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2017 DIGILAW 224 (ALL)

STATE OF U. P. v. PHAGOO RAM

2017-01-17

RAVINDRA NATH MISHRA II, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Heard learned Standing Counsel for petitioner and perused the record. 2. This writ petition under Article 226 of the Constitution has arisen from judgment and order dated 23.7.2014 passed by U.P. State Public Service Tribunal, Lucknow (hereinafter referred to as the “Tribunal”) allowing Claim Petition No. 443 of 2013 and setting aside order dated 16.8.2012 passed by Competent Authority on claimant’s-respondent No. 1 representation and rejecting same. Tribunal has held that claimant-respondent No. 1 was entitled for revised pay-scale w.e.f. 1.1.2006 and arrears of pension has to be computed accordingly. 3. Learned Standing Counsel appearing for petitioner submitted that claimant-respondent No. 1 was suspended and in view of departmental inquiry culminated in order of punishment dated 19.6.2009 whereby respondent No. 1 was placed at the bottom of pay-scale of Rs. 8000-13500/- and in view of relevant Government orders, he was not entitled for benefit of revised pay-scale w.e.f. 1.1.2006. Reference is made to Para 5(1)(d) Note 3 of Government Order dated 8.12.2008, which reads as under: ^^fVIi.kh&3 fuyfEcr ljdkjh lsod orZeku osrueku ds vk/kkj ij thou fuokZg HkRrk izkIr djrk jgsxk rFkk iqujhf{kr osru lajpuk esa mldk osru yfEcr vuq'kklukRed dk;Zokgh ij vfUre fu.kZ; ds v/khu gksxkA** “Note-3 Suspended Government servant shall continue to receive subsistence allowance in same pay-scale in which he was working but benefit of revised pay-scale shall be subject to final decision in departmental inquiry.” (English translation by the Court) 4. He further submitted that while passing order under Fundamental Rule 54-B period of suspension was declared to be counted for the purpose of pension and other retiral benefits but that will not mean that it was declared to count as on duty and here also Tribunal has erred in law. 5. However, we find no force in either of submission advanced by learned Standing Counsel. Admittedly oral inquiry concluded with submission of inquiry report on 7.4.2005 but petitioner took more than four years in passing order of punishment. Pay-scale in which respondent No. 1 was working was not changed and only he was placed at the bottom of pay-scale. There is no provision shown to us which declares that a Government servant, who is under suspension on the date of implementation of revised pay-scale, or departmental inquiry is going on, benefit of revised pay-scale would stand denied if he is punished subsequently. There is no provision shown to us which declares that a Government servant, who is under suspension on the date of implementation of revised pay-scale, or departmental inquiry is going on, benefit of revised pay-scale would stand denied if he is punished subsequently. On the contrary aforesaid provision contained in Government Order dated 8.12.2008 only declares that benefit of revised pay-scale shall be subject to final decision in departmental inquiry and till then suspended Government servant shall continue to receive subsistence allowance in same pay-scale in which he was working. This Government order only defers the benefit of revised pay-scale for the purpose of subsistence allowance till final order is passed in departmental inquiry. In case punishment of reduction in rank is imposed, benefit of revised pay-scale would depend on such punishment but in the present case pay-scale has not been changed and respondent No. 1 was only placed at the bottom of pay-scale. That be so, punishment order could have been given effect from the date it has been passed, i.e., 19.6.2009. 6. It is well established that an order of punishment is not retrospective and it is effective from the date it has been passed. In absence of any provision denying benefit of revised pay-scale altogether, to a Government servant, who is under suspension on the date of implementation of revised pay-scale, we do not find that on the basis of punishment order dated 19.6.2009 benefit of revised pay-scale could have been denied to respondent No. 1 altogether. Tribunal, therefore, has rightly directed to give benefit of revised pay-scale w.e.f. 1.1.2006 and difference will have to be paid to respondent No. 1. The period of suspension has already been held to count for the purpose of pension. 7. Now coming to the question of treating period of suspension as on ‘’duty’ and not to confine to pensionary benefit, we find that under Fundamental Rule 54-B, Competent Authority has to take a decision whether period of suspension will count on duty or not. Once it declares that period of suspension will be treated to be qualifying service for the purpose of pension, meaning thereby it is treated to be continuous service on duty for the reason that qualifying service also means continuance in service. Once it declares that period of suspension will be treated to be qualifying service for the purpose of pension, meaning thereby it is treated to be continuous service on duty for the reason that qualifying service also means continuance in service. Therefore, there is no substantial difference between the fact that period of suspension is declared to be qualifying service for retiral benefits or duty on service since both have same effect. 8. We, therefore, find no error apparent on the face of record warranting interference in the order of Tribunal. 9. The writ petition lacks merit and is dismissed.