# Prakash Kulshrestha v. Director of

- **Citation:** (2011) 2 ILRA 565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-30
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-kulshrestha-v-director-of-41921
- **Pages:** 6

## Headnote

Constitution of India, Article 226-Salary
during
suspension
period-petitioner
suspended on ground of pendency of
Criminal Trail-after 15 years disciplinary
authority passed reinstatement order
subject to out come of criminal case-but
except subsistence allowance-on ground
of "No Work No Pay"-salary during
suspension period denied-Criminal Trail
given fair acquittal-held-Principle of "No
work No pay" not applicable in case in
hand-employer can not be allowed to
take benefit of their own wrong if an
employee not allowed to work-salary can
not be denied in view of Brijesh Kumar
Kushwaha case.

Held: Para 17 and 18

This Court in the case of Brijendra
Prakash Kulshrestha Vs. Director of
Education & others 2007 (3) ADJ 1 (DB)
has considered the applicability of "no
work no pay" and it has been held that
an employer cannot deny salary to an
employee, who is always willing and
ready to work but was not allowed to do
so by an act or omission directly
attributable to the employer.
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Considering the right of petitioner to
claim full salary during the period of
suspension for the reason that nothing
has
been
found
proved
against
petitioner, I find that from whatever
angle the matter is considered, it results
in giving a verdict in favour of petitioner.
Consequently, the writ petition deserves
to succeed.
Case law discussed:
AIR 1959 SC 1342; 2007 (3) ADJ 1 (DB)

## Text

2 All] Shiv Rama Verma V. U.P.Cooperative Union Ltd. Thru Secy. and 2 others
565
claim before the Special Judge (Gangsters
Act), where the matter has been referred.
Such appraisal of evidence is not possible in
the present proceedings under Article 226
of the Constitution of India. The act
provides a complete machinery as against
the decision of the court an appeal lies
under Section 18 of the Act."

8. Reference was also made in
Manzoora's case (Supra) to the decision of
Supreme Court in Badan Singh alias Baddo
Vs. State of UP and others, AIR 1981, SC
1363 for the proposition that the Court
cannot investigate into the adequacy or
sufficiency of the reasons which weighed
with the authority for having reason to
believe something, but the Court could only
examine whether the reasons were relevant
and have a bearing on the matter in regard
to which it was required to entertain this
belief. It could not be said that in the present
case, the District Magistrate could have no
reason to believe that the said properties had
been acquired as a result of the commission
of the offences triable under the Gangsters
Act.

9. For all these reasons, as the matter
has now been referred to the Special Judge,
it is for the Special Judge to consider the
matter on merits whether the property is to
be confiscated or released.

10. In view of what has been indicated
herein above, the writ petition is dismissed.

11. It is made clear that the Special
Judge should not be prejudiced by the
observations made herein above, which
were only for the purpose of disposal of the
writ petition and he sould decide the matter
on merits.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 10303 of 2006

Shiv Ram Verma

 ...Petitioner
Versus
U.P.Cooperative Union Ltd. Thru Secy.
and 2 others.

 ...Respondents

Counsel for the Petitioner:
Pt. D.R. Shukla

Counsel for the Respondents:
C S C
Sri Rakesh Kumar

Constitution of India, Article 226-Salary
during
suspension
period-petitioner
suspended on ground of pendency of
Criminal Trail-after 15 years disciplinary
authority passed reinstatement order
subject to out come of criminal case-but
except subsistence allowance-on ground
of "No Work No Pay"-salary during
suspension period denied-Criminal Trail
given fair acquittal-held-Principle of "No
work No pay" not applicable in case in
hand-employer can not be allowed to
take benefit of their own wrong if an
employee not allowed to work-salary can
not be denied in view of Brijesh Kumar
Kushwaha case.

Held: Para 17 and 18

This Court in the case of Brijendra
Prakash Kulshrestha Vs. Director of
Education & others 2007 (3) ADJ 1 (DB)
has considered the applicability of "no
work no pay" and it has been held that
an employer cannot deny salary to an
employee, who is always willing and
ready to work but was not allowed to do
so by an act or omission directly
attributable to the employer.
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Considering the right of petitioner to
claim full salary during the period of
suspension for the reason that nothing
has
been
found
proved
against
petitioner, I find that from whatever
angle the matter is considered, it results
in giving a verdict in favour of petitioner.
Consequently, the writ petition deserves
to succeed.
Case law discussed:
AIR 1959 SC 1342; 2007 (3) ADJ 1 (DB)

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard learned counsel for the
parties and perused the record.. As agreed
by learned counsel for the parties, I
proceeded to hear the matter finally at this
stage under the Rules of the Court.

2. The only relief pressed before this
Court is the salary for the period of
suspension i.e. 1st August, 1968 to 22nd
July, 1983 along with interest.

3. The petitioner has sought a writ of
certiorari for quashing the order dted 23rd
January, 2007 (Annexure 9 to the writ
petition) whereby the above request of the
petitioner has been turned down only on
the ground that the petitioner has been
found guilty of delay in disposal of the
disciplinary proceedings and hence no
salary is payable for the period of
suspension. It is not in dispute that the
petitioner was placed under suspension on
1st August, 1968 on account of certain
irregularities allegedly committed by him
while posted as Cooperative Supervisor,
Gonda. A first information report was
also lodged against him. While placing
under suspension vide order dated 1st
August, 1968 the petitioner was attached
with the office of Assistant Registrar,
Cooperative Societies, Gonda where he
submitted his joining on 9th February,
1970. A charge sheet was issued to the
petitioner on 7th February, 1972 which
was replied by the petitioner on 9th
March, 1972 stating that the matter is
pending investigation by the police and
therefore there is no occasion for holding
a simultaneous enquiry by the Assistant
Registrar. Thereafter the matter remained
pending since trial was continuing in the
Court.

4. The District Level Committee of
the Society passed a resolution on
20.12.1982 that disposal of criminal trial
in the Court would take time and
therefore the petitioner may be reinstated
in the meantime. It appears that against
the charge sheet was served upon the
petitioner on 19th January, 1982 which
was replied by him on 22nd January,
1982. Additional District Cooperative
Officer was appointed as enquiry officer
by order dated 29th January, 1982 but
later on the respondents decided to
reinstate the petitioner tentatively as a
consequence thereof the Deputy Registrar
(Cooperative) by order dated 16th July,
1983 reinstated the petitioner observing
that reinstatement shall not adversely
affect the matter pending before the
Court, the petitioner shall not be posted
on a post of responsibility and no amount
beyond one fourth of the subsistence
allowance shall be paid.

5. In the criminal case i.e., Case No.
1309 of 1981 the Court of Additional
Chief
Judicial
Magistrate,
Faizabad
acquitted the petitioner vide judgment
dated
25.02.1986.
Thereafter
the
petitioner requested the respondents to
take a final decision in the matter of
salary but no decision was taken. It
appears that inquiry officer in the
meantime had also submitted a report
wherein he did not find any charge proved
2 All] Shiv Rama Verma V. U.P.Cooperative Union Ltd. Thru Secy. and 2 others
567
against the petitioner. The petitioner
aggrieved by inaction on the part of
respondents in taking final decision
regarding payment of salary and other
consequential benefits, approached this
Court in Writ Petition No. 6845(S/S) of
1987 wherein an order was issued
directing the competent authority to take a
final decision in the matter within two
months. Pursuant thereto the Deputy
Registrar passed an order on 18.07.1988
closing the matter with recommendation
for
fixation
of
salary,
increment,
continuance of service, promotion etc.
except full salary for the period of
suspension which was directed to be
confined only to the extent of subsistence
allowance already paid. In taking this
decision, the Deputy Registrar observed
that it is the petitioner who was
responsible for delay in proceedings.

6. The order dated 16.07.1988 was
placed before this Court in the aforesaid
pending writ petition which came to be
finally decided on 15.03.2005 and this
Court passed the following order:

"Sri Rakesh Kumar learned counsel
for opposite party no.1 has fairly
submitted that that this Court may provide
that the opposite parties be allowed to
issue show cause notice against the
petitioner and pass appropriate orders
after considering the reply of the
petitioner to the said show cause notice.

In view of above, the writ petition is
finally disposed of with the liberty to
opposite party no.1 to issue such show
cause notice regarding payment of salary
to
the
petitioner
for
the
period
suspension. However, it is made clear that
in the present case petitioner was
suspended
because
of
pendency
of
criminal trial which had resulted in clean
and honorable acquittal of the petitioner.
It will be for the employer to consider
taking such a recourse as the petitioner
was under suspension due to continuance
of departmental enquiry. This Court is not
interfering with the order of reinstatement
and the benefits which accrued to the
petitioner by issuance of such order. The
petitioner has already retired on attaining
the age of superannuation.

7. Pursuant to the above, a show
cause notice dated 03.06.2005 was issued
requiring the petitioner to show cause as
to why applying the principle of "no work
no pay", full salary during suspension
period
be
declined.
The
petitioner
submitted
his
reply
on
25.07.2005
whereafter the impugned order dated
23.01.2007 has been passed.

8. Learned counsel for the petitioner
submitted that no charge has been found
proved against petitioner. His suspension
was continued for about 15 years for the
reasons beyond his control. For pendency
of criminal case for more than a decade he
was not responsible. It was always open
to respondents to hold departmental
inquiry and pass appropriate order therein
but they chose not to do so. He also
submitted where no charge has been
found proved, there is no provision under
which full salary for the period of
suspension can be denied to an employee
since during period of suspension though
an employee is not asked to perform any
duty but relationship of employer and
employee
continue
to
subsist,
the
employee cannot take up any other
employment and, therefore, in absence of
any statutory provision full salary for
period of suspension cannot be denied
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
unless it is found that the suspension was
not wholly unjustified.

9. Sri Rakesh Kumar, learned
counsel appearing for the respondents
submitted that the petitioner himself was
responsible for delay in proceedings
inasmuch as he was attached with the
office of Assistant Registrar by means of
order of suspension but he joined the
office of Assistant Registrar after almost
two years and thereafter also did not
cooperate in departmental inquiry and
hence
for
this
entire
prolonged
suspension, petitioner himself has to be
blamed. He cannot be given any benefit
and, therefore, full salary has rightly been
denied by respondents.

10. The short question up for
consideration needs to be adjudicated in this
case in what circumstances full salary can
be denied to an employee for the period he
remained under suspension. In respect to the
employees of the State Government the
matter is governed by the statutory
provisions like Fundamental Rule and
Fundamental Rules 54, 54-A and 54-B
takes care of such a situation. The
cumulative effect of the aforesaid provision
is where the suspension of the employee has
resulted in a punishment, whether the
employee would be entitled for full salary
during the period of suspension would be
decided by the competent authority after
giving a show cause notice to him. But
where the competent authority found that
the suspension was wholly unjustified, or
the employee is exhonerated in the
disciplinary enquiry and reinstated, he
would be entitled for full salary for the
period of suspension.

11. In the case in hand, no provision
similar or acin to Fundamental Rule 54, 54A or 54-B have been shown. The counsels
for the parties submitted that the said
principles may be followed in the case in
hand. However, even without adverting to
the
aforesaid
provision,
this
Court
proceeded to look into the question
considering the nature of suspension and its
influence on the relationship of employer
and employee.

12. The nature and effect of
suspension has been considered by Apex
Court in The Management of Hotel
Imperial, New Delhi & Ors. Vs. Hotel
Workers' Union AIR 1959 SC 1342. The
Apex Court said that the order of
suspension only makes the contract of
service between the employer and employee
in abeyance but neither it results in
cessation of said relation nor the parties
would be free inasmuch as the employee
cannot seek any employment and employer
cannot make a substantive recruitment on
the post treating the post vacant since the
employee
placed
under
suspension,
continue to hold lien on the post he was
holding. With respect to subsistence
allowance the principle is well settled that
unless regulated by the statutory rules or
terms of contract otherwise, an employee
placed under suspension would be entitled
for full salary.

13. The contention of counsel for the
petitioner that there is no provision under
which full salary can be denied to petitioner
when no charge against him has been found
proved, which shows that suspension was
wholly
unjustified,
could
not
be
contradicted by learned counsel for the
respondents since he could not place any
provision authorizing respondents to deny
full salary to petitioner even if no charge
has been proved against him and he has
2 All] Shiv Rama Verma V. U.P.Cooperative Union Ltd. Thru Secy. and 2 others
569
been exonerated with all benefits except full
salary for the period of suspension.

14. It appears that the respondents
employer in this case got influenced in
taking a decision on this aspect against
petitioner on account of long period for
which suspension had continued. No
justification on the part of respondents has
come
forward
for
such
prolonged
suspension. It is a matter of common
knowledge that a criminal trial would take
much longer time and, therefore, what
respondents had done in July, 1983, i.e.,
reinstatement of petitioner subject to
decision in criminal case, could have been
done even much earlier but for the reasons
best known to them they took almost fifteen
years to take such a decision and throughout
this period kept the petitioner under
suspension. Obviously, this venture on the
part of respondents could be on their own
risk and responsibility which they cannot
shift or divert towards the petitioner. In the
criminal case also petitioner has been
acquitted. In so called departmental inquiry
also nothing has been found proved against
petitioner.

15. The suspension of petitioner,
therefore, ex facie was wholly justified. In
absence of any provision empowering and
authorizing the respondents to deny full
salary during the period of suspension, in
my view, it cannot be denied to petitioner.
Respondents cannot be allowed to take
advantage of their own wrong. Petitioner
cannot be penalized or victimized for a
prolonged suspension by denying him full
salary for the period even though neither on
the question of delay he has any control nor
he could have got the aforesaid suspension
curtailed on his own volition. The periodical
review ought to have been made by
respondents which they admittedly have
failed.

16. So far as the aspect of "no work no
pay" is concerned, it has no application to
the case in hand. Here the petitioner never
shirked away from his responsibility or
obligation to work but the respondents on
their
own
made
him
incapable
of
performing any job by placing him under
suspension.

17. This Court in the case of
Brijendra
Prakash
Kulshrestha
Vs.
Director of Education & others 2007 (3)
ADJ
1
(DB)
has
considered
the
applicability of "no work no pay" and it has
been held that an employer cannot deny
salary to an employee, who is always
willing and ready to work but was not
allowed to do so by an act or omission
directly attributable to the employer.

18. Considering the right of petitioner
to claim full salary during the period of
suspension for the reason that nothing has
been found proved against petitioner, I find
that from whatever angle the matter is
considered, it results in giving a verdict in
favour of petitioner. Consequently, the writ
petition deserves to succeed.

19. In the result the writ petition is
allowed. The impugned order dated 23rd
January, 2001 (Annexure 9 to the writ
petition)
is
hereby
quashed.
The
respondents are directed to pay full salary to
petitioner for the period of suspension but
while computing and making payment of
full salary, as directed above, respondents
shall be entitled to adjust the amount, if any,
they have already paid towards subsistence
allowance during the aforesaid period.
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

20. The petitioner shall also be
entitled to cost which is quantified to Rs.
20,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2011

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 12500 of 2010

Mahesh Narain Gupta

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

Counsel for the Petitioner:
Sri R.P. Tiwari

Counsel for the Respondent:
C.S.C.

Civil Services Regulation-Rule-351-ADismissal order-Punishment inflicted
without proper opportunity to defend
without indicating time place and date
of inquiry-order not sustainable -
punishment
order
quashed
with
liberty to proceed as fresh.

Held: Para 22

On the facts and in the light of
analysis so made, we are of the
considered view that the impugned
order of punishment is liable to be
quashed
with
the
directions
that
Enquiry
Officer
is
to
provide
opportunity to the petitioner to file
reply in respect of charges and then to
proceed with the enquiry proceeding
after opportunity in the manner so
permissible in law.
Case law discussed:
1995 SCC Supp.(3), 212, AIR 1960 SC 160,
1960(4)AWC
3227,
2008(1)ADJ;
284(DB(LB))1964AC40

(Delivered by Hon'ble Sheo Kumar Singh, J.)

1. Heard Shri R.P. Tiwari learned
counsel in support of this writ petition
and learned Standing Counsel who
appears for the respondents.

2. Prayer in this petition is for
quashing the impugned order dated
26.11.2009 delivered to the petitioner
on 17.12.2009 ( Annexure No. 3 to the
writ petition) passed by the State
Government by which the disciplinary
proceeding against the petitioner has
been concluded by giving two directions
i.e. (i) recovery of a particular amount
by way of suit; (ii) deductions from the
pensionary benefit to the tune of 10% .

3. As pleadings inter-se parties are
exchanged, both side requested for the
hearing and decision and, thus, we have
heard the matter.

For disposal of the writ petition,
facts in brief will suffice.

4. Petitioner was in service in the
Public Works Department and on
31.1.2006 he retired from the post of
Executive Engineer. During the entire
service period, the petitioner claims,
that he was neither charge sheeted nor
any complaint against him ever came. It
is only vide letter dated 5.5.2008, the
petitioner was informed that pursuant to
the order dated 6.6.2006, disciplinary
proceedings against him has been
initiated under C.S.R. Rule 351(A) and
the Chief Engineer P.W.D. Kanpur was
appointed as an enquiry officer. Enquiry
Officer
submitted
its
report
on
18.3.2008 by which the petitioner was
called upon to file objection which he
filed, and it is thereafter, by the