# Pradeep Kumar v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Writ-A No. 7498 of 2023
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-state-of-u-p-ors-49547
- **Pages:** 8

## Headnote

908 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 498-A, 304 B I.P.C and 3/4 of the
Dowry Prohibition Act-arrested- petitioner under
deemed
suspension
-no
departmental
proceedings were initiated -subsequently been
acquitted in the criminal case- thereafter the
petitioner's deemed suspension was revoked
and was reinSt.d in service-on account of being
incarcerated in jail -he had disabled himself
from rendering the service on account of being
incarcerated in jail-would not be entitled for
payment of salary for the period of his deemed
suspension-entitled for claim of payment of
subsistence allowance for the period of his
deemed suspension.

W.P. partly allowed. (E-9)

Cases cited:

## Text

10 All. Pradeep Kumar Vs. State of U.P. & Ors.
907
conclusion stands drawn that for whatever
reasons there had been technical defect in
holding inquiry proceeding either by way
of violation of principle of natural justice
i.e. non holding of oral inquiry, denial of
furnishing of relevant documents going into
the root of the matter, denial of opportunity of
cross examination of witnesses, non furnishing of
inquiry report and also in flagrant violation of the
statutory rules/regulations, then in the cases of
setting
aside
of
order
of
dismissal/removal/termination, the court of law
should remit back the proceedings before the
disciplinary authority enabling the inquiry
officer/committee to conduct fresh disciplinary
proceeding from the stage prior to the imposition
of punishment and not as a matter of rule grant
relief of reinstatement along with consequential
benefits including arrears and current salary. It
should be left open to the disciplinary authority to
pass appropriate orders either to reinstate or
place delinquent employee under suspension for
the purpose of holding an inquiry and the
payment of consequential benefits should be made
subject to final out come of the inquiry
proceedings."

44. Accordingly, the writ petition is decided
in the following terms; (a) the order dated
23.10.2017 dismissing the writ petitioner from
service as well as the order dated 03.11.2022
rejecting the review/revision of the writ petitioner
preferred on 06.12.2017 against the order dated
23.10.2017 passed by the first respondent,
Additional Chief Secretary, U.P. Lucknow are set
aside; (b) the order dated 03.11.2022 rejecting the
review/revision preferred by the writ petitioner
against the order dated 12.10.2017 reverting the
writ petitioner in the Pay Band of Rs. 15,60039,1000 Grade Pay 5400 is maintained; (c)
consequent to the setting aside of the orders dated
23.10.2017 dismissing the writ petitioner from
service as well as the order dated 03.11.2022
insofar as it pertains to reject the review/revision
against the order dated 23.10.2017, the matter
stands remitted to the Disciplinary Authority for
conducting the inquiry against the writ petitioner
from the stage of service of the charge sheet dated
26.08.2014; (d) in case, the Disciplinary Authority
proposes to hold inquiry then the same shall be
conducted and concluded within a period of three
months from the date of production of certified
copy of the order by either of the parties strictly in
accordance with law as per the rules governing the
field and after affording opportunity to the writ
petitioner (delinquent officer); (e) the writ
petitioner shall render full cooperation in the
enquiry proceedings; (f) since the writ petitioner
stood superannuated on 31.01.2017, thus, there is
no question of reinstatement of the writ petitioner,
however, the grant of consequential benefits
including arrears of salary and other allied benefits
shall be subject to the outcome and the fate of the
inquiry proceedings; (g) in case, the writ petitioner
was not paid arrears of subsistence allowance that
the same be paid to him as per rules.

45. With the aforesaid observations,
the writ petition stands partly allowed.
----------
(2023) 10 ILRA 907
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 7498 of 2023

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

Counsel for the Petitioner:
Dilip Kumar Gautam

Counsel for the Respondents:
C.S.C.

Suspension-Petitioner- Assistant Teacher- First
Information Report was lodged against him-
908 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 498-A, 304 B I.P.C and 3/4 of the
Dowry Prohibition Act-arrested- petitioner under
deemed
suspension
-no
departmental
proceedings were initiated -subsequently been
acquitted in the criminal case- thereafter the
petitioner's deemed suspension was revoked
and was reinSt.d in service-on account of being
incarcerated in jail -he had disabled himself
from rendering the service on account of being
incarcerated in jail-would not be entitled for
payment of salary for the period of his deemed
suspension-entitled for claim of payment of
subsistence allowance for the period of his
deemed suspension.

W.P. partly allowed. (E-9)

Cases cited:

1.
Ranchhodji
Chaturji
Thakore
Vs
Superintendent
Engineer,
Gujrat
Electricity
Board & anr.reported in (1996) 11 SCC 603

2. Raj Narain Vs U.O.I. reported in (2019) 5 SCC
809

3. U.O.I. & ors. Vs Jaipal Singh reported in
(2004) 1 SCC 121

4.
Ranchhodji
Chaturji
Thakore
Vs
Superintendent
Engineer,
Gujrat
Electricity
Board & anr. reported in (1996) 11 SCC 603

(Delivered by Hon'ble Adbul Moin, J.)

1. Heard learned counsel for the
petitioner and learned Standing counsel
appearing
on
behalf
of
the
Staterespondents.

2. With the consent of learned counsel
appearing for the contesting parties, the
instant writ petition is being finally
decided.

3. Instant writ petition has been filed
praying for quashing of the order dated
22.06.2023, a copy of which is Annexure 1
to the writ petition as well as praying for a
mandamus commanding the respondents to
pay full salary to the petitioner during his
suspension period from 06.09.2011 till
24.10.2016.

4. The case set forth by the petitioner
is that while the petitioner was working as
Assistant Teacher, a First Information
Report was lodged against the petitioner in
the year 2011 registered as Case Crime No.
528 of 2011 under Section 498-A, 304 B
I.P.C and 3/4 of the Dowry Prohibition Act.
The petitioner was arrested on 07.09.2011
and
thereafter
enlarged
on
bail
on
20.09.2016.
His
arrest
entailed
the
respondents to place the petitioner under
deemed suspension w.e.f 06.09.2011 which
continued till 14.11.2016. No departmental
proceedings were initiated against the
petitioner. It is contended that the petitioner
has subsequently been acquitted in the
criminal
case
vide
judgment
dated
11.11.2022, a copy of which is Annexure 7
to the writ petition. It is further contended
that initially the petitioner had filed a Writ
Petition No. 22263 of 20147 Inre; Pradeep
Kumar Vs. District Inspector of Schools
and Ors praying for being paid subsistence
allowance. The writ Court vide order dated
18.09.2017, a copy of which is Annexure 4
to the writ petition disposed of the writ
petition with the direction to the District
Inspector of Schools concerned to examine
the claim of the petitioner for payment of
subsistence allowance.

5. In pursuance thereof, an order
dated 25.05.2018, a copy of which is
Annexure 5 to the writ petition, was passed
by the District Inspector of Schools
whereby the petitioner was found entitled
for payment of subsistence allowance but
the same was not paid to him. Subsequent
thereto, another order dated 09.06.2020, a
10 All. Pradeep Kumar Vs. State of U.P. & Ors.
909
copy of which is Annexure 6 to the writ
petition, was passed whereby considering
that the petitioner was deemed to have been
placed under suspension on 06.09.2011 and
the deemed suspension came to an end on
14.11.2016 as such, it was provided that the
petitioner would be paid subsistence
allowance in accordance with Regulation
53 Part II of Financial Handbook. Despite
the
aforesaid
order,
the
subsistence
allowance was not paid to the petitioner for
the aforesaid period.

6. Being aggrieved, the petitioner
filed Writ A No. 6818 of 2022 before this
Court praying for being granted subsistence
allowance which is said to be still pending
for consideration before this Court.

7. During the pendency of the
aforesaid petition, the respondents have
passed
the
order
impugned
dated
22.06.2023, a copy of which is Annexure 1
to the writ petition, whereby the claim of
the petitioner for subsistence allowance has
been negated on the ground that as per
rules, he has not been found entitled for
payment of subsistence allowance.

8. Being aggrieved, the instant
petition has been filed.

9. Contention of learned counsel for
the petitioner is that when earlier, the
respondents
vide
the
orders
dated
25.05.2018 and 09.06.2020 found the
petitioner
entitled
for
being
paid
subsistence allowance for the deemed
period of suspension from 06.09.2011 to
14.11.2016 consequently there cannot be
any occasion for the respondents to have
negated the claim of the petitioner by
means of the impugned order dated
22.06.2023 by a non-speaking order and by
simply indicating that the petitioner has not
been found legally entitled for the payment
of subsistence allowance without indicating
the reason as to why he has not found
entitled for the said payment.

10. The other argument is that as the
petitioner was kept away from work on
account of his deemed suspension for the
period from 06.09.2011 to 14.11.2016 and
subsequently the petitioner has been
acquitted by the criminal Court on
11.11.2022 consequently he would be
entitled for entire salary of the aforesaid
period.

11. On the other hand, a preliminary
objection has been raised by learned
Standing Counsel that as Writ A No. 6818
of 2022 for payment of subsistence
allowance is still pending for consideration
before this Court consequently, second writ
petition praying for the same relief cannot
be filed by the petitioner. It is also
contended that the petitioner would not be
entitled for the entire salary for the period
of suspension as the principle of no workno pay would be applicable and the
petitioner having been deemed to have
been placed under suspension on account
of criminal case being lodged against him
for the aforesaid period from 06.09.2011 to
14.11.2016 he would not be entitled for
payment of full salary to him.

12. Heard the learned counsels for the
parties and perused the record.

13. From a perusal of record it
emerges that while the petitioner was
working as an Assistant Teacher, a criminal
case was registered against him under
Section 498-A, 304 B I.P.C and 3/4 of the
Dowry Prohibition Act. The petitioner was
arrested on 07.09.2011 and was deemed to
have been placed under suspension on
910 INDIAN LAW REPORTS ALLAHABAD SERIES
06.09.2011
which
deemed
suspension
continued right till 14.11.2016 when the
petitioner
was enlarged
on
bail
on
20.09.2016 and reported for duty. The
criminal case lodged against the petitioner
has ended in an acquittal vide judgment and
order dated 11.11.2022.

14. As the petitioner was not paid
subsistence allowance for the period from
06.09.2011 to 14.11.2016, he approached
this Court by filing Writ A No. 22263 of
2017 which was disposed of vide order
dated 18.09.2017 directing the District
Inspector of Schools to examine the claim
of the petitioner. In pursuance thereof, the
District Inspector of Schools passed an
order dated 25.05.2018, a copy of which is
Annexure 5 to the writ petition, whereby
the petitioner was found entitled for being
paid
subsistence
allowance
for
the
aforesaid period of suspension. This was
followed
by
another
order
dated
09.06.2020, a copy of which is Annexure 6
to the writ petition, whereby the District
Inspector of Schools held the petitioner as
entitled
for
being
paid
subsistence
allowance for the aforesaid period of
suspension under the provisions of the
Financial Handbook. Even thereafter when
the subsistence allowance was not paid to
the petitioner, he was compelled to file Writ
A No. 6818 of 2022 praying for a
mandamus commanding the respondents to
pay the subsistence allowance for the
aforesaid period. During the pendency of
the petitioner, the respondents have negated
the claim of the petitioner vide order dated
22.06.2023 by indicating that legally the
petitioner is not entitled for payment of
subsistence allowance for the aforesaid
period.

15. No reasons are forthcoming from
the order impugned as to why, despite
earlier the District Inspector of Schools
having found the petitioner entitled for
being paid subsistence allowance vide
orders dated 25.05.2018 and 09.06.2020,
the respondents have done a volte face and
have not found the petitioner entitled
"legally" for payment of subsistence
allowance.

16. Needless to mention that it is
settled proposition of law that every order
has to stand on its own legs. The
mentioning of reasons in an order entails an
order to stand on its own legs. As already
indicated
above,
no
reasons
are
forthcoming from the orders impugned as
to what has prevailed upon the respondents
to not pay the subsistence allowance to the
petitioner for the deemed period of
suspension despite having earlier found the
petitioner
entitled
for
payment
of
subsistence allowance and thus, the order
being patently non-speaking and without
indicating any reasons and also being
contrary to the earlier orders passed by the
District Inspector of Schools himself dated
25.05.2018 and 09.06.2020, merits to be
quashed on this ground alone.

17. As regard the preliminary
objection raised by the learned Standing
counsel, the mere fact that the petitioner
has already filed a writ petition praying for
a mandamus for being paid subsistence
allowance
which
is
pending
for
consideration would not entail the dismissal
of this petition inasmuch as during the
pendency of the earlier petition itself, the
respondents have rejected the claim of the
petitioner vide the order impugned. It was
open for the petitioner to have either
amended the earlier writ petition by
challenging the order impugned dated
22.06.2023 or to file a fresh petition
challenging the order. The petitioner has
10 All. Pradeep Kumar Vs. State of U.P. & Ors.
911
chosen the second option of challenging the
order impugned by means of the instant
petition. As such, the preliminary objection
raised by learned Standing Counsel is
rejected.

18. The next question which arises is
the claim of the petitioner for payment of
full salary for the period of deemed
suspension from 06.09.2011 to 14.11.2016.

19. Provision for deemed suspension
is contained in Sub-Rule (3)(a)(b) of Rule 4
of the Uttar Pradesh Government Servant
(Disciplinary & Appeal) Rules, 1999
(hereinafter referred to as "Rules, 1999").
For the sake of convenience, Sub-Rule
(3)(a)(b) of Rule 4 of Rules, 1999 is
reproduced as under:

(3) (a) A Government servant shall be
deemed to have been placed or, as the case
may be, continued to be placed under
suspension by an order of the Authority
competent to suspend, 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) The aforesaid Government servant
shall, after the release from the custody,
inform in writing to the competent
Authority about his detention and may also
make representation against the deemed
suspension. The Competent Authority shall,
after considering the representation in the
light of the facts and circumstances of the
case as well as provisions contained in this
rule, pass appropriate order continuing
the deemed suspension from the date of
release from custody or revoking or
modifying it.

20. A perusal of Sub-Rule (3)(a)(b)
of Rule 4 of Rules, 1999 would indicate
that a Government Servant shall be
deemed to have been placed or continue
to be placed under suspension by an order
of the Authority to competent to suspend,
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. The government Servant
shall after release from the custody,
inform in writing to the Competent
Authority about his detention and may
also
make
a
representation
against
deemed suspension and the Competent
Authority,
after
considering
the
representation, may pass appropriate
order continuing the deemed suspension
from the date of release from custody or
invoking or modifying it.

21. When the aforesaid provisions
of Sub-Rule (3)(a)(b) of Rule 4 of Rules,
1999 are seen in the context of the facts
of the instant case, it emerges that as the
petitioner
had
been
arrested
on
07.09.2011 in the criminal case which
had been lodged against him and he was,
thereafter,
enlarged
on
bail
on
20.09.2016. Thus, the petitioner would be
deemed to be placed under suspension
with effect from his detention i.e.
06.09.2011 which suspension order was
revoked with the reinstatement. of the
petitioner after he was bailed out on
14.11.2016. The deemed suspension arose
on account of the petitioner being put in
jail. The suspension order was not passed
on account of any departmental inquiry
being contemplated or pending against
the petitioner meaning thereby that the
suspension of the petitioner was on
account of criminal case being lodged
against the petitioner and he being put
behind the bars. After the petitioner was
released, he was re-instated in service.
912 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner claims full salary for the
period of deemed suspension on account of
he having been acquitted in the criminal
case vide judgment dated 11.11.2022.

22. Whether an employee would be
entitled for being paid full salary for the
period of his suspension which was on
account of being involved in a criminal
case was initially considered by the Apex
Court in the case of Ranchhodji Chaturji
Thakore Vs. Superintendent Engineer,
Gujrat
Electricity
Board
and Anr
reported in (1996) 11 SCC 603. Therein the
Apex Court was seized of a matter where
an employee, on account of his conviction
under
Section
302
I.P.C,
has
been
dismissed him from service. The employee
was later acquitted of the offence and
thereafter, on directions being issued by the
High Court, the employee was re-instated
in service but denied back wages. The
denial of back wages was upheld by the
Apex Court on the ground that the
question of back wages could be
considered only if the employer had
taken action by way of disciplinary
proceedings and the action was found to
be unsustainable in the eyes of law and
he was unlawfully prevented from
discharging the duties. The Apex Court
was of the view that as in the case the
employee had involved himself in a
crime, though he was later acquitted ,
he had disabled himself from rendering
service on account of conviction and
incarceration
in
jail.
Under
these
circumstances, the employee was not
held entitled for payment of back
wages.

23. For the sake of convenience,
the relevant observations of the Apex
Court in the case of Ranchhodji Chaturji
Thakore (supra) are reproduced below:-

"The reinstatement of the petitioner
into the service has already been ordered
by the High Court. The only question is:
whether he is entitled to back wages? It
was his conduct of involving himself in the
crime that was taken into account for his
not being in service of the respondent.
Consequent upon his acquittal, he is
entitled to reinstatement for the reason that
his service was terminated on the basic of
the conviction by operation of proviso to
the statutory rules applicable the situation.
The question of back wages would be
considered only if the respondents have
taken action by way of disciplinary
proceeding and the action was found to be
unsustainable in law and he was unlawfully
prevented from discharging the duties. In
that context, his conduct becomes relevant,
Each case requires to be considered in his
own backdrops. In this case, since the
petitioner had involved himself in a crime,
though he was later acquitted, he had
disabled himself from rendering the service
on account of conviction and incarceration
in jail. Under these circumstances, the
petitioner is not entitled to payment of back
wages. The learned single judge and the
Division Bench have not committed any
error of law warranting interference."

24. Later, the Apex Court in the case
of Union of India and Ors Vs. Jaipal
Singh
reported
in
(2004)
1
SCC
121considered its earlier judgment in the
case of Ranchhodji Chaturji Thakore
(supra) and held that if as a citizen the
employee or a public servant got involved
in a criminal case and if after initial
conviction by the trial Court, he gets
acquittal on an appeal, the department
cannot in any manner be faulted with for
having kept him out of service and
consequently, the employee upon being
reinstated in service, would not be entitled
10 All. Pradeep Kumar Vs. State of U.P. & Ors.
913
for payment of back wages for the period
he remained out of service.

25. For the sake of convenience, the
relevant observations of the Apex Court in
the case of Jaipal Singh (supra) are
reproduced below:-

4. ..... On going through the same, we
are in respectful agreement with the view
taken in [1996] 11 SCC 603 (supra). If
prosecution, which ultimately resulted in
acquittal of the person concerned was at
the behest or by department itself, perhaps
different considerations may arise. On the
other hand, if as a citizen the employee or a
public servant got involved in a criminal
case and it after initial conviction by the
trial court, he gets acquittal on appeal
subsequently, the department cannot in any
manner be found fault with for having kept
him out of service, since the law obliges, a
person convicted of an offence to be so kept
out and not to be retained in service.
Consequently, the reasons given in the
decision relied upon, for the appellants are
not only convincing but are in consonance
with reasonableness as well......"

26. Both the judgment of the Apex
Court in the case of Ranchhodji Chaturji
Thakore
(supra)
and
Jaipal
Singh
(supra) have been considered recently by
the Apex Court in the case of Raj Narain
Vs. Union of India reported in (2019) 5
SCC 809 wherein the Apex Court has again
been of the view that in case the suspension
would have been in contemplation of
discilinary
proceedings
which
were
subsequently dropped, only then would an
employee concerned be entitled for full
wages.

27. For the sake of convenience, the
relevant observations of the Apex Court in
the case of Raj Narain (supra) are
reproduced below:-

5. This Court in Ranchhodji Chaturji
Thakore (supra) considered the case of an
employee who sought back wages for the
period he was kept out of duty during the
pendency of a criminal case for his
involvement in an offence underSection
302,IPC. The claim of the Petitioner
therein was that he was entitled to full
wages on his acquittal by the Criminal
Court. This Court rejected the said
submission by holding that the question of
payment of back wages would arise only in
case of termination of service, pursuant to
findings
recorded in a
departmental
enquiry. In the event of the dismissal order
being set aside by the Court, the delinquent
employee would be entitled to claim back
wages as he was unlawfully kept away from
duty by the employer. This Court was of the
opinion that an employee against whom
criminal proceedings are initiated would
stand on a different footing in comparison
to an employee facing a departmental
inquiry. The employee involved in a crime
has disabled himself from rendering his
services on account of his incarceration in
jail. Subsequent acquittal by an Appellate
Court would not entitle him to claim back
wages.
6. The decision of Ranchhodji Chaturji
Thakore (supra) was followed by this Court
inUnion of India and Others v. Jaipal
Singh(supra) to refuse back wages to an
employee who was initially convicted for
an
offence
underSection
302read
withSection 34IPC and later acquitted by
the High Court in a criminal appeal. While
refusing to grant relief to the Petitioner
therein, this Court held that subsequent
acquittal would not entitle an employee to
seek back wages. However, this Court was
of the opinion that if the prosecution is
914 INDIAN LAW REPORTS ALLAHABAD SERIES
launched at the behest of the department
and the employee is acquitted, different
considerations may arise. The learned
counsel for the Appellant endeavored to
distinguish the prosecution launched by the
police for involvement of an employee in a
criminal case and the criminal proceedings
initiated at the behest of the employer. The
observation made in the judgment inUnion
of India and Others v. Jaipal Singh(supra)
has to be understood in a manner in which
the department would become liable for
back wages in the event of a finding that
the initiation of the criminal proceedings
was mala fide or with vexatious intent. In
all other cases, we do not see any
difference between initiation of the criminal
proceedings by the department vis-a-vis a
criminal case lodged by the police. For
example, if an employee is involved in
embezzlement
of funds
or is
found
indulging in demand and acceptance of
illegal gratification, the employer cannot
be mulcted with full back wages on the
acquittal of the person by a criminal Court,
unless it is found that the prosecution is
malicious."

28. From a perusal of the judgments
in the case of Ranchhodji Chaturji
Thakore (supra), Jaipal Singh (supra)
and Raj Narain (supra) it thus emerges
that it is only if the petitioner herein would
have been placed under suspension on the
ground of disciplinary proceedings which
may have resulted subsequently in his
exoneration on culmination of disciplinary
proceedings that the petitioner might have
been entitled for payment of full salary for
the period of suspension. However, no
disciplinary proceedings were ever initiated
against the petitioner rather there was
deemed suspension on account of the
petitioner being put behind bars in the
criminal case in which subsequently the
petitioner has been bailed out and thereafter
the petitioner's deemed suspension was
revoked and he was reinstated in service.
As the petitioner kept away from work on
account of being incarcerated in jail on
account of having involved himself in a
crime, though he was later acquitted, as
such, he had disabled himself from
rendering the service on account of being
incarcerated
in
jail.
Under
these
circumstances, the petitioner would not be
entitled for payment of salary for the period
of his deemed suspension.

29. Keeping in view the aforesaid
discussion, the writ petition is party
allowed. The
order
impugned
dated
22.06.2023, a copy of which Annexure No.
1 to the petition, is set aside. The
Competent
Authority
is
required
to
consider the claim of the petitioner for
payment of subsistence allowance for the
period of his deemed suspension.

30. Let such consideration be done
within a period of two months from the
date of receipt of certified copy of this
order.

----------
(2023) 10 ILRA 914
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 8354 of 2023

Garima Vashishtha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Siddharth
Khare,
Sr.
Advocate