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Ram Prakash Shukla And Others v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 10202 of 2005 [2005] RD-AH 26 (1 January 2005)


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Court No. 21

Criminal Misc. Writ Petition No.  10202 of 2005

Ram Prakash Shukla & others   Vs.     State of U.P and others


Criminal Misc. Writ Petition No.  10208 of 2005

Ram Prakash Shukla & others   Vs.     State of U.P and others



Heard and also perused the materials on record.

Both the petitions are taken together for the disposal as common questions of law and facts are involved in both the cases registered at Case Crime No. 419 of 2005 for the offences under Sections 147, 148, 149, 323, 504, 506, 332, 353 and 392 IPC, Police Station Akbarpur, district Kanpur Dehat and in Crime No. 422 of 2005 for the offences under Sections 409, 420, 467, 468 and 120-B IPC, Police Station Akbarpur, district Kanpur Dehat. It is contended that Constable No. 2355 (NP) Hari Mohan Tiwari was involved in Case Crime No. 490 of 1979 for the offence under Section 302 IPC, Police Station Bhognipur, District Kanpur Dehat and so he was placed under suspension on 10th October 1979. The trial commenced in the court of the IV Additional Sessions Judge and he was convicted for the aforesaid offence on 23/24th August 1981 and life imprisonment was awarded to him. He preferred Criminal Appeal No. 691 of 1981 before this Court. That appeal was allowed by this Court on 14th February 2003. Sri Hari Mohan Tiwari was acquitted in Case Crime No. 490 of 1979 for the offence under Section 302 IPC. After acquittal Sri Hari Mohan Tiwari moved an application for his reinstatement in service and also for making the payment of salary and other benefits. On 27th August 2004, the Superintendent of Police after obtaining the advice from the DGC, Kanpur Dehat, had taken Sri Hari Mohan Tiwari back in service on 14th September 2004 and Sri Hari Mohan Tiwari was also made entitled to get his salary and other allowances admissible under Rules. The petitioner, being in the Accounts Department, checked the service record and also the orders passed by the Superintendent of Police, Kanpur Dehat prepared the salary bills working out the amount of Rs. 10,55,051/- to be admissible to Sri Hari Mohan Tiwari. That payment was made to Sri Hari Mohan Tiwari after getting the amount drawn under the signatures of the Drawing & Disbursing Officer of the rank of the Superintendent of Police. Sri Hari Mohan Tiwari brought Civil Misc. Writ Petition No. 56192 of 2005 before this Court also claiming for bonus of the period for which the salary was made admissible to him. In that Writ Petition this Court on 18th August 2005 called for personal affidavits from the Superintendent of Police, Kanpur Dehat and the Deputy General of Police, Kanpur Range explaining as to how the petitioner was paid huge amount from the State Exchequer without any work. It is said that with a view to shift responsibility, this impugned FIR has been registered. In this regard much emphasis has been laid that the petitioners, being the lower ranking officers of the Police establishment, processed the salary bills, pursuant to the directions given by the senior officers. In that regard reinstatement order dated 14th September 2004 was referred. In that order it has categorically been mentioned by the Superintendent of Police, Kanpur Dehat that except for the subsistence allowance already paid, no other payment shall be made to the petitioner for period he remained suspended or out of job. However, there appears specific orders that the period when the official concerned remained out of service shall be counted for the purposes of promotion and other pensionary benefits. In consonance with the said order, the salary of the petitioner was fixed taking into consideration the date he was entitled for increments and the pay fixation. This would not be construed to be regularization as per the financial provisions. The Financial Handbook Volume II, Part II-IV (Fundamental and Subsidiary Rules regulates the general conditions of service under Government, fixation of pay, the grant of personal or special pay, dismissal and suspension of Government servants, grant of subsistence allowances during the period of suspension, regularization of service when reinstated after the revocation of suspension or dismissal etc.

    We heard the learned Government Advocate and the learned counsel for the petitioners and it was submitted that the respondent was not entitled to get salary for the period when he remained out of service on account of dismissal order passed by the appropriate authority. It was submitted that the Fundamental Rule 54 enables the Government to pass such an order and it was argued in appropriate case the authorities can pass an order denying salary to the employee when reinstatement is ordered as a result of appeal or review. Fundamental Rule 54 reads as follows :

"When a Government servant who has been dismissed, removed or compulsory retired is reinstated as a result of appeal or review or would have been so reinstated 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 preceding his dismissal, removal or compulsory retirement, as the case may be and (b) whether or not the said period shall be treated as the period spent on duty."

It is true that when a reinstatement is ordered in this case after the dismissal of the petitioner in criminal case, the authorities can pass specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty preceding the dismissal. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the dismissal. The Constitution Bench of Supreme Court in Managing Director, ECIL v. B. Karunakar reported in 1993 (4) SCC 727 held that the question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome. The authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled.

From the arrangements made in the Fundamental Rules referred above, unless the past period when Sri Hari Mohan Tiwari remained out of job or suspended is regularized how the Accounts Officer/petitioner processed the bills. The Superintendent of Police did not pass any specific order regularizing the period of suspension and interregnum period from dismissal to re-instatment Here at this stage it may be mentioned that the bills, signed by the Drawing & Disbursing Officer would not make out the regularization of that period, in view of the Rule 54 (1) of the Fundamental Rules mentioned in the Financial Hand Book. Merely because the senior officers have signed the bills would not exonerate the petitioner totally.

In the given circumstances, we do not find any justified and justifiable ground to interfere in the matter. Reliance may be placed in the cases of State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604, Ajay Mitra vs. State of UP [AIR 2003, (SC) Page 1069] and Union of India vs. Prakash P. Hinduja and Another [JT 2003 (5) SC 300]. In the result, the petition is dismissed. However, the bail application of the petitioner shall be dealt with expeditiously.





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