J. VANLALCHHUANGA Vs. STATE OF MIZORAM

JUDGEMENT

(1.) Heard Mr. J.C. Lalnunsanga, learned counsel appearing for the petitioner as well as Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram appearing for the State respondents.

(2.) This writ petition is directed against the order dated 21st September, 2010 by which the petitioner was awarded a minor penalty under Rule 11(iii) & (iv) of the CCS (CCA) Rules, 1965 wherein at penalty No. 3, the period of suspension w.e.f. 14.11.2003 till resumption of duty by the petitioner shall be treated as on duty for pensionary benefit only on his reinstatement and he shall not be entitled to full pay and allowances during the period of his suspension except subsistence allowance already paid to him.

(3.) Mr. J.C. Lalnunsanga, learned counsel appearing for the petitioner submits that the petitioner was recruited on 5th October, 1992 through open competition as Inspector in the department of Food, Civil Supplies & Consumer Affairs, Government of Mizoram. On 14th November, 2003, he was suspended on the allegation of misappropriation of rice and sugar and a departmental enquiry was instituted against him. Thereafter, a departmental enquiry was conducted and on completion of the said departmental enquiry, the enquiry authority submitted its report dated 11.2.2010. Basing on the said enquiry report, memorandum dated 26th March, 2010 was issued by the respondent No. 2 to the petitioner to make representation against the proposed penalty. The petitioner submitted his representation dated 11.5.2010 in response to the memorandum dated 26.03.2010. Thereafter, the respondent No. 2 by order dated 21st September, 2010 revoked the order of suspension and reinstated the petitioner to the post of Inspector with immediate effect subject to finalization of his case kept pending against him. By the said order dated 21.09.2010, the respondent No. 2 in exercise of the powers conferred by Rule 12 of CCS (CCA) Rule, 1965, awarded a minor penalty to the petitioner by ordering that Rs. 7000/- (Rupees seven thousand) shall be deducted from the monthly pay and allowances of the petitioner for onward recovery of liabilities amounting to Rs. 4,07,340/- with effect from the pay of October, 2010. His increments of pay was also withheld for a period of 3 years w.e.f. 1.7.2011 without cumulative effect and all the increments during the penalty period of suspension will be enjoyed and restored on 1.7.2014. Further, the period of suspension w.e.f. 14.11.2011 till resumption of duty by the petitioner shall be treated as on duty for pensionary benefit only on his reinstatement and he shall not be entitled to full pay and allowances during the period of his suspension except subsistence allowance already paid to him. The learned counsel for the petitioner also submits that despite the order of reinstatement, the petitioner had not been given proper salary since July, 2012 till date as the respondent No. 2 had wrongly stated in the order dated 21.9.2010 that there is a pending case against him. He also submits that the respondent No. 2 had issued an order dated 9th November, 2011 modifying the earlier order dated 21.09.2010 ordering that there is no case pending against him and the minor penalty already awarded to the petitioner by order dated 21st September, 2010 will remain unchanged. He further submits that the petitioner who was awarded minor penalty was denied full pay and allowances for the period of suspension while other equally circumstanced person has been given full pay and allowances which is discriminatory and therefore, the respondents should be directed to treat the petitioner equally as has been done to other persons by the respondents. He also submits that under the Fundamental Rules 54-B, it is stated that where departmental proceedings against a suspended employee for the imposition of major penalty finally ends with the imposition of minor penalty, the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order. However, in the case of the petitioner, the respondents have failed to follow the instructions under the Fundamental Rules 54-B whereas the other equally situated and circumstanced persons from the same department were given the benefit. The respondents have used a different yardstick in so far as the petitioner is concerned and therefore, the said penalty whereby he has been denied the benefit of full pay and allowances should be set aside and quashed. In support of his contentions, the learned counsel for the petitioner has placed reliance in the case of O.P. Gupta - vs- Union of India and Ors., 1987 AIR(SC) 2257 as well as the judgment and order dated 20.07.2011 of this Court passed in W.P.(C) No. (SH) No. 351 of 2009.