Allahabad High Court
Aditya Kumar Mishra vs State Of U.P. Road Transport ... on 8 July, 2024
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:46057 A.F.R. RESERVED ON 11.1.2024 DELIVERED ON 8.7.2024 Court No. - 31 Case :- WRIT - A No. - 91 of 2022 Petitioner :- Aditya Kumar Mishra Respondent :- State Of U.P. Road Transport Corporation,Head Quarters Tehri Kothi,Thru.Its Managing Director Counsel for Petitioner :- Mohd. Ali Counsel for Respondent :- Ratnesh Chandra Hon'ble Salil Kumar Rai,J.
1. Heard Shri Mohd. Ali, counsel for the petitioner and Shri Ratnesh Chandra, Advocate, representing the Uttar Pradesh State Road Transport, Corporation.
2. The petitioner was employed as conductor with Uttar Pradesh State Road Transport, Corporation (hereinafter referred to as, 'Corporation'). On 1.11.2013, the petitioner was on duty in a 32 Seater Bus No. UP 57 T 2765 plying on the Gorakhpur-Padrauna route. The bus was inspected in mid route by a team led by the Transport Superintendent, Gorakhpur Region. The inspection team found that nine passengers in the bus were travelling without ticket.
3. On 2.11.2013, the inspection team submitted a report to the Regional Manager of the Corporation stating that, on inspection, nine passengers in the bus were found to be without ticket even though they had paid the fare. In his report, the Regional Manager noted that the nine passengers had deposed orally but had refused to give any written statement. It is relevant to note that the report does not disclose the contents of the oral statements of the nine passengers. The report also does not refer to any evidence in support of the finding that the petitioner had charged fares from the nine passengers. By order dated 19.11.2013 disciplinary proceedings were instituted against the petitioner and a charge-sheet was served on him. The charge against the petitioner was that he had acted against the Uttar Pradesh State Road Transport Employees (Other Than Officers) Service Regulation, 1981 (hereinafter referred to as, 'Regulation, 1981'), caused financial loss to the Corporation and indulged in corruption by not issuing tickets to the nine passengers.
4. In his reply, the petitioner denied the charges levelled against him. The defense of the petitioner was that the nine passengers were students and had refused to pay their fare, therefore, tickets were not issued to them. The petitioner claimed that when the aforesaid nine passengers refused to pay their fare, the petitioner asked the driver to halt the bus but the driver did not halt the bus because of opposition by other passengers.
5. During the enquiry proceedings, the Transport Superintendent and two Assistant Transport Inspectors, who were part of the inspection team, appeared as witness of the Corporation to prove the report submitted by the Transport Superintendent. In his defense the petitioner produced, as witness, two passengers who were travelling in the bus on 1.11.2013. The Inquiry Officer submitted his report on 8.1.2014. In his report the Inquiry Officer held the petitioner guilty of the charges levelled against him. A show cause notice dated 9.1.2023 was served on the petitioner to show cause as to why he should not be removed from service.
6. In his reply to the show cause notice, the petitioner reiterated his defense as submitted before the Inquiry Officer. The defense of the petitioner was not accepted by the Regional Manager, who vide his order dated 7.10.2014 awarded the punishment of 'removal from service' to the petitioner. The petitioner filed appeal before the Chief Manager (Finance & Account), which was also rejected vide order dated 16.11.2015. Against the orders dated 7.10.2014 and 16.11.2015, the petitioner filed Revision before the Chairman of the Corporation, which was partly allowed by order dated 31.8.2021. In his order dated 31.8.2021, the Chairman accepted the defense of the petitioner and set aside the orders dated 7.10.2014 and 16.11.2015. In his order dated 31.8.2021, the Chairman held that the nine passengers had not paid their fare despite the petitioner having demanded it from them and when the passengers refused to pay the fare, the petitioner asked the driver to halt the bus, but the driver continued to drive the vehicle. The Chairman held that the inspection team was under a duty to recover the fare from the nine passengers. However, the Chairman also held that the petitioner was responsible for letting the nine passengers to travel without ticket but the punishment of 'removal from service' awarded to the petitioner was disproportionate to his conduct. By order dated 31.8.2021, the petitioner has been reinstated in service without any financial benefits for the period he was not in service and four annual increments of the petitioner have also been withheld.
7. The present petition has been filed challenging the order dated 31.8.2021 passed by the Chairman so far as it witholds four annual increments of the petitioner and also denies financial benefits to the petitioner for the period he was not in service.
8. It was argued by the counsel for the petitioner that the charges levelled against the petitioner were not established in the departmental proceedings and there was no evidence that the petitioner had purposely not issued tickets to the nine passengers or the nine passengers had paid their fare. It was argued that the explanation of the petitioner that nine passengers were students and had refused to pay the fare was proved by the witnesses of the petitioner. It was argued that the order passed by the Chairman holding the petitioner responsible for letting nine passengers to travel without ticket is also without any evidence and has been recorded without considering the evidence submitted by the petitioner. It was argued that the driver of the Bus was a material witness to prove the charges against the petitioner but was not produced by the department. It was further argued by the counsel for the petitioner that withholding of financial benefits even after reinstatement of the employee is not included in Regulation 63 of the Regulations, 1989 which prescribes the penalties that can be awarded to a delinquent, therefore, the impugned order passed by the Chairman refusing financial benefits to the petitioner for the period he was not in service is without jurisdiction. It was argued that there is no finding by the Chairman that the petitioner was gainfully employed while he was out of service and, therefore, pay and other allowances for the period the petitioner was out of service could not have been denied to him. It was argued that for the aforesaid reasons, the impugned order passed by the Chairman so far as it denies financial benefits to the petitioner and so far as it withholds four annual increments of the petitioner is without jurisdiction. In support of his contention, the counsel for the petitioner has relied on the following judgements of the Supreme Court and of this Court :-
(a) Nirmala J. Jhala Vs. State of Gujarat & Another, 2013 (31) LCD 762;
(b) Pradeep Vs. Manganese Ore (INDIA) Limited & Others, 2022 (3) SCC 683;
(c) Deepali Gundu Surwase Vs. Krinti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others, 2013 (10) SCC 324;
(d) M.P. State Agro Industries Development Cooperation Ltd. & Another Vs. Jahan Khan, 2007 (10) SCC 88; and
(e) Chandra Kumar Mishra Vs. State of U.P. & Others, 2022 (40) LCD 3001.
9. Rebutting the argument of the counsel for the petitioner, the counsel for the respondents, i.e., the Corporation and its officers, has argued that the driver was not a material witness to prove the charges against the petitioner and it was the petitioner who was required to produce the driver as witness to prove his defense. It was argued that the petitioner did not inform the inspection team that tickets were not issued to the nine passengers because they had refused to pay their fare. It was argued by the counsel for the respondent that the petitioner as Conductor had committed breach of trust and in matters of corruption no mercy can be shown. It was argued by the counsel for the respondents that the findings recorded by the Inquiry Officer are based on evidence on record and the punishment awarded to the petitioner was not disproportionate to the charges, therefore the findings of the Inquiry Officer and the punishment awarded to the petitioner were not susceptible to interference under Article 226 of the Constitution of India.
10. Replying to the jurisdictional issue raised by the petitioner, the counsel for the respondents has argued that the petitioner has been held responsible for letting nine passengers to travel without ticket and punishment has been awarded to him, therefore, status quo has not been restored and thus there is no jurisdictional error in the order passed by the revisional authority refusing financial benefits to the petitioner for the period the petitioner was out of service and the judgement of the Supreme Court in Deepali (supra) is not applicable in the present case. It was argued that for the aforesaid reasons, the petition lacks merit and is liable to be dismissed. In support of his contention, the counsel for the respondent has relied on the judgements of the Supreme Court reported in Union of India and Others Vs. P. Gunasekaran, 2015 (2) SCC 610 and Uttar Pradesh State Road Transport Corporation & Another Vs. Gopal Shukla & Another, 2015 (17) SCC 603.
11. I have considered the submissions of the counsel for the parties.
12. The law regarding judicial review of disciplinary proceedings is well settled. Disciplinary proceedings are quasi judicial proceedings and the Inquiry Officer performs a quasi judicial function. Under Article 226 of the Constitution, the High Court is not a court of appeal over the decision of the disciplinary authority and does not either reappreciate the evidence submitted against the employee nor does the High Court records an independent finding on evidence. However, under Article 226 the High Court can interfere where the findings of the disciplinary authority are wholly arbitrary and capricious or are based on no evidence or where the findings are such which no reasonable man can ever arrive at. The findings in the disciplinary proceedings as well as the punishment awarded to the delinquent should also not be influenced by irrelevant considerations. The Inquiry Officer and the disciplinary authority can not record findings or pass orders of punishment on mere suspicion. The Inquiry Officer and the disciplinary authority can also not travel beyond the charges and any punishment imposed on the basis of a charge which was not the subject matter of the charge-sheet would be illegal.
13. It is also well settled that the punishment awarded to the delinquent employee should be proportionate to the gravity of his alleged misconduct and in cases of corruption, there can be no punishment other than dismissal. It has been held by the courts that sympathy in cases of corruption is uncalled for and opposed to public interest (reference may be made to the judgement of the Supreme Court in Gopal Shukla (supra). However, merely because the employee is charged with an act of corruption can not be a reason for the Inquiry Officer or the disciplinary authority to deviate from the procedure prescribed in the service rules or from the principles of natural justice. In cases of extreme punishment like dismissal, it is more necessary that the findings against the employee should not be recorded on mere probabilities.
14. At this stage it would be apt to refer to certain judgements of the Supreme Court which expound the law relating to judicial review of departmental enquiries.
15. It was observed by the Supreme Court in State of A.P. Vs. S. Sree Rama Rao, AIR (1963) SC 1723 that :
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
(Emphasis added)
16. In State of A.P. Vs. Chitra Venkata Rao, (1975) 2 SCC 557, the Supreme Court observed as follows :-
"The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal."
(Emphasis added)
17. The Supreme Court observed in State of Haryana v. Rattan Singh, (1977) 2 SCC 491 that :-
"4. ...in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good."
(Emphasis added)
18. At this stage, it would be relevant to rehearse the facts of the present case.
19. The inspection team found that nine passengers were travelling without ticket. The inspection report noted that the nine passengers had paid their fare to the petitioner, i.e., the conductor of the bus. The inspection report also noted that the nine passengers had orally deposed before the inspection team, but had refused to give their written statement. It is noted that the inspection report does not attribute to the passengers the recital in the report that the petitioner had charged fare from them. The inspection report does not state as to how the inspection team came to know that the passengers had paid their fare. The charge against the petitioner was that he indulged in corruption by not issuing tickets to the nine passengers even after having received fare from them. In the inquiry proceedings, the Traffic Superintendent who led the inspection team, appeared as a witness and in his evidence, the Traffic Superintendent only stated that nine passengers were found to be travelling without ticket. In his evidence, the Traffic Superintendent again did not attribute to the passengers any statement implicating the petitioner, i.e., the petitioner had charged fare from the passengers. It may be noted that none of the said passengers were produced as witness in the case. The enquiry report submitted against the petitioner only notes that the petitioner had the duty to ensure that the bus moved only after the passengers had paid thier fare and tickets had been issued to them and the failure of the petitioner to act accordingly shows bad intention of the petitioner. There is no finding in the enquiry report that the petitioner had charged fare from the nine passengers. The enquiry report, the order dated 7.10.2014 passed by the disciplinary authority removing the petitioner from service and the order dated 16.11.2015 passed by the appellate authority do not refer to any evidence which even prima facie establishes that the petitioner had taken the fare of the bus from the nine passengers. The mere fact that the passengers were travelling without ticket would not in itself lead to the conclusion that the nine passengers had paid the fare and the petitioner had misappropriated the amount. Apparently, there was no evidence on record that the nine passengers had paid their fare to the petitioner and the petitioner had misappropriated the amount. The order passed by the departmental authorities removing the petitioner from service and also dismissing his appeal are based on findings which are without any evidence.
20. The order dated 31.8.2021 passed by the revisional authority, even though it exonerates the petitioner of the charges levelled in the charge-sheet, holds the petitioner responsible for letting nine passengers to travel without ticket. In his impugned order, the revisional authority has accepted the plea of the petitioner that when the nine passengers had refused to pay their fare the petitioner had asked the driver of the bus to station the bus but the driver continued to drive because of protest by other passengers. The opinion of the revisional authority that the petitioner was responsible for letting nine passengers to travel without ticket is contrary to his own findings that when the nine passengers refused to pay their fare the petitioner had asked the driver to station the bus but on the insistence of other passengers, the driver of the vehicle continued to drive and did not halt the bus. Apart from the aforesaid, the findings of the revisional authority can, at the most, lead only to a charge of dereliction of duty by the petitioner. In the charge-sheet the petitioner was not charged with negligence or dereliction of duty and as noted earlier, the disciplinary authority can not travel beyond the charge-sheet and any punishment imposed for a charge which was not the subject matter of the charge-sheet would be illegal. In any case, the petitioner can not be held liable even for dereliction of duty once the revisional authority accepted the defense of the petitioner that when the nine passengers did not pay their fare, the petitioner asked the driver to station the bus but the driver did not stop the bus because other passengers insisted that the bus be not stationed. Further, no reasons have been given in the order dated 31.8.2021 for holding against the petitioner. Evidently, the order 31.8.2021 passed by the revisional authority so far as it holds the petitioner responsible for letting nine passengers to travel without ticket and consequently imposes punishment of withholding four increments of the petitioner is a non-speaking order, without any evidence and is also perverse and to the said extent the order is liable to be quashed.
21. It has been argued by the counsel for the petitioner that the order dated 31.8.2021 passed by the revisional authority so far as it denies financial benefits to the petitioner for the period he was out of service is without jurisdiction because under Regulations 63 and 64 of Regulations, 1981 the departmental authorities do not have the jurisdiction to award any such punishment. The counsel for the petitioner has argued that, in any case, in view of the judgement of the Supreme Court in Deepali Gundu Surwase (supra) the petitioner was entitled to full back-wages on being reinstated in service.
22. For reasons stated subsequently the order dated 31.8.2021 so far as it denies financial benefits to the petitioner for the period he was out of service is contrary to law and is liable to be quashed.
23. Regulations, 1981 do not contain any provision regarding payment of back-wages to an employee for the period he was out of service if the order removing or dismissing him from service is set aside in appeal or revision and the employee is reinstated in service. However, Regulation 84 of the Regulations 1981 provides as follows :-
"84. Regulation of other matters.-Subject to the orders of the Board, in regard to maters not covered by these Regulations or any other Regulations or orders of the Boards issued from time to time, decision shall be taken in conformity with the Rules or Orders applicable to the State Government employees or issued under the authority of the State Government, as the case may be."
(Emphasis added)
24. By virtue of Regulation 84 of the Regulations, 1981 any decision regarding pay and allowances payable to the petitioner for the period he was out of service had to be taken in accordance with the rules and orders applicable to the State Government Employees or issued under the authority of the State Government, as the case may be. The rules applicable to State Government employees, which regulate the powers of the appropriate authority regarding payment of back-wages to an employee, for the period the employee was out of service if the order of dismissal or removal is set aside and the employee is reinstated in service, are provided in Rule 54 and Rule 54-A of Financial Handbook Volume 2 (Parts 2 to 4). Rule 54 and Rule 54-A of the Financial Handbook are reproduced below :-
Rule 54 "54. (1) When a Government servant who has been dismissed, removed or compulsorily 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 be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retired, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
[(4) In cases other than those covered by sub-rule (2) [including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution and no further inquiry is proposed to be held], the Government servant shall, subject to the provision of sub-rules (6) and (7) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.] (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
Note-The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of-
(a) extraordinary leave in excess of three months in the case of temporary Government servant; and
(b) leave of any kind in excess of five years in the case of permanent Government servant.
(6) The payment of allowances under sub-rule (2) of sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4), shall not be less than the subsistence allowance and other allowance admissible under Rule 53.
(8) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of his removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.
Note--Where the Government servant does not report for duty within reasonable time after the issue of the orders of the reinstatement after dismissal, removal or compulsory retirement, no pay and allowances will be paid to him for such period till he actually takes over charge."
(Emphasis added) Rule 54-A "54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.
[(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, and no further inquiry is proposed to be held, the Government servant shall subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and considering the representation, if any submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and date of judgment of the Court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 54.] (3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal, or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.
Note.--Where the Government servant does not report for duty within reasonable time after the issue of the orders of reinstatement after the dismissal, removal or compulsory retirement, no pay and allowances will be paid to him for such period till he actually takes over charge."
(Emphasis added)
25. A reading of Rules 54(2), 54(4), 54-A(2) and 54-A(3) shows that, in Uttar Pradesh, the principle 'no work-no pay' is not applicable while considering the entitlement of State Government employees for pay and allowances for the period they were not in service if the order dismissing, removing or compulsory retiring them from service is set aside either in appeal or review or by a court and the government servant is reinstated in service and no further inquiry is proposed to be held. Rules 54 and 54-A provide that if the government servant is fully exonerated of the charges or the order dismissing or removing him from service is set aside by a court on the merits of the case, the government servant shall be entitled to full pay and allowances that he would have been entitled had he not been removed or dismissed from service and the period of absence from service shall be treated as period spent on duty for all purposes. However, where the government servant is not exonerated on merits but is still reinstated in service or the order dismissing or removing a government servant is set aside either in appeal or review or by a court solely on the ground of non-compliance with the requirements of Article 311(1) and (2) of the Constitution and no further enquiry is proposed to be held, the government servant shall not be entitled to full pay and allowances but will be entitled to be paid such amount (not being the whole) of the pay and allowances as the competent authority may decide after giving the employee notice of the quantum proposed and after considering his representation but it shall not be less than the subsistence allowance and other allowances admissible under Rule 53. It is apparent that, on his reinstatement after the order of dismissal or removal is set aside, a government servant can not be denied his entire pay and allowances for the period he was out of service and which he would have been entitled to had he not been dismissed or removed from service. The amount which the government servant would be entitled to get would depend on whether the case of the government servant is covered by Rule 54(2) and Rule 54-A (3) or is covered by Rule 54 (4) and Rule 54-A (2)(i).
26. The only circumstance in which the government servant can be denied his pay and allowances or part of the same for the period he was out of service is specified in Rule 54 (8) and Rule 54 -A (5). The rules provide that any payment made to a government servant on his reinstatement shall be subject to adjustment of the amount earned by the employee through an employment during the period he was out of service and nothing shall be paid to the government servant where the emoluments payable to him are equal to or less than those earned by him during employment elsewhere.
27. In view of Regulation 84 of Regulations, 1981 the claim of the petitioner and the validity of the revisional order dated 31.8.2021 denying financial benefits to the petitioner for the period he was out of service is to be decided in accordance with Rules 54 and 54-A.
28. A reading of the order dated 31.8.2021 passed by the revisional authority shows that the revisional authority has accepted the defense of the petitioner and has fully exonerated the petitioner from the charges levelled against him in the charge-sheet. The revisional authority has held the petitioner responsible for letting nine passengers to travel in the bus without ticket, but as noted earlier the opinion and the findings of the revisional authority are without any evidence and perverse and also beyond the charges levelled against the petitioner in the charge-sheet. The order dated 31.8.2021 so far as it withholds four increment of the petitioner has been held to be liable to be quashed. The petitioner stands exonerated on merits as envisaged in Rule 54(2) and Rule 54-A(3). But as the order removing the petitioner from service has been set aside by the revisional authority vide its order dated 31.8.2021, the case of the petitioner is covered under Rule 54(2).
29. There is nothing on record to show that any delay in termination of disciplinary proceedings instituted against the petitioner can be attributed to the petitioner. Thus, the Proviso to Rule 54(2) is not applicable in the present case. There is no finding by any authority that during the period the petitioner was out of service, he was earning through any employment elsewhere. In the circumstances, under Rule 54(2) of Financial Handbook Volume 2 (Parts 2 to 4) read with Rule 84 of Regulations 1981 the petitioner was entitled to full pay and allowances for the period he was out of service as a consequence of the removal order dated 7.10.2024 and his absence from service had to be treated as a period spent on duty for all purposes.
30. For the aforesaid reasons, the order dated 31.8.2021 passed by the revisional authority denying financial benefits to the petitioner for the period he was not in service as a consequence of the removal order, is contrary to law and also without jurisdiction.
31. The judicial precedents cited by both sides regarding the claim of the petitioner for full pay and allowances for the period he was out of service are not being discussed as the case has been decided on the basis of statutory rules which were not in issue in the precedents cited by the counsel for the parties.
32. Consequently, the order dated 31.8.2021 passed by the Chairman of the Corporation, i.e., the revisional authority only so far as it withholds four increments of the petitioner and denies financial benefits to the petitioner for the period he was out of service as a consequence of the removal order is liable to be quashed and is hereby quashed.
33. The respondents are directed to pay to the petitioner his full pay/salary and other allowances for the period he was out of service as a consequence of the order dated 7.10.2014 and which he would have been entitled to get had he not been removed from service, alongwith 6% simple interest per annum. The aforesaid amount shall be paid to the petitioner within three months from today.
34. With the aforesaid observations and direction, the petition is allowed.
35. Let this order be communicated to the Chairman, Uttar Pradesh State Road Transport Corporation, Head Quarters Tehri Kothi, Lucknow and the Regional Manager, Uttar Pradesh State Road Transport Corporation, Azamgarh, Region Azamgarh by the Registrar (Compliance).
Order Date :- 8.7.2024 Anurag/-