Prahlad Singh vs State Of U.P. & Others
2011 Latest Caselaw 6191 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 

 
Case :- WRIT - A No. - 65576 of 2011
 
Petitioner :- Prahlad Singh
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- S.N. Pandey,Havaldar Verma
 
Respondent Counsel :- C.S.C.,S. Shekhar
 

 
Hon'ble Sudhir Agarwal,J.

01. Heard Sri Himanshu, Advocate holding the brief of Sri Havaldar Verma, learned counsel for the petitioner, learned Standing Counsel for the respondent no.1 and Sri S. Shekhar for the respondents no.2 to 4.

02. Considering the pure legal submission advanced by learned counsel for the petitioner, learned Standing Counsel states that he does not propose to file any counter affidavit and the writ petition may be disposed of finally at this stage under the Rules of this Court. I proceed accordingly.

03. Learned counsel for the petitioner submitted that enquiry was conducted by the appointing authority himself and he had not appointed any enquiry officer. However, he could not show any provision or otherwise law that appointing authority is not competent to conduct enquiry himself but has to appoint enquiry officer. He further contended that along with order of punishment of stoppage of two increments with cumulative effect, the respondents have illegally denied the full salary to the petitioner for the period he remain under suspension. Inasmuch as it is not one of the punishment prescribed in the rule and in case it is referable to Fundamental Rule 54-B, such order forfeiting salary during the period of suspension cannot be passed without issuing a show cause notice in this regard and giving an opportunity of hearing to the petitioner.

04. Per contra learned counsel for the respondents stated that in absence of any provision the disciplinary authority himself can conduct enquiry or assign the same to any person lower in rank to the disciplinary authority as an Enquiry Officer and get the enquiry conducted through him. He said that there is no illegality in this regard. He further contended that so far as denial of full salary during the period of suspension is concerned, the application of Fundamental Rule though is admitted but it is contended that in the same order not only the punishment can be imposed but an order regarding full salary during the period of suspension can also be passed and hence the impugned order warrants no interference.

05. So far as the first submission is concerned, I am clearly of the view that a disciplinary authority himself can conduct the enquiry and there is no bar. The power imposing punishment obviously is vested in the disciplinary authority. He can exercise this power after giving due opportunity of hearing to delinquent employee. The opportunity includes departmental enquiry. No principles of law which precedent bar such an enquiry by the disciplinary authority himself. On the contrary when disciplinary authority himself has conducted enquiry, the disciplinary proceedings can be concluded a little bit expeditiously for the reason that in such a case the disciplinary authority is not supposed to prepare any enquiry report but after concluding the oral enquiry he can record its finding and impose punishment straight with. I am supporting in taking this view from the Apex Court decision in Managing Director, ECIL Hyderabad Vs. B. Karunakar, 1993 (4) SCC 727.

06. This Court in Laxmi Narain Tripathi Vs. Deputy Director (Fisheries), Basti and others, 2007 (3) ADJ 64 referring to Rule 7 of the Government Servant (Discipline and Appeal) Rules, 1999 has observed that disciplinary authority may himself enquire into the charges or appoint an authority subordinate to him as Enquiry Officer to enquire into the charges. The mere fact that disciplinary authority himself has conducted the enquiry, would not vitiate the enquiry unless shown to be prohibited by some Statute which is not the case in hand.

07. The second submission is that documents relied upon, were not supplied along with charge-sheet. The documents relied upon by department can be made available at any stage till the departmental enquiry is completed. It is not the case of petitioner that documents were not available to him at any point of time. There is no pleading in the entire writ petition. Unless it is shown that requisite documents relied upon in support of the charges were not supplied at any point of time nor the delinquent employee was allowed to inspect the same at any stage; it cannot be said that there is any violation of Principles of Natural Justice in the disciplinary proceedings.

08. The last submission is that impugned order imposes, besides punishment of stoppage of two increments with cumulative effect, another punishment of non-payment of full salary for the period of suspension though it is not the punishment prescribed in Rules and has been included in the impugned order of punishment wholly illegally.

09. Learned counsel for the Corporation on the contrary submitted that for this purpose Fundamental Rules have been adopted by the Corporation and Fundamental Rule 54-B provides that competent authority can always deny full salary to the delinquent employee when he is reinstated after suspension and can also impose punishment.

10. The Fundamental Rule 54-B clearly contemplates a show cause notice separately where the disciplinary authority is of the view that the delinquent employee should not be paid full salary for the period he was under suspension. The Fundamental Rule 54-B reads as under:-

"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-

(a) regarding the pay and allowance to be paid to the Government servant or the period of suspension ending with reinstatement or the date of his reinstatement 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) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule(8), to be paid the full pay and allowances to which he would have been entitled, had he not been suspended:

Provided that where such authority is of the opinion that the termination of the proceeding instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.

(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.

(5) In cases other than those falling under sub-rules (2) and (3), the Government servant shall subject to the provisions of sub-rules(8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

(6) Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order passed under sub-rule(1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule(1), who shall make an order according to the provisions of sub-rule(3) or sub-rule (5), as the case may be.

(7) In a case falling under sub-rule(5) the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purposes:

Provided that if the Government servant desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.

NOTE- The order of the competent authority under the proceeding proviso shall be absolute and no higher sanction shall be necessary for the grant of-

(a) Extraordinary leave in excess of three months in the case of temporary Government servant; and

(b) Leave of any kind in excess of five years in the case of permanent Government servant.

(8) The payment of allowances under sub-rule(2), sub-rule (3) or sub-rule(5) shall be subject to all other conditions under which such allowances are admissible.

(9) The amount determined under the proviso to sub-rule(3) or sub-rule(5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.

(10) Any payment made under this Rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of suspension and the date of reinstatement or, the date of retirement on superannuation while under suspension. Where the emoluments admissible under this Rule are equal to or less than those during the employment elsewhere, nothing shall be paid to the Government servant.

NOTE- Where the Government servant does not report for duty within reasonable time after the issue of the order of reinstatement after suspension, on pay and allowances will be paid to him for such period till he actually takes over charge."

11. Admittedly no such procedure has been followed in the instant case and denial of full salary has been made by the impugned order without affording any opportunity to the petitioner by way of issuing a show cause notice, therefore, the impugned order in so far as it denies full salary during the period of suspension without any notice to the petitioner is illegal and liable to be set-aside.

12. Similar view has been taken by this Court in Akhilesh Kumar Awasthi Vs. State of U.P. and others, 2008(8) ADJ 243 equal to 2008(4) ESC 2679 and also followed in Uma Shankar Purwar Vs. The Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow and others (Writ Petition No.9519 of 2007, decided on 14.9.2009).

13. In view of above exposition of law while I uphold the impugned order of punishment in so far as it imposes punishment of stoppage of two increments with cumulative effect, the impugned order dated 05.02.2004, in so far as it deny full salary to the petitioner for the period of suspension, is hereby quashed. The competent authority is directed to pass a fresh order after issuing proper show cause notice to the petitioner and giving an opportunity of submitting his representation on the question of denial of full salary and allowances for the period of suspension. It

14. The writ petition is allowed in the manner as aforesaid.

Order Date :- 28.11.2011

Kpy