Sharda Singh vs State Of U.P.& Ors

Sharda Singh ..........Appellant

Versus

State of U.P. & Ors. ........Respondents

ORDER

Leave granted.

2) Challenging the judgment and order passed by the High Court of

Allahabad in Writ Petition No.4436 (S/S) of 2005 dated 05.04.2007,

the appellant is before us in this appeal.

3) The appellant was working as Collection Amin. While in service, he

was served with a charge memo, inter-alia alleging, that, instead of

depositing the amount by himself, he got it deposited through Peon.

After holding an enquiry, he was visited with a minor penalty.

Adverse entry in his confidential records by District Magistrte,

1 Sitapur vide his order dated 31.10.2003. In the same order, it was

informed to the appellant that payment of back wages during the

period of suspension will be determined separately. Aggrieved by the

order so passed, the appellant had preferred appeal before the

appellate authority as provided in the Rules. The appellate authority

vide his order dated 04.04.2005 has dismissed the appeal of the

appellant.

4) There is yet another aspect of the matter that requires to be noticed.

The competent authority by order dated 13.09.2004 had rejected the

claim of the appellant for back wages during the period of suspension

till the date of reinstatement into service, only on the ground, that, the

appellant had not performed any work during the period of

suspension. This order is also confirmed by the first appellate

authority vide his order dated 04.04.2005.

5) The appellant had called in question the order passed by the appellate

authority dated 04.04.2005 and the orders passed by the District

Magistrate, Sitapur dated 31.10.2003 and 13.09.2004 and further for a

direction to the respondents to pay the full amount of salary for the

period, when appellant was kept away from service by an order of

2 suspension dated 22.10.1998, by filing a writ petition before the High

Court.

6) The High Court, vide its order dated 05.04.2007 has allowed the writ

petition in part by quashing the order dated 04.04.2005 passed by

Commissioner, Lucknow Division, Lucknow (Appellate authority)

and has declined to quash the order dated 31.10.2003 and 13.09.2004

passed by District Magistrate, Sitapur.

7) We have heard learned counsel for the parties.

8) The order passed by the appellate authority dated 04.04.2005 is a

composite order. In the said order, the appellate authority has

considered the order passed by the District Magistrate dated

31.10.2003 wherein he has imposed a minor penalty of making

adverse entry in the service records and the order dated 13.09.2004,

wherein the same authority has declined to order the payment of

salary during the period when appellant was kept out of service and

has confirmed the same vide his order dated 04.04.2005. In that view

of the matter, the order passed by the District Magistrate has merged

with the order passed by the appellate authority (See Commissioner

of Wealth Tax Vs. Mrs. Kasturbai Walchand and Ors. 1989 Supp (1)

SCC 640, Devi Singh Vs. Board of Revenue 1994 (1) SCC 215,

3 Chandi Prasad and Ors. Vs. Jagdish Prasad and Ors. (2004) 8 SCC

724). That order passed by the appellate authority is set aside by the

High Court. Therefore, the only inference that can be drawn is, that

the order passed by the District Magistrate, Sitapur dated 31.10.2003

and the order passed on 13.09.2004 is set aside by the High Court. In

our view, having set aside the order dated 04.04.2005, there is no

reason for the Court to decline to set aside the order passed by the

District Magistrate, Sitapur dated 31.10.2003 and the order dated

13.09.2004. When an appeal is filed before the appellate authority

against an order passed by the District Magistrate, the impugned

order merges in the order passed by the appellate authority, when the

appeal is disposed of on merits. When that order of the appellate

authority is set aside, the natural consequence is that the orders

passed by the District Magistrate also becomes inconsequential.

Therefore, the High Court was not right in refusing to set aside the

order passed by the District Magistrate dated 31.10.2003 and the

order dated 13.09.2004. At this stage, we must observe that the High

Court while deciding the writ petition has given importance only to

the order passed by the District Magistrate dated 31.10.2003 and

there is no discussion whatsoever with regard to the claim made by

4 the appellant for arrears of salary for the period when he was kept out

of service. Therefore, it may not be proper to held, the Court has also

set aside the order passed by the District Magistrate dated 13.09.2004.

9) The next question that falls for our consideration is, whether the

appellant is entitled for full back wages/salary, during the period of

suspension till the date of passing the order of reinstatement into

service, when he was exonerated of the charges framed against him

by the disciplinary authority. The competent authority has rejected

the claim of the appellant on the ground that during the period of

suspension, the appellant has not worked and therefore by applying

the principle of `no work no pay', has rejected the claim of the

appellant for payment of arrears of salary. This view is confirmed by

the appellate authority while passing the order dated 04.04.2005.

This portion of the order was also questioned by the appellant before

the High Court and also had made specific prayer to annul that

portion of the order passed by the District Magistrate and confirmed

by the appellate authority. The Court, as we have noticed earlier, has

declined to entertain this specific prayer of the appellant and for

doing so, the Court has not stated any reason whatsoever. It seems to

us that the view taken by the High Court cannot be sustained. The

5 Court while declining to set aside the order dated 13.09.2004 passed

by the District Magistrate, Sitapur could have sustained the order

passed by relying on the rules which governs the parties to the lis and

in the alternative on the legal principles evolved by this Court. This

appears to be not even attempted by the High Court. We say so for

the reason, that, a Government servant exonerated of the charges

framed against him cannot be deprived of any portion of his pay for

the period of suspension. (see State of West Bengal Vs. Bata Krishna

Burman AIR 1971 SC 156). Then again there could be a rule or

regulation which may provide, that, during the period of suspension,

an employee would be entitled only for suspension allowance, dehors

the ultimate result of the enquiry proceedings. This grey area either

should have been determined by the Court or should have asked the

authorities to determine the claim with reference to the prevailing

rules/regulations.

10) In the aforesaid circumstances, we are unable to agree wit h the

cryptic order passed by the High Court. In the facts and

circumstances of the case, what should have been done by the High

Court was to decide the issue with reference to the rules/regulations,

which governs the parties or direct the respondents to reconsider the

6 issue of payment of salary during the period of suspension till the

order dated 31.10.2003, in accordance with law and also in

accordance with the provision of Financial Handbook which governs

the parties.

11) In the result, the appeal is allowed in part and the impugned order

passed by the High Court in declining to set aside the order passed by

the District Magistrate, Sitapur dated 31.10.2003 is set aside. In so

far as the order passed by the District Magistrate dated 13.09.2004

which has culminated in the order passed by the appellate authority is

set aside and the matter is remanded back to the District Magistrate,

Sitapur to consider the claim of the appellant for payment of back

wages/salary for the period 22.10.1998 to 31.10.2003 in accordance

with law and also the rules/regulations which governs the parties to

the lis. In the circumstances of the case, there is no order as to costs.

Ordered accordingly.

.......................................J. [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ] New Delhi,

7 April 13, 2009.

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