1

REPORTABLE

        IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    Civil Appeal No(s).  5737 of 2019     (@ SLP(C) No. 16928/2018)

State of Jharkhand & Anr               Appellant(s)

                               Versus

Amresh Narayan Sinha                                 Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

Leave granted.

 This appeal arises from a judgment of a Division Bench of the High Court

of Jharkhand dated 12 April 2017. The Division Bench directed the appellant that,

upon the revocation of the suspension of the respondent, he should be given full

pay  and  allowances  for  the  period  of  suspension,  though  the  disciplinary

proceedings have not been concluded.

The respondent was engaged, at the material time, as a Veterinary Officer

in the service of the State of Bihar.   In June 2005, his services were allotted to the

State of Jharkhand after the reorganisation of States.  Sanction was issued on 17

2

February  2006  for  his  prosecution  in  CBI  Case  No.  RC 5(A)  2005-Pet  under

Section 120B, 201, 420, 467, 468 and 471 of the Penal Code and Section 13(2)

read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

The  respondent  was  placed  under  suspension  on  14  March  2012  in

contemplation of disciplinary proceedings. On 11 March 2013, he was informed

that a decision had been taken to initiate departmental proceedings against him on

the charges mentioned in the communication. The High Court passed an order on

28 February 2013 requiring the State of Jharkhand to consider the representation

of  the  respondent  for  revocation  of  his  suspension.  The  representation  was

rejected by the State Government.

On 29 May 2013, the subsistence allowance which was initially paid to the

respondent  at  the  rate  of  50  per  cent  was  increased  to  75  per  cent.  The

departmental proceedings have been held in abeyance pending the criminal trial.

The  respondent  was  chargesheeted  in  the  criminal  case  and  cognizance  was

taken by the competent court.  Charges were framed.   The trial is stated to be in

progress.

On  6  July  2015,  the  State  revoked the  suspension  of  the  respondent.

Thereupon, a Writ Petition was filed by the respondent before the learned Single

Judge.  On 18 July 2016 the Single Judge directed the State Government to take a

decision with respect to the payment of full  salary for the period of suspension

irrespective of the pendency of  the criminal  case. This direction of  the learned

Single Judge was affirmed by the Division Bench in a Letters Patent Appeal on 12

April 2017.   The Division Bench, as well as the learned Single Judge held that, in

view of  the  provisions  of  Rule  97  of  the  Jharkhand  Service  Code,  2001,  the

respondent would be entitled to full pay and allowances upon the revocation of his

3

suspension, even if the departmental proceedings were pending against him    

Aggrieved by these directions, the State is in appeal.

Rule 97 of the Jharkhand Service Code provides as follows:-

“Rule-97(1) When a Government servant who has been dismissed,  removed,  or  suspended,  reinstated,  the authority  competent  to  order  the  reinstatement  shall consider and make 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) Whether or not the said period shall be treated as a period spent on duty.

(2) Whether 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.

(3)  In other cases, the Government servant shall be given such  proportion  of  such  pay  and  allowances  as  such competent authority may prescribe:

Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible.

(4)   In  a  case  falling  under  Clause  (2)  the  period  of absence from duty shall be treated as a period spent on duty for all purposes.

(5)  In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose.

Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall  be  converted  into  leave  of  any  kind  due  and admissible to the Government servant.”

4

Sub-rule  (1)  of  Rule  97  indicates  that  where  a  government  servant  is

suspended, the authority competent to order the reinstatement has to consider

and make a specific order  regarding the pay and allowances for the period of

absence from duty and on whether the period shall be treated as a period spent on

duty.  Sub-rule (2) indicates that where the authority concludes that the suspension

was  “wholly  unjustified”,  the  government  servant  shall  be  given  full  pay  and

allowances as if the order of suspension had not been passed.  The High Court

misconstrued the provisions of Rule 97 in coming to the conclusion that full pay

and  allowances  must  necessarily  follow  as  a  consequence  of  the  suspension

being revoked.   This  construction is  contrary to the plain terms of  Rule 97 as

extracted  above.  The  disciplinary  proceedings  have  been  held  in  abeyance

pending the conclusion of the criminal trial. It is only after the conclusion of the

departmental inquiry that the competent authority will have to decide, in terms of

Rule 97, how the period of suspension should be treated and whether it is liable to

be treated as a period spent on duty. A decision will  be taken on the pay and

allowances which should be allowed.  The directions which were issued by the

High Court at this stage were hence contrary to Rule 97.

  The factual position, as it emerges before the Court, is that under the pain

of  contempt  proceedings,  the  State  has  already  paid  over  the  entire  pay  and

allowances for the period of suspension to the respondent.  In view of the above

position, we are of the view that the only appropriate direction to issue at this stage

would  be that  the payment  which has been made to  the  respondent  shall  be

subject to the ultimate decision of the competent authority in terms of Rule 97(1)

after the conclusion of the disciplinary proceedings.

5

We accordingly, allow the appeal and set aside the impugned judgment

and order of the High Court dated 12 April 2017. There shall be no order as to

costs.

Pending application(s), if any, shall stand disposed of.

…..…………................................J.           (Dr Dhananjaya Y Chandrachud)

.…………………………...............J.             (Indira Banerjee)

New Delhi 22 July 2019

6

ITEM NO.26               COURT NO.10               SECTION XVII

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  16928/2018

(Arising out of impugned final judgment and order dated  12-04-2017 in  LPA  No.  556/2016  passed  by  the  High  Court  Of  Jharkhand  at Ranchi)

THE STATE OF JHARKHAND & ANR.                      Petitioner(s)

                               VERSUS

AMRESH NARAYAN SINHA                               Respondent(s)

 Date : 22-07-2019 This petition was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MS. JUSTICE INDIRA BANERJEE

For Petitioner(s) Mr. Dilip Kumar Dubey, Adv. Mr. Jayesh Gaurav, Adv.

                   Mr. Vishal Arun, AOR                     For Respondent(s)                     Mr. Gopal Prasad, AOR                      

         UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed  reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)