# Akhilesh Kumar Awasthi v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 676
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-09
- **Case number:** Civil Misc. Writ Petition No. 49313 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-awasthi-v-state-of-u-p-and-others-41104
- **Pages:** 6

## Headnote

Rule
54-Reinstatement
without Salary-for suspension-dismissal
to the period of reinstatement-without
opportunity of hearing without show
cause
notice-held-'illegal'-order
withholding salary-passed without show
cause notice-can not sustained.

Held: Para 12 & 13

A bare perusal of the aforesaid provision
makes it clear that before passing an
order depriving the Government servant
of full salary for the period of suspension
or when he was out of employment, a
show cause notice has to be issued to
the concerned Government servant and
only thereafter, the competent authority
may pass appropriate order considering
various aspects.

Admittedly, no such procedure has been
followed, therefore, the impugned order,
to the extent the petitioner has been
denied arrears of salary for the period of
suspension as well as during the period
he was out of employment pursuant to
the dismissal order, which was modified
by the revisional order, is set aside. The
writ petition is, accordingly, allowed
partly.
Case law discussed:
1992 Supple. (1) SCC 222, AIR 1996 SC 326,
JT 1996 (8) SC 550, AIR 2003 SC 1344

## Text

676 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
such suspicion may be. Therefore, the
petitioner can not be held to be guilty of the
charges on mere suspicion and speculations
without any proof of the same, accordingly
the conclusion drawn by Disciplinary
Authority cannot be sustained and the
impugned order dated 5.8.2006 is hereby
quashed.

10. The respondents are directed to
reinstate the petitioner in service with full
back wages and continuity of service from
the date of removal from service till date of
his actual reinstatement and further continue
him in service and pay his salary unless his
services are dispensed with in accordance
with law.

With the aforesaid observation and
direction, writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 49313 of 2006

Akhilesh Kumar Awasthi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Anand Mishra

Counsel for the Respondents:
S.C.

Fundamental
Rule
54-Reinstatement
without Salary-for suspension-dismissal
to the period of reinstatement-without
opportunity of hearing without show
cause
notice-held-'illegal'-order
withholding salary-passed without show
cause notice-can not sustained.

Held: Para 12 & 13

A bare perusal of the aforesaid provision
makes it clear that before passing an
order depriving the Government servant
of full salary for the period of suspension
or when he was out of employment, a
show cause notice has to be issued to
the concerned Government servant and
only thereafter, the competent authority
may pass appropriate order considering
various aspects.

Admittedly, no such procedure has been
followed, therefore, the impugned order,
to the extent the petitioner has been
denied arrears of salary for the period of
suspension as well as during the period
he was out of employment pursuant to
the dismissal order, which was modified
by the revisional order, is set aside. The
writ petition is, accordingly, allowed
partly.
Case law discussed:
1992 Supple. (1) SCC 222, AIR 1996 SC 326,
JT 1996 (8) SC 550, AIR 2003 SC 1344

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Vijay Gautam, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Since counter and rejoinder
affidavits have already been exchanged
between the parties, as requested and
agreed by the learned counsel for the
parties, the matter is heard finally under
the Rules of the Court and is being
decided at this stage.

3. Aggrieved by the order dated
26.5.2004 passed by Inspector General of
Police,
Allahabad
Zone,
Allahabad
modifying punishment imposed upon the
petitioner by converting dismissal from
2 All] Akhilesh Kumar Awasthi V. State of U.P. and others
677
service to reduction in the pay scale at the
minimum for a period of three years and
denying arrears of salary for the period
petitioner was under suspension and out
of employment pursuant to dismissal
order dated 2.5.1994, this writ petition has
been filed seeking writ of certiorari
quashing the same and also a writ of
mandamus directing respondents to pay
all the benefits to the petitioners as he was
never suspended.

4. The learned counsel for the
petitioner submitted that the impugned
order of punishment has been passed
without considering the fact that the
enquiry proceedings were conducted ex
parte, the petitioner was not deliberately
absent since he was ill and has submitted
various medical certificates, therefore, it
was not a case of unauthorized absence
and, as such, there was no misconduct on
the part of the petitioner inviting any
punishment. He further contended that the
impugned order, to the extent the
petitioner has been denied arrears of
salary during the period he was under
suspension and out of employment, is
vitiated
for
non
compliance
of
Fundamental Rule-54 since no notice was
issued to the petitioner under the aforesaid
provision.

5. Learned Standing Counsel, on the
other contrary, placed reliance on the
stand taken in the counter affidavit and
submitted that entire proceedings were
conducted in accordance with law and,
therefore, no interference is warranted in
this writ petition.

6. From the submissions advanced
by the learned counsel for the petitioner, I
find that basically he has assailed the
impugned order on the following grounds:
(1) The enquiry report submitted by the
enquiry officer is pursuant to an ex
parte enquiry without giving any
opportunity
of
hearing
to
the
petitioner, therefore, is vitiated in
law.
(2) The procedure laid down in Rule
14(1) of U.P. Police Officers of
Subordinate Ranks (Punishment &
Appeal) Rules, 1991 (hereinafter
referred to as '1991 Rules') has not
been followed rendering the entire
proceedings void ab-initio.
(3) Before passing order of dismissal,
the
disciplinary
authority,
i.e.,
respondent no. 4 has not afforded
any opportunity to the petitioner and,
therefore, it is bad in law.
(4) While deciding the appeal of the
petitioner, various grounds raised by
him have not been considered and,
therefore, the appellate order is non
speaking.
(5) The punishment imposed upon the
petitioner is excessive, arbitrary and
does not commensurate to the
alleged misconduct.
(6) The proceedings are result of mala
fide of the then Superintendent of
Police, Banda, whose wife contested
election
from
Etawah
and
the
petitioner's Geep which is owned by
the wife of petitioner was used in the
said election, but no rent was paid
and when the petitioner demanded,
he was misbehaved, abused and a
false report was also lodged against
him on 9.7.1993.
(7) The
revisional authority though
modified
the
punishment
by
reduction in the pay scale, but even
that
punishment
does
not
commensurate
to
the
alleged
misconduct.
678 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(8) The order for denying salary during
the period the petitioner was under
suspension and out of employment
pursuant to the dismissal order,
which was modified by the revisional
order, has not been passed in
accordance
with
the
procedure
prescribed under Fundamental Rule54.

7. Coming to the three submissions
that the enquiry was conducted without
affording opportunity to the petitioner, it
is evident from the own pleadings and the
record available before this Court that a
charge sheet dated 19.8.1993 was served
upon the petitioner making an allegation
that he was found absent from duty from
the night of 9.5.1993 to 13.7.1993
unauthorizedly and, therefore, was guilty
of negligence, dereliction of duty and
indiscipline. He was supplied with the
copy of the documents relied upon in the
charge sheet as well as preliminary
enquiry report and the statements etc.
recorded therein. Petitioner submitted his
reply to the charge sheet on 28.8.1993 and
made a statement before the enquiry
officer that besides his written reply, he
does not want to show anything further in
the matter and signed proceedings before
the enquiry officer. The enquiry officer,
thereafter, proceeded to hold oral enquiry
and
recorded
statements
of
Head
Constable Sri Om Prakash, Sub-inspector
Armed Police Sri Shaligram Misra and
gave opportunity to the petitioner to cross
examine them but he refused to do so.
The aforesaid statements of the witnesses
were recorded on 13.9.1993 and next date
of recording statements of witnesses was
fixed as 28.9.1993. Information was sent
by Special Messenger but petitioner was
not present at his permanent residence.
Therefore, the notice was served upon his
brother, Babloo Awasthi, in presence of
two witnesses besides the Gram Pradhan
of the village. The petitioner instead of
attending proceedings, on 27.9.1993 sent
letter to the enquiry officer stating that he
is ill and would appear in the proceedings
after becoming fit and till then enquiry
should be suspended. This shows his
knowledge
of
the
next
date,
i.e.,
28.9.1993. Thereafter, the enquiry officer
vide his letter dated 22.10.1993 requested
Chief
Medical
Officer,
Banda
for
constituting a Medical Board and examine
the genuity of alleged sickness of the
petitioner. But despite information, the
petitioner did not appear for the said
examination. The enquiry officer, vide
letter dated 4.11.1993, required the
petitioner either to participate in the
enquiry on 19.11.1993 otherwise he shall
proceed ex parte, yet the petitioner did not
appear though the said letter was served
upon him by Special Messenger, which
was received at the petitioner's residence
by his wife Smt. Nirmala Awasthi. Even
thereafter, the petitioner failed to appear
and in these circumstances, the enquiry
officer
proceeded with further oral
enquiry and after recording statements of
rest of the prosecution witnesses etc.,
communicated the petitioner again to
cross examine these witnesses and he was
also given opportunity for producing his
defence on various dates, but it appears
that the petitioner was not inclined to
participate in the enquiry, thus, absented
himself from participating therein. In
these
circumstances,
enquiry
officer
submitted his report on 26.3.2004 holding
the petitioner guilty of the charges
levelled
in
the
charge
sheet
recommending punishment of dismissal
from service. The disciplinary authority
sent a copy of the conclusion of the
enquiry report along with a show cause
2 All] Akhilesh Kumar Awasthi V. State of U.P. and others
679
notice
dated
3.4.1994
giving
an
opportunity to the petitioner to submit his
reply, but despite repeated opportunity, he
did not submit any reply. The disciplinary
authority, thus, passed the dismissal order
on 2.5.1994. In the appeal submitted by
the petitioner, general allegations have
been made but it has not been said that
when he was communicated on certain
dates, why he did not appear in the
enquiry proceedings.

8. Considering the entire facts and
circumstances, I do not find it correct that
the proceedings have been conducted
against the petitioner without affording
opportunity to him. The principles of
natural justice, if not availed by the
person
concerned,
it
is
not
open
subsequently to him to challenge an order
adverse to him on the ground that he was
not afforded opportunity when he himself
failed to avail such opportunity.

9. So far as the validity of the
revisional order is concerned, from a bare
perusal thereof it is evident that every
aspect has been considered by the
Revisional Authority in detail and it has
also considered the question of quantum
of
punishment
imposed
upon
the
petitioner and taking a lenient view in the
matter, he has modified punishment by
revoking the order of dismissal and
reducing the punishment to reduction at
the minimum of pay scale, that too, only
for a period of three years. Therefore,
even the contention of the petitioner that
the punishment is disproportionate to the
misconduct levelled against him is not
acceptable. Petitioner is member of a
disciplined force and, therefore, has to
show a more sincere and disciplined
conduct since any negligence on his part
may result in serious consequences.
Absence of petitioner for a long time
without informing the authorities and
unauthorizedly cannot be said to be a
technical or non-serious misconduct,
which
does
not
warrant
a
strict
punishment. In the matter of members of
disciplined force, in order to maintain
strict discipline, the nature of punishment
would be stern comparing to other civil
services.

10. So far as the argument of mala
fide is concerned, learned counsel for the
petitioner could not substantiate the said
argument.
Moreover,
the
person
concerned against whom the mala fide is
alleged has not been impleaded in the writ
petition. It is well settled that a plea of
mala fide shall not be entertained unless
the person against whom mala fide is
alleged is impleaded eo nomine as held in
the case of State of Bihar Vs. P.P.
Sharma, 1992 Supple. (1) SCC 222, J.N.
Banavalikar
Vs.
Municipal
Corporation of Delhi AIR 1996 SC 326,
A.I.S.B. Officers Federation and others
Vs. Union of India and others JT 1996
(8) SC 550 and Federation of Railway
Officers Association Vs. Union of India
AIR 2003 SC 1344. Thus, the contention
that the impugned order of punishment
was passed pursuant to mala fide of the
then Superintendent of Police, Banda has
no substance and is rejected.

11. Now coming to the question as
to whether the order passed by the
revisional authority denying arrears of
pay to the petitioner for the period he was
under suspension as well as the period he
was out of employment pursuant to the
dismissal order dated 2.5.1994 is correct
or not, I find that such an order can be
passed by the competent authority only
after issuing a show cause notice to the
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
employee concerned as contemplated
under Fundamental Rule-54, which reads
as under:

"F.R. 54. (1) When a Government
servant who has been dismissed, removed
or compulsorily retired is reinstated as a
result of appeal or review or would have
been so reinstated but for his retirement
on
superannuation
while
under
suspension
or
not,
the
authority
competent to order reinstatement shall
consider and make a specific order.-

(a) regarding the pay and allowances to
be paid to the Government servant
for the period of his absence from
duty
including
the
period
of
suspension preceding his dismissal,
removal, or compulsory retirement,
as the case may be; and
(b) whether or not the said period shall
be treated as a period spent on duty.
(2) Where the authority competent to
order reinstatement is of opinion that the
Government servant who had been
dismissed,
removed
or
compulsorily
retired has been fully exonerated, the
Government servant shall, subject to the
provisions of sub-rule (6), be paid the full
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:
Provided that where such authority
is of opinion that the termination of the
proceedings
instituted
against
the
Government servant had been delayed
due to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representation within sixty days from the
date on which the communication in this
regard is served on him, and after
considering the representations, if any,
submitted by him, direct for reasons to be
recorded in writing, that the Government
servant shall, subject to the provisions of
sub-rule (7), be paid for the period of
such delay, only such amount not being
the whole of such pay and allowance as it
may determine.
(3) In a case falling under sub-rule
(2), the period of absence from duty
including
the
period
of
suspension
preceding
dismissal,
removal
or
compulsory retirement, as the case may
be, shall be treated as a period spent on
duty for all purposes.
(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 appellant or reviewing
authority solely on the ground of noncompliance with 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-rule (5) 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.
(5) In a case falling under sub-rule
(4), the period of absence from duty
2 All] Ramjan Ali V. The Commissioner, Agra and others
681
including
the
period
of
suspension
preceding his dismissal, removal or
compulsory retirement, as the case may
be, shall not be treated as a period spent
on duty, unless the competent authority
specifically directs that it shall be treated
so for any specified purpose :
Provided that if the Government
servant so desires, such authority may
direct that the period of absence from
duty including the period of suspension
preceding his dismissal, removal or
compulsory retirement, as the case may
be, shall be converted into leave of any
kind
due
and
admissible
to
the
Government servant.
(6) The payment of allowances under
sub-rule (2) or sub-rule (4) shall be
subject to all other conditions under
which such allowances are admissible.
(7) The amount determined under the
proviso to sub-rule 92 or under sub-rule
(4) shall not be less than the subsistence
allowance
and
other
allowances
admissible under Rule 53.
(8) Any payment made under this
rule to Government servant on his
retirement shall be subject to adjustment
of the amount, if any, earned by him
through an employment during the period
between the date of removal, dismissal or
compulsory retirement, as the case may
be, and the date of reinstatement. Where
the emoluments admissible under this rule
are equal to or less than the amounts
earned during the employment elsewhere,
nothing shall be paid to the Government
servant."

12. A bare perusal of the aforesaid
provision makes it clear that before
passing
an
order
depriving
the
Government servant of full salary for the
period of suspension or when he was out
of employment, a show cause notice has
to be issued to the concerned Government
servant and only thereafter, the competent
authority may pass appropriate order
considering various aspects.

13. Admittedly, no such procedure
has
been
followed,
therefore,
the
impugned order, to the extent the
petitioner has been denied arrears of
salary for the period of suspension as well
as during the period he was out of
employment pursuant to the dismissal
order, which was modified by the
revisional order, is set aside. The writ
petition is, accordingly, allowed partly.

14. However, it is open to the
respondents to pass a fresh order in
respect of arrears of salary of the
petitioner for the period of his suspension
as well as the period when he was out of
employment pursuant to the dismissal
order, which was modified by the
revisional
order
dated
26.5.2004,
complying the procedure prescribed under
Fundamental Rule-54 and in accordance
with law.

There shall be no order as to costs.
Petition partly allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2008

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition 56228 of 2003

Ramjan Ali

...Petitioner
Versus
The Commissioner, Agra Division and
others

...Respondents

Counsel for the Petitioner:
Sri. V. Singh