Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri K.M. Misra, learned counsel for petitioner and learned Standing Counsel for respondent.
2. Impugned order of punishment is only of 'Censure' and since petitioner has retired, therefore, to that extent it has rendered infructuous. The next order which is under challenge is dated 20.02.2006 whereby the State Government has denied full salary to petitioner for the period he remained under suspension.
3. It is contended that under Fundamental Rule 54-B the competent authority shall take a decision about the amount to be paid to the Government Servant during the period of suspension (not less than the subsistence allowance already received by him) after giving show cause notice to him with respect to quantum proposed and after considering the representation, if any, made by him. But in the present case, no such notice was given to petitioner therefore, impugned order is in violation of principles of natural justice.
4. It is contended that denial of full salary during suspension is not one of the punishment provided in the Civil Services (Classification,Control and Appeal) Rules, 1930 as applicable in U.P. (hereinafter referred to as CCA Rules) which were the Rules applicable at the relevant time when the disciplinary proceedings were conducted against the petitioner and as such, full salary could have been denied only in accordance with the procedure prescribed in Fundamental Rule 54-B after following the procedure laid down therein. No show cause notice under Fundamental Rule 54-B was issued and the procedure laid down therein was not followed. Hence, it is contended that the order of punishment insofar as it denies full salary during the period of suspension by forfeiting the same imposing it as a punishment on the petitioner is wholly illegal and without jurisdiction.
5. This submission in our view has substance and deserves sustenance.
6. Fundamental Rule 54-B contemplates a show cause notice separately where disciplinary authority is of the view that the delinquent employee should not be paid full salary for the period he was under suspension. The Fundamental Rule 54-B, relevant extract, reads as under:-
"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowance to be paid to the Government servant or the period of suspension ending with reinstatement or the date of his reinstatement on superannuation as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule(8), to be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3), the Government servant shall subject to the provisions of sub-rules(8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. A perusal of Sub-rules (3) and (5) of Fundamental Rule 54-B shows that the competent authority shall take a decision about the amount to be paid to the Government Servant during the period of suspension (not less than the subsistence allowance already received by him) after giving notice to him with respect to quantum proposed and after considering the representation, if any, made by him. The scope of the aforesaid decision is entirely different. The question as to whether full salary should be paid to the Government Servant or not, is not a kind of punishment provided under CCA Rules, 1930 as applicable in Uttar Pradesh but it is other than the punishment enumerated therein. However, it cannot be doubted that when disciplinary authority thinks that entire salary should not be paid to Government Servant for the period of suspension, such an order entails into civil consequences to the delinquent employee. Therefore consistent with the principles of natural justice, Fundamental Rule 54-B, Sub Rules (3) and (5), contemplate issuance of a show cause notice and thereafter an order needs be passed by the competent authority after considering representation, if any, of the delinquent employee. It is thus evident that along with order of punishment no decision can be taken by a competent authority to deny full salary to delinquent employee unless procedure prescribed under Fundamental Rule 54-B is observed.
8. It is well settled, when law requires something to be done in a particular way, it has to be done in that manner alone and not otherwise. This Court considered Fundamental Rule 54-B in Akhilesh Kumar Awasthi Vs. State of U.P. and others, 2008(8) ADJ 243=2008(4) ESC 2679 and said as under:
"A bare perusal of the aforesaid provision makes it clear that before passing an order depriving the Government servant of full salary for the period of suspension or when he was out of employment, a show cause notice has to be issued to the concerned Government servant and only thereafter, the competent authority may pass appropriate order considering various aspects.
Admittedly, no such procedure has been followed, therefore, the impugned order, to the extent the petitioner has been denied arrears of salary for the period of suspension as well as during the period he was out of employment pursuant to the dismissal order, which was modified by the revisional order, is set aside. The writ petition is, accordingly, allowed partly. . . . . . . ."
9. Following Akhilesh Kumar Awasthi (Supra) this Court in Uma Shankar Purwar Vs. The Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow and others (Writ Petition No.9519 of 2007, decided on 14.9.2009) in para 7 held as under:
"7. Admittedly, no such procedure has been followed by the respondents in the case in hand and on the contrary treating as if withholding a salary for the period of suspension can also be imposed as a punishment under the rules though the same is not one of the punishment prescribed under the rules. As a result of departmental inquiry, the authority concerned is empowered to deny full salary during the period of suspension as a consequence of reinstatement but final order can be passed after deciding whether the period of suspension was wholly unjustified or not and then the quantum of amount."
10. Here also, admittedly, the procedure prescribed in Fundamental Rule 54-B has not been followed. Denial of full salary vide impugned order is without affording any opportunity to the petitioner by way of issuing a show cause notice. The impugned order in so far as it denies full salary during the period of suspension without any notice to the petitioner is thus illegal and liable to be set-aside.
11. In the result, the writ petition partly allowed. The impugned order dated 20.02.2006 imposing punishment is set aside only to the extent it denies full salary to the petitioner for the period of suspension. The order of the Tribunal shall stand modified to this extent. The matter is remanded to the respondent competent authority to take a fresh decision on this aspect of the matter in accordance with the procedure prescribed under Fundamental Rule 54-B and the observations made hereinabove.
12. No order as to costs.
Order Date :- 14.9.2016 Pravin