# Dinesh Prasad v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 95
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-16
- **Case number:** Writ A No. 5033 of 2024
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-prasad-v-state-of-u-p-ors-52345
- **Pages:** 7

## Headnote

A. Service Law - Financial Handbook -
Volume II, Part II-IV - Rule 54 (2), 54 (3),
54 (4) & 73 - ReinStatement after
dismissal - Principle of 'No work No pay' -
Applicability - Petitioner was dismissed
from service by disciplinary authority on
09.01.2020,
but
was
subsequently
exonerated by appellate authority on
04.09.2020
holding
the
petitioner
innocent - Applying the principle of 'No
work no pay', the petitioner was refused
to
pay
salary
from
09.01.2020
to
29.09.2020 - Validity challenged - No
delay was caused by the petitioner in
submitting explanation or in filing appeal
- Effect - Held, it is not the case of the
respondents
that
the
petitioner
was
earning
through
any
employment
elsewhere for the period he was out of
service. Thus, the petitioner can not be
denied his salary by invoking Rule 54(8) -
By virtue of Rules 54(2) and 54(3), the
petitioner is entitled to full pay and
allowances
for
the
period
between
96 INDIAN LAW REPORTS ALLAHABAD SERIES
09.01.2020 to 29.09.2020 and his absence
from service during the said period has to
be treated as a period spent on duty for all
purposes. (Para 18, 19 and 20)

Writ petition allowed. (E-1)

## Text

7 All. Dinesh Prasad Vs. State of U.P. & Ors.
95
to payment of interest on the amount due to
be paid to the subscriber/depositor.

14. The prohibition for grant of
interest on subscriptions by an employee
beyond the period of one year from the date
of superannuation also amounts to unjust
enrichment since the opposite parties have
definitely
earned
interest
on
such
subscriptions ever since it was made and
continued to earn such interest on that
deposit till the date of actual payment.
Therefore it is unreasonable on part of
opposite parties to restrict payment of such
interest to depositors.

15. The aforesaid reasoning has
also been indicated by a coordinate Bench
of this Court in Raghuvir Sharma(supra),
which has been upheld in Special Appeal.

16.

In
view
thereof,
the
impugned orders dated 14.09.2021 and
18.12.2021 being against the mandatory
conditions of Section 4 of the Act of 1925
read
with
Regulation
17
of
the
Regulations of 1978, are hereby quashed
by issuance of a writ in the nature of
Certiorari. A further writ in the nature of
Mandamus
is
issued
commanding
opposite party no.2, i.e. Director, Rajya
Krishi Utpadan Mandi Parishad, Kisan
Bhawan, Vibhuti Khand, Gomti Nagar,
Lucknow to ensure payment of interest to
petitioners
on
subscriptions
to
the
contributory
Provident Fund
at
the
admissible
rates
from
the
date
of
superannuation till the date the sum
standing to the credit of the petitioners
was actually paid to them.

17. Aforesaid payment shall be
ensured to petitioners within a period of six
weeks from the date a certified copy of this
order is served upon opposite party no.2.
18. Resultantly, the petition
succeeds and is allowed at the admission
stage itself. The parties to bear their own
costs.
----------
(2024) 7 ILRA 95
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 5033 of 2024

Dinesh Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shyam Lal

Counsel for the Respondents:
C.S.C.

A. Service Law - Financial Handbook -
Volume II, Part II-IV - Rule 54 (2), 54 (3),
54 (4) & 73 - ReinStatement after
dismissal - Principle of 'No work No pay' -
Applicability - Petitioner was dismissed
from service by disciplinary authority on
09.01.2020,
but
was
subsequently
exonerated by appellate authority on
04.09.2020
holding
the
petitioner
innocent - Applying the principle of 'No
work no pay', the petitioner was refused
to
pay
salary
from
09.01.2020
to
29.09.2020 - Validity challenged - No
delay was caused by the petitioner in
submitting explanation or in filing appeal
- Effect - Held, it is not the case of the
respondents
that
the
petitioner
was
earning
through
any
employment
elsewhere for the period he was out of
service. Thus, the petitioner can not be
denied his salary by invoking Rule 54(8) -
By virtue of Rules 54(2) and 54(3), the
petitioner is entitled to full pay and
allowances
for
the
period
between
96 INDIAN LAW REPORTS ALLAHABAD SERIES
09.01.2020 to 29.09.2020 and his absence
from service during the said period has to
be treated as a period spent on duty for all
purposes. (Para 18, 19 and 20)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. The petition involves a question of
law and is being decided on the facts stated
in the orders passed by the state officers
impleaded as respondents in the present
petition, therefore, no purpose would be
served calling for a counter affidavit.

2. The petitioner is employed as
Follower with the U.P Police. Disciplinary
proceedings were instituted against the
petitioner under Rule 14 of the Uttar
Pradesh Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules
1991 (hereinafter referred to as, 'Rules,
1991') and a charge sheet dated 29.8.2018
was served on the petitioner. The charge
against
the
petitioner
was
that
the
petitioner, without informing his Officers
and without any leave, absented from duty
between 24.6.2018 and 26.6.2018. Another
charge against the petitioner was that after
joining the petitioner went on a hunger
strike and refused to resume his mess duty
which adversely affected the reputation of
the police force.

3. The petitioner submitted his
reply denying the charges. The inquiry
report was submitted on 5.9.2018 holding
the petitioner guilty of the charges levelled
against him. A show cause notice dated
11.7.2019 was issued to the petitioner to
show cause as to why he should not be
dismissed from service. After considering
the reply of the petitioner to the show cause
notice, the disciplinary authority i.e., the
Superintendent of Police, District Deoria
(respondent no.3) vide his order dated
9.1.2020 dismissed the petitioner from
service.

4. The petitioner challenged the
order dated 9.1.2020 through an appeal
filed under Rule 20 of the Rules 1991. The
said appeal was allowed by the Deputy
Inspector General of Police, Gorakhpur
Region, Gorakhpur vide his order dated
4.9.2020.
Through
his
order
dated
4.9.2020, the appellate authority exonerated
the petitioner of the charges levelled
against him. Consequently, by order dated
29.9.2020 passed by the Superintendent of
Police, District Deoria, the petitioner was
reinstated in service.

5. The Superintendent of Police,
District
Deoria
issued
notice
dated
18.1.2024 to the petitioner to show cause as
to why his services for the period the
petitioner was out of service i.e., between
9.1.2020 to 29.9.2020, be not regularised
without payment of salary on the principle
of 'no work no pay'. The notice was
ostensibly issued under Rule 73 of the
Financial Handbook Volume-II Part II to
IV.

6. The petitioner submitted his
reply to the aforesaid show cause notice
stating that the petitioner was out of service
between 9.1.2020 to 29.9.2020 because of
the order dated 9.1.2020 which had been
set aside in appeal, therefore, the petitioner
was entitled to his salary and other benefits
for the aforesaid period.

7. By his order dated 11.2.2024,
the Superintendent of Police, District
Deoria has directed that the petitioner shall
not be paid his salary for the period during
which he was out of service because of the
dismissal order, i.e., for the period between
7 All. Dinesh Prasad Vs. State of U.P. & Ors.
97
9.1.2020 to 29.9.2020. The order has been
passed on the principle of 'no work no
pay'. In his order dated 11.2.2024, the
Superintendent of Police, District Deoria
has denied salary to the petitioner for the
period he was out of service on the ground
that the acts of the petitioner for which he
had been charged were acts of gross
negligence and amounted to dereliction of
duty and therefore, the petitioner was not
entitled to salary for the period he was out
of service. The order dated 11.2.2024 has
been challenged in the present petition.

8. There is nothing on record and a
reading of the dismissal order dated
9.1.2020 as well as the order dated
11.2.2024 do not show that the petitioner
was any time under suspension during the
pendency of disciplinary proceedings.

9. For reasons to be stated
subsequently the order dated 11.2.2024 is
contrary to law and liable to be quashed.

10. A reading of the appellate
order dated 4.9.2020 passed by the
appellate authority shows that the petitioner
had been fully exonerated from the charges
levelled against him in the charge sheet. In
his order dated 4.9.2020, the appellate
authority has held that the petitioner was ill
and had not gone on a hunger strike and
had joined mess duty after returning. The
petitioner did his duties on the dates
mentioned in the charge sheet. In his order
dated 4.9.2020, the appellate authority held
that the evidence produced by the petitioner
proved his innocence. Apparently, the
petitioner had been fully exonerated of the
charges by the appellate authority vide its
order dated 4.9.2020.

11. The appellate authority in its
order dated 4.9.2020 had accepted the
explanation of the petitioner that he was not
guilty of the charges and had not remanded
back the matter to the disciplinary authority
for further inquiry. The opinion/findings
recorded by the competent authority in his
order dated 11.2.2024 that the conduct of
the petitioner for which he had been
charged in the disciplinary proceedings
were
acts
of
gross
negligence
and
amounted to dereliction of duty, are
evidently without jurisdiction.

12. Further, the conduct of the
petitioner for which he was subjected to
disciplinary proceedings was not relevant
to decide as to whether the petitioner was
entitled to his salary for the period he was
not in service because of the dismissal
order. Thus, the order dated 11.2.2024 is
also vitiated due to consideration of
irrelevant material and factors.

13. The Superintendent of Police,
District Deoria has passed the order dated
11.2.2024 ostensibly exercising his powers
under Rule 73 of the Financial Hand Book
Volume-II Part II to IV which is
reproduced below:

 "73. A Government servant who
remains absent after the end of his leave is
entitled to no leave salary for the period of
such absence, and that period will be
debited against his leave account as though
it were leave on half average pay, unless
his leave is extended by the Government.
Wilful absence from duty after the expiry of
leave may be treated as misbehaviour for
the purpose of Rule 15."

Rule 73 is invoked where the
government servant is absent after the end
of his leave, i.e., the government servant
overstays his leave. The petitioner was not
on leave between 9.1.2020 to 29.9.2020 but
stood dismissed for the said period because
98 INDIAN LAW REPORTS ALLAHABAD SERIES
of the dismissal order passed against him
by the disciplinary authority. Thus Rule 73
was not applicable in the present case.

14. The issue as to whether the
petitioner was entitled to his salary for the
period between 9.1.2020 to 29.9.2020, i.e.,
the period during which the petitioner was
not in service had to be considered and
decided under Rule 54 of the Financial
Hand Book Volume-II (Part II to IV). Rule
54 is reproduced below:

 "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 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 be; and

(b) whether or not the said period
shall be treated as a period spent on duty."

(2)
When
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 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 representation, 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 allowances as it
may determine.

(3) In a case falling under subrule (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 appellate or reviewing
authority solely on the 14 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 provision 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
7 All. Dinesh Prasad Vs. State of U.P. & Ors.
99
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 subrule (4), the period of absence from duty
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 so
treated 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. Note-The order of the
competent authority under the preceding
proviso shall be absolute and no higher
sanction shall be necessary for the grant
of-

(a) extraordinary leave in excess
of three months in the case of temporary
Government servant; and

(b) leave of any kind in excess of
five years in the case of permanent
Government servant.

(6) The payment of allowances
under sub-rule (2) of sub-rule (4) shall be
subject to all other conditions under which
such allowances are admissible.

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

(8) Any payment made under
this rule to 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 his 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.

Note-Where
the
Government
servant does not report for duty within
reasonable time after the issue of the
orders of the reinstatement after dismissal,
removal or compulsory retirement, no pay
and allowances will be paid to him for such
period till he actually takes over charge."

15. A reading of Rules 54(2) and
54(4) shows that, in Uttar Pradesh, the
principle 'no work-no pay' is not applicable
while considering the entitlement of State
Government
employees
for
pay
and
allowances for the period they were not in
service if the order dismissing, removing or
compulsory retiring them from service is
set aside either in appeal or review and the
government servant is reinstated in service
and no further inquiry is proposed to be
held. Rule 54 provides that if the
government
servant
who
has
been
reinstated in service after the order
dismissing or removing him from service
has been set aside in appeal or review and
he has been fully exonerated of the charges,
the government servant shall be entitled to
full pay and allowances that he would have
been entitled had he not been removed or
dismissed from service and the period of
absence from service shall be treated as
period spent on duty for all purposes.
However, where the government servant is
not exonerated of the charges but is still
reinstated in service or the order dismissing
or removing a government servant is set
aside in appeal or review solely on the
100 INDIAN LAW REPORTS ALLAHABAD SERIES
ground
of
non-compliance
with
the
requirements of Article 311(1) and (2) of
the Constitution and no further enquiry is
proposed to be held, the government
servant shall not be entitled to full pay and
allowances but will be entitled to be paid
such amount (not being the whole) of the
pay and allowances as the competent
authority may decide after giving the
employee notice of the quantum proposed
and after considering his representation but
it shall not be less than the subsistence
allowance and other allowances admissible
under Rule 53. It is apparent that, on his
reinstatement
after
the
order
of
dismissal or removal is set aside, a
government servant can not be denied
his entire pay and allowances for the
period he was out of service. The amount
which the government servant would be
entitled to get would depend on whether the
case of the government servant is covered
by Rule 54(2) or by Rule 54 (4).

16. The only circumstance in which
the government servant can be denied his
pay and allowances or part of the same for
the period he was out of service is specified
in Rule 54 (8). The rule provides that any
payment made to a government servant on
his reinstatement shall be subject to
adjustment of the amount earned by the
employee through an employment during
the period he was out of service and
nothing shall be paid to the government
servant where the emoluments payable to
him are equal to or less than those earned
by him during employment elsewhere.

17.
 The order
dismissing
the
petitioner has been set aside in appeal and
the petitioner has been fully exonerated by
the appellate authority vide its order dated
4.9.2020, therefore, the case of the
petitioner is covered by Rule 54(2).
18. It is not the case of the
respondents that the inquiry proceedings
against the petitioner had been delayed by
any act of the petitioner. The charge sheet
was issued to the petitioner on 29.8.2018
and the inquiry report was submitted on
5.9.2018. However, the show cause notice
was issued to the petitioner on 11.7.2019 to
which the petitioner submitted his reply on
31.7.2019. The dismissal order was passed
on 9.1.2020. During this period, the
petitioner was not under suspension. The
petitioner filed the appeal within time
which
was
decided
on
4.9.2020.
Apparently, the proviso to Rule 54(2) is not
applicable in the present case.

19. It is also not the case of the
respondents that the petitioner was earning
through any employment elsewhere for the
period he was out of service. Thus, the
petitioner can not be denied his salary by
invoking Rule 54(8).

20. Thus, by virtue of Rules 54(2)
and 54(3), the petitioner is entitled to full
pay and allowances for the period between
9.1.2020 to 29.9.2020 and his absence from
service during the said period has to be
treated as a period spent on duty for all
purposes.

21. For the aforesaid reasons, the
order dated 11.2.2024 passed by the
Superintendent of Police, District Deoria is
illegal and contrary to law and is, hereby,
quashed.

22. The petitioner had been
wrongly denied his salary for the period
between 9.1.2020 to 29.9.2020, therefore,
he is entitled to the cost of the writ petition
which is quantified as Rs.25,000/- and is
also entitled to interest on the pay and
allowances payable to him for the period
7 All. Pawan Kumar Vs. State of U.P. & Ors.
101
the petitioner was out of service, i.e., for
the period between 9.1.2020 to 29.9.2020.

23. The Superintendent of Police,
District Deoria is directed to pay to the
petitioner his full pay and allowances for
the period 9.1.2020 to 29.9.2020 along with
simple interest calculated at the rate of 6%
per annum and also the cost of the writ
petition within a period of one month from
today.

24. The petition is allowed with
the aforesaid directions.

25. The Registrar (Compliance)
shall send a copy of this order to the
Superintendent of Police, District Deoria
within one week from today.
----------
(2024) 7 ILRA 101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 5519 of 2023

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Ram Bali Tiwari, Advocate

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependants of Government Servants
Dying in Harness Rules, 1974 - Rule
2(a)(iii) - UP Regularization of Daily
Wages Appointments on Group 'D' Posts
Rules,
2001
-
Compassionate
appointment - Petitioner's mother was
engaged as Sweeper on daily-wages
and worked for 39 years - Though she
was entitled for regularization, but
could not be regularized and died
during service - Petitioner's claim was
rejected on the ground that mother was
not
regular
employee
-
Validity
challenged
-
Held,
the
case
of
petitioner's mother ought to have been
considered in the first instance under
the Rules 2001, and then, under the
Rules of 2016, if not decided under the
Rules of 2001. But, there is little scope
for the statutory Selection Committee
constituted under the Rules to think
against regularization of her services in
the face of a period of time as long as
39
years
of
daily-wage
service
-
Kuldeep Thakur's case relied upon -
High
Court
issued
mandamus
for
regularization
of
the
petitioner's
mother's services notionally and for
compassionate
appointment
of
the
petitioner on the basis of his mother's
re-determined status. (Para 16, 18, 19
and 20)

Writ petition allowed. (E-1)

List of Cases cited:

1. Secretary, St. of Karn. & ors.Vs Umadevi (3)
& ors.; (2006) 4 SCC 1

2. Pawan Kumar Yadav Vs St. of U.P. & ors.;
2011 (1) AWC 1028 (FB)

3. St. of U.P. & ors.Vs Kuldeep Thakur; 2017 (2)
AWC 1523 (LB)

4. Nikhil Bharadwaj Vs St. of U.P. & ors.;
2021:AHC:118710

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order of the Divisional Forest
Officer,
Social
Forestry
&
Wildlife
Division, Pratapgarh dated 05.06.2023,
rejecting
the
petitioner's
claim
for
compassionate appointment.