# Dharam Singh v. State of U.P. & Ors. 542 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 3 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-22
- **Bench:** Dr Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-singh-v-state-of-u-p-ors-542-indian-law-reports-allahabad-series-43482
- **Pages:** 5

## Headnote

ground that he had contracted a Marriage During the subsistence of a previous marriage. An order of
dismissal was Passed against the appellant on 14 September 2006 which was confirmed in Appeal on
10 January 2007 and in revision on 29 December 2011. These Proceedings had been initiated against
the appellant under the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal)
Rules,19911.

 The appellant was not under suspension initially when the disciplinary Proceedings were held and
until the order of termination was passed. Since the penalty of dismissal has been set aside in
consequence of or by a Decision of a Court of law, Rule 17 (4) (b) contemplates that the employee, if
He was not under suspension, shall, if so directed by the appointing authority, Be deemed to have
been placed under suspension on and from the date of the Original order of dismissal or removal. In
these circumstances, the only Appropriate course of action would be to direct that the appellant
would, with Effect from the date of the original order of dismissal dated 14 September 2006, be
placed under suspension. The appellant cannot be granted full Reinstatement in service as a result of
the order of Tribunal. However, the Order of the Tribunal equally does not stipulate that the appellant
will not be Placed under suspension. In a situation where the original order of dismissal Has been set
aside and the enquiry is to continue, the correct course of action Is to take recourse to the provisions
of Rule 17 (4) (b) by directing that the Appellant be placed under suspension from the date of the
original order of Dismissal. The competent authority shall now take necessary action in Accordance
with law, consistent with the aforesaid directions. The appellant Would be entitled to his subsistence
allowance accordingly.

Held: Para-

Case Law discussed: Supreme Court Union of India Vs Y S Sadhu, Ex-Inspector4, ECIL,
Hyderabad Vs B Karunakar5.

## Text

3 All. Dharam Singh Vs State Of U.P. & Ors.
541
loan mortgaging plot no. 363 whereas the case of the appellant appears to be that he had under some
confusion had mortgaged plot no. 363 and had not mortgaged plot no. 63 although he was owner of
both the plots. May be for this reason the order of punishment was modified but from the judgment
and order dated 11.4.2002 in earlier writ petition no. 12631 of 1998 it appears that there is no award
of interest to the petitioner by the Court. In the writ petition it was prayed by the petitioner-appellant
that the Management be directed to award monetary compensation of Rs. 3,00,000/- for the
unmerited mental torture and harassment caused to him during years 1995, 1996 and 1997 and for
loss of interest on emoluments illegally withheld by the Management. Even after the appeal and
contempt petition filed by the petitioner amount of interest was not awarded to him.

14. It appears that the petitioner wanted some compensation In respect of mental agony and
therefore, filed writ petition for Payment of interest which has not been claimed even in the writ
Petition. This payment of interest has been denied by the Court In the earlier writ petition as well as in
writ petition no. 58982 of 2009, Amar Nath Upadhayaya versus Chairman & Managing Director,
Central Bank of India and others.

15. From the reading of aforesaid paragraph 9 of the Judgment rendered in the case of Union of
India (supra) cited By the learned counsel for the respondents, it appears that on Equitable
consideration payment of interest can also be ordered By the Court where the interest of amount due
is normal accrualOn the arrears of salary.

16. A perusal of Annexure-7 to the special appeal shows that The difference of salary for the
years 1995, 1996 and 1997 has Been paid to the appellant in 2006. The case of the appellant Was
decided vide judgment and order dated 11.4.2002, he Would be entitled for payment of normal
interest accrues on the Amount of arrears of salary from the date of judgment i.e. 11.4.2002 to 2006.
The judgment and order dated 20.11.2009 Of the learned Single Judge is modified to the extent that
the Appellant shall be paid simple interest at the rate 6% per annum From the date of judgment
i.e.11.4.2002 to 2006 accrues on the
Amount of arrears of salary.

17. For the reasons stated above, the appeal is allowed. No Order as to costs.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2016

BEFORE

THE HON'BLE DR DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J

Special Appeal No.- 98 of 2016

Dharam Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents
542 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Satya Prakash

Counsel for the Respondents:
C.S.C.

 The appellant was posted as Assistant Sub Inspector in the office of The Senior
Superintendent of Police, Ghaziabad. A disciplinary enquiry was Held against the appellant on the
ground that he had contracted a Marriage During the subsistence of a previous marriage. An order of
dismissal was Passed against the appellant on 14 September 2006 which was confirmed in Appeal on
10 January 2007 and in revision on 29 December 2011. These Proceedings had been initiated against
the appellant under the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal)
Rules,19911.

 The appellant was not under suspension initially when the disciplinary Proceedings were held and
until the order of termination was passed. Since the penalty of dismissal has been set aside in
consequence of or by a Decision of a Court of law, Rule 17 (4) (b) contemplates that the employee, if
He was not under suspension, shall, if so directed by the appointing authority, Be deemed to have
been placed under suspension on and from the date of the Original order of dismissal or removal. In
these circumstances, the only Appropriate course of action would be to direct that the appellant
would, with Effect from the date of the original order of dismissal dated 14 September 2006, be
placed under suspension. The appellant cannot be granted full Reinstatement in service as a result of
the order of Tribunal. However, the Order of the Tribunal equally does not stipulate that the appellant
will not be Placed under suspension. In a situation where the original order of dismissal Has been set
aside and the enquiry is to continue, the correct course of action Is to take recourse to the provisions
of Rule 17 (4) (b) by directing that the Appellant be placed under suspension from the date of the
original order of Dismissal. The competent authority shall now take necessary action in Accordance
with law, consistent with the aforesaid directions. The appellant Would be entitled to his subsistence
allowance accordingly.

Held: Para-

Case Law discussed: Supreme Court Union of India Vs Y S Sadhu, Ex-Inspector4, ECIL,
Hyderabad Vs B Karunakar5.

(Delivered by Hon'ble Dr D. Y Chandrachud, C.J.)

1. The appellant was posted as Assistant Sub Inspector in the office of the Senior
Superintendent of Police, Ghaziabad. A disciplinary enquiry was held against the appellant
on the ground that he had contracted a marriage during the subsistence of a previous
marriage. An order of dismissal was passed against the appellant on 14 September 2006
which was confirmed in appeal on 10 January 2007 and in revision on 29 December 2011.
These proceedings had been initiated against the appellant under the Uttar Pradesh Police
Officers of Subordinate Ranks (Punishment and Appeal) Rules, 19911. The appellant filed a
claim petition before the State Public Services Tribunal2. The Tribunal by its judgment
dated 22 September 2014 held that the departmental proceedings had not been conducted in
accordance with the Rules, since the appellant had not been furnished with relevant
documentary material. Consequently, the order of the Tribunal set aside the order of
termination as well as the appellate and revisional orders. However, the Tribunal came to the
3 All. Dharam Singh Vs State Of U.P. & Ors.
543
conclusion that it was not necessary to reinstate the appellant. The State was directed to
initiate a fresh enquiry from the stage of serving a charge sheet after furnishing to the
appellant all relevant documentary evidence relied upon in support thereof.

2. The appellant filed a writ petition before this Court3 in which his grievance was that
once the Tribunal had held that the disciplinary proceeding was vitiated on the ground of a
defect, the proper course of action was to remit the matter back for a fresh enquiry from the
stage from where the defect was found and, in the meantime, to place the employee under
suspension. In this regard, the appellant relied upon a judgment of the Supreme Court in
Union of India Vs Y S Sadhu, Ex-Inspector4 which, in turn, followed the judgment of a
Constitution Bench in Managing Director, ECIL, Hyderabad Vs B Karunakar5. The
learned Single Judge disposed of the writ petition by directing that since the appellant had
made a representation, it may be considered expeditiously within six weeks. Following this
direction, the Deputy Inspector General of Police passed an order on 29 November 2015
rejecting the representation. The order rejecting the representation holds that since the
Tribunal had specifically not granted the relief of reinstatement to the appellant, there was
no occasion for the State to do so.

3. The appellant filed a writ petition6 in order to challenge the order dated 29
November 2015 and sought a direction to the effect that he should be placed under
suspension and be paid subsistence allowance. The writ petition was dismissed by the
learned Single Judge by an order dated 5 January 2016 on the ground that the order of the
Tribunal was not challenged before the High Court and the Tribunal had issued a direction
not to reinstate the appellant, which is still subsisting. The appellant, aggrieved by the
judgment of the learned Single Judge dated 5 January 2016, is in special appeal.

4. At this stage, it may also be noted that the appellant filed another writ petition7
seeking to challenge the order of the Tribunal by which he had been denied reinstatement. A
Division Bench of this Court by a judgment dated 25 January 2016 dismissed the writ
petition on the ground that the remedy against the order of the Tribunal was available when
the appellant filed the first writ petition (Writ-A No 69731 of 2015) which was dismissed on
5 January 2016.

5. The narration of facts above would indicate that the Tribunal in its judgment dated
22 September 2014 set aside the order of termination dated 14 September 2006 as well as
the appellate and revisional orders dated 10 January 2007 and 29 December 2011. The
Tribunal was of the view that while a fresh enquiry should be held against the appellant
from the stage of serving the charge sheet, it was not necessary to reinstate the appellant in
service.

6. For the purposes of the present proceedings, we would proceed on the basis that the
order of the Tribunal continues to subsist and holds the field. The learned Single Judge in
the impugned order proceeded on that basis and also noted that the order of the Tribunal had
not been challenged. When the order of the Tribunal was challenged by the appellant, the
544 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition met the fate of dismissal on 25 January 2016 on the ground that such a
challenge ought to have been addressed in the earlier writ petition.

7. Be that as it may, the Court, for the purposes of the present special appeal must, in
consequence, proceed on the basis that the order of the Tribunal holds the field. The
Tribunal has directed that during the pendency of the disciplinary proceedings, the appellant
would not have to be reinstated. The Tribunal having set aside the order of termination, the
natural consequence would be that the relationship of master and servant stands restored.
However, in the facts and circumstances of the case, the Tribunal was of the view that
reinstatement was not necessary. That still leaves the question open as to what, in the
circumstances, would be the status of the appellant in relation to the State as the employer. If
the appellant is not to be reinstated after the order of termination stands set aside, the status
of the appellant cannot be left in the limbo, particularly having due regard to the fact that the
disciplinary enquiry is required to continue in accordance with law and has to be brought to
its logical conclusion. In this context, it would be necessary to advert to the provisions of
Rule 17 (4) of the Rules which provides as follows:

"(4) Where a penalty of dismissal or removal from service imposed upon a police
officer is set aside or declared or rendered void in consequence of or by a decision of a
Court of law and the appointing authority, on a consideration of the circumstances of the
case, decides to hold a further inquiry against him on the allegations on which the penalty of
dismissal or removal was originally imposed, whether the allegations remain in their
original form, are clarified or their particulars better specified or any part there of a minor
nature -

(a) if he was under suspension immediately before the penalty was awarded to
him, the order of his suspension shall, subject to any direction of the appointing authority, be
deemed to have continued in force on and from the date of the original order of dismissal or
removal;

(b) if he was not under suspension, he shall, if so directed by the appointing
authority, be deemed to have been placed under suspension on and from the date of the
original order of dismissal or removal."

8. The appellant was not under suspension initially when the disciplinary proceedings
were held and until the order of termination was passed. Since the penalty of dismissal has
been set aside in consequence of or by a decision of a Court of law, Rule 17 (4) (b)
contemplates that the employee, if he was not under suspension, shall, if so directed by the
appointing authority, be deemed to have been placed under suspension on and from the date
of the original order of dismissal or removal. In these circumstances, the only appropriate
course of action would be to direct that the appellant would, with effect from the date of the
original order of dismissal dated 14 September 2006, be placed under suspension. The
appellant cannot be granted full reinstatement in service as a result of the order of Tribunal.
However, the order of the Tribunal equally does not stipulate that the appellant will not be
placed under suspension. In a situation where the original order of dismissal has been set
3 All. Smt. Shiv Patti Devi (Since Deceased) & Ors. Vs Yudhishthir Dhar Dubey
545
aside and the enquiry is to continue, the correct course of action is to take recourse to the
provisions of Rule 17 (4) (b) by directing that the appellant be placed under suspension from
the date of the original order of dismissal. The competent authority shall now take necessary
action in accordance with law, consistent with the aforesaid directions. The appellant would
be entitled to his subsistence allowance accordingly.

9. The order of the learned Single Judge dated 5 January 2016 is accordingly set aside.
The special appeal shall be governed by the aforesaid directions.

10. The special appeal is accordingly disposed of. There shall be no order as to costs.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Civil Revision No.- 427 OF 2011

Smt. Shiv Patti Devi (Since Deceased) & Ors ...Revisionists
Versus
Yudhishthir Dhar Dubey ...Opposite Party

Counsel for the Revisionists:
Shri Yogesh Agarwal

Counsel for the Opposite Party:
Shri Manish Goyal

Proceedings

This Civil Revision was preferred against the order dated 08.12.2008 passed by the Civil Judge (Senior
Division), Gorakhpur in Original Suit No. 538 of 2003 (Yudhishthir Dhar Dubey v. Smt. Shiv Patti Devi
& Others), whereby the application 126-Ga filed by the defendants under Order VII Rule 11 of the
Code of Civil Procedure for rejection of the plaint was rejected. The revisionists, being aggrieved by
the said order, invoked the revisional jurisdiction of this Court under Section 115 CPC.

Procedure

The defendants in the original suit filed an application under Order VII Rule 11 CPC on the ground
that the suit was barred by the principle of res judicata in view of the earlier decision of the High
Court in Writ Petition No. 17599 of 1999, wherein the registered free-hold sale deed dated 11.01.1999
had already been cancelled. The trial court, after hearing both sides and considering the pleadings,
rejected the said application holding that the issue involved a mixed question of fact and law. Against
this interlocutory order, the present revision was filed. Arguments were heard from both sides and the
record was perused before dismissal of the revision.

Penal Sections