Punjab-Haryana High Court
Faqir Chand vs The State Of Haryana And Others on 3 July, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 15861 of 2011
Date of Decision : 3.7.2012
Faqir Chand ...... Petitioner
Versus
The State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. M.K. Sangwan, Advocate, for the petitioner.
Mr. Harish Rathee, Senior DAG Haryana.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court impugning the communication/order dated 24.6.2010 (Annexure-P-2), vide which the period of suspension of the petitioner, i.e. 21.9.2001 to 2.6.2003, has been ordered to be treated as leave of the kind due. Counsel for the petitioner contends that the petitioner was placed under suspension on account of registration of a criminal case against the petitioner. The trial resulted in acquittal of the petitioner by the court of Additional Sessions Judge, Ambala, vide judgment dated 5.7.2006. He further submits that even in departmental inquiry, which was initiated against the petitioner, the competent authority has come to the conclusion that there was no embezzlement committed by the petitioner and the only charge, which has been found to have been proved against the petitioner, is that the petitioner has not followed the prescribed procedure. He on this basis contends that as order of treating the period of suspension of the petitioner as leave of the kind due has civil consequences as at the time of release of his retiral benefits, he has been deprived of the benefit of leave CWP No. 15861 of 2011 -2- encashment, which the petitioner would have been otherwise entitled to. Petitioner has been placed under suspension, not for any lapse on his part and, therefore, the same cannot be said to be misconduct and while regularizing the period of suspension, the communication/order dated 24.6.2010 (Annexure-P-
2) has resulted in civil consequences, which cannot be permitted as the same would violate the statutory rights of the petitioner. He accordingly prays that the said impugned communication/order cannot be sustained and deserves to be set aside.
On the other hand, counsel for respondents submits that the claim of the petitioner has rightly been considered by the respondents as he was placed under suspension because of registration of a criminal case against the petitioner. He further contends that the competent authority has exercised its jurisdiction for regularizing the period of his suspension and while doing so, appropriate order in accordance with law has been passed, which does not call for any interference by this Court. Prayer is, thus, made for dismissal of the present writ petition.
I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case.
Facts are not in dispute in the present case and therefore, are not being referred to again. The only question, which requires to be considered and decided is whether the order of treating the period of suspension as leave of the kind due is justified in the facts and circumstances of the present case.
Respondents in the reply have categorically admitted the fact that after the acquittal of the petitioner in a criminal case which was registered against him by the competent court, the departmental proceedings, which were initiated against the petitioner, culminated on submission of the inquiry report CWP No. 15861 of 2011 -3- and punishing authority came to the conclusion that the charge of embezzlement has not been proved against the petitioner and infact the charge proved against the petitioner was that he has not followed the prescribed procedure. For this, he has already been imposed the punishment of censure, vide order dated 9.9.2009. The period of suspension from 21.9.2001 to 2.6.2003 has been regularized, vide communication dated 24.6.2010 (Annexure-P-2) by the respondents by treating it as leave of the kind due, which is not justified in the light of the fact that the punishment of censure has already been imposed and by passing such an order, the result thereof is that the petitioner is deprived of his statutory right of leave encashment, which he would have been otherwise entitled to on his retirement thus entailing civil consequences. This would amount to double jeopardy, which is not permissible in law and does violate the constitutional right of the petitioner as well.
In view of the above, the present writ petition is allowed in the peculiar facts and circumstances of this case. A direction is issued to the respondents to pass a fresh order in accordance with law, treating the period of suspension as duty period for all intents and purposes. The consequential benefits be released to the petitioner within a period of three months from the date of receipt of certified copy of this order.
(AUGUSTINE GEORGE MASIH) JUDGE 3.7.2012 sjks