- (1.) THE petitioner, by means of present writ petition under Article 226 of the Constitution of India, has challenged the order passed by respondent No. 1 dated 30th July, 2002, whereby the respondent No. 1 has passed an order directing that during the period of suspension, the petitioner shall not be entitled to any payment of salary, except what has already been paid to him, as he has been awarded punishment of warning.
(2.) WE have heard learned Counsel appearing on behalf of the petitioner and learned Standing Counsel for respondent No. 1 as well as Sri C. K. Parekh, learned Counsel for respondents 2 to 4. The petitioner, who is a member of the U. P. Palika Centralised Engineering Services was subjected to a disciplinary proceedings by its employer, which has ultimately resulted into punishment of warning and thereafter disciplinary enquiry has come to an end. During the pendency of the disciplinary enquiry the petitioner has been placed under suspension on 20th November, 1999 and continued under suspension till 9th January, 2001 when the order dated 8th January, 2001 imposing punishment has been passed by the Special Secretary, U. P. Government. After the petitioner has been re-instated, another order has been passed by the respondent dated 30th July, 2002, whereby it has been held that the petitioner shall not be entitled for any payment, except what has already been paid, namely, the subsistence allowance for the period under which the petitioner was under suspension. It is this order, which has been challenged by the petitioner by means of present writ petition.
(3.) IT is not disputed that the provisions of U. P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as '1999 Rules') are applicable to the petitioner. Under Rule 3 of the aforesaid 1999 Rules, which is reproduced below, the punishment that can be imposed on a Government employee has been enumerated : "3. Penalties.- The following penalties may for good and sufficient reason and so hereinafter provided, be imposed upon the Government servants : Minor Penalties : (i) Censure; (ii) Withholding of increments for a specified period; (iii) Stoppage at an efficiency bar; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach or orders; (v) Fine in case of persons holding Group 'd' posts : Provided that the amount of such fine shall in no case exceed twenty five per cent of the months pay in which the fine is imposed. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time scale or to a lower state in a time scale; (iii) Removal from the service which does not disqualify from future employment; Dismissal from the service which disqualifies from future employment. Explanation.- The following shall not amount to penalty within the meaning of this rule, namely : (i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation; (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation. " We have gone through the 1999 Rules and a close scrutiny thereof makes it clear that punishment of warning awarded to the petitioner has not been included in the list of penalty/punishment that can be imposed on Government employee, namely, the petitioner. In these circumstances, by the order dated 8th January, 2001 the petitioner was issued warning, which amounts to exoneration of the petitioner because the warning has not been specified as one of the punishment in the aforesaid 1999 Rules. In view of the aforesaid legal position, the order dated 30th July, 2002 withholding pay etc. of the petitioner during the period of suspension cannot be said to be inconfirmity of law, namely Fundamental Rule 54-B (3), which is reproduced below : "54-B. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 : Provided that where such authority is of the opinion that the termination of the proceeding 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 be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. ";