High Court · 2025

1. Heard Shri Rakesh Pandey, learned Senior Advocate assisted by Shri Sudhir Kumar Upadhyay, learned counsel for petitioner and learned Standing Counsel.

2. By means of this petition filed under Article 226 of the Constitution petitioner has challenged the order dated 28.04.2018 passed by the disciplinary authority reverting the petitioner to the minimum pay scale for three years and further denying payment of salary for the period running from 29.12.1999 to 03.05.2018.

3. Shri Pandey, learned Senior Advocate submits that petitioner is confining this writ petition for a relief in the nature of certiorari to quash the impugned order to the extent it denies payment of salary for the period petitioner was not permitted to discharge his duties by way of disciplinary action taken against him, on the principle of 'no work no pay'.

4. It is submitted by Shri Pandey that initially petitioner’s service came to be dismissed by the order passed by the disciplinary authority on 29.12.1999 which upon being challenged in appeal came to be affirmed under the order of the appellate authority dated 19.07.2000 and then further affirmed in revision by the order passed by the authority sitting in revision on 21.07.2001. It is contended that thereafter petitioner preferred a claim petition before the State Service Tribunal which set aside the three orders and remitted the matter to the stage of enquiry.

5. It is next submitted that after the tribunal allowed the claim petition on 22.06.2009, again the disciplinary authority proceeded to pass the order imposing the maximum punishment in the nature of dismissal from service under the order dated 14.09.2009 and which upon appeal being affirmed and revision was also affirmed. This time petitioner challenged this order before this Court by means of a writ petition being Writ A No. 40351 of 2011 and 2 WRIA No. 15611 of 2018 the Court having found the punishment imposed to be disproportionate to the guilt proved qua the charges framed, allowed the writ petition and quashed the order and remitted the matter to the disciplinary authority on quantum of punishment. As a sequel to this order the disciplinary authority reduced the punishment of dismissal from service to reversion to the stage of minimum of pay admissible to the post in question for a period of three years and further imposed punishment in the nature of withholding of salary on the principle of 'no work no pay'.

6. Shri Pandey, argued that the law is well settled to this effect that in the event a punishment is not prescribed under the relevant punishment and appeal rules, such a punishment cannot be imposed as the authority does not have the necessary authority to that count. He has placed reliance upon the judgment of Supreme Court in the case of Vijay Singh v. State of Uttar Pradesh and others (2012) 5 Supreme Court Cases 242 recent authority of this Court in the case of Jitendra Singh v. State of U.P. and others Writ A No. 20282 of 2023 decided on 07.12.2023.

7. Shri Pandey, learned Senior Advocate has further argued that the petitioner having not been placed under suspension ought not to have been denied duty and yet was denied to discharge duties in the office only for the reason that his services were initially dismissed and subsequently upon remand by the State Service Tribunal his services were again dismissed and it is upon further remand by this Court on the question of quantum of punishment that modified order come to be passed by the disciplinary authority finally reinstating him. In these circumstances therefore, he claims that if an employee was not under suspension and he come to be reinstated with a minor punishment only than what was imposed earlier, such an employee should be reinstated with pay because any other order can be only in the form of punishment may be by way of denial of salary.

8. On the contrary learned Standing Counsel has sought to defend the order for the reasons assigned therein and contended that it was a settled legal position that an employee if not discharging duties in the establishment, then he was not entitled to salary for the said period. However, he could not deny that the petitioner was never placed under suspension.

9. Rival submissions fall for consideration.

10. In order to appreciate the argument advanced by learned Senior Advocate appearing for the petitioner, it is relevant to also appreciate the punishment and appeal rules as are applicable. Here U.P. Police Officials of Subordinate Rank (Punishment and Appeal) Rules, 1991 would be attracted 3 WRIA No. 15611 of 2018 and the relevant provisions therein providing for penalties vide clause 4 are reproduced hereunder: "4. Punishment.- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely- (a) Major Penalties- (i) Dismissal from service. (ii) Removal from service. (iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale. [[(b) Minor Penalties- (i) With holding of promotion. (ii) Fine not exceeding one month's pay. (iii) Withholding of increment, including stoppage at an efficiency bar. (iv) Censure. (v) Recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders."

11. Upon bare reading of the sub-rule 1(a) and 1(b) of rule 4, the only logical conclusion to be drawn is that no punishment has been prescribed for withholding of salary on the principle 'No Work No Pay' except to withhold one month's pay by way of disciplinary action. Rule 7 of the rules vests power with the punishing authority namely the disciplinary authority to impose punishment prescribed under Rule 4. The relevant provisions as contained under Rule 7(1) and 7(4) relevant for the proposes of controversy, are reproduced hereunder: " 7. Power of Punishment- (1) The Government or any officer of police department not below the rank of the Deputy Inspector General may award any of the punishments mentioned in Rule 4 on any Police Officer. (2)..... (3)...... 4 WRIA No. 15611 of 2018 (4) Subject to the provisions contained in these rules all Assistant Superintendents of Police and Deputy Superintendents of Police who have completed two years of service as Assistant Superintendents of Police and Deputy Superintendents of Police as the case may be, may exercise power of Superintendent of Police except the powers to impose major punishment under Rule 4. (5)......"

12. Thus, the power vests with the disciplinary authority only to impose punishment prescribed under the relevant rule. Supreme Court in the case of Vijay Singh v. State of U.P (supra) has observed vide paragraph-21 thus: " Undoubtedly, in a civilised society governed by the Rule of Law, the punishment not prescribed under the statutory rules cannot be imposed. Principles enshrined in criminal jurisprudence to this effect is prescribed in the legal maxim null poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law ".

13. Applying the above principles on the touchstone of rule 4 and rule 7 of the Punishment and Appeal Rules, the punishment imposed upon under the order impugned to the extent of forfeiting the salary for the period petitioner was denied discharge of duties for the pending disciplinary proceedings, cannot be sustained in law. Once the order of termination stood set aside the natural consequence was reinstatement with pay. The matter was remitted by this Court under its order dated 02.02.2018 to the extent of quantum of punishment only. The relevant paragraph of the order dated 02.02.2018 is reproduced hereunder: "In such view of the matter, the quantum appears to be on higher side, where the incident had taken place accidentally. Accordingly, the impugned orders dated 14.9.2009, 16.7.2010 and

3.3.2011 are set aside. The matter is remanded back to the respondent no. 4-Commandant, 34th Battalion, P.A.C., Varanasi for reconsideration of quantum of punishment only. The decision shall be taken by the authority concerned preferably within a period of three months from the date of production of a certified copy of this order before him. "

14. Withholding salary for the period, if any employee has been under suspension, may be logical to the extent that employee failed to furnish any affidavit that he was not gainfully employed elsewhere during the said period but that too only where there is no attachment order passed for the employee to report on duty on a daily basis. Where an employee is removed/ dismissed/ terminated from employment and such order of removal/ dismissal/ termination is set aside or quashed being illegal or bad and matter is remanded, if employee is not reinstated for further order to be passed and then employer inflicts only minor punishment and reinstates such an 5 WRIA No. 15611 of 2018 employee, then such reinstatement is liable to be with pay unless rules applicable provide otherwise.

15. Learned Standing Counsel though sought to reiterate the pleadings raised in the counter affidavit but could not cite any judgment to the contrary, nor could place any other rules and/ or regulations or circular which may have entitled the disciplinary authority to impose such penalty as has come to be imposed under the order impugned.

16. In view of the above writ petition succeeds and is allowed. 17 The order dated 28.04.2018 passed by the disciplinary authority to the extent it denies salary to the petitioner for the period running 29.12.1999 to 03.05.2018 is hereby quashed. Petitioner is held entitled to salary for the period in question and appropriate order in this regard shall be passed by the disciplinary authority within a period of one month of the production of certified copy of this order failing which petitioner shall be entitled to interest @ 8 percent for the delayed period additionally. Order Date :- 11.8.2025 Nadeem NADEEM AHMAD NADEEM AHMAD NADEEM AHMAD High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Shri Rakesh Pandey, learned Senior Advocate assisted by Shri Sudhir Kumar Upadhyay, learned counsel for petitioner and learned Standing Counsel.

2. By means of this petition filed under Article 226 of the Constitution petitioner has challenged the order dated 28.04.2018 passed by the disciplinary authority reverting the petitioner to the minimum pay scale for three years and further denying payment of salary for the period running from 29.12.1999 to 03.05.2018.

3. Shri Pandey, learned Senior Advocate submits that petitioner is confining this writ petition for a relief in the nature of certiorari to quash the impugned order to the extent it denies payment of salary for the period petitioner was not permitted to discharge his duties by way of disciplinary action taken against him, on the principle of 'no work no pay'.

4. It is submitted by Shri Pandey that initially petitioner’s service came to be dismissed by the order passed by the disciplinary authority on 29.12.1999 which upon being challenged in appeal came to be affirmed under the order of the appellate authority dated 19.07.2000 and then further affirmed in revision by the order passed by the authority sitting in revision on 21.07.2001. It is contended that thereafter petitioner preferred a claim petition before the State Service Tribunal which set aside the three orders and remitted the matter to the stage of enquiry.

5. It is next submitted that after the tribunal allowed the claim petition on 22.06.2009, again the disciplinary authority proceeded to pass the order imposing the maximum punishment in the nature of dismissal from service under the order dated 14.09.2009 and which upon appeal being affirmed and revision was also affirmed. This time petitioner challenged this order before this Court by means of a writ petition being Writ A No. 40351 of 2011 and 2 WRIA No. 15611 of 2018 the Court having found the punishment imposed to be disproportionate to the guilt proved qua the charges framed, allowed the writ petition and quashed the order and remitted the matter to the disciplinary authority on quantum of punishment. As a sequel to this order the disciplinary authority reduced the punishment of dismissal from service to reversion to the stage of minimum of pay admissible to the post in question for a period of three years and further imposed punishment in the nature of withholding of salary on the principle of 'no work no pay'.

6. Shri Pandey, argued that the law is well settled to this effect that in the event a punishment is not prescribed under the relevant punishment and appeal rules, such a punishment cannot be imposed as the authority does not have the necessary authority to that count. He has placed reliance upon the judgment of Supreme Court in the case of Vijay Singh v. State of Uttar Pradesh and others (2012) 5 Supreme Court Cases 242 recent authority of this Court in the case of Jitendra Singh v. State of U.P. and others Writ A No. 20282 of 2023 decided on 07.12.2023.

7. Shri Pandey, learned Senior Advocate has further argued that the petitioner having not been placed under suspension ought not to have been denied duty and yet was denied to discharge duties in the office only for the reason that his services were initially dismissed and subsequently upon remand by the State Service Tribunal his services were again dismissed and it is upon further remand by this Court on the question of quantum of punishment that modified order come to be passed by the disciplinary authority finally reinstating him. In these circumstances therefore, he claims that if an employee was not under suspension and he come to be reinstated with a minor punishment only than what was imposed earlier, such an employee should be reinstated with pay because any other order can be only in the form of punishment may be by way of denial of salary.

8. On the contrary learned Standing Counsel has sought to defend the order for the reasons assigned therein and contended that it was a settled legal position that an employee if not discharging duties in the establishment, then he was not entitled to salary for the said period. However, he could not deny that the petitioner was never placed under suspension.

9. Rival submissions fall for consideration.

10. In order to appreciate the argument advanced by learned Senior Advocate appearing for the petitioner, it is relevant to also appreciate the punishment and appeal rules as are applicable. Here U.P. Police Officials of Subordinate Rank (Punishment and Appeal) Rules, 1991 would be attracted 3 WRIA No. 15611 of 2018 and the relevant provisions therein providing for penalties vide clause 4 are reproduced hereunder: "4. Punishment.- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely- (a) Major Penalties- (i) Dismissal from service. (ii) Removal from service. (iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale. [[(b) Minor Penalties- (i) With holding of promotion. (ii) Fine not exceeding one month's pay. (iii) Withholding of increment, including stoppage at an efficiency bar. (iv) Censure. (v) Recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders."

11. Upon bare reading of the sub-rule 1(a) and 1(b) of rule 4, the only logical conclusion to be drawn is that no punishment has been prescribed for withholding of salary on the principle 'No Work No Pay' except to withhold one month's pay by way of disciplinary action. Rule 7 of the rules vests power with the punishing authority namely the disciplinary authority to impose punishment prescribed under Rule 4. The relevant provisions as contained under Rule 7(1) and 7(4) relevant for the proposes of controversy, are reproduced hereunder: " 7. Power of Punishment- (1) The Government or any officer of police department not below the rank of the Deputy Inspector General may award any of the punishments mentioned in Rule 4 on any Police Officer. (2)..... (3)...... 4 WRIA No. 15611 of 2018 (4) Subject to the provisions contained in these rules all Assistant Superintendents of Police and Deputy Superintendents of Police who have completed two years of service as Assistant Superintendents of Police and Deputy Superintendents of Police as the case may be, may exercise power of Superintendent of Police except the powers to impose major punishment under Rule 4. (5)......"

12. Thus, the power vests with the disciplinary authority only to impose punishment prescribed under the relevant rule. Supreme Court in the case of Vijay Singh v. State of U.P (supra) has observed vide paragraph-21 thus: " Undoubtedly, in a civilised society governed by the Rule of Law, the punishment not prescribed under the statutory rules cannot be imposed. Principles enshrined in criminal jurisprudence to this effect is prescribed in the legal maxim null poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law ".

13. Applying the above principles on the touchstone of rule 4 and rule 7 of the Punishment and Appeal Rules, the punishment imposed upon under the order impugned to the extent of forfeiting the salary for the period petitioner was denied discharge of duties for the pending disciplinary proceedings, cannot be sustained in law. Once the order of termination stood set aside the natural consequence was reinstatement with pay. The matter was remitted by this Court under its order dated 02.02.2018 to the extent of quantum of punishment only. The relevant paragraph of the order dated 02.02.2018 is reproduced hereunder: "In such view of the matter, the quantum appears to be on higher side, where the incident had taken place accidentally. Accordingly, the impugned orders dated 14.9.2009, 16.7.2010 and

3.3.2011 are set aside. The matter is remanded back to the respondent no. 4-Commandant, 34th Battalion, P.A.C., Varanasi for reconsideration of quantum of punishment only. The decision shall be taken by the authority concerned preferably within a period of three months from the date of production of a certified copy of this order before him. "

14. Withholding salary for the period, if any employee has been under suspension, may be logical to the extent that employee failed to furnish any affidavit that he was not gainfully employed elsewhere during the said period but that too only where there is no attachment order passed for the employee to report on duty on a daily basis. Where an employee is removed/ dismissed/ terminated from employment and such order of removal/ dismissal/ termination is set aside or quashed being illegal or bad and matter is remanded, if employee is not reinstated for further order to be passed and then employer inflicts only minor punishment and reinstates such an 5 WRIA No. 15611 of 2018 employee, then such reinstatement is liable to be with pay unless rules applicable provide otherwise.

15. Learned Standing Counsel though sought to reiterate the pleadings raised in the counter affidavit but could not cite any judgment to the contrary, nor could place any other rules and/ or regulations or circular which may have entitled the disciplinary authority to impose such penalty as has come to be imposed under the order impugned.

16. In view of the above writ petition succeeds and is allowed. 17 The order dated 28.04.2018 passed by the disciplinary authority to the extent it denies salary to the petitioner for the period running 29.12.1999 to 03.05.2018 is hereby quashed. Petitioner is held entitled to salary for the period in question and appropriate order in this regard shall be passed by the disciplinary authority within a period of one month of the production of certified copy of this order failing which petitioner shall be entitled to interest @ 8 percent for the delayed period additionally. Order Date :- 11.8.2025 Nadeem NADEEM AHMAD NADEEM AHMAD NADEEM AHMAD High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad