Allahabad High Court
Rajendra Kumar vs Union Of India And 4 Others on 3 January, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:896-DB Court No. - 32 Case :- SPECIAL APPEAL DEFECTIVE No. - 838 of 2023 Appellant :- Rajendra Kumar Respondent :- Union Of India And 4 Others Counsel for Appellant :- Prem Narayan Tiwari,Sanjiv Kumar Dwivedi Counsel for Respondent :- A.S.G.I.,Purnendu Kumar Singh Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Ref: Civil Misc. Delay Condonation Application)
1. Heard learned counsel for the appellant and learned counsel for the respondents.
2. Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned. Office is directed to allot a regular number to the present appeal.
3. Application stands allowed.
Ref: Appeal
4. This appeal is directed against the order dated 16.2.2023 rejecting the review application no.2 of 2019 as well as the main order passed by the writ court on 23.7.2013 in Writ A No.39380 of 2013.
5. Facts, in brief, are that the appellant was placed under suspension with effect from 20.2.2013 on a charge of outraging the modesty of a lady which amounted to an offence under Section 354 IPC. The Summary Force Court in the proceedings conducted on 18.3.2013 found the petitioner-appellant guilty of offence under Section 49 of the SSB Act, 2007 i.e. to use criminal force with intent to outrage the modesty of a female. The concerned court, accordingly, awarded major punishment vide order dated 18.3.2013 of reduction to the rank of constable. The order dated 18.3.2013 has neither been brought on record nor any challenge is made to it.
6. The subsequent order dated 28.5.2013 has been passed denying the salary for the period the petitioner-appellant remained under suspension and he was also transferred. A further direction was issued to re-fix the scale of pay and seniority of the appellant. Salary was denied for the period the petitioner-appellant remained under suspension i.e. 20.2.2013 to 4.4.2013. The order dated 28.5.2013 as well as the order dated 26.6.2013 came to be challenged before the learned Single Judge. By the subsequent order of 26.6.2013 the petitioner-appellant has been transferred to 55th Bn on administrative ground.
7. Learned Single Judge noticed that petitioner-appellant held transferable post and transfer being an exigency of service dismissed the writ petition. A special appeal no.1109 of 2013 was filed challenging the judgment dated 23.7.2013. This special appeal was dismissed on 6.8.2013 with liberty to the petitioner-appellant to seek review. It is thereafter that the review application has been rejected.
8. The sole ground pressed on behalf of the appellant is that the challenge laid by the petitioner to the order of punishment has not been dealt with.
9. The argument advanced is apparently misconceived, inasmuch as the order dated 28.5.2013 clearly shows that the petitioner was awarded punishment by the Summary Force Court on 18.3.2013 by reducing him to the rank of constable. This order has not been challenged. The argument that legality of punishment order has not been examined by the learned Single Judge cannot be accepted when, in fact, there was no challenge to the order of punishment dated 18.3.2013. The order impugned dated 28.5.2013 was in the nature of consequential order and the limited direction contained therein was to deny salary for the period the appellant remained under suspension as this period was treated as dies non. Once an order of major punishment had been passed the denial of regular salary for the period the petitioner remained under suspension cannot be said to be arbitrary or unreasonable. It is otherwise not in dispute that the petitioner-appellant held a transferable post and transfer being an exigency of service, learned Single Judge committed no error in refusing to interfere with it.
10. The special appeal lacks merit and is accordingly dismissed.
Order Date :- 3.1.2024 RA