Punjab-Haryana High Court
Darshan Singh vs State Of Punjab And Others on 8 February, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 22663 of 2010 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
CWP No. 22663 of 2010
Date of Decision: 08.02.2013
Darshan Singh
.........Petitioner
Versus
State of Punjab and others
............ Respondents
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CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. D.S. Patwalia, Advocate
for the petitioner.
Ms. Monica Chibber Sharma, DAG, Punjab.
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AUGUSTINE GEORGE MASIH, J.(ORAL)
Petitioner has approached this Court praying for issuance of writ of mandamus directing the respondents to reinstate the petitioner w.e.f.
1.3.2006 (Annexure P-2), the date on which he was acquitted of the charges by the High Court in Criminal Appeal No. 271-DB of 2004 preferred by him against the order of his conviction by the trial Court and for grant of other consequential benefits such as arrears of salary, increments and promotion.
On 23.7.2012, counsel for the petitioner had stated that the petitioner was working on the post of Deputy Superintendent of Police (ORP) when he was dismissed from service vide order dated 26.4.2004 (Annexure P-1). The sole basis for imposing the extreme penalty of dismissal was due to order of conviction dated 1.3.2004 passed by the Additional Sessions Judge, Ludhiana. He preferred an appeal before this Court i.e. Criminal Appeal No. 271-DB of 2004 Darshan Singh and others CWP No. 22663 of 2010 -2- vs. State of Punjab, which was allowed by this Court vide order dated 1.3.2006 (Annexure P-2) acquitting the petitioner of all the charges framed against him. Special Leave petition preferred by the State of Punjab against the said judgment stands dismissed by the Hon'ble Supreme Court on 18.8.2008 (Annexure P-4). Petitioner thereafter submitted a representation to the respondents for reinstating him in service w.e.f. the date of his dismissal.
Counsel for the petitioner on the said date had further stated that the claim qua the petitioner be confined to pay and allowances for the period 1.3.2006 to 3.5.2007, i.e. the period, when his conviction was set aside and to his actual date of reinstatement. Counsel for the State had sought time to seek instructions in this matter, but she states that no instruction has been received by her till date. It has been further stated that the case of the petitioner is under consideration.
In the light of these facts counsel for the petitioner states that the claim of the petitioner is covered by the judgment passed by this Court in CWP No. 7178 of 2002, Bhim Singh vs. State of Haryana and others dated 12.03.2012.
Considering the submissions made by the counsel for the parties and going through the records of the case, I am of the considered view that the claim of the petitioner is indeed covered by the judgment passed by this Court in Bhim Singh's case(supra) , wherein it has been held as follows :-
"Facts as recorded above are not in dispute. The only claim which now requires to be considered and decided is whether the petitioner is entitled to the pay and allowances for the period 30.4.1998 to 15.2.1999 which he spent in judicial lock-CWP No. 22663 of 2010 -3-
up. Rules 7.2, 7.3 and 7.5 of the Punjab Civil Service Rules, Vol.-I Part-I, which are relevant for decision of the present case, read as follows:-
"ALLOWANCES DURING PERIOD OF SUSPENSION 7.2 (1) A Government employee under suspension shall be entitled to the following payments, namely:-
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(ii) In the case of any other Government employee-
(iii) A subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on leave on half pay, and in addition dearness allowance, if admissible, on the basis of such leave salary;
Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:-
(i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 30 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee.
(ii)The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of first six months, if in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government employee.
Provided that in the case of Government employee dismissed, removed or compulsorily retired from service, CWP No. 22663 of 2010 -4- who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods as the case may be fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him, where the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this provision shall apply to him.
ALLOWANCES ON REINSTATEMENT 7.3 (1) When a Government employee, who has been dismissed, removed, compulsory retired or suspended, is reinstated as a result of appeal, revision or review, or would have been reinstated but for his retirement on superannuation while under suspension or not, 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 including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be; and
(b) whether or not the said period be treated as a period spent on duty.
(2) Whether the authority competent to order reinstatement is of opinion that the Government employee who had been dismissed, removed or compulsorily retired, has been fully exonerated, the Government employee shall, subject to the provisions of sub-rule (6), be paid his full pay and allowances to CWP No. 22663 of 2010 -5- which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
(3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes."
xxxx xxxx xxxx xxxx "7.5 An employee of Government against whom proceeding have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any period during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence allowance that may be granted in accordance with the principle laid down in rule 7.2) for such period until the final termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt), of it being proved that the officer's liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified."
These Rules 7.3 and 7.5 when considered, deal with two different situations. Rule 7.3 of the Rules is general in application whereas rule 7.5 is specific and, therefore, will have precedence over Rule 7.3 wherever applicable in the CWP No. 22663 of 2010 -6- given facts and circumstances of the case. Rule 7.3 and 7.5 came up for consideration before a Division Bench of this Court in Hukam Singh's case (supra) (Hukam Singh vs. State of Haryana and another decided on 23.11.2000, details of the judgment added.) wherein on considering these two Rules in similar facts and circumstances, as in the present case, this Court has held as follows:-
"It is abundantly clear that Rule 7.3 of the Rules is the general rule, while in case a person is acquitted, it is specific Rule 7.5 of the Rules that would be attracted. The law is well settled that special Rule will always take precedence over the general rule and consequently it must follow that under Rule 7.5 of the Rules, referred to above, the petitioner was entitled to the full back wages because, as mentioned above, the earlier decisions referred to above have little application in the present case.
In our this view, we are supported by the judgment of this Court in the case of Maha Singh vs. State of Haryana and another, 1993 (8) Services Law Reporter,
188. Same view was expressed by this Court in the case of Lehna Singh vs. The State of Haryana and others, 1993 (3) Recent Services Judgments 119. Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioner's being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal. The impugned order Annexure P/7 is accordingly quashed. The petitioner can thereafter be considered for any further promotion that may be due in accordance with the rules. No order as to costs."
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Further, this Court in the case of Jagmohan Lal vs. State of CWP No. 22663 of 2010 -7- Punjab, AIR 1967 (P&H) 422 had gone to the extent of holding in a case which had nothing to do with his official work or duties that the moment he is acquitted of the charge, he is acquitted of the blame and it does not make a difference whether the acquittal was after giving benefit of doubt or for other reasons. Relevant portion of the judgment reads as follows:-
"The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are 'discharged' or 'acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being doubt in the mind of the court the accused is acquitted.
I am, therefore, quite clear in my mind that the intention underlying rule 7.5 can be no other except this; the moment the criminal charge on account of which an officer was suspended fails in a court of law, he should be deemed to be acquitted of the blame. Any other interpretation would defeat the very purpose of the rule. It is futile to except a finding of either honourable CWP No. 22663 of 2010 -8- acquittal or complete innocence in a judgment of acquittal. The reason is obvious; the criminal Courts are not concerned to find the innocence of the accused. They are only concerned to find whether the prosecution has succeeded in proving beyond a reasonable doubt the guilt of the accused."
Thereafter, two Division Benches of this Court in Shashi Kumar vs. Uttar Haryana Bijli Vitran Nigam and another, 2005 (1) SCT 576 and Shiv Kumar Goel vs. State of Haryana and another, 2007(1) SCT 739, have again held that acquittal in criminal proceedings either by giving benefit of doubt or honourable acquittal by the criminal Court by recording finding that there was no evidence to prove the charge against the employee, he would be entitled to the benefit of pay and allowances over and above the subsistence allowance."
In view of the above, present writ petition is allowed. Petitioner is held entitled to the grant of pay and allowances of the period 1.3.2006 to 3.5.2007, which shall be released to the petitioner within a period of two months from the date of receipt of certified copy of the order.
08.02.2013 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE