http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

                                                  NON-REPORTABLE

                IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO.2392 OF 2009                 (Arising out of SLP(C) No. 24225 of 2007)

Sharda Singh                                        ..........Appellant

                                   Versus

State of U.P. & Ors.                                ........Respondents

                                 ORDER

     Leave granted.

2)    Challenging the judgment and order passed by the High Court of

     Allahabad in Writ Petition No.4436 (S/S) of 2005 dated 05.04.2007,

     the appellant is before us in this appeal.

3)    The appellant was working as Collection Amin. While in service, he

     was served with a charge memo, inter-alia alleging, that, instead of

     depositing the amount by himself, he got it deposited through Peon.

     After holding an enquiry, he was visited with a minor penalty.

     Adverse entry in his confidential records by District Magistrte,

                                                                         1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

    Sitapur vide his order dated 31.10.2003. In the same order, it was

    informed to the appellant that payment of back wages during the

    period of suspension will be determined separately. Aggrieved by the

    order so passed, the appellant had preferred appeal before the

    appellate authority as provided in the Rules. The appellate authority

    vide his order dated 04.04.2005 has dismissed the appeal of the

    appellant.

4)   There is yet another aspect of the matter that requires to be noticed.

    The competent authority by order dated 13.09.2004 had rejected the

    claim of the appellant for back wages during the period of suspension

    till the date of reinstatement into service, only on the ground, that, the

    appellant had not performed any work during the period of

    suspension.    This order is also confirmed by the first appellate

    authority vide his order dated 04.04.2005.

5)   The appellant had called in question the order passed by the appellate

    authority dated 04.04.2005 and the orders passed by the District

    Magistrate, Sitapur dated 31.10.2003 and 13.09.2004 and further for a

    direction to the respondents to pay the full amount of salary for the

    period, when appellant was kept away from service by an order of

                                                                         2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

    suspension dated 22.10.1998, by filing a writ petition before the High

    Court.

6)   The High Court, vide its order dated 05.04.2007 has allowed the writ

    petition in part by quashing the order dated 04.04.2005 passed by

    Commissioner, Lucknow Division, Lucknow (Appellate authority)

    and has declined to quash the order dated 31.10.2003 and 13.09.2004

    passed by District Magistrate, Sitapur.

7)   We have heard learned counsel for the parties.

8)   The order passed by the appellate authority dated 04.04.2005 is a

    composite order.    In the said order, the appellate authority has

    considered the order passed by the District Magistrate dated

    31.10.2003 wherein he has imposed a minor penalty of making

    adverse entry in the service records and the order dated 13.09.2004,

    wherein the same authority has declined to order the payment of

    salary during the period when appellant was kept out of service and

    has confirmed the same vide his order dated 04.04.2005. In that view

    of the matter, the order passed by the District Magistrate has merged

    with the order passed by the appellate authority (See Commissioner

    of Wealth Tax Vs. Mrs. Kasturbai Walchand and Ors. 1989 Supp (1)

    SCC 640, Devi Singh Vs. Board of Revenue 1994 (1) SCC 215,

                                                                      3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

Chandi Prasad and Ors. Vs. Jagdish Prasad and Ors. (2004) 8 SCC

724). That order passed by the appellate authority is set aside by the

High Court. Therefore, the only inference that can be drawn is, that

the order passed by the District Magistrate, Sitapur dated 31.10.2003

and the order passed on 13.09.2004 is set aside by the High Court. In

our view, having set aside the order dated 04.04.2005, there is no

reason for the Court to decline to set aside the order passed by the

District Magistrate, Sitapur dated 31.10.2003 and the order dated

13.09.2004. When an appeal is filed before the appellate authority

against an order passed by the District Magistrate, the impugned

order merges in the order passed by the appellate authority, when the

appeal is disposed of on merits. When that order of the appellate

authority is set aside, the natural consequence is that the orders

passed by the District Magistrate also becomes inconsequential.

Therefore, the High Court was not right in refusing to set aside the

order passed by the District Magistrate dated 31.10.2003 and the

order dated 13.09.2004. At this stage, we must observe that the High

Court while deciding the writ petition has given importance only to

the order passed by the District Magistrate dated 31.10.2003 and

there is no discussion whatsoever with regard to the claim made by

                                                                 4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

    the appellant for arrears of salary for the period when he was kept out

    of service. Therefore, it may not be proper to held, the Court has also

    set aside the order passed by the District Magistrate dated 13.09.2004.

9)   The next question that falls for our consideration is, whether the

    appellant is entitled for full back wages/salary, during the period of

    suspension till the date of passing the order of reinstatement into

    service, when he was exonerated of the charges framed against him

    by the disciplinary authority. The competent authority has rejected

    the claim of the appellant on the ground that during the period of

    suspension, the appellant has not worked and therefore by applying

    the principle of ‘no work no pay’, has rejected the claim of the

    appellant for payment of arrears of salary. This view is confirmed by

    the appellate authority while passing the order dated 04.04.2005.

    This portion of the order was also questioned by the appellant before

    the High Court and also had made specific prayer to annul that

    portion of the order passed by the District Magistrate and confirmed

    by the appellate authority. The Court, as we have noticed earlier, has

    declined to entertain this specific prayer of the appellant and for

    doing so, the Court has not stated any reason whatsoever. It seems to

    us that the view taken by the High Court cannot be sustained. The

                                                                       5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

     Court while declining to set aside the order dated 13.09.2004 passed

     by the District Magistrate, Sitapur could have sustained the order

     passed by relying on the rules which governs the parties to the lis and

     in the alternative on the legal principles evolved by this Court. This

     appears to be not even attempted by the High Court. We say so for

     the reason, that, a Government servant exonerated of the charges

     framed against him cannot be deprived of any portion of his pay for

     the period of suspension. (see State of West Bengal Vs. Bata Krishna

     Burman AIR 1971 SC 156). Then again there could be a rule or

     regulation which may provide, that, during the period of suspension,

     an employee would be entitled only for suspension allowance, dehors

     the ultimate result of the enquiry proceedings. This grey area either

     should have been determined by the Court or should have asked the

     authorities to determine the claim with reference to the prevailing

     rules/regulations.

10)   In the aforesaid circumstances, we are unable to agree wit h the

     cryptic order passed by the High Court.            In the facts and

     circumstances of the case, what should have been done by the High

     Court was to decide the issue with reference to the rules/regulations,

     which governs the parties or direct the respondents to reconsider the

                                                                        6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

     issue of payment of salary during the period of suspension till the

     order dated 31.10.2003, in accordance with law and also in

     accordance with the provision of Financial Handbook which governs

     the parties.

11)   In the result, the appeal is allowed in part and the impugned order

     passed by the High Court in declining to set aside the order passed by

     the District Magistrate, Sitapur dated 31.10.2003 is set aside. In so

     far as the order passed by the District Magistrate dated 13.09.2004

     which has culminated in the order passed by the appellate authority is

     set aside and the matter is remanded back to the District Magistrate,

     Sitapur to consider the claim of the appellant for payment of back

     wages/salary for the period 22.10.1998 to 31.10.2003 in accordance

     with law and also the rules/regulations which governs the parties to

     the lis. In the circumstances of the case, there is no order as to costs.

     Ordered accordingly.

                                             .......................................J.                                                  [ TARUN CHATTERJEE ]

                                             .......................................J.                                               [ H.L. DATTU ]   New Delhi,

                                                                                   7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

April 13, 2009.

                 8