# Kusheshwar Prasad Singh v. State of

- **Citation:** (2009) 1 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-12
- **Case number:** Civil Misc. Writ Petition No.22139 of 2006
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusheshwar-prasad-singh-v-state-of-41298
- **Pages:** 4

## Headnote

138 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Railway Establishment Code Vol. Vii-
(1987) Edition-Para 1343, 1344- Claim
of Salary during suspension periodpetitioner member of R.P.F subjected to
face criminal proceeding for stolling 25
Kg. Article of Railway property-acquitted
on technical ground-suspension period
adjusted
against
medical
leaveremaining period treated/ absent from
duty-claim of salary rightly rejected
considering cloud on his integrity.

Held-Para7

Learned counsel for the petitioned has
cited a Division Bench Authority of this
Court reported in Dr. Ram Khelawan
Singh Vs. State of U.P. [2008(8) ADJ 324
(DB)]. In the said authority it has been
held that if an employee was suspended
on the basis of pendency of criminal case
then after his acquittal he must be
reinstated
with
all
service
benefits
notwithstanding
pendency
of
appeal
against acquittal order including arrears
of
salary
during
suspension
period.
However, Supreme Court in AIR 1997
SUPREME COURT 608 "State of U.P. v.
Ved Pal Singh" has held that after
acquittal in the criminal case it is not
necessary to award full salary for the
suspension period. Petitioned was a
constable in Railway Protection Force.
He
was
responsible
for
protecting
Railway Property but he himself was
charged for stealing railway property. On
a technical ground he was acquitted
however cloud on his integrity remained.
Case law discussed:
AIR 1997 Supreme Court 608

## Text

1 All] Ram Bahal V. Union of India and others
137
of law and is termed as perverse. Such a
decision impugning upon civil rights is
open to judicial review under Article 226
of the constitution in that the error
committed permeates and vitiates the
decision-making-process itself.

10. Otherwise also I am of the view
that the impugned orders suffers from non
consideration of the relevant materials
available on the record. The Apex Court
in the case of Garrison Engineer
(Utility) v. Narinder Singh (2007) 11
SCC 35 has observed as under:-

Para 6: From a perusal of the orders of
the Labour Court and the High Court, it is
noticed that the factual position has not
been analysed in detail and an abrupt
conclusion
has
been
arrived
at.
Additionally, the legal issue regarding
maintainability of the reference was not
considered. Right from the beginning of
the proceedings before the Labour Court
and in the High Court, the appellant had
taken specific plea that the Act was not
applicable to it and it was not an industry.
Unfortunately, as noted above, neither the
Labour Court nor the High Court dealt
with this issue.

Para 7: Above being the position, we set
aside the orders of the Labour Court and
the High Court and remit the matter to the
Labour Court to decide the objection
raised
by
the
appellant
about
the
maintainability of the proceedings under
the Act, founded on the claim that it is not
an industry. The other factual aspects
shall also be considered on evidence
being led by the parties.

11. In the case of Narinder Singh v.
State of Haryana (2006)8 SCC 33,
Kusheshwar Prasad Singh v. State of
Bihar (2007) 11 SCC 447 and Arun
Kumar v. State of Bihar 2008 (3) SCC
203 same view has been reiterated by the
Apex Court.

12. In view of the settled position of
law about the non consideration of the
relevant material available on record I am
of the opinion that the impugned orders
dated19.01.2005 and 12.01.2006 passed
by respondents no. 2 and 3 respectively
are illegal, arbitrary and deserves to be
quashed. The writ petition succeeds and is
allowed. The impugned order dated
19.1.2005 and 12.01.2006 are hereby
quashed. The matter is remanded back
before
the
Sub
Divisional
Officer,Azamgarh to pass an appropriate
order after considering the relevant
materials available on record particularly
reply of the petitioner to the show cause
notice and the affidavits filed by B.P.L.
card holders containing the facts that the
scheduled
commodities
have
been
distributed to them on the price fixed by
the Government.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.22139 of 2006

Ram Bahal

...Appellant
Versus
Undion of India & others ...Respondents

Counsel for the Appellant:
Sri R.C.Maurya

Counsel for the Respondents:
Sri Govind Saran
Sri S.S. Srivastava
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Railway Establishment Code Vol. Vii-
(1987) Edition-Para 1343, 1344- Claim
of Salary during suspension periodpetitioner member of R.P.F subjected to
face criminal proceeding for stolling 25
Kg. Article of Railway property-acquitted
on technical ground-suspension period
adjusted
against
medical
leaveremaining period treated/ absent from
duty-claim of salary rightly rejected
considering cloud on his integrity.

Held-Para7

Learned counsel for the petitioned has
cited a Division Bench Authority of this
Court reported in Dr. Ram Khelawan
Singh Vs. State of U.P. [2008(8) ADJ 324
(DB)]. In the said authority it has been
held that if an employee was suspended
on the basis of pendency of criminal case
then after his acquittal he must be
reinstated
with
all
service
benefits
notwithstanding
pendency
of
appeal
against acquittal order including arrears
of
salary
during
suspension
period.
However, Supreme Court in AIR 1997
SUPREME COURT 608 "State of U.P. v.
Ved Pal Singh" has held that after
acquittal in the criminal case it is not
necessary to award full salary for the
suspension period. Petitioned was a
constable in Railway Protection Force.
He
was
responsible
for
protecting
Railway Property but he himself was
charged for stealing railway property. On
a technical ground he was acquitted
however cloud on his integrity remained.
Case law discussed:
AIR 1997 Supreme Court 608

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. Through this writ petition balance
of salary for suspension period has been
claimed.

3. Petitioner was a constable in
Railway
Protection
Force.
He
was
suspended on 22.10.1994 and thereafter a
criminal complaint was filed against him
in the court of A.C.J.M (Railway),
Gorakhpur under Section-3 of Railway
Property(Unlawful Possession) Act which
was registered as criminal case no. 6 of
1995. In the criminal case petitioned was
acquitted
on
10.05.2000.
Thereafter,
petitioner was reinstated on 20.03.2001.
In respect of suspension period an order
was passed on 28.03.2003 through which
part of the said period was adjusted in
leave due and remaining part in leave
without pay. Thereafter petitioner retired
in the year 2005. After retirement
petitioner gave notice on 05.07.2005 and
demanded
copy
of
order
dated
28.03.2003. On 14.07.2005 petitioner was
informed that the copy of the said order
had already been sent to him. Thereafter
petitioner gave another notice, reply of
which was given on 23.03.2006 by Senior
Divisional
Security
Commissioner,
Lucknow-respondent no. 3. In the said
reply it was mentioned that after notice
and considering the reply of the petitioner
part of suspension period was converted
into leave due. It was further mentioned
that as sufficient leave was not available
in the account of the petitioner hence the
period from 14.06.1996 to 20.03.2001
was converted into leave without pay.

4. Relevant Rules have been annexed
as Annexure-C.A. 1 to the counter
affidavit i.e. para 1343 and para 1344 of
Indian Railway Establishment Code Vol.
II (1987 Edition).

5. Order dated 28.03.2003 has not
been annexed alongwith the writ petition.
1 All] Ram Bahal V. Union of India and others
139

6. By virtue of aforesaid paragraph
1343 and 1344 of Railway Establishment
Code Vol. II, if the acquittal is on merit
then full amount is to be paid for the
suspension period. Copy of judgment of
acquittal is Annexure-1 to the writ
petition. The allegation against the
petitioner was that he had stolen 35 kg of
railway property and was apprehended
while carrying that property on cycle. The
criminal court acquitted the petitioner
granting him benefit of doubt. The court
held that the items which were recovered
from the petitioner and sealed were not
the same as the items produced and
opened in the court. The court held that
there were diversions in the evidence of
different witness as to whether 15 items
had been seized from the petitioner or 31
items.

7. Learned counsel for the petitioned
has cited a Division Bench Authority of
this Court reported in Dr. Ram Khelawan
Singh Vs. State of U.P. [2008(8) ADJ
324 (DB)]. In the said authority it has
been held that if an employee was
suspended on the basis of pendency of
criminal case then after his acquittal he
must be reinstated with all service
benefits notwithstanding pendency of
appeal against acquittal order including
arrears of salary during suspension period.
However, Supreme Court in AIR 1997
SUPREME COURT 608 "State of U.P.
v. Ved Pal Singh" has held that after
acquittal in the criminal case it is not
necessary to award full salary for the
suspension period. Petitioned was a
constable in Railway Protection Force. He
was responsible for protecting Railway
Property but he himself was charged for
stealing railway property. On a technical
ground he was acquitted however cloud
on his integrity remained. Accordingly, he
cannot claim balance of salary for the
suspension period. Para-4 of the aforesaid
authority of the Supreme Court is quoted
below:

4. Corruption is the result of deepseated moral degradation and unsatiated
greed for wealth. The office of public
service affords an opportunity to the
public servant to abuse of the office in
that pursuit to accept illegal gratification
for the discharge of official duty.
Criminal prosecution launched against
the public servant many a time may end
may be due to technical defects in apathy
on the part of the prosecution or
approach in consideration of the problem
or the witnesses, turn hostile or other
diverse reasons but the meet of the matter
is that on equitable consideration the
Government
servant
claims
reinstatement into service. Equity per
settlement
may
not
prevent
the
Government to take appropriate action
under the conduct rules or under Article
311 of the Constitution but many a time
they
do
become
fruitless
exercise.
Resultantly
public
servant
on
reinstatement claims consequential benefits
including back wages. On many a
occasion, public servant avoids the
detection of corruption or by skilful
management proof of commission of
corruption would be wanting. But his
conduct gains notoriety in service and
among public in that behalf payment of
back wages and impetus and a premium
on corruption. The society has to pay the
price for corrupt officers from public
exchequer. Therefore, when the Court
directs payment of @ page-SC 610 back
wages
or
re-instatement,
the
Court/Tribunal is required to consider the
backdrop of the circumstances and
pragmatically apply the principle of to the
140 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
given set of facts. No abstract principle of
universal application could be laid in that
behalf. The confidential report of the
officer
prior
to
initiation
of
the
prosecution do furnish the evidence of
conduct of the public servant. It is the
duty of the officer to place his material
and of the Government to lace all the
necessary record in that behalf before the
court/tribunal for consideration and it
would be for the court/tribunal to
consider and decide the matter. This
Court has pointed out in several cases the
need to record confidential reports
objectively and dispassionately with a
reformative purpose to enable the public
servant to reform himself to improve
quality of the service and efficiency of the
administration. Parochial, sectorial or
nepotic approach would be deleterious to
the efficiency of administration and
maintenance of discipline in service.
Confidential reports placed on record in
this case do disclose such deleterious
tendency in writing the confidential
reports. One set of officers reported
integrity of the appellant and while
diametrically in opposite terms the
predecessor officer had reported doubtful
integrity of the appellant. They do
demonstrate the lack of objectivity on the
part of some officers in writing the
confidential reports. This would be very
sad state of affairs impinging upon
efficiency of administration. We have
confined to the question of payment of
back wages with an intention that on
reinstatement the appellant would reform
himself purging from the proclivity of
corrupt practices and prove himself to be
a useful public servant to himself, to the
family and to the society. In the light of
the
confidential
reports
indicating
doubtful integrity, we are of the view that
it is not expedient to direct payment of
back wages, though he was acquitted by
the criminal Court may be on technical
grounds or on merits, he is not entitled to
back wages. As stated earlier the
circumstances of the case and conduct of
he appellant do furnish justification in
denying him the back wages lest it would
be
a
premium
on
proclivity
for
corruption.

8. Accordingly, there is no merit in
the writ petition hence it is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2008

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Application No. 22257 of
2008

Devmani Pandey

...Applicant

Versus
State of U.P.
 ...Respondents

Counsel for the Applicant:
Sri S.K.Pandey

Counsel for the Respondents:
Sri N.D. Shukla
A.G.A

Code of Criminal Procedure:1973-Section
216-Alteration Of Charges-Trail Court by
impugned Order although allowed the
application for correction of time of
occurrence and nature of inquiry but
refused to alter charge for offence under
Section 326 IPC-It can be properly
decided by Trail Court after having
evidence-at this stage interference by
High Court not proper.

Held: Para 6

Considering the submission made by
learned
counsel
for
the
applicant,