Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 796 (ALL)

ASHA DEVI v. STATE OF U. P.

2013-03-13

ANIL KUMAR

body2013
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri B.R. Singh, learned counsel for petitioner, learned State counsel and perused the record. Facts of the present case are that initially one Sri Brij Nath Ram working on the post of Head Constable while he was posted at Police Station Kamlapur, District Sitapur, an FIR has been lodged in respect to the incidence under Section 323/224 IPC and Section 29 of the Police Act on the ground that one Sri Tahsildar Singh, accused in a Gangster Act has run away from the police custody. 2. Subsequently, in the said incidence, the petitioner was placed under suspension by order dated 21.12.2000, revoked by order dated 12.11.2001 passed by Superintendent of Police, Sitapur. In the said matter, he filed a Writ Petition No. 1347 (SS) of 2006 (Brij Nath Ram v. State of U.P. and others), disposed of by means of the order dated 17.4.2006, relevant portion quoted as under : “Heard Sri Sajiv Pandey, holding brief of Sri S.P. Tripathi, learned counsel for the petitioner and the learned Standing Counsel. The grievance of the petitioner is that vide order dated 21.12.2000 he was placed under suspension under Rule 17(1)(a) of U.P. Subordinate Police Services (Punishment and Appeal) Rules, 1991 and for administrative purposes was attached at the police line. Subsequently on 17.11.2001 he was reinstate and vide order 7.5.2002 he was transferred from Sitapur to Ambedkar Nagar. In pursuant thereto he joined at Ambedkar Nagar. In the order of reinstatement it is mentioned that the order of revocation of suspension shall not prejudice the enquiry likely to be initiated against the petitioner. It is stated that no charge-sheet has been issued to the petitioner and no disciplinary enquiry has been conducted till date. It is further submitted that ins spite of several representations made before respondent NO. 3, copies whereof have been filed as Annexure Nos. 6 and 7 to the writ petition neither full salary of the period of suspension has been paid, nor any other benefits i.e. Promotional pay scale have been allowed to him. The learned Standing counsel submits that respondent No. 3 shall look into the grievance of the petitioner and representation of the petitioner, if any, pending before him, shall be considered and decided in accordance with law expeditiously. The learned Standing counsel submits that respondent No. 3 shall look into the grievance of the petitioner and representation of the petitioner, if any, pending before him, shall be considered and decided in accordance with law expeditiously. Looking to the facts and circumstances, the writ petition is finally disposed of with a direction to respondent No. 3 to consider and decide the petitioner’s representations dated 25.11.2005 (Annexure-6 to the writ petition) and dated 25.1.2006 (Annexure-7 to the writ petition) by a speaking order within a period of six weeks form the date of production of a certified copy of this order alongwith copies of the aforesaid representations. The petitioner is at liberty to file a further detail representation alongwith certified copy of this order. In case the petitioner is found entitled to get any amount, the respondents shall take steps for payment of such amount within two months thereafter.” 3. In pursuance to the same, the impugned order dated 28.5.2008 has been passed by Superintendent of Police, operative portion quoted as under : ÞÁdj.k esa eq[; vkj{kh c`tukFk dks tkapksijkar nks"kh ik;k x;k rFkk ?kVuk ls lEcafèkr iathÑr mDr vfHk;ksx vHkh fopkjkèkhu gSA ,slh ifjfLFkfr esa eq[; vkj{kh c`tukFk jke dh budh fuyacu vof/k fnuk¡d 21-12-2000 ls 11-11-2001 rd dh vof/k esa fn, x, thou fuokZg HkRrs ds vfrfjDr dksbZ vo'ks"k osru] HkRrs vkfn ugha gksxhA fuyacu vof/k dh x.kuk isa'ku] inksfUufr ,oa vodk'k vkfn esa dh tk,xhAÞ 4. Aggrieved by the said order, Sri Brij Nath Ram has filed the present writ petition before this Court. During the pendency of the present case, he died and substituted by hi legal representative/Smt. Asha Devi as petitioner No. 1/1. Learned counsel for petitioner while assailing the impugned order submits that in which FIR was lodged which is the basis of placing the petitioner under suspension neither in the said FIR nor in the charge-sheet submitted, thereafter petitioner’s name find place. Learned counsel for petitioner while assailing the impugned order submits that in which FIR was lodged which is the basis of placing the petitioner under suspension neither in the said FIR nor in the charge-sheet submitted, thereafter petitioner’s name find place. Learned counsel for petitioner further submits that till the petitioner was alive, no disciplinary proceedings has been initiated against him in the incidence in question in which he has been placed under suspension, so keeping in view the said fact, the action on the part of opposite parties thereby not giving the salary excluding subsistence allowance to the petitioner for the period 21.12.2000 to 12.11.2001 and the impugned order dated 28.5.2008 is an exercise which is arbitrary in nature, liable to be set aside. 5. I have heard learned counsel for parties and perused the record. As per admitted facts of the case are that the petitioner was placed under suspension by an order dated 21.12.2000, revoked by an order dated 12.11.2001. Further, in the instant case in which he was placed under suspension an FIR was also lodged, on 19.12.2000 (Annexure 2 in which a charge-sheet (Annexure 5) has been filed in which name of the petitioner does not find place. 6. Further, till the death of the petitioner, no disciplinary proceeding has been initiated in the matter in which he has been placed under suspension. 7. In view of the said facts as well as the provisions as provided under Sub-Rule 2 of Rule 54-B of the U.P. Fundamental Rules (Financial Hand Book Volume II (parts 2 to 4), which is quoted as under : “Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or Court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.” The impugned order 28.5.2008 (Annexure 1) passed by O.P. No. 3 that the petitioner (deceased/Sri Brij Nath Ram) is not entitled for salary excluding substantial allowance for the period 21.12.2000 to 12.11.2001 is contrary, liable to be set aside. For the foregoing reasons, the impugned order dated 28.5.2008 (Annexure 1) passed by O.P. No. 3/Superintendent of Police, Sitapur is set aside to the extent that deceased/Sri Brij Nath Ram is not entitled for salary excluding substantial allowance for the period 21.12.2000 to 12.11.2001, the said amount shall be paid to Smt. Asha Devi (petitioner No. 1/1) With the above observations, the writ petition is allowed. ——————