- (1.) The appellant, Manzoor Ahmed Mazumdar, was employed as Sub Divisional Officer (Mechanical) in the Public Works Department of the government of Assam, He was sent on deputation to the government of Meghalaya. Subsequently on 28/4/1975 his services stood allocated to the government of Meghalaya. By order dated 16/10/1975 he was dismissed from service by invoking the Provisions of clause (b) of the PRoviso to sub article (2 of Article 311 of the Constitution and it was stated that in the public interest it was not reasonably PRacticable to hold an inquiry under Article 311 (2. The said order of dismissal was quashed by the High court by judgment dated 22/4/1981 in a writ petition (Civil Rule No. 347 of 1986 filed by the appellant. Thereafter order dated 12/8/1982 was passed by the government of Meghalaya whereby the matter of pay and allowances payable to the appellant in respect of the period from 16-10-1975 to 13/5/19811 was considered and it was directed that for the period for the first six months from 17/8/1975, the appellant would be entitled to pay as admissible had he been on half pay and allowances based on such leave salary (pay) as admissible under the State government and for the remaining period from 17/2/1976 to 13/5/1981 it was directed that 3/4th of the pay and allowances based on such pay as may be admissible under the State government for the period in question shall be paid to him. It was also directed that the period from 17/8/1975 to 13/5/1981 shall not be treated as a period spent on duty. The appellant submitted a representation against the said order but the same was rejected and thereafter he filed a writ petition (Civil Rule No. 45 of 1983 in the Gauhati High court which has been dismissed by the impugned judgment dated 12/6/1987.
(2.) The only question which falls for consideration in this appeal is whether an opportunity should have been afforded to the appellant beforepassing the order dated 12/8/1982 regarding the pay and allowances for the period of suspension (sic absence from duty). From the record it does not appear that such an opportunity was afforded to the appellant. In the impugned judgment of the High court reference has been made to the Provisions of Rule 54 of the Meghalaya Fundamental Rules. During the course of his submissions before this court, the learned counsel for the State pointed out that the Meghalaya Fundamental Rules came into force in 1984 and PRior to that the Assam Fundamental Rules which had been adopted in Meghalaya in 1974 had continued to apply. The relevant Provisions of Fundamental Rule 54 in the Assam Fundamental Rules which was applicable during the period 1975 to 1981 areas under: "54.(1 When a government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstatement 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 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 spent on duty. (2 Where 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 the full pay and allowances to which be would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be. (3 In other case, 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 allowances are admissible: Provided further that such portion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. (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 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. "
(3.) These Provisions are similar to those contained in Fundamental Rule 54 which came up for consideration before this court in M. Gopalkrishna Naidu v. State of M. P. In that case the court has considered the question whether an opportunity should be afforded to an employee before passing an order under clause (3 read with clause (5 of the said rule and it has been laid down: "It is true as Mr Sen pointed out that fr 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under clause 2 or clause 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, PRoposed is not afforded, as admittedly it was not done in the Present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the Principles of natural justice. ";