STATE OF RAJASTHAN & ANR.versusMANGAT LAL SIDANA

                           [2022] 14 S.C.R. 765                              765


                 STATE OF RAJASTHAN & ANR.                                   A
                                    v.
                       MANGAT LAL SIDANA
                    (Civil Appeal No. 2386 of 2022)
                           MARCH 23, 2022                                    B
        [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
       Rajasthan Service Rules, 1951 – r.54 – Scope and purport of
– Held: Whenever there is reinstatement in the circumstances
attracting r.54, the authority is to pass a specific order relating to
                                                                             C
the pay and allowances to be paid and also as to whether the period
of such absence is being treated as period spent on duty – Where
the employee is not fully exonerated and therefore is governed by
r.54(3), then the period of absence is not to be treated as duty unless
the authority specifically directs that it shall be duty for any specified
purpose – Further, proviso to r.54(5) contemplates that it is open to        D
the Government to direct that the period of absence shall be
converted into leave of any kind due and admissible for Government
servant – In the present case, the respondents have not been fully
exonerated as such – This would take their case outside the four
walls of r.54(2) – Their suspension may not fall in the category of
                                                                             E
unjustified suspension – This would bring their cases within the
scope of r.54(3) which means that the exact amount of pay and
allowances to be paid is to be less than the full pay and allowances
– However, this exercise can be done only after notice to the
employee which was not done but, to remit it back for this purpose
would be inequitable – On facts, the respondents be paid pay and             F
allowances fixed at 50 % of the pay and allowances which they
would have drawn for the period of their absence – Principles of
Natural Justice – Rajasthan Civil Services (Classification, Control
& Appeal) Rules, 1958 – r.34 – Punjab Civil Services Rules – Service
Law.
                                                                             G
       Service Law – Rajasthan Service Rules, 1951 – r.54 –
Principles of natural justice – Observance of – Held: The employee
must be given an opportunity before any order is passed – Even u/
r. 54, the position is the same – Observance of principles of nature
justice is of cardinal importance for the employee whose very life
                                                                             H
                                   765
766            SUPREME COURT REPORTS                     [2022] 14 S.C.R.


A     will be at stake for he would on the one hand if he is heard get an
      opportunity to pursuade the competent authority that his case would
      fall under r.54(2) and not under r.54(3) – Denial of opportunity
      can have very serious consequences.
            Partly allowing the appeals, the Court
B            HELD: 1.1 Rule 54 is a provision which is a common
      provision in both the State services and also the Central services.
      The counter part in the Central Services is Rule 54 of the Rules.
      In fact, Rule 7.3(B) of the Punjab Civil Services Rules is a separate
      provision which deals with a person being placed under suspension
C     and who is reinstated without there being a penalty imposed. Rule
      54 with which this Court is concerned contemplates an amalgam
      of situations which deal with disciplinary proceedings culminating
      in dismissal, compulsory retirement and removal and it also deals
      with absence from duty on account of suspension. In other words,
      when an employee at the end of the disciplinary proceedings is
D     punished in terms thereof and as a result of the order passed is
      reinstated, then the competent authority is called upon to consider
      and pass specific order regarding the pay and allowances to be
      paid for the period for absence from duty. The Rule appears to
      separately contemplate the duty to provide for the pay and
E     allowances for the period of suspension ending with the date of
      retirement on superannuation as the case may be. In other words,
      the Rule in its application contemplates a situation wherein a
      Government servant being dismissed, removed, compulsory
      retired or suspended is reinstated. It also takes in a case where
      but for his retirement, he would have been reinstated while under
F     suspension. In both these cases, the duty of the competent
      authority is to pass the order within the contemplation of Rule
      54(1)(a) and (b). This means that apart from dealing with pay and
      allowances, as to whether the period of absence is to be treated
      as duty must be dealt with. This flows from Rule 54(1)(b). The
G     manner in which the authority is to pass the order is regulated by
      subsequent provisions in Rule 54. Sub-rule 54(2) contemplates
      that the competent authority must examine the proceedings, apply
      its mind, and find whether it is a case where the Government
      servant at the end of the day has been fully exonerated. In the
      case of suspension where a person being under suspension is
H
  STATE OF RAJASTHAN & ANR. v. MANGAT LAL SIDANA                          767


reinstated, the duty lies on the competent authority to consider          A
the question as to whether the suspension was justified or wholly
unjustified. If the suspension was wholly unjustified, the
Government servant would be entitled to be paid the full pay and
dearness allowance which he was entitled to had he not been
suspended. The same is the case of the Government servant
                                                                          B
visited with the penalty of dismissal, removal or compulsory
retirement. If it is found that at the end of the day that the penalty
was wholly unjustified in that, on merit it is found that the
employee stands completely exonerated, he would be entitled to
get full pay and dearness allowance. Rule 54(3) is the residuary
clause. The provisions of Rule 54(2) and (3) are mutually                 C
exclusive. In other words, if an employee is not fully exonerated,
he is to be given such proportion of the pay and allowances as
the competent authority may prescribe. Sub-rule (4) of Rule 54
is relatable to sub-rule 54(1)(b). In other words, whenever there
is re-instatement in the circumstances attracting Rule 54, the
                                                                          D
authority is to pass a specific order relating to the pay and
allowances to be paid and also as to whether the period of such
absence is being treated as period spent on duty. Both these
aspects must be reflected in the order. [Paras 8, 9][773-D-H;
774-A-E]
      1.2 In the case where there is full exoneration, the rule-          E
maker had made it clear that the period of absence is to be treated
as duty for all purposes. However, the provisions of Rule 54(5)
contemplate a situation where the employee is not fully exonerated
and therefore is governed by Rule 54(3). Then the period of
absence is not to be treated as duty unless the authority                 F
specifically directs that it shall be duty for any specified purpose.
The proviso to Rule 54(5) contemplates that it is open to the
Government to direct that the period of absence shall be
converted into leave of any kind due and admissible for
Government servant. This would appear to be the scope and
purport of Rule 54. [Para 10][774-F-G]                                    G

       1.3 This is a case where the respondents have not been
fully exonerated as such. The proof of the same is to be found in
the fact that they have been visited with a penalty as the disciplinary
proceedings have admittedly culminated in the penalty being
                                                                          H
768           SUPREME COURT REPORTS                     [2022] 14 S.C.R.


A     passed which may be a minor penalty. The other aspect of the
      matter is about the observance of principles of natural justice.
      The employee must be given an opportunity before any order is
      passed. The matter is no longer res integra. [See M. Gopalakrishna
      Naidu v. State of Madhya Pradesh AIR 1968 SC 240]. It does not
      need reiteration that even under Rule 54, the position is the
B
      same. Observance of principles of nature justice is of cardinal
      importance for the employee whose very life will be at stake for
      he would on the one hand if he is heard get an opportunity to
      pursuade the competent authority that his case would fall under
      Rule 54(2) and not under Rule 54(3). [Paras 11, 12][774-H; 775-
C     A-C]
             1.4 Learned Additional Advocate General appearing for the
      appellants would point out that in such circumstances, the course
      to be adopted would be to remit it back to the competent authority
      so that the competent authority may ensure that the respondents
D     appear before the authorities and then the case is decided. In
      fact, the course adopted by this Court finally in M. Gopalakrishna
      Naidu was to remit the matter back to the competent authority
      to pass an order after hearing the employee. But then, learned
      counsel for the respondent would point out that the respondent
      is aged 76 and at this stage, remitting back the matter would be
E     highly inequitable. In the leading case, this Court noticed, at the
      time of admission, this Court had passed an order of stay subject
      to payment of 50 per cent of the backwages. Denial of opportunity
      can have very serious consequences. In this case, the finding is
      that the principles of natural justice were not complied with. On
F     this ground, the respondents would support the judgment. [Paras
      12, 13][775-D-F; C-D]
             1.5 The disciplinary proceedings against the respondents
      in both the cases have not culminated in a situation where it could
      be said that they have been completely exonerated. This would
G     take their case outside the four walls of Rule 54(2) of the Rules.
      Their suspension may not fall in the category of unjustified
      suspension. This inevitably and necessarily would bring their
      cases within the scope of Rule 54(3). This would necessarily mean
      that the exact amount of pay and allowances to be paid is to be
      less than the full pay and allowances. However, this exercise can
H
  STATE OF RAJASTHAN & ANR. v. MANGAT LAL SIDANA                           769


be done only after notice to the employee. Admittedly, there is a          A
failure by the appellants in this regard. But, at the same time, to
remit it back for this purpose in our view would be inequitable.
Hence this Court would rather adopt the middle path by directing
that in the facts and circumstances of the case, the respondents
be paid pay and allowances fixed at 50 per cent of the pay and
                                                                           B
allowances which they would have drawn for the period of their
absence. Accordingly, the appeals are partly allowed. This Court
directs that the respondents in both the cases will be paid the
pay and allowances at 50 per cent of the amount which they would
be entitled for the period in question. [Para 14][775-G-H; 776-
A-B]                                                                       C
      M. Gopalakrishna Naidu v. State of Madhya Pradesh
      AIR 1968 SC 240 : [1968] 1 SCR 355 (12) – relied
      on.
                        Case Law Reference
                                                                           D
[1968] 1 SCR 355                 relied on                Para 12
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2386
of 2022.
       From the Judgment and Order dated 28.04.2016 of the High Court
of Judicature for Rajasthan at Jodhpur in DB Civil Special Appeal (Writ)   E
No. 493 of 2008.
      With
      Civil Appeal No. 2365 of 2022.
      Dr. Manish Singhvi, Sr. Adv., Arpit Parkash, Sandeep Kumar Jha,      F
Advs. for the Appellants.
     Ajay Choudhary, Ms. Archana Pathak Dave, Prateek Kasliwal,
Avnish Dave, Ms. Vanya Gupta, Kumar Prashant, Advs. for the
Respondents.
      The Judgment of the Court was delivered by                           G

      K. M. JOSEPH, J.
      Leave granted.
      Since both the appeals raise common issues, we dispose of the
same by a common judgment.                                                 H
770             SUPREME COURT REPORTS                          [2022] 14 S.C.R.


A            (1) We take the appeal arising out of SLP (C)No. 32112 of 2016
      as the leading case, i.e. Civil Appeal No. 2386 of 2022. The respondent
      herein was employed with the appellants and working in the cadre of
      Assistant Engineer. Disciplinary proceedings was taken against the
      respondent. Apparently, in contemplation of the disciplinary proceedings,
      the respondent was placed under suspension by an order in the year
B
      1981. In the case of the respondent in the leading case, proceedings
      culminated in penalty of compulsory retirement. The respondent filed a
      civil suit. The civil Court granted relief by which the appellants were
      directed to consider the matter afresh. Fresh consideration resulted in
      the respondent being visited with the penalty of withholding of three
C     grade increments with cumulative effect. The respondent carried the
      matter further in the departmental proceedings. Suffice is to say that in
      exercise of the power under Rule 34 of the Rajasthan Civil Services
      (Classification, Control & Appeal) Rules, 1958, an order came to be
      passed substituting the penalty with penalty of censure. Thereafter, further
      proceedings were taken within the meaning of Rule 54 of the the
D
      Rajasthan Service Rules, 1951 (hereinafter referred to as ‘Rules’ for
      brevity).
           This proceeding resulted in the impugned order which was finally
      impugned in the writ petition which has given rise to the present appeal.
E           (2) The substance of the order in the leading case is as follows:
             The period of absence from duty which comprises of the period
      of suspension in which the first respondent was placed was treated as
      duty only for the purpose of pension. It is further ordered that no amount
      other than subsistence allowance shall be payable. This triggered filing
F     of the writ petition by the respondent. The learned Single Judge allowed
      the writ petition and the following is the operative portion of the order:
                    “Accordingly, this petition for writ is allowed. The order
            dated 3.9.2001 to the extent it treats the period during which the
            petitioner was out of employment as a consequent to an order of
G           compulsory retirement as “disa-non” and also denies payment of
            full wages for the period he remained under suspension is declared
            illegal and, therefore, the same is quashed. The petitioner declared
            entitled for full wages for the period he remained under suspension.
            The respondents are further directed to consider candidature of
            the petitioner afresh for the purpose of promotion to the post of
H           Assistant Engineer against the vacancies of the year 1978-79. In
  STATE OF RAJASTHAN & ANR. v. MANGAT LAL SIDANA                              771
                  [K. M. JOSEPH, J.]

      the event the petitioner is found suitable for promotion against the    A
      vacancies of the year 1978-79, the promotion be recorded to him
      as such with all other consequential benefits.
             No order to costs.”
      The appeal carried by the appellants was unsuccessful.
                                                                              B
       (3) The respondent in other case also came to be initially visited
with penalty of withdrawal of increments. He also obtained relief in the
form of substituting of the penalty with the penalty of censure. He also
filed a writ petition feeling aggrieved by the order passed purporting to
be under Rule 54 of the Rules. The learned Single Judge in his case
followed the judgment in the case of Mangat Lal Sidana (the leading           C
case) and granted relief which was sought on similar lines. The appeal
filed by the appellants in this case was also unsuccessful. Hence the
appeals.
      (4) We have heard Dr. Manish Sighvi, learned Additional Advocate
General, Ms. Archana Pathak Dave, learned counsel for the respondent          D
in SLP (C)No. 32112/2016 and have also heard Mr. Ajay Choudhary,
the learned counsel appointed as Amicus Curiae finding that the
respondent in SLP (C)No. 30740/2017 did not put in appearance.
      (5) The principal bone of contention appears to arise from the
true purport of Rule 54 of the Rules.                                         E
       According to Dr. Manish Singhvi, learned Additional Advocate
General appearing for the appellants, Rule 54 contemplates giving of full
benefits by way of pay and allowances in a case where the employee
who has been reinstated was actually the victim of harassment, in that it
was found by the disciplinary authority that he was completely blameless      F
and what is more, he stands completely exonerated. If an employee is
not fully exonerated, the case would have to be dealt with under sub-
rule (3) of Rule 54. This means that the employee would not be entitled
to the award of full pay and allowances which he would have otherwise
drawn. The case at hand before us, according to the learned Additional
                                                                              G
Advocate General appearing for the appellants, is to be decided with
reference to Rule 54(3). According to him, the High Court has erred in
not noticing that at the end of the day, the respondents in both cases
have not been fully exonerated. On the other hand, disciplinary proceedings
have admittedly attained finality in the form of penalty being imposed on
them. The penalty may be a minor penalty but what is relevant is whether      H
772            SUPREME COURT REPORTS                        [2022] 14 S.C.R.


A     the employee was fully exonerated within the meaning of Rule 54(2). It
      is his submission that they were not fully exonerated and, therefore, the
      very foundation of the judgment of the High Court is flawed.
              (6) Per contra, learned counsel for the respondent in the leading
      case, Ms. Archana Pathak Dave, would point out that the judgment of
B     the High Court must be upheld on another ground which is that before
      passing the impugned order purporting to be under Rule 54 of the Rules,
      no notice was issued to the respondents. Support is laid on the judgments
      of this Court. She further points out that having regard to the nature of
      the penalty which has been imposed which is a minor penalty and the
      findings which have been entered into, the impugned judgment is only to
C     be supported. Learned Amicus Curiae, in other case, with reference to
      Rule 54, makes his submission on the effect of Rule 54 to be that Rule
      54 contemplates that on exoneration, employee is entitled to full pay and
      allowances.
              Whereas, in the other case, the case would have been wherein
D     the employee may not be getting full pay and allowances.
              (7) Rule 54 of the Rules reads as follows:
              54. Re-instatement—
              (1) When a Government servant who has been dismissed, removed,
              compulsorily retired or suspended is re-instated or would have
E             been re-instated but for his retirement on superannuation while
              under suspension, the authority competent to order the re-
              instatement shall consider and make a specific order:—
              (a) regarding the pay and allowances to be paid to the Government
              servant for the period of his absence from duty or for the period
F             of suspension ending with the date of his retirement on
              superannuation as the case may be;and
              (b) Whether or not the said period shall be treated as a period
              spend on duty.
              (2) Where such competent authority holds that the Government
G             Servant has been fully exonerated or, in the case of suspension
              that it was wholly unjustified, the Government servant shall be
              given the full pay and dearness allowance to which he would
              have been entitled had he not been dismissed, removed or
              compulsorily retired as a penalty or suspended, as the case may
              be.
H
  STATE OF RAJASTHAN & ANR. v. MANGAT LAL SIDANA                            773
                  [K. M. JOSEPH, J.]

      (3) In other cases, the Government servant shall be given such        A
      proportion of such pay and dearness allowance as such competent
      authority may prescribe.
      (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 (3) the period of absence from     B
      duty shall not be treated as a period on duty unless such authority
      specifically directs that it shall be so treated for any specified
      purpose:
             Provided that if the Government so desires, such authority
      may direct that the period of absence from duty shall be converted    C
      into leave of any kind due and admissible to the Government
      servant.
      (8) Rule 54 is a provision which is a common provision in both the
State services and also the Central services. The counter part in the
Central Services is Rule 54 of the Rules. In fact, Rule 7.3(B) of the       D
Punjab Civil Services Rules is a separate provision which deals with a
person being placed under suspension and who is reinstated withoutthere
being a penalty imposed.
       (9) Rule 54 with which we are concerned contemplates an
amalgam of situations which deal with disciplinary proceedings              E
culminating in dismissal, compulsory retirement and removal and it also
deals with absence from duty on account of suspension. In other words,
when an employee at the end of the disciplinary proceedings is punished
in terms thereof and as a result of the order passed is reinstated, then
the competent authority is called upon to consider and pass specific
                                                                            F
order regarding the pay and allowances to be paid for the period for
absence from duty. The Rule appears to separately contemplate the
duty to provide for the pay and allowances for the period of suspension
ending with the date of retirement on superannuation as the case may
be. In other words, the Rule in its application contemplates a situation
wherein a Government servant being dismissed, removed, compulsory           G
retired or suspended is reinstated. It also takes in a case where but for
his retirement, he would have been reinstated while under suspension.
In both these cases, the duty of the competent authority is to pass the
order within the contemplation of Rule 54(1)(a) and (b). This means that
apart from dealing with pay and allowances, as to whether the period of
                                                                            H
774             SUPREME COURT REPORTS                             [2022] 14 S.C.R.


A     absence is to be treated as duty must be dealt with. This flows from
      Rule 54(1)(b). The manner in which the authority is to pass the order is
      regulated by subsequent provisions in Rule 54. Sub-rule 54(2)
      contemplates that the competent authority must examine the proceedings,
      apply its mind, and find whether it is a case where the Government
      servant at the end of the day has been fully exonerated. In the case of
B
      suspension where a person being under suspension is reinstated, the
      duty lies on the competent authority to consider the question as to whether
      the suspension was justified or wholly unjustified. If the suspension was
      wholly unjustified, the Government servant would be entitled to be paid
      the full pay and dearness allowance which he was entitled to had he not
C     been suspended. The same is the case of the Government servant visited
      with the penalty of dismissal, removal or compulsory retirement. If it is
      found that at the end of the day that the penalty was wholly unjustified in
      that, on merit it is found that the employee stands completely exonerated,
      he would be entitled to get full pay and dearness allowance. Rule 54(3)
      is the residuary clause. The provisions of Rule 54(2) and (3) are mutually
D
      exclusive. In other words, if an employee is not fully exonerated, he is to
      be given such proportion of the pay and allowances as the competent
      authority may prescribe. Sub-rule (4) of Rule 54 is relatable to sub-rule
      54(1)(b). In other words, whenever there is re-instatement in the
      circumstances attracting Rule 54, the authority is to pass a specific order
E     relating to the pay and allowances to be paid and also as to whether the
      period of such absence is being treated as period spent on duty. Both
      these aspects must be reflected in the order.
             (10) In the case where there is full exoneration, the rule-maker
      had made it clear that the period of absence is to be treated as duty for
F     all purposes. However, the provisions of Rule 54(5) contemplate a situation
      where the employee is not fully exonerated and therefore is governed
      by Rule 54(3). Then the period of absence is not to be treated as duty
      unless the authority specifically directs that it shall be duty for any specified
      purpose. The proviso to Rule 54(5) contemplates that it is open to the
      Government to direct that the period of absence shall be converted into
G     leave of any kind due and admissible for Government servant. This would
      appear to be the scope and purport of Rule 54.
             (11) We have seen the order passed in the leading case.
           This is a case where the respondents have not been fully
H     exonerated as such. The proof of the same is to be found in the fact that
  STATE OF RAJASTHAN & ANR. v. MANGAT LAL SIDANA                              775
                  [K. M. JOSEPH, J.]

they have been visited with a penalty as the disciplinary proceedings         A
have admittedly culminated in the penalty being passed which may be a
minor penalty.
       (12) The other aspect of the matter is about the observance of
principles of natural justice. The employee must be given an opportunity
before any order is passed. The matter is no longer res integra. [See         B
M. Gopalakrishna Naiduv. State of Madhya Pradesh AIR 1968 SC
240]. It does not need reiteration that even under Rule 54, the position is
the same. Observance of principles of nature justice is of cardinal
importance for the employee whose very life will be at stake for he
would on the one hand if he is heard get an opportunity to pursuade the
competent authority that his case would fall under Rule 54(2) and not         C
under Rule 54(3). Denial of opportunity can have very serious
consequences. In this case, the finding is that the principles of natural
justice were not complied with. On this ground, the respondents would
support the judgment.
       (13) Dr. Manish Singhvi, learned Additional Advocate General           D
appearing for the appellants would point out that in such circumstances,
the course to be adopted would be to remit it back to the competent
authority so that the competent authority may ensure that the respondents
appear before the authorities and then the case is decided. In fact, we
find that the course adopted by this Court finally in M. Gopalakrishna        E
Naidu (supra) was to remit the matter back to the competent authority
to pass an order after hearing the employee. But then, learned counsel
for the respondent would point out that the respondent is aged 76 and at
this stage, remitting back the matter would be highly inequitable. In the
leading case, we notice, at the time of admission, this Court had passed
an order of stay subject to payment of 50 per cent of the backwages.          F

       (14) Having heard the learned counsel for the parties, we are of
the view that the following conclusions can be arrived at.
        The disciplinary proceedings against the respondents in both the
cases have not culminated in a situation where it could be said that they     G
have been completely exonerated. This would take their case outside
the four walls of Rule 54(2) of the Rules. Their suspension may not fall
in the category of unjustified suspension. This inevitably and necessarily
would bring their cases within the scope of Rule 54(3). This would
necessarily mean that the exact amount of pay and allowances to be
paid is to be less than the full pay and allowances. However, this exercise   H
776             SUPREME COURT REPORTS                          [2022] 14 S.C.R.


A     can be done only after notice to the employee. Admittedly, there is a
      failure by the appellants in this regard. But, at the same time, to remit it
      back for this purpose in our view would be inequitable. Hence we would
      rather adopt the middle path by directing that in the facts and
      circumstances of the case, the respondents be paid pay and allowances
      fixed at 50 per cent of the pay and allowances which they would have
B
      drawn for the period of their absence. Accordingly, the appeals are partly
      allowed. We direct that the respondents in both the cases will be paid
      the pay and allowances at 50 per cent of the amount which they would
      be entitled for the period in question.
             The appeals are allowed as above. No orders as to costs.
C

      Divya Pandey                                            Appeals partly allowed.
      (Assisted by : Deepak Panwar, LCRA)



D




E




F




G




H