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2023 DIGILAW 2253 (ALL)

Pradeep Kumar v. State of U. P.

2023-10-04

ABDUL MOIN

body2023
JUDGMENT : ABDUL MOIN, J. 1. Heard learned counsel for the petitioner and learned Standing counsel appearing on behalf of the State-respondents. 2. With the consent of learned counsel appearing for the contesting parties, the instant writ petition is being finally decided. 3. Instant writ petition has been filed praying for quashing of the order dated 22.06.2023, a copy of which is Annexure 1 to the writ petition as well as praying for a mandamus commanding the respondents to pay full salary to the petitioner during his suspension period from 06.09.2011 till 24.10.2016. 4. The case set forth by the petitioner is that while the petitioner was working as Assistant Teacher, a First Information Report was lodged against the petitioner in the year 2011 registered as Case Crime No. 528 of 2011 under Section 498-A, 304 B I.P.C and 3/4 of the Dowry Prohibition Act. The petitioner was arrested on 07.09.2011 and thereafter enlarged on bail on 20.09.2016. His arrest entailed the respondents to place the petitioner under deemed suspension w.e.f. 06.09.2011 which continued till 14.11.2016. No departmental proceedings were initiated against the petitioner. It is contended that the petitioner has subsequently been acquitted in the criminal case vide judgment dated 11.11.2022, a copy of which is Annexure 7 to the writ petition. It is further contended that initially the petitioner had filed a W.P. No. 22263 of 20147 in Pradeep Kumar vs. District Inspector of Schools and Others praying for being paid subsistence allowance. The writ Court vide order dated 18.09.2017, a copy of which is Annexure 4 to the writ petition disposed of the writ petition with the direction to the District Inspector of Schools concerned to examine the claim of the petitioner for payment of subsistence allowance. 5. In pursuance thereof, an order dated 25.05.2018, a copy of which is Annexure 5 to the writ petition, was passed by the District Inspector of Schools whereby the petitioner was found entitled for payment of subsistence allowance but the same was not paid to him. 5. In pursuance thereof, an order dated 25.05.2018, a copy of which is Annexure 5 to the writ petition, was passed by the District Inspector of Schools whereby the petitioner was found entitled for payment of subsistence allowance but the same was not paid to him. Subsequent thereto, another order dated 09.06.2020, a copy of which is Annexure 6 to the writ petition, was passed whereby considering that the petitioner was deemed to have been placed under suspension on 06.09.2011 and the deemed suspension came to an end on 14.11.2016 as such, it was provided that the petitioner would be paid subsistence allowance in accordance with Regulation 53 Part II of Financial Handbook. Despite the aforesaid order, the subsistence allowance was not paid to the petitioner for the aforesaid period. 6. Being aggrieved, the petitioner filed Writ (A) No. 6818 of 2022 before this Court praying for being granted subsistence allowance which is said to be still pending for consideration before this Court. 7. During the pendency of the aforesaid petition, the respondents have passed the order impugned dated 22.06.2023, a copy of which is Annexure 1 to the writ petition, whereby the claim of the petitioner for subsistence allowance has been negated on the ground that as per rules, he has not been found entitled for payment of subsistence allowance. 8. Being aggrieved, the instant petition has been filed. 9. Contention of learned counsel for the petitioner is that when earlier, the respondents vide the orders dated 25.05.2018 and 09.06.2020 found the petitioner entitled for being paid subsistence allowance for the deemed period of suspension from 06.09.2011 to 14.11.2016 consequently there cannot be any occasion for the respondents to have negated the claim of the petitioner by means of the impugned order dated 22.06.2023 by a non-speaking order and by simply indicating that the petitioner has not been found legally entitled for the payment of subsistence allowance without indicating the reason as to why he has not found entitled for the said payment. 10. The other argument is that as the petitioner was kept away from work on account of his deemed suspension for the period from 06.09.2011 to 14.11.2016 and subsequently the petitioner has been acquitted by the criminal Court on 11.11.2022 consequently he would be entitled for entire salary of the aforesaid period. 11. 10. The other argument is that as the petitioner was kept away from work on account of his deemed suspension for the period from 06.09.2011 to 14.11.2016 and subsequently the petitioner has been acquitted by the criminal Court on 11.11.2022 consequently he would be entitled for entire salary of the aforesaid period. 11. On the other hand, a preliminary objection has been raised by learned Standing Counsel that as Writ (A) No. 6818 of 2022 for payment of subsistence allowance is still pending for consideration before this Court consequently, second writ petition praying for the same relief cannot be filed by the petitioner. It is also contended that the petitioner would not be entitled for the entire salary for the period of suspension as the principle of no work-no pay would be applicable and the petitioner having been deemed to have been placed under suspension on account of criminal case being lodged against him for the aforesaid period from 06.09.2011 to 14.11.2016 he would not be entitled for payment of full salary to him. 12. Heard the learned counsels for the parties and perused the record. 13. From a perusal of record it emerges that while the petitioner was working as an Assistant Teacher, a criminal case was registered against him under Section 498-A, 304B I.P.C. and 3/4 of the Dowry Prohibition Act. The petitioner was arrested on 07.09.2011 and was deemed to have been placed under suspension on 06.09.2011 which deemed suspension continued right till 14.11.2016 when the petitioner was enlarged on bail on 20.09.2016 and reported for duty. The criminal case lodged against the petitioner has ended in an acquittal vide judgment and order dated 11.11.2022. 14. As the petitioner was not paid subsistence allowance for the period from 06.09.2011 to 14.11.2016, he approached this Court by filing Writ (A) No. 22263 of 2017 which was disposed of vide order dated 18.09.2017 directing the District Inspector of Schools to examine the claim of the petitioner. In pursuance thereof, the District Inspector of Schools passed an order dated 25.05.2018, a copy of which is Annexure 5 to the writ petition, whereby the petitioner was found entitled for being paid subsistence allowance for the aforesaid period of suspension. In pursuance thereof, the District Inspector of Schools passed an order dated 25.05.2018, a copy of which is Annexure 5 to the writ petition, whereby the petitioner was found entitled for being paid subsistence allowance for the aforesaid period of suspension. This was followed by another order dated 09.06.2020, a copy of which is Annexure 6 to the writ petition, whereby the District Inspector of Schools held the petitioner as entitled for being paid subsistence allowance for the aforesaid period of suspension under the provisions of the Financial Handbook. Even thereafter when the subsistence allowance was not paid to the petitioner, he was compelled to file Writ (A) No. 6818 of 2022 praying for a mandamus commanding the respondents to pay the subsistence allowance for the aforesaid period. During the pendency of the petitioner, the respondents have negated the claim of the petitioner vide order dated 22.06.2023 by indicating that legally the petitioner is not entitled for payment of subsistence allowance for the aforesaid period. 15. No reasons are forthcoming from the order impugned as to why, despite earlier the District Inspector of Schools having found the petitioner entitled for being paid subsistence allowance vide orders dated 25.05.2018 and 09.06.2020, the respondents have done a volte face and have not found the petitioner entitled “legally” for payment of subsistence allowance. 16. Needless to mention that it is settled proposition of law that every order has to stand on its own legs. The mentioning of reasons in an order entails an order to stand on its own legs. As already indicated above, no reasons are forthcoming from the orders impugned as to what has prevailed upon the respondents to not pay the subsistence allowance to the petitioner for the deemed period of suspension despite having earlier found the petitioner entitled for payment of subsistence allowance and thus, the order being patently non-speaking and without indicating any reasons and also being contrary to the earlier orders passed by the District Inspector of Schools himself dated 25.05.2018 and 09.06.2020, merits to be quashed on this ground alone. 17. 17. As regard the preliminary objection raised by the learned Standing counsel, the mere fact that the petitioner has already filed a writ petition praying for a mandamus for being paid subsistence allowance which is pending for consideration would not entail the dismissal of this petition inasmuch as during the pendency of the earlier petition itself, the respondents have rejected the claim of the petitioner vide the order impugned. It was open for the petitioner to have either amended the earlier writ petition by challenging the order impugned dated 22.06.2023 or to file a fresh petition challenging the order. The petitioner has chosen the second option of challenging the order impugned by means of the instant petition. As such, the preliminary objection raised by learned Standing Counsel is rejected. 18. The next question which arises is the claim of the petitioner for payment of full salary for the period of deemed suspension from 06.09.2011 to 14.11.2016. 19. Provision for deemed suspension is contained in Sub-Rule (3)(a)(b) of Rule 4 of the Uttar Pradesh Government Servant (Disciplinary and Appeal) Rules, 1999 (hereinafter referred to as “Rules 1999”). For the sake of convenience, Sub-Rule (3)(a)(b) of Rule 4 of Rules, 1999 is reproduced as under: (3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours. (b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it. 20. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it. 20. A perusal of Sub-Rule (3)(a)(b) of Rule 4 of Rules, 1999 would indicate that a Government Servant shall be deemed to have been placed or continue to be placed under suspension by an order of the Authority to competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours. The government Servant shall after release from the custody, inform in writing to the Competent Authority about his detention and may also make a representation against deemed suspension and the Competent Authority, after considering the representation, may pass appropriate order continuing the deemed suspension from the date of release from custody or invoking or modifying it. 21. When the aforesaid provisions of Sub-Rule (3)(a)(b) of Rule 4 of Rules, 1999 are seen in the context of the facts of the instant case, it emerges that as the petitioner had been arrested on 07.09.2011 in the criminal case which had been lodged against him and he was, thereafter, enlarged on bail on 20.09.2016. Thus, the petitioner would be deemed to be placed under suspension with effect from his detention i.e. 06.09.2011 which suspension order was revoked with the reinstatement. of the petitioner after he was bailed out on 14.11.2016. The deemed suspension arose on account of the petitioner being put in jail. The suspension order was not passed on account of any departmental inquiry being contemplated or pending against the petitioner meaning thereby that the suspension of the petitioner was on account of criminal case being lodged against the petitioner and he being put behind the bars. After the petitioner was released, he was re-instated in service. The petitioner claims full salary for the period of deemed suspension on account of he having been acquitted in the criminal case vide judgment dated 11.11.2022. 22. After the petitioner was released, he was re-instated in service. The petitioner claims full salary for the period of deemed suspension on account of he having been acquitted in the criminal case vide judgment dated 11.11.2022. 22. Whether an employee would be entitled for being paid full salary for the period of his suspension which was on account of being involved in a criminal case was initially considered by the Apex Court in the case of Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board and Another, (1996) 11 SCC 603 . Therein the Apex Court was seized of a matter where an employee, on account of his conviction under Section 302 I.P.C. has been dismissed him from service. The employee was later acquitted of the offence and thereafter, on directions being issued by the High Court, the employee was re-instated in service but denied back wages. The denial of back wages was upheld by the Apex Court on the ground that the question of back wages could be considered only if the employer had taken action by way of disciplinary proceedings and the action was found to be unsustainable in the eyes of law and he was unlawfully prevented from discharging the duties. The Apex Court was of the view that as in the case the employee had involved himself in a crime, though he was later acquitted , he had disabled himself from rendering service on account of conviction and incarceration in jail. Under these circumstances, the employee was not held entitled for payment of back wages. 23. For the sake of convenience, the relevant observations of the Apex Court in the case of Ranchhodji Chaturji Thakore (supra) are reproduced below: “The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the situation. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference.” 24. Later, the Apex Court in the case of Union of India and Others vs. Jaipal Singh, (2004) 1 SCC 121 considered its earlier judgment in the case of Ranchhodji Chaturji Thakore (supra) and held that if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on an appeal, the department cannot in any manner be faulted with for having kept him out of service and consequently, the employee upon being reinstated in service, would not be entitled for payment of back wages for the period he remained out of service. 25. For the sake of convenience, the relevant observations of the Apex Court in the case of Jaipal Singh (supra) are reproduced below: “4.........On going through the same, we are in respectful agreement with view taken in (1996) 11 SCC 603 (supra). If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well......” 26. Both the judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore (supra) and Jaipal Singh (supra) have been considered recently by the Apex Court in the case of Raj Narain vs. Union of India, (2019) 5 SCC 809 wherein the Apex Court has again been of the view that in case the suspension would have been in contemplation of discilinary proceedings which were subsequently dropped, only then would an employee concerned be entitled for full wages. 27. For the sake of convenience, the relevant observations of the Apex Court in the case of Raj Narain (supra) are reproduced below: “5. This Court in Ranchhodji Chaturji Thakore (supra) considered the case of an employee who sought back wages for the period he was kept out of duty during the pendency of a criminal case for his involvement in an offence under Section 302, IPC. The claim of the Petitioner therein was that he was entitled to full wages on his acquittal by the Criminal Court. This Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to findings recorded in a departmental enquiry. In the event of the dismissal order being set aside by the Court, the delinquent employee would be entitled to claim back wages as he was unlawfully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. The employee involved in a crime has disabled himself from rendering his services on account of his incarceration in jail. Subsequent acquittal by an Appellate Court would not entitle him to claim back wages. 6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others vs. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala-fide or with vexatious intent. In all other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.” 28. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.” 28. From a perusal of the judgments in the case of Ranchhodji Chaturji Thakore (supra), Jaipal Singh (supra) and Raj Narain (supra) it thus emerges that it is only if the petitioner herein would have been placed under suspension on the ground of disciplinary proceedings which may have resulted subsequently in his exoneration on culmination of disciplinary proceedings that the petitioner might have been entitled for payment of full salary for the period of suspension. However, no disciplinary proceedings were ever initiated against the petitioner rather there was deemed suspension on account of the petitioner being put behind bars in the criminal case in which subsequently the petitioner has been bailed out and thereafter the petitioner’s deemed suspension was revoked and he was reinstated in service. As the petitioner kept away from work on account of being incarcerated in jail on account of having involved himself in a crime, though he was later acquitted, as such, he had disabled himself from rendering the service on account of being incarcerated in jail. Under these circumstances, the petitioner would not be entitled for payment of salary for the period of his deemed suspension. 29. Keeping in view the aforesaid discussion, the writ petition is party allowed. The order impugned dated 22.06.2023, a copy of which Annexure No. 1 to the petition, is set aside. The Competent Authority is required to consider the claim of the petitioner for payment of subsistence allowance for the period of his deemed suspension. 30. Let such consideration be done within a period of two months from the date of receipt of certified copy of this order.