# Brijesh Kumar v. State of U.P. & Ors - **Citation:** (2021) 5 ILRA 195 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-03-10 - **Case number:** Service Single No. 16561 of 2020 - **Bench:** Rajesh Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-v-state-of-u-p-ors-47057 - **Pages:** 3 ## Headnote Constitution of India - Art. 14, Art. 21 - Suspension - keeping an employee under suspension for substantially long period i.e. for more than 14 months without providing charge-sheet & without conducting departmental inquiry is harassment - Non-making of subsistence allowance during period of suspension is absolutely illegal & is violation of Article 14 and 21 (Para 9) Allowed. (E-4) ## Text 5 All. Brijesh Kumar Vs. State of U.P. & Ors. 195 (2021)05ILR A195 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 10.03.2021 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Service Single No. 16561 of 2020 Brijesh Kumar ....Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Jai Narayan Pandey, Aprajita Tiwari, Mayur Shukla Counsel for the Respondents: C.S.C, Arun Deshwal Constitution of India - Art. 14, Art. 21 - Suspension - keeping an employee under suspension for substantially long period i.e. for more than 14 months without providing charge-sheet & without conducting departmental inquiry is harassment - Non-making of subsistence allowance during period of suspension is absolutely illegal & is violation of Article 14 and 21 (Para 9) Allowed. (E-4) (Delivered by Hon'ble Rajesh Singh Chauhan, J.) 1. Heard Sri Jai Narayan Pandey, learned counsel for the petitioner. 2. List revised. None appears for the opposite parties, nor any request for adjournment has been made. 3. On 08.03.2021 this Court directed learned counsel for the petitioner to intimate the learned counsel for the opposite parties about the date fixed, as the date was fixed for 10.03.2021. 4. Sri Pandey has shown a letter whereby he has intimated about the date fixed through e-mail. 5. By means of this writ petition, the petitioner has assailed the suspension order 04.01.2020 passed by the Managing Director, U.P. Cooperative Federation Limited, Lucknow. The reason/ground of suspension is that the petitioner was transferred to District Office, Mau on 21.11.2019, but he has not submitted his joining at the transferred place. Therefore, pending departmental inquiry, he was placed under suspension. Learned counsel for the petitioner has drawn attention of this Court towards Annexure-3, which is an order dated 09.01.2020 passed by the District Manager, P.C.F., Jhansi, relieving the petitioner from Jhansi. 6. Learned counsel for the petitioner has submitted that when the petitioner was relieved from Jhansi on 09.01.2020, how could he submit his joining at Mau, pursuant to the transfer order dated 21.11.2019. Therefore, the reason so indicated in the suspension order is misconcieved and the Managing Director has passed the suspension order without verifying the fact from Jhansi, as to whether the petitioner has been relieved from Jhansi or not. 7. Learned counsel for the petitioner has submitted that after the suspension order dated 04.01.2020 being passed, the petitioner preferred representations to the Managing Director, which have been enclosed with the writ petition, apprising 196 INDIAN LAW REPORTS ALLAHABAD SERIES that he has not committed any misconduct. As non-submitting his joining at transferred place was not a deliberate and intentional conduct of the petitioner, but the competent authority at Jhansi has not relieved the petitioner till 09.01.2020 and before his relieving from Jhansi, the suspension order dated 04.01.2020 has been passed, therefore, he has requested that suspension order may be withdrawn. 8. Learned counsel for the petitioner has submitted that more than 14 months period have passed since order of suspension dated 04.01.2020, but neither the charge-sheet has been served upon the petitioner nor any inquiry has been conducted. He has further submitted that after the suspension of the petitioner, he has not been paid subsistence allowance till date. He has lastly submitted that he is ready to submit his joining at the transferred place and the opposite parties may be directed to accept the joining of the petitioner at transferred place at District Office, P.C.F., Mau. 9. Be that as it may, since the counsel for the opposite party Nos. 2, 3 and 4 is not present to dispute the contention of the petitioner and despite the list having been revised, no request for adjournment has been made, therefore, the contention and submission of the learned counsel for the petitioner are treated to be correct. Besides, the records of the writ petition are also supporting the contention of the petitioner, inasmuch as the suspension order has been passed on 04.01.2020 prior to the relieving order dated 09.01.2020, whereby the petitioner has been relieved from Jhansi. Therefore, it appears that the suspension order has been passed without verifying the fact and reason for not submitting the joining at transferred place by the petitioner. Not only the above, when the petitioner has preferred his representation dated 22.01.2020 (Annexure 4 to the writ petition) to the General Manager and representation dated 05.02.2020 (Annexure 5 to the writ petition) preferred to the Managing Director, the competent authority must have verified the very fact as to whether the petitioner has committed any misconduct or not, inasmuch as not submitting joining at the transferred place for the reason that he was not relieved from Jhansi on or before passing of the suspension order, may not be treated as misconduct. Further, keeping an employee under suspension for substantially long period i.e. for more than 14 months in the present case without providing charge-sheet and without conducting departmental inquiry is a harassment. Non-making of subsistence allowance during period of suspension is absolutely illegal and unwarranted action/inaction of the concerning opposite party, as non-payment of subsistence allowance during period of suspension is violation of Article 14 and 21 of the Constitution of India. 10. Therefore, in view of the above, the impugned order dated 4.01.2020 passed by the Managing Director, U.P. Cooperative Federation Limited, Lucknow, which is contained as Annexure-1 to the writ petition is hereby quashed. The competent authority is directed to accept the joining of the petitioner at Mau pursuant to his transfer order dated 21.11.2019. He shall be paid his regular salary as and when the same falls due. The opposite parties are also directed to make payment of entire salary for the suspension period of the petitioner expeditiously, preferably within a period of one month. 11. In view of the aforesaid terms, the writ petition is allowed. No order as to costs. 5 All. Anuragh Singh & Ors. Vs. State of U.P. 197 ---------- (2021)05ILR A197 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 21.05.2021 BEFORE THE HON'BLE CHANDRA DHARI SINGH, J. Service Single No. 30492 of 2017 Anuragh Singh & Ors. ....Petitioners Versus State of U.P. ...Respondent Counsel for the Petitioners: Yadukul Shiromani Srivast Counsel for the Respondent: C.S.C. Constitution of India - Art. 14 & 16 - Promotion & financial benefits- Training Officer in Judicial Training and Research Institute (JTRI) - 'Ex-Cadre' posts - No rules regarding promotion of Training Officer - Training Officer denied benefit of ACP on the ground that they hold ExCadre posts - Held - employees cannot be made to suffer in the absence of rules regarding promotion - promotions are granted to a higher post to avoid stagnation - work of Training Officer is perennial, regular and permanent - said post was not created for any specific person or particular period and not going to be abolished after their retirement - they continued in service without any break from the respective dates of their appointment, therefore, they are members of the service in a substantive capacity - No justification for recovery of excess payment made to the petitioners which was given to them after considering their continuous long length of service (Para 34, 36) Allowed.(E-4) List of Cases cited:- 1. Rudra Kumar Sain & ors. Vs U.O.I.& ors. - (2000) 8 SCC 25 2. D.R. Nim, IPS Vs U.O.I. - AIR 1967 SC 1301 3. G.K. Dudani & ors. Vs S.D. Sharma & ors. - 1986 (supp) SCC 239 4. State of Tripura & ors. Vs K.K. Roy - (2004) 9 SCC 65 5. A. Satyanarayana & ors. v. S. Purushotham & ors. - (2008) 5 SCC 416 (Delivered by Hon'ble Chandra Dhari Singh, J.) 1. The petition has been filed with the following prayers:- "(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.09.2017 served on 27.9.2017 as contained in Annexure Nos. 1, 2 & 3 to this writ petition. (b) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them not to give effect to the impugned orders dated 25.9.2017 as contained in Annexure Nos. 1, 2 & 3 which has been issued in circumvention of the GOs dated 22.5.1990 & 16.11.1998 as contained in Annexure Nos. 9 & 15 respectively. (c) Issue a writ order or direction in the nature of mandamus commanding the opposite parties by directing them to consider the petitioners for upgradation/ modification of their pay scale at least above those incumbents who were appointed in Office Staff i.e. ministerial