# Ram Kripal Srivastava v. U.P.P.S.T. Lucknow

- **Citation:** (2011) 3 ILRA 1060
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-23
- **Bench:** S.K. Singh, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kripal-srivastava-v-u-p-p-s-t-lucknow-42039
- **Pages:** 7

## Headnote

U.P. Fundamental Rule -54-B (3) and
(5)-Reinstatement with punishment of
denial of full salary during suspension
period-except
the
subsistence
allowance-authority concern bound to
give notice in writing prior to proposed
punishment-no notice opportunity givenwhich entails civil consequences-heldnot
sustainable.
3 All] Ram Kripal Srivastava V. U.P.P.S.T. Lucknow
1061
Held: Para 25

Here also, admittedly, the procedure
prescribed in Fundamental Rule 54-B has
not been followed. Denial of full salary
vide impugned order is without affording
any opportunity to the petitioner by way
of issuing a show cause notice. The
impugned order in so far as it denies full
salary during the period of suspension
without any notice to the petitioner is
thus illegal and liable to be set-aside.
Case law discussed:
1999 (3) SCC 679; JT 2005 (8) SC 425; JT
2006 (1) SC 444; AIR 2007 SC 199; 2008 (4)
SCC 1; JT 2008 (4) SC 577; JT 2007 (2) SC
620; AIR 2008 SC 553; Shant Deo Tripathi Vs.
State of U.P. and others (Writ A-1019 of 2002
decided on 16.9.2011); (1993) 4 SCC 727;
(1991 SCC (1) 588 =JT 1990 (4) 456); 2008
(8) ADJ 243=2008 (4) ESC 2679; Uma
Shankar Purwar Vs. The Principal Secretary,
Food and Civil Supplies, Government of U.P.,
Lucknow and others (Writ Petition No.9519 of
2007, decided on 14.9.2009) in para 7

## Text

1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
reference to 1978 Rules for this purpose
also is erroneous and is per incurium.

17. So far as Government Order
dated 28th July, 1987 is concerned,
suffice it to mention that no such
amendment as a matter of fact was made
under Fundamental Rule 56 since by
legislative
enactment
it
came
into
existence i.e. by U.P. Act No.24 of 1975
and therefore under proviso to Article 309
the same could not have been amended.
Moreover, this question has also been
considered and decided by Full Bench in
Surya Deo Mishra Vs. The State of U.P.
& Anr., 2006(5) AWC 5306 and the
court in para 21 said:

"learned
Additional
Advocate
General for the State respondent has
urged that the two cases of Shubh Nath
Dubey and Srikant Shukla (Supra) were
not correctly decided. He has urged that
the
age
of
superannuation
for
Government servants is provided under
Rule 56(3) of the Fundamental Rules
Chapter II part 2 to 4. The age of
superannuation of all the Government
servants of inferior category was 60
years. .... A perusal of the decisions in
Shubh Nath Dubey and Srikant Shukla
(Supra) shows that the provision relating
to higher pay scale and treating drivers
as 'technical employees' were neither
brought to the notice of the Court nor
were considered. .... In Our opinion, the
aforesaid two decisions have not been
correctly decided and as such they are
hereby over-ruled."

18. In view of the aforesaid, since
very foundation of the writ petition is
nonest hence no relief can be granted to
the petitioner.

19. At this stage, learned counsel for
the petitioner submitted that the petitioner
ought to have been provided all retiral
benefits treating to have retired on
attaining the age of 58 years. but the said
benefits have not been paid so far.

20. Suffice it to mention that in case
retiral benefits have not been paid to the
petitioner treating to have retired on
attaining the age of 58 years, the same
shall be paid to him expeditiously and in
any case within three months from the
date of production of a certified copy of
this order.

21. With the aforesaid direction the
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2011

BEFORE
THE HON'BLE S.K. SINGH, J.
THE HON'BLE SUDHIR AGARWAL,J.

Service Bench No. - 1565 of 1998

Ram Kripal Srivastava
 ...Petitioner
Versus
U.P.P.S.T. Lucknow
 ...Respondent

Counsel for the Petitioner:
Sri P.N. Singh

Counsel for the Respondents:
C.S.C.

U.P. Fundamental Rule -54-B (3) and
(5)-Reinstatement with punishment of
denial of full salary during suspension
period-except
the
subsistence
allowance-authority concern bound to
give notice in writing prior to proposed
punishment-no notice opportunity givenwhich entails civil consequences-heldnot
sustainable.
3 All] Ram Kripal Srivastava V. U.P.P.S.T. Lucknow
1061
Held: Para 25

Here also, admittedly, the procedure
prescribed in Fundamental Rule 54-B has
not been followed. Denial of full salary
vide impugned order is without affording
any opportunity to the petitioner by way
of issuing a show cause notice. The
impugned order in so far as it denies full
salary during the period of suspension
without any notice to the petitioner is
thus illegal and liable to be set-aside.
Case law discussed:
1999 (3) SCC 679; JT 2005 (8) SC 425; JT
2006 (1) SC 444; AIR 2007 SC 199; 2008 (4)
SCC 1; JT 2008 (4) SC 577; JT 2007 (2) SC
620; AIR 2008 SC 553; Shant Deo Tripathi Vs.
State of U.P. and others (Writ A-1019 of 2002
decided on 16.9.2011); (1993) 4 SCC 727;
(1991 SCC (1) 588 =JT 1990 (4) 456); 2008
(8) ADJ 243=2008 (4) ESC 2679; Uma
Shankar Purwar Vs. The Principal Secretary,
Food and Civil Supplies, Government of U.P.,
Lucknow and others (Writ Petition No.9519 of
2007, decided on 14.9.2009) in para 7

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

1. This writ petition is directed
against the judgment dated 18.5.1998 of
U.P. Public Services Tribunal (hereinafter
referred to as the Tribunal) in Claim
Petition NO.477/1/90 whereby it has
dismissed the claim petition of petitioner
with cost of Rs. 500.

2. The aforesaid claim petition was
filed challenging the order of punishment
i.e. dismissal dated 22.5.1979 whereby
the petitioner was dismissed from the post
of Collection Amin as a result of
departmental inquiry in which certain
charges were found proved against him.

3. The facts in brief giving rise to
the present dispute are as under:

4. The petitioner was appointed as
Collection Amin in 1952. He was placed
under suspension on 26.7.1978 and a
charge sheet was issued on 26.12.1978.
The petitioner submitted reply dated
5.3.1979
denying
all
the
charges.
Thereafter oral inquiry was held. Inquiry
Officer submitted report on 6.5.1979
whereafter order of punishment was
passed
on
22.5.1979
by
District
Magistrate, Shahjahanpur, dismissing the
petitioner from service and confining his
salary to the extent of subsistence
allowance paid during the period of
suspension.

5. Learned counsel for the petitioner
submitted that a criminal investigation
was initiated against him pursuant to an
FIR lodged on 3.12.1978 under Section
409 IPC and during pendency of criminal
Investigation/Trial, for the same charge,
no departmental inquiry could have been
conducted, hence the entire proceedings is
vitiated in law. He further submitted that
relevant documents were not supplied to
him and copy of inquiry report was also
not supplied before passing order of
punishment.
Hence,
disciplinary
proceedings had been conducted in utter
violation of principles of natural justice.
Lastly it was contended that in criminal
proceedings he was already acquitted and,
therefore, in the departmental inquiry
based on same transaction, no punishment
could have been imposed. The learned
Tribunal has erred in law in dismissing
the claim petition and sustaining the order
of dismissal.

6. We have heard learned counsel
for the parties and perused the record.

7. A criminal case against an
employee does not bar the employer from
initiating disciplinary proceedings in
respect to charge of misconduct. In
1062 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
criminal matter it is the allegation of
committing an offence under a statute
while in the disciplinary proceedings it is
the conduct of Government employee
which is under investigation. The nature
of proceedings, procedure , level of
standard of proof etc. are different and
distinct in two kinds of proceedings.

8. It is now well settled that
departmental proceedings can proceed
simultaneously with criminal proceedings
and there is no bar as such therein as held
in Capt. M. Paul Anthony Vs. Bharat
Gold Mines Ltd. & Another 1999 (3)
SCC 679. It has been held that
departmental as well as criminal, both the
proceedings, can go on simultaneously as
there is no bar in their being conducted
simultaneously. The question whether
during pendency of criminal proceeding,
the departmental proceeding should be
stayed depends upon the facts and
circumstances of individual case.

9. In Ajit Kumar Nag Vs. General
Manager I.O.C. JT 2005 (8) SC 425, the
Apex Court said that the procedure
followed in both the cases as well as
subject matter of departmental enquiry
and criminal proceeding has different
scope and it cannot not be said, when a
criminal proceeding is going on in a
particular criminal charge, in that regard,
the departmental proceeding cannot be
allowed to proceed.

10. Same view has been reiterated
subsequently, in Chairman/ Managing
Director TNCS Corporation Ltd. &
others Vs. K. Meerabai JT 2006 (1) SC
444, Suresh Pathrella Vs. Oriental
Bank of Commerce AIR 2007 SC 199
and Union of India & others Vs.
Naman Singh Shekhawat 2008 (4) SCC
1.

11. Referring to Capt. M. Paul
Anthony (supra), the Apex Court in
Managing Director, State Bank of
Hyderabad & another Vs. P. Kata Rao
JT 2008 (4) SC 577 observed that legal
principle enunciated to the effect that on
the same set of facts, the delinquent shall
not be proceeded in a departmental
proceedings and in a criminal case
simultaneously,
has,
however,
been
deviated from. It it also said that the dicta
laid down by the Apex Court in Capt. M.
Paul
Anthony
(supra),
though
has
remained unshaken but its applicability
depend on the facts and situations
obtained in each case.

12.

Similarly,
in
Noida
Entrepreneurs Assn. Vs. NOIDS &
others JT 2007 (2) SC 620, the Court has
summarised
following
conclusions
deducible
from
various
judgments,
namely:

"(i) Departmental proceedings and
proceedings in a criminal case can
proceed simultaneously as there is no bar
in their being conducted simultaneously,
though separately.

(ii) If the departmental proceedings
and the criminal case are based on
identical and similar set of facts and the
charge in the criminal case against the
delinquent employee is of a grave nature,
which involved complicated questions of
law and fact, it would be desirable to stay
the departmental proceedings till the
conclusion of the criminal case.

(iii) Whether the nature of a charge
in a criminal case is grave and whether
3 All] Ram Kripal Srivastava V. U.P.P.S.T. Lucknow
1063
complicated questions of fact and law are
involved in that case, will depend upon
the nature of offence, the nature of the
case launched against the employee on
the basis of evidence and material
collected against him during investigation
or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and
(iii) above cannot be considered in
isolation
to
stay
the
departmental
proceedings but due regard has to be
given to the fact that the departmental
proceedings cannot be unduly delayed.

(v) If the criminal case does not
proceed or its disposal is being unduly
delayed, the departmental proceedings,
even if they were stayed on account of the
pendency of the criminal case, can be
resumed and proceeded with so as to
conclude them at an early date, so that if
the employee is found not guilty his
honour may be vindicated and in case he
is found guilty, the administration may get
rid of him at the earliest."

13. A similar view has also been
taken in Indian Overseas Bank Vs. P.
Ganesan & others AIR 2008 SC 553.
Following the above exposition of law
laid down by Apex Court, this Court in
Priti Chauhan Vs. State of U.P. and
others 2008(9) ADJ 388 and Shant Deo
Tripathi Vs. State of U.P. and others
(Writ A-1019 of 2002 decided on
16.9.2011) has taken the same view.

14. There appears to be four charges
levelled against the petitioner. Charge
no.1 relates to realisation of certain
amount of arrears from an individual but
not deposited in Government revenue.
The said misappropriation of money
amounts
to
embezzlement
but
simultaneously it also constitute a conduct
unbecoming of a Government Servant and
for the purpose of departmental inquiry it
is the latter aspect which has to be seen.
Similarly, charge no.2 relates to removal
of certain documents from official record
and temporary embezzlement of public
revenue. Charge no.3 relates to tampering
and forgery and charge no.4 relates to
violation of Para 133 of Collection
Manual in respect to maintenance of
record so that collection of revenue and
its deposit in the treasury could have been
verified and checked. It thus cannot be
said that the aforesaid charges would have
barred departmental inquiry in its entirety
after acquittal of petitioner in criminal
proceedings or that no departmental
inquiry could have been initiated or
proceeded
during
the
pendency
of
criminal proceedings.

15. In the light of above authorities
and looking to the facts of the case, the
argument of learned counsel for the
petitioner
that
during
pendency
of
criminal case, for the same charge, no
departmental inquiry could have been
conducted, shatters down and is rejected.

16. Since the punishment has been
imposed
pursuant
to
departmental
enquiry, mere acquittal in criminal case
would have no consequence.

17. The next submission is regarding
non
supply
of
documents.
Despite
repeated query, learned counsel for the
petitioner could not demonstrate as to
which documents were not supplied to the
petitioner and in what manner the same
has prejudiced him.

18. The third submission that a copy
of inquiry report was not supplied and the
1064 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
proceeding is vitiated on that account has
also no legs to stand. The petitioner has
relied upon the Apex Court's decision in
Managing
Director
EICL
Vs.
B.
Karunakar (1993) 4 SCC 727. However,
we find that in this very judgment the
Apex Court has held that the orders of
punishment which were passed before
20.11.1990 i.e., the date on which Union
of India and others Vs. Ramzan Khan
(1991 SCC (1) 588 =JT 1990 (4) 456)
was decided, shall not be vitiated for nonsupply of inquiry report and this law shall
be operative in respect to orders of
punishment passed on or after 20.11.1990.
In the instant case, impugned order of
punishment having been passed on
22.5.1979, mere non supply of inquiry
report will not vitiate the departmental
proceedings.

19. Lastly, it is contended that denial
of full salary during suspension is not one
of the punishment provided in the Civil
Services
(Classification,Control
and
Appeal) Rules, 1930 as applicable in U.P.
(hereinafter referred to as CCA Rules)
which were the Rules applicable at the
relevant time when the disciplinary
proceedings were conducted against the
petitioner and as such, full salary could
have been denied only in accordance with
the procedure prescribed in Fundamental
Rule 54-B after following the procedure
laid down therein. No show cause notice
under Fundamental Rule 54-B was issued
and the procedure laid down therein was
not followed. Hence, it is contended that
the order of punishment insofar as it
denies full salary during the period of
suspension
by
forfeiting
the
same
imposing it as a punishment on the
petitioner is wholly illegal and without
jurisdiction.

20. This submission in our view has
substance and deserves sustenance.

21.

Fundamental
Rule
54-B
contemplates
a
show
cause
notice
separately where disciplinary authority is
of the view that the delinquent employee
should not be paid full salary for the
period he was under suspension. The
Fundamental Rule 54-B, relevant extract,
reads as under:-

"54-B. (1) When a Government
servant who has been suspended is
reinstated or would have been so
reinstated but for his retirement on
superannuation while under suspension,
the
authority
competent
to
order
reinstatement shall consider and make a
specific order-

(a) regarding the pay and allowance
to be paid to the Government servant or
the period of suspension ending with
reinstatement
or
the
date
of
his
reinstatement on superannuation as the
case may be; and

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where the authority competent to
order reinstatement is of the opinion that
the suspension was wholly unjustified, the
Government servant shall, subject to the
provisions of sub-rule(8), to be paid the
full pay and allowances to which he
would have been entitled, had he not been
suspended:

. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .
3 All] Ram Kripal Srivastava V. U.P.P.S.T. Lucknow
1065

(4) In a case falling under sub-rule
(3) the period of suspension shall be
treated as a period spent on duty for all
purposes.

(5) In cases other than those falling
under
sub-rules
(2)
and
(3),
the
Government servant shall subject to the
provisions of sub-rules(8) and (9), be paid
such amount (not being the whole) of the
pay and allowances to which he would
have been entitled had he not been
suspended, 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 may be specified in the
notice.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22. A perusal of Sub-rules (3) and
(5) of Fundamental Rule 54-B shows that
the competent authority shall take a
decision about the amount to be paid to
the Government Servant during the period
of
suspension
(not
less
than
the
subsistence allowance already received by
him) after giving notice to him with
respect to quantum proposed and after
considering the representation, if any,
made by him. The scope of the aforesaid
decision is entirely different. The question
as to whether full salary should be paid to
the Government Servant or not, is not a
kind of punishment provided under CCA
Rules, 1930 as applicable in Uttar Pradesh
but it is other than the punishment
enumerated therein. However, it cannot
be
doubted
that
when
disciplinary
authority thinks that entire salary should
not be paid to Government Servant for the
period of suspension, such an order
entails into civil consequences to the
delinquent
employee.
Therefore
consistent with the principles of natural
justice, Fundamental Rule 54-B, Sub
Rules (3) and (5), contemplate issuance of
a show cause notice and thereafter an
order needs be passed by the competent
authority after considering representation,
if any, of the delinquent employee. It is
thus evident that along with order of
punishment no decision can be taken by a
competent authority to deny full salary to
delinquent employee unless procedure
prescribed under Fundamental Rule 54-B
is observed.

23. It is well settled, when law
requires something to be done in a
particular way, it has to be done in that
manner alone and not otherwise. This
Court considered Fundamental Rule 54-B
in Akhilesh Kumar Awasthi Vs. State
of U.P. and others, 2008(8) ADJ
243=2008(4) ESC 2679 and said as
under:

"A bare perusal of the aforesaid
provision makes it clear that before
passing
an
order
depriving
the
Government servant of full salary for the
period of suspension or when he was out
of employment, a show cause notice has
to be issued to the concerned Government
servant and only thereafter, the competent
authority may pass appropriate order
considering various aspects.

Admittedly, no such procedure has
been followed, therefore, the impugned
order, to the extent the petitioner has been
denied arrears of salary for the period of
suspension as well as during the period
he was out of employment pursuant to the
1066 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
dismissal order, which was modified by
the revisional order, is set aside. The writ
petition is, accordingly, allowed partly. . .
. . . . ."

24. Following Akhilesh Kumar
Awasthi (Supra) this Court in Uma
Shankar Purwar Vs. The Principal
Secretary, Food and Civil Supplies,
Government of U.P., Lucknow and
others (Writ Petition No.9519 of 2007,
decided on 14.9.2009) in para 7 held as
under:

"7. Admittedly, no such procedure
has been followed by the respondents in
the case in hand and on the contrary
treating as if withholding a salary for the
period of suspension can also be imposed
as a punishment under the rules though
the same is not one of the punishment
prescribed under the rules. As a result of
departmental
inquiry,
the
authority
concerned is empowered to deny full
salary during the period of suspension as
a consequence of reinstatement but final
order can be passed after deciding
whether the period of suspension was
wholly unjustified or not and then the
quantum of amount."

25. Here also, admittedly, the
procedure prescribed in Fundamental
Rule 54-B has not been followed. Denial
of full salary vide impugned order is
without affording any opportunity to the
petitioner by way of issuing a show cause
notice. The impugned order in so far as it
denies full salary during the period of
suspension without any notice to the
petitioner is thus illegal and liable to be
set-aside.

26. In the result, the writ petition
partly succeeds. The impugned order
dated 18.5.1998 imposing punishment is
set aside only to the extent it denies full
salary to the petitioner for the period of
suspension. The order of the Tribunal
shall stand modified to this extent. The
matter is remanded to the respondent
competent authority to take a fresh
decision on this aspect of the matter in
accordance with the procedure prescribed
under Fundamental Rule 54-B and the
observations made hereinabove.

27. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.09.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Writ Petition No. 3314 (SS) of 2009

Diploma Engineers Sangh PWD and
others

 ...Petitioners
Versus
State of U.P. and others ...Opp. Parties

Counsel for the Petitioner:
Sri Sameer Kalia

Counsel for the Respondent:
C.S.C.
Sri Rajnish Kumar
Sri Sidharth Dhaon

P.W.D.
U.P.
Subordinate
Engineer
Services Rules, 1951-Rule-19, 20, 23
readdress U.P. Services of Engineers
(Building of Road Branch) Class II Rules
1936-rule-12-Promotion on Post of Asst.
Engineers-Anjani Kumar Mishra caseApex Court determined promotion Quota
41-66% on occurred vacancy-petitioners
having 20 years long period of service as
Juniors
Engineers-obtained
Decree
pursuant
to
judgment-qualifying
examination held in August 2007-those