay and allowances as the Competent Authority may prescribe.
5.15.2 In a case falling under Sub-clause (a) the period of absence from duty will be treated as a period spent on duty. In case falling under Sub-clause (b) it will not be treated as a period spent on duty unless the Competent Authority so directs.
10. By referring me to the rule he argues that in view of provisions of its Clause (b) his clients possessed the discretion to allow only a portion of the pay and allowances to the Petitioner and that he was not entitled to claim full pay and allowances to which he would have been entitled, had he not been suspended.
11. He cites to me the decision in Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda Vs. V. Venkateswarulu and Another, etc. etc., and comments that after considering an almost identical rule in that case their Lordships of the Supreme Court held that the benefits payable to an employee for the period of suspension would be dependent on a decision to be taken by the employer after exercising his discretion and that the employee would not be entitled to full pay and allowance automatically.
12. In my understanding, the authority cited to me by counsel for the Respondents did not lay down a proposition of law that is applicable in general to all cases deciding the question of benefits admissible on revocation of suspension. In terms of the rule considered in that case there was no scope to grant full pay and allowances to the employee automatically, because the employer was supposed to take a decision regarding the exoneration aspect and also regarding the justifiability of the suspension; and I think, in this context it was held by their Lordships that there was no scope to grant full pay and allowances to the employee automatically.
13. Counsel for the Respondents then argues that except for the cases of exoneration in a disciplinary proceeding, all cases including the present one would be governed by the provisions of Clause (b) of Rule 5.15.1. I am sorry that once again I am unable to agree with him. If his contention is accepted, it seems to me, then the interpretation of the rule is likely to lead me to an unintended result.
14. The intention of the rule is to grant pay and allowances to the employee for the period of suspension. Provisions of its Clause (a) provided for full pay and allowances when an employee is exonerated in a proceeding. If such was the intention of the rule makers, then, I think, it was never their intention that a person who did not face any disciplinary proceeding and hence could not be punished in any manner, was to suffer a greater loss, consequent upon revocation of the suspension and resumption of duties, than a person who had been proceeded against, but was exonerated.
15. In my view, the rule does not fully cover such a situation as the parties are facing in this case. The lacuna in the rule cannot be used to deprive the Petitioner of the benefits to which he would have been entitled in the absence of any rule. In the absence of any rule, to my mind, the Petitioner would have been entitled to full pay and allowances for the period of suspension.
16. I think, this is a case where I should proceed on the basis that the employer fully understood the situation of absence of rule and that precisely for this reason without referring to Rule 5.15 the competent authority gave the decision under challenge.
17. For these reasons I am of the view that the Respondents were not right in denying some of the benefits to the Petitioner. Since he was treated on duty for all purposes, the question of his not discharging the duties actually and hence of not being entitled to some of the allowances, could not arise at all. I am, therefore, of the view that the Petitioner is entitled to the benefits which have not been given to him.
18. The other aspect of the grievance of the Petitioner is that during the period of suspension he was not considered for promotions to E-5 and E-6 grades, though he was entitled to be considered being eligible for such promotions and when promotions were given to others. His counsel points out that these allegations made in pleadings have remained virtually undisputed.
19. In reply counsel for the Respondents has referred me to paras. 4 and 8 of the promotion policy for executives, effective from June 15, 1986. He says that the promotions claimed were not automatic and that, if eligible, the Petitioner was to be considered only. He very fairly submits that case of the Petitioner was not considered.
20. He also draws my attention to the rules for promotion for executives, effective from June 15, 1986. By referring to rules 21, 21.1 and certain paras, of annexure-IV to such rules, he submits that because of pendency of the criminal cases against the Petitioner the Respondents were only to consider his case and that if he was found eligible and fit for promotion, then the promotion was to be given only after revocation of the suspension order without any arrears of the financial benefits.
21. Counsel for the Petitioner has responded by saying that the proposition of no work-no pay, an also the provisions of the paras, in question (of the relevant annexure to the promotion rules), should not be interpreted for denying the financial benefits to the Petitioner in this case. He submits that as a court of equity I should interpret the relevant provisions for granting financial benefits to the Petitioner who, although was willing to discharge his duties, was not permitted by his employer to work.
22. While I agree with counsel for the Petitioner that the Respondents were under an obligation to consider his client for promotions to E-5 and E-6 grades, I am, however, not in a position to agree with him that on getting the promotions after revocation of the suspension order his client would have been entitled to the arrears of financial benefits of the promotional posts.
23. Regarding the question of consideration of the Petitioner for the promotions, I do not find any difficulty in granting suitable reliefs to the Petitioner, since counsel for the Respondents found little to resist the claim, even after reading out at length the relevant provisions of the policy and rules to me.
24. His firm resistance to the question of granting arrears of financial benefits, I find, is fully justified, in view of the relevant provisions made in the annexure to the rules. It specifically says that on promotion in such cases the employee concerned would not get any arrears of financial benefits of the promotional post except notional benefit of fixation in the scale of the promotional post, together with the benefits of increment. This being the specific provision of law, I think, I shall do violence to the provisions, if I pass an order directing the Respondents to grant arrears of financial benefits to the Petitioner, if after considering his case, the Respondents find that he was to be promoted from certain dates to the grades in question.
25. For all these reasons I am of the view that the writ petition should be allowed in part; and accordingly, I allow it in part. The impugned decision dated August 13/17; 1998 is hereby set aside. I order that the Respondents shall pay to the Petitioner all the benefits which have been refused by them. The allowances and the interest which would have accrued on the employee's contributions of provident fund and other benefits as claimed, shall be released by the Respondents. They shall also consider the Petitioner for promotions to E-5 and E-6 grades; and if they find that the Petitioner was to be promoted from certain date or dates, then the consequential financial benefits in terms of the relevant provisions of the promotion rules shall be given to him. The terminal benefits shall be recalculated in such event and the amount found payable because of the increase shall be released in favour of the Petitioner. All t
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hese exercises shall be completed by the Respondents within six weeks from the date of receipt of a copy of this judgment and order by them. 26. Before I leave the case I place it on record that on the facts it is not possible for me to decide the issue regarding deduction of income tax at source by the Petitioner's employer from the amounts already paid to him. I think, I should keep the matter open for the Petitioner, as prayed for by his counsel, for agitating before the competent income tax authority, hence I say that if the Petitioner finds that the income tax was not properly deducted at source by his employer, then with respect to the income tax already deducted and also with respect to the tax that may be deducted in future, the Petitioner will be at liberty to approach the competent income tax authority for seeking appropriate reliefs. 27. In the facts and circumstances of the case, I am not inclined to make any order for costs or for interest in favour of the Petitioner. Hence there will be no order for costs in the writ petition or for interest on the amounts that may be found payable to the Petitioner. 28. In view of final disposal of the writ petition nothing remains to be decided in the applications (CAN 10428 of 2000 and CAN 2519 of 2001); and hence they will be deemed to be disposed of without any order for costs in them. 29. Xerox copy of this judgment and order duly countersigned by the Assistant Registrar (Court) shall be supplied to the parties, on usual undertakings. 30. Urgent certified xerox copy of this judgtment and order shall be supplied to the parties, if applied for.