# Hari Raj Prasad Kushwaha v. Director of Non Formal Education U.P. and others

- **Citation:** (2008) 3 ILRA 878
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-29
- **Case number:** Civil Misc. Writ Petition No.12207 of 2001
- **Bench:** V.M. Sahai, S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-raj-prasad-kushwaha-v-director-of-non-formal-education-u-p-and-others-39638
- **Pages:** 8

## Headnote

U.P. Fundamental Rules( Financial Hand
Book Volume II ) Part 2 to 4-Rule 54B(1) and (5)- forfeiture of salary after
retirement-without
notice
or
opportunity-held-illegal.

Held: Para 24

In view of the fact that the impugned
punishment order dated 14.8.2000 in so
far as it has forfeited the salary of the
petitioner for suspension period was
passed in violation of principles of
natural Justice, the said punishment
order dated 14.8.2000 is liable to be
quashed to the extent it has ordered
forfeiture
of
balance
salary of the
petitioner for the suspension period.
Case law discussed:
AIR 1999 SC 22

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2008
878
9. For the foregoing reasons, the
recovery, as is to be made from the
petitioners with regard to the enhanced
cost, cannot be justified and is thus
quashed. The other amounts which are
required to be paid by the petitioners, as
mentioned in the impugned orders, which
would be lease amount and other charges
would however be payable by the
petitioners.

Writ petition stands allowed to the
extent as indicated above. There shall be
no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABD 29.08.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No.12207 of 2001

Hari Raj Prasad Kushwaha ...Petitioner
Versus
Director of Non Formal Education U.P.
and others

...Respondents

Counsel for the Petitioner:
Sri. P.R. Maurya

Counsel for the Respondent:
S.C.

U.P. Fundamental Rules( Financial Hand
Book Volume II ) Part 2 to 4-Rule 54B(1) and (5)- forfeiture of salary after
retirement-without
notice
or
opportunity-held-illegal.

Held: Para 24

In view of the fact that the impugned
punishment order dated 14.8.2000 in so
far as it has forfeited the salary of the
petitioner for suspension period was
passed in violation of principles of
natural Justice, the said punishment
order dated 14.8.2000 is liable to be
quashed to the extent it has ordered
forfeiture
of
balance
salary of the
petitioner for the suspension period.
Case law discussed:
AIR 1999 SC 22

(Delivered by Hon'ble V.M. Sahai, J.)

1. This writ petition is of the year
2001. On 31.3.2001 the Standing Counsel
was allowed one month's time for filing
counter affidavit. A stop-order was passed
on 22.5.2001 allowing one month's and no
more further time to the Standing Counsel
for filing counter affidavit. Since no
counter affidavit has been filed by the
Standing 'Counsel in spite of stop-order,
and we are in the year 2008, we are
proceeding to dispose of the petition
finally.

2. The present Writ Petition has
been filed by the petitioner, interalia -
praying for issuance of a writ, order or
direction in the nature of mandamus
commanding the respondents to pay the
arrears of salary to the petitioner of the
suspension period, and with a further
prayer for issuance of writ, order or
direction in the nature of certiorari to
quash the order:dated 14.8.2000 passed
by the respondent no.2 in-so-far-as it has
detained the payment of salary for the
suspension period.

3. The petitoner was suspended by
the
order
dated
3.11.1999.
In
departmental proceedings, the Inquiry
Officer submitted his enquiry Report
dated 7.6.2000. In the said Enquiry
Report the Inquiry Officer has concluded
that the Charges Nos. 1,2,3 and 4 against
the petitioner were proved, and further it
was concluded by the Inquiry Officer that
3 All] Hari Raj Prasad Kushwaha V. Director of Non Formal Education and others
879
the petitioner alone was not guilty and
Gram Shiksha Samiti was also guilty. The
Inquiry
Officer
recommended
the
punishment of 'Warning' as well as
'stoppage of one annual increment for two
years' and for reinstatement of the
petitioner in service with salary. Copy of
the Enquiry Report has been filed as
Annexure-2 to the Writ Petition.

4. The Disciplinary Authority
considered the Enquiry Report and passed
an order dated 14.8.2000 reinstating the
petitioner in service and .forfeiting the
balance salary for the suspension period.
The continuity in service was granted to
the petitioner and for the year 1999-2000
"CENSURE" entry was awarded by the
order dated 14.8.2000. Copy of the said
order dated 14.8.2000 has been filed as
Annexure-3 to the Writ Petition.

5. We have heard Sri. P.R. Maurya
learned counsel for the petitioner and the
learned Standing Counsel appearing for
the respondents, and perused the record.

6. Learned counsel for the petitioner
has urged that the balance salary for the
suspension period cannot be forfeited by
the
Disciplinary
Authority
while
reinstating the employee in service. It is
further submitted that Rule 54-B (1) and
(5) of Chapter VIII of the Uttar Pradesh
Fundamental Rules (Financial Hand Book
Vol. II, Part II to IV) contemplates giving
of notice and opportunity to the employee
before any order regarding forfeiture of
balance salary of such employee is passed
while reinstating him in service. No
notice or opportunity in this regard has
been given to the petitioner.

7. In reply, the learned Standing
Counsel has submitted that the petitioner
has an alternative remedy of filing an
Appeal against the punishment order, and,
therefore, this Court should not exercise
its power under Article 226 of the
Constitution of India. It is further
submitted that Rule 54-B occurs in
Chapter VIII of the Financial Hand Book
Vol. II, Part II to IV. Chapter VIII deals
with
"Dismissal,
Removal
and
suspension" . Therefore, the submission
proceeds, Rule 54-B is confined to cases
where punishment of 'Dismissal' or
'Removal' from service is contemplated,
and consequently, the said Rule is not
applicable to the present case.

8.

We
have
considered
the
submissions made by the learned counsel
for the parties.

9. The short question, which arises
for consideration in this Writ Petition, is
as to whether the balance salary during
the suspension period could be forfeited
by the Disciplinary Authority while
reinstating the employee in service
without issuing a show-cause notice to
him.

10. In order to answer the above
question, it is necessary to refer to the
relevant provisions of Chapter VIII of
Pradesh Fundamental Rules (Financial
Hand Book Vol. II, Part II to IV.)

11. Chapter VIII deals with
'dismissal', 'removal' and suspension' as is
evident from the Heading of the said
Chapter.

12. Rule 52 occurring in the said
Chapter VIII provides that the pay and
allowance of a Government Servant, who
is dismissed or removed from service,
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
880
ceases from the date of such dismissal or
removal.

13. Rule 53 occurring in the said
Chapter VIII, interalia, deals with the
payments, namely, subsistence allowance
and compensatory allowance to be made
to
a
Government
Servant
under
suspension or deemed to have been placed
under suspension by an order of the
Appointing Authority.

Rule 54 occurring in .the said Chapter
VIII deals with a Government Servant,
who has been dismissed, removed or
compulsorily retired and 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. It requires the authority competent,
to order reinstatement to consider and
make specific order 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 further, as to whether or not the
said period shall be treated as a period
spent on duty.

Rule 54-A occurring in the said Chapter
VIII deals with a Government Servant
whose dismissal, removal or compulsory
retirement is set aside by a Court of Law.
It is provided that if 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.

Rule 54-B occurring in the said Chapter
VIII provides as follows:

"54-B. (1) When a Government servant
who has been suspended is reinstated or
would have been so reinstated but for his
retirement on superannuation while under
suspension, 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
suspension
ending
with
reinstatement or the date of his retirement
or superannuation as the case may be;
and

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

(2) Notwithstanding anything contained in
Rule 53, where a Government servant
under
suspension
dies
before
the
disciplinary
or
Court
proceedings
instituted against him are concluded, the
period between the date of suspension and
the date of death shall be treated as duty
for all purposes and his family shall be
paid the full pay and allowances for that
period to which he would have been
entitled had he not been suspended,
subject to adjustment in respect of
subsistence allowance already paid.

(3) Where the authority competent to
order reinstatement is of the opinion that
the suspension was wholly unjustified, the
Government servant shall, subject to the
provisions of sub-rule (8), to be paid the
full pay and allowances to which he
would have been entitled, had he not been
suspended:

Provided that where such authority is of
the opinion that the termination of the
3 All] Hari Raj Prasad Kushwaha V. Director of Non Formal Education and others
881
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 be paid for the period of
such delay only such amount (not being
the whole) of such pay and allowances as
it may determine.

(4) In a case falling under sub-rule (3) the
period of suspension shall be treated as a
period spent on duty for all purposes.

(5) In cases other than those falling under
sub-rules (2) and (3), the Government
servant shall subject to the provisions of
sub-rules (8) and (9), be paid such
amount (not being the whole) of the pay
and allowances to which he would have
been entitled had he not been suspended,
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.

(6) Where suspension is revoked pending
finalisation of the disciplinary or Court
proceedings, any order passed under subrule (1) before the conclusion of the
proceedings against the Government
servant, shall be reviewed on its own
motion after the conclusion of the
proceedings by the authority mentioned in
sub-rule (1), who shall make an order
according to the provisions of sub-rule (3)
or sub-rule (5), as the case may be .

(7) In a case falling under sub-rule (5) the
period of suspension 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
desires, such authority may order that the
period of suspension 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.

(8) The payment of allowances under subrule (2), sub-rule (3) or sub-rule (5) shall
be subject to all other conditions under
which such allowances admissible.

(9) The amount determined under the
proviso to sub-rule (3) or under sub-rule
(5), shall not be less than the subsistence
allowance
and
other
allowances
admissible under Rule 53.

(10) 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 suspension and the date of
reinstatement or the date of retirement on
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
882
superannuation while under suspension.
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.

Note.- Where the Government servant
does not report for duty within reasonable
time after the issue of the order of
reinstatement after suspension, no pay
and allowance? will be paid to him for
such period till he actually takes over
charge."

14. Sub-rule (1) of Rule 54-B deals
with a Government Servant who has been
suspended and is reinstated or would have
been so reinstated but for his retirement
on
superannuation
while
under
suspension. In such a case, the authority
competent to order reinstatement shall
consider and make a specific order
regarding the pay and allowances to be
paid to the Government Servant for the
period
of
suspension
ending
with
reinstatement or the date of his retirement
or superannuation as the case may be, and
further, as to whether or not the said
period shall be treated as a period spent
on duty.

15. Sub-rule (2) of Rule 54-B deals
with
a
Government
Servant
under
suspension
who
dies
before
the
disciplinary
or
Court
proceedings
instituted against him are concluded. In
such a case, the period between the date
of suspension and the date of death shall
be treated as duty for all purposes and his
family shall be paid the full pay and
allowances for that period to which he
would have been entitled had he not been
suspended, subject to adjustment in
respect of subsistence allowance already
paid.

16. Sub-rule (3) of Rule 54-B,
interalia, provides that where the authority
competent to order reinstatement is of the
opinion that the suspension was "wholly
unjustified", the Government Servant
shall be paid the full pay and allowances
to which he would have been entitled, had
he not been suspended. In such a case, the
period of suspension "shall be treated" as
a period spent on duty for all purposes in
view of sub-rule (4) of Rule 54-B.

17. Sub-rule (5) deals with cases
"other than those falling under sub-rules
(2) and (3)". Sub-rule (5), interalia,
provides that in such other cases the
Government Servant shall be paid "such
amount (not being the whole) of the pay
and allowances" to which he would have
been entitled had he not been suspended,
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.

18. Sub-rule (7) of Rule 54-B,
interalia, lays down that in a case falling
under sub-rule (5) of Rule 54-B, the
period of suspension 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.

The above-noted provisions occurring in
Chapter VIII show that the provisions
occurring in Chapter VIII deal with
3 All] Hari Raj Prasad Kushwaha V. Director of Non Formal Education and others
883
different situations when a Government
Servant may be placed under suspension.
The provisions of Chapter VIII are not
confined to the cases of suspension where
punishment of 'dismissal' or ' removal'
from
service
is
contemplated.
The
submission of the learned Standing
Counsel that Rule 54-B is confined only
to cases where punishment of 'dismissal'
or 'removal' from service is contemplated,
cannot, therefore, be accepted.

Rule 54 and Rule 54-A occurring in
Chapter VIII deal with the cases of
dismissal,
removal
or
compulsory
retirement and, are, therefore, not relevant
in the present case.

Again, sub-rule (2) of Rule 54-B deals
with
a
Government
Servant
under
suspension
who
dies
before
the
disciplinary
or
Court
proceedings
instituted against him are concluded, and
the said provision also is not relevant in
the present case.

The present case also does not fall in subrule (3) of Rule 54-B, as no opinion as
contemplated in the said sub-rule has been
expressed by the authority competent to
order reinstatement.

The provisions relevant in the present
case, are evidently contained in sub-rules
(1) and (5) of Rule 54-B.

Reading sub-rules (1) and (5) of Rule 54B together, it will be noticed that in case
the competent authority acting under the
said provisions wants. to forfeit the pay
and allowances for the period during
which the, Government Servant was
under suspension, the competent authority
may do so only after giving notice to the
Government Servant and after considering
the representation, if any, submitted by
the
Government
Servant
in
that
connection.

Further, a comparison of sub-rule (3) with
sub-rule (5) of Rule 54-B, shows that
while sub-rule (3) deals with a case where
the
authority
competent
to
order
reinstatement is of the opinion that the
suspension·was "wholly unjustified", subrule (5) deals with "other cases than those
falling under sub-rules (2) and (3)".
Hence, it is implicit in sub-rule (5) that
the competent authority should be of the
opinion that the suspension was "wholly
justified" or "partly 'justified".

Let us apply the above principles to the
facts of the present case

Accordingly, in view of conjoint reading
of sub-rules (1) and (5) of Rule 54-B,
giving of notice and opportunity to the
petitioner was -necessary before an order,
regarding forfeiture. of his balance salary
for the suspension period could be passed
while reinstating him in service.

Further, in view of· the language of subrule (5) as compared to that of sub-rule
(3) of Rule 54-B, the competent authority
was required to record his opinion that the
suspension of the petitioner was "wholly
justified" or "partly justified", and then on
a consideration of the entire facts and
circumstances decide whether the entire
balance salary for suspension period or
part of such balance salary was to be
forfeited .

19. From a perusal of the impugned
order, it is clear that after the receipt of
the Enquiry Report, the Enquiry Report
was sent to the petitioner for his
explanation, which was submitted by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
884
petitioner on 1.8.2000. But no notice or
opportunity was given to the petitioner as
to why balance salary during suspension
period of the petitioner be not forfeited.

20. Since no notice was given to the
petitioner, and punishment of forfeiting
the salary of the petitioner during
suspension period has been awarded, it is
clear that the punishment order forfeiting
the salary of the petitioner for suspension
period was passed in violating of
principles of natural justice.

21.

Further,
the
Disciplinary
Authority has not recorded any opinion in
the impugned order regarding justification
of the suspension of the petitioner.

22. Coming to the submission of the
learned Standing Counsel that petitioner
has an alternative remedy of filing an
Appeal, we are of the view that the same
cannot be accepted.

23. In Whirlpool Corporation Vs.
Registrar of Trade Marks, Mumbai and
others, AIR 1999 SC 22, it has been laid
down by the Apex Court that if the
impugned, order is passed in violation of
natural justice, the alternative remedy of
appeal
would
be no bar for the
maintainability of the Writ Petition.

24. In view of the fact that the
impugned
punishment
order
dated
14.8.2000 in so far as it has forfeited the
salary of the petitioner for suspension
period was passed in violation of
principles of natural Justice, the said
punishment order dated 14.8.2000 is
liable to be quashed to the extent it has
ordered forfeiture of balance salary of the
petitioner for the suspension period.

25. Having quashed the suspension
order, we would normally have remitted
the case back to the competent authority
for reconsideration of the question of
forfeiture of balance salary for the
suspension period after giving opportunity
to the petitioner as contemplated under
sub-rule (5) of Rule 54-B of Chapter VIII.
However:, having regard to the fact that
this Writ Petition was filed in the year
2001 and has remained pending for the
last seven years and remitting back the
case to the competent authority for
reconsideration of the said question would
further delay the matter, this Court itself
proceeds to consider the said question.

26. Having considered the entirety
of the facts and circumstances of the case
including the findings recorded by the
Inquiry Officer on various charges, and
the nature of punishment awarded to the
petitioner, and the period between the
date of order of suspension (i.e..,
3.11.1999) and, the date of order of
reinstatement (i.e., 14.8.2000) being of
about 9, months only, we are of the
opinion that the interest of justice would
be subserved if the punishment of
'CENSURE'
entry
awarded
to
the
petitioner is maintained but no forfeiture
of the balance salary of the petitioner for
the suspension period be made.

27. In view of the above, this Writ
Petition deserves to be partly allowed, and
the same is accordingly allowed in part.
The impugned punishment order dated
14.8.2000 (Annexure-3 to the Writ
Petition) is quashed to the extent it orders
for the forfeiture of the balance salary of
the petitioner for the suspension period.
However, the punishment order dated
14.8.2000 in all other respects including
the award of 'CENSURE' entry is
3 All] M/s Ruby International Annapurna Metal & others V. Devendra Singh
885
maintained. The balance salary for the
suspension period of the petitioner shall
be paid within a period of four months
from the date a certified copy of this order
is
produced
before
the
concerned
respondent.

On the facts and in the circumstances
of the case, there will be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal From Order No. 1579 of 2008

M/s
Ruby
International
Annapurna
Metal, Moradabad & others ...Appellants
Versus
Davendra Singh ...Plaintiff/Opposite Party

Counsel for the Appellants:
Sri. R.K. Awasthi.

Counsel for the Opposite Party:
Sri. R.R. Khan.

Workmen
Compensation
Act
1923Appeal
against
award
passed
by
Commissioner-on
ground
of
no
relationship of master and servantinspite
of
direction-employer
not
produced the record of attendance as
well as salary register of the relevant
time-contention about burden of proof
primarily lie with workman-held-Court
can look any document at any point of
time-section 23 of the Act empowers to
produce such document being custodian
of the same-burden of proof is static but
onus is flexible-if employer tries to avoid
the Court-adverse inference can be
drawn-award fully justified requires no
interference.
Held: Para 12

According to us, when burden of proof is
static, onus is flexible. Therefore, as and
when the Commissioner called upon
certain documents to be produced from
the real custodian of the same to come
to an appropriate conclusion refusal
thereof by the party can not be said to be
proper. A party is bound by the direction
of the Court to assist it for the purpose
of ascertaining the truth. Had the master
complied with the direction and the
servant called upon to prove but failed, it
could have been scenario comparable
with referred judgements. In this case,
the substantial question is not the
burden of proof but shifting of onus to
dispel the cloud when the Court called
upon to satisfy itself to come to an
appropriate finding. If one party tries to
avoid the Court it is entitled to draw an
adverse inference.
Case law discussed:
AIR 2006 SC 110; AIR 2004 SC 1639; 1976
Lab. I.C. 202; AIR 2002 SC 1147; AIR 2004 SC
4791; AIR 2006 SC 678.

(Delivered by Hon'ble Amitava Lata, J.)

1. This is an appeal of the
defendants, appellants herein, from the
judgment and order dated 29th March,
2008
passed
by
the
concerned
Commissioner,
Moradabad,
appointed
under the Workmen's Compensation Act,
1923
(hereinafter
called
as
the
'Commissioner') awarding a sum of
Rs.1,87,182/-
on
account
of
injury
sustained by the claimant/respondent
herein, along with penalty of Rs.93,000/-.
Learned Counsel appearing for both the
contesting parties agreed about hearing of
the appeal on the informal papers at the
stage of admission, accordingly the Court
has proceeded.

2. The question arose before the
Commissioner
about
master-servant