Punjab-Haryana High Court
Surender Lal Puri vs State Of Haryana And Anr on 25 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:056594
CWP-19498-2017 (O&M) 2024:PHHC:056594 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(209) CWP-19498-2017 (O&M)
Date of Decision : April 25, 2024
Surender Lal Puri .. Petitioner
Versus
State of Haryana and another .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Gaurav Mohunta, Advocate, and
Mr. Nishant Arora, Advocate, for the petitioner.
Mr. Pankaj Middha, Addl. Advocate General, Haryana with
Ms. Ashok Khemka, Addl. Chief Secretary, Printing and
Stationary Department, Government of Haryana.
HARSIMRAN SINGH SETHI J. (ORAL)
CM-2043-CWP-2018
As prayed for, the application is allowed.
Annexures P-13 to P-15 are taken on record.
CWP-19498-2017
1. In the present writ petition, the challenge is to the order dated
11.04.2017 (Annexure P-2) by which, in an appeal filed by the petitioner,
the order dated 15.01.2016 dismissing the petitioner from service, has been
modified to that of compulsory retirement and recovery of Rs.7,54,350/-,
which according to the respondents, is the loss caused, has been ordered to
be recovered from the petitioner.
2. Further prayer of the petitioner is that the suspension period
starting from 23.03.1999 to 22.02.2001 be treated as duty period for all
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intents and purposes.
3. Certain facts needs to be mentioned for the correct appreciation
of the issue in hand.
4. The petitioner was appointed as Compositor in the Department
of Printing and Stationary, Government of Haryana on 30.07.1970. During
the period between 1970 to 1986, the petitioner was promoted to the post of
Computor and then to the post of Section Holder and then as General
Foreman and again to the post of Assistant Controller. While working on
the said post, the petitioner was suspended on 23.03.1999 in anticipation of
the initiation of the disciplinary proceedings. It may be noticed that two
FIRs were also registered against the petitioner being FIR No.61 dated
30.03.1999 and another FIR bearing No. 87 dated 06.05.1999.
5. Apart from the criminal proceedings initiated, three charge-
sheets were issued to the petitioner, one on 19.05.1999, second on
15.10.1999 and third on 22.11.1999. After the disciplinary proceedings
were initiated, another FIR was also registered against the petitioner on
07.04.2000 being FIR No.83 dated 07.04.2000. Keeping in view the service
record of the petitioner as he was facing three criminal proceedings and
three departmental proceedings, the Department decided to compulsory
retire the petitioner w.e.f. 22.02.2001 by not giving him extension in service
beyond the age of 55 years.
6. Despite the fact that the petitioner was compulsory retired, the
respondents continued with the disciplinary proceedings which were
pending against him at the time of compulsory retirement and in respect of
the charge-sheet dated 15.10.1999, punishment order was passed by the
competent authority on 15.07.2016 dismissing the petitioner from service.
7. The said order of dismissal was challenged by the petitioner by
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filing CWP No.2198 of 2016 wherein, the operation of the impugned
dismissal order dated 15.01.2016 was stayed.
8. In the meantime, as the order of dismissal dated 15.01.2016
was stayed, the competent authority withdrew the order dated 15.01.2016
and vide order dated 11.04.2017 held that as the petitioner has already been
compulsory retired w.e.f. 22.02.2001, the order of dismissal dated
15.01.2016 becomes infructuous and with regard to the act and omissions,
which had been proved during the pendency of the disciplinary proceedings,
the excess payment made by the petitioner to the tune of Rs.7,54,350/- was
ordered to be recovered from him. It was further mentioned in the order
dated 11.04.2017 that the suspension period from 23.03.1999 to 22.02.2001
will be treated "as leave of kind due" and he will be paid nothing more than
what has already received by him during the suspension period. The said
order dated 11.04.2017 is under challenge in the present writ petition.
9. The respondents have appeared and filed the reply. In the
reply, the respondents are defending the order dated 11.04.2017 (Annexure
P-2) to mean that the loss caused by the petitioner to the tune of
Rs.7,54,350/- is liable to be recovered from him and once, the petitioner has
been found guilty in the departmental proceedings, he cannot be paid
anything over and above the suspension allowance and the suspension
period has rightly been treated as "leave of kind due."
10. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
11. The question which arise in the present writ petition is that
whether or not, the recovery of Rs.7,54,350/- as imposed vide impugned
order dated 11.04.2017 (Annexure P-2) is valid or not keeping in view the
facts and circumstances of the case.
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12. It may be noticed that in the impugned order, the respondents
have mentioned that there was a loss caused to the State exchequer on
account of making extra payment to a particular firm to the tune of
Rs.7,54,350/-. Further, it has been mentioned in the impugned order that
the said amount has already been recovered by the State from the security
amount which the firm had deposited.
13. Now, the question which arise is whether once the State has
already recovered the loss caused from the security deposited by the firm
concerned, can again the same loss can be recovered from the petitioner or
not.
14. The State being a welfare State, cannot act in a manner so as to
gain money beyond entitlement. The loss caused by the petitioner can only
be recovered in case the money has not already been recovered by the State
from the concerned firm. In case, the money has already been recovered by
the State, the same cannot be recovered second time from the petitioner
otherwise it will amount to undue enrichment, which is not permissible
under law.
15. Learned counsel for the respondents conceded the fact that
Rs.7,54,350/- has already been recovered from the security deposit of the
firm, i.e. the amount of loss caused by the petitioner by paying excess
amount to the said firm.
16. Once the loss caused by the petitioner has already been
recovered, the same cannot be recovered from the petitioner once again
hence, the order dated 11.04.2017 (Annexure P-2) by which, the loss was
sought to be recovered again from the petitioner by making him liable, is
incorrect and cannot be done in the facts and circumstances of this case.
17. At this stage, learned counsel for the respondents submits that
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once, the disciplinary proceedings had started, State was within the power to
impose punishment of recovery as penalty even if, the excess amount has
already been recovered. No doubt, by way of punishment, an employee can
be punished by way of recovery so as to recover the loss caused but it is to
be seen as to whether recovery of amount is due to loss caused or penalty.
It may be noticed that only punishment stated under rules can be imposed
and nothing has been brought to the notice of this Court that any financial
penalty is envisaged under Rule to be imposed. In the absence of any
financial penalty envisaged under Rules, no financial penalty except for
recovery of loss caused can be imposed.
18. Even otherwise, a bare perusal of the order impugned would
show that Rs.7,54,350/- was only sought to be recovered keeping in view
the loss caused by the petitioner to the State exchequer. Once, the amount
is being recovered as a loss caused, even the authority concerned has not
imposed the same as a financial penalty hence, the argument of the learned
counsel for the respondents that the amount of Rs.7,54,350/- is being
recovered as penalty cannot be accepted as, the respondent-State cannot go
beyond the findings recorded in the impugned order or the Rules governing
the service.
19. Learned counsel for the petitioner submits that the petitioner is
entitled for the full salary for the period he remained under suspension.
20. It may be noticed that the petitioner is governed by the Haryana
Punishment and Appeals Rules, 1987. As per the said Punishment and
Appeals Rules, the suspension period is to be decided by the authorities
concerned after the conclusion of the disciplinary proceedings. It is only in
case, an employee has been found innocent, he is entitled for full salary of
the suspension period but where an employee has been found guilty of the
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allegations, the liberty/jurisdiction to decide as to how the suspension
period will be treated, vests with the State. In the present case, the
petitioner has been held guilty of the allegations alleged and as he has
already been compulsory retired by the time the decision was taken, no
other action was taken but once the petitioner has been held guilty in the
departmental proceedings, he cannot claim anything over and above the
suspension allowance hence, the order that the suspension period will only
be restricted to be treated as "leave of kind due" and not to pay any other
monetary benefit, is perfectly valid and legal and is in consonance with
1987 Rules.
21. Learned counsel for the petitioner has not been able to rebut
that an employee who has been found guilty of the allegation, is not entitled
for full salary for the period he/she remained under suspension.
22. Keeping in view the above, no infirmity is found in the
impugned order with regard to the non-payment of any further financial
benefits for the suspension period.
23. Keeping in view of the facts and circumstances of the present
case, the respondents will not recover the amount of Rs.7,54,350/- from the
dues which are yet to be paid to the petitioner and the remaining pensionary
benefits are liable to be released to the petitioner.
24. At this stage, learned counsel for the petitioner submits that
unfortunately, during the pendency of the present petition, the petitioner has
died and his all pensionary benefits have not been released even after he
was compulsory retired in the year 2001. Learned counsel for the petitioner
further submits that even though the petitioner has already retired in 2001
but as departmental proceedings with regard to the two charge-sheets which
were issued to him on 22.11.1999 and 19.05.1999 are still pending
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consideration, pensionary benefits of the petitioner have been withheld but,
once an employee dies, no proceedings can be allowed to continue against
the said deceased employee hence, once on the death of an employee, the
pending disciplinary proceedings abate, the disciplinary proceedings in
respect of the charge-sheet dated 19.05.1999 and 22.11.1999 also stands
abated hence, the respondents be directed to release the pensionary benefits
for which the family of the petitioner becomes entitled for keeping in view
the service rendered by the petitioner.
25. Learned counsel for the respondents, on the other hand, submits
that once, the departmental proceedings are pending and have not been
finalized and the enquiry report has already been received according to
which, the petitioner has been found guilty of the allegations, merely that
the petitioner has died before the passing of the actual order of punishment,
the right of the department cannot be taken away so as to recover the
alleged loss which has been proved in the departmental proceedings as
arrived at in the enquiry report submitted qua the pending disciplinary
proceedings.
26. It may be noticed that as per the settled principle of law, once
an employee facing the charge-sheet dies, all the proceedings pending
against him/her stands abated. It cannot be said that the Department has a
right to proceed against a dead employee and to pass an order against dead
employee. The said law has already been settled by this Court while
passing order in CWP No.21917 of 2016 titled as Shiksha Devi vs.
Haryana State Federation of Consumers Co-operative Wholesale Stores
Ltd, decided on 02.08.2022, wherein, it has been held that the disciplinary
proceedings pending against an employee abates after his death as no
master and servant relationship exist between the dead employee and the
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State. The relevant paragraph of the said judgment is as under:-
"11. Even otherwise, even if it is assumed for the sake of
argument that respondent had jurisdiction to issue the
chargesheets to the late husband of the petitioner even after his
retirement, then also the impugned order of recovery by way of
punishment can not be sustained for the reason that no
proceeding can continue against a dead employee. The
husband of the petitioner unfortunately died on 16.05.2015. It
is the conceded position that till the said date, none of the
chargesheets had attained finality so as to give jurisdiction to
the respondent to pass any orders on the chargesheet. After the
death of employee, disciplinary proceedings abate, hence, as
the husband of the petitioner had already passed away,
proceeding initiated by the respondents in respect of three
chargesheets could not have continued any further. Keeping in
view the said factual position, the recovery of Rs.6,44,890/-
which has been imposed upon late husband of the petitioner is
held to be bad and accordingly quashed."
27. Learned counsel for the respondents very fairly submits that
though the departmental proceedings are pending and even the enquiry
report has also been received but no formal order has been passed to
conclude the said disciplinary proceedings by passing any final order till the
date the petitioner was alive.
28. That being so, once no final order has been passed on those
disciplinary proceedings which were pending against the petitioner upto to
his death and as per the settled principle of law settled in Shiksha Devi's
case (supra), the disciplinary proceedings abate upon the death of an
employee, the department cannot pass any final order on those proceedings
so as to cause prejudice a dead man, which is impermissible under law and
those departmental proceedings have abated.
29. Learned counsel for the respondents concedes that apart from
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those departmental proceedings, there is no other impediment in the release
of the pensionary benefits of the petitioner.
30. In view of the above, as there is no impediment in the release of
the pensionary benefits admissible to the petitioner after his compulsory
retirement, the respondents are directed to release the same forthwith.
31. At this stage, learned counsel for the petitioner submits that the
petitioner was compulsory retired in the year 2001 and upto the year 2024,
the payment for which the petitioner was entitled for, have been withheld on
one pretext or the other, hence once, the withholding of any amount
belonging to the petitioner has been held to be bad, the amount which the
respondents are liable to release after this order, should also carry interest so
as to compensate the petitioner.
32. Learned counsel for the respondents objects to the same and
submits that as the claim of the petitioner is being adjudicated now, and his
entitlement is being established by this order, no interest should be paid to
the petitioner.
33. It may be noticed that a Coordinate Bench of this Court in of
J.S. Cheema Vs. State of Haryana, 2014(13) RCR (Civil) 355, has held that
where an amount belonging to an employee, has been retained and used by
the respondents, upon the release of the said amount, on a later date, the
interest has to be given. The relevant paragraph of J.S. Cheema's case
(supra) is as under: -
"The jurisprudential basis for grant of interest is the fact
that one person's money has been used by somebody else. It is
in that sense rent for the usage of money. If the user is
compounded by any negligence on the part of the person with
whom the money is lying it may result in higher rate because
then it can also include the component of damages (in the form
of interest). In the circumstances, even if there is no negligence
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on the part of the State it cannot be denied that money which
rightly belonged to the petitioner was in the custody of the
State and was being used by it."
34. In the present case, a sum of Rs.7,54,350/- which has been
withheld by the respondents, which action of the respondents has already
been held to be bad and has been set aside, in order to compensate the
petitioner, the interest @ 6% per annum is liable to be paid on all the retiral
benefits except gratuity from the date the amount became due to the
petitioner upon retirement.
35. As the disciplinary proceedings were pending and those
disciplinary proceedings only abated on the death and during the pendency
of the disciplinary proceedings, the Department was within its jurisdiction
to withhold the gratuity, the interest @ 6% per annum on the gratuity will
only be admissible from the date of the death of the petitioner till the actual
payment of the same.
36. Keeping in view the observations made hereinbefore, the
present writ petition is disposed of in above terms.
April 25, 2024 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
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