Rajendra Prashad v. State Of Uttar Pradesh — 1988 DIGILAW 1170 (ALL)

JUDGMENT : B. L. Yadav, J. 1. Whether the judgment and order passed by the Supreme Court in Civil Appeal No. 5891 of 1983 dated 26th September, 1986 (Rajendra Prasad v. Kayastha Pathshala), reported in 1987 Education Cases 313 SC can be given effect to by a relief in the present writ petition filed under Article 226 of the Constitution of India, or the petitioner must be relegated to avail of the remedy of execution proceedings in the Civil Court, and whether the petitioner was entitled to entire arrears of his salary from the State of U. P. and the District Inspector of Schools, respondent nos. 1 and 2 and from Kulbhaskar Ashram Agriculture College, Allahabad, respondent no. 4, (for short the College) since the date he was suspended, as the suspension order has been held to be illegal, and whether the order of suspension should continue till date for about twenty one years without framing charges and without holding any enquiry particularly when no opportunity of hearing was given to him, are the questions for our determination in this petition filed by the petitioner for a writ of Mandamus commanding the respondents to make payment of entire arrears of his salary accrued to him as the order of suspension, was illegal and by way of punishment without framing any charge and without affording any opportunity, could not be deemed to continue till date. 2. The facts leading to the present petition present an interesting but a decimal chequered history prevailing in the educational institutions. The petitioner obtained a degree in M. Sc. in Chemistry. He had requisite qualification for the appointment as lecturer, was appointed as lecturer in Chemistry on 15-7-62 in the Kulbhaskar Ashram Agriculture Intermediate College, Allahabad, in accordance with the provisions of U. P. Intermediate Education Act, 1921, (for short the Act) and the regulations framed thereunder, in the present petition the controversy is about the order of suspension dated 30-12-65/7-1-66. It is noticeable that prior to that the petitioner was suspended on 20-2-64. For that he had to file a Civil Suit No. 193 of 19b4 (Rajendra Pd. v. Kayastha Pathshala) in the Court of Munsif West, Allahabad, seeking a declaration and injunction that the order of suspension dated 20-2-64 was illegal. That suit was dismissed by the Trial Court. It is noticeable that prior to that the petitioner was suspended on 20-2-64. For that he had to file a Civil Suit No. 193 of 19b4 (Rajendra Pd. v. Kayastha Pathshala) in the Court of Munsif West, Allahabad, seeking a declaration and injunction that the order of suspension dated 20-2-64 was illegal. That suit was dismissed by the Trial Court. But the First Appeal (F. A. No. 583 of 1965) was allowed on 7-12-65 and the order of suspension dated 20-2-64 was held to be illegal. The Second Appeal (No. 1111 of 1966) filed by the defendant Kayastha Pathshala against the petitioner was dismissed by this Court by its order dated 8-4-68 (Annexure-2 to the petition). Even prior to that within a couple of days from the date of petitioner's appointment his services were attempted to be terminated by the Vice- President Incharge of the College. The petitioner had to file Suit No. 482 of 1963 (Rajendra Prasad v. Kayastha Pathshala). But by order dated 6-9-63 the order of termination was withdrawn by the Kayastha Pathshala. That order of termination was not approved by the District Inspector of Schools and was withdrawn. It is the third inning in which the management again suspended the petitioner by the aforesaid order and the petitioner filed a Civil Suit No. 48 of 1966 (Rajendra Prasad v. Kayastha Pathshala) for a declaration that the aforesaid order of suspension dated 30-12-65/7-1-66 (for short the suspension order), was void and without jurisdiction. On 31-3-69 the 1st Additional Munsif decreed the suit holding the suspension order of the petitioner to be illegal, void and without jurisdiction. The defendant respondent, Kayastha Pathshala preferred an appeal (Appeal No. 117 of 1969) against the judgment and decree of the learned Munsif. The said appeal was transferred to the Additional Civil Judge, who allowed the same by his judgment and decree dated 20-8- 70, holding the suspension order to be legal. The petitioner filed a Second Appeal against the aforesaid judgment and decree of the Additional Civil Judge, which was numbered as Second Appeal No. 2038 of 1970, and was pending in this Court. The petitioner filed a Second Appeal against the aforesaid judgment and decree of the Additional Civil Judge, which was numbered as Second Appeal No. 2038 of 1970, and was pending in this Court. During the pendency of the Second Appeal in this Court, an application for amendment of the plaint and adding the grounds in the memo of Second Appeal, was made by the petitioner on 2-4-77, consequent upon the amendment in the Act, by U. P. Secondary Education Laws (Amendment) Act, 1975, whereby the following provisions were added i " 16-G (6) :-Where any head of the institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of commencement of the U. P. Secondary Education Laws (Amendment) Act, 1975. In case the order of suspension was passed before such commencement and within 7 days from the date of order of suspension and the report shall contain such particulars as may be prescribed and accompanied by all the relevant documents. (7) No such order of suspension, unless approved in writing by the Inspector, remain in force for more than 60 days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order and the order of Inspector shall not be questioned in any court." 3. But the aforesaid amendment sought by the petitioner was rejected by order dated 19-11-79 by the learned Single Judge of this Court. The petitioner preferred an appeal to the Supreme Court and by order dated 20-2-80 the Supreme Court allowed the appeal and directed this Court to allow the application for amendment. These facts have been noted in para II of the judgment of Second Appeal No. 2038 of 1970 connected with First Appeal No. 450 of 1982, decided on October 23, 1983, reported in 1983 Education Cases 161. The amendment was contained in para 13-A of the plaint and ground (G) was added in para 14 of the plaint. Those paragraphs are considered to be material for the decision of this petition, Consequently they are set out below i " 13-A. That in accordance with the above amended provisions of Intermediate Amendment Act the respondents have neither reported the above alleged suspension to Distt. Inspector of Schools, Alld. Those paragraphs are considered to be material for the decision of this petition, Consequently they are set out below i " 13-A. That in accordance with the above amended provisions of Intermediate Amendment Act the respondents have neither reported the above alleged suspension to Distt. Inspector of Schools, Alld. within thirty days nor sought the approval of the alleged suspension of the appellant, nor the alleged suspension has been approved in writing by the Distt. Inspector of Schools, Alld. and thus order of alleged suspension dated 30-12-65/7-1-66 shall not remain in force beyond sixty days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975 enforced on 18th August, 1975 or from the date of such order and the alleged suspension order dated 30-12-65/7-1-66 is infructuous, invalid, void and is vitiated and became inoperative and nullity in the eye of law, in any case." " 14 (g). That the provisions of section 16 (g) (6) and (7) of U. P. Intermediate Education Act, 1921 (U. P. Act No. II of 1921) as amended by U. P. Secondary Education Laws (Amendment) Act No. XXVI of 1975, dated 18th August, 1975 have not been complied with and as such order of suspension dated 30-12-65/7-1-66 in question shall not remain in force for more than sixty days from the date of commencement of U. P. Secondary Education Laws (Amendment) Act, 1975, dated 18th August, 1975 or from the date of such order and the alleged impugned suspension order dated 30-12-65/7-1-66 is invalid and void and is vitiated and becomes inoperative and nullity in the eyes of law, in any case. " 4. The petitioner's Second Appeal No. 2038 of 1970 was dismissed, whereas the First Appeal No. 450 of 1982 preferred by the Kayastha Pathshala was allowed. That first appeal No. 450 of 1982 arose out of the suit filed by the plaintiff, the present petitioner, for recovery of arrears of pay Rs. 7812.92, including Dearness Allowance and other emoluments along with the amount of Provident Fund since 2-2-64 to 20-2-1967 which was decreed by the trial court. Against that the management of Kayastha Pathshala filed a First Appeal No. 268 of 1969, which was got transferred to this Court while hearing the aforesaid Second Appeal and that First Appeal transferred from the District Judge was numbered in this Court as First Appeal No. 450 of 1982. Against that the management of Kayastha Pathshala filed a First Appeal No. 268 of 1969, which was got transferred to this Court while hearing the aforesaid Second Appeal and that First Appeal transferred from the District Judge was numbered in this Court as First Appeal No. 450 of 1982. As stated above, the Second Appeal was dismissed and the First Appeal filed by the management of the Kayastha Pathshala was allowed dismissing the suit of the petitioner for arrears of salary. The petitioner preferred an appeal to the Supreme Court, which was numbered as Civil Appeal No. 5891 of 1983 and was decided on 26th September, 1986, reported in 1987 Education Cases 313 (Supra). Their Lordships of the Supreme Court in the aforesaid Civil Appeal preferred by the petitioner had taken the view that even though the suspension order dated 30-12-65/7-1-66 cannot be said to be illegal, null and void, but certainly it did cease to be operative with effect from 17-10-75 on the expiry of 60 days from the commencement of U. P. Secondary Education Laws (Amendment) Act, 1975. The conclusion was given by the Supreme Court at page 313 as follows a " Having recorded this finding the High Court refused to exercise its discretion to grant declaration that the order of suspension ceased to be operative with effect from 17-10-75. We think that the High Court was wrong in refusing to grant declaration. We, therefore, declare that the order of suspension ceased to be operative from 16-10-75. The appeal against the judgment of the High Court in Second Appeal No. 2077 of 1980 is disposed of accordingly." In the appeal against judgment of the High Court in F.A. No. 450/82 we do not see how the appellant can be denied his salary for the period between 20-2-64 to January 15, 1966, the date on which the effective order of suspension was communicated to him. Instead of sending the case back to the trial court for determining the amount, we think that a decree may be straight away passed for a sum of Rs.10,000/- which will include the salary for the period. It is so decreed. This amount will carry interest at the rate of 9% from today if not paid immediately. The decree of the trial court and the High Court is set aside and the appeal is disposed of accordingly. " 5. It is so decreed. This amount will carry interest at the rate of 9% from today if not paid immediately. The decree of the trial court and the High Court is set aside and the appeal is disposed of accordingly. " 5. The petitioner is seeking the effect of the aforesaid decision of the Supreme Court in the present petition under Article 226 of the Constitution. 6. As the suit for recovery of arrears, which gave rise to the First Appeal No. 450 of 1982, was in respect of arrears of salary for the period 20-2-64 to 15-1-66, when the services of the petitioner were first time terminated as indicated above. But the order was withdrawn and thereafter the petitioner was suspended by order dated 20/21-2-64, and the petitioner's suit for declaration that the order dated 20-2-64 suspending him from service was dismissed by the trial court, but decreed by the first appellate court and the Second Appeal filed by the Kayastha Pathshala was dismissed by this Court, the suspension order of the petitioner was accordingly set aside. But he was again suspended by order dated 30-12-65/ 7-1-66 and that order was received by the petitioner on 15-1-66. That suspension order was held to be illegal by the First Addl. Munsif and the suit was decreed. Their Lordships of the Supreme Court decreed the suit for that period of suspension (since 20-2-64 till 15-1-66). In the present case the suspension order ceased to be operative as held by the Supreme Court in para 1 of the judgment, with effect from 15-10-75 on the expiry of 60 days from the commencement of U. P. Secondary Education Laws (Amendment) Act, 1975. AS that order of suspension ceased to be operative since 17-10-75 in pursuance of U. P. Act No. 10 of 1975 adding the aforesaid provisions to sections 16-G (6) and (7) to the Act, it is inconceivable that the second order of suspension would extend since 30-12-65 to 17-10-75 for no fault of the petitioner. AS that order of suspension ceased to be operative since 17-10-75 in pursuance of U. P. Act No. 10 of 1975 adding the aforesaid provisions to sections 16-G (6) and (7) to the Act, it is inconceivable that the second order of suspension would extend since 30-12-65 to 17-10-75 for no fault of the petitioner. Sri V. C. Misra, learned counsel for the petitioner urged that the second order of suspension having been held to be inoperative by their Lordships of the Supreme Court and also in pursuance of sections 16-G (6) and (7) of the Act, as incorporated and amended by U. P. Act No. 10 of 1975, hence the petitioner became entitled to his salary including D. A. and other emoluments admissible under rules since 15th January, 1966. The petitioner being helpless after his suspension and having no means to maintain his family, was at a loss and with a view to keep his body and soul together, he obtained the degree of LL.B. and started legal practice which, however, did not meet his bare requirements in these hard days of cut throat competition. With no stretch of imagination it could be assumed that the petitioner's suspension period could extend for the last more than twenty years by way of punishment, without holding any enquiry, without framing any charges and in violation of principles of natural justice. The petitioner was not in gainful employment. The petitioner was entitled to his full pay and other emoluments admissible to him according to rules. Reliance was placed on Rajendra Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805 . It was further urged that the instant writ petition under Article 226 of the Constitution was appropriate remedy as the petitioner was seeking enforcement of judgment rendered by the Supreme Court declaring the law on the subject and that was binding under Article 141 of the Constitution and the order of suspension was by way of punishment. 7. Sri G. N. Verma, the learned counsel appearing for respondent nos. 3 to 4 and the learned Standing Counsel appearing for respondent nos. 1 to 2, on the other hand, urged that the petitioner was not entitled to his salary since 15-1-66 and the relief, if any, could be obtained by pursuing alternative remedy by filing application for execution. 7. Sri G. N. Verma, the learned counsel appearing for respondent nos. 3 to 4 and the learned Standing Counsel appearing for respondent nos. 1 to 2, on the other hand, urged that the petitioner was not entitled to his salary since 15-1-66 and the relief, if any, could be obtained by pursuing alternative remedy by filing application for execution. The suspension was not by way of punishment, even if no enquiry has been held so far. The petitioner while practising as an Advocate was in gainful employment. Reliance was placed on Abhinash Chand v. Union Territory of Tripura, AIR 1984 SC 320 . 8. As regards the first point, their Lordships of the Supreme Court have already held that the order of suspension ceased to be operative with effect from 17-10-75 on the expiry of sixty days from the commencement of U. P. Secondary Education Laws (Amendment) Act, 1975 in view of the provisions of sub-sections (6) and (7) added to section 16-G by the U. P. Secondary Education Laws (Amendment) Act, 1975. The question is about the effect of amendment since 16-1-66 to 16-10-75. It is obvious from the findings of this court in the judgments of Second Appeal and the First Appeal decided by this Court as reported in 1983 Education Cases 161 (Supra), under para 27 (page 178) to the following effect t " The suspension order of the plaintiff was made pending enquiry into the complaints against him. That enquiry has not been completed so far, although more than 16 years have gone by. It is an extraordinary rather regrettable feature of the administration of justice in our country that such a thing could be possible. " Counting that period of 16 years till today, it comes to about 21 years and the petitioner is still under suspension and neither any charges have been framed against the petitioner, nor the same has been served upon him, nor the enquiry has been held till today. In view of these facts, strictly and substantially, the petitioner is under suspension for the last more than 21 years without any charge sheet and without any enquiry. In fact, the import of expression 'suspension' is to interrupt, or to discontinue temporarily from service. In view of these facts, strictly and substantially, the petitioner is under suspension for the last more than 21 years without any charge sheet and without any enquiry. In fact, the import of expression 'suspension' is to interrupt, or to discontinue temporarily from service. Even during the period of suspension the employee or the teacher continues to be in the employment of the institution or the employer till his services are terminated. Sub-section (5) of Section 16-G of the Act is set out below : " (5) No head of the institution or a teacher shall be suspended by the management unless in the opinion of the management- fa) the charges against him are serious enough to merit bis dismissal, removal or reduction in tank ; or (b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him ; or (c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial. " 9. A bare reading of the aforesaid sub-section (5) of Section 16-G would indicate that the order of suspension has to be preceded by three conditions. The first is that the charges must have already been framed against the teacher and those charges must not be simple or ordinary charges. They must be serious enough so as to lead to his dismissal, removal or reduction in rank. The next condition is that his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him ; and the third condition is that any criminal case for an offence involving moral turpitude is under investigation, inquiry or trial against him. In the present case no charges were framed before the petitioner was suspended, nor there was any evidence. Hence there was no question of charges being serious enough to merit his dismissal, removal or reduction in rank and there was no evidence at all, nor it was averred in the counter affidavit that continuance of petitioner in office was likely to hamper or prejudice the conduct of disciplinary proceedings against him. Further there was no criminal case against him under investigation, inquiry or trial involving moral turpitude. The petitioner could not accordingly have been suspended. Further there was no criminal case against him under investigation, inquiry or trial involving moral turpitude. The petitioner could not accordingly have been suspended. Even though the petitioner was suspended, but till today more than 21 years rolled down, no enquiry has been held and no charges have been framed against him. This fact was already noticed by the learned Single Judge of this Court deciding the Second Appeal in para 27 of the judgment 1983 Education Cases 178 (Supra). Right to suspend or to forbid a teacher or an employee not to work is not an implied term in ordinary contract or between employer and employee. But such power is creature of Statute. This was the position in respect of suspension pending enquiry. Whereas suspension can also be as a punishment after the conclusion of enquiry. But for that there must be specific provision in the Statute. In the present case there was no provision under the Act, to award suspension as a measure of punishment, after the conclusion of enquiry and the charges being proved. As none of the conditions under section 16-G (5) of the Act was complied with, the petitioner could not have been suspended. It is better to quote an observation under para 8 in V. P. Gindroainya v. State of M. P., AIR 1970 SC 1494 at page 1496 to the following effect : " It is now well settled that the power to suspend in the sense a right to forbid an employee to work as an implied term in an ordinary contract between master and servant and that such power can only be a creature offered by the Statute governing the contract, or of an expressed term in the contract itself. Ordinarily, therefore, the absence of such power either as an expressed term in the contract or in the rules framed under some Statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee wages during the period of suspension.............. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct. Even though there is no such term in the contract of employment or in the rules, but in such cases employee will be entitled to his remuneration for the period of suspension, if there is no statute or rule under which it could be withheld. " 10. Keeping the mind the aforesaid observation and the provisions of Section 16-G (5) and the relevant regulations, we are of the view that the conditions precedent to suspend the petitioner were not fulfilled. The suspension could have been only during the pendency of enquiry or after framing charges. But neither there was any enquiry against the petitioner nor charges were framed, hence the suspension against him was void ab initio. There was no provisions to impose suspension as a measure of punishment after the conclusion of enquiry. Hence for more than 21 years the petitioner cannot be assumed to be under suspension without any charges being framed, without any enquiry being made and without any criminal case under investigation or enquiry or trial involving moral turpitude. Further as indicated above, the petitioner was never served with any charge sheet, nor any enquiry was held nor any opportunity was afforded to him to reply the charges. Consequently the suspension order ceased to be operative from the very inception. Under these circumstances, the petitioner is entitled to be reinstated forthwith and is entitled to his entire salary legally admissible to him including the D. A. and other emoluments. Of course, deducting the amount if any, paid to him as subsistence allowance during the period of suspension. Coming to the next question as to whether the petitioner can be deemed to be in gainful employment. As a last resort to his frustration during the period of suspension being unable to keep his body and soul together, the petitioner started legal practice. But the said practice cannot be deemed to be gainful employment, particularly in the absence of any evidence from the side of respondent as to what was the practice of petitioner and was he able to save any amount, or what was his earning. But the said practice cannot be deemed to be gainful employment, particularly in the absence of any evidence from the side of respondent as to what was the practice of petitioner and was he able to save any amount, or what was his earning. The petitioner became a member of the legal fraternity during the period of forced unemployment on the basis of the order of suspension, which was void ab initio, as indicated above. Even if during that period some amount was earned to make his both ends set, that cannot be said to be gainful employment. 11. There appears to be another aspect of the matter also that the gainful employment means actually in the employment. Joining legal fraternity can never be said to be employment. Joining of legal fraternity could not disentitle the petitioner to claim his arrears of salary from the date he was suspended. It was for the respondents to prove as to how the petitioner could be said to be in gainful employment. It is better to quote an observation by their Lordships of the Supreme Court in Rajendra Kumar Kindra v. Delhi Administration, AIR 1984 SO 1805 at page 1812 para 21 as follows : " Mr. P. K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross- examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case had left us stunned. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case had left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim of back wages. THERE is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits. " 12. Considering the aforesaid aspect, total lack of evidence on behalf of respondents to prove gainful employment of the petitioner, and taking into account the aforesaid observation of their Lordships of the Supreme Court, we are of the opinion that there is no evidence on record to show that the petitioner was gainfully employed during the period of his forced absence from service. The petitioner would accordingly be entitled to his entire salary since the date of his suspension, deducting of course, the amount paid, if any. as subsistence allowance. After the enforcement of U. P. High School and Intermediate Colleges (Payment of Salaries to Teachers and Other Employee) Act, 1971, the District Inspector of Schools and the State of U. P. would be liable to pay arrears of salary and prior to that date the Committee of Management of the institution would be liable to pay the said amount. As regards the case of Avinash Chand v. Union Territory of Tripura, AIR 1984 SC 320 (supra), relied upon by the learned counsel for respondent nos. 3 and 4, that was a case where the workman was employed as a teacher and there was positive evidence to prove the same. As regards the case of Avinash Chand v. Union Territory of Tripura, AIR 1984 SC 320 (supra), relied upon by the learned counsel for respondent nos. 3 and 4, that was a case where the workman was employed as a teacher and there was positive evidence to prove the same. The amount earned during the employment as teacher was deducted. But the facts of the present case are entirely different. The petitioner was neither employed in any service during the period of his forced absence, nor there was any evidence led by the contesting respondent nos.3 and 4. The petitioner being compelled by the circumstances and being unable to maintain his family and to keep his body and soul together, took refuge in the legal fraternity believing in the nobility of legal profession, which may provide some assistance to maintain his family and himself. There was absolutely no evidence about his gainful employment. We are accordingly of the considered opinion that the petitioner could not be said to be gainfully employed. 13. The alternative remedy is not the absolute bar to decline to grant relief in a writ petition. The circumstances of a particular case have to be judged as to whether the alternative remedy would be an effective and efficacious remedy to be availed of by the petitioner. In case the alternative remedy is futile or is not efficacious, the petitioner could not relegated to avail of that remedy and the relief to petitioner could not be refused on that ground. In the present case considering the facts and circumstances, we are of the opinion that to direct the petitioner to avail of the remedy of execution proceedings would not be an efficacious remedy, particularly when their Lordships of the Supreme Court have already decided the matter substantially. The present petition accordingly cannot be said to be barred by alternative remedy-See Fitterco v. Commissioner of Sales Tax, AIR 1986 SC 626 . 14. The order of suspension being illegal was correctly set aside by the Supreme Court after the enforcement of U. P. Secondary Education Laws (Amendment) Act, 1975 as none of the conditions mentioned in sub-section (5) of section 16-G of the Act were not fulfilled as no charges were 'framed against the petitioner, nor any charge sheet was served on him. The order of suspension being illegal was correctly set aside by the Supreme Court after the enforcement of U. P. Secondary Education Laws (Amendment) Act, 1975 as none of the conditions mentioned in sub-section (5) of section 16-G of the Act were not fulfilled as no charges were 'framed against the petitioner, nor any charge sheet was served on him. Hence there was no question of such charges being serious enough to call for the dismissal nor there was any evidence that his continuance in office would likely hamper or prejudice the conduct of disciplinary proceedings against him, nor any criminal case involving moral turpitude was under investigation, trial or enquiry. The petitioner, therefore, could not have been suspended and the order of suspension, in our view, was void ab initio. Under law there was no provision to keep the petitioner under suspension for more than 21 years without enquiry being held and without any charge sheet being submitted. The 'petitioner has a legal right to continue in service and we direct him to be reinstated forthwith. As regards the arrears of salary the petitioner has already made an application dated 16-5-87, a true copy of which has already been filed as Annexure 22 to the petition. Once the order of suspension ceased to be operative and was ab initio from its very inception, the petitioner shall be deemed to be in continuous service. That application of the petitioner was sent to State of U. P. through the Education Secretary and also the District Inspector of Schools. The District Inspector of Schools has already sent a letter dated 7-1-87 (Annexure 23) to the Manager Kulbhaskar Ashram Agriculture Inter College, Allahabad about the payment of arrears of salary to the petitioner. But the Manager and the State of U. P. do not seem to be interested in making payment of arrears of salary to the petitioner. We are accordingly of the opinion that the petitioner has made out a case for issuance of a writ of Mandamus directing the State of U. P. and the District Inspector of Schools, Allahabad, to make payment of arrears of salary to the petitioner in view of section 10 and prior to that date the arrears of pay and other emoluments would be payable by the institution. In case the institution fails to make payment the procedure under section 11 of the Payment of Salaries Act may be adopted. 15. In view of the premises aforesaid, the present petition succeed and is allowed. Respondent nos.1 and 2 the State of Uttar Pradesh and the District Inspector of Schools, Allahabad are directed to make payment of salary to the petitioner since 16-11-66 till date, forthwith including D. A. and other emoluments admissible under law, of course, after deducting the amount, if any, paid to him as subsistence allowance during the period of his suspension. We further (order) that the petitioner shall be reinstated forthwith and shall be paid his salary regularly in accordance with the provisions of section 3 of the Payment of Salaries Act, 1971. Under the circumstances, however, there shall be no order as to costs. Petition allowed.