Punjab-Haryana High Court
Raghbir Singh vs State Of Punjab And Others on 12 January, 2021
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
CWP-9551-2020 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-9551-2020
Date of decision: - 12.01.2021
Raghbir Singh
....Petitioner
Versus
State of Punjab and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present:- Mr. Ranjivan Singh, Advocate;
Ms. Kanika Toor, Advocate and
Ms. Ritu Raag, Advocate,
for the petitioner.
Mr. Pankaj Gupta, Additional Advocate General, Punjab.
( Through Video Conferencing )
****
HARSIMRAN SINGH SETHI, J. (ORAL)
The grievance of the petitioner in the present writ petition is that though he has been reinstated in service by the respondents, no benefit for the period when he remained out of service has been paid to him and his request for the refixation of his salary by granting him increments for the period he remained out of service along with arrears by treating the said period as duty period has been wrongly rejected by the respondents vide impugned order dated 19.11.2019 (Annexure P-9).
The factual matrix, which has led to the filing of the present 1 of 19 ::: Downloaded on - 07-02-2021 15:24:21 ::: CWP-9551-2020 -2- writ petition, is as under: -
"Petitioner was initially appointed as a Constable in the Punjab Police on 22.04.1994 and was allocated District SAS Nagar, Mohali. In the year 2011, the petitioner was promoted as a Head Constable (PR). On 17.12.2012, the petitioner was on duty in a PCR along with one Punjab Home Guard official when an FIR was registered against him at Police Station Phase-11 being FIR No.115 dated 17.12.2012 under Section 384 of the IPC and Section 7 & 13(1) of the Prevention of Corruption Act, 1988. Thereafter, without waiting for any process of investigation to be undertaken by the authorities in respect of allegations alleged in the FIR No.115 dated 17.12.2012, the Senior Superintendent of Police, SAS Nagar, Mohali, immediately dismissed the petitioner on the very same day i.e. 17.12.2012 by invoking the powers under Article 311(2)(b) of the Constitution of India read with Clause 16.1 of the Punjab Police Rules and Section 7 of the Punjab Police Act, 1861.
Later on, the police after investigation, filed an untraced report in FIR No.115 dated 17.12.2012, as no evidence had come against the petitioner with regard to the allegations alleged in the FIR. After going through the investigation done by the police, the said untraced report was accepted by the learned Judge, Special Court, SAS Nagar, Mohali on 12.09.2017. On the acceptance of the untraced report, petitioner stood exonerated of the allegations alleged against him in the FIR.
Immediately upon being exonerated from the allegations as alleged in the FIR No.115 dated 17.12.2012, which were the basis of his
2 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -3- dismissal from service, the petitioner filed an appeal before the Director General of Police, Punjab, for setting aside the order dated 17.12.2012, dismissing him from service and for his reinstatement in service with consequential benefits. Said request remained pending for a long period, ultimately the appeal/representation filed by the petitioner was accepted by the Director General of Police and an order was issued on 12.10.2018 (Annexure P-4) reinstating the petitioner in service. The order of reinstatement carried a condition that a departmental enquiry into the allegations which were part of the FIR No.115 dated 17.12.2012 will be conducted. Keeping in view the order passed by the Director General of Police dated 12.10.2018 (P-4), the competent authority i.e. SSP, SAS Nagar, Mohali issued an order reinstating the petitioner on 15.10.2018 (Annexure P-5) and also ordered initiation of the departmental proceedings against the petitioner. Keeping in view the orders passed by the authorities concerned, petitioner was reinstated in service and started discharging his duties. It will be relevant to note here that at the time when the petitioner was dismissed from service in the year 2012, his basic pay was `12,050/- with grade pay of `3200/- and the same pay was given to him upon his reinstatement in October, 2018.
The charges alleged in the charge-sheet, which was issued to the petitioner upon his reinstatement on 20.10.2018, were enquired into by the respondents by appointing an inquiry officer and after holding the due inquiry, inquiry report, which was submitted by the inquiry officer, exonerated the petitioner from the charges and as per the inquiry report, none of the charges alleged against the petitioner were proved. Agreeing 3 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -4- with the said report, the disciplinary authorities i.e. SSP, SAS Nagar, Mohali dropped the said charge-sheet on 18.02.2019.
After being exonerated in the departmental proceedings, petitioner filed a representation to the Senior Superintendent of Police, Mohali, dated 14.06.2019 (Annexure P-8) seeking the benefits for the period he remained out of service i.e. refixation of his salary after the grant of increments along with arrears for the period petitioner remained out of service. In nutshell, the claim of the petitioner is for the grant of full salary for the period he remained out of service along with arrears by treating the period for which petitioner remained out of service as duty period. The said representation was forwarded by SSP, SAS Nagar, Mohali to the office of Director General of Police, Punjab, but the said claim of the petitioner was declined vide impugned order dated 19.11.2019 (Annexure P-9).
Not only this, even the promotion to the Local Rank of Assistant Sub-Inspector, which was granted to the juniors of the petitioner, was not extended to the petitioner due to the fact that no benefit of the intervening period i.e. 17.12.2012 till 15.10.2018 was extended to the petitioner."
In the present writ petition, the challenge is to the order dated 19.11.2019 (Annexure P-9) by which the petitioner has been declined the benefits of increments and arrears of salary for the period he remained out of service i.e. 17.12.2012 till 15.10.2018 by treating the said period as period spent on duty. The prayer of the petitioner is also for the issuance 4 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -5- of a direction to the respondents to grant the petitioner a Local Rank of the Assistant Sub-Inspector, as granted to the juniors of the petitioner.
Upon notice of motion, respondents have filed the reply defending their order dated 19.11.2019 (P-9) declining the petitioner benefits of increments during the period he remained out of service as well as the arrears and also non-grant of Local Rank to the post of Assistant Sub-Inspector.
The respondents have admitted in their reply that nothing incriminating was found against the petitioner in respect of the allegations alleged in the FIR No.115 dated 17.12.2012, due to which, the untraced report was submitted after the investigation, which report already stood accepted by the Competent Court of Law exonerating the petitioner of the allegations alleged against him in the FIR. It has been further admitted by the respondents that after reinstatement of the petitioner, a departmental enquiry was initiated against him wherein also he was found innocent and the charge-sheet issued against him was ultimately dropped. Learned counsel appearing on behalf of the respondents-State still submits that on the basis of principle of 'no work no pay, the petitioner is not entitled for any benefit including the arrears of salary for the period he remained out of service from 17.12.2012 till 15.10.2018.
I have heard learned counsel for the parties and have gone through the record with their valuable assistance.
The above narration of facts go to show that those are not in dispute. It is not disputed that neither in the investigation conducted in respect of the FIR No.115 dated 17.12.2012 any evidence came against 5 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -6- the petitioner qua the allegations alleged therein, nor any act of misconduct was proved against the petitioner when the departmental proceedings were initiated by the respondents after his reinstatement in October, 2018. That being so, once the allegations of misconduct have not been proved against the petitioner, declining the benefits for the period when he remained out of service on the ground 'no work no pay', will be a great prejudice to the petitioner, who has been declared innocent in all the proceedings conducted against him. Non-grant of the benefits by the respondents to the petitioner in the facts and circumstances of the present case will be putting premium on the illegality committed by the respondents and that too at the cost of the petitioner, against whom not even an iota of evidence has been found in the proceedings conducted.
Learned counsel for the respondents-State argues that though the petitioner has been exonerated of the criminal as well as departmental proceedings, but the respondent-department is within its jurisdiction to decline the request of the petitioner for the grant of service benefits for the period when the criminal proceedings remained pending against him. Learned State counsel relies upon the judgment of the Hon'ble Supreme Court of India in 'Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board', 1996(11) SCC 603, which has been followed in the case of 'Union of India Vs. Jaipal Singh', 2004(1) SCC 121 and also the judgment in 'Raj Narain Vs. Union of India and others', 2019(2) SCT 582, to contend that it is only after the criminal proceedings come to an end and the delinquent is exonerated, then also said delinquent will be entitled for the benefits of arrears of salary from 6 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -7- the date when he is exonerated of the criminal proceedings.
As per the respondents, petitioner is not entitled for the service benefits till the criminal proceedings remained pending against him. The question which arises before this Court is whether, any criminal proceedings were pending against the petitioner at any given point of time, so as to examine the contention raised on behalf of the respondents that the petitioner is not entitled for any service benefits from the date of his dismissal till he was exonerated on 12.09.2017 in FIR No.115 dated 17.12.2012, when the untraced report was accepted by the Competent Court of Law. The question of law, as to when, it can be said that the criminal proceedings are pending against a delinquent has been explained and answered by the Hon'ble Supreme Court of India in 'Union of India Vs. K.V. Jankiraman', 1991(4) SCC 109, wherein, it has been held that it is only after the charges are framed against an accused, it can be stated that the criminal proceedings are pending against the said accused. The relevant paragraph of the said judgment is as under: -
"On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point...."(Emphasis added)."
7 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -8- By applying the said ratio of K.V. Jankiraman's case (supra) in the present case, it cannot be said that at any given point of time, any criminal proceedings were pending against the petitioner. It is a conceded fact that in the FIR No.115 dated 17.12.2012, no charges were framed against the petitioner at any given point of time before the untraced report was accepted on 12.09.2017. Keeping in view the said fact, no criminal proceedings can be stated to be pending against the petitioner at all and therefore, the argument, which has been raised by learned counsel for respondents that the criminal proceedings came to end when the untraced report was accepted on 12.09.2012, cannot be accepted in the present case keeping in view the law laid down in K.V. Jankiraman's case (supra). In fact, no criminal proceedings ever remained pending against the petitioner and only an FIR, with certain allegations was registered against the petitioner, which were never proved.
That being so, the judgments being cited by the learned counsel for the respondents, which have been noticed in preceding paragraphs that an employee will be entitled for the arrears only from the date the criminal proceedings concludes where the said delinquent officer is exonerated, cannot be made applicable in the present case.
Even otherwise, the judgments, which are being relied upon by learned counsel for the respondents, have no applicability in the present case. The Hon'ble Supreme Court of India in Raj Narain Vs. Union of India and others, 2019(2) S.C.T. 582, after taking into 8 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -9- consideration Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board', 1996(11) SCC 603, which has been followed in the case of 'Union of India Vs. Jaipal Singh', 2004(1) SCC 121 held as under: -
"5. This Court in Ranchhodji Chaturji Thakore (supra) considered the case of an employee who sought back wages for the period he was kept out of duty during the pendency of a criminal case for his involvement in an offence under Section 302 IPC. The claim of the Petitioner therein was that he was entitled to full wages on his acquittal by the Criminal Court. This Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to findings recorded in a departmental enquiry. In the event of the dismissal order being set aside by the Court, the delinquent employee would be entitled to claim back wages as he was unlawfully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. The employee involved in a crime has disabled himself from rendering his services on account of his incarceration in jail. Subsequent acquittal by an Appellate Court would not entitle him to claim back wages.
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 9 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -10- 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 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."
A bare perusal of the above reproduction would show that in the judgments being relied upon by learned State counsel, either the employee was held guilty of the charges and was incarcerated in jail for some time before the Appellate Court found the said employee innocent and acquitted of the said charges, or, where the Hon'ble Supreme Court of India found that the department had only taken action as envisaged under the rules governing the service keeping in view the criminal proceedings initiated against a departmental employee and the department had no option but to take said action.
The observation of the Hon'ble Supreme Court of India cannot be read in isolation and cannot be ipso facto applied without appreciating the facts of the case, wherein the law has been laid down and also the facts of the case where the said law is sought to be applied. In the present case, none of the ingredients, which found favour with the 10 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -11- Hon'ble Supreme Court of India in 'Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board', 1996(11) SCC 603; 'Union of India Vs. Jaipal Singh', 2004(1) SCC 121 and in 'Raj Narain Vs. Union of India and others', 2019(2) SCT 582, are available so as to accept the contention of learned State counsel.
As held earlier, there were no criminal proceedings pending against the petitioner even at the time when he was dismissed from service. He was never incarcerated in jail in respect of this FIR, rather, in the FIR, the untraced report was accepted by the Competent Court of Law and in the subsequent departmental proceedings he was found innocent. Hence, the judgments being relied upon by the learned State counsel are not applicable in the present case.
Learned State counsel further argues that in the present case, the department had only followed the service rules so as to act against the petitioner keeping in view the FIR registered against him being FIR No.115 dated 17.12.2012, hence, no fault can be found with regard to the action taken by the respondents in dismissing the petitioner from service on the basis of registration of the said FIR.
Above noted contention of the learned State counsel cannot be accepted in the present case as the department is at fault from day one. The FIR No.115 dated 17.12.2012 was registered against the petitioner on certain allegations. Before the investigating agency started investigation into the allegations alleged in the said FIR so as to find truth in those allegations, the petitioner was dismissed from service on the date of the registration of the FIR itself. Nothing has come on record as to why, 11 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -12- without waiting for the outcome of the investigation, the action was taken against the petitioner in-haste only on the basis of the allegations alleged against him without waiting for any material to come on record to corroborate the said allegations. No service rule has been cited before this Court that even on the allegations alleged in the FIR, an employee can be dismissed from service.
Not only this, but taking action against the petitioner by the respondents by invoking the powers under Article 311(1)(b) of the Constitution of India in the present case, is a questionable act especially when the respondents themselves, after reinstating the petitioner in service in the year 2018, started a departmental inquiry, wherein, the allegations could not be proved. If, the respondents can hold the inquiry into the allegations in the year 2018, why, the action was taken against the petitioner on the date of registration of FIR itself by invoking Article 311(2)(b) of the Constitution of India by forming an opinion that no inquiry is possible against the petitioner keeping in view the allegations alleged. This shows that the petitioner remained out of service due to the unwarranted actions of the respondents taken in haste and in case now, the petitioner is denied the benefit of arrears for the said period, it will be putting premium on the illegal and arbitrary acts of the respondents, which under any circumstances cannot be permitted, as the petitioner has already suffered enough prejudice in his service career.
Learned counsel for the respondents further argues that on the basis of principle of 'no work no pay', the action of the respondents in declining the service benefits to petitioner for the period he remained out 12 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -13- of service is perfectly valid. Keeping in view the facts and circumstances noted above, it is clear that it was only due to the illegal and arbitrary acts on the part of the respondent-department that as he was dismissed from service and he could not discharge the duties. Non-working of the petitioner in the department for the period he remained out of service is attributable to the respondents. That being so, 'no work no pay' rule will not be applicable in the present case especially when the allegations alleged against the petitioner have not been proved while investigating the FIR No.115 dated 17.12.2012 as well as in the departmental inquiry, which was initiated against the petitioner on the same allegations. Principle of 'No work no pay' has applicability only where an employee knowingly and for the reasons attributable to the said employee, does not discharge his duties and responsibilities. In case, the employee is restrained in any manner by the respondents from discharging the duties of the post and the said act is ultimately found illegal and arbitrary, the said illegal act cannot cause further prejudice to the employee so as to decline him the benefits for the period when he was restrained from discharging the duties in an illegal and arbitrary manner by the respondents. The employee cannot be punished for no fault of his/her once the act of a department is found to be illegal either by a Competent Court of Law or by the respondents themselves at any given point of time. The result of the same has to be that if the employee is not held guilty either in criminal proceedings or in the departmental proceedings, the said employee is to be treated in service for all intents and purposes even for the period he/she remained out of job so as to compensate the said 13 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -14- employee for the illegal acts of the department and the least compensation which can be given to the employee, is granting him/her the benefits which he/she would have earned otherwise while in service, therefore, the rule of 'no work no pay' cannot be made applicable in the present case.
A Co-ordinate Bench of this Court in CWP-17952 of 2012 tilted as 'Kailash Chander Sharma Vs. State of Haryana and another', decided on 13.10.2014 held that where the departmental proceedings were dropped by recording the fact that the charges were not proved, the denial of the consequential benefits of actual arrears of the salary for the period the person remained out on the basis of 'no work no pay' is arbitrary and cannot be sustained. The relevant paragraphs of the judgment, wherein, the law on the subject has been noticed while giving finding, are as under: -
"7. The applicability of the rule of 'no work no pay' in a situation where departmental proceedings had been initiated against an employee, sealed cover procedure having been resorted to and such employee after exoneration having been promoted came up for consideration before Hon'ble Supreme Court of India in Union of India v. K.V.Jankiraman, 1991(3) SCT 317 and it was held as under:
"The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him."
It was further held that:
".........We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the
14 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -15- least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings."
8. The Hon'ble Supreme Court in State of Kerala and others Vs. E.K.Bhaskaran Pillai, (2007) 6 Supreme Court Cases 524 has held that principle of 'no work no pay' cannot be accepted as a rule of thumb and where Administration has wrongly denied his due, he should be given full benefits. The Hon'ble Supreme Court in E.K.Bhaskaran Pillai's case (supra) has laid down as under:-
"So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."
9. The Hon'ble Supreme Court in the matter of The Commissioner, Karnataka Housing Board v. C.Muddaiah reported as 2007(4) SCT 452 observed as under:
"The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate 15 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -16- directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may, in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant - Board, therefore, has no substance and must be rejected."
10. Adverting back to the facts of the present case, it has gone uncontroverted that departmental proceedings were initiated against the petitioner by issuance of a charge sheet in the year 1997.
16 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -17- For no fault of the employee i.e. the present petitioner, such proceedings were kept pending and not finalized for a period of 13 long years. Finally, vide order dated 24.6.2010, Annexure P3, a categoric finding came to be recorded that the charge levelled against him is not established and as such, the disciplinary case was dropped. Relevant finding recorded in the order dated 24.6.2010 passed by the General Manager, Irrigation Department, Haryana reads in the following terms:
"........On careful examination of the record, it does not establish at this stage that there was any back date entry any where in the Measurement Book. Therefore, the explanation given by the Sub Divisional Clerk seems to be tenable. This case was also considered at the Government level and on consideration Government decided to drop the disciplinary cases against the officers involved in the case. Record also reveals that the Junior Engineer who was also involved in this matter could not be charge sheeted because of his death. In such circumstances, when the officers who actually carried out the work and made entries and with whom the onus of the charges lies, have been exonerated after a thorough enquiry it will not be justifiable to punish a junior level staffer who just checked the entry arithmetically.
Keeping in view all the facts and circumstances of this case the defence stated by the Sub Divisional Clerk during the course of hearing, it is concluded that the charge against him is not established. It is therefore, decided to drop the disciplinary case against Shri Kailash Chander, Sub Divisional Clerk. Ordered accordingly.
Sd/-
( Tilak Raj ) General Manager, Irrigation Department, Haryana, Panchkula."
11. Under such circumstances and by applying the dictum laid down by the Hon'ble Supreme Court in State of Haryana v. OP Gupta, State of Kerala and others v. E.K.Bhaskaran Pillai and The Commissioner, Karnataka Housing Board v. C.Muddaiah (supra), 17 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -18- the petitioner cannot be denied the consequential benefit of actual arrears/salary for the period in question. It is not the case where the petitioner had declined to work on the promoted post, rather he was denied the opportunity to occupy the promotional posts on account of pendency of departmental proceedings and which were also dragged and delayed for no fault of his. The principle of 'no work no pay' would have no applicability in the peculiar facts and circumstances of the present case."
Keeping in view the above, the action on the part of the respondents in declining the service benefits including the arrears for the period the petitioner remained out of service, is held to be bad and consequently, the impugned order dated 19.11.2019 (Annexure P-9) is set aside. It is directed that the petitioner will be treated in service uninterruptedly for all intents and purposes and the period for which he remained out of service i.e. 17.12.2012 to 15.10.2018 will be treated as a duty period for all intents and purposes including for the grant of increments and fixation of pay.
Let the said exercise be done by the respondents within a period of three months from the date of receipt of copy of this order and the arrears for which the petitioner is found entitled for be released to him within a period next one month.
Learned counsel for the petitioner submits that the claim of the petitioner for the grant of promotion as an Assistant Sub-Inspector (Local Rank) has not been allowed vide order dated 07.03.2020 (Annexure P-11) on the ground that the petitioner remained out of service from 17.12.2012 till 15.10.2018 and no decision has been taken by the authorities with regard to the said period.
18 of 19 ::: Downloaded on - 07-02-2021 15:24:22 ::: CWP-9551-2020 -19- Keeping in view the present order, where the above said period is to be treated as a duty period, the respondents are also directed to consider the claim of the petitioner for promotion as an Assistant Sub- Inspector (Local Rank) with effect from the date when the persons junior to him were promoted.
However, it is made clear that no interest on the arrears is being granted to the petitioner as learned counsel appearing on behalf of the petitioner has made a statement that the petitioner is not pressing his claim for the grant of interest.
Present writ petition stands allowed in the above terms with no order as to costs.
( HARSIMRAN SINGH SETHI )
January 12, 2021 JUDGE
naresh.k
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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