# Khem Chand v. State of U.P. & others

- **Citation:** (2012) 3 ILRA 1560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-20
- **Case number:** Civil Misc. Writ Petition No. 6730 of 2010
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khem-chand-v-state-of-u-p-others-42365
- **Pages:** 5

## Headnote

(Punishment and Appeal) Rules 1991Rule
17
(6)-subsistence
allowancepetitioner was placed under suspension
on
contemplated
enquiry-reinstatedclaim for subsistence allowance during
suspension period-denial on pendency of
criminal case-held-illegal-words "shall"
used
in
rule
held
mandatory-not
dependent upon whim of authorities-non
payment
of
subsistence
allowanceamounts
to
denial
of
Fundamental
Rights-under Article 21 of Constitutiondirection for payment within 8 weeks
made.

Held: Para-8 and 9

The aforesaid Rule provides, that where
a Government Servant is placed under
suspension, he shall be entitled to a
subsistence allowance. The word ''shall'
is mandatory and it is not directory and
is not dependent on the whims and
fancies of the appointing authority.
Suspension is not a punishment and a
government employee is entitled to
survive during the period when he was
under suspension, otherwise it would be
in
violation
of
Article
21
of
the
Constitution
of
India.
Whenever
a
disciplinary
authority
suspends
an
employee, it is the bounden duty of the
disciplinary authority to pay suspension
allowance
and
non-payment
of
the
suspension
allowance
would
be
in
violation of the fundamental rights of the
petitioner to live with dignity as provided
under Article 21 of the Constitution of
India.

Mere pendency of a criminal case does
not entitle the disciplinary authority not
to release the suspension allowance. The
discretion can be exercised by the
disciplinary authority with regard to the
balance payment of the salary, but no
discretion can be exercised for payment
of the suspension allowance.

## Text

1560 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 6730 of 2010

Khem Chand

 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Srivastava

Counsel for the Respondents:
C.S.C.

U.P. Police Oficers of Subordinate Ranks
(Punishment and Appeal) Rules 1991Rule
17
(6)-subsistence
allowancepetitioner was placed under suspension
on
contemplated
enquiry-reinstatedclaim for subsistence allowance during
suspension period-denial on pendency of
criminal case-held-illegal-words "shall"
used
in
rule
held
mandatory-not
dependent upon whim of authorities-non
payment
of
subsistence
allowanceamounts
to
denial
of
Fundamental
Rights-under Article 21 of Constitutiondirection for payment within 8 weeks
made.

Held: Para-8 and 9

The aforesaid Rule provides, that where
a Government Servant is placed under
suspension, he shall be entitled to a
subsistence allowance. The word ''shall'
is mandatory and it is not directory and
is not dependent on the whims and
fancies of the appointing authority.
Suspension is not a punishment and a
government employee is entitled to
survive during the period when he was
under suspension, otherwise it would be
in
violation
of
Article
21
of
the
Constitution
of
India.
Whenever
a
disciplinary
authority
suspends
an
employee, it is the bounden duty of the
disciplinary authority to pay suspension
allowance
and
non-payment
of
the
suspension
allowance
would
be
in
violation of the fundamental rights of the
petitioner to live with dignity as provided
under Article 21 of the Constitution of
India.

Mere pendency of a criminal case does
not entitle the disciplinary authority not
to release the suspension allowance. The
discretion can be exercised by the
disciplinary authority with regard to the
balance payment of the salary, but no
discretion can be exercised for payment
of the suspension allowance.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for the
petitioner and the learned standing counsel
for the respondents.

2. The petitioner was posted as a Head
Constable at Police Station Loni in District
Ghaziabad
and
was
placed
under
suspension by the Superintendent of Police,
by an order dated 20.5.1996, on the ground,
that a criminal case was registered against
the petitioner. Subsequently, by an order
dated
22.6.1996,
the
petitioner
was
reinstated. Subsequently, for the same
criminal case, the petitioner was again
suspended on18th April, 1998 and was
reinstated in service on 7.4.2000. The
petitioner made a representation contending
that for the suspension period he should be
given his salary and other allowances. Since
the same was not paid, the petitioner filed
Writ Petition No.41892 of 2006, which was
disposed of by a judgment dated 29.6.2009
directing the Senior Superintendent of
Police to pass appropriate orders with
regard to the release of his salary and other
benefits for the period when the petitioner
was under suspension. Pursuant to the said
3 All] Khem Chand V. State of U.P. & others
1561
direction, the D.I.G., Moradabad has passed
an order dated 25.11.2009 contending that
in view of the Criminal Case No.221 of
1996, pending in the Criminal Court of
Ghaziabad, no payment of salary during the
period of suspension would be payable till
the disposal of the criminal case. The
petitioner, being aggrieved by the said
order, has filed the present writ petition.

3. The petitioner was suspended under
Rule 17 of the U.P. Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991. For facility, Rule 17 is
extracted hereunder:

17.Suspension- (1) (a) A Police
Officer against whose conduct an enquiry is
contemplated, or is proceeding, may be
placed under suspension pending the
conclusion of the enquiry in the discretion
of the appointing authority or by any other
authority
not
below
the
rank
of
Superintendent of Police, authorised by him
in this behalf.

(b) A Police Officer in respect of or
against whom an investigation, enquiry or
trial relating to a criminal charge is pending
may at the discretion of the appointing
authority under whom he is serving be
placed
under
suspension,
until
the
termination of all proceedings relating to
that charge, if the charge is connected with
his position as a Police Officer or is likely to
embarrass him in the discharge of his duties
or
involves
moral
turpitude,
if
the
prosecution is instituted by a private person
on complaint, the appointing authority may
decide whether the circumstances of the
case justify the suspension of the accused.

(2)A Police Officer shall be deemed to
have been placed, or, as the case may be,
continued to be placed, under suspension by
an order of the appointing authority-

(a)With effect from the date of his
detention if he is detained in custody
whether the detention is on Criminal Charge
or otherwise for a period exceeding forty
eight hours;

(b)With effect from the date of his
conviction if in the event of a conviction for
an offence he is sentenced to a term of
imprisonment exceeding forty eight hours
and is not forthwith dismissed or removed
consequent to such conviction

Explanation. -- The period of forty
eight hours referred to in Clause (b) of this
sub-rule shall be computed form the
commencement of the imprisonment after
the conviction and for this purpose
intermittent periods of imprisonment, if any,
shall be taken into account.

(3) Where a penalty of dismissal or
removal from service imposed upon a
Police Officer is set-aside in appeal or on
review under these rules and the case is
remitted for further inquiry or action or with
any other directions--

(a) If he was under suspension
immediately
before
the
penalty
was
awarded to him, the order of his suspension
shall, subject to any such directions as
aforesaid, 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 appellate or
reviewing authority, be deemed to have
been placed under suspension by an order or
the appointing authority, on and from the
1562 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
date of the original order of dismissal or
removal;

Provided that nothing in this sub-rule
shall be construed as effecting the power of
competent authority, in a case where a
penalty of dismissal or removal from
service imposed upon a Police Officer is
set-aside in appeal or on review under these
rules on grounds other than the merits of the
allegations on which the said penalty was
imposed but the case is not remitted for
further inquiry or action or with any
direction, to pass an order or suspension
pending further inquiry against him on
those allegations, so, however, that any such
suspension shall not have retrospective
effect.

(4)Where a penalty of dismissal or
removal from service imposed upon a
Police Officer is set-side 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
thereof a minor nature omitted-

(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
original order of dismissal or removal.

(5) (a) Any suspension ordered or
deemed to have been or to have continued
in force under this rule shall continue to
remain in force until it is modified or revoke
by any authority specified in sub-rule (1).

(b) Where a Police Officer is
suspended or is deemed to have been
suspended whether in connection with any
disciplinary proceeding or otherwise and
any other disciplinary proceedings is
commenced
against
him
during
the
continuance
of
that
suspension,
the
authority competent to place him under
suspension may for reasons to be recorded
by him in writing, direct that the Police
Officer
shall
continue
to
be
under
suspension till the termination of all or any
such proceedings.

(6) Subsidiary Rule 199, Financial
Hand Book, Volume II, Part II to IV, shall
cease to apply to the Police Officers
governed by this rule."

4. Under Clause 1(a) of the Rules 17,
a police officer could be placed under
suspension against whose conduct an
inquiry is contemplated or is proceeding
which would continue till the conclusion of
the inquiry. Under Clause (b) of Rule 17 a
police officer can be placed under
suspension
wherein
an
investigation,
inquiry or trial relating to a criminal charge
is pending.

5. In the instant case clause (b) of
Rule 17(1) was invoked. The petitioner was
suspended on account of the investigation
into a criminal case, but subsequently, the
petitioner was reinstated in service.
3 All] Khem Chand V. State of U.P. & others
1563

6. The question for consideration is,
whether the petitioner is entitled for
suspension allowance during the period
when he was under suspension ?

7. In this regard Rule 53 of the
Financial Hand Book, Volume 2 Part II to
IV comes into play. For facility, Rule 53 is
extracted hereunder:-

53. (1) A Government servant under
suspension or deemed to have been placed
under suspension by an order of the
appointing authority shall be entitled to the
following payments, namely:-

(a) a subsistence allowance at an
amount equal to the leave salary which the
Government servant would have drawn if
he had been on leave on half average pay or
on half pay and in addition, dearness
allowance, if admissible on the basis of such
leave salary;

Provided that where the period of
suspension exceeds three months, the
authority which made is deemed to have
made the order of suspension shall be
competent
to
vary
the
amount
of
subsistence allowance for any period
subsequent to the period of the first three
months as follows:

(i)
the
amount
of
subsistence
allowance may be increased by a suitable
amount, not exceeding 50 per cent of the
subsistence allowance admissible during the
period of first three months, if, in the
opinion of the said authority, the period of
suspension has been prolonged for reasons
to be recorded in writing, not directly
attributable to the Government servant;

(ii)
the
amount
of
subsistence
allowance may be reduced by a suitable
amount
not
exceeding
50%
of
the
subsistence allowance admissible during the
period of the first three months, if, in the
opinion of the said authority, the period of
suspension has been prolonged due to
reasons, to be recorded in writing, directly
attributable to the Government servant;

(iii) the rate of dearness allowance will
be based on the increased or, as the case
may
be,
the
decreased
amount
of
subsistence allowance admissible under
sub-clauses (i) and (ii) above.

(b) Any other compensatory allowance
admissible from time to time on the basis of
pay, of which the Government servant was
in receipt on the date of suspension;

Provided that the Government servant
shall not be entitled to the compensatory
allowance unless the said authority is
satisfied that the Government servant
continues to meet the expenditure for which
they are granted.

(2) No payment under sub-rule (1)
shall be made unless the Government
servant furnishes a certificate that he is not
engaged
in
any
other
employment,
Business, profession or vocation:

Provided, that in the case of a
Government servant dismissed or removed
from service, who is deemed to have been
placed or to continue to be under suspension
from the date of such dismissal or removal,
and who fails to produce such a certificate
for any period or periods during which he is
deemed to be placed or to continue to be
under suspension, he shall be entitled to the
subsistence allowance and other allowances
equal to the amount by which his earnings
during such period or periods, as the case
may be, fall short of the amount of
1564 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
subsistence allowance and other allowances
that would otherwise be admissible to him;
where the subsistence and other allowances
admissible to him are equal to or less that
the amount earned by him, nothing in this
proviso shall apply to him.

8. The aforesaid Rule provides, that
where a Government Servant is placed
under suspension, he shall be entitled to a
subsistence allowance. The word ''shall' is
mandatory and it is not directory and is not
dependent on the whims and fancies of the
appointing authority. Suspension is not a
punishment and a government employee is
entitled to survive during the period when
he was under suspension, otherwise it
would be in violation of Article 21 of the
Constitution
of
India.
Whenever
a
disciplinary
authority
suspends
an
employee, it is the bounden duty of the
disciplinary authority to pay suspension
allowance
and
non-payment
of
the
suspension allowance would be in violation
of the fundamental rights of the petitioner to
live with dignity as provided under Article
21 of the Constitution of India.

9. Mere pendency of a criminal case
does not entitle the disciplinary authority
not to release the suspension allowance. The
discretion
can
be
exercised
by
the
disciplinary authority with regard to the
balance payment of the salary, but no
discretion can be exercised for payment of
the suspension allowance.

10. In the light of the aforesaid, the
impugned order cannot be sustained and is
quashed. The writ petition is allowed and a
writ of mandamus is issued commanding
the competent authority to release the
suspension allowance for the period when
the petitioner was under suspension, as per
the provision of Rule 53 of the Fundamental
Rules, within 8 weeks from the date of the
production of a certified copy of this order.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 7971 of 2011

Suresh Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Munesh Kumar Sharma
Sri V.K. Singh
Sri G.K. Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Dismissal of Service-petitioner appointed
as
Constable
under
Sports
Quotarequired
to
show
cause
regarding
dispense with of services as future
performance
under
sports
not
upto
mark-from
progress
report-regular
improvement
noted-ground
for
dismissal-held
patently
illegalappointment not based upon better
performance in future-even after expiry
of probation period-no further extension
of probation-unsatisfactory performance
in sports-can not be taken into account.

Held: Para-7

There is another aspect. A person is
appointed under a sports quota on the
basis of his past performance in the area
of his excellence in a particular field of
sports. The appointment is given not for
the reason that he would perform better
in future pursuant to his appointment.
The appointment is not based on the
condition that he would perform better
in future. The Court further finds that