Reinstatement and service benefits cannot be conditioned on an undertaking admitting unproved misconduct.

The applicant, initially appointed as a Teacher and subsequently promoted as a Master on 26.03.2013, was transferred to Government High School, Thanda Pani, District Doda, where he joined on 01.08.2013.

Following a complaint concerning his alleged conduct towards a research scholar, he was placed under suspension by the Chief Education Officer, Doda, on 23.02.2015 and attached to that office.

The respondents alleged that he failed to report to the office of the Chief Education Officer after being relieved on 09.03.2015 and that an enquiry committee was constituted in 2016.

The applicant was thereafter transferred to Government High School, Thein, District Kathua, by order dated 09.05.2016 and claimed to have joined there on 14.05.2016.

He asserted that he continuously performed official duties, including teaching, election, examination and COVID-19-related duties, but was not paid salary from February 2015 onwards.

The respondents maintained that he continued to be under suspension and had not completed the requisite service formalities.

A Review Committee recommended his reinstatement subject to his furnishing an affidavit or undertaking that he would not repeat alleged wilful disobedience of official directions.

It also noted that he had received neither salary nor suspension allowance from February 2015.

The applicant challenged the communications dated 15.03.2021 and 02.04.2021, contending that no charge-sheet, regular departmental enquiry, finding of guilt or final penalty order had ever been served or passed against him.

He also claimed consideration for promotion or placement as In-charge Lecturer in Physics from 25.07.2019, when allegedly similarly situated and junior Masters received such benefit.

The connected contempt petition alleged non-compliance with the applicant’s claimed entitlements.

1. Whether the respondents could continue to treat the applicant as under suspension indefinitely from February 2015 without concluding disciplinary proceedings or passing a final order determining his status and entitlement to salary or subsistence allowance?

2. Whether reinstatement and restoration of service benefits could lawfully be made conditional upon the applicant furnishing an affidavit or undertaking relating to alleged misconduct that had not been established through disciplinary proceedings?

3. Whether the applicant was entitled to salary for periods during which he actually performed duties and his services were accepted or utilized by the respondents?

4. Whether the applicant was entitled to consideration for promotion or placement as In-charge Lecturer in Physics from the date on which his immediate junior or similarly situated employee received such benefit?

The Tribunal applied Section 19 of the Administrative Tribunals Act, 1985, under which the applicant invoked the Tribunal’s jurisdiction.

It applied the service-law principles that suspension is an interim measure intended to facilitate disciplinary proceedings and cannot be converted into an indefinite punitive status; disciplinary proceedings must be conducted in accordance with the applicable service rules and brought to a logical conclusion.

An employee under suspension cannot be denied the monetary benefits legally admissible during suspension, including subsistence allowance, and the entire period must be regularized under the applicable rules.

The principles of natural justice require that allegations be formally communicated, the employee be given an opportunity of defence, and guilt be established before adverse service consequences are imposed.

Where an employee’s services are actually accepted or utilized, remuneration for the period of actual duty cannot be denied merely because formal reinstatement had not been issued.

Promotion cannot be granted automatically merely because a junior was promoted; eligibility, vacancies, applicable recruitment or promotion rules and other service particulars must be examined by the competent authority.

The Tribunal found that although the applicant had allegedly been suspended on 23.02.2015, the respondents failed to show any concluded departmental enquiry, proved charge, or final disciplinary order over the ensuing years.

The respondents’ own Review Committee acknowledged that the applicant had remained without salary and suspension allowance since February 2015, which undermined the justification for continuing the arrangement indefinitely.

The Tribunal held that the Department could not replace a lawful disciplinary process with an undertaking that effectively required the applicant to accept alleged misconduct as a condition for reinstatement and restoration of service benefits.

Further, because the applicant claimed to have joined at Thein and performed duties that were accepted or utilized by the Department, the respondents could not simultaneously take work from him and deny salary for the corresponding period.

However, the Tribunal preserved the distinction between periods of actual duty and periods of lawful suspension: the former attracted salary and allowances, while the latter was to be governed by the rules relating to subsistence allowance.

Since the applicant’s exclusion from consideration for advancement was based solely on the unsustainable continuation of his suspension status, the respondents were directed to consider his case for promotion or placement, subject to eligibility, vacancy and the applicable rules.

The communications dated 15.03.2021 and 02.04.2021 were quashed to the extent that they made reinstatement or restoration of service benefits conditional upon furnishing an affidavit or undertaking regarding the alleged misconduct.

The respondents were directed to treat the applicant as reinstated without insisting on such undertaking and to regularize the entire period from 23.02.2015 under the applicable service rules.

Salary and admissible allowances were ordered for periods during which the applicant actually performed duties and his services were accepted or utilized; periods of actual suspension were to be regulated by payment of admissible subsistence allowance and by a speaking order.

Consequential service benefits, including pay fixation, increments and appropriate seniority, were to be restored subject to the applicable rules.

The respondents were further directed to place the applicant’s case before the competent authority or Departmental Promotion Committee for consideration for placement or promotion as In-charge Lecturer in Physics from the date his immediate junior or similarly situated Master was considered or granted the benefit under Order No. 251-Edu of 2019 dated 25.07.2019, subject to eligibility and vacancy requirements.

The exercise and release of admissible dues were to be completed within three months of receipt of the certified order, failing which the unpaid amount would carry simple interest at 6% per annum from expiry of that period until payment.

The connected contempt petition, CP No. 131/2022, was closed, with notices discharged.