Sharda Singh Vs.
State of U.P.& Ors.  INSC 734 (13 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2392 OF 2009 (Arising out
of SLP(C) No. 24225 of 2007) Sharda Singh ..........Appellant Versus State of
U.P. & Ors. ........Respondents
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.
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, 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.
is yet another aspect of the matter that requires to be noticed.
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.
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.
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.
have heard learned counsel for the parties.
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 3 724). 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.
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 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.
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.
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.
[ TARUN CHATTERJEE ]
[ H.L. DATTU ]