10-year suspension after murder charge: Why court reinstated PWD employee, ordered back wages
Noting that despite lapse of a considerable period, the department have not initiated disciplinary proceedings and are awaiting the outcome of the criminal trial, the Gauhati High Court said that such an approach is erroneous.
The Gauhati High Court was dealing with a plea of a PWD employee seeking to set aside his suspension. (AI-generated Image) The Gauhati High Court has set aside the continued suspension of a Public Works Department (PWD) employee and allowed him to come to work again, ruling that the approach of keeping the suspension in force without reviewing it and not initiating disciplinary proceedings is “not justified in law”.
Justice Pranjal Das was dealing with a plea of a PWD employee, who was suspended in 2016 over criminal charges against him. He was seeking direction for the department to pay his subsistence allowance during the suspension period.
“In the instant case, the approach of keeping the suspension in force without reviewing it and not initiating disciplinary proceedings by awaiting the outcome of the criminal trial is not justified in law and fact,” the court said on May 21.
Justice Pranjal Das said the governing law is that when an employee is suspended in disciplinary proceedings, the suspension has to be reviewed from time to time.
The order added that despite the lapse of a considerable period, the respondents have not initiated disciplinary proceedings and are awaiting the outcome of the criminal trial. Such an approach is erroneous.
‘Criminal, departmental proceeding can proceed in parallel’
- From the pleadings of the respondents’ side, it is clear that the petitioner has not been paid his subsistence allowance.
- The contention of the petitioner regarding his continued suspension has not been controverted by the respondents’ side.
- The law regarding the necessity of reviewing an order of suspension is well settled by the decision of the Supreme Court in the case of Ajay Kumar Choudhary.
- The governing law is that when an employee is suspended in contemplation of initiation of disciplinary proceedings, the suspension has to be reviewed from time to time and in terms of Ajay Kumar Choudhary.
- The outer limit for the continuance of such a period of suspension is three months, if a disciplinary proceeding is not drawn up in the meantime.
- As far as the subsistence allowance is concerned, it is well settled by a line of decisions of the Supreme Court that the subsistence allowance not only flows from the Fundamental Rules, but is also a facet of Article 21 of the Constitution of India.
- A criminal proceeding and a departmental proceeding can proceed in parallel as per the well-settled position of law.
- The standard of proof in both the proceedings is different, being proof beyond a reasonable doubt and preponderance of probability, respectively.
Case of suspension for decade without review
The petitioner, a carpentry helper in the PWD housing division in Dimapur, was placed under suspension on May 9, 2016. The suspension followed his arrest in connection with the alleged murder of a colleague in July 2015.
It was stated that after submission of the final form by the police, proceedings of the case are going on at present. In 2016, the petitioner was suspended by the department following the proceedings.
The petitioner contended that the suspension order was not reviewed subsequently, and the petitioner continues to be under suspension. He claimed that he was also left unattended by the respondents with regard to wages.
In October 2021, the petitioner submitted a legal notice to the department to clear his pay and other allowances, and also to be paid subsistence allowances. However, after receiving the legal notice, the respondents made some communications, but they did not address his grievances.
For nearly 10 years, he remained under suspension without receiving a substance allowance or a formal disciplinary charge sheet. The state respondents argued that the administrative matter could not be pursued until a final verdict was reached in the criminal trial.
Other courts’ rulings
Underlining the ‘suspension syndrome’ of those in power, the Madhya Pradesh High Court has stayed the suspension of a government school teacher who was penalised over a Facebook video referring to an LPG shortage, holding that disciplinary action cannot be initiated “mechanically” or under external pressure without proper application of mind.
A bench of Justice Ashish Shroti was hearing a writ petition filed by a government teacher, Saket Kumar Purohit, a primary school teacher posted in Shivpuri district, challenging his suspension order dated March 13, issued after he posted the video about an alleged LPG shortage.
“An employee cannot be placed under suspension in a routine manner as part of a ‘suspension syndrome’. The existence of the power to suspend an employee, the manner in which such power is exercised, and the propriety of passing such an order are distinct aspects,” the court said on March 25.
Observing that denying salary is a grave injustice, particularly when the petitioner was exonerated in criminal proceedings and other inquiries, the Punjab and Haryana High Court has quashed an order denying full back wages to a municipal corporation clerk suspended for over a decade.
Justice Harpreet Singh Brar ruled that denying salary to an employee in such circumstances amounts to an unlawful penalty.
“Denial of salary for the said period, particularly when he stands exonerated in both the criminal proceedings and the departmental inquiries, would result in grave injustice,” the high court said on March 10.
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