# Radhey Shyam v. The Chairman

- **Citation:** (2010) 1 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-08
- **Case number:** Civil Misc. Writ Petition No. 6277 of 2010
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-v-the-chairman-41513
- **Pages:** 3

## Headnote

Sri Ramendra Pratap Singh
C.S.C.

Civil Services Regulation-Regulation 59
(8)-Revocation
of
suspension
orderpetitioner
after
grant
of
Bail-can
approach
before
the
disciplinary
authority for revocation of suspension
order after alter grant of Bail.

Held: Para 6

Sub-Regulation
5
of
Regulation
59
clearly provides for the power to the
authority to revoke the suspension order
in any of the contingency including the
contingencies of deemed suspension. It
is, therefore, clear under the Rules itself
that there is a provision of deemed
suspension
but
simultaneously
the
authority has been given the discretion
to revoke such deemed suspension.
Case law discussed:
(1998) 8 SCC 578.

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
quashed without calling for any counteraffidavit. The authority shall pass a fresh
order in the light of the observations made
herein above within 3 weeks from the
date of production of a certified copy of
this order before him.
---------
ORIGINAL JURISDICION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2010

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

Civil Misc. Writ Petition No. 6277 of 2010

Rama Shankar

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

Counsel for the Petitioner:
Sri Anil Kumar Bajpai

Counsel for the Respondents:
Sri Ramendra Pratap Singh
C.S.C.

Civil Services Regulation-Regulation 59
(8)-Revocation
of
suspension
orderpetitioner
after
grant
of
Bail-can
approach
before
the
disciplinary
authority for revocation of suspension
order after alter grant of Bail.

Held: Para 6

Sub-Regulation
5
of
Regulation
59
clearly provides for the power to the
authority to revoke the suspension order
in any of the contingency including the
contingencies of deemed suspension. It
is, therefore, clear under the Rules itself
that there is a provision of deemed
suspension
but
simultaneously
the
authority has been given the discretion
to revoke such deemed suspension.
Case law discussed:
(1998) 8 SCC 578.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The petitioner is a Junior
Assistant with the respondent - NOIDA.
He was taken into custody on account of
being involved in a criminal case and was
put behind bars. The petitioner moved an
application before the authority for
revoking the suspension order after his
release from detention. Having failed to
get any relief, he has filed this writ
petition for quashing of the suspension
order dated 20.8.2007 on the ground that
the Service Regulations 1981 clearly
mandate
the
authorities
to
pass
appropriate orders in such a situation.

3. Sri Anil Kumar Bajpai, learned
counsel for the petitioner, has relied on
the decision of this Court in the case of
Radhey Shyam Vs. The Chairman,
NOIDA, and another, Writ Petition
No.17132 of 2002, decided on 25.4.2002
and the subsequent decision in relation to
the same employee in Writ Petition
No.42220 of 2002, decided on 30.9.2002.
Sri Bajpai, on the strength of the said
decisions, contends that the respondent -
authority
has
to
consider
the
representation of the petitioner, apply its
mind and pass a reasoned order for either
accepting or rejecting the request of the
petitioner. He submits that even though
under the Regulations, the petitioner will
be deemed to have been suspended, yet
the respondents still continue to enjoy the
power to revoke the same and which
power has to be exercised in accordance
with the Regulations aforesaid.

4. Sri Ramendra Pratap Singh, on
the
other
hand,
contends
that
the
1 All] Rama Shankar V. State of U.P. and another
141
petitioner has several criminal cases on
his head and he has been placed under
suspension keeping in view the aforesaid
facts. He further submits that there is no
occasion for the authority to revoke the
suspension order and that the nature of the
crime in which the petitioner is involved,
does not entitle him for any such relief.

5. Having heard learned counsel for
the
parties,
Regulation
59,
which
undisputedly governs the aforesaid issue,
is quoted herein below:-

"59. (1) The Authority or the
Appointing
Officer
or
any
officer
empowered by the Authority in that
behalf may place an employee under
suspension.

(a) Where a disciplinary proceeding
against him is contemplated or is pending;
or

(b) Where a case against him in respect
of any criminal offence involving moral
turpitude is under investigation or trial;

Provided
that
where
the
order
of
suspension is made by an Officer lower
than the appointing Officer such Officer
shall forthwith report to the Appointing
Officer the circumstances in which the
order was made.

(2) An employee who is detained in
custody, whether on a criminal or other
charge for a period exceeding forty eight
hours, shall be deemed to have been
suspended with effect from the date of
detention by an order of the Appointing
Officer and shall remain under suspension
until further orders.

(3) Where an employee has been placed
under suspension and the inquiry into his
conduct results in his dismissal or
removal from services, the order of the
dismissal or removal shall take effect
from the date of such suspension.

(4) Where a penalty of dismissal or
removal from service imposed upon an
employee under suspension is set aside in
appeal under these regulations and the
case is remitted for further inquiry or
action or with any directions the order of
suspension shall be deemed to have
continued in force on and from the date of
the original order of dismissal or removal
and shall remain in force until further
orders.

(5) An order of suspension made or
deemed to have been made under this
regulation may at any time be revoked
by the Officer who made or is deemed
to have made the order or by an officer
to whom that officer is subordinate or
by the Authority."

6. Sub-Regulation 5 of Regulation
59 clearly provides for the power to the
authority to revoke the suspension order
in any of the contingency including the
contingencies of deemed suspension. It is,
therefore, clear under the Rules itself that
there is a provision of deemed suspension
but simultaneously the authority has been
given the discretion to revoke such
deemed suspension.

Notice may be taken of the Apex
Court decision in the case of Union of
India Vs. Rajiv Kumar, (2003) 6 SCC
516. In paragraph nos. 14 to 17 of the said
decision, the Apex Court has clarified that
once a person has been placed under
deemed suspension then the same does
142 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
not get automatically revoked upon
release and a fresh order has to be passed.
The view expressed by the Full Bench in
the case of Chandra Shekhar Saxena and
etc. Vs. Director of Education (Basic),
U.P., Lucknow and another, 1997 ALJ
963, to the effect, that the legal fiction by
which the deemed suspension operates
will cease to be effective upon release,
was reversed.

7. Keeping in view the aforesaid
position of law, there is no occasion for
this Court to interfere with the suspension
order but the respondent - authorities are
obliged to pass an appropriate order
keeping in view the provisions of SubRegulation 5 of Regulation 59.

8. Sri Ramendra Pratap Singh relied
on the decision in the case of Deputy
Inspector General of Police Vs. G.
Pandian, (1998) 8 SCC 578, to contend
that the provision of deemed suspension
applies and the petitioner has no right to
get the suspension order revoked. I have
perused the said judgment and the same in
paragraph no.5 considers the impact of a
Rule under Tamil Nadu Subordinate
Services (Discipline and Appeal) Rules,
1955. The said decision was nowhere
concerned with the power given to the
authority to revoke the suspension as in
the present case under sub-regulation 5 of
Regulation 59. The aforesaid decision,
therefore, does not apply on the rules that
are presently under consideration and on
the facts and circumstances of the present
case.

9. Having concluded as above, the
writ petition is disposed of with a
direction to the respondent No.2 to pass
appropriate orders on the application of
the petitioner within a period of 2 months
from the date of production of a certified
copy of this order before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2010

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE KASHINATH PANDAY, J.

Civil Misc. Writ Petition No. 9684 of 2003

Dr. P.L. Sharma

...Petitioner
Versus
Director of Higher Education and another

 ...Respondents

Counsel for the Petitioner:
Sri K.K. Arora
Sri A.N. Srivastava
Sri Awadhesh Kumar
Sri N.K. Srivastava
Sri P.K. Srivastava
Sri V.C. Dixit
Sri V.K. Dixit

Counsel for the Respondent:
C.S.C.

Constitution of India Art 226- Change of
option-petitioner working as P.G. College
as lecturer opted C.P.F. Scheme-in view
of G.O.25.08.99 applied for change of
option G.P.F. With Pension benefit-on
19.07.2001-retirement
due
after
academic Session benefit-can not be
refused.

Held: Para 19

In view of the above decisions, we are of
the opinion that the petitioner in the
present Writ Petition, who exercised his
option
by
the
Option
Letter
dated
19.07.2001 (Annexure-5 to the Writ
Petition) in terms of the Government
Order dated 25.08.1999, was entitled to
the benefit of GPF Scheme with Pension,
and the respondent no.1 acted illegally