Rakesh Singh vs State Of U.P.& Another
2016 Latest Caselaw 7528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 27
 
Case :- WRIT - A No. - 22852 of 2013
 
Petitioner :- Rakesh Singh
 
Respondent :- State Of U.P.& Another
 
Counsel for Petitioner :- Vinay Singh,Sanjeev Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the petitioner and learned Standing Counsel. Counter and rejoinder affidavits have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

Present writ petition has been filed seeking quashing of the order dated 6.2.2013 passed by respondent no. 2 only to the extent that the same denies arrears of salary for the period of which the petitioner was under suspension and out of employment pursuant to the dismissal order, which was set aside by this Court vide its order dated 30.8.2011.

Relevant facts of the case in brief are that regarding an incident of abduction that had taken place on 24.7.2005 the petitioner was suspended. On the statement of one of the relatives of accused person that the accused persons were introduced to a tailor for measurement and procurement of police uniform who have allegedly abducted one Sri Kedar Nath Agrawal, initially the petitioner was suspended on 8.8.2005. The suspension was revoked on 11.3.2006, however, the petitioner was again placed under suspension vide order dated 17.4.2006 and thereafter his services were terminated vide order dated 28.4.2006 by the Senior Superintendent of Police, Varanasi  invoking provisions contained under Rule 8 (2) (b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules). The aforesaid order was challenged by the petitioner by filing Writ A No. 25796 of 2006, Rakesh Singh Vs. State of U.P. and others, which was allowed vide judgment and order dated 30.8.2011 quashing the order of termination and leaving it open to the disciplinary authority to pass fresh orders after holding due enquiry in accordance with law and to pass suitable orders as to whether the petitioner would be entitled to any salary as a result of setting aside of the termination order. Thereafter, the petitioner was reinstated in service vide order dated 26.3.2012 and enquiry was directed. Thereafter enquiry was conducted and enquiry report dated 22.10.2012 was submitted by the Circle Officer, Sadar, Varanasi who found that the charges against the petitioner are not proved. This enquiry report became final and the petitioner was reinstated in service vide order dated 6.2.2013, however, it was provided by the impugned order that no salary and other benefit shall be payable to the petitioner for the period during which he was out of service on the basis of 'no work no pay'.

Submission of learned counsel for the petitioner is that the petitioner was not at fault as during this period he was willing to work and it is only because of the action of the respondent-authorities which was found to be not in accordance with the law by this Court when earlier order of termination was set aside which was passed invoking the provisions of Rule 8 (2) (b) of the Rules and thereafter in enquiry no charge was found to be proved against the petitioner, therefore, under such circumstances the principles of 'no work no pay' will not be applicable as the petitioner was not at all at fault.

Reliance was placed on a judgment of Hon'ble Apex Court in the case of Union of India Vs. K.V. Jankiraman AIR 1991 SC 2010 and to a judgment of Hon'ble Division Bench of this Court in the case of Brijendra Prakash Kulshrestha Vs. Director of Education, U.P. Allahabad and others 2007 (3) ADJ 1 (DB), wherein law relating to no work no pay has been dealt with extensively.

Per contra, learned Standing Counsel has submitted that in the present case admittedly the petitioner has faced a criminal prosecution as well as departmental proceedings. It was next submitted that the termination order was quashed by this Court vide judgment and order dated 30.8.2011 passed in Writ Petition No. 25796 of 2006 (Rakesh Singh Vs. State of U.P. and others) on technical ground that the enquiry was not conducted in the present case and it was left open to the disciplinary authority to take a decision as to whether the petitioner would be entitled to any benefit as a result of setting aside of the termination order and till the time fresh orders are passed. Therefore, submission is that the discretion exercised by the disciplinary authority is not liable to be interfered with.

I have considered the rival submissions and have perused the record.

On perusal of record there can be no dispute about the fact that there was a serious allegation against the petitioner and the authorities have decided to terminate his services by invoking provisions of Rule 8 of the Rules of 1991 without holding inquiry, however, on inquiry none of the witnesses supported the allegation and the petitioner was exonerated for charges levelled against him by the inquiry officer. The petitioner has also been acquitted by the trial court in Session Trial No. 87 of 2006 (State Vs. Rakesh Singh) under Section 364-A, 120-B IPC vide judgment dated 1.2.2007.

A perusal of the law as placed before this Court would clearly indicate that in so far as the normal rule of no work pay is concerned, the same is not applicable to the cases where the employee is willing to work is kept away by the authorities for no fault of his, however, in the case of K.V. Jankiraman (supra) considering the various complexities of law and history of the proceedings etc. departmental authorities can decide about the entitlement of the government servant about the arrears and quantum thereof.

In some of the cases, while deciding the matter the Courts have granted lumpsum compensation in lieu of arrears of salary and reinstatement of service with continuity without any loss of seniority. A reference may be made in this regard to the law laid down to the judgment of Hon'ble Apex Court in the case of Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Others 1995 SC 1053. A reference may also be made to judgment of the Hon'ble Apex Court in State of Kerala Vs. E.K. Bhaskaran Pillai (2007) 6 SCC 524, paragraph 4 whereof is quoted as under:

"? We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

A reference may also be made to the judgment of the Hon'ble Apex Court in the case of Ramesh Kumar Vs. Union of India AIR 2015 SC 2904. 

Thus, it is very much clear that no hard and fast rules regarding claim of arrears and backwages and it has to be considered on its own merits in so far as payment of arrears and other benefits is concerned.

In such view of the matter, considering that the allegation against the petitioner was serious in nature that he infact had introduced the accused persons to the tailor for stitching police uniform, which they were wearing at the time of abduction and when they were killed by the villagers when they have abducted one Kedar Nath Agrawal; the decision of the authorities to terminate an employee without holding inquiry on prima facie satisfaction by invoking provisions of Rule 8(2)(b) of 1991 Rules was also serious in nature, although the same was set aside by this Court after a period of five years as during this period no evidence was coming against the petitioner, and that too leaving a discretion to the authority concerned to decide regarding payment of any monetary benefit as a result of quashing of the order terminating services, is also liable to be noticed. This Court cannot be oblivious of the fact that the petitioner is a member of disciplined force, and has faced a disciplinary inquiry as well as criminal trial. Therefore, it cannot be said that there was any deliberate action or inaction on part of the authorities to keep the petitioner away from work for no fault of his. However, since no specific reason has been assigned for withholding the entire arrears of salary and other benefits to balance equities this Court is of the opinion that in place of remanding back the matter to the concerned authority, to meet the ends of justice it would be appropriate that the petitioner is held to be entitled for 50% of the arrears of salary and other consequential benefits apart from what relief has already extended by the authority vide order dated 2.6.2013.

Present petition is accordingly partly allowed to the extent as indicated above.

Order Date :- 13.12.2016

p.s.