Punjab-Haryana High Court
Jhilman Singh vs State Of Punjab And Others on 5 July, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.2695 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 5th, 2013
Jhilman Singh
.....Petitioner
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Chanderhas Yadav, Advocate,
for the petitioner.
Mr. Harsimran Singh Sethi, Addl.A.G., Punjab,
for the State.
*****
AUGUSTINE GEORGE MASIH, J.
The petitioner has approached this Court praying for setting-aside the order dated 9.11.2010, Annexure P-7, passed by the Director, Health and Family Welfare Department, Punjab- respondent No.2, vide which he has been denied full salary and allowances for the period from 5.8.2006 to 10.2.2009, during which period, he remained suspended. Prayer has also been made for granting him the benefit of pay and allowances for the said period by setting-aside the impugned order.
Briefly, the facts are that an FIR No.218, dated 4.8.2006 CIVIL WRIT PETITION NO.2695 OF 2012 :{ 2 }:
was registered against the petitioner under Sections 420, 489-A, 489-B, 489-C IPC at Police Station Payal, District Ludhiana. The allegation against the petitioner was that he approached one Ravinder Singh, who was running the business of exchange of foreign currency near bus stand at G.T.Road Doraha, on 4.8.2006 at about 7.30 P.M. and asked him for exchange of US dollars into Indian currency. Petitioner handed over 4 US dollars of the denomination of 100/- each to the complainant. The complainant being suspicious of the genuineness of the US dollars came out of the shop to check the same and found them to be fake. On the basis of said statement, FIR was registered against the petitioner. He was arrested on 5.8.2006 and was released on bail on 9.11.2006. Vide order dated 8.3.2007, Annexure P-3, petitioner was placed under suspension by the Director, Health and Family Welfare, Punjab- respondent No.2.
In the trial, which ensued, petitioner was acquitted vide judgement dated 27.8.2008, Annexure P-4, by giving him benefit of doubt. On acquittal, the suspension of the petitioner was revoked and he was ordered to join the duty at Kumkalan, Ludhiana vide letter dated 5.2.2009, Annexure P-5. Petitioner was not paid the arrears of salary, to which he was entitled to on his acquittal by the trial Court in the criminal case vide judgement dated 27.8.2008 and, therefore, he served a legal notice, Annexure P-6, upon the respondents. In pursuance thereto, order dated 9.11.2010, Annexure P-7, was CIVIL WRIT PETITION NO.2695 OF 2012 :{ 3 }:
passed, rejecting the claim of the petitioner by observing that he is entitled to get full salary for 88 days i.e. from 5.8.2006 to 31.10.2006 and thereafter half salary for the period from 1.11.2006 to 8.2.2007. Leave without pay and allowances was granted to him for the period from 9.2.2007 to 10.2.2009. Counsel for the petitioner submits that this is not in accordance with law. His contention is that as per the Punjab Civil Services Rules, on acquittal, the employee is entitled to grant of pay and allowances for the period of his suspension, which has been denied to the petitioner illegally by the respondents. In this regard, counsel has placed reliance on a Division Bench judgement of this Court in Shiv Kumar Goel Vs. State of Haryana and another, 2007 (1) S.C.T. 739, to contend that as per Rule 7.3, Volume I of Punjab Civil Services Rules and Rule 2.2 of Volume II, the petitioner is entitled to grant of full pay and allowances for the period of his suspension. On this basis, prayer has been made for allowing the present writ petition.
Counsel for the respondents, on the other hand, submits that the petitioner remained suspended for 921 days. On his acquittal, he was reinstated vide order dated 5.2.2009. Since the petitioner had served the respondent-Department for six years and the total earned leave was less than his suspension period, leave for the period from 9.2.2007 to 10.2.2009 was treated as leave of special kind vide office order dated 9.11.2010. It has been contended that as per Rule 7.3 of the Punjab Civil Services Rules, Volume I, Part 1 and CIVIL WRIT PETITION NO.2695 OF 2012 :{ 4 }:
as per the instructions of the Personnel Department, dated 2.12.1998 and 8.8.1977 in case any employee is acquitted, then the period of his suspension can be treated as duty period. However, if an employee is acquitted by giving him benefit of doubt, then as per circular dated 7.7.1958 issued by the Department of Personnel, such employee is not entitled to full pay. Reliance has been placed upon the judgement passed by this Court in Civil Writ Petition No.16547 of 2011 (Dr.Pankaj Bansal Vs. State of Punjab and another), decided on 6.9.2011, Annexure R-1, where these instructions have been found to be in accordance with law and have been given effect to by the Court. On this basis, it has been contended that the petitioner has rightly been granted his dues as per the leave standing in his credit on the date of his joining duty on reinstatement in service i.e. 10.2.2009. Prayer on this basis has been made for dismissal of the writ petition.
I have considered the submissions made by counsel for the parties and have gone through the records of the case. This Court is of the opinion that the relief, as claimed by the petitioner, can not be granted to him.
The admitted facts are that the petitioner was involved in a criminal case in which he ultimately, after trial, was acquitted of the charges framed against him by giving him benefit of doubt. A perusal of the judgment dated 27.8.2008, Annexure P-4, would indicate that there was evidence available against the petitioner but on technical CIVIL WRIT PETITION NO.2695 OF 2012 :{ 5 }:
grounds his acquittal has been ordered by giving him benefit of doubt. It cannot be said that the petitioner was not involved in the commission of offence and he was acquitted on merits. That being so, as per Rule 7.3 of the Punjab Civil Services Rules, Volume I, Part 1, the petitioner has rightly been granted the benefits, to which he was entitled to.
Rule 7.3 of the Punjab Civil Services Rules, Volume I, Part 1 reads as follows:-
"7.3 (1) When a Government employee, who has been dismissed, removed, compulsorily retired or suspended, is reinstated, or would have been reinstated but for his retirement on superannuation the authority competent to order the reinstatement shall consider and make a specific order:-
(a) regarding the pay and allowance to be paid to the Government employee for the period of his absence from duty, occasioned by suspension and/or dismissal, removal or compulsory retirement ending with his reinstatement on or the date of his retirement on superannuation 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 mentioned in sub rule (1) is of opinion that the Government employee has been fully CIVIL WRIT PETITION NO.2695 OF 2012 :{ 6 }:
exonerated or, in the case of suspension, that is wholly unjustified, the Government employee shall be given the full pay and allowances to which he would have been entitled, has he not been dismissed, removed, compulsorily retired or suspended, as the case may be." A perusal of the above rule would show that the competent authority, on ordering reinstatement of an employee, would take a decision whether or not the employee is entitled to full pay and allowances from the date of his suspension to the date of his reinstatement. As per the instructions relied upon by the respondents, where the benefit of doubt has been given by the Court in criminal proceedings, the competent authority can take into consideration the facts and circumstances of the case and proceed to take a decision with regard to the pay and allowances to be paid to the Government employee for the period of his absence from duty occasioned by suspension etc. Since the petitioner has been found to have been acquitted of the charges levelled against him by giving him benefit of doubt and not honourably, the period of suspension from 5.8.2006 to 10.2.2009 has been treated as leave of the kind due, which is in accordance with law and, therefore, does not call for any interference by this Court.
So far the the judgement relied upon by counsel for the petitioner in the case of Shiv Kumar Goel (supra) is concerned, it would not render any help to the petitioner. In Shiv Kumar CIVIL WRIT PETITION NO.2695 OF 2012 :{ 7 }:
Goel's (supra), the Division Bench of this Court in Para 5 has come to the conclusion that the petitioner has not been merely given the benefit of doubt. In fact, the prosecution has failed to satisfy the requirement of Section 7 of the Prevention of Corruption Act, 1988 and could not prove the allegations in material particulars. Requirement of substantive law having not been satisfied, the Court observed that the acquittal cannot be said to be applicable if it is on account of giving him benefit of doubt. In the present case, the situation is not the same. Therefore, the said judgement would not apply to the facts of the present case.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
July 5th, 2013 ( AUGUSTINE GEORGE MASIH ) khurmi JUDGE