Jaswinder Singh@Mika vs State Of Punjab Etc
2024 Latest Caselaw 5605 P&H

Punjab-Haryana High Court

Jaswinder Singh@Mika vs State Of Punjab Etc on 13 March, 2024

                                                          Neutral Citation No:=2024:PHHC:037233




CWP-9047-2016                                  2024:PHHC:037233
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            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

224                                                   CWP-9047-2016
                                                      Date of decision :13.03.2024

Jaswinder Singh @ Mika                                              ...Petitioner

                                         Versus

State of Punjab and others                                          ...Respondents

CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY

Present:     Ms. Jasneet Kaur and
             Ms. Himani Makkar, Advocates for the petitioner.

             Mr. Swapan Shorey, D.A.G. Punjab
                          *****
AMAN CHAUDHARY, J.

1. The prayer in the present Civil Writ Petition filed under Articles

226/227 of the Constitution of India in the nature of certiorari, is for setting aside

order dated 29.12.2014, Annexure P-7 and order dated 21.05.2015, Annexure P-8

passed by respondent No. 2, vide which order dated 29.12.2014 was upheld.

2. Learned counsel would submit that the petitioner has been, in

violation of Rule 7.3 of Punjab Civil Services Rules, Vol. I, Part I, denied salary

for the period he remained under suspension w.e.f 14.05.1999 to 19.05.2014, on

account of FIR No.13, dated 03.05.1995 having been registered against him,

wherefrom, subsequently, he was acquitted, vide judgment dated 02.07.2012,

however the said period was counted for seniority and pensionary benefits. In the

criminal case, no overt act was attributed to the petitioner, while the allegations of

inflicting injuries on the nephew of the complainant were leveled against his

father. During the pendency of the said case, petitioner was granted compassionate

appointment as a Clerk on 02.09.1998, as his father, who was working as School

Teacher with the respondent-Department, had passed away. Neither any

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departmental enquiry was initiated against him nor were his services terminated.

To buttress her submissions, reliance is placed on the judgment of a Bench of

three Judges of Hon'ble the Supreme Court in Brahma Chandra Gupta vs.

Union of India, 1984 (2) SCC 433.

3. Conversely, the learned State counsel contends that the petitioner was

not entitled to the salary, as he remained suspended on account of a criminal case

having been registered against him. Thus, the impugned orders are well reasoned.

He relies on Ranchhodji Chaturji Thakore vs. Gujarat Electricity Board,

(1996) 11 SCC 603 and Dilpreet Singh vs. State of Punjab and others, passed in

CWP-15095-2008, decided on 27.08.2008.

4. Heard learned counsel on either side.

5. Apropos the prayer for grant of full salary during suspension period,

it would be apposite to refer to Rule 7.3 ibid, which reads thus:

"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 to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.

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(3) In other cases, the Government employee shall be given such proportion of such pay and allowances as such competent authority may prescribe:

Provided that the payment of allowances under sub-rule (2) or sub- rule (3) shall be subject to all other conditions under which such allowances are admissible. Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under rule 7.2.

(4) In a case falling under sub-rule (2) the period of absence from duty shall not be treated as a period spent on duty for all purposes.

(5) In a case falling under sub-rule (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government employee so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government employee."

6. It would be worthwhile to make a reference to the judgment rendered

by Hon'ble the Supreme Court in Civil Appeal No.4114 of 2006 Uttri Haryana

Bijli Vitran Nigam and another vs. Shashi Kumar decided on 26.09.2013,

wherein Rule 7.3 ibid was subject matter of consideration, observed and held that,

"On a plain reading of the above-reproduced rule, it becomes clear that when a

Government employee who has been dismissed, removed, compulsorily retired or

suspended is reinstated or would have been reinstated but for his retirement on

superannuation, the authority competent to order reinstatement has to consider and

make a specific order regarding 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 and also whether or not the said

period shall be treated as spent on duty. If the authority comes to the conclusion

that the employee has been fully exonerated or his suspension was wholly

unjustified, then it has to pass an order for payment of full pay and allowances. In

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other case, an order for payment of proportionate pay and allowances has to be

passed. In the first case, the period of absence has to be treated as a period spent

on duty. In the second case, the competent authority has to pass appropriate order

whether the intervening period should be treated as a period spent on duty for any

specified purpose. To put it differently, except in the cases of complete

exoneration the competent authority has the discretion to pass appropriate order

for payment of pay and allowances to the employee during the period of his

absence and also the treatment to be meted out to that period."

7. In CWP-16192-2010, titled as Sukhchain Singh vs. State of

Punjab, vide order dated 18.03.2013, wherein the petitioner, was dismissed from

service on the ground of conviction under Section 406 and 498-A IPC and after he

was acquitted in revision and no departmental enquiry was initiated, was held

entitled by this Court to grant of pay and allowances by referring to Rule 7.3(2)

ibid, for the period he had remained out of service especially when the same was

treated as period spent on duty for all purposes.

8. In the case of Ex-Sub Inspector Ram Kishore vs. State of Haryana

and another, 2020 (1) SCT 828, the petitioner, who was charged for offences

under Sections 119/213/342/368/370/120B IPC and 7/8/49/88 of the PC Act, was

dismissed from service on account thereof, however was acquitted by the trial

Court and no departmental enquiry had been conducted. He was held entitled by

this Court to the salary for the period he remained out of service, by relying on

Sub Rule 2 of Rule 7.3 of the Punjab Civil Services Rules, while observing that

the decision of the competent authority was nothing but a contradiction, as on the

one hand, he was reinstated and on the other, he was deprived of his salary.

9. In Brahma Chandra Gupta (supra), it was ordered that salary for

the suspension period of the appellant, who was acquitted of the criminal charges

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against him under Sections 19(F) of the Indian Arms Act and 5 of the Indian

Explosives Substances Act, be released to him at an interest of 9% per annum and

held that, "...The appellant was a permanent UDC who has already retired on

superannuation and must receive a measure of socio-economic justice. Keeping in

view the facts of the case that the appellant was never hauled up for departmental

enquiry, that he was prosecuted and has been ultimately acquitted, and on being

acquitted he was reinstated and was paid full salary for the period commencing

from his acquittal, and further that even for the period in question the concerned

authority has not held that the suspension was wholly justified because three-

fourth of the salary is ordered to be paid, we are of the opinion that the approach

of the trial court was correct and unassailable. The learned Trial Judge on

appreciation of facts found that this is a case in which full amount of salary should

have been paid to the appellant on his reinstatement for the entire period. We

accept that as the correct approach. We accordingly allow this appeal, set aside the

judgment of first appellate court as well of the High Court and restore the one of

trial court with this modification that the amount decreed shall be paid with 9 per

cent interest p.a. from the date of suit till realisation with costs throughout."

10. Facts that emerge herein, are that the Department placed the

petitioner under suspension and upon he having received acquittal, the intervening

period was treated for all intents and purposes, including seniority and pensionary

benefits, but for salary, even though, it is evincible from Rule 7.3(2) ibid, that

upon reinstatement after acquittal, an employee, who had been dismissed,

removed, compulsorily retired, or suspended from services due to a conviction,

would be entitled to pay and allowances. The impugned order however offers no

reason, much less sufficient, to deny the said benefit to the petitioner, thus, making

it unsustainable in light of the law as enunciated above.

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11. The judgments cited by the learned State counsel, being

distinguishable on facts, are not applicable to the instant case.

12. On a cumulative consideration and as a fall out thereof, the present

writ petition is allowed. Sequentially, the orders dated 29.12.2014 and 21.05.2015

are hereby set aside. The petitioner is held entitled to salary and consequential

benefits for the period he remained under suspension, along with interest @ 6%

per annum. Needful be done within a period of two months, from the date when a

webprint of this judgment is received.

                                                    (AMAN CHAUDHARY)
                                                        JUDGE
13.03.2024
G Arora

             Whether speaking/reasoned         :-     Yes / No
             Whether reportable                :-     Yes / No




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