Punjab-Haryana High Court
Dr. M.L. Kamra And Others vs State Of Haryana And Others on 14 July, 2009
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No. 21304 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 21304 of 2008
Date of decision: 14.7.2009
Dr. M.L. Kamra and others ...petitioners
Versus
State of Haryana and others ...respondents.
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. S.S. Dinarpur, Advocate for the petitioners.
Mr. Harish Rathee, Sr. DAG, Haryana for the State.
RANJIT SINGH J.
The petitioners, who are the doctors, faced a departmental inquiry while posted at General Hospital, Hisar. This was on account of death of patient under treatment. For this allegation, inquiry was held against them and ultimately the petitioners were given warning on 19.4.2004. At the time of allegation, the petitioners, three in number, were placed under suspension for a period departmental inquiry was being held against them while they were serving in General Hospital, Hisar. This departmental inquiry was held on account of their conduct leading to death of a patient named Rishal Singh, who was under treatment. The suspension of the petitioners continued for varying period. The petitioner - M.L. Kamra, remained under suspension from 19.7.2000 to 1.3.2002, petitioner -Lalit Kumar from 19.7.2000 to 20.5.2002 and Bhupinder Singh from 19.7.2000 to 12.3.2001. After concluding the Civil Writ Petition No. 21304 of 2008 2 departmental inquiry, the petitioners were awarded punishment of warning on 19.4.2004. Thereafter, the petitioner made representation when respondent No.2 passed an order regularising the period of their suspension, by directing that the suspension period be treated as a leave of kind due. Copy of this order is annexed as Annexure P-2. The petitioners submitted memorials before the Governor, Haryana. These memorials were later transmitted to Commissioner and Principal Secretary, Health Department for decision. Finally the order, Annexure P-4 came to be passed on 23.2.2007 whereby it was directed that the petitioner cannot be given full pay for period they had remained under suspension. Justification furnished in the order in this regard is that they were inflicted the punishment of warning and hence they would not be entitled to full pay for this period. The petitioners have accordingly impugned Annexure P-4 on different grounds.
Notice of motion was issued. Reply is filed. The respondents have justified the impugned order in support of Rule 7 (3) of Punjab Civil Services Rules Vol. 1 Part II, which, as per the respondent, would regulate the manner of payment of pay and allowances for the period of suspension. Plea is that in view of the punishment of warning, the petitioners cannot be allowed full pay and allowances for the period they had remained under suspension.
Counsel for the petitioners has drawn my attention to Krishan Sewak versus The State of Haryana and another 1997 (4) RSJ 162 to urge that where a period of suspension is regularised by grant of leave of the kind due and case is disposed of by penalty of warning, it would not be appropriate, just and proper to deny the Civil Writ Petition No. 21304 of 2008 3 benefit of pay and allowances for the period of suspension. In this case, respondents were directed to treat suspension period as duty period and allow all the consequential benefits. Counsel has also referred the case of Rattan Singh Chaudhary versus The State of Punjab and another 1971 SLR 692 where it is held that disallowing the pay and allowances by treating the period as not having been spent on duty leads to serious civil consequences. The competent authority is to pass an order in a quasi judicial manner affording the opportunity of hearing. It is so stated by interpreting sub Rule 2 of Rule 7.3, Single Judge of this Court after noticing that the petitioner therein was only awarded the punishment of stoppage of two next increment without cumulative effect, but the consequential order passed under Rule 7.3 would cause much more damage than the original order passed in this case.
The ratio laid down in these judgments would be attracted to the facts of the present case. Though the petitioners had remained under suspension for considerable period but ultimately the case against them was disposed of by awarding warning. If they are now held not entitled to full pay and allowances for this period this would operate more harshly than the punishment of warning awarded to them. Even otherwise the stand taken by the respondent-State is not justified. Rule 7.3, provides that when government servant who has been dismissed, removed, compulsorily retired or suspended, is reinstated, or would have reinstated but for his retirement on superannuation the authority competent to order the reinstatement shall consider and make a specific order regarding the pay and allowances to be paid to the Government employee for the period of Civil Writ Petition No. 21304 of 2008 4 his absence from duty, occasioned by suspension, dismissal, removal or compulsory retirement ending with the reinstatement on or the date of his retirement on superannuation as the case may be. The authorities have also to see whether or not period shall be treated as a period spent on duty. Rule 7.3 (3) further provides that the Government employee shall be given such proportion of such pay and allowances as such competent authority may prescribe. As per Rule 7.3 (2) if the authority mentioned in sub-rule (1) is of the opinion that the Government employee has been fully exonerated or, in case of suspension, that it was wholly unjustified, the Government employee shall be given the full pay and allowances to which he has been entitled has he not been dismissed, removed, compulsorily retired or suspended, as the case may be.
The combined reading of these provisions would show that the justification for payment of pay and allowances would primarily depend upon the outcome of the inquiry which is held, for which the government employee is placed under suspension. If the consequential effect of the rule is seen operating harshly than the punishment awarded, then the same can certainly be termed unfair and unjust. In this background, a view is possible that it would not be fair, just and equitable to forfeit the pay and allowances of person, who was left with the award of warning only. The reason disclosed in the order to justify denial of full pay and allowances is that the petitioners were awarded warning. This reason alone to justify denial of full pay and allowances may indicate non application of mind. Rule 7.3 of Rules referred to above shows that the competent authority while passing the order was to see if the suspension was Civil Writ Petition No. 21304 of 2008 5 wholly unjustified. If the case is considered fit enough to be disposed of by award of warning then it can be said that there was hardly any requirement to place the petitioners under suspension. It is thus possible to say that the suspension was unjustified. As per the rule, competent authority is called upon to conclude that the suspension of the said servant was not wholly unjustified. The impugned order does not give any indication if this aspect of the rule was taken into consideration. This aspect of consideration is wholly absent. This order, even otherwise, would be much more damaging than the order of punishment. The impugned order thus cannot be sustained. The same is set aside. The petitioners would be entitled to full pay and allowances for the period they had remained under suspension.
The writ petition is thus allowed.
July 14, 2009 ( RANJIT SINGH ) rts JUDGE