# Ram Bachan Ram v. Union of India & Ors. 172 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 4 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-26
- **Case number:** Writ A No. 1309 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bachan-ram-v-union-of-india-ors-172-indian-law-reports-allahabad-series-46970
- **Pages:** 11

## Headnote

A. Civil Law - Central Reserve Police Force
Act, 1949 - Section 11(1) - Financial
Handbook, Vol 2 Part II - Fundamental
Rules 54 & 54A - Dismissal order -
Subsequently set aside - Not on merit, but
because the punishment order was found
to
be
disproportionate
-
Effect
-
Entitlement of Back wages and Continuity
of Service - Findings of the Inquiry Officer
about the petitioner's guilt were not
disturbed - Petitioner cannot be said to be
a government servant, who, by any
means, stands fully exonerated by a
judicial determination or otherwise -
Common
thread
running
between
provisions of Rule 54 and Rule 54-A of the
Fundamental Rules is that it is a complete
and clean exoneration of a government
employee that entitles him to all his
emoluments, and continuity of service for
the period of deprivation - Held, the
petitioner's
case
would
clearly
be
governed
by
the
provisions
where
entitlement
to
full
back-wages
and
continuity of service is not there. (Para 14
and 15)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

4 All. Ram Bachan Ram Vs. Union of India & Ors.
171
most certainly been prejudicial to his
interest.

20. At this stage, we may observe that
the charge levelled upon the petitioner was
with regard to breach of Rule 3 of 1956
Rules.
Rule
3
provides:
(1)
Every
Government servant shall at all times
maintain absolute integrity and devotion to
duty. (2) Every Government servant shall at
all times conduct himself in accordance
with the specific or implied orders of
Government regarding behaviour and
conduct which may be in force. Misconduct
is not defined. But a conduct which is in
violation of the code of conduct prescribed
for the office concerned may be treated as a
misconduct. Ordinarily, a breach of the
prescribed code of conduct may occur in
two situations. One due to improper
motives, which is to be viewed seriously,
and the other due to negligence which may
be
visited
with
minor
punishment,
dependent on facts of a case. As to whether
a conduct referable to breach of circular/
government
orders
amounts
to
a
misconduct, if so and punishable to what
extent, under the Rules, is dependent upon
multiple factors such as : (a) whether such
departmental
guidelines
/
circulars
/
government orders are well circulated and
admit of no two views; and (b) whether, on
account of multiple instructions in the form
of circulars/ government orders, there exist
a scope to have different views. In addition
to above, there may be a situation where
the conduct in question of an officer facing
enquiry is influenced by a misleading note
put by his subordinate staff in ordinary
course of business. If it is so, the violation
of the Government order or instruction or
circular may not be attributable to that
officer but to his subordinate. Thus, to
reach to a well considered finding on the
issue, it is desirable to have a date fixed
in the inquiry so as to provide the chargesheeted officer an opportunity to submit his
defence. But, for all of this, an oral enquiry
is necessary. Depriving a charge-sheeted
officer of the opportunity of an oral
enquiry, under the circumstances, would
therefore, in our considered view, cause
serious prejudice to his defence. Hence, the
view to the contrary taken by the learned
single judge is not correct.

20. As, admittedly, the enquiry officer
fixed no date for oral enquiry on the chargesheet served on the appellant, in spite of the
fact that the appellant had submitted a reply
refuting the charges, the enquiry stood
vitiated and so did the enquiry report as well
as the consequential action. The appeal is
therefore allowed. The judgment and order of
the learned Single Judge dated 02.03.2021 in
Writ A No. 8811 of 2020 is set aside. The
punishment order dated 01.10.2020 passed by
the second respondent is quashed. The
respondents, however, are at liberty to carry
out the disciplinary proceeding on the chargesheet dated 15.04.2009 from the stage of the
enquiry, in accordance with law, and in the
light of the observations made herein above.
There is no order as to costs.
----------
(2021)04ILR A171
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 1309 of 2017

Ram Bachan Ram ...Petitioner
Versus
Union of India & Ors. ...Respondents
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Bed Kant Mishra

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Dileep Kumar Panday
U.O.I.

A. Civil Law - Central Reserve Police Force
Act, 1949 - Section 11(1) - Financial
Handbook, Vol 2 Part II - Fundamental
Rules 54 & 54A - Dismissal order -
Subsequently set aside - Not on merit, but
because the punishment order was found
to
be
disproportionate
-
Effect
-
Entitlement of Back wages and Continuity
of Service - Findings of the Inquiry Officer
about the petitioner's guilt were not
disturbed - Petitioner cannot be said to be
a government servant, who, by any
means, stands fully exonerated by a
judicial determination or otherwise -
Common
thread
running
between
provisions of Rule 54 and Rule 54-A of the
Fundamental Rules is that it is a complete
and clean exoneration of a government
employee that entitles him to all his
emoluments, and continuity of service for
the period of deprivation - Held, the
petitioner's
case
would
clearly
be
governed
by
the
provisions
where
entitlement
to
full
back-wages
and
continuity of service is not there. (Para 14
and 15)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Devendra Pratap Narain Rai Sharma Vs St. of
U.P. & ors.; AIR 1962 SC 1334
2. J.K. Synthetics Ltd. Vs K.P. Agrawal & anr.;
(2007) 2 SCC 433

(Delivered by Hon'ble J.J. Munir, J.)

 The petitioner has brought the present
petition,
challenging
an
order
dated
07.01.2016, passed by the Deputy Inspector
General of Police, Group Center, Central
Reserve Police Force, Allahabad (now
Prayagraj) to the extent that it declines full
wages to the petitioner for the period
17.04.2008 to 19.07.2013. Further, a
mandamus has been sought, ordering the
respondents to release full pay and arrears
for the period 17.04.2008 to 19.07.2013,
together with award of seniority and grant
of promotion. In substance, the petitioner
asks this Court to treat the period
17.04.2008 to 19.07.2013 as period of
service deemed to be rendered free from
blemish, like any other employee.

2. The facts giving rise to the present
writ petition are these :

The petitioner was recruited on
the post of Constable/Mali with the Central
Reserve Police Force1 in the year 1991. He
was posted at the Group Centre, Allahabad
in the month of December, 2008. Shorn of
unnecessary details, it appears that the
petitioner's
wife
was
unwell
and
undergoing treatment at the Nazreth
Hospital, Prayagraj. The petitioner was
detailed to Sentry duty at the residence of
the Deputy Inspector General of Police,
Group
Center,
CRPF,
Allahabad
on
01.03.2008 from 18:00 hours to 02.03.2008
until 18:00 hours, along with other guards.
The petitioner, however, on 02.03.2008,
left post from 06:00 hours to 08:00 hours.
The respondents say that this absence from
post was without permission, whereas, the
petitioner claimed that he had sought the
requisite permission. A preliminary inquiry
was held in the matter. A departmental
inquiry was ordered under Section 11(1) of
The Central Reserve Police Force Act,
19492 read with Rule 27 of the The Central
Reserve Police Force Rules, 19553. Vide
memo dated 13.03.2008 issued by the
Additional Deputy Inspector General of
Police, Group Center, Allahabad, two
4 All. Ram Bachan Ram Vs. Union of India & Ors.
173
charges were framed against the petitioner.
The first was about his unauthorized
absence from post on 02.03.2008 from
06:00 hours to 08:00 hours, without the
permission of the competent authority, and
the other was that on 02.03.2008 at 05:45
hours, the petitioner, without permission of
the competent authority, carried his service
weapon/ammunition
to
his
allotted
government quarter, and that he left the
weapon and ammunition without security at
his quarter located in the camp compound
for the period of time that he moved out of
the camp premises to drop his wife to the
railway station.

3. A departmental inquiry followed.
At the conclusion of the disciplinary
proceedings, about which there is no issue
here, the petitioner was punished by the
Disciplinary Authority/Additional Deputy
Inspector General of Police, Group Center,
CRPF, Allahabad, inflicting the following
penalties :

[1]. Dismissal from service w.e.f.
17.04.2008.

[2]. The period of suspension
pending
inquiry
from
02.03.2008
to
16.04.2008 (46 days) to be treated as such.

There
were
certain
ancillary
directions, that are not relevant.

4. This order was appealed by the
petitioner to the Deputy Inspector General of
Police, CRPF, Allahabad through a statutory
appeal. The Deputy Inspector General of
Police, by his order of 7th August, 2008
dismissed the appeal and affirmed the
Disciplinary Authority's order. The petitioner
carried a revision under Rule 27/29 of the
Rules of 1955 to the Inspector General,
CRPF, Lucknow. The aforesaid revision
was
dismissed
vide
an
order
dated
27.01.2009.
Aggrieved,
the
petitioner
instituted a writ petition before this Court,
being Writ - A No. 16965 of 2009. The
aforesaid writ petition was allowed by a
judgment and order dated 08.05.2013, in
terms that the orders dated 17.04.2008,
07.08.2008 and 27.01.2009, dismissing the
petitioner from service and its affirmation in
appeal and revision, were all quashed, with a
remit of the matter to the Disciplinary
Authority, directing him to pass fresh orders
in accordance with law, within three months
of the date of presentation of a certified copy
of this Court's order.

5. In compliance with the said judgment
and order passed by this Court, it appears that
the petitioner was issued a letter dated
26.06.2013, directing him to report at the
Group Center, CRPF, Allahabad on or before
20.07.2013, to consider his case for
reinstatement in service, and further to pass
fresh orders in the disciplinary matter. The
petitioner reported on 20.07.2013 in the
forenoon. He was permitted to join w.e.f.
20.07.2013, again in the forenoon. The
respondents then proceeded to consider what
fresh orders were to be made in the
disciplinary
matter.
The
Disciplinary
Authority proceeded to pass those fresh
orders
on
08.08.2013,
punishing
the
petitioner in the following terms :

[1].
Confinement
to
Quarter
Guard for 15 days from 16.08.2013 to
30.08.2013 with one hour punishment drill
daily. Dismissal from service ordered
earlier vide order dated 17.04.2008 was
directed to be set aside.

[2]. The period of suspension
from
service
pending
inquiry
from
174 INDIAN LAW REPORTS ALLAHABAD SERIES
02.03.2008 to 16.04.2008 (46 days) was
directed to be treated as such.

6. The period of dismissal from
service from 17.04.2008 forenoon to
19.07.2013
i.e.
until
the
petitioner's
reinstatement on 20.07.2013 (forenoon)
was directed to be treated as "dies non" on
the principle of "no work no pay". The
aforesaid break in service was, however,
condoned, acting in terms of an order of the
Government of India dated 23.09.1982,
pursuant to Rule 28 of the Central Civil
Services (Pension) Rules, 19724. This
condonation was indicated to be for the
limited
purpose
of
reckoning
the
petitioner's pensionary benefits etc.

7. The petitioner appealed the order
dated 08.08.2013 to the Deputy Inspector
General of Police, Group Center, CRPF,
Allahabad
to
the
extent
that
the
Disciplinary Authority had treated the
period of his dismissal from service as one
not spent on duty and deprived him of all
consequential benefits of salary, allowances
and
seniority.
The
aforesaid
appeal,
preferred under Rule 27 of the Rules of
1955, was rejected by the Appellate
Authority vide order dated 04.02.2014. The
petitioner carried a revision to the Inspector
General of Police, under Rule 27 of the
Rules of 1955, assailing both orders and
asking
that
the
period
intervening
17.04.2008 and 19.08.2013, that is to say,
the period when the petitioner was out of
service, be treated as one spent on duty,
with grant of consequential benefits of
arrears of salary, bonus and promotion. The
Inspector General of Police, vide order
dated 11.06.2014, dismissed the revision,
but passed
better
worded
directions,
reiterating what the Authorities below had
done. All the three orders were put in issue
by the petitioner through a petition
preferred to the Special Director General,
Central
Zone,
Kolkata.
The
Special
Director General, Central Zone, Kolkata,
vide his order dated 5th of December, 2014
apparently
rejected
the
petitioner's
representation in terms of the following
directions :

(i) "The petitioner has been given
relief on the direction of the Hon'ble Court
(Judgment
dated
08/05/2013
in
WP
No.16765 of 2009). The Hon'ble Court has
not given specific service and financial
benefits to the petitioner. As such there is
no parity with CT/GD Murugesan and
ASI/M M.D. Salam as claimed with that of
the petitioner. The benefits which are to be
allowed should be based on rule positions
i.e. FR-54.

(ii) The petitioner has already
been given leniency by way of awarding a
lesser punishment. The petitioner has not
submitted any new material or valid ground
to interfere in the orders of disciplinary,
appellate and Revisioning authorities. Since
in the instant case the petitioner has not
been exonerated from the charges, the
competent
authority
has
treated
the
intervening period as period spent not on
duty, which is correct as per FR-54 (1,5).

(iii) In view of the above, I reject
the request of the petitioner to the extent of
service benefits of intervening period. The
pay and allowance of intervening period of
the petitioner from the date of dismissal to
the date of re-instatement as per FR (4,7)
may
be
finalized
by
the
IG,
CS
immediately."

8. While giving effect to the order of
5th December, 2014 passed by the Director
General of Police, the Deputy Inspector
General, CRPF, Allahabad regularized the
4 All. Ram Bachan Ram Vs. Union of India & Ors.
175
period between 17.04.2008 to 19.07.2013 and
directed that for the intervening period from
17.04.2008 to 19.07.2013, the petitioner
would be entitled to salary and allowances at
the rate of 50 percent. It has further been
provided that the petitioner would be entitled
to the first Assured Career Promotion5 pay
scale w.e.f. 05.10.2003, upon completion of
12 years' service and to the second ACP pay
scale w.e.f. 05.10.2011, upon completion of
20 years' service. The order dated 07.01.2016
passed by the Deputy Inspector General of
Police, CRPF, Allahabad, which is the order
impugned read as a whole, shows that the
period between 17.04.2008 to 19.07.2013 has
been held for the petitioner as one spent on
duty. It has not been regarded as period not
spent on duty. If this were not so, the
petitioner would not have been awarded the
second ACP pay scale w.e.f. 05.10.2011,
inasmuch as the said ACP is awarded upon
completion of 20 years' service. The
impugned order also shows to its face that the
second ACP was granted on completion of 20
years' service. The petitioner had joined
service in the year 1991, and, therefore, he
was awarded the second ACP in the year
2011. This award of the second ACP shows
that the break in service from 17.04.2008 to
19.07.2013 was effectively regularized and
reckoned as period spent on duty. The only
deprivation to which the petitioner was
subjected was the award of salary and
allowances, reduced by 50 percent, for the
period 17.04.2008 to 19.07.2013. Learned
counsel for the petitioner urges as the first
grievance, the denial of 50 percent wages for
the period 17.04.2008 to 19.07.2013 and asks
to be paid in full for that period, together with
arrears.

9. The last order that governs the
rights of the petitioner, which, admittedly,
became final inter se the parties, is the
order of December the 5th, 2014 passed
by the Special Director General, CRPF,
Kolkata. This order, while substantially
upholding the orders passed by the
Authorities
below,
makes
a
specific
direction, subject to which the petitioner
stands reinstated in service. The Director
General's order clearly says that since the
petitioner has not been exonerated of the
charges, the Competent Authority has
treated
the
intervening
period
(from
17.04.2008 to 19.07.2013) as one spent not
on duty. The Director General has also
remarked that this part of the order is
correct, as it accords with the Fundamental
Rule 54 (1) and (5). The Director General
has gone on to further say in his order that
he rejects the petitioner's request to the
extent of grant of service benefits for the
intervening
period
(that
is
to
say,
17.04.2008 to 19.07.2013).

10. So far, there is no ambiguity in the
Director General's order. But, towards the
tail end of it, there is a rather confounding
direction, which has been referred to
verbatim, in the part of this judgment
where the order of the Director General
dated 05.12.2014 has been quoted. This
direction says that the pay and allowance
for the intervening period from the date of
dismissal to the date of reinstatement may
be finalized as per "FR (4,7)" by the
Inspector General, CS immediately. It is
this last direction carried in the Director
General's order of 5th December that has
led the Deputy Inspector General, CRPF to
award 50 percent back wages to the
petitioner for the period 17.04.2008 to
19.07.2013 and also grant continuity of
service
without
break.
To
the
understanding of this Court, there is
variance between the order of the Director
General, in terms of which, the petitioner
176 INDIAN LAW REPORTS ALLAHABAD SERIES
finally stands reinstated in service and
those carried in the order impugned. The
terms carried in the order impugned are at
variance to the petitioner's advantage,
contrary to the Director General's order of
5th
December,
2014.
The
Director
General's order of 05.12.2014 has not been
formally impugned in the writ petition, but
this Court would think that the validity of
the
order
could
still
be
examined,
considering that the petitioner has asked for
a mandamus to direct the respondents to
release his full pay and arrears for the
intervening
period
17.04.2008
to
19.07.2013, with consequential benefits
(seniority and promotion).

11. The right to receive back wages
and grant of continuity of service upon
dismissal etc. from service being set aside,
is governed by Fundamental Rule 54 and
54-A of the Financial Handbook, Vol. 2,
Part II to IV. The relevant clauses of these
rules may be quoted in extenso :

54. (1) When a Government
servant who has been dismissed, removed
or compulsorily retired is re- instated as a
result of appeal or review or would have
been so re-instated but for his retirement on
superannuation, while under suspension or
not, the authority competent to order reinstatement shall consider and make a
specific order:-

(a)
regarding
the
pay
and
allowances to be paid to the Government
servant for the period of his absence from
duty including the period of suspension
proceeding his dismissal, removal or
compulsory retirement, as the case may be,
and

(b) whether or not the said period
shall be treated as a period spent on duty.

(2) When the authority competent
to order re- instatement is of the opinion
that the Government servant who had been
dismissed, removed or compulsorily retired
has been fully exonerated, the Government
servant shall, subject to the provisions of
sub-rule (6),be paid full pay and allowances
to which he would have been entitled, had
he not been dismissed, removed or
compulsorily retired or suspended prior to
such dismissal, removal or compulsory
retirement, as the case may be:

Provided
that
where
such
authority is of opinion that the termination
of the proceedings instituted against the
Government servant had been delayed due
to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representations within 60 days from the
date on which the communication in this
regard is served on him and after
considering the representation, if any
submitted by him, direct for reasons to be
recorded in writing, that the Government
servant shall, subject to the provisions of
sub-rule (7),be paid for the period of such
delay, only such amount not being the
whole of such pay and allowances as it may
determine.

(3) In a case falling under subrule (2), the period of absence from duty
including
the
period
of
suspension
proceeding
dismissal,
removal
or
compulsory retirement, as the case may be
shall be treated as a period spend on duty
for all purposes.

(4). In cases other than those
covered by sub-rule (2) [including cases
where the order of dismissal, removal or
compulsory retirement from service is set
aside by the appellate or reviewing
4 All. Ram Bachan Ram Vs. Union of India & Ors.
177
authority solely on the ground of noncompliance with the requirements of
Clause (1) of Clause (2) of Article 311 of
the Constitution and no further inquired is
proposed to be held], the Government
servant, shall, subject to the provision of
sub-rules (6) and (7) be paid such amount
(not being the whole) of the pay and
allowances to which he would have been
entitled had he not dismissed, removed or
compulsory retired or suspended prior to
such dismissal, removal or compulsory
retirement, as the case may be as the
competent authority may determine after
giving notice to the Government servant of
the quantum proposed and after considering
the representation, if any, submitted by him
in that connection, within such period
(which in no case shall exceed sixty days
from the date on which the notice has been
served) as my be specified in the notice.

(5). In a case falling under subrule (4), the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement as the case may be,
shall not be treated as a period spent on
duty, unless the competent authority
specifically directs that it shall be so treated
for any specified purpose :

Provided that if the Government
servant so desires such authority may direct
that the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement as the case may be,
shall be converted into leave of any kind
due and admissible to the Government
servant.

Note.
-
The
order
of
the
competent authority under the preceding
proviso shall be absolute and higher
sanction shall be necessary for the grant of-

(a) extraordinary leave in excess
of three months in case of temporary
Government servant; and

(b) leave of any kind in excess of
five years in the case of permanent
Government servant.

(6). xxxxx

(7). xxxxx

(8). xxxxx

54-A. (1) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by a Court
of Law and such Government servant is reinstated
without
holding
any
further
enquiry, the period of absence from duty
shall be regularized and the Government
servant shall be paid pay and allowance in
accordance with the provisions of sub- rule
(2) or (3) subject to the directions, if any, of
the court.

(2) (i) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by the
Court solely on the ground of noncompliance with the requirements of the
clause
(2)
of
Article
311
of
the
Constitution,
and
where
he
is
not
exonerated on merits, the Government
servant shall subject to the provision of
sub-rule (7) of rule 54, be paid such amount
(not being the whole) of the pay and
allowances to which he would have been
entitled had he not been dismissed,
removed
or
compulsorily
retired
or
suspended prior to such dismissal, removal,
or compulsory retirement, as the case may
178 INDIAN LAW REPORTS ALLAHABAD SERIES
be, as the competent authority may
determine, after giving notice to the
Government servant of the quantum
proposed
and
after
considering
the
representation, if any, submitted by him, in
that connection within such period (which
is no case shall exceed 60 days from the
date on which the notice has been served)
as may be specified in the notice:

(ii)
The
period
intervening
between the date of dismissal, removal or
compulsory retirement including the period
of suspension preceding such dismissal,
removal or compulsory retirement, as the
case may be and the date of judgment of
the court shall be regularized in accordance
with the provisions contained in sub-rule
(5) of Rule 54.

(3) If the dismissal, removal, or
compulsory retirement of a Government
servant is set aside by the Court on the
merits of the case, the period intervening
between the date of dismissal, removal or
compulsory retirement including the period
of suspension preceding such dismissal,
removal or compulsory retirement, as the
case may be, and the date of re- instatement
shall be treated as duty for all purposes and
he shall be paid the full pay and allowances
for the period to which he would have been
entitled, had he not been dismissed,
removed or compulsorily retired, as the
case may be."

(4) xxxxx

(5) xxxxx

12. A reading of Rules 54 and 54-A
of Fundamental Rules makes it evident that
these
govern
the
entitlement
of
a
government servant to his back wages
during the period of time that he has
remained out of service, in consequence of
an
order
of
dismissal,
removal
or
compulsory retirement etc. and the date of
his reinstatement. These rules also govern
the entitlement of a government servant to
the treatment or otherwise of the period of
absence from service as one spent on duty.
Rule 54 specifically speaks about these
entitlements and some others upon a
government servant being reinstated in
service, in consequence of an order of
dismissal, removal etc. being set aside in
appeal or review. More specifically, it deals
with those consequences and the relevant
entitlement of a government servant, where
the
order
is
set
aside
by
higher
departmental authority or forum in appeal
or review. Reference to the words "appeal"
or "review" in Rule 54 is to a departmental
remedy alone, and not a judicial remedy.
The provisions of Rule 54 were held not to
apply by their Lordships of the Supreme
Court in Devendra Pratap Narain Rai
Sharma v. State of Uttar Pradesh and
Others6 where the dismissal of a public
servant was declared invalid by a decree of
the Civil Court. This is all the more evident
from the fact that Rule 54-A was
introduced later on in the Fundamental
Rules, which specifically deals with the
consequence of an order of dismissal,
removal or compulsory retirement of a
government servant being set aside by a
Court of Law and the government servant
being reinstated in consequence. There
might be slight difference of form between
between Rule 54 and Rule 54-A of the
Fundamental Rules, but what is of
importance is that both under Rule 54 and
54-A, there is a broad and discernible
difference between the consequences of an
order of dismissal etc. being set aside on
merits ft, and on the other, on the ground of
non-compliance with Clauses (1) or (2) of
Article 311 of the Constitution, followed by
4 All. Ram Bachan Ram Vs. Union of India & Ors.
179
a decision not to hold any further inquiry.
Where the order of dismissal etc. is set
aside on merits, sub-Rule (3) of Rule 54-A
is clear that the period intervening date of
dismissal etc. and the date of reinstatement
shall be treated one spent on duty for all
purposes, including payment of full pay
and allowances. In case, however, the
dismissal order is set aside on grounds of
violation of Clause (1) or (2) of Article
311, with no further inquiry being proposed
to be held, the government servant, on
reinstatement, would be entitled to such
amount of pay and allowances for the
period of his ouster from employment, as
the competent authority may determine
after provision of opportunity to represent
Clause (2) of sub-Rule (2). Rule 54-A also
provides, in a situation of the latter kind,
that the period of time between the
dismissal etc. and the date of judgment of
the Court shall be governed by the
provisions of sub-Rule (5) of Rule 54.
Now, sub-Rule (5) of Rule 54 provides that
in a case where the order of dismissal etc.
is set aside in the contingencies envisaged
by sub-Rule (4) of Rule 54 (that are the
same as those enumerated in sub-Rule (2)
of Rule 54-A), that is to say, the order
being set aside for violation of Article 311
(1) and (2), the period of time between
dismissal and reinstatement shall not be
treated as one spent on duty, unless the
competent authority specifically directs that
it shall be so treated for any specified
purpose, to borrow the precise phraseology
of the Rule.

13. A careful comparison of the
provisions of Rule 54 and 54-A shows that
there is no difference in the principles
applicable to the rights of an employee
upon reinstatement, in case of relief by
departmental forum or a court of law,
except those that emanate from the
nature of the Court's jurisdiction on the one
hand and that of the departmental, appellate
or reviewing authority on the other. For
instance, while sub-Rule (3) of Rule 54-A
speaks about the order of dismissal etc.
being set aside by a court on merits,
entitling the government servant to a
reinstatement with all monetary and other
consequential benefits, the pari materia
provision of sub-Rule (2) of Rule 54 speaks
about the opinion of the competent
authority to order reinstatement of a
government servant upon his dismissal etc.
being set aside in appeal or review,
specifically on the point whether the
government
servant
has
been
fully
exonerated in order to entitle him to full
salary and emoluments. Likewise, it is
under sub-Rule (3) of Rule 54 the opinion
of the authority reinstating about a full
exoneration in appeal or review for the
government servant that would entitle him
to the period of his absence from duty to be
treated as time spent on duty for all
purposes. The principles in sub-Rule (3) of
Rule 54-A and sub-Rule (3) of Rule 54 are
identical. The differences in phraseology to
express the same substance, as said earlier,
emanate from the difference in the nature
of the powers exercised by the Court that
are of judicial review in one case, and, in
the other, of the employer.

14. The common thread running
between provisions of Rule 54 and Rule
54-A of the Fundamental Rules is that it is
a complete and clean exoneration of a
government employee that entitles him to
all his emoluments, and continuity of
service for the period of deprivation. In
case the government servant is reinstated
on anything short of a full exoneration, that
would compare to an honourable acquittal
180 INDIAN LAW REPORTS ALLAHABAD SERIES
in a criminal trial, the entitlement to the
entire salary and allowances as also
continuity of service is not envisaged. SubClause (1) of sub-Rule (2) of Rule 54-A
clearly refers to a dismissal etc. being set
aside not only for breach of Clauses (1) or
(2) of Article 311 but also where the
exoneration is not on merits. There is, thus,
no substantial difference between Rule 54
and Rule 54-A of the Fundamental Rules,
except that in one case, reinstatement is in
consequence
of
an
order
made
in
departmental appeal or other remedy and
the
other,
as
a
result
of
judicial
determination.

15. In the present case, it is not in
issue that this Court, while setting aside the
order of dismissal, did not do so on merits.
In other words, the order was not set aside,
fully exonerating the petitioner. Rather, it
was set aside because the punishment was
found to be disproportionate. It is for the
said reason that the matter was remitted to
the Disciplinary Authority to pass fresh
orders, in accordance with law. The
findings of the Inquiry Officer about the
petitioner's guilt were not disturbed, or the
acceptance of these by the Inquiry Officer.
What troubled the Court's conscience was
the disproportionate punishment meted out.
There is also no cavil that out of the two
charges laid against the petitioner, he
admitted one and contested the other. Thus,
the petitioner cannot be said to be a
government servant, who, by any means,
stands fully exonerated by a judicial
determination or otherwise. The petitioner's
case, therefore, would clearly be governed
by the provisions where entitlement to full
back-wages and continuity of service is not
there. In this connection, there is a very
illuminating guidance by the Supreme
Court to be found, albeit, in the context of
an industrial dispute, in J.K. Synthetics
Ltd. v. K.P. Agrawal and Another7
which was a case of the dismissal of a
workman on three charges. The Labour
Court had ultimately held one charge not
proved, the second proved and as regards
the third, the workman held entitled to the
benefit of doubt. The Labour Court had
initially
awarded
substitution
of
the
punishment of termination of service with
stoppage of increment for two years, but,
later on, on an application for the
correction of award under Section 66 of the
Uttar Pradesh Industrial Disputes Act, 1947
directed that apart from stoppage of two
annual increments, the employer would pay
full wages for the period of ouster from
service. In the background of those facts, in
J.K.
Synthetics
Ltd.
(supra)
their
Lordships held :

19. ..... Where the power under
Article 226 or Section 11-A of the
Industrial Disputes Act (or any other
similar provision) is exercised by any court
to interfere with the punishment on the
ground that it is excessive and the
employee deserves a lesser punishment,
and a consequential direction is issued for
reinstatement, the court is not holding that
the employer was in the wrong or that the
dismissal was illegal and invalid. The court
is merely exercising its discretion to award
a lesser punishment. Till such power is
exercised, the dismissal is valid and in
force. When the punishment is reduced by
a court as being excessive, there can be
either a direction for reinstatement or a
direction
for
a
nominal
lump
sum
compensation. And if reinstatement is
directed,
it
can
be
effective
either
prospectively from the date of such
substitution of punishment (in which event,
there is no continuity of service) or
retrospectively, from the date on which the
penalty of termination was imposed (in
4 All. Sanny Kumar Vs. State of U.P. & Ors.
181
which event, there can be a consequential
direction relating to continuity of service).
What requires to be noted in cases where
finding of misconduct is affirmed and only the
punishment is interfered with (as contrasted
from cases where termination is held to be
illegal or void) is that there is no automatic
reinstatement; and if reinstatement is directed,
it is not automatically with retrospective effect
from the date of termination. Therefore, where
reinstatement is a consequence of imposition of
a lesser punishment, neither back wages nor
continuity of service nor consequential
benefits, follow as a natural or necessary
consequence of such reinstatement. In cases
where the misconduct is held to be proved, and
reinstatement is itself a consequential benefit
arising from imposition of a lesser punishment,
award of back wages for the period when the
employee has not worked, may amount to
rewarding the delinquent employee and
punishing the employer for taking action for
the misconduct committed by the employee.
That should be avoided. Similarly, in such
cases, even where continuity of service is
directed, it should only be for purposes of
pensionary/retirement benefits, and not for
other benefits like increments, promotions, etc.

20. But there are two exceptions.
The first is where the court sets aside the
termination as a consequence of employee
being exonerated or being found not guilty
of the misconduct. Second is where the
court reaches a conclusion that the inquiry
was held in respect of a frivolous issue or
petty misconduct, as a camouflage to get
rid of the employee or victimise him, and
the
disproportionately
excessive
punishment is a result of such scheme or
intention. In such cases, the principles
relating to back wages, etc. will be the
same as those applied in the cases of an
illegal termination.(emphasis by Court)

16.

The
decision
in
J.K.
Synthetics Ltd. might have been rendered
in a very different statutory context and
relating to a different jurisdiction, to which
a different jurisprudence applies, but the
fundamental principles about ordering
reinstatement of an employee and his rights
to back-wages and continuity of service are
the
same,
as
those
expressed
in
Fundamental Rule 54 and 54-A.

17. In view of facts that obtain here,
this Court does not find any good ground to
interfere.

18. In the result, this writ petition
fails and stands dismissed.

19. Costs easy.
----------
(2021)04ILR A181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 7114 of 2020

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

Counsel for the Petitioner:
Sri Bhanu Pratap Singh, Sri Rateesh Singh

Counsel for the Respondents:
Sri Vikram Bahadur Yadav, S.C.

A. Service law - Post in UP Police -
Recruitment - Non-disclosure of criminal
cases, including one of moral turpitude -
Effect - Act of deliberate non disclosure or
willful suppression of criminal cases by a