Shishupal Singh Yadav vs State Of U.P. Thru ...
2017 Latest Caselaw 891 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. -20 									      AFR
 

 
Case :- SERVICE SINGLE No. - 2327 of 2014
 

 
Petitioner :- Shishupal Singh Yadav
 
Respondent :- State Of U.P. Thru Prin.Secy.(Revenue Deptt.)Lucknow & Ors.
 
Counsel for Petitioner :- A.B. Solomon,S.P.Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioner was a Collection Amin. He has preferred this writ petition under Article 226 of the Constitution of India for quashing of the order dated 18.7.2008, whereby a punishment has been awarded to him by withholding his two increments on permanent basis, and notice dated 30.12.2013 and order dated 18.2.2014, whereby he has been denied salary for his suspension period.

2. The essential facts are that the petitioner was initially appointed on the post of Collection Amin on 1.7.1988 in Tehsil Bilgram, District Hardoi. He was subjected to disciplinary proceedings and was placed under suspension on 14.7.2007. Earlier the petitioner has challenged his suspension order by means of a writ petition, being Service Single No. 5832 of 2007. The said writ petition was disposed of by this Court on 16.5.2008 directing the opposite parties to complete the enquiry within three months. A charge-sheet dated 29.12.2007 containing eight charges against the petitioner was served upon him, wherein the charge no. 7 was that he had received a sum of Rs.36,300/- from the defaulter and issued a receipt to him but he has deposited it after two years when a complaint was made that the petitioner has not deposited the amount which he has recovered from a farmer. The petitioner submitted his reply on 2.2.2008 and demanded some documents which were furnished to him. The Enquiry Officer after completing the enquiry has submitted his report on 26.3.2008, wherein he found that Charge Nos. 1, 2 & 4 were partly proved and Charge Nos. 3, 5, 6, 7 and 8 were fully proved.

3. The disciplinary authority issued a show cause notice dated 13.5.2008 to the petitioner, which he has replied on 2.6.2008. The disciplinary authority, by order dated 18.7.2008, after considering the reply submitted by the petitioner has awarded a punishment to the petitioner of withholding of his two increments on permanent basis. It was also mentioned in the order that in respect of his salary during the suspension period a separate notice would be issued in terms of the provisions of Rule-54 of the U.P. Fundamental Rules (i.e. Rule 54, Chapter VIII of Part-II of the Financial Hand Book Volume-II).

4. It appears that the petitioner thereafter retired on 21.7.2011 but the show cause notice in terms of the provisions of Financial Handbook was issued on 30.12.2013. The petitioner has submitted his reply on 17.1.2014 and by the impugned order dated 18.2.2014 the authority concerned has found that the petitioner is not entitled for his salary for the suspension period.

5. It is contended on behalf of the petitioner that once the petitioner has retired in July, 2011, no show cause notice can be issued in terms of the provisions of the Financial Handbook in respect of withholding his salary during the suspension period.

6. A counter affidavit has been filed on behalf of the respondents. It is stated that in the year 2007 various irregularities were committed by the petitioner during discharge of his duties and departmental proceedings were initiated against him wherein he was found to be involved in serious irregularities/ embazzlement. He was awarded punishment of stopping two annual increments on temporary basis. He was reinstated on 18.7.2008.

7. The petitioner was placed under suspension on 14.7.2007 on serious charges. He avoided service of the said order and remained absent from Tehsil. He deposited the money recovered by him in State Bank and sent his medical leave application under the registered cover seeking medical leave from 14.7.2007 to 28.7.2007. In fact the said leave was to avoid service of the suspension order. Ultimately, the suspension order was pasted on the door of his house. He did not comply the transfer order dated 29.6.2007.

8. It is averred that the petitioner was relieved on 20.12.2008 and the entire service record has been sent to the Sub-Divisional Magistrate, Hardoi. It is stated that the petitioner did not move any application for subsistence allowances and he has superannuated on 21.7.2011. Thereafter, the petitioner preferred an application before the opposite party no. 2 on 17.9.2013 for subsistence allowance. The opposite party no. 2 sought information from the opposite party no. 3 and on 30.12.2013 a show cause notice was issued to the petitioner and the petitioner submitted his reply on 17.1.2014 which was disposed of on 18.2.2014.

9. I have heard learned counsel for the petitioner and the learned Standing Counsel.

10. Learned counsel for the petitioner submits that the petitioner was suspended from services on 14.7.2007 and was reinstated on 18.7.2008 imposing major penalty of withholding two increments permanently. It was also provided in the said order that a notice under Rule 54 of the U.P. Fundamental Rules be issued to the petitioner in respect of salary during his suspension period. The petitioner continued in service till the age of superannuation and accordingly retired on 21.7.2011 but no notice was issued under the aforesaid Rules till the date of his retirement. Next, he submitted that the notice dated 30.12.2013 was issued after about more than five years and five months which was invalid as the said notice can be issued only to an employee who is serving in connection with the affairs of the State. He further submitted that the Rule 2(h) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 defines the 'Government Servant' hence the notice under Rule 54-A and 54-B of the U.P. Fundamental Rules can be issued to a person only when he is in active service.

11. It is further submitted that in the disciplinary proceedings the petitioner was awarded punishment on 18.7.2008 withholding his two increments on permanent basis and he was reinstated. In the same order it was provided that a separate notice shall be issued to him in respect of withholding / forfeiting his salary during his suspension period. But, no notice was sent when he was in service. He retired on 21.7.2011 but the notice was sent to him after two years of his retirement on 30.12.2013 under Rule-54 of of the U.P. Fundamental Rules. The said delayed notice was without jurisdiction as the relatioship between the petitioner and the respondents ceased to exist and consequently the notice under Rule 54 of the U.P. Fundamental Rules after his retirement is bad in the eyes of law. No other submision has been made.

12. Learned Standing Counsel submits that since there was a serious allegation against the petitioner of fiscal misconduct hence forfeiture of his salary during the suspension period is justified and legal.

13. I have considered the submissions of learned counsel for the parties and perused the record.

14. The petitioner was placed under suspension on the the allegation of negligence of duty, insubordination and temporary embazzlement as he did not deposit the amount received from a farmer for two years when it was a temporary embazzlement. Later, a charge-sheet was served upon him wherein eight charges were levelled against the petitioner. The charge no. 1 was partly proved. The charge Nos. 2 to 6 were not proved. The charge nos. 7 to 8 relate to temporary embazzlement. He had received Rs. 36300/- on 15.7.2005 from Phattey Lal and issued him a receipt on the same date. Out of the said amount he deposited only Rs. 3300/- with ten per cent recovery charges and remaining amount Rs. 33000/- was deposited by him after he was enlarged on bail on 2.11.2007, thus the said charge was found to be proved.

15. In the Charge No. 8 the charge was that from one Shishupal Singh he had received Rs. 12671/- against the payment of electricity bill. He had issued a receipt dated 11.6.2006 to the defaulter but did not deposit the said amount in Tehsil accounts. In respect of the said amount the office of the Executive Engineer sent two reminders dated 27.9.2007 and 15.10.2007, only then after eight months the petitioner deposited the said amount in the Bank of India, Branch Bilgram. The said charge was also found to be proved.

16. The petitioner did not file any appeal against the order dated 18.7.2008 under which the punishment of withholding his two increments was passed. In the punishment order it was also mentioned that a separate notice shall be sent to him in terms of Rule-54 of the U.P. Fundamental Rules but the notice was served upon him after five years on 30.12.2013 which was replied by the petitioner on 17.1.2014.

17. Although in the prayer the petitioner has sought quashing of the order dated 18.7.2008 imposing major punishment, but no appeal has been filed against the said order as also there is no challenge to the said order in the pleadings of the writ petition. Learned counsel for the petitioner in his submission has not assailed the order dated 18.7.2008 hence I do not find any illegality in the said order.

18. It appears that during the suspension period which continued from 14.7.2007 to 18.7.2008 for about a year, no subsistence allowance was paid to the petitioner. It appears that after his retirement when the petitioner submitted a representation on 17.9.2013 for his subsistence allowance only then a show cause notice dated 30.12.2013 under Rule-54 of the U.P. Fundamental Rules has been issued to him for forfeiting his salary during the suspension period.

19. From the stand taken in paragraph-21 of the counter affidavit it is evident that the notice under Rule 54 of U.P. Fundamental Rules was issued only when the petitioner demanded the subsistence allowance vide his letter dated 17.9.2013.

20. If an employee is placed under suspension he is entitled for subsistence allowance in terms of Fundamental Rule 53 (Chapter VIII of Part-II of the Financial Hand Blook Volume II), which provides that the Government servant shall be entitled for the subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition dearness allowance, if admissble on the basis of such leave salary and in case the suspension exceeds three months the authority shall be competent to vary the amount of subsistence allowance.

21. The Fundamental Rule 54 provides that when a Government servant who had been subjected to disciplinary proceedings is reinstated, the competent authority is required to make specific order: (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; (ii) directing whether or not the said period shall be treated as a period spent on duty. For the sake of convenience relevant part of Rule-54 is extracted below:

"54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order:-

(a) regarding the pay and allowances to be paid to the Goverment servant for the period of his absence from duty including the period of suspension preceeding his dismissal, removal or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty."

22. In the case in hand the petitioner was awarded punishment of withholding increment on cumulative effect. No separate order was passed in respect of his salary during the suspension period.

23. In fact the order passed under the Fundamental Rule 54 is not a consequential order. It needs to be passed separately after giving notice in terms of the Rule-54. The Supreme Court had occasion to consider this issue in several cases and held that since the order may result in pecuniary loss to the Government servant it implies the duty to act judicially and in such a case if an opportunity to show cause is not affored, the order is liable to be struck down as invalid on the ground of violation of principles of natural justice. Reference may be made to the judgments of the Supreme Court in the case of O.P. Gupta v. Union of India and others, (1987) 4 SCC 328; B.D. Gupta v. State of Haryana, (1973) 3 SCC 149.

24. The Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another, AIR 1999 SC 1416 has observed that non-payment of subsistence allowance can be likened to slow poisoning. The provision for non-payment of subsistence allowance made in the Service Rules only ensures non-violation of the right to life of the employee. The Court has quoted with approval its previous decision on the issue in State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387. In the said case the service rules which provided for payment of nominal amount of rupee one as subsistence allowance to the employee placed under suspension was struck down. The said case was followed by the Supreme Court in the case of Fakirbhai Fulabhai Solanki v. Presiding Officer and another, (1986) 3 SCC 131.

25. In the case of Capt. M. Paul Anthony (supra) the Supreme Court has elaborately considered the effect of non-payment of subsistence allowance. The relevant part of the judgment reads as under:

"29. ...Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself...

30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death."

26. The stand of the respondents that since the petitioner did not demand the subsistence allowance hence the notice was not sent under Fundamental Rule 54, is not a valid ground for issuing the notice after five years and that too after his retirement. In the impugned order the competent authority is not justified withholding his salary on the ground that the charges against the petitioner were serious but in the entire order there is no explanation for the inordinate delay of five years in sending the notice under Rule 54 of the U.P. Fundamental Rules.

27. Moreover, another reason for denying the petitioner's salary is that there were serious allegations against the petitioner hence his salary has been forfeited. The said ground is also not acceptable that instead of the order of dismissal the only punishment inflicted upon the petitiner is to withold his two increments on cumulative effect.

28. In addition to above, the effect of delay in issuing the notice to the petitioner after his retirement in the year 2013 has not been considered in the impugned order. This plea has also not been taken in the writ petition nor any submission was made. Although in the reply dated 17.1.2014 to the show cause the petitioner in paragraph-8 of his reply has stated that the notice has been issued after much delay.

29. In view of the said fact the issue with regard to that effect issuing notice under Fundamental Rule 54 after his retirement needs not to be decided in the present case.

30. After careful consideration of the matter, I am of the view that the impugned order dated 18.2.2014 is liable to be set aside for the reasons stated above. Accordingly, the matter is remitted back to the third respondent to pass a fresh order after furnishing opportunty to the petitioner. The petitioner is at liberty to file a fresh reply to the show cause notice which shall be considered by the third respondent expeditiously, preferably within four months from the date of communication of this order.

31. The writ petition is, accordingly, allowed.

32. No order as to costs.

Order Date :- 19.5.2017

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