Ram Autar Shukla vs State Of U.P. Through ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. - 18
 
Case :- SERVICE SINGLE No. - 2754 of 2010
 
Petitioner :- Ram Autar Shukla
 
Respondent :- State Of U.P. Through Secy.Revenue Lucknow And Ors.
 
Petitioner Counsel :- Ramesh Kumar Srivastava
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Shri Ramesh Kumar Srivastava, learned counsel for the petitioner, Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel and perused the record.

Facts in brief as submitted by learned counsel for the petitioner are that the petitioner who was working on the post of Collection Amin was placed under suspension in the year 1985. Thereafter, an enquiry proceeding was initiated against him and by an order dated 30.06.1986, he was dismissed from his services. Subsequently, he made a representation to the competent authority, but no heed was paid. So, approached this Court by filing Writ Petition No.6171 (SS) of 2002 "Ram Avtar Shukla vs. State of U.P. & Ors.", disposed of by order dated 2.2.2005, on reproduction reads as under:-

"Against the order impugned in the writ petition, the petitioner is said to have filed a departmental appeal before the opposite party no.3, which is pending and till date has not been decided.

It is hereby directed that the appeal preferred by the petitioner shall be decided by the said opposite party (Opposite Party No.3) within a period of three months from the date a certified copy of this order is served upon the said opposite party.

With the aforesaid direction, the writ petition is finally disposed of."

Accordingly, on 3.3.2005 petitioner made a representation to the District Magistrate, Hardoi for taking necessary action in compliance of the above said order.

By order dated 6.8.2005, the District Magistrate, Hardoi rejected the petitioner's representation and upheld the order dated 30.6.1986.

Aggrieved by the said order, petitioner filed Writ Petition No.7922 (SS) of 2006 "Ram Avtar vs. State of U.P. & Ors.", allowed by judgment and order dated 3.11.2008, the relevant portion is quoted herein below:-

"In the result, the writ petition is allowed and order dated 30.6.1986 (Annexure No.1) dismissing the service of the petitioner and the appellate order dated 6.8.2005 (Annexure No.2) are hereby quashed. It is further directed that the respondents shall proceed with the inquiry from the stage of issuance of charge sheet and the inquiry be proceeded with in accordance with law by observing the principles of natural justice and in accordance with law laid down by this Court, expeditiously, say, within a period of two months from the date of production of a certified copy of the order.

With the above terms, the writ petition stands allowed. Costs easy."

As per direction given by this Court by order dated 3.11.2008 in Writ Petition No.7922 (SS) of 2006, a charge sheet has been issued to the petitioner to which he submitted his reply and after completing the enquiry proceeding, enquiry officer/Tehsildar (Judicial) Sadar, Hardoi submitted an enquiry report dated 28.2.2009. The operative portion of the same is quoted herein below:-

"उपरोक्त वर्णित तथ्यों, मा. न्यायालय के आदेश व मा. विविध न्यायालयों द्वारा प्रोचरित की गयी व्यवस्थाओ के आलोक में अपचारी कार्मिक को दोषी ठहराना उचित नहीं है । यदि आरोपी को दोषी ठहरा भी दिया जाये तो संगत अभिलेखों के आभाव में उसको सिद्ध नहीं किया जा सकता है । अतः यह आरोप भी अपचारी कर्मचारी पर सिद्ध नहीं होता है ।

जांचाख्या सेवा में प्रेषित है ।"

Thereafter, Sub Divisional Officer, Tehsil Sadar, District-Hardoi has passed the impugned order dated 25.4.2009, the operative portion is quoted herein below:-

"उक्त परिस्थितियों में पत्रावली पर उपलब्ध संपूर्ण साक्ष्यो, माननीय सर्वोच्य न्यायालय की विधिक अवधारणाओ एवं मा. अपर मुख्य न्यायिक मजिस्ट्रेट [दितीय} हरदोई द्वारा पारित निर्णयादेश दिनांक १२.२.१९९९ एवं जांच अधिकारी के द्वारा प्रस्तुत जांच आख्या, जिला शासकीय अधिवक्ता {दीवानी} हरदोई द्वारा प्रस्तुत किया गया अभिमत पर समग्र विचार किया गया । आरोप संख्या-१ अल्प आशिक सिद्ध व आरोप संख्या-२ में अपचारी कर्मचारी की संधिग्ध पृष्ठ भूमिका के प्रकाश में मानवीय आधार पर अपचारी कर्मचारी को विभागीय कार्यवाही सेवा से अनुपस्थिति की संपूर्ण अवधि के बिना वेतन सेवा में बहाल किया जाता है एवं श्री रामऔतार शुक्ला संग्रह अमीन तहसील सदर, हरदोई के विरुद्ध प्रचलित कार्यवाही समाप्ति की जाती है ।"

Aggrieved by the order dated 25.4.2009 (Annexure No.1) passed by opposite party no.4/Sub Divisional Officer, Tehsil, Sadar, District-Hardoi, the present writ petition has been filed by the petitioner.

Shri Ramesh Kumar Srivastava, learned counsel for the petitioner while challenging the impugned order dated 25.4.2009 (Annexure No.1) passed by opposite party no.4/Sub Divisional Officer, Tehsil Sadar, District-Hardoi submits that once enquiry officer in his enquiry report dated 25.2.2009 has stated that on the basis of the material on record, the petitioner cannot be held guilty and the charges which have been imposed against him are not proved, so there is no justification or reason on the part of the opposite party no.4 to pass the impugned order dated 25.4.2009 thereby denying the back wages to the petitioner in view of the judgment of this Court in the case of B. N. Nigam vs. Chairman, State Bank of India 2012 (1) ADJ 183, Kishori Lal vs. Chairman, Board of Director (2011) 2 UPLBEC 1445, Govind Lal Srivastava vs. State of U.P. (2009) 2 UPLBEC 1864 and Brijendra Prakash Kulshresth vs. State of U.P. (2007) 2 ALJ 527, the impugned order dated 25.4.2009 passed by opposite party no.4 thereby denying the back wages to the petitioner is liable to be set aside. As the petitioner was not allowed to work and discharge his duties only due to the act of employer and it cannot be said that he was illegally or unauthorizedly absent from duty.

Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel appearing on behalf of the official respondents argued that the petitioner was placed under suspension in the year 1985 and by order dated 30.6.1986, he was dismissed from his service, on two charges (a) he was absent from duty without leave and (b) he had embezzled the Government money. Thereafter, he was acquitted by the competent criminal court in Crime Case No.3/94 by order dated 12.2.1999. So, he made a representation against the order of dismissal dated 30.6.1986. Subsequently, he filed Writ Petition No.6171 (SS) of 2002, disposed of by order dated 2.2.2005. In pursuance of the said direction, he made a representation to the authority concerned/District Magistrate, Hardoi, who rejected his representation by order dated 6.8.2005, challenged by the petitioner by filing Writ Petition No.7992 (SS) of 2009 "Ram Avtar Shukla vs. State of U.P. & Ors.", allowed by order dated 3.11.2008.

As per direction given by this Court, enquiry proceeding has been initiated against the petitioner by issuing of the charge sheet and after completing the disciplinary enquiry, the enquiry officer has submitted a report on the basis of the same, the impugned order dated 25.4.2009 has been passed, but taking a sympathetic view, he has been reinstated in service without any back wages. As the petitioner has not been fully exonerated from the charges imposed on him, he is not entitled for any back wages in view of the provisions as provided under Sub Rule (2) of Rule 54 of the U.P. Fundamental Rules Vol. 2 Part-2 Financial Hand Book reads as under:-

"Where the authority competent to order of reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated the Government shall subject to the provisions of sub-rule (6) be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:

Provided that where such authority is of opinion that the termination of the proceedings 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, and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7) be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.

After placing reliance of the aforesaid Rule and the facts on which the impugned order has been passed, learned State Counsel submits that making payment of back wages on account of his reinstatement and payment of other service benefit like promotional pay scale would amount to putting a premium on his misconduct, and thus the intention of Legislature would never be to award an employee whose misconduct has been proved, although partially proved. Accordingly even if the words "fully exonerated" is not categorically mentioned in sub rule 4 of Rule 54 of the Fundamental Rules but by adopting the Rule of Harmonious Construction, the intention of the Legislature could not be misinterpreted so that a guilty employee (partially guilty) would be entitled for back wages for the period, for which, he was out of service, on the eventuality of his reinstatement as the Competent Authority has taken a lenient sympathetic view. It is further pertinent to mention that the word fully exonerated as appearing in sub rule 2 of Rule 54 cannot be made redundant merely on the ground that the same is not categorically mentioned in sub rule-4.

As, it is a settled principle of law that any order involving civil consequences which are detrimental to a persons' interest, adherence the principle of natural justice is a must. However, in terms of Rule 54 (4) a show cause notice to the Government servant would be required only if the Competent Authority is of the opinion that the some amount is payable to the government employee on account of his reinstatement and thus before ascertaining the quantum to be paid, a show cause notice would be required. However, as a general rule, if the Competent Authority is of the opinion that the government employee is not entitled for any back wages on the principle of no work and no pay, no such show cause notice is required, because the petitioner is not fully exonerated in respect of the charges which have been imposed against him. So keeping in view the said rules, there is no illegality or infirmity on the part of the opposite party no.4 thereby not giving the back wages to the petitioner by means of the impugned order that even otherwise, as petitioner was dismissed from service in the year 1986. Thereafter, he kept silent and after considerable delay when he was acquitted from criminal case in the year 1999 although on a different footing, for the first time he made a representation in the year 1999. Subsequently filed a writ petition in the year 2000 for redressal of his grievances. So, keeping in view the said fact, petitioner is not entitled for any relief as claimed by him in respect of the payment of back wages in view of the cases namely :-(a) Delhi Administration vs. Hira Lal (1999) 6 Supreme Court Cases 664 58, (b) A. P. SRTC & another vs. S. Narsagoud (2003) 2 Supreme Court Cases 212, (c) Chairman Food Corporation of India vs. Sudarsan Das (2007) 14 Supreme Court Cases 766, (d) State of Maharastra vs. Reshma Ramesh Meher & another (2008) 8 Supreme Court Cases 664 and (e) Bicco Lawries Limited, reported in (2009) 10 SCC 32 para 42. and writ petition is liable to be dismissed.

Shri Ramesh Kumar Srivastava, learned counsel for the petitioner, in rebuttal, submits that it is totally incorrect and wrong on the part of the Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel who states that the charges in which petitioner has been exonerated by the criminal court are different in nature are correct, so the position is the same on the basis of which petitioner has been dismissed from service by order dated 30.6.1986. Accordingly, it is submitted by him that the impugned order dated 25.4.2009 (Annexure No.1) passed by opposite party no.4/Sub Divisional Officer, Tehsil Sadar, District-Hardoi is in contravention to the provisions as provided under Sub-rule 4 of Rule 54 of the Fundamental Rules, liable to be set aside.

I have heard learned counsel for the parties and gone through the records.

It is well settled principle of service jurisprudence that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of "no work no pay" is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should be applied. (See Sukhdev Pandey vs. Union of India (2007) 7 SCC 455)

The principle has been laid down keeping in view the public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer. It cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court. Denial of salary on the ground of 'no work no pay' cannot be treated as a penalty (See State of U.P. vs. Madhav Prasad Sharma (2011) 1 JT 326) and mechanical application of normal Rule "no work no pay" may in some cases be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down. (See Somesh Tiwari v. Union of India (2009) 2 SCC 592)

Further, on the order of termination of service of an employee being set aside, ordinarily the relief of reinstatement is available to the employee. However, the entitlement of an employee to get reinstatement does not necessarily result in payment of full or partial back wages, which is independent of reinstatement.

While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors; like the manner of selection; the nature of appointment; the period for which the employee had worked with the employer, etc. have to be kept in mind. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case. (See Kanpur Electricity Supply Company Limited v. Shamim Mirza (2009) 1 SCC 20).

Moreover, it would be deleterious to the maintenance of discipline if a person who was suspended on valid considerations is given full back wages as a matter of course, on his acquittal. The disciplinary authority has option either to enquire into the misconduct unless the selfsame conduct was subject-matter of the charge and on trial the acquitted was not based on benefit of doubt but on a positive finding that the accused did not commit the offence at all. The authority may also, on reinstatement, pass appropriate order including treating suspension period as not spent on duty, after following the principles of natural justice.

Hon'ble the Supreme Court in the case of Kishnakant Raghunath Bibhavenkar v. State of Maharashtra (1997) 3 SCC 636 held that the employee was not entitled to consequential benefits on his reinstatement after acquittal. He was also not entitled to be treated as on duty from the date of suspension till the date of acquittal, for the purpose of computation of pensionary benefits.

The position, in nutshell, is that as to whether an employee is entitled for back wages or not after he has been reinstated in service, applying the principle of no work no pay can be summarized that payment of back wages having a discretionary element has to be dealt with in the fact and circumstances of each case and no straitjacket formula can be evolved and when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him and if he places materials in that regard, the employer can bring on record materials to rebut the claim. (See Hindustan Motors Limited v. Tapan Kumar Bhattarharya (2002) 6 SCC 41 and Kendriya Vidyala Sangathan v. S.C. Sharma (2005) 2 SCC 363).

Before adjudicating and deciding the controversy involved in the present case, I feel appropriate to go through the judgments cited by learned counsel for the parties.

This Court in the case of Kailash Kumar Mishra vs. State Public Service Tribunal (2012) 3 UPLBEC 1881 in paragraph no.9 has held as under:-

"Taking into consideration the facts and circumstances of the case, in our considered view, the principle of "no work and no pay" appears to have wrongly been applied in the instant case. Once the enquiry was found to be vitiated; the charges not be proved; opportunity of cross examination of the witnesses not afforded to him; and the punishing authority not giving any reason for disagreeing with the findings of the inquiry officer nor any reason having been given by the punishing authority for his own findings, the petitioner alone cannot be made to suffer. Further, the principle " No work no pay" is to be applied as a punitive measure in those cases where the employee concerned had willingly not performed his duties or had absented himself from work without proper cause. Such is not the position in the present case. Here, the petitioner could not discharge his duties because of the enquiry proceedings and the punishment order which have ultimately been found to be vitiated on the aforesaid grounds. Since faults have been found on the part of the department also, in our view, the ends of justice would meet if 50 % of the salary and allowances is awarded to the petitioner from the date of his termination till his reinstatement."

In the case of B. M. Nigam vs. Chairman, State Bank of India 2012 (1) ADJ 183, this Court has held that the petitioner was illegally deprived of the working as officer of the bank and thus we direct that the petitioner be reinstated with 50% of the back wages, and all other consequential benefits. If the petitioner has retired, 50% wages upto date of retirement will be paid with further direction that he will be paid full pension as if he retired while serving will all consequential benefits.

In the case of Kishori Lal vs. Chairman, Board of Director (2011) 2 UPLBEC 1445, this Court has held as under:-

"58. Now coming to another important aspect about relief. It is not the case of respondents that petitioner was gainfully employed elsewhere during the period he was out of job. On the contrary, as a result of illegal order of dismissal, petitioner and his entire family must have suffered a social stigma as also financial hardships. It is quite conceivable that this ignominy is faced by the entire family of petitioner. No amount of money can compensate this social humiliation, illegal torture an outclassed attribute of neighbour and other difficulties.

59. Moreover the concept of gainful employment would be attracted provided employment is easily available. The Court cannot shut its eyes of extraordinary unemployment prevailing in the Country. The people having high qualifications are searching menial employment having limited employment avenues. In such circumstances to suggest that a dismissed employees could have got a gainful employment is nothing but a day dreaming.

60. This aspect can be looked into from another different angle. In these days of extraordinary unemployment it is inconceivable to think that dismissed or removed employee may get easily an alternative employment. Merely because he has been able to survive all through, it cannot be conceived that he was in gainful employment during all this periods. We do not know whether he survived at the charity or support extended by his relatives, friends, neighbour or by selling his household goods or spending his savings or losing ornaments of his wife or that he survive by incurring debt in the hope of getting success one day in the case challenging order of punishment and then to discharge debt liability.

63. It is in these facts and circumstances and considering the various aspects of the matter, this Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with benefit of continuity of service with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has no right to work but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case."

Lastly in the case of Govind Lal Srivastava vs. State of U.P. (2009) 2 UPLBEC 1864, this Court has held as under:-

"Similarly, with reference to the judgment in the case of Sunder v. Union of India and others, 2005 (4) AWC 3859-A and in the case of R. K. Singh v. Director/Appointing Authority and another (2001) 2 UPLBEC 1282 : 2001 (3) AWC 1964, the petitioner has contended that he is entitled to full back salary for the period he has been kept out of employment because of illegal order of the respondent authorities."

Hon'ble the Apex Court in the case of Maharashtra vs. Reshma Ramesh Meher & another (2008) 8 SCC 664 in paragraph no.24 held as under:-

"It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the

entitlement of an employee to get reinstated does not necessarily result in payment of full or partial backwages, which is independent of reinstatement. While dealing with the prayer of back-wages, factual scenario, equity and good conscious, a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of the each case."

Hon'ble the Surpreme Court in the case of Chairman Food Corporation of India vs. Sudarsan Das (2007) 14 SCC 766 held that the relief for giving a back wages be granted to an employee after he has been re-instated in service and have claimed back wages after 13 years from the date of reinstatement.

Hon'ble the Supreme Court in the case of J. K. Synthetics Ltd. vs. K. P. Agrawal & Another (2007) 2 SCC 433 in paragraph nos.15 to 18 held as under:-

" 15. But the manner in which 'back-wages' is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. vs Udai Narain Pandey [2006 (1) SCC 479], this Court following Allahabad Jal Sansthan vs. Daya Shankar Rai [2005 (5) SCC 124], and Kendriya Vidyalaya Sangathan vs. S. C. Sharma [2005 (2) SCC 363] held as follows :

"A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance."

Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes (were) brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident.

No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of section 6- N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence. In General Manager, Haryana Roadways vs. Rudhan Singh [2005 (5) SCC 591], this Court observed :

"There is no rule of thumb that in every case where the Industrial Tribuanl

gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

16. There has also been a noticeable shift in placing the burden of proof in

regard to back wages. In Kendriya Vidyalaya Sangathan (supra), this Court held :

"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."

In U.P. State Brassware Corpn. Ltd. (supra), this Court observed :

18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding backwages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.

In the case of A. P. SRTC & another vs. S. Narsagoud (2003) 2 SCC 212, Hon'ble the Supreme Court while considering the matter in respect of the grant of back wages held that if it is found that when an employee remains unauthorizedly absent from duty, he cannot claim the relief and though he has been reinstated in service.

In the case of Delhi Administration vs. Hira Lal (1999) 6 SCC 664 58, Hon'ble the Supreme Court held that if a person approach for back wages after the considerable delay in the said matter from the date of reinstatement, he cannot claim the same at a belated stage.

After going through the various judgments cited at bar in respect of principal of "No Work No Pay", the admitted position which emerges out is that in none of the cases the effect of the provisions of Sub Rule (2) of Rule 54 or Sub Rule (4) of Rule 54 of the U.P. Fundamental Rules has been taken into consideration. Although, the said point has not been taken in pleadings by the parties in the instant matter, but as argument has been advanced in that regard, so I feel appropriate to adjudicate and decide the said issue.

Sub-rule 2 of Rule 54 of the Fundamental Rules provides that when the competent authority passes any order of reinstatement by setting aside the order of dismissal, removal or compulsory retirement by fully exonerating him from charges, the employee shall be entitled to full pay and allowances to which he would be entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case be, subject to the provisions of Sub-Rule 6 of Rule 54 provision to the said Sub-rule 2 also stipulate that if the proceedings instituted against the government servant is delayed due to reasons directly, attributable to the Government servant, the authority may pass an order after giving reasonable opportunity to the Government servant to make representation, determining the amount of such pay and allowances by taking into account the period of such delay.

Sub-rule 4 of Rule 54 of the Fundamental Rules provides that when the appellate or reviewing authority set aside the order of dismissal, removal or compulsory retirement of a Government servant solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution of India and no further inquiry is proposed to be held, the Government servant shall be paid such amount, not being the whole, of pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, 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 the Government servant in that regard, subject to the provision of Sub-rule 5 and Sub-rule 7 of the said Rule.

In the instant case, the order of dismissal has been set aside taking a sympathetic view by the competent authority, so the provisions as provided under Sub Rule (2) of Rule 54 of the U.P. Fundamental Rules are not applicable, but the present case is governed by the provisions as provided under Sub-rule 4 of Rule 54 of the Fundamental Rules, the said sub rules is subject to the provisions of Sub-rule 5 and 7 of Rule 54.

Accordingly, the competent authority as per the said rule has to pass an order as to how the period of absence from duty to be treated for any specified purpose and in case the Government servant so desire, such authority may direct that the period of absence of duty preceding his dismissal from service shall be converted into leave of any kind due and admissible to the employee concerned because Sub-rule 5 of the Rule 54 also provides that in a case falling under Sub-rule 4, the period of absence from the duty preceding that dismissal from service shall not be treated as a period spent on duty, unless the competent authority passes a specific order as stated above.

In the case of Devendra Pratap Narain Rai Sharma vs. State of U.P. and others 1962 Supp (1) SCR 315, while considering the provisions as provided under Rule 54 of the Fundamental Rules as exits at the relevant point of time held as under:-

"The High Court in dealing with the appellant's claim to salary during the period of his suspension pending the earlier enquiry observed that there was no justification for "not granting the appellant his full pay" for the period after the date of the suit. But the counsel for the State of Uttar Pradesh asserted that it is open to the State, notwithstanding the direction, to award as remuneration to the appellant for the period for which he was under suspension any amount which on a reconsideration of the matter in the light of the relevant rules and after hearing the appellant the State Government considers just and proper. This power, counsel contends, arises by virtue of Rule 54 of the Fundamental Rules framed by the State Counsel says that it was because of this rule that the High Court directed the State Government to reconsider the matter in the light of the relevant rules."

And in the case of M. Gopalakrishna Naidu vs. State of Madhya Pradesh (1968) 1 SCR 355, Hon'nle Supreme Court in para 5 and 10 have held as under:-

"The first question which requires consideration is whether there was a duty on the competent authority to afford an opportunity to the appellant to show cause before that authority formed the opinion as to whether he was fully exonerated and whether his suspension was wholly justified. Under FR 54 where a government servant is reinstated, the authority has to consider and make a specific order (i) regarding pay and allowances payable to him for the period of his absence from duty and (ii) whether such period of absence should be treated as one spent on duty. The consideration of these questions depends on whether on the facts and circumstances of the case the government servant had been fully exonerated and in case of pension whether it was wholly unjustified. If the authority forms such an opinion the government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot form such an opinion the government servant may be given such proportion of pay and allowances as the authority may prescribe. In the former case the period of absence from duty has to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the government servant would be entitled to full pay and allowances.

"In our view, FR 54 contemplates a duty to act in accordance with the basic concept of justice and fair play. The authority therefore had to afford a reasonable opportunity to the appellant to show cause why clauses 3 and 5 should not be applied and that having not been done the order must be held to be invalid."

In the instant matter, from the perusal of the impugned order dated 25.4.2009, the position which emerges out is that the competent authority/opposite party no.4 has set aside the order of dismissal taking a sympathetic view with a direction that the petitioner is not entitled for any pay and allowances for the said period, without issuing any notice and without affording any opportunity to the writ petitioner to make a representation, further the competent authority also did not consider as to whether the said period of absence of duty preceding his termination can be converted into leave of any kind due or admissible to the writ petitioner as required under Sub-rule 4 or Rule 54 of the Fundamental Rules.

In view of the above said facts, the impugned order dated 25.4.2009 (Annexure No.1) passed by opposite party no.4/Sub Divisional Officer, Tehsil Sadar, District-Hardoi, so far as it directs that the writ petitioner is not entitled for any back wages while he re-instating him in service being contrary to the provisions of Sub-rule 4 of Rule 54 of the Fundamental Rules, thus, liable to be set aside.

For the foregoing reasons, impugned order dated 25.4.2009 (Annexure No.1) passed by opposite party no.4/Sub Divisional Officer, Tehsil Sadar, District-Hardoi is set aside and the matter is remanded back to the competent authority/opposite party no.3 to take fresh decision in the matter in accordance with the observations made herein above. The said exercise shall be completed by the said authority expeditiously, say, within a period of four months from the date of receiving a certified copy of this order.

With the above observation, the writ petition is allowed.

Order Date :- 20.5.2013

Mahesh