# Abhay Nath Singh v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-16
- **Case number:** Writ-A No. 1842 of 2012
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhay-nath-singh-v-state-of-u-p-ors-47887
- **Pages:** 15

## Headnote

Financial hand Book -Rule 54-A r/w
R.53(1) & (2)-claim for arrears of salary
denied-Petitioner
suspended
in
departmental proceedings-was dismissed -
challenged in Writ-Writ Petition allowedliberty for fresh inquiry-but no fresh inquiry
initiated-Petitioner
reinstated-arrears
of
salary for the period of dismissal deniedunreasonable and non speaking-Petitioner
entitled to 75 % of arrears of slaray with
interest of 6 % per annum. (E-9)
List of Cases cited:

## Text

_Characters 0–39,921 of 51,647. This is a partial read: ask again with offset=39921 for what follows._

11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
837
said decisions, therefore, cannot be thrown
out for any purpose whatsoever; more so
when both of them if applied collectively
lead to a contrary decision proposed by the
majority."

14. In view of the above, this court
does not find any merits in the present writ
petition and as such the same is accordingly
dismissed in the above terms. There shall
be no order as to costs.
----------
(2022) 11 ILRA 837
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.11.2022

BEFORE

THE HON'BLE RAJNISH KUMAR , J.

Writ-A No. 1842 of 2012

Abhay Nath Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amitabh Misra

Counsel for the Respondents:
C.S.C.

Financial hand Book -Rule 54-A r/w
R.53(1) & (2)-claim for arrears of salary
denied-Petitioner
suspended
in
departmental proceedings-was dismissed -
challenged in Writ-Writ Petition allowedliberty for fresh inquiry-but no fresh inquiry
initiated-Petitioner
reinstated-arrears
of
salary for the period of dismissal deniedunreasonable and non speaking-Petitioner
entitled to 75 % of arrears of slaray with
interest of 6 % per annum. (E-9)
List of Cases cited:

1. U.O.I. Vs Madhusudan Prasad; (2004) 1 SCC
43

2. Commissioner, Karnataka Housing Board Vs
C. Muddaiah; (2007) 7 SCC 689

3. Kishori Lal Vs Chairman Board of Directors,
Aligarh Gramin Bank (Allahabad); 2011 (3) All LJ
73

4. Brajesh Kumar Shukla Vs St.of U.P. & ors.;
2019 (1) UPLBEC 798 / 2018 (6) All WC 6481

5. Yadunandan Singh Vs St.of U.P. & ors.; 2018
(1) UPLBEC 454 / 2018 (2) All WC 1594

6. Prayag Narain Dubey (P.N. Pandey) Vs
U.P.S.R.T.C. through Regional Manager & anr.;
2018 (8) ADJ 561.

7. Pradeep S/o Rajkumar Jain Vs Manganese
Ore (India) Limited & ors.; (2022) 3 SCC 683

8. Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) & Ors; (2013)
10 SCC 324

9. Gowramma C (Dead) By LR's Vs Manager
(Personnel) Hindustan Aeronautical Limited &
anr.; 2022 SCC Online SC 310 (Civil Appeal
Nos.1575-1576 of 2022)
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri S.K. Gaur, Advocate
holding brief of Shri Amitabh Mishra,
learned counsel for the petitioner and Shri
Ran Vijay Singh, learned Additional Chief
Standing Counsel.

2. By means of the present writ
petition the petitioner has challenged the
order dated 25.08.2011, contained in
annexure no.1 to the writ petition, to the
extent it denies the arrears of salary for the
period w.e.f. 26.12.1997 to 15.06.2009. The
petitioner has further prayed for a direction
to the opposite parties to pay the arrears of
salary for the said period in accordance
with Rule 54-A read with Rule 53(1) & (2)
of the Financial Hand Book, Vol.-II, Part-II
838 INDIAN LAW REPORTS ALLAHABAD SERIES
to IV (here-in-after referred as Financial
Hand Book) alongwith interest.

3. The facts, relevant for disposal of
the instant writ petition, are that the
petitioner
was
suspended
in
contemplation
of
departmental
proceedings for the alleged misconduct
by means of the order dated 12.09.1997.
Thereafter the petitioner was dismissed
from service by means of the order dated
26.12.1997 passed by the Superintendent
of Police, Gonda, invoking the provisions
of Rule 8(2)(b) of the Uttar Pradesh
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules-1991
(here-in-after referred as Rules of 1991).
The petitioner challenged the order of
dismissal as well as the suspension order,
before this Court, in Writ Petition No.919
(S/S) of 1998; Abhay Nath Singh Vs.
State of U.P. and Others. The writ petition
was allowed by means of the judgment
and order dated 17.04.2009 and the
respondents were directed to allow the
petitioner to work on the post, which he
was holding prior to the order of
dismissal and shall be paid salary and
allowances as admissible to him. The
operative portion of the order dated
17.04.2009 is extracted here-in-below:-

"Accordingly, the writ petition is
allowed. The orders dated 26.12.1997 and
12.09.1997 passed by the Superintendent of
Police, Gonda, are hereby set-aside. The
opposite parties are directed to allow the
petitioner to work on the post which he was
holding prior to the order of dismissal and
shall be paid salary and allowances as
admissible to him.

However, the above order will not
prevent the respondents from initiating
departmental
enquiry
against
the
petitioners, if they so desire."

4. In pursuance to the aforesaid order,
the petitioner was allowed to join. Though
it was provided in the aforesaid order dated
17.04.2009,
while
allowing
the
writ
petition, that the above order will not
prevent the respondents from initiating
departmental
enquiry
against
the
petitioners, if they so desire but admittedly
no departmental enquiry has been held
against the petitioner. The petitioner was
reinstated into service on the post which he
was holding at the time of dismissal i.e. the
post of Constable and he was posted in the
office of Superintendent of Police, Gonda.

5. While reinstating the petitioner by
means of the order dated 16.06.2009 in
compliance of the judgment and order
dated 17.04.2009, it was provided that so
far as the arrears of salary are concerned, a
separate order would be passed in that
regard. Since no decision was being taken,
the petitioner approached this Court by
means of Writ Petition no.1352 (S/S) of
2011; Abhay Nath Singh Vs. State of U.P.
and Others. The writ petition was disposed
of with direction to the opposite party no.3
i.e. the Superintendent of Police, Gonda to
consider the representation of the petitioner
with regard to the arrears of salary and
dispose of the same by passing a reasoned
and speaking order in accordance with law.
In pursuance thereof a show cause notice
dated 03.07.2011 under Rule 54-A, Vol.-II,
Part-II to IV of Financial Hand Book was
issued and served on the petitioner, a copy
of which is annexed as annexure no.2 to the
writ petition. The petitioner submitted his
reply to the show cause notice dated
11.07.2011. After considering the reply of
the petitioner, the impugned order dated
25.08.2011 has been passed, by means of
which the salary of the petitioner has been
fixed but arrears of salary for the period of
dismissal of the petitioner have been denied
11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
839
on the principle of "No Work, No Pay", a
copy of which is annexed as annexure no.1
to the writ petition, which has been
challenged by the petitioner in this writ
petition.

6. Learned counsel for the petitioner
submitted that the petitioner was dismissed
from service invoking the provisions of
Rule 8(2)((b) of the Rules of 1991 without
recording any satisfaction and reason as to
why it was not reasonable and practicable
to hold the enquiry. Therefore, the said
order was quashed by this Court and liberty
was granted to hold a fresh enquiry.
However no enquiry has been held,
therefore the petitioner is entitled for
arrears of salary for the period of dismissal
w.e.f.
26.12.1997
to
15.06.2009
in
accordance with the Financial Hand Book
and even otherwise because the petitioner
was ready to work but he was not allowed
due to illegal orders.

7. Learned counsel for the petitioner
relied on Union of India Vs. Madhusudan
Prasad; (2004) 1 SCC 43, Commissioner,
Karnataka
Housing
Board
Vs.
C.
Muddaiah; (2007) 7 SCC 689, Kishori
Lal Vs. Chairman Board of Directors,
Aligarh Gramin Bank (Allahabad); 2011
(3) All LJ 73, Brajesh Kumar Shukla Vs.
State of U.P. and 2 Others; 2019 (1)
UPLBEC 798 / 2018 (6) All WC 6481,
Yadunandan Singh Vs. State of U.P. and
Others; 2018 (1) UPLBEC 454 / 2018 (2)
All WC 1594 & Prayag Narain Dubey
(P.N. Pandey) Vs. U.P.S.R.T.C. through
Regional Manager and Another; 2018 (8)
ADJ 561.

8. Per contra, learned Standing Counsel
submitted that the petitioner has not
discharged any Government work during the
period of dismissal, therefore he is not
entitled for arrears of salary for the said
period. The impugned order has rightly been
passed denying the arrears of salary for the
period of dismissal. There is no illegality or
error in the impugned order. The writ petition
is misconceived and liable to be dismissed
with cost.

9. I have considered the submissions of
learned counsel for the parties and perused
the records.

10. There is no dispute among the
learned counsel for the parties, so far as the
facts of the case as disclosed above are
concerned. The only dispute is regarding
payment of arrears of salary for the period of
dismissal. Thus issue to be adjudicated upon
in this case is as to whether the petitioner is
entitled for the arrears of salary for the period
of dismissal w.e.f. 26.12.1997 to 15.06.2009
or not on the principle of "No Work, No Pay"
and if he is entitled, then to what amount.

11. The petitioner was dismissed from
service by means of the order dated
26.12.1997 under Rule 8(2)(b) of Rules of
1991. The dismissal of petitioner was setaside by this Court by means of the judgment
and order dated 17.04.2009 passed in Writ
Petition No.919 (S/S) of 1998; Abhay Nath
Singh Vs. State of U.P. and Others. The
liberty for fresh enquiry was granted but
admittedly no enquiry has been held.

12. Rule 54-A of the Financial Hand
Book provides the conditions under which a
Government Servant is entitled for the pay
and allowances of the period of dismissal.
Rule 54-A of Financial Hand Book is
extracted here-in-below:-

"54-A.(1)-
Where
the
dismissal,
removal or compulsory retirement of a
Government servant is set-aside by the
840 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of law and such Government servant
is reinstated without holding any further
enquiry, the period of absence from duty
shall be regularized and the Government
servant shall be paid pay and allowances in
accordance with the provisions of sub-rule
(2) or (3), subject to the directions, if any,
of the Court.

[(2)(i) Where the dismissal, removal
or
compulsory
retirement
of
the
Government servant is set-aside by the
Court solely on the ground of noncompliance with the requirements of Clause
(1) or Clause (2) of Article 311 of the
Constitution,
and
where
he
is
not
exonerated on merits, and no further
enquiry is proposed to be held, the
Government servant shall, subject to the
provisions of sub-rule (7) of the Rule 54, be
paid such amount (not being the whole) of
the pay and allowances to which he would
have been entitled had he not been
dismissed, removed or compulsory retired,
as the competent authority may, as the
competent authority may determine, after
giving notice to the government servant of
the
quantum
proposed
and
after
considering the representation, if any,
submitted by him in that connection within
such period (which in no case shall exceed
sixty days from the date on which the notice
has been served) as may be specified in the
notice.]

(ii) The period intervening between the
date of dismissal, removal or compulsory
retirement
including
the
period
of
suspension preceding dismissal removal or
compulsory retirement, as the case may be,
and the date of judgment of the court shall
be regularized in accordance with the
provisions contained in sub-rule (5) of Rule
54.

(3) If the dismissal removal or
compulsory retirement of a Government
servant is set aside by the court on the
merits of the case, the period intervening
between the date of dismissal removal or
compulsory retirement including the period
of suspension preceding such dismissal,
removal, or compulsory retirement, as the
case may be, and the date of reinstatement
shall be treated as duty for all purpose and
he shall be paid of the full pay and
allowances for the period, to which he
would have been entitled, had he not been
suspended, removed or compulsorily retired
or suspended prior to such dismissal,
removal or compulsory retirement, as the
case may be.

(4) The payment of allowances under
sub-rule (2) or sub-rule (3) shall be subject
to all other conditions under which such
allowances are admissible.
(5) Any payment made under this Rule to a
Government Servant on his reinstatement
shall be subject to adjustment of the
amount, if any earned by him through an
employment during the period between the
date of dismissal, removal or compulsory
retirement and the date of reinstatement.
Where the emoluments admissible under
this Rule are equal to or less than those
earned during the employment elsewhere,
nothing shall be paid to the Government
servant."

13. The aforesaid Rule 54-A(1) of
Financial Hand book provides that where
the dismissal, removal or compulsory
retirement of a Government servant is setaside by the Court of law and such
Government servant is reinstated without
holding any further enquiry, the period of
absence from duty shall be regularized and
the Government servant shall be paid pay
and allowances in accordance with the
provisions of sub-rule (2) or (3), subject to
the directions, if any, of the Court. Sub
Rule (2) of the Rule 54-A provides that
where
the
dismissal,
removal
or
11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
841
compulsory retirement of the Government
servant is set-aside by the Court solely on
the ground of non-compliance with the
requirements of Clause (1) or Clause (2) of
Article 311 of the Constitution of India and
where he is not exonerated on merits and
no further enquiry is proposed to be held,
the Government servant shall subject to the
provisions of sub-rule (7) of the Rule 54, be
paid such amount (not being the whole) of
the pay and allowances to which he would
have been entitled had he not been
dismissed, removed or compulsory retired,
as the competent authority may determine
after giving notice to the government
servant of the quantum proposed and after
considering the representation, if any,
submitted by him. Sub-rule (7) of Rule 54
provides that the amount determined under
the proviso to sub-rule (2) or under sub-rule
(4), shall not be less than the subsistence
allowance and other allowances admissible
under Rule 53. Sub-rule (7) of Rule 54 is
extracted here-in-below:-

"(7) The amount determined under the
proviso to sub-rule (2) or under sub-rule
(4), shall not be less than the subsistence
allowance and other allowances admissible
under rule 53."

14. The payment of allowances under
sub-rule (2) or (3) shall be subject to all
other
conditions
under
which
such
allowances are admissible as per sub-rule
(4) and any amount earned by the
Government servant by any employment
during the period between the date of
dismissal,
removal
or
compulsory
retirement and reinstatement shall be
adjusted as per sub-rule (5) of Rule 54-A.

15. In the present case the provisions
of Sub-rule (4) of Rule 54 are attracted
because the dismissal has been set-aside on
account of violation of Article 311 (2) of
the Constitution of India. Sub-rule (4) of
Rule 54 is extracted here-in-below:-

"54.[(4) In cases other than those
covered by sub-rule (2) [including cases
where the order of dismissal, removal or
compulsory retirement from service is set
aside by the appellate or reviewing
authority solely on the ground of noncompliance within the requirements of
clause (1) or clause (2) of Article 311 of the
Constitution and no further inquiry is
proposed to be held], the Government
servant shall, subject to the provisions of
sub-rules (6) and (7), be paid such amount
(not being the whole) of the pay and
allowances to which he would have been
entitled had he not been dismissed,
removed
or
compulsorily
retired
or
suspended prior to such dismissal removal
or compulsory retirement, as the case may
be, as the competent authority may
determine, after giving notice to the
Government
servant
of
the
quantum
proposed
and
after
considering
the
representation, if any, submitted by him in
that connection, within such period (which
in no case shall exceed sixty days from the
date on which the notice has been served)
as may be specified in the notice.]"

16. The Rule 53 of Financial
Handbook is extracted here-in-below:-

"53. (1) A government servant under
suspension or deemed to have been placed
under suspension by an order of the
appointing authority shall be entitled to the
following payments, namely:-

(a) a subsistence allowance at an
amount equal to the leave salary which the
government servant would have drawn if he
had been on leave on half average pay or
on half pay and in addition, dearness
842 INDIAN LAW REPORTS ALLAHABAD SERIES
allowance, if admissible on the basis of
such leave salary:

Provided that where the period of
suspension exceeds three months, the
authority which made or is deemed to have
made the order of suspension shall be
competent
to
vary
the
amount
of
subsistence allowance for any period
subsequent to the period of the first three
months as follows:-

(i)
the
amount
of
subsistence
allowance may be increased by a suitable
amount, not exceeding 50 per cent of the
subsistence allowance admissible during
the period of first three months, if, in the
opinion of the said authority, the period of
suspension has been prolonged for reasons
to be recorded in writing, not directly
attributable to the government servant;

(ii)
the
amount
of
subsistence
allowance may be reduced by a suitable
amount not exceeding 50 per cent of the
subsistence allowance admissible during
the period of the first three months, if, in
the opinion of the said authority, the period
of suspension has been prolonged due to
reasons, to be recorded in writing, directly
attributable to the Government servant;

(iii) the rate of dearness allowance
will be based on the increased or, as the
case may be, the decreased amount of
subsistence allowance admissible under
sub-clauses (i) and (ii) above.

(b) Any other compensatory allowance
admissible from time to time on the basis of
pay of which the Government servant was
in receipt on the date of suspension:

Provided that the government servant
shall not be entitled to the compensatory
allowances unless the said authority is
satisfied that the government servant
continues to meet the expenditure for which
they are granted.

(2) No payment under sub-rule (1)
shall be made unless the Government
servant furnishes a certificate that he is not
engaged
in
any
other
employment,
business, profession or vocation:

Provided that in the case of a
Government servant dismissed or removed
from service, who is deemed to have been
placed or to continue to be under
suspension from the date of such dismissal
or removal and who fails to produce such a
certificate for any period or periods during
which he is deemed to be placed or to
continue to be under suspension, he shall
be entitled to the subsistence allowance
and other allowances equal to the amount
by which his earnings during such period
or periods, as the case may be, fall short of
the amount of subsistence allowance and
other allowances that would otherwise be
admissible to him; where the subsistence
and other allowances admissible to him are
equal to or less than the amount earned by
him, nothing in this proviso shall apply to
him.

(This amendment shall be deemed to
have come into force with effect from
December 26, 1981)."

17. Rule 53(1)(a) provides that a
Government servant under suspension shall
be entitled for a subsistence allowance at an
amount equal to the leave salary which the
Government servant would have drawn if
he had been on leave on half average pay or
on half pay and in addition, dearness
allowance, if admissible on the basis of
such leave salary. Proviso to Rule 53(1)(a)
provides
that
where
the
period
of
suspension exceeds three months, the
subsistence allowance shall be varied and
as per sub-rule (i) to the proviso the
subsistence allowance may be increased by
50 percent of the subsistence allowance
during the period of the first three months.
As such a government servant, under
suspension, is entitled to half of the salary
11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
843
for the first three months and where it
exceeds three months for the salary upto 75
per cent for the next three months and so
on. Therefore a government servant, on
reinstatement, on account of setting-aside
of the dismissal on the ground of noncompliance with the requirement of Clause
(1) or Clause (2) of Article 311 of the
Constitution of India and not on merit and
where no further enquiry held, shall be
entitled arrears of pay and allowances for
the period of dismissal which shall not be
less than the subsistence allowance and
other allowances admissible under rule-53.
However it would be subject to adjustment
of amount earned by him during the period
between the date of dismissal etc. and the
date of reinstatement as per sub-rule (5) of
Rule 54-A. However it would be subject to
direction, if any, of the Court as per Rule
54-A(1), therefore the Court may direct for
payment of any amount as may be
determined by it looking to the facts and
circumstances of the case.

18. Sub-rule (ii) of Rule 54-A (1)
provides that the period intervening the
date of dismissal etc. including the period
of suspension preceding it and the date of
judgment
shall
be
regularized
in
accordance with the provision contained in
sub-rule (5) of the Rule 54. Sub-rule (5) of
Rule 54 provides as to how the period of
absence from duty including the period of
suspension
preceding
his
dismissal,
removal or compulsory retirement can be
regularized by different kind of leaves.

19. The dismissal of the petitioner, by
means of the order dated 26.12.1997 under
Rule 8(2)(b) of Rules of 1991, has been
quashed by this Court by means of the
judgment and order dated 17.04.2009
passed in Writ Petition No.919 (S/S) of
1998 on account of violation of proviso(b)
to Article 311(2) of the Constitution of
India and no enquiry has been held despite
liberty granted by this Court. Proviso (b) to
Article 311 (2) provides; where the
authority empowered to dismiss or remove
a person or to reduce him in rank is
satisfied for some reason, to be recorded by
that authority in writing, it is not reasonable
to hold such enquiry. Therefore the case of
the petitioner falls under sub-rule(2) of
Rule 54-A, which provides that where the
dismissal order is set-aside on the ground
of non-compliance with the requirements of
Clause (1) and Clause (2) of Article 311 of
the Constitution of India and where he is
not exonerated on merits and no further
enquiry is proposed to be held, the
Government servant shall, subject to the
provisions of sub-rule (7) of the Rule 54, be
paid such pay and allowances as the
competent authority may determine, had he
not been dismissed from service. Sub-rule
(7) of Rule 54 provides that the amount
determined under the proviso to sub-rule
(2) or under sub-rule (4), shall not be less
than the subsistence allowance and other
allowances admissible under Rule 53.

20. While reinstating the petitioner, in
compliance of order passed by this Court
on 17.04.2009 passed in Writ Petition
No.919 (S/S) of 1998, by means of the
order dated 16.06.2009, it was provided
that the decision in regard to the salary of
the said period shall be taken separately.
However the decision was not taken,
therefore the petitioner approached this
court by means of the Writ Petition
No.1352 (S/S) of 2011, which was disposed
of by means of the order dated 11.03.2011
with
direction
to
consider
the
representation of the petitioner with regard
to the arrears of salary and dispose of the
same by reasoned and speaking order in
accordance with law. Thereafter, the
844 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.3 i.e. the Superintendent of
Police, Gonda gave a show cause notice
dated 03.07.2011 to the petitioner under
Rule 54-A of the Financial Hand Book as
to why for the period of dismissal w.e.f.
26.12.1997
to
15.06.2009,
the
leave
without pay may not be sanctioned to the
petitioner. In response thereof the petitioner
submitted his detailed explanation dated
11.07.2011. Thereafter the decision has
been taken by means of the order dated
25.08.2011, which has been challenged in
this writ petition.

21. Perusal of the impugned order
dated 25.08.2011 indicates that it has been
passed without considering the grounds
raised in the explanation submitted by the
petitioner and by a non speaking and non
reasoned order, merely stating that, since
the petitioner has not discharged any
Government work during the period of
dismissal the arrears of salary have been
denied on the principle of "No Work, No
Pay". This Court is of the view that the
impugned order is not tenable in the eyes of
law for the reasons that it was passed in
violation of direction issued by this Court
and the explanation submitted by the
petitioner and the provisions of Rule 54-A
of Financial Hand Book, under which the
show cause notice was given and other
relevant provisions of Financial Handbook,
while passing the impugned order, under
which the petitioner is entitled for arrears
of salary which may be determined.

22. In the case of Union of India Vs.
Madhusudan Prasad (Supra), the learned
Single Judge of the High Court had held
that the respondent was entitled to get
salary for the period he was out of service.
The said order was affirmed by the
Division Bench of the High Court,
therefore SLP was filed by the Union of
India. The SLP has been dismissed noticing
that the respondent was removed from the
service without following the principles of
natural justice and the relevant facts were
considered by the learned Single Judge and
Division Bench and ordered for payment of
the back wages. The paragraph-6 is
extracted here-in-below:-

"6. The above case was concerning an
employee, proceeded, who was found guilty
in an enquiry but the report was not
furnished to the employee and show cause
notice was not served on him. In view of the
facts and circumstances of the case, the
Court directed appropriate order should be
passed regarding the back wages. In the
instant case the appellate authority directed
reinstatement of the respondent and held
that he was not entitled to get back wages
for the period he was out of service. If may
be noticed that the respondent was removed
from services without any enquiry and he
was not even given show cause notice prior
to his dismissal from service. There was
fault on the part of the employer in not
following the principle of natural justice.
These relevant facts were considered and
the learned Single Judge and also the
Division Bench ordered the payment of
back wages. We do not think this is a fit
case where the Fundamental Rule 54 could
have been invoked by the authorities. We
find no merit in the appeal. The appeal is
accordingly dismissed."

23. In the case of Commissioner,
Karnataka
Housing
Board
Vs.
C.
Muddaiah (Supra), the Hon'ble Supreme
Court has held that the Court, in a given
case, may hold that the person was willing
to work but was illegally and unlawfully
not allowed to do so and direct the
Authority to grant him all benefits
considering 'as if he had worked' therefore
11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
845
it can not be contended as an absolute
proposition of law that no direction of
payment of consequential benefits can be
granted by a Court of Law. The relevant
paragraph 34 is extracted here-in-below:-

"36. We are conscious and mindful
that even in absence of statutory provision,
normal rule is 'no work no pay'. In
appropriate cases, however, a Court of Law
may, nay must, take into account all the
facts in their entirety and pass an
appropriate order in consonance with law.
The Court, in a given case, may hold that
the person was willing to work but was
illegally and unlawfully not allowed to do
so. The Court may in the circumstances,
direct the Authority to grant him all
benefits considering 'as if he had worked'.
It, therefore, cannot be contended as an
absolute proposition of law that no
direction of payment of consequential
benefits can be granted by a Court of Law
and if such directions are issued by a
Court, the Authority can ignore them even
if they had been finally confirmed by the
Apex Court of the country (as has been
done in the present case). The bald
contention
of
the
appellant-Board,
therefore, has no substance and must be
rejected."

24. A coordinate Bench of this Court,
in the case of Kishori Lal Vs. Chairman
Board of Directors, Aligarh Gramin
Bank (Allahabad) (Supra), has held that
the principle of "No Work, No Pay" can not
be applied ignoring the fact that work has
not been performed by employee concerned
not on account of himself but for the
circumstances created by employer and if
applied would amount to confer a premium
upon employer of a fault of his own and
this would amount to allowing him
(employer) to take advantage of his own
wrong, which is not permissible in law,
particularly in a court of equity and justice
and held the petitioner is entitled for
consequential benefits with cost. The
relevant paragraphs 59 to 64 are extracted
here-in-below:-

"59.Now coming to another important
aspect about relief. It is not the case of
respondents that petitioner was gainfully
employed elsewhere during the period he
was out of job. On the contrary, as a result
of illegal order of dismissal, petitioner and
his entire family must have suffered a social
stigma as also financial hardships. It is
quite conceivable that this ignominy is
faced by the entire family of petitioner. No
amount of money can compensate this
social humiliation, illegal torture an out
classed attribute of neighbour and other
difficulties. It must have been faced by
petitioner and his entire family throughout.
An attempt to provide consequential
benefits to petitioner by this Court is only a
meager compensation for huge loss, which
basically cannot be compensated in terms
of money. The departmental authorities, in
fact must be much more careful and
vigilant when they initiate disciplinary
proceedings
against
an
employee
concerned on certain charges so that
effective
procedural
requirement
is
observed in words and spirit. They must
also ensure that a person should not be
unnecessarily harassed as that affects not
only individual bread earner but the entire
family. This Court can take judicial
cognizance of the fact that higher rank
officials and employees, if face a small
delay in payment of salary, become restless
and even resort to ob serve strike etc. That
being so the severest punishment of
dismissal compel the employee and his
entire family to stand in a situation of
starvation and also denuded the other
846 INDIAN LAW REPORTS ALLAHABAD SERIES
facilities like health, education, clothing
etc, which virtually, if not a death in terms
of medical precision, something near to it.
Normally the employers, to wriggle out
such circumstances, try to invoke principle
of ''No work No Pay' ignoring the fact that
work has not been performed by employee
concerned not on account of himself but for
the circumstances created by employer.
Such a principle in a case like this, if
applied would amount to confer a premium
upon employer of a fault of his own. This
would amount to allowing him (employer)
to take advantage of his own wrong, which
is not permissible in law particularly in a
court of equity and justice. It is against all
canons of justice. It is always open to
employer concerned to cover up loss, which
it may sustain towards making of payment
to such an employee by recovering such
amount from those officials who defied
statutory requirement as also the procedure
and pass illegal order. Instead of penalizing
a poor employee, who has no option but not
to render service to employer pursuant to
illegal order passed by employer the
accountability should be shouldered by the
responsible officer/authority.

60.Moreover the concept of gainful
employment would be attracted provided
employment is easily available. The Court
cannot shut its eyes of extraordinary
unemployment prevailing in the country.
The people having high qualifications are
searching
menial
employment
having
limited employment avenues. In such
circumstances to suggest that a dismissed
employees could have got a gainful
employment is nothing but a day dreaming.

61.This aspect can be looked into from
another different angle. In these days of
extraordinary
unemployment
it
is
inconceivable to think that dismissed or
removed employee may get easily an
alternative employment. Merely because he
has been able to survive all through, it
cannot be conceived that he was in gainful
employment during all this periods. We do
not know whether he survived at the charity
or support extended by his relatives,
friends, neighbour or by selling his
household goods or spending his savings or
losing ornaments of his wife or that he
survived by incurring debt in the hope of
getting success one day in the case
challenging order of punishment and then
to discharge debt liability.

62.It would not be proper on the part
of this Court into enter in this arena of wild
goose chase. Only this much is sufficient
that he was not unwilling to work but the
employer having created a situation where
he was compelled not to work, hence ought
not be punished despite of winning the case
by denying arrears of salary.

63.It is also well known that whenever
an order of dismissal or removal is
challenged, normally Courts do not grant
interim orders and the reason behind is that
it amounts to grant of final relief. That
being so, in the end when incumbent is
successful in demonstrating that order is
illegal, if he is denied salary on the ground
that he did not work for which judiciary is
also responsible, it would be condemning a
indefansable litigant for no fault of his own
and also for certain reasons which are
wholly beyond his control. If this would not
be a travesty of justice then what else can
be.

64.It
is
in
these
facts
and
circumstances and considering the various
aspects of the matter, this Court is of
considered view that dismissal of petitioner
from service having been found wholly
illegal, and it is also having been seen that
he was denied work on the post in question
by employer in a wholly illegal manner,
petitioner should be given relief of
reinstatement with benefit of continuity of
11 All. Abhay Nath Singh Vs. State of U.P. & Ors.
847
service with all consequential benefits
including arrears of salary. This would be
in consonance with the principle that an
employee has no right to work but only
right to claim salary. In absence of
anything to show that employee himself
was unwilling to work, principle of "No
Work No Pay" ought not to be applied in
such a case."

25. A coordinate Bench of this Court,
in the case of Brajesh Kumar Shukla Vs.
State of U.P. and 2 Others (Supra), has
held that The principle of 'no work no pay'
stands attracted in a situation where an
employee has refused to discharge duties of
his own volition and without any restraint
of the employer. It primarily applies to a
situation where the employee consciously
and voluntarily fails or refuses to discharge
duties and the termination of employment
is an act affected solely by the employer
and in this situation it can not be said that
the employee has failed to discharge duties
without justifiable cause. The relevant
paragraph-11 is extracted here-in-below:-

"11.
The
principle
that
needs
recognition and reiteration is that the
principle of 'no work no pay' cannot have
an ipso facto or automatic application to a
case of termination. Once the order of
termination comes to be set aside by a
Court or Tribunal, it is incumbent upon the
Disciplinary Authority to take an informed
decision with respect to the manner in
which the period during which the order of
termination operated would be liable to be
treated. The decision to deprive an
employee of emoluments and other benefits
cannot be arrived at solely on the
application of the principle of "no work no
pay". While arriving at a decision in this
respect, it would be incumbent upon the
Disciplinary Authority to consider various
factors such as the length of the period
during which the order of termination
operated, whether the enquiry proceedings
were
delayed
on
account
of
non
cooperation of the employee concerned, the
nature
of
the
misconduct
which
is
ultimately found to be proved, the severity
of the punishment which comes to be
imposed upon the original order of
termination being modified or the grounds
which led to the order of termination or
punishment
being
set
aside.
The
Disciplinary Authority would be acting
within its jurisdiction in evaluating whether
the punishment order was set aside on a
technicality, an infraction of principles of
fair play or on merits. There would thus
have to be a holistic and comprehensive
consideration of the above and other
germane factors which would guide the
ultimate decision that the Disciplinary
Authority takes in this regard."

26. Similar view has been taken by
this Court, in the cases of Yadunandan
Singh Vs. State of U.P. and Others
(Supra) and Prayag Narain Dubey (P.N.
Pandey)
Vs.
U.P.S.R.T.C.
through
Regional Manager and Another (Supra).

27. The Hon'ble Supreme Court in a
recent judgment, in the case of Pradeep
S/o Rajkumar Jain Vs. Manganese Ore
(India) Limited and Others; (2022) 3
SCC 683, by means of the judgment and
order dated 10.12.2021, relying on leading
case on the issue of "No Work, No Pay" in
the case of Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya
(D.Ed.) & Others.; (2013) 10 SCC 324 and
considering many other judgments of the
Hon'ble Supreme Court, has held that it is,
undoubtedly, true when the question arises
as to whether the backwages is to be given
and as to what is to be the extent of
848 INDIAN LAW REPORTS ALLAHABAD SERIES
backwages, these are matters which will
depend on the facts of the case as noted in
Deepali Gundu Surwase and in a case
where it is found that the employee was not
at all at fault and yet, he is visited with
illegal
termination
or
termination
is
actually activised by malice, it may be
unfair to deny him the fruits of the
employment which he would have enjoyed
but for the illegal / malafide termination. It
has further held that the effort of the Court
must be to then to restore the status quo in
the manner which is appropriate in the facts
of each case. The relevant paragraph 12 of
the judgment is extracted here-in-below:-

"12. It is, undoubtedly, true when the
question
arises
as
to
whether
the
backwages is to be given and as to what is
to be the extent of backwages, these are
matters which will depend on the facts of
the case as noted in Deepali Gundu
Surwase (supra). In a case where it is
found that the employee was not at all at
fault and yet, he was visited with illegal
termination
or
termination
which
is
actually activised by malice, it may be
unfair to deny him the fruits of the
employment which he would have enjoyed
but for the illegal / malafide termination.
The effort of the Court must be to then to
restore the status quo in the manner which
is appropriate in the facts of each case. The
nature of the charges, the exact reason for
the termination as evaluated and, of
course, the question as to whether the
employee was gainfully employed would be
matters
which
will
enter
into
the
consideration by the Court."

28. The Hon'ble Supreme Court, in the
case of Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.)
& Ors; (2013) 10 SCC 324, after
considering the two earlier three judges
benches of the Hon'ble Supreme Court
concluded as follows:-

"38. The propositions which can be
culled out from the aforementioned judgments
are:

38.1.