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Allahabad High Court · body

2009 DIGILAW 2261 (ALL)

PRABHU NARAIN SINGH v. STATE OF U. P.

2009-05-18

S.U.KHAN

body2009
JUDGMENT Honble S.U. Khan, J.—Heard learned counsel for the parties. 2. Petitioner was an Assistant Development Officer Agriculture. Now he has retired. On 25.3.1985, petitioner was suspended. He remained under suspension for about four years and three months. Additional Director of Agriculture on 4.12.1988 awarded two punishments. One was of deduction of about Rs.11,000/- from the salary of the petitioner, which was equivalent to one third of the amount regarding which loss had been caused to the Government due to the activities/negligence of the petitioner. The other punishment was that two increments were stopped permanently. It was further directed that decision regarding balance salary for the suspension period would be taken after issuing show cause notice. Petitioner was immediately reinstated. In pursuance of the said order, notice was issued to the petitioner, regarding suspension period balance salary and benefits. Thereafter, an order was passed on 19.6.1989, which is contained in Annexure-4 to the writ petition. It was directed that for the suspension period apart from suspension allowance already paid, no other amount by way of balance salary etc. would be payable to the petitioner. However, it was directed in the last sentence that period of suspension would not be treated to be break in service for pension purposes. 3. Against punishment order dated 4.12.1988/4.1.1989 and order dated 19.6.1989, appeal was filed which was decided on 20.8.1998 and the punishment of stoppage of two increments was set aside and other punishments were approved. 4. Copy of the judgment of appeal dated 20.8.1998 is Annexure-5 to the writ petition. Through the said appeal, both the orders were challenged, i.e. order dated 4.1.1989 and order dated 19.6.1989 (punishment order appears to have been passed on 4.12.1988 and dispatched on 4.1.1989). Petitioner retired in 1996. Earlier also a writ petition had been filed by the petitioner being Writ Petition No. 41196 of 2002. Writ petition was allowed on 27.9.2002 only in respect of prayer (b) and it was directed that petitioner’s salary should be redetermined on the last pay drawn with simple interest at the rate of 10% per month (sic. year). Earlier also a writ petition had been filed by the petitioner being Writ Petition No. 41196 of 2002. Writ petition was allowed on 27.9.2002 only in respect of prayer (b) and it was directed that petitioner’s salary should be redetermined on the last pay drawn with simple interest at the rate of 10% per month (sic. year). It was specifically observed as follows in the said judgment dated 27.9.2002 : "lt is apparent frqm record that taking in account the appellate order dated 20.8.1998, by which the punishment of stopping two increments with permanent effect was set aside, petitioner’s pay was required to be re-fixed and the pension payment order is also liable to be amended taking into account the two increments which were earned by him." 5. Judgment and order dated 27.9.2002 was sought to be modified. The application was rejected on 9.10.2003 (Annexure-7). In the said order, it was observed as follows : "If his period under suspension has been treated to be on duty, he was entitled to all benefits and thus it is only a matter of rectification, which can be carried out by the department. It does not call modification of my order dated 27.9.2002." 6. The Court did not express any final opinion that suspension period should be treated to be on duty. As stated earlier, through order dated 19.6.1989, it was directed that apart from suspension allowance already paid no further amount would be payable to the petitioner for the suspension period, however it was directed that period of suspension would not be treated to be break in service for pension purposes. Accordingly, there was/is absolutely no reason to direct payment of any further amount for the suspension period apart from suspension allowance already paid. 7. Thereafter, an order was passed on 20.12.2003, which has been challenged through this writ petition and is contained in Annexure-8 to the writ petition. The contention of learned counsel for the petitioner in this writ petition is that increments for suspension period should also be added to the petitioner’s salary for the purposes of calculation of pension. 7. Thereafter, an order was passed on 20.12.2003, which has been challenged through this writ petition and is contained in Annexure-8 to the writ petition. The contention of learned counsel for the petitioner in this writ petition is that increments for suspension period should also be added to the petitioner’s salary for the purposes of calculation of pension. In the impugned order, it is mentioned that through order dated 19.6.1989, which was approved in appeal, it was directed that for the suspension period no further amount would be payable apart from suspension allowance already paid and the only relief in that regard granted to the petitioner was that suspension period would not be treated to be break in service for the purposes of pension. 8. In the impugned order dated 20.12.2003, it is mentioned that through order dated 20.9.1999, Pension Payment Order (PPO) had been amended. It must have been done in pursuance of order passed in appeal on 20.8.1998. Copy of order dated 20.9.1999 has not been annexed. Petitioner had retired in 1996. It is nowhere stated in the writ petition that the pension, which was being paid to the petitioner immediately after his retirement was not amended/increased after the order passed in appeal on 20.8.1998. 9. The contention raised by the learned counsel for the petitioner during arguments and stated in the writ petition that for the suspension period increments were not added is misleading. Through order dated 4.12.1988/4.1.1989 two increments were stopped. Stoppage of two increments means that the basic pay which the incumbent is receiving at the time of the passing of the order shall be reduced by two increments. The incumbent is placed at the pay-scale, which he was getting before addition of last two increments. For this purpose suspension period is wholly immaterial. There is absolutely no allegation that in pursuance of order dated 4.12.1988/4.1.1989, more than two increments were stopped. There is no specific allegation that in addition to two increments, the increments which petitioner must have earned during suspension period were also stopped. During suspension period a certain percentage of pay/salary is paid to the employee. If suspension period continues for a long time and during that period of suspension, incumbent earns some increments then the same are added to the salary and suspension allowance, which is certain percentage of salary is accordingly modified. During suspension period a certain percentage of pay/salary is paid to the employee. If suspension period continues for a long time and during that period of suspension, incumbent earns some increments then the same are added to the salary and suspension allowance, which is certain percentage of salary is accordingly modified. There is no allegation that it was not done in the case of the petitioner. 10. In the writ petition, absolutely no particulars have been given. It has not been stated that at the time of retirement, petitioner was at what stage of pay scale after reckoning stoppage of two increments and at what stage of pay scale he would have been at the time on his retirement in the year 1996 if all the increments had been added in view of subsequent order of 1998 passed by the appellate authority setting aside the punishment of stoppage of two increments. Even pay scale of the petitioner has not been mentioned in the writ petition. 11. Supreme Court in Bharat Singh v. State of Haryana, AIR 1988 SC 2181 (Para-13) has held that in a petition not only the facts but also the evidence to prove all such facts has to be pleaded and annexed to it. 12. In view of the above, petitioner has failed to prove that the effect of order of the appellate Court dated 20.8.1998 passed after the retirement of the petitioner and through which the punishment of stoppage of two increments was set aside was not reflected in the pension paid to him after the said order. 13. Accordingly, writ petition is dismissed. ———