Punjab-Haryana High Court
Sardara Ram vs Uhbvnl And Others on 5 October, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 23510 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 23510 of 2011
Date of Decision: October 5, 2013
Sardara Ram
.....Petitioner
Vs.
UHBVNL and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. K.L. Dhingra, Advocate
for the petitioner.
None for the respondents.
-.-
M.M.S. BEDI, J.
Petitioner has invoked the jurisdiction of this Court under Articles 226/ 227 of the Constitution of India, challenging the order dated May 20, 2009 (annexure P-7) by virtue of which his suspension period, on his reinstatement, has been regularized as leave of kind due.
Brief facts relevant for the adjudication of the present writ petition is that the petitioner retired as Lineman on July 31, 2010 from the office of Executive Engineer, OP Division, Uttar Haryana Bijli Vitran Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [2] Nigam, Shahbad (M), (hereinafter referred to as "UHBVNL") after rendering service of about 33 years. His pension and other retiral benefits were released to him on September 16, 2011 but the department with-held an amount of Rs.27684/- and arrears of increments and leave encashment, vide PPO dated September 16, 2011, annexure P-1. Petitioner claims that during service he was falsely implicated in a case of negligence of duty on the charge that while monitoring the job of replacement of 100 KVA T/F SOP to one Buta Singh of Village Surajgarh without taking PTW he also got open the switch of Surajgarh feeder whereas the said transformer falls on Naraingarh feeder resulting in fatal accident on account of his negligence. He was placed under suspension vide order No.34 dated April 23, 2004 (annexure P-2). Charge-sheet annexure P-3 dated June 29, 2004 was issued to him. He remained under suspension till April 11, 2005. A criminal case under Section 304 A IPC was also registered against him and charge-sheet was presented under Section 173 (2) Cr.P.C. The criminal trial was concluded on December 1, 2010. The petitioner was convicted. The petitioner preferred an appeal before the Appellate Court. The Additional Sessions Judge, Kurukshetra acquitted the petitioner observing that as the petitioner was not present at the place of accident as such he cannot be said to be negligent. Vide judgment dated 20.4.2011 annexure P-5, the conviction order against the petitioner was set aside. After acquittal, the petitioner on April 26, 2011 submitted a representation annexure P-6. In the said representation, the petitioner requested that the suspension period Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [3] which had been treated as leave period should be treated as duty period for all intents and purposes and all the service benefits should be granted of that period. The petitioner claims that as per the judicial precedent, in case of Mathura Dass Vs. General Manager Operation and others, CWP No. 4269 of 2010, decided on April 18, 2011, the petitioner should be held entitled to all the pay and allowances for the period he remained under suspension. The grievance of the petitioner is that even after deciding the period of suspension as leave of the kind due, further vide order dated February 6, 2009, four annual increments without cumulative effects were stopped causing double jeopardy to the petitioner. Petitioner claims that vide order dated March 31, 2011, the order dated February 6, 2009 has been cancelled but still recovery of an amount equal to four annual increments from pensionary benefits has been ordered without issuing any notice to the petitioner, due on his retirement on July 31, 2010. Petitioner claims that he is entitled to the emoluments for the period of suspension considering the said period as duty period and the leave so deducted may be counted for leave encashment of full 10 months as due under the Rules. He has also prayed that amount equal to four increments deducted from the pensionary benefits of the petitioner may be released to him with interest. Other financial benefits with-held on account of conviction be released by treating his period of suspension as duty period for all intents and purposes.
The claim of the petitioner has been contested by respondents claiming that a sum of Rs.27684/- has rightly been deducted on account of Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [4] stoppage of four annual increments as punishment inflicted upon the petitioner while deciding the charge-sheet dated May 29, 2004 under Rule 8 of the Punishment and Appeal Rules, 1980, vide order dated February 6, 2009. Copy of the order annexure R-1 dated February 6, 2009 has been placed on record which indicates that the petitioner had submitted a reply to the charge-sheet served upon him. After considering his comments, an inquiry report dated November 23, 2004 was prepared. Finding report of Inquiry Officer quite satisfactory, the competent authority decided to stop four annual increments without future effect. It has been highlighted in the reply that on account of negligence of the petitioner, a fatal accident had taken place and Surmukh Singh, ALM had died. The respondents had to pay compensation of Rs.5,38,780/- to the family/ legal heirs of the deceased. The Nigam had suffered a loss of said amount on account of negligence of the petitioner. Though the acquittal of the petitioner is an admitted fact but the respondents had to pay compensation of Rs.5,38,780/- to the legal heirs of the deceased as such the respondents claimed that they had a right to initiate disciplinary proceedings against the petitioner. Reliance has been placed on the instructions dated October 3, 1997 which were duly adopted by respondent Nigam vide Endst. No. Ch.236 dated December 12, 1997 providing that suspension period of all the employees who are involved in the criminal cases may be treated as leave of the kind due after acquittal by the Court on the ground that they were not on duty. A copy of the instructions has been placed on record as annexure R-3. It has been Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [5] clarified in the reply that the petitioner was charge-sheeted for his act of omission and commission and in the inquiry he was found guilty of the charges but the competent authority had imposed penalty of stoppage of four increments without future effect. Petitioner having been found guilty and imposed minor penalty and having been acquitted on granting him benefit of doubt, by the Addl. Sessions Judge vide order dated April 20, 2011 annexure P-5.
Mr.K.L. Dhingra, learned counsel for the petitioner has vehemently contended that the petitioner having been acquitted of the charge of negligence in criminal proceedings is entitled to the full salary for the period in which he remained under suspension and that the recovery of sum of Rs.27684/- from Death-cum-Retirement Gratuity is illegal. Counsel for the petitioner has contended that according to Rule 7.3 of Punjab Civil Services Rules Volume I Part I, the respondents could have taken a decision regarding the pay and allowances to be paid to the petitioner for his absence and whether or not, the said period should be treated as a period spent on duty but as per Rule 7.3 (2) of the Rules, where a Government servant has been exonerated, the Government should be given full pay and allowances by an order which is to be separately recorded. He has argued that as per judgment in Shri B.D. Gupta Vs. State of Haryana, Supreme Court Service Law Reporter Volume I, page 586, before passing an order under Rule 7.3, the authority concerned has to form an opinion as to whether the Government servant has fully been exonerated and also whether in the case Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [6] of suspension, order of suspension was wholly unjustified and that the incumbent is entitled to an opportunity of making a suitable representation in this regard. Learned counsel has also placed reliance on Mathura Dass case (supra) in which the petitioner was a Lineman. He was placed under suspension on being involved in a case of Prevention of Corruption Act. He was convicted by the trial Court and was terminated from service. He was acquitted by the Appellate Court. After having been acquitted, he requested for reinstatement and meantime he attained the age of superannuation. He made request for withdrawal of the termination order. He had been denied salary and allowances for the period of suspension as well as for the duration he remained terminated except subsistence allowance already paid. Following the judgment in Union of India Vs. K.V. Jankiraman etc., AIR 1991 SC 2010, it was observed by this Court that where the disciplinary or criminal proceedings are delayed at the instance of the employee or where the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. in such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. It was observed that life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [7] and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. It was observed in the said judgment that to deny the salary to an employee would not in all circumstances be illegal. Following the said principle in Mathura Dass case (supra), the petitioner was held to be entitled to the pay and allowances for the period under suspension.
Counsel for the petitioner has also placed reliance on Shiv Kumar Goyal Vs. State of Haryana and another, 2007 (2) RSJ 119, wherein the petitioner had been denied pay and emoluments in respect of his suspension period for about 6 years. The said suspension period was treated as non-duty period for all intents and purposes. As he was involved in a case of Prevention of Corruption Act his services were retrenched but subsequently he was acquitted by the Special Judge as charges could not b proved. He prayed for re-instatement but a charge-sheet was served upon him. He was granted hearing and after personal hearing it was held by the Managing Director of the employer Corporation that the period of suspension would be treated as non-duty period for all intents and purposes with a warning. The delinquent employee was held entitled to extra pay and allowances except the subsistence allowance admissible the rules. The period of suspension was treated as period spent on duty for all intents and purposes relying on the judgment of B.D. Gupta's case (supra) observing Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [8] that if an order adversely affects financially then even minor penalty has to be passed after objective assessment of all relevant facts and circumstances. Reliance was also placed on Hukam Singh Vs. State of Haryana and another, 2001 (2) SCT 696 in which the petitioner on being reinstated in service and having been denied the back wages was held entitled to full salary and allowances for the period of suspension as per Rule 7.3 and 7.5 of the Punjab Civil Service Rules, as applicable to Haryana State. Counsel for the petitioner has also relied on Shashi Kumar Vs. Uttri Haryana Bijli Vitran Nigam and another, 2005 (1) RSJ 718. In the said case, petitioner, a Civil Engineer was removed from service on the basis of conviction by Special Judge under Prevention of Corruption Act. On High Court acquitting him he was held entitled to re-instatement with full back wages. It was observed in the said judgment that the concept of honourable acquittal and full exoneration can have no place in the criminal trial. The moment, the criminal charge fails in a Court of law, person should be deemed to be acquitted of the blame.
It is important to observe here that in Shashi Kumar's case (supra), the Department had not opted to proceed against the delinquent employee under the Punishment and Appeal Rules and no punishment had been imposed upon the delinquent petitioner in that case. So far as Shiv Kumar's case (supra) is concerned, in that case the conduct of the delinquent official was made subject matter of the charge-sheet but this act was done much beyond the period of 4 years as submitted under Rule 2.2 Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [9]
(b) of the Punjab Civil Service Rules, Volume II as such inquiry into the misconduct was not held maintainable. In Hukam Chand's case (supra), the delinquent official was convicted uptill High Court but he was acquitted by the Supreme Court. His services were terminated on the basis of conviction in the criminal case. He was ordered to be reinstated and held entitled to fully salary and allowances for the period of suspension and dismissal. In B.D. Gupta's case (supra), though the petitioner was issued a show-cause notice and was censured in departmental proceedings but he was held entitled to the payment of full salary for the period of suspension on the ground that no opportunity of hearing had been given to him before with-holding the allowances beyond the subsistence allowance.
It is not an absolute principle of law laid down in abovesaid judgments that every Government official who is acquitted of the charges in a criminal case would automatically be entitled to the full salary for the period of suspension. The statutory Rules for releasing the pay and allowances to be paid to the Government servant for the period of his absence from duty do not permit that in every case full pay and allowances should be released. Rule 7.3 of the Punjab Civil Service Rules, Volume I Part I reads as follows:-
"7.3 (1) When a Government servant, who has been dismissed, removed, or suspended, is reinstated, the authority competent to order the reinstatement shall consider and make a specific order :- Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [10]
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; 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 servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe :
Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [11] on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose.
Provided that if the Government servant 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 servant."
In K.V. Jankiraman's case (supra) where no penalty was imposed by the departmental proceedings and the employee had been exonerated in the criminal case it was held that where the employee is not blame-worthy he should not be deprived of any benefit including the salary of promotional post. The normal rule of "no work no pay" is not applicable to such case where the employee although he is willing to work is kept away from work by the authorities for no fault of his. K.V. Jankiraman's case (supra) was an example where employee did not remain away from the work for his own wishes. It was held in above said case that there may be cases where the proceedings whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. in such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [12] deserves it. It was observed that it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. So it was observed that, to ignore the abovesaid circumstances when they exist and to lay down an inflexible rule that in every case when an employee is exonerated in disciplinary or criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. It was observed that to deny the salary to an employee would not in all circumstances be illegal. The Courts in following cases taking into consideration the circumstances of each case have formed opinion that an employee would not be entitled to the full back salary for the period of suspension:-
1. Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal, (1994) 1 SCC 541;
2. Sat Pal Dhawan Vs. State Bank of Patiala and others, LPA No. 930 of 2012 decided on April 1, 2013;
3. Ranchhodji Chaturji Thakore Vs. The Superintending Engineer, Gujarat Electricity Board, 1997 (1) SCT 824;
4. Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and others, AIR 1997 SC 434; Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [13]
5. Hukmi Chand Vs. Jhabau Cooperative Central Bank Ltd. Jhabua (MP), 1998 (79) FLR 743;
6. Mohinder Singh Vs. State of Punjab and others, CWP No. 17910 of 2011, decided on July 1, 2013;
7. Bala Ram Vs. Uttar Haryana Bijli Vitran Nigam and others, CWP No. 14645 of 2010, decided on February 29, 2012.
After examining the case of the petitioner in context to the abovesaid principle that in every case on exoneration in disciplinary or criminal proceedings, a delinquent official cannot be held entitled to full salary and that denial of salary to an employee would not in all circumstances be illegal, the petitioner in the present case was held guilty in departmental proceedings for being responsible for the death of an employee as he had opened the switch of a feeder of a transformer falling in Naraingarh feeder. The Department had to pay compensation of Rs.5,38,780/-. The petitioner had been given benefit of doubt by the Additional Sessions Judge, Kurukshetra while setting aside the order of conviction as is apparent from annexure P-5. In accordance with Rule 7.3 of the Punjab Civil Service Rules, Volume I a decision has been taken vide annexure P-7 while reinstating the petitioner vide order dated May 20, 2009 that suspension period of the petitioner would be regularized as leave of kind due. The petitioner had not objected to the said order till his retirement i.e. July 31, 2010. During the period of suspension he had not made any Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [14] request for withdrawal of his suspension period and had been duly paid the subsistence allowance as per the Rules. The order dated May 20, 2009 had been accepted by the petitioner uptill the order of acquittal dated April 20, 2011. The petitioner retired on July 31, 2010 on attaining the age of superannuation before the order of acquittal. Though an inquiry was held against him but he was punished with minor penalty after an opportunity of hearing by imposing penalty of with-holding of four increments without cumulative effect. The order of penalty was cancelled vide order annexure P-11 dated March 31, 2011, however it was ordered that recovery of amount equal to four annual increments may be effected from the pensionary benefits on account of his retirement on July 31, 2010. A careful perusal of the order dated March 31, 2011 annexure P-11 indicates that the order of minor penalty of stoppage of four annual increment without cumulative effect passed on 6.2.2009 had not been withdrawn but the mode of recovery of the amount equal to four annual increments was ordered to be made from the pensionary benefits as he had retired on July 31, 2010 before the order of stoppage of four increments could be implemented during the tenure of his service. It is not the case of the petitioner that he had filed any appeal against the order imposing minor penalty upon him. Once he has accepted the order of minor penalty and had not filed any disciplinary appeal, the said order become final in the departmental proceedings as such he cannot file a writ petition challenging the order of imposition of minor penalty passed in2009. The recovery of Rs.27684/-, thus cannot be held to be illegal. Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [15]
Again reverting back, to the right of the petitioner for the release of entire benefits for the suspension period, I am of the considered opinion that in the present case the petitioner has been acquitted by giving him the benefit of doubt. Otherwise, he has been punished by imposing minor penalty upon him by with-holding four annual increments without cumulative effects. In terms of money, the petitioner has been penalized with recovery of Rs.27684/-. It is clarified that such punishment of with- holding of increments being without cumulative effect, the said recovery will not have any effect upon the right of the petitioner to claim pension or revised pension. He would be entitled to all the remaining retiral benefits as per the Rules. In case any retiral benefit has been with-held except for recovery of Rs.27684/- on account of minor penalty, the petitioner will be entitled to move an application for the release of the retiral financial benefits. The judgments cited by counsel for the petitioner are not applicable to the facts of the present case as the petitioner has been penalized in departmental proceedings on the basis of conduct of being negligent resulting in the death of an employee for which the Department had to suffer a loss of Rs.5,38,780/- which was paid as compensation to the legal heirs of the deceased. The petitioner has not been exonerated honourably but has been granted the benefit of doubt. The standard of appreciation of evidence in criminal cases is different from the standard of appreciation of evidence in departmental proceedings. No doubt, the petitioner cannot be attributed delay in the departmental proceedings or the Gupta Sanjay 2013.10.29 12:19 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 23510 of 2011 [16] criminal trial but fact remains that suspension of the petitioner was not unwarranted in view of the nature of the charges against him in criminal proceedings and in the departmental proceedings. Chances of petitioner having tampered with the evidence in the criminal or departmental proceedings warranted that he should have been kept under suspension. Taking into consideration the circumstances, his suspension order had been revoked on April 11, 2005. He remained under suspension from April 23, 2004 to April 11,2005 during the pendency of the charge-sheet.
Taking into consideration the peculiar circumstances of the present case and in the public interest and discipline in the administration, the order annexure R-2 of treating the suspension period as leave of the kind due cannot be said to be illegal. The petition is, thus dismissed.
October 5, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.10.29 12:19
I attest to the accuracy and
integrity of this document
High Court Chandigarh