# Shivendra Pati Tripathi v. State Information Commission, UP Indira Bhawan, Lucknow & Ors

- **Citation:** (2023) 3 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-23
- **Case number:** Writ A No. 7338 of 2012
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivendra-pati-tripathi-v-state-information-commission-up-indira-bhawan-lucknow-49939
- **Pages:** 8

## Headnote

A. Service Law - Termination - Article 311
of the Constitution of India makes no
distinction between the permanent and
temporary posts. In case a show cause
notice has been issued on the allegation
regarding the misconduct or the charges
such as charges of corruption or taking
bribe in listing cases, then consequential
order
of
termination
howsoever
innocuously worded may be, is not a
termination
simplicitor
but
it
is
a
termination by way of punishment and in
view of the settled proposition of law, it is
always open for the court to lift veil in
such cases to find out the real basis of the
order so passed.

A perusal of the impugned order (dated
21.9.2012) vis-a-vis the letter/notice (dated
27.6.2012 sent by respondent No.3 to the
petitioner), shows that the charge of taking
bribe by the applicant has been levelled, which
is a misconduct. Even though the appointment
of the petitioner was temporary in nature, the
very language of the notice, is such which
entitles the petitioner to protection of
Article 311(2) of the Constitution of India
as a permanent employee in spite of the fact
that temporary government servants have no
right to hold the post and their services are
liable to be terminated any time by giving them
a month's notice without assigning any reason.
The termination order, though has been passed
innocuously, however, if it is read along with the
show cause notice, coupled with the pleadings
made in the counter affidavit leaves no doubt
that it has been passed as a punishment and is
stigmatic. (Para 8)

The petitioner was entitled for the protection
of Article 311(2) of the Constitution of India
and since the order of termination is
punitive in nature, as such regular
enquiry should have been conducted by
respondents in accordance with relevant
rules after affording opportunity of
hearing to the petitioner, as provided
u/Art. 311(2) of the Constitution of
India, either in terms of the contract of
service or under the relevant statutory rules.
(Para 8)

B. Denial of back wages to an employee,
who has suffered due to an illegal act of
the employer would amount to indirectly
punishing the concerned employee and
rewarding the employer by relieving him
of the obligation to pay back wages
including the emoluments. The very idea
of restoring an employee to the position
which he held before dismissal or removal or
termination of service implies that the
employee will be put in the same position in
which he would have been but for the illegal
action
taken
by
the
employer.
The
reinSt.ment of such an employee, which is
preceded by a finding of the competent
judicial/quasi judicial body or Court that the
action taken by the employer is ultra vires the
relevant statutory provisions or the principles
of natural justice, entitles the employee to
claim full back wages. If the employer wants
to deny back wages to the employee or
contest his entitlement to get consequential
benefits, then it is for him/her to specifically
plead and prove that during the intervening
period the employee was gainfully employed
and was getting the same emoluments. (Para
11)

The impugned order of termination is liable to be
and is hereby set aside. The petitioner shall be
entitled to all consequential benefits, including
50% back wages subject to his giving an
undertaking that he was not employed in any
other department and not getting salary equal to
the salary he was drawing prior to termination of
his services or more than it. (Para 12, 13)

Writ petition allowed. (E-4)

Precedent followed:

## Text

3 All. Shivendra Pati Tripathi Vs. State Information Commission, UP Indira Bhawan, Lucknow
 & Ors.
153
vitiated. He has further submitted that
though the Division Bench has directed to
conclude the enquiry within four months
but the same was completed within four
years beyond stipulated time by the Court.
He has further submitted that disciplinary
proceedings as well as Enquiry Officer
have committed grave error by not
considering the fact that no date, time and
place was fixed and earlier stand of the
petitioner which was already adjudicated
by Single Judge was again reiterated by
them. He has submitted that respondents
have lost their right to continue their
enquiry, that too after remand. He has
further submitted that the Petitioner has
retired from service in the year 2014. It
would not be feasible to remand the matter
at this moment.

9.
Shri
Rajesh
Shukla,
learned
Standing Counsel for the respondents has
submitted
that
the
Petitioner
had
committed misconduct and his reply was
considered by the Enquiry Officer and
thereafter enquiry report was submitted on
the basis of which final order has been
passed. He has submitted that there is no
illegality and infirmity in the proceedings
and order impugned is justified.

10. Heard learned counsel for the
parties and perused the record.

11. It is admitted on record that
earlier, the petition was allowed. The Writ
Petition no. 4274 (S/S) of 2002 was
disposed of with a direction to conduct
fresh enquiry. The court had already
observed that the principles of natural
justice was not followed by the Enquiry
Officer while conducting the enquiry.
Once the matter was remanded on a
specific point, there was no occasion to
commit the same error by the Enquiry
Officer and in the present case, second
time, again it is admitted on record that the
Enquiry Officer did not fixed any date,
time and place and completed the enquiry
only on the basis of reply submitted by the
petitioner and stand has been taken by the
petitioner in para 7 of the writ petition and
same has been replied in para 8 of the
counter affidavit. Nowhere, State has
mentioned that any date, time or place for
cross examination was fixed. Thus, it goes
to show that enquiry was vitiated. In place
of four months, they completed enquiry in
four years that too without following the
procedure. It would not be fit to remand
the matter at this stage. It is also borne in
mind that the Petitioner is retired from
service in the year 2014.

12. In view of the above discussions
made above, the writ petition deserves to
be allowed.

13. The writ petition is allowed. The
impugned order dated 06.03.2013 passed
by
respondent
no.
2
is
quashed.
Consequences to follow.
----------
(2023) 3 ILRA 153
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 7338 of 2012

Shivendra Pati Tripathi ...Petitioner
Versus
State Information Commission, UP Indira
Bhawan, Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Nandita Bharti, Abhishek Mishra, Abhishek
Misra
154 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Shikhar Anand

A. Service Law - Termination - Article 311
of the Constitution of India makes no
distinction between the permanent and
temporary posts. In case a show cause
notice has been issued on the allegation
regarding the misconduct or the charges
such as charges of corruption or taking
bribe in listing cases, then consequential
order
of
termination
howsoever
innocuously worded may be, is not a
termination
simplicitor
but
it
is
a
termination by way of punishment and in
view of the settled proposition of law, it is
always open for the court to lift veil in
such cases to find out the real basis of the
order so passed.

A perusal of the impugned order (dated
21.9.2012) vis-a-vis the letter/notice (dated
27.6.2012 sent by respondent No.3 to the
petitioner), shows that the charge of taking
bribe by the applicant has been levelled, which
is a misconduct. Even though the appointment
of the petitioner was temporary in nature, the
very language of the notice, is such which
entitles the petitioner to protection of
Article 311(2) of the Constitution of India
as a permanent employee in spite of the fact
that temporary government servants have no
right to hold the post and their services are
liable to be terminated any time by giving them
a month's notice without assigning any reason.
The termination order, though has been passed
innocuously, however, if it is read along with the
show cause notice, coupled with the pleadings
made in the counter affidavit leaves no doubt
that it has been passed as a punishment and is
stigmatic. (Para 8)

The petitioner was entitled for the protection
of Article 311(2) of the Constitution of India
and since the order of termination is
punitive in nature, as such regular
enquiry should have been conducted by
respondents in accordance with relevant
rules after affording opportunity of
hearing to the petitioner, as provided
u/Art. 311(2) of the Constitution of
India, either in terms of the contract of
service or under the relevant statutory rules.
(Para 8)

B. Denial of back wages to an employee,
who has suffered due to an illegal act of
the employer would amount to indirectly
punishing the concerned employee and
rewarding the employer by relieving him
of the obligation to pay back wages
including the emoluments. The very idea
of restoring an employee to the position
which he held before dismissal or removal or
termination of service implies that the
employee will be put in the same position in
which he would have been but for the illegal
action
taken
by
the
employer.
The
reinSt.ment of such an employee, which is
preceded by a finding of the competent
judicial/quasi judicial body or Court that the
action taken by the employer is ultra vires the
relevant statutory provisions or the principles
of natural justice, entitles the employee to
claim full back wages. If the employer wants
to deny back wages to the employee or
contest his entitlement to get consequential
benefits, then it is for him/her to specifically
plead and prove that during the intervening
period the employee was gainfully employed
and was getting the same emoluments. (Para
11)

The impugned order of termination is liable to be
and is hereby set aside. The petitioner shall be
entitled to all consequential benefits, including
50% back wages subject to his giving an
undertaking that he was not employed in any
other department and not getting salary equal to
the salary he was drawing prior to termination of
his services or more than it. (Para 12, 13)

Writ petition allowed. (E-4)

Precedent followed:

1. High Court of Punjab & Haryana through R.G.
Vs Ishwar Chand Jain & anr. (Para 4)

2. Chandra Prakash Shahi Vs St. of U.P. & ors.,
(2000) 5 SCC 152 (Para 4)

3. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) & ors., (2013)
10 SCC 324 (Para 4, 11)
3 All. Shivendra Pati Tripathi Vs. State Information Commission, UP Indira Bhawan, Lucknow
 & Ors.
155
4. Gowramma C (Dead) by LRS Vs Manager
(Personnel) Hindustan Aeronautical Ltd. & anr.,
Civil Appeal Nos. 1575-1576 of 2022 (Para 4)

5. Parshotam Lal Dhingra Vs U.O.I., AIR 1958
SC 36 (Para 9)

Precedent distinguished:

1. St. of U.P. & anr. Vs Kaushal Kishore Shukla,
(1991) 1 SCC 691 (Para 5, 9)

2. St. of U.P. & ors. Vs Rekha Rani, (2011) 11
SCC 441 (Para 5, 10)

Present
petition
challenges
the
termination
order
dated
21.9.2012,
passed
by
Chief
Information
Commissioner,
U.P.
St.
Information
Commission, Indira Bhawan, Lucknow
(respondent No.2).

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Dr. L.P. Mishra, learned
counsel for the petitioner, assisted by Mr.
A.K. Mishra and Mr. Shikhar Anand,
learned counsel for respondents 2 and 3.

2. Under challenge in this writ petition
is the termination order dated 21.9.2012,
passed
by
Chief
Information
Commissioner, U.P. State Information
Commission, Indira Bhawan, Lucknow
(respondent No.2). Further, a writ of
mandamus has been sought commanding
the respondents not to give effect to the
impugned termination order, Annexure
No.1.

3. Brief facts of the case are that the
petitioner was appointed on the post of
Peshkar vide office order dated 1.2.2007 by
respondent No.2 along with eighteen other
employees
on
various
posts
in
the
department
of
the
respondent.
The
appointment
of
the
petitioner
was
temporary in nature. On 27.6.2012, the
Deputy Secretary, respondent No.3 sent an
official letter No./303 Nazarat Camp
Upsachiv
wherein
he
apprised
the
petitioner that on a complaint made by an
anonymous person, the respondent No.2
had directed the respondent No.3 to
conduct an enquiry against the petitioner.

Mainly two allegations were
levelled against the petitioner in the letter
dated 27.6.2012 (Annexure No.2). The first
allegation is that the amendment in the
cause list has been made after accepting
money from the litigants in violation of the
rules and secondly, he purchased a house
worth Rs.15 lacs. The petitioner was
required to submit his reply within two
days. The petitioner submitted a detailed
reply on 12.6.2012. The petitioner was
again required to provide copy of the cause
list w.e.f. 1.3.2012 to 31.3.2012 vide letter
dated 4.7.2012 by the respondent No.3 for
the purpose of enquiry. In compliance of
the said letter, the petitioner vide letter
dated 5.7.2012 submitted copy of the entire
cause list and also tendered apology for his
omission in listing of few cases in the cause
list due to inadvertence. Consequently, an
enquiry was conducted by the respondent
No.3, allegedly at the back of the petitioner
without affording proper opportunity of
hearing to him. The enquiry report was
submitted
by
the
respondent
No.3,
however, a copy thereof was not supplied
to the petitioner.

4. The petitioner's counsel submits that
the impugned order dated 21.9.2012
whereby services of the petitioner have
been terminated apparently seems to be
innocuously worded. A perusal of the letter
dated 27.6.2012 sent by respondent No.3 to
the petitioner and its language clearly
demonstrates that the letter/order is, in fact,
156 INDIAN LAW REPORTS ALLAHABAD SERIES
by way of punishment which is punitive in
nature and stigmatic. It is submitted that
Article 311 of the Constitution of India
makes
no
distinction
between
the
permanent and temporary posts. In case a
show cause notice has been issued on the
allegation regarding the mis- conduct or the
charges such as charges of corruption or
taking
bribe
in
listing
cases,
then
consequential
order
of
termination
howsoever innocuously worded may be, is
not a termination simplicitor but it is a
termination by way of punishment and in
view of the settled proposition of law, it is
always open for the court to lift veil in such
cases to find out the real basis of the order
so passed. In support of this contention,
learned counsel has relied on High Court
of Punjab & Haryana through R.G.
versus Ishwar Chand Jain and another
(relevant para 24). He has further relied on
judgment of Supreme Court in Chandra
Prakash Shahi versus State of U.P. and
others (2000)5 SCC 152 (relevant para 12).

It is further submitted that not
only Annexure No.2 but the counter
affidavit filed by respondents, particularly
para 9 thereof leaves no doubt that the
impugned order has been passed by way of
punishment, therefore, in view of the
settled law as held in the aforesaid cases,
the order is not sustainable and is liable to
be quashed.

Learned counsel for the petitioner
has further submitted that the petitioner
who has been terminated from service for
no fault on his part and the order being
illegal is entitled to back wages from the
date of his termination. In this context,
learned counsel has relied on Deepali
Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) and
others (2013)10 SCC 324 (relevant para
20) and the judgment of Supreme Court
dated 23.2.2022 passed in Civil appeal Nos.
1575-1576 of 2022 Gowramma C (Dead)
by
LRS
vs.
Manager
(Personnel)
Hindustan Aeronautical Ltd and another
(paras 11 and 12).

5. Per contra, learned counsel for the
respondents has vehemently opposed the
petition and it is submitted that it is always
open for the employer to assess/ascertain
the suitability of an employee who is
temporarily appointed as to whether to
continue him in service or not, and for that
purpose, an enquiry was conducted. It is
submitted that the order impugned is
simplicitor and not punitive. It support of
his contention, learned counsel has relied
on State of U.P. and another versus
Kaushal Kishore Shukla (1991)1 SCC
691 (relevant para 7) and State of U.P. and
others versus Rekha Rani (2011)11 SCC
441.

6. I have considered the submission
advanced by learned counsel for the parties
and perused the record.

7.
Before
scrutinising
the
issue
involved in the petition, it would be
appropriate to reproduce the allegations as
levelled in the letter dated 27.6.2012 issued
by Deputy Secretary, U.P. State Information
Commission. The letter is quoted below :

"श्री शिवेन्द्र शिपाठी

पेिकार (कोर्ट संख्या एस-11)

मा० मुख्य सूचना आयुक्त पि सं 0 43/
सी०आईसी/पी०ए०/2012. शिनांक 26 जून 2012 द्वारा
आपके में एक शिकायती पि मा० मुख्य सूचना आयुक्त को
उपलब्ध कराया गया है, शक जााँच करने हेतु मुझे आिेशित
शकया गया है।
3 All. Shivendra Pati Tripathi Vs. State Information Commission, UP Indira Bhawan, Lucknow
 & Ors.
157

शिकायती पि में यह शिकायत की गई है शक आप के
द्वारा कालशलस्र् में पैसे लेकर संिोधन शकया गया है। शिनांक
16,04,12 से 30.04.12 तक की काजशलस्र् जो शक
कम्प्यूर्र के अनुसार होनी चाशहए थी उसके शहसाब से न होकर
आपके द्वारा अपने मन माशिक तैयार कर िेंस लगाये गये ।
कोर्ट संख्या एस 11 में
शिनांक16,17,18,19,20,23,25, 26, 27, 30
अप्रैल 2012 को उम्प्यूर्र के अनुसार कमिः
101.8397.165,167119,46,101,161,351,
वाि लगाये गये थे जब शक आप के द्वारा उक्त शतशथयों में
कमि 88,57,63.135.95.87,38,169,144,

गा० मुख्य सूचना आयुक्त को शिकायत कताट ने यह भी
अवगत कराया है शक आपने एक मकान 15 लाख रूपये का
कय शकया है उपरोक्त के सम्पबन्द्ध में भी अधोहस्ताक्षरी वस्तु
शस्थशत से शलशखत रूप में अपने स्पष्टीकरण के साथ अवगत
कराये ।

उपरोक्त शबन्द्िुओं पर सुस्पष्ट स्पष्टीकरण आख्या िो शिनों
के अन्द्िर अधोहस्ताक्षरी को उपलब्ध कराये।"

8. A perusal of the letter, above
extracted reveals that the allegation/charge
was made against the petitioner that he has
taken bribe and has manipulated cause list
and listed the cases according to his own
whims. A further allegation was made that
he has purchased a house worth Rs.15 lacs.
The letter/notice dated 27.6.2012 reveals
that it is undoubtedly a stigmatic charge
relating to the mis-conduct of the petitioner
and therefore, the termination order has
been passed as a measure of punishment.
Law in this regard is well settled as held in
the aforesaid judgments of Supreme Court.
It has been clearly held that veil can be
lifted by the court to find out whether the
order is based on any misconduct of the
employee concerned or the order has been
made bona fide and not with any oblique or
extraneous purposes.

A perusal of the impugned order
vis-a-vis the letter, Annexure No.2 shows
that the charge of taking bribe by the
applicant has been levelled, which is a mis-
conduct. The impugned order, though is
very cleverly worded but nevertheless, it is
stigmatic and punitive in nature. Since the
very language of the notice, Annexure No.2
is such which entitles the petitioner to
protection
of Article
311(2)
of
the
Constitution of India as a permanent
employee in spite of the fact that temporary
government servants have no right to hold
the post and their services are liable to be
terminated any time by giving them a
month's notice without assigning any
reason. The termination order, though has
been passed innocuously, however, if it is
read along with the show cause notice,
contained in Annexure-2 to the petition,
coupled with the pleadings made in the
counter affidavit leaves no doubt that it has
been passed as a punishment and is
stigmatic. In view of the settled law, thus,
the petitioner was entitled for the protection
of Article 311(2) of the Constitution of
India and since the order of termination is
punitive in nature, as such regular enquiry
should have been conducted by respondents
in accordance with relevant rules after
affording opportunity of hearing to the
petitioner, as provided under Art. 311(2) of
the Constitution of India, either in terms of
the contract of service or under the relevant
statutory rules.

9. As regards the judgment in Kaushal
Kishore Shukla's case (supra) relied on by
learned counsel for the respondents, para 7
of the judgment itself shows that if the
authority decides to take a punitive action,
it may hold a formal enquiry by framing
charges and giving opportunity to the
government servant in accordance with the
provisions of Art. 311 of the Constitution.
It further says that a temporary government
servant is also entitled to the protection of
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Art. 311(2) of the Constitution in the same
manner
as
a
permanent
government
servant. It further provides that the form of
the order of termination is not conclusive
and it is open for the court to determine the
true nature of the order as held by Supreme
Court in Parshotam Lal Dhingra versus
Union of India AIR 1958 SC 36. Thus, the
judgment in the aforesaid case is of no help
to the respondents.

The
other
judgment
of
the
Supreme Court in State of U.P. and others
versus Rekha Rani (2011)11 SCC 441
relied on by respondents' counsel is also of
no help as the Supreme Court in that case
has held that the respondent's service was
not terminated as a measure of punishment.
The facts of the said case were quite
distinct to the present case. Hence, the
judgment in Rekha Rani's case (supra) is
distinguishable on the peculiar facts of the
present case.

11. As regards back wages, the
Supreme Court in the case of Deepali
Gundu Surwase (supra) held in para 22 as
follows :

"The very idea of restoring an
employee to the position which he held
before dismissal or removal or termination
of service implies that the employee will be
put in the same position in which he would
have been but for the illegal action taken
by the employer. The injury suffered by a
person, who is dismissed or removed or is
otherwise terminated from service cannot
easily be measured in terms of money. With
the passing of an order which has the effect
of
severing
the
employer
employee
relationship, the latter?s source of income
gets dried up. Not only the concerned
employee, but his entire family suffers
grave adversities. They are deprived of the
source of sustenance. The children are
deprived of nutritious food and all
opportunities
of
education
and
advancement in life. At times, the family
has to borrow from the relatives and other
acquaintance to avoid starvation. These
sufferings continue till the competent
adjudicatory forum decides on the legality
of the action taken by the employer. The
reinstatement of such an employee, which is
preceded by a finding of the competent
judicial/quasi judicial body or Court that
the action taken by the employer is ultra
vires the relevant statutory provisions or
the principles of natural justice, entitles the
employee to claim full back wages. If the
employer wants to deny back wages to the
employee or contest his entitlement to get
consequential benefits, then it is for
him/her to specifically plead and prove that
during the intervening period the employee
was gainfully employed and was getting the
same emoluments. Denial of back wages to
an employee, who has suffered due to an
illegal act of the employer would amount to
indirectly
punishing
the
concerned
employee and rewarding the employer by
relieving him of the obligation to pay back
wages including the emoluments."

Likewise, the Supreme Court in
the case of Gowramma C (supra) has
enhanced the back wages while modifying
the judgment of the High Court and
provided enhanced back wages to the
employee. Relevant paragraphs 11 and 12
are extracted below :

"11.In regard to interference in
such matters, i.e., cases relating to back
wages, we find similar approach adopted in
other decisions which no doubt the
respondent lays store by [see in this regard
2007 (5) SCC 742]. Though the decision
reported in Canara Bank v. Damodar
Govind Idoorkar 2009 (4) SCC 323 again
3 All. Shivendra Pati Tripathi Vs. State Information Commission, UP Indira Bhawan, Lucknow
 & Ors.
159
relied upon by the respondent did involve
the
service
of
the
employee
being
terminated as he had secured employment
in the reserved category using a false caste
certificate and the court modified direction
of the High Court which ordered full back
wages by substituting the order by reducing
it to 50%, we do not find that any principle
has been laid down which could be treated
as constituting it as a precedent. The
decision in Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya
(D.Ed.) 2013 (10) SCC 324 involved the
High Court setting aside the award of back
wages on the ground that the appellant had
not proved the factum of non-employment.
The court inter alia laid down as follows:

?(vi) In a number of cases, the
superior courts have interfered with the
award
of
the
primary
adjudicatory
authority on the premise that finalization of
litigation has taken long time ignoring that
in majority of cases the parties re not
responsible for such delays. Lack of
infrastructure
and
manpower
is
the
principal cause for delay in the disposal of
cases. For this the litigants cannot be
blamed or penalized. It would amount to
grave injustice to an employee or workman
if he is denied back wages simply because
there is long lapse of time between the
termination of his service and finality given
to the order of reinstatement. The courts
should bear in mind that in most of these
cases, the employer is in an advantageous
position vis--vis the employee or workman.
He can avail the services of best legal
brain for prolonging the agony of the
sufferer i.e. the employee or workman, who
can ill-afford the luxury of spending money
on a lawyer with certain amount of fame.
Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works (P) Ltd., (1979) 2
SCC 80

12. The most important question is
whether the employee is at fault in any
manner. If the employee is not at all at fault
and she was kept out of work by reasons of
the decision taken by the employer, then to
deny the fruits of her being vindicated at
the end of the day would be unfair to the
employee. In such circumstances, no doubt,
the
question
relating
to
alternative
employment that the employee may have
resorted to, becomes relevant. There is also
the aspect of discretion which is exercised
by the Court keeping in view the facts of
each case. As we have already noticed, this
is a case where apart from the charge of the
employee having produced false caste
certificate, there is no other charge.
Therefore, we would think that interests of
justice, in the facts of this, would be
subserved, if we enhance the back wages
from 50% to 75% of the full back wages,
which she was otherwise entitled. The
appeals are partly allowed. The impugned
judgments will stand modified and the
respondents shall calculate the amount
which would be equivalent to 75% of the
back wages and disburse the amount
remaining to be paid under this judgment
within a period of six weeks from today to
the additional appellants."

12. As observed above, the impugned
order of termination of services of the
petitioner is punitive in nature, it is liable to
be interfered with and the petitioner would
be entitled to the back wages in view of the
law laid down by the Supreme Court in the
aforesaid cases

13. Keeping all what has been
discussed hereinabove, I am of the view
that the impugned order of termination,
Annexure No.1, is punitive in nature and is
not an order simplicitor and thus, the
petitioner is entitled to the protection of
160 INDIAN LAW REPORTS ALLAHABAD SERIES
Art. 311 (2) of the Constitution of India.
The order is liable to be and is hereby set
aside. The petitioner shall be entitled to all
consequential benefits, including 50% back
wages subject to his giving an undertaking
that he was not employed in any other
department and not getting salary equal to
the salary he was drawing prior to
termination of his services or more than it.

14. The writ petition is accordingly
allowed.
----------
(2023) 3 ILRA 160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 8417 of 2022

Shatrughan ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi, Maya Ram Yadav

Counsel for the Respondents:
C.S.C., Neeraj Chaurasiya

A. Service Law - Suspension/Punishment
- U.P. Government Servant (Discipline and
Appeal) Rules, 1999: Rule 4 - On a plain
reading of Rule 4(i), it is clear that the life
of a suspension order survives only till the
conclusion
of
the
inquiry
and
not
thereafter. In the present case, the suspension
order had come to an end on 19.10.2022, the
date on which the inquiry was concluded against
the petitioner. Merely because the order
dated 19.10.2022 was set aside and
liberty was granted to the respondent to
proceed
afresh,
there
can
be
no
presumption that the suspension order
would stand revived except when the
same is traceable to the conditions u/Rule
4(vi), where the order of dismissal or
removal from services has been imposed
upon the government servants. (Para 9)

B. Continuation of passing of suspension
order can be justified only when the
charges leveled can lead to award of a
major penalty whereas in the present case
the
respondents
themselves
on
the
conclusion of the inquiry imposed a 'minor
penalty'.
Admittedly,
the
order
dated
19.10.2022 has not imposed the punishment of
dismissal or removal from the service. (Para 10)

The suspension order dated 06.08.2022 is
declared to have come to an end on 19.10.2022
when an order was passed against the
petitioner as conclusion of inquiry. Order dated
19.11.2022 was set aside by the Court on
21.11.2022
and
liberty
was
granted
to
respondents to proceed afresh. Therefore, the
respondents shall be at liberty to pass such
order as may be in accordance with law. The
respondent no.2 is directed to pass fresh orders
w.r.t. the claim of the petitioner for payment of
salary and all consequential service benefits
within a period of six weeks. (Para 11)

Writ petition allowed. (E-4)

Present petition challenges suspension
order dated 06.08.2022, whereby the
petitioner was placed under suspension
pending an inquiry.

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present petition has been filed
challenging the suspension order dated
06.08.2022, whereby the petitioner was
placed under suspension pending an
inquiry.

2. The contention of the counsel for
the petitioner is that vide order dated
06.08.2022, the petitioner was placed under
suspension in contemplation of an inquiry
in exercise of powers conferred by Rule 4
of the U.P. Government Servant (Discipline