In Civil Appeal No.7196/2016-SC- Suspended employee taking advantage of his own absence is contradictory to principles of service jurisprudence, affirms Top Court Justices Sanjay Kishan Kaul & M.M. Sundresh [07-04-2022]

Read Order: STATE OF JHARKHAND Vs. BANARAS PRASAD 

Mansimran Kaur 

New Delhi, April 11, 2022: While considering an appeal challenging the impugned orders of the High Court pertaining to the grant of benefits and allowance to an employee who disappeared at the time of his suspension order and did not challenge the same until it was revoked by the State, the Supreme Court has held that such employee cannot take advantage of his own absence as the same is against the principles of service jurisprudence.  

Factual background of the case was that the respondent was employed as a clerk in the Health Department of State of Bihar. Thereafter the respondent was suspended  by an Order dated February 15, 1991 of a Civil Surgeon-cum-CMO, Giridih, Giridih. It appeared from the materials on record that the said order could not be served to the respondent as he disappeared from the scene.

Notably, the respondent did not assail the suspension nor did he question the disciplinary proceedings not being conducted in pursuant to the suspension order. Later in the year, 2003 the Deputy Secretary, Department of Health &Family Welfare, Government of Jharkhand revoked the suspension order dated February 15, 1991  and posted the respondent  as  Clerk under Civil Surgeon, Ranchi. Directions were issued to the Civil Surgeon, Giridih to frame charges and initiate departmental proceedings against the respondent. As there was an opening for the post of Head Clerk under Civil Surgeon Koderma, he was assigned  to the same post  on July 4, 2003. 

The cause of action arose immediately after the appointment, as the respondent started demanding admissible allowances, benefits and promotion for the period February 15,1991  till March 31, 2003  interalia on the grounds that no proceedings had been initiated against him during that period and claims were also made in respect to the salary for the period June, 2003 to February, 2004 as per the Last Pay Certificate. The appellant challenged the same by way of writ petition moved before the High Court of Jharkhand. This was allowed by the Single- Judge of the High Court by observing that no disciplinary proceedings were initiated against the respondent was undisputedly an incorrect fact.  In pursuant to the same, a review petition was filed by the appellant concerning the fact that no departmental proceedings were initiated against the respondent. The same was, however, dismissed by an order dated January 30, 2015 recording that the High Court order stating that the disciplinary proceedings were not initiated was not correctly noted. 

In view of the High Court , it was opined that if the proceedings had  been initiated,subsequently they would have faced their own fate. The respondent challenged the above stated orders by way of LPA, and the same was dismissed in the same manner as the order of the Single- Judge of the High Court was dismissed by a cryptic order dated May 9,2016. This LPA was also impugned in these proceedings.

The Court in its order  primarily dealt with the part concerning the initiation of disciplinary proceedings. The Court noted that the direction to initiate the proceedings was issued in an order dated May 13, 2015.  The respondent was  not found to be guilty of committing irregularities and  any sort of misappropriate behavior on account of relevant facts were found to be missing. However, the Court took into consideration the charge of his unauthorized absence from April 4,1989 to February 14, 1991  and irregular absence from February 15, 1991  to March 31, 2003 (suspension period) continuously for 13 years  and the same was proved and the punishment was imposed. 

As per this Order, no payment was to be made for the period of unauthorized absence from April 4, 1989 to February 1, 1991 according to the principle of ‘No work no pay’ and this period was not be taken into account in service for any purpose. Also, period from February 15, 1991  to March 31, 2003  (suspension period) was held to be regularised in such a way according to the provision of rule 97(1)(A)(B) of the Service Code that only subsistence allowance would  be payable for the above period.

The above stated order was never assailed by the respondent and the complete opposite observation of the impugned orders was to give the benefits to the respondent, which this Court refused to accept. This Court was therefore of the view that respondent neither  reported to work after the suspension order nor did he assail the same till his suspension order was revoked by the State of Jharkhand. 

The Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh said, “It would be absolutely contrary to a service jurisprudence principle if an employee is able to take advantage of his own absence for this period of time. If his grievance was that departmental proceedings were not being initiated despite suspension, he was required to take redressal of his grievances. He did not do so.”

However, the Court also noted that the State of Bihar did not take any action. By making these observations, the Court set aside the orders and held the respondent to  be entitled to benefit in accordance with the order dated March 13, 2015. It was also added that the aforesaid would have been rationally open to challenge, however with the passage of seven years of tenure it was too late for the respondent to challenge  their claim.