Kashmir Singh And Another vs State Of Punjab And Others
2023 Latest Caselaw 14906 P&H

                                                                                2023:PHHC:115216

                                IN THE HIGH COURT OF PUNJAB AND HARYANA
                                           AT CHANDIGARH

                                                           CWP-30664-2019 (O&M)
                                                           Date of Decision:- 2.9.2023


                Kashmir Singh and another                                            ...Petitioners

                                                     Versus

                State of Punjab and others                                         ...Respondents


                CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

                Present:          Mr. A.K.Walia, Advocate for the petitioner.

                                  Ms. Shivani Sharma, DAG, Punjab.

                                  *****


                GURVINDER SINGH GILL, J.

1. The petitioners seek issuance of a writ in the nature of Certiorari so as to

quash order dated 21.12.2017 (Annexure P-6) passed by respondent No. 1

whereby the intervening period between the dismissal and their

reinstatement i.e. period w.e.f. 9.11.2012 to 7.3.2016 has been treated as

non-duty period. The petitioners also seek quashing of order dated 6.7.2018

(Annexure P-8) vide which the said period has been treated as dies-non.

2. The petitioners were posted in District Jail, Nabha and during the course of

their duties, they had been deputed to take a convict namely Gurpal Singh,

Patwari to Civil Hospital, Nabha on the advice of jail doctor. However, said

convict Gurpal Singh gave a slip and escaped on the night intervening

28/29.1.2010 and on account of which FIR No. 11 dated 29.1.2010 under

Sections 223, 224 IPC, P.S. Kotwali Nabha came to be lodged. Eight

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officials including the Superintendent of jail, Deputy Superintendent, three

Assistant Superintendents and Warder were issued chargesheets for major

penalty. Departmental inquiry was conducted against all the said 8 officials.

The Inquiry Officer exonerated the Superintendent, Deputy Superintendent

and the Assistant Superintendents while holding both the petitioners and a

Warder Bara Singh guilty.

3. Petitioners were served with a show cause notice alongwith a inquiry report

and were dismissed from service vide order dated 5.11.2012 (Annexure P-1).

Upon an appeal filed by the petitioners, the Principal Secretary to

Government, set aside the order of dismissal vide order dated 12.1.2016

(Annexure P-3). The petitioners, thereafter, were allowed to join duties

w.e.f. 8.3.2016 while reinstating them w.e.f. 8.11.2012, as would be evident

from order dated 8.3.2016 (Annexure P-5). Thereafter, the respondents

passed order dated 21.12.2017 (Annexure P-6) wherein it was ordered that

the period of dismissal i.e. from 9.11.2012 to 7.3.2016 cannot be treated as

duty period.

4. The matter upon filing revision was again considered by the Additional

Chief Secretary and vide order dated 6.7.2018, the period w.e.f. 9.11.2012 to

7.3.2016 was ordered to be treated as dies-non.

5. The learned counsel for the petitioners submits that once the petitioners had

been acquitted of all the charges framed against them, it goes without saying

that they had been falsely implicated and that the petitioners are entitled to

be extended all the benefits while deeming that they had never been

suspended or dismissed from service. The learned counsel, in this regard,

has placed reliance upon a Division Bench judgment of this Court rendered

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in 2005(1) SLR 659 titled as Shashi Kumar versus Uttri Haryana Bijli

Vitran Nigam and another.

6. On the other hand, the learned State counsel submitted that the role of the

petitioners in escape of convict had been found to be duly established in the

departmental inquiry and that even if the petitioners have been acquitted in

criminal trial, the same cannot ipso facto lead to setting aside of the inquiry

report as the standard of proof required during criminal trial is much much

higher than what is required in the departmental proceedings. The learned

State counsel has submitted that it is well within the discretion of

respondents to take into account all these facts for the purpose of treating the

intervening period i.e. the period between dismissal and reinstatement as

dies-non. The learned State counsel, in order to hammer forth his

submissions, pressed into service a judgment of Hon'ble Apex Court

reported as (2019) 5 SCC 809 Raj Narain versus Union of India and others

and 2021(5) SLR 643 Kapoor Singh versus State of Punjab.

7. This Court has considered rival submissions addressed before this Court.

8. The petitioners had been dismissed from service on account of specific

allegations of negligence of duty. The petitioners, however, were acquitted

by the Sub-Divisional Judicial Magistrate, Nabha vide judgment dated

21.11.2013 by giving benefit of doubt. The relevant extract from the said

judgment dated 21.11.2013 (Annexure P-3) is reproduced herein-under :-

"In view of the evidence available on record and foregoing discussion, the accused Gurpal Singh is held guilty U/s 224 of IPC and is liable to be convicted for the same. However, accused CT Warder Kashmir Singh, 1167, CT Warder Makhan Singh, CT Warder Bara Singh are hereby acquitted for the charges framed U/s 223 IPC by giving

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benefit of doubt. Accused Gupral Singh be taken into custody. Let accused Gurpal Singh be heard on the quantum of sentence."

9. A perusal of the aforesaid extract clearly shows that the petitioners came to

be acquitted on account of benefit of doubt, having been extended to them.

There is no categoric findings to the effect that they had been falsely

implicated. It is not in each and every case that a person consequent of

acquittal in criminal case is entitled to be put back in the same position as he

was before his termination.

10. Rule 7.3 of the Punjab Civil Services Rules, Volume-I deals with the

'Allowances on Reinstatement', which reads as under :-

7.3(1) When a Government employee, who has been dismissed, removed, compulsory retired, or suspended, is reinstated, or would have been reinstated but for his retirement on superannuation the authority competent to order the reinstatement shall consider and make a specific order:-

(a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty, occasioned by suspension and/or dismissal, removal or compulsory retirement ending with his reinstatement on or the date of his retirement on superannuation as the case may be, and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government employee has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government employee shall be given the full pay and allowances, which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.

                            xxxx         xxxx          xxxx"




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11. A bare perusal of the above rule would show that the employer has been

given liberty to decide with regard to the payment of full salary during the

suspension period in case, the employee is reinstated in service. As per the

rule, the employee is not entitled for full allowances unless, he/she has been

fully exonerated of the allegations or the suspension period was found to be

wholly unjustified.

12. The issue as to whether, upon acquittal in a criminal case, when an employee

is reinstated, the said employee is entitled to full benefits or not was

considered by the Hon'ble Supreme Court of India in 1996(11) SCC 603

Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat

Electricity Board and another, wherein it was held that where conduct of an

employee resulted into his becoming disabled from rendering service either

on account of conviction or incarceration in jail, the back wages can rightly

be denied upon reinstatement. Hon'ble Supreme Court held that it is only

where action taken against an employee in a disciplinary proceedings is later

found to be unsustainable, that the employee can claim back wages. The

relevant paragraph 3 of the said is as under :-

"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from

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discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference."

13. The same question again came up for consideration before the Hon'ble

Supreme Court of India in 2019(5) SCC 809 - Raj Narain Vs. Union of India

and others, decided on 01.04.2019. Hon'ble Supreme Court of India once

again reiterated that it is only where the prosecution of the accused has been

held to be brought with the mala fides or with vexatious intent, due to which

the said accused was acquitted, that an employee is entitled for the back

wages, failing which, no benefit of back wages can be given upon

reinstatement. The relevant paragraph is as under :-

"6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The

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observation made in the judgment in Union of India and Others v. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious."

14. This Court in Kapoor Singh's case (supra) while relying upon Raj Narain's

case (supra) observed as under :-

"8. A bare perusal of the above reproduction would show that Hon'ble Supreme court of India has allowed the wages for the period when an employee remained out of service only in case the prosecution was held to be malicious.

9. No argument has been raised by the learned counsel for the petitioner in this regard. Further the petitioner was given benefit of doubt while acquitted and, therefore, keeping in view the law laid down by Hon'ble Supreme court of India in Raj Narain's case (supra), no benefit more than the suspension allowance can be allowed to the petitioner even after his acquittal."

15. In the present case, as already noticed above, the petitioners were acquitted

having been given the benefit of doubt. Although, the petitioners have been

reinstated but the period w.e.f. 9.11.2012 to 7.3.2016 has been treated as

dies-non. The petitioner cannot be extended other benefits as facts do not

suggest that it is a case of malicious prosecution.

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16. Having regard to the settled legal position and bearing in mind the totality of

the facts and that the findings as recorded in the departmental inquiry have

not been set aside, this Court does not find any infirmity in the impugned

orders dated 21.12.2017 (Annexure P-6) and 6.7.2018 (Annexure P-8).

17. Finding no merit in the petition and the same is hereby dismissed.

                2.9.2023                                         ( Gurvinder Singh Gill )
                kamal                                                     Judge
                                Whether speaking /reasoned   Yes / No
                                Whether Reportable           Yes / No




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