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2017 DIGILAW 439 (ALL)

DayaShanker Sharma v. State of U. P.

2017-02-07

MANOJ KUMAR GUPTA

body2017
JUDGMENT Manoj Kumar Gupta,J. Heard learned counsel for the petitioner, learned standing counsel for respondent no.1 and Sri Arun Kumar for respondent no.2. With their consent, this writ petition is being disposed of finally, as learned counsel for the parties state that they do not wish to file any further affidavits. The petitioner is an Assistant Teacher in PurvaMadhyamikVidyalaya, Bairakhas, Bhadohi, which is an institution being run by the Basic ShikshaParishad, U.P., Allahabad. By order dated 24 July 2015, the petitioner was placed under suspension on the ground that the school building which was being constructed had fallen down on 23 July 2015 and in which one mason died on the spot and three labours were injured. The petitioner was the Incharge under whom the project was being executed. It appears from the record that a first information report was lodged in relation to the aforesaid incident. The petitioner was kept under suspension for a considerable period. Ultimately, a report was submitted by the committee comprising of Sub Divisional Magistrate, Aurai, District Bhadohi, Assistant Engineer, R.E.S., Bhadohi, Executive Engineer, PWD and Chief Development Officer, Bhadohi which exonerated the petitioner of the charges levelled against him. Even after submission of the said report, no final decision was being taken by the authorities in relation to the suspension of the petitioner. Ultimately, by order dated 20.5.2016 passed by the erstwhile District Basic Education Officer, Bhadohi, the suspension was revoked and the petitioner was reinstated in service. It seems that the petitioner was not paid full salary for the period he was under suspension. Consequently, the petitioner submitted a representation in that regard before the District Basic Education Officer, Bhadohi. The District Basic Education Officer, by impugned order dated 17 June 2016, accepted the request of the petitioner for payment of full salary during the suspension period provided he files an affidavit before the District Basic Education Officer to the effect that he will reconstruct the class room which had fallen down, within the period of one month from the date of receipt of the arrears of salary. Aggrieved thereby, the instant writ petition has been filed. Aggrieved thereby, the instant writ petition has been filed. Counsel for the petitioner submitted that in the enquiry it was found that the charges are not proved and no punishment having been awarded to the petitioner in the disciplinary proceedings, the District Basic Education Officer could not have imposed such a condition for payment of full salary to the petitioner. On the other hand, learned counsel appearing on behalf of District Basic Education Officer, the second respondent, contended that the order dated 20.5.2016 revoking the suspension was not a final order and disciplinary proceedings are still pending. However, this Court found the stand taken by the second respondent to be in conflict with the orders which have been passed by his predecessor. Therefore, the second respondent was directed to clarify the position by filing his personal affidavit. In pursuance of the aforesaid direction of this Court, the second respondent has filed his personal affidavit. Paragraphs 5, 6 and 7 of the said affidavit are to the following effect : - "5. That the Investigating Officer of the Case Crime No.121 of 2015 submitted his Final Report in the aforesaid case. The Final Report was accepted by the order of the Additional Chief Judicial Magistrate, Gyanpur dated 16.03.2016 in the Case No. 74 of 2016 registered before him. The Senior Prosecuting Officer, Bhadohi in his report dated 19.05.2016 after considering the aforesaid order in the criminal case has observed that the charges against the petitioner are not established. The petitioner was reinstated in service by the order of the then District Basic Education Officer, Bhadohi dated 20.05.2015, after considering the Enquiry Report of Sri Anil Kumar Singh, Block Education Officer, Abholi and the Report of the Senior Prosecuting Officer, Bhadohi dated 19.05.2016. The records do not show that any further enquiry is being conducted against the petitioner. 6. That the order dated 17.06.2016 referred to in the paragraph under reply had been passed by his predecessor-in-office, Dr. Satya Prakash Tripathi. The perusal of the order dated 17.06.2016 shows that it has been passed on the application submitted by the petitioner claiming arrears of salary for the period he was under suspension. 7. That the records relating to the disciplinary proceedings initiated against the petitioner does not show that any further enquiry or fresh enquiry was ordered after 20.05.2016. The perusal of the order dated 17.06.2016 shows that it has been passed on the application submitted by the petitioner claiming arrears of salary for the period he was under suspension. 7. That the records relating to the disciplinary proceedings initiated against the petitioner does not show that any further enquiry or fresh enquiry was ordered after 20.05.2016. It appears that the order dated 17.06.2016 had been passed supplementing the order dated 20.05.2016." Sri Arun Kumar, learned counsel appearing on behalf of the second respondent has also stated before the Court that after passing of the order dated 20.5.2016, no further proceedings is pending in relation to the disciplinary enquiry. He has made a categorical statement before this Court that the petitioner has already been reinstated in service after accepting the report of the Inquiry Officer. It is also stated that a Final Report has been submitted in the criminal investigation that was conducted by the police and the Final Report was accepted by the Additional Chief Judicial Magistrate in Case No. 74 of 2016. Thus, it is clear from the aforesaid facts that as on date, the suspension of the petitioner has been revoked and no further proceedings are pending against him. In case, no disciplinary proceedings are pending against the petitioner nor there is any order by the disciplinary authority imposing any kind of punishment, there could be no justification in compelling the petitioner to furnish an undertaking in terms of what has been stipulated in the order dated 17.6.2016. Sri Arun Kumar, learned counsel appearing on behalf of the second respondent very fairly stated that the District Basic Education Officer shall pass a fresh order in relation to the request of the petitioner for payment of full salary to him during the suspension period. Accordingly and in view of the above, the impugned order dated 17 June 2016 passed by the second respondent, is hereby quashed. The second respondent is directed to pass a fresh order in regard to the claim of the petitioner for payment of full salary to him during the suspension period, in accordance with law, expeditiously and preferably within a period of 2 months from the date of production of a certified copy of this order. The writ petition is allowed to the extent indicated above.