Shiv Prasad Singh vs State Of U.P.Through Its Secy ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - A No. - 1693 of 2005
 

 
Petitioner :- Shiv Prasad Singh
 
Respondent :- State Of U.P.Through Its Secy Revenue And 2 Ors
 
Counsel for Petitioner :- S.S.L.Srivastva
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard learned counsel for the petitioner and learned ACSC for respondent - State.

2. By means of present writ petition, the petitioner has challenged the orders dated 09.05.2002 & 11.07.2002 passed by the Collector / Assistant Record Officer, Faizabad as well as order dated 29.09.2004, passed by the Commissioner and Secretary, Board of Revenue, U.P. Lucknow contained as annexures 1, 2 & 3 to the writ petition with a further prayer to issue writ of mandamus commanding the respondents to make payment of due salary and other consequential benefits ignoring the impugned orders.

3. Brief fact of the case is that vide order dated 26.03.1993, issued by the Assistant Record Officer, Faizabad the petitioner was placed under suspension for non compliance of orders of higher authority and groupism as well as not taking interest in government work and absence from duty without information. The charge sheet was issued to him on 28.04.1993. Vide letter dated 11.06.1993, the petitioner was intimated to inspect the file. He was issued a show cause notice on 27.10.1993. The petitioner submitted his reply to the show cause notice vide letter dated 12.11.1993 before respondent No.3. An order of punishment was issued by the respondent No.3 on 16.12.1993, against which the petitioner filed representation on 16.03.1994 before respondent No.3. Thereafter, an order was passed on 07.03.2001 to reinstate the petitioner in service w.e.f. date of his suspension and to drop the departmental proceedings. After reinstatement, the petitioner was again issued a notice to submit reply on 20.03.2001 fixing a date 27.03.2002. The petitioner submitted his reply on 26.03.2002. Vide order dated 09.05.2002, respondent No.3 withheld two increments of the petitioner and the petitioner was issued a charge sheet on 04.06.2002, to which the petitioner submitted reply on 14.06.2002. Respondent No.3 issued an order on 11.07.2002 to the effect that rest of salary except subsistence allowance regarding the period of suspension shall not be paid to the petitioner. The petitioner preferred a representation on 09.05.2002 and 24.08.2004. The Commissioner and Secretary, Board of Revenue passed an order on 29.09.2004 on representations of the petitioner declining to accept the representation / appeal on the ground that Collector is the first appellate authority and there is no provision of second appeal under U.P. Government Servant (Discipline & Appeal) Rules, 1999.

4. The only grievance of the petitioner is that without amendment, penalty was imposed, therefore, in view of provisions contained under U.P. Government Servant (Discipline & Appeal) Rules, 1999 (for short, "The Rules"), the salary would not have been withheld for the suspension period. In support of his submissions, learned counsel for the petitioner placed reliance upon a judgment in the case of Ashu Nandan Singh Vs. State of U.P. through Secretary; 2007 (2) LBESR 494 (SC). The judgment was followed in subsequent judgment and order dated 03.07.2010 passed in Writ Petition No.891 (S/B) of 2010.

5. On the other hand, learned ACSC does not dispute the ratio of the judgments relied upon by learned counsel for the petitioner.

6. I have carefully examined the material on record and the judgments relied upon by learned counsel for the petitioner.

7. To resolve the controversy involved, relevant portion of the judgments relied upon by learned counsel for the petitioner are being quoted below:

"Ashu Nandan Singh (Supra):

Paragraph-8: Therefore, suspension could not resorted unless the allegations are so serious that it may ordinarily warrant major penalty. In the case in hand, the charges have not resulted in any penalty whatsoever under 1999 Rules. That being so, on a cumulative reading of Rules 3 and 4 of 1999 Rules, read with Fundamental Rule 54-B (3), in our view, it is difficult to comprehend that the suspension of the petitioner was justified. On the contrary, we are of the view that the suspension was wholly unjustified entitling the petitioner for full salary and allowances. the order dated 30th July, 2002, therefore, impugned in this writ petition cannot sustain.

Writ Petition No.891 (S/B) of 2010:

We have carefully considered the submission of learned counsel for petitioners-State and we do not find any force therein, in view of detailed discussion in the impugned judgment. In para 8 of the judgment, learned Presiding Officer of the Tribunal has given reasons for arriving at the conclusion as under:

"From the perusal of punishment order, as well as also written statement, it is evident that the impugned order of punishment has been passed merely after obtaining reply to show-cause notice submitted by the petitioner. Neither any date, time or place was fixed for the purposes of enquiry, nor witnesses were examined, nor oral enquiry was held, therefore in view of the facts and circumstances of the case, it was incumbent on the part of the enquiry officer to find out as to whether absence of the petitioner was deliberate or it was circumstantial and this fact could not be established without oral enquiry, which has not been done in the instant case. So far as the salary for suspension period is concerned, once, the impugned order of punishment is found unjustified, the suspension order has also become unjustified. During the arguments, the learned counsel for the petitioner also drew the attention of the Tribunal towards a decision 2007 (2) LBESR 494 (All.): Ashu Nandan Singh v. State of U.P. through Secretary, Nagar Vikas, U.P., Lucknow, and Ors; in which it has been laid down that the petitioner cannot be deprived of his salary for suspension period if the petitioner is awarded minor punishment after his suspension. Suspension could not be resorted unless the allegations are so serious that it may ordinarily warrant major penalty, therefore, the petitioner is entitled for the salary for suspension period. In the present case, absence of the petitioner could not be proved deliberately or intentionally and, therefore, the suspension of the petitioner in view of the facts and circumstances of the case was wholly unjustified entitling the petitioner for full salary, therefore, the impugned order of punishment regarding withholding of salary for suspension period is also liable to be set aside and the petitioner shall be entitled for payment of full salary for suspension period w.e.f. 09.05.2005 to 10.01.2008 except the subsistence allowance, if any, already paid to him."

Moreover, it is a settled principle of law that when a charge-sheet is issued for holding enquiry which, on conclusion, may lead to imposition of major penalty, it would be obligatory on the part of the disciplinary authority to hold a regular departmental enquiry. Admittedly, no oral/regular departmental enquiry was held and, on the other hand, only on the basis of reply to the charge sheet punishment was imposed. The Tribunal has placed reliance on a judgment of this court reported in 2007 (2) LBESR 494 (All.): Ashu Nandan Singh v. State of U.P. through Secretary, Nagar Vikas, U.P., Lucknow, and Ors. wherein it has been laid down that an employee cannot be deprived of his salary for the period of suspension, if his misconduct is visited with a minor punishment on conclusion of enquiry after placing him under suspension. The relevant portion of the aforesaid judgment (paras 7 & 8) on reproduction would read as under:--

"7. Fundamental Rule 54-B(3) provides where in the opinion of the authority competent to order reinstatement, the suspension was wholly unjustified, the Government Servant shall, subject to sub-rule (8) be paid full pay and allowances to which he would have been entitled, had he not been suspended. The discretion conferred under Rule 54(B)(3) upon the competent authority is not arbitrary, but has to be formed on the basis of the facts and circumstances of the case. Under Rule 4 (1) of 1999 Rules, the appointing authority in its discretion may place a Government Servant under suspension against whose conduct an inquiry is contemplated or is proceeding but proviso thereto restrict the power of suspension to be exercised in a routine manner and provides as under:

Provided that suspensions should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty...

8. Therefore, suspension could not be resorted unless the allegations are so serious that it may ordinarily warrant major penalty. In the case in hand, the charges have not resulted in any penalty whatsoever under 1999 rules. That being so, on a cumulative reading of Rules 3 and 4 of 1999 Rules, read with Fundamental Rule 54-B(3), in our view, it is difficult to comprehend that the suspension of the petitioner was justified. On the contrary, we are of the view that the suspension was wholly unjustified entitling the petitioner for full salary and allowances. The order dated 30th July, 2002, therefore, impugned in this writ petition cannot sustain."

Thus, finding no reason to interfere with impugned judgment, we dismiss the writ petition."

8. In view of above, I am of the opinion that suspension could not be resorted unless the allegations are so serious that it may ordinarily warrant major penalty. In the case in hand, the charges have not resulted in any penalty whatsoever under 1999 Rules, read with Fundamental Rule 54-B(3). In my opinion, it is difficult to comprehend that the suspension of the petitioner was justified. On the contrary, I am of the view that the suspension was wholly unjustified entitling the petitioner for full salary and allowances. The orders impugned dated 09.05.2002, 11.07.2002 and 29.09.2004 being non sustainable are hereby quashed.

9. The writ petition succeeds and is allowed.

10. The respondents are directed to pay salary and other allowances to the petitioner with all consequential benefits, if not already paid for a period during which the petitioner was under suspension. The said exercise may be completed within a period of three months from the date of production of a certified copy of this order.

Order Date :- 1.4.2022

Adarsh K Singh