Shabir Ali vs State Of U.P.Through Secy. Rajya ...
2023 Latest Caselaw 11992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

? IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 LUCKNOW
 
 A.F.R.
 
Court No. - 20
 

 
Case :- WRIT - A No. - 371 of 2012
 

 
Petitioner :- Shabir Ali
 
Respondent :- State Of U.P.Through Secy. Rajya Sampatti Vibhag Lko. And Anr
 
Counsel for Petitioner :- Nripendra Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State.

2. By means of this writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 5.1.2012 and order dated 10.3.2010 passed by Vishesh Sachiv Rajya Sampatti Adhikari, Rajya Samatti Anubhag-1, Lucknow.

A further writ of mandamus directing respondents to revoke suspension of the petitioner and pay him full salary as applicable every month, including arrears, if any has also been prayed.

3. Vide annexure-4, the petitioner was placed under suspension under Rule 4(3)(ka) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short, Rules of 1999) vide order dated 10.3.2010 passed by respondent No.2 on the ground that the petitioner was taken into custody from 18.2.2010. The petitioner filed a writ petition No.4869 (S/S) of 2011 Shabir Ali versus State of U.P. and others which was disposed of with a direction to the opposite parties to consider the petitioner's case and take a decision on his representation within a stipulated time. In compliance of the said order, vide order dated 5.1.2012, representation given by the petitioner has been rejected.

4. The petitioner's counsel submits that after his release from custody, he has joined the duties on 18.5.2011, however, the order of suspension has not been revoked although he has moved several representations. He further submits that the petitioner remained suspended from 18.2.2010 to 18.5.2011. He has not been paid arrears of salary during this period and other consequential benefits. Although the petitioner has been enlarged on bail, the respondents have not revoked the suspension order.

5. Learned Standing Counsel submits that the competent authority has not found it appropriate to reinstate the petitioner from the date of suspension since his case is pending disposal before the Chief Judicial Magistrate, Lucknow. However, the petitioner is being paid the basic salary of Rs.31,500/- and admissible dearness allowance of Rs.11,970/-.

A first information report was registered against the petitioner as case crime No.660 of 2009 under sections 420, 467, 468, 471, 120-B, 34 I.P.C. A charge sheet has been filed on 9.4.2010. The trial is going on. It is submitted that any decision for revoking suspension order can only be taken after conclusion of trial. Law in this regard has been settled by the Full Bench judgment of this Court in [1997(15) LCD-323 Chandra Shekhar Saxena versus Director of Education (Basic), U.P. Lucknow and another. Relevant paragraphs 22 and 27 of the Full Bench judgment are extracted below :

"22. The provisions contained in Sub-rule (2) have also been assailed as unconstitutional on his ground that the same suffer from vide of arbitrariness. In our opinion, this criticism has also no substance. The deemed suspension of a Government servant by a legal fiction is a necessity as discussed above but it is not correct to say that the Government servant has been left remediless once a deemed suspension has come into existence. Sub-rule (6) (2)of Rule 49-A clearly provides that any suspension ordered or deemed to have been ordered or to have continued in force under this Rule shall continue to remain in force until it is modified or revoked by the authority specified in Sub-rule (1). Thus Government servant who has been deemed to be under suspension by an order of the appointing authority for the period he was under detention in custody, can approach the appointing authority and convince him for modifying or revoking the order and on such approach being made, the appointing authority may take into account all the facts and circumstances which led to his detention in custody and gave rise to the deemed suspension and then the appointing authority may pass appropriate order modifying or revoking the order of suspension. Thus, the Government servant is not remediless. On the basis of the language used in Sub-rule (5) (a), it has been argued that a deemed suspension once comes into existence, shall continue to remain in-force until it is modified or revoked by the appointing authority and the Government servant shall continue under suspension even after his release from the custody. In our opinion, under Sub-rule (5)(a) suspension deemed to have been ordered shall continue to remain in force does not mean that the actual suspension shall also continue after release from custody. However, the deemed suspension shall remain in force for other purposes which may include all the consequences which flow from on order of suspension of a Government servant. From the combined reading of Sub-rule (2) and Clauses (a) and (b) and sub-rule (6)(a) of Rule 40-A, the passible and reasonable conclusion is that deemed suspension shall be operative only for the period of custody and not beyond that. However, it shall remain in force for other purposes which flow from the order of suspention. In our opinion, such a harmonious interpretation can be safely given to the provisions contained in Sub-rule (5)(a) without doing any violence to the purpose and object and the legislative intent behind the aforesaid provisions.

27. We have considered all the cases cited by the learned counsel for parties. However, we do not find anything on which basis the view we have expressed above may be doubted or shaken. Our conclusions and answer to the questions referred to us are as under:-

(A) Sub-Clause (a) of Sub-rule (2) of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, as applicable in Uttar Pradesh, is not violative of Articles 14 and 21 of the Constitution of India as held in case of Jagjit Singh v. State of U.P., reported in (1996) 1 UPLBEC 405 and the judgment is here by over-ruled.

(B) The legal fiction envisaged under Sub-rule (2) (a) and (b) of Rule 49-A shall come into play and a deemed suspension by an order of the appointing authority shall came into existence if the Government servant is detained in custody for more than forty-eight hours even in absence of any order in writing passed by the appointing authority.

(C) The deemed suspension provided under Sub-rule (2) of Rule 49-A shall be confined to the period of detention in custody and not beyond that.

(D) The deemed suspension by an order of the appointing authority under the legal fiction provided in Sub-rule (2) may be continued after release by the appointing authority by passing an express order taking into account the guidelines provided in other sub-rule of Rule 49-A according to the facts and circumstances of the case.

(E) The deemed suspension under Sub-rule (2) of Rule 49-A may be modified or revoked by the appointing authority on a representation made by the Government servant which shall be considered and decided taking into consideration the guidelines provided in Sub-rules (1) and (1-A) of Rule 49-A."

6. In view of the judgment of Full Bench, it is clear that the deemed suspension of the petitioner can be continued, even after his release, by the appointing authority by passing an express order. It may or may not be revoked by the competent authority. In this case, a decision has been taken by the appointing authority vide order dated 5.1.2012.

7. Rule 4(4) of the Rules of 1999 provides that a government servant shall be deemed to have been placed or, as the case may be continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed, removed consequent to such conviction.

9. As per admitted case of the authorities, since the criminal trial relating to the aforesaid first information report No.660 of 2009(supra) is pending, therefore, the impugned order of suspension and the impugned order dated 5.1.2012 whereby his representation has been rejected cannot be faulted. Since the criminal trial is pending, the deemed suspension under legal fiction may be continued even after release of the petitioner. Final decision relating to suspension of the petitioner can only be taken after conclusion of trial as provided under sub rule (2) of rule 4 of Rules of 1999 and not prior to that. There is no illegality in the order impugned.

10. The court has noted that by virtue of the interim order dated 23.1.2012, operation of impugned orders contained in Annexures 1 and 4 was stayed. Therefore, the petition is disposed of with a direction to the respondents to allow the petitioner to work and he shall be paid basic salary with other allowances as is being paid to him, at present. However, it shall be subject to final outcome of trial.

Order Date :- 20.4.2023

kkb/