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2016 DIGILAW 1759 (ALL)

VINOD SHANKAR DUBEY v. STATE OF U. P.

2016-05-09

PRABHAT CHANDRA TRIPATHI, TARUN AGARWALA

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JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner is a Government servant. A First Information Report being Case Crime No.33 of 2009, under Sections 323, 308, 504 and 506 I.P.C. was lodged against him on the basis of which the petitioner was arrested and was sent to judicial custody on 24.4.2009. The petitioner was eventually enlarged on bail by an order dated 11.6.2009. The petitioner submitted his joining report on 16.6.2009 before the Chief Medical Officer, Sonbhadra and requested that he may be permitted to join his duty. The petitioner was made to run from pillar to post and, eventually by an order dated 8.1.2010, the Secretary, Medical and Health, Government of U.P. passed an order declaring the period spent from 24.4.2009 to 15.6.2009 in judicial custody as a deemed suspension. Based on the said order, the petitioner started working from 13.1.2010. 2. The petitioner thereafter made an application dated 7.6.2010 praying for release of his salary for the period from 16.6.2009 to 13.1.2010. No orders were passed by the respondents. In the meanwhile, the petitioner was acquitted by the trial Court by an order dated 22.9.2010 in the aforesaid criminal case that was lodged against him. Based on this acquittal, the petitioner again made a fresh application praying for salary for the period 24.4.2009 to 12.1.2010. The said application was eventually rejected by an order dated 23.3.2012 holding that since the petitioner was under deemed suspension, he was not entitled for any salary. The petitioner, being aggrieved by the said order, has filed the present writ petition. 3. The stand of the respondents is the same as depicted in the impugned order, namely, that since the petitioner was under deemed suspension, no salary was payable even for the period after he was enlarged on bail till the actual date of joining. 4. The services of the petitioner is governed by Uttar Pradesh Government Servant (Discipline And Appeal) Rules, 1999 (hereinafter referred to as the Rules). Rule 4 of the Rules provides various contingencies when a Government servant could be placed under suspension. Rule 4(3)(a) provides that a Government servant shall be deemed to be under suspension if he is detained in custody for a period exceeding forty-eight hours. Rule 4 of the Rules provides various contingencies when a Government servant could be placed under suspension. Rule 4(3)(a) provides that a Government servant shall be deemed to be under suspension if he is detained in custody for a period exceeding forty-eight hours. In the light of this provision, it is is apparently clear that when the petitioner was placed in judicial custody on 24.4.2009 for more than forty-eight hours, he was deemed to remain under suspension. Rule 4(9) of the Rules provides that a Government servant placed under suspension or deemed to have been placed under suspension, would be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume II, Parts II to IV. In view of this provision, the moment a Government servant is deemed to be placed under suspension, he would be entitled to subsistence allowance and consequently, the order dated 23.2.2012 denying the subsistence allowance for the period under suspension was unjustified. 5. The petitioner was acquitted from a criminal case by a Court of law. No appeal has been filed by the State Government against his acquittal. Once a Government servant is acquitted and in the absence of any department proceeding being initiated against him, it is imperative for the Department to grant full salary for the period in question. In similar circumstances in Dr. Ram Khelawan Singh v. State of U.P. and another, 2008(8) ADJ 324 (DB), the Government servant was acquitted from the criminal charge. The Court held that the Government servant should be given all benefits of service including the arrears of salary during the suspension period. We are in complete agreement with the said decision and hold that once the petitioner is acquitted from criminal charges and in the absence of any departmental proceedings initiated against him, the petitioner would be entitled for full salary for the period when he was deemed to remain under suspension. 6. The petitioner remained under suspension from 24.4.2009 to 15.6.2009. The petitioner submitted his joining on 16.6.2009, but was not allowed to join and eventually by an order dated 8.1.2010, the petitioner was allowed to join. This period, in our opinion, would be treated to have been spent on duty as “compulsorily waiting” as provided in Rule 9(6) (b)(iii) of Fundamental Rules. For facility, the said provision is extracted hereunder: “Rule 9(6)(a)Duty includes— ................................................. This period, in our opinion, would be treated to have been spent on duty as “compulsorily waiting” as provided in Rule 9(6) (b)(iii) of Fundamental Rules. For facility, the said provision is extracted hereunder: “Rule 9(6)(a)Duty includes— ................................................. (b) The Governor may issue orders declaring that, in circumstances similar to those mentioned below a Government servant may be treated as on duty: ............................................... (iii) When a Government servant after reporting for duty has compulsorily to wait for taking charge of a post for which he is in no way responsible, during the interval between the date of such report and the date on which he takes charge of his duties.” 7. In view of this provision, the petitioner was not at fault for not being allowed to join and perform his duty. The entire responsibility is upon the Department for not passing the order earlier. We are of the opinion that this waiting period from 16.6.2009 till the actual date of joining would be treated to have been spent on duty as per aforesaid Rule 9(6)(b)(iii) of the Fundamental Rules and consequently, would be entitled for salary. Nothing has been brought on record to indicate that the Governor has issued any instructions contrary to the aforesaid provision. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The petitioner would be entitled for salary for the period from 24.4.2009 to 13.1.2010. The said amount shall be paid to the petitioner within six weeks from today.