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2017 DIGILAW 1839 (ALL)

R. K. GUPTA v. STATE OF U. P.

2017-08-08

A.P.SAHI, RAJIV LOCHAN MEHROTRA

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JUDGMENT : 1. Heard learned counsel for the petitioner and learned Standing Counsel. 2. The petitioner while working as a Surgeon in the Community Health Centre at Kasya, District Kushinagar was subjected to a disciplinary proceeding on account of his negligence in duties. The petitioner was ultimately placed under suspension and in the disciplinary proceedings, after enquiry, he came to be awarded a punishment of withholding two increments with cumulative effect on permanent basis and he was also awarded a censure entry. 3. It is an undisputed fact that the petitioner was suspended on 2.5.2001 and the punishment was awarded to him on 29.9.2005. 4. The case of the petitioner is that he was never informed about the punishment order dated 29.9.2005 nor it was ever served on him. This fact is stated in paragraph 18 of the writ petition to which a reply has been given in paragraph 14 of the counter affidavit where no denial has been made of the aforesaid averment of the petitioner. Apart from this, the petitioner in paragraph 19 of the writ petition has categorically stated that he made efforts for knowing about the outcome of the disciplinary proceedings through several letters but of no avail. This paragraph has been replied in paragraph 15 of the counter affidavit by stating that it need no comments and the same is a matter of record. 5. It is, therefore, established on the basis of the pleadings that the punishment order dated 29.9.2005 was not communicated to the petitioner at all whereby he was awarded punishment and he became entitled for being reinstated as his suspension order came to an end with the passing of the final order of punishment. 6. The aforesaid fact is further fortified by another development, namely, after the petitioner had failed to get a response about the outcome of the disciplinary proceedings as stated above, he filed Civil Misc. Writ Petition No. 43012 of 2009 that was disposed of on 20th of August 2009 with a direction to the authorities to conclude the disciplinary proceedings, which could not continue indefinitely. The order dated 20.8.2009 passed in that writ petition with the directions contained therein is extracted hereunder:- "Order of suspension is not a punishment. Normally such order is passed by an authority to maintain the independence of the enquiry. The order dated 20.8.2009 passed in that writ petition with the directions contained therein is extracted hereunder:- "Order of suspension is not a punishment. Normally such order is passed by an authority to maintain the independence of the enquiry. Therefore, Court can only interfere with the order of suspension in the rarest of the rare cases where it appears to be apparently punitive or mala-fide in nature or without jurisdiction. This is not such a case so that we should interfere with it. Hence, no order is passed with regard to order of suspension. However, non-interference with the order of suspension will not entitle the authority to keep the enquiry proceeding pending indefinitely, therefore, such enquiry proceeding will be concluded preferably within a period of six weeks from the date of communication of this order. Thus, the writ petition is disposed of. No order is passed as to costs." 7. It appears, according to the case of the respondents, that the payment of salary for the period of suspension was still being awaited and after the direction of the High Court dated 20.8.2009, the respondents proceeded to pass a fresh order on 19.3.2010 whereby they have recorded the aforesaid fact of punishment order having been passed on 29.8.2005 and further have gone to record that the petitioner came to be reinstated on 10.12.2009. The said order nowhere explains as to why the petitioner was not reinstated for four years and what action had been taken in this regard even if the petitioner was voluntarily absent. To the contrary, the period of suspension was taken to be the period for which the petitioner was not found entitled to payment of salary and, consequently, the impugned order was passed which is now under challenge in the present writ petition. 8. The counter affidavit in paragraph 18 strangely enough proceeds to recite that after the petitioner moved a representation on 18.12.2009, it was decided that the petitioner should be awarded a major punishment after closing the disciplinary proceedings against the petitioner. The aforesaid averment in the counter affidavit is preposterous as it has not taken notice of the fact that the punishment had already been awarded, according to the respondents on 29.9.2005. 9. We, therefore, find that entire stand taken in the counter affidavit is not only untenable but also amounts to misleading this Court. The aforesaid averment in the counter affidavit is preposterous as it has not taken notice of the fact that the punishment had already been awarded, according to the respondents on 29.9.2005. 9. We, therefore, find that entire stand taken in the counter affidavit is not only untenable but also amounts to misleading this Court. We are surprised as to why the petitioner was not reinstated if the final punishment order had already been passed on 29.9.2005. The petitioner cannot be treated to be under suspension after 29.9.2005 which is the date of the punishment order. Thus, the date of reinstatement which is 10th of December 2009 cannot be treated to be a date from which the petitioner would be entitled to salary. In our considered opinion, once the petitioner had been reinstated and was entitled to continue with effect from 29.9.2005, then withholding of his salary for the period thereafter is absolutely unjustified. The impugned order dated 19.3.2010, therefore, would apply only with regard to the period of suspension which stood terminated on 29.9.2005. The petitioner would be entitled to his full salary after 29.9.2005. 10. The order dated 19th March 2010 stands modified to the aforesaid extent. The petitioner shall be paid arrears of salary within three months from today. Any delay caused would entail payment of interest at the rate 10% on the delayed payment. 11. The writ petition is accordingly allowed.