Sahansar Pal Singh vs State of U.P. and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties.

Petitioner who is a constable was accused in a FIR and was later charge sheeted. Accordingly, he was suspended pending criminal trial on 12.12.2002. However, criminal trial could not be concluded expeditiously hence by order dated 24.05.2004 the suspension was revoked with the condition that it would not affect the departmental proceedings pending against him. After revocation of suspension petitioner was also acquitted in the criminal case.

Annexure 5 is a copy of a report dated 04.11.2008 by Circle Officer, Najibabad, Bijnor to S.P. Bijnor in pursuance of letter dated 27.09.2008 regarding preliminary inquiry in respect of suspension of petitioner. Inquiry officer reported that after acquittal of petitioner in criminal case u/s 302 read with 120-B, I.P.C., no evidence remained against him hence it was not possible to hold the charge to be proved. It was also recommended that for the suspension period full salary must be paid to the petitioner. However, S.P. did not agree with the report dated 04.11.2008 and noted thereupon on 02.01.2009 that he did not agree. Thereafter impugned order dated 21.02.2009 was passed holding that petitioner was not entitled to any salary allowance etc. for the suspension period from 12.12.2002 to 24.05.2004 apart from the amount which had already been paid to him as suspension allowance. The last sentence of the said order is that suspension period will not be counted for the purposes of pension and promotion.

It appears that no inquiry is now pending against the petitioner and S.P. has agreed with Circle Officer Najibabad that there was no occasion to continue the inquiry against the petitioner and he should be exonerated. In such a situation there is absolutely no question of directing that the suspension period will not be counted for the purposes of pension and promotion.

On the persuasion of the Court, learned Counsel for the petitioner has agreed not to press the balance salary for the suspension period. However, in para 22 of the writ petition it has been stated that even suspension allowance was not paid to the petitioner. This fact has been admitted in para 7 of the counter affidavit and a very strange reason has been given to justify it which is to the effect that

if a criminal charges were levelled against the petitioner and he was tried by the trial court he would not be entitled for any salary for the period of suspension.

This is not the law. During suspension period an employee is entitled to the suspension allowance as provided under the rules irrespective of the nature and gravity of the charges levelled/proposed to be levelled against him. Accordingly, it is directed that suspension allowance as permissible under the rules for the suspension period from 12.12.2002 to 24.05.2004 shall be paid the to petitioner within three months positively failing which 1.5% interest per month interest shall be payable thereupon since after three months till actual payment. Interest if required to be paid may be recovered from the salary of those officers who are found responsible for delay in payment.

It is needless to add that all other benefits to which petitioner is entitled treating him to be in continuous service shall be made available to him except any amount for the suspension period apart from permissible suspension allowance.

Accordingly, impugned order dated 21.02.2009 is set aside to the above extent and the writ petition is allowed.

Office is directed to supply a copy of this order free of cost to Sri G.M. Tripathi, learned standing Counsel within a week. Petitioner is also directed to supply a certified copy of the judgment to S.P. Bijnor within two weeks.