M.P. Sharma vs Commissioner Trade Tax Department and Ors

Lok Pal Singh, J.

Petitioner has approached this Court seeking the following reliefs, among others:

i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 3.6.1995 and 28.6.1995 passed by respondent nos.3 and 4,

respectively.

ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.4 to pay the yearly bonus/ex-gratia leave increments fixation

of the seniority higher time of scale of pay admissible after the completion of 10 years of service w.e.f. 5.5.87 and promotion or on before the date the

person junior to him have been promoted.

iii) Issue a further writ order or direction in the nature of mandamus directing the respondents to fix the pay scale of the petitioner in the revised pay

scale w.e.f. 1.1.1986 and to give all increments.

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Brief facts of the case are that the petitioner was employed as a Clerk in the office of the Assistant Commissioner (Judicial) Sales Tax, Dehradun.

He was suspended on 26.02.1985 and was served with a chargesheet in which it was stated that on 22.02.1985 petitioner participated in a strike that

took place in the office of Deputy Commissioenr (Adminstration) Sales Tax Allahabad, incited the strikers, indulged in marpeet and caused injuries to

certain officials and also caused destruction of government property. Inquiry Officer submitted his report dated 22.05.1985 in which he held that the

charges were established against the petitioner and that he is guilty of misconduct under rule 3(1)(2) of the U.P. Government Servants Conduct Rules.

The report of the enquiry officer was considered by the Additional Commissioner, who agreed with the findings and accordingly order of dismissal

was passed against the petitioner. Feeling aggrieved by the order of dismissal, petitioner preferred writ petition being Writ Petition No.3938 of 1985

before the Allahabad High Court. By judgment and order dated 16.7.1995, the Court allowed the writ petition and quashed the order of termination.

Judgment dated 16.7.1995 was not challenged by the respondents before any court of law and has thus become final. Thereafter, petitioner joined his

services and continued till his date of retirement but he was not paid arrears of salary for the suspension period. Petitioner moved representation for

ventilation of his grievances before the authority concerned. Petitioner’s representation was rejected by the respondents vide orders dated

3.6.1995 and 28.6.1995. Full salary has been denied to the petitioner in view of Rule 54-A of Financial Handbook Vol. II (Parts II to IV).

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Petitioner has contended that along with the petitioner, two others persons namely K.G. Dwivedi and Adya Prasad Mishra were also suspended

and terminated by the respondent department under the same charges. However, they approached the Tribunal and after the judgment of the Tribunal,

they were reinstated in service and were also paid arrears of salary during the suspension and dismissal period. It is contented that the case of the

petitioner is on the same footing as of above-named persons, but same benefit has been denied to the petitioner by the respondents. According to

learned counsel for the petitioner, case of the petitioner is fully covered by principle of parity. To buttress his arguments, learned counsel for the

petitioner has placed reliance upon a judgment of Hon’ble Apex Court rendered in the case of Man Singh vs. State of Haryana and ors. (2008) 12

SCC 331, wherein it has been as under:

“20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether

legislative or administrative or quashi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could even have

made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an

individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal

is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a

synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to

be just on the test of 'fair play' and reasonableness.

In the counter affidavit filed by Ranbir Singh Sharma, it is stated as under:

“7. That the contents of paragraphs 44, 45, 46 and 47 of the writ petition needs no comment as it relates to legal matter in the case of Shri Aditya

Prasad Mishra, U.P. Public Services Tribunal had directed for payment of full arrears of salary which has not to be complied with in the present case.

There was no direction of the Hon’ble High Court while allowing the writ petition of the petitioner and hence the petitioner’s representation

with regard to payment of salary was considered in accordance wit the relevant provisions contained in Financial Hand Book as are applicable in the

case of the petitioner. The same position is with regard to the case of another employee Shri K.G. Dwivedi in which case also the Hon’ble High

Court has directed for payment of full salary. As such the order of the respondent dated 3.6.1995 is just legal and valid and the contention of the

petitioner to the contrary is not correct. There is no question of any discrimination against the petitioner.â€​

I have heard learned counsel for the parties and perused the entire material available on record.

Annexure-5 is the judgment rendered by the U.P. Public Service Tribunal in the case of Krishna Gopal Dwivedi vs. The State of U.P. and others

dated 17.09.1990. Operative part of the judgment reads as under:

“The claim petition is hereby allowed and the impugned orders dated 27.6.1985 and 22.4.1988 contained in Annexures No.11 and 15 are hereby

quashed.

In the circumstances of the case, parties are directed to bear their own costs.â€​

Similarly, Annexure-6 is the judgment rendered by U.P. Public Service Tribunal in the case of Adya Prasad Mishra vs. The Commissioner & Ors.

dated 01.02.1993. Operative part of the judgment reads as under:

“The claim petition is partly allowed. The opposite parties are directed to pay the petitioner his full pay from the date of suspension till he is

reinstated on his post. This arrear amount should be paid to the petitioner within three months from today.â€​

From the perusal of the judgments passed by the Tribunal in the case of K.G. Dwivedi and Adya Prasad Mishra, it is evidently clear that in the case

of Adya Prasad Mishra, there was direction by the Tribunal to pay full salary to the petitioner for the suspension period whereas in the case of K.G.

Dwivedi, there was no such direction by the Tribunal, however, Shri K.G. Dwivedi was also paid full arrears of salary for the period of his suspension

and dismissal.

In the counter affidavit, respondents have not denied the fact that they have not given arrears of salary to K.G. Dwivedi for the suspension and

dismissal period, therefore, the action of the respondents in denying the same benefits to the petitioner, is illegal and arbitrary. Considering the principle

of parity, petitioner is also entitled to get full salary.

Accordingly, writ petition is allowed. Impugned orders are quashed. Respondents are directed to pay full salary to the petitioner for the period of

suspension and dismissal, after adjusting the amount already paid to him. That apart, respondents are directed to pay costs of Rs.10,000/- to the

petitioner for compelling him in an unwarranted litigation.