Punjab-Haryana High Court
Baldev Singh vs State Of Haryana And Another on 18 October, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.18098 of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.M.No.5417 of 2012 in
C.W.P.No.18098 of 2003 (O&M)
Date of Decision:- 18.10.2012
Baldev Singh ....Petitioner(s)
vs.
State of Haryana and another ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.R.K.Malik, Sr. Advocate with
Ms.Renu, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.DAG, Haryana.
***
AUGUSTINE GEORGE MASIH, J.
C.M.No.5417 of 2012 C.M.is allowed.
Judgment dated 12.3.2012 (Annexure P-6) is taken on record. Main Case.
Petitioner was an ex-serviceman and had served the Indian Army from 17.9.1963 till the date of his discharge on 14.6.1981. He was appointed as a Clerk in the Department of Rehabilitation, Haryana vide letter dated 27.3.1990 (Annexure P-1). Thereafter, he was promoted as a Kanungo on 1.8.1995. While serving on this post, FIR No.893 dated 21.8.1997 under Sections 7/13/49/88 of the Prevention of Corruption Act, C.W.P.No.18098 of 2003 (O&M) -2- 1988 was registered against the petitioner at Police Station NIT Faridabad. He was placed under suspension on 22.8.1997 and continued as such till the passing of the order dated 12.6.2001 (Annexure P-3) vide which he was ordered to be retired from service w.e.f. 15.09.2001 as per the provisions contained in Rule 5.32-A (C) of the Punjab Civil Services Rules Volume II and Rule 3.26 (d) of the Punjab Civil Services Rules Vol.1 part I as applicable to the State of Haryana, (hereinafter referred to as PCS Rules) after his attaining the age of 55 years by giving him three months' notice. The criminal case registered against the petitioner resulted in his acquittal vide judgment dated 3.5.2003 (Annexure P-2) passed by the Special Judge, Faridabad. His suspension period was not decided earlier by the Competent Authority but vide a subsequent order dated 28.10.2003 (Annexure P-4) it was finalized by ordering the said period i.e. from 22.8.1997 to 15.9.2001 as leave of the kind due. These two orders i.e. 12.6.2001 (Annexure P-3) retiring the petitioner from service and 28.10.2003 (Annexure P-4) deciding the period of his suspension, have been challenged by the petitioner through the present writ petition.
It is the contention of the counsel for the petitioner that false criminal case was registered against the petitioner for which he was placed under suspension and before the decision in the criminal case, he has been retired from service merely because of his involvement in a criminal case. This, the counsel for the petitioner contends, is not sustainable in the light of the judgment passed by the Supreme Court in the case of The State of Gujarat and another vs. Suryakant Chunilal Shah, JT 1998 (8) SC 326. His further contention is that the petitioner has been acquitted in the trial C.W.P.No.18098 of 2003 (O&M) -3- which proceeded after the registration of the criminal case and once the petitioner has been acquitted by the Special Judge, Faridabad vide judgment dated 3.5.2003 (Annexure P-2), order of retirement of the petitioner cannot sustain as the very basis for retiring the petitioner stands extinguished. He further places reliance upon the judgment passed by this Court in Jagmohan Lal vs. State of Punjab through Secretary to Punjab Government, Irrigation and others, AIR 1967 (P&H) 422 to contend that where the acquittal is either after getting benefit of doubt or for other reason, it does not make a difference and once the acquittal is ordered, the accused is to be treated as innocent. Attacking the impugned order dated 28.10.2003 vide which the period of suspension of the petitioner has been treated as leave of the kind due, counsel contends that if an employee is placed under suspension merely because a criminal case has been registered against him, then on his acquittal, he is entitled to full pay and allowances. In support of this contention, reliance has been placed upon Rule 7.5 of the PCS Rules, Vol.I Part I. Supporting this, reliance has been placed upon the judgment of this Court passed in CWP No.7178 of 2002 Bhim Singh vs. State of Haryana and others, decided on 12.3.2012 (Annexure P-6). His contention is that the observations made by the Competent Authority, while passing the order impugned, is that benefit of doubt has been given to the petitioner which cannot be looked into by the Competent Authority at the time of deciding the fate of period of suspension once the acquittal has been ordered by the trial Court. As per the Government instructions dated 19.11.1991 (Annexure P-5), an employee can be retired from service only when he has not earned 70% good or better annual confidential reports C.W.P.No.18098 of 2003 (O&M) -4- during the last 10 years and there should not be any entry regarding doubtful integrity during this period. He contends that only 7 annual confidential reports of the petitioner have been recorded as he had worked for only 7 years with the respondents i.e. from 30.3.1990 (date of joining) till 22.8.1997 i.e. the date of his suspension and thereafter he was retired on 15.9.2001. Thus, the petitioner had 100% good reports with no adverse entry what to say of doubtful integrity. His further contention is that vide this impugned order dated 28.10.2003, the petitioner has also been deprived of the benefit of pension as at the time of his suspension, he had only 78' days earned leave and half pay leave of 140 days to his credit and the remaining period has been treated as extraordinary leave which is not counted as service for pension under Rule 4.7 of the PCS Rules Vol.2 Part 1. The petitioner, thus, has only 7 years, 11 months and 23 days' service. Since the period of 10 years is not complete, he is not entitled to pension. Another submission which has been made is that before passing the impugned order dated 28.10.2003, Rule 7.3 (5) has not been complied with as the principles of natural justice have not been followed. In the proviso to this Rule, a notice was required to be issued to the petitioner prior to treating the said period for any specified purpose such as leave of the kind due. He, on this basis, contends that the impugned orders cannot sustain and the writ petition deserves to be allowed.
It needs to be mentioned here that during the pendency of the writ petition, Sh.Baldev Singh, petitioner has expired and his widow stands impleaded as she being his legal representative.
On the other hand, counsel for the respondents submits that a C.W.P.No.18098 of 2003 (O&M) -5- perusal of the judgment passed by the learned Special Judge, Faridabad dated 3.5.2003 would indicate that the petitioner is not an innocent person and was in fact actively involved in corruption. The allegations against him were for demand of illegal gratification and charges under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 were framed against him along with one Suresh Kumar. Petitioner was the Kanungo in the office of the Tehsildar (Sales) whereas Suresh Kumar was an Inspector. Although the complainant had not recognized the accused in the Court and has resiled from his earlier statement, but it has been proved from the statement of the complainant himself that a demand has been raised by two persons and an amount of ` 5000/- was also paid. Merely because the petitioner was not identified in Court has led to his acquittal but the official witnesses have proved the prosecution case against the petitioner as also Suresh Kumar. Benefit has also been granted to the petitioner on the ground that the recovery of ` 5000/- was not effected from him but was effected from the person of Suresh Kumar, his co-accused. On this basis, he contends that the order of his retirement and the order treating the period of his suspension as leave of the kind due is fully justified. His contention is that the impugned orders have been passed in accordance with the statutory Rules and, therefore, the petitioner is not entitled to the claim as has been made by him in the present writ petition. So far as the question of there being no adverse annual confidential report to the credit of the petitioner is concerned, the same has very fairly been accepted by him. He, however, contends that in the light of the evidence led by the prosecution in the criminal case which has been referred to above, the petitioner has been C.W.P.No.18098 of 2003 (O&M) -6- rightly retired and the period of his suspension has rightly been decided by the competent Authority. Prayer has, thus, been made for dismissal of the writ petition.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
Firstly, dealing with the challenge to the order dated 12.6.2001 (Annexure P-3) vide which the petitioner has been retired from service, the same deserves to be upheld in the light of the observations made by the Supreme Court in Suryakant Chunilal Shah's case (supra) wherein para 29, it has been held as follows:-
"29. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. servant or that he had lost his efficiency and had become a dead-wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We C.W.P.No.18098 of 2003 (O&M) -7- may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee." (emphasis applied).
In view of the above, the determining factor to come to a conclusion whether the order of retirement is justified would depend upon not merely the involvement of the employee in the criminal case but the circumstances and the nature of the offences allegedly committed by him. Role of the employee would also be relevant material to be taken into consideration.
A perusal of the judgment dated 3.5.2003 passed by the Special Judge, Faridabad would lead this Court to a conclusion in the light of the evidence led by the prosecution that the petitioner is not innocent to the extent that a finding could be recorded that he was not involved in the offence at all. He has been acquitted on the ground that the prosecution has failed to establish the charge against him beyond doubt with an added factor that the money was not recovered from him although he was arrested on the spot along with his co-accused Suresh Kumar, Inspector, from whom the recovery of the amount of ` 5000/- was effected. In the light of the conduct of the petitioner which cannot be said to be above board, the order of retirement of the petitioner is fully justified and passes the test of the principle as laid down by the Supreme Court in its judgment in Suryakant Chunilal Shah's case (supra). In Jagmohan Lal's case (supra) also, it had C.W.P.No.18098 of 2003 (O&M) -8- observed that when the criminal case had nothing to do with the official work or duties of an employee, the moment he is acquitted of the charge in such a criminal case, he would be treated to be innocent and it does not make a difference whether the acquittal was after giving benefit of doubt or for other reasons. Meaning thereby that if the criminal case has some connection with the official work or duties of an employee the position would be different. In the light of these specific observations by this Court, no benefit can be derived by the petitioner from the said judgment.
The contention of the counsel for the petitioner with regard to his challenge to the order dated 28.10.2003 (Annexure P-4) on the ground that because of his mere acquittal, he would be entitled to the benefit of Rule 7.5 of the PCS Rules, for treating the period of his suspension from 22.8.1997 to 15.9.2001 as on duty period and entitled to full pay and allowances, also cannot be accepted as the said Rule to the extent as has been projected by the counsel for the petitioner, is misplaced. Reliance upon the judgment passed by this Court in Bhim Singh's case (supra) also would not support the case of the petitioner. That was a case where the petitioner had sought benefit of Rule 7.5 of the PCS Rules Vol.1 Part 1 for the period he has remained in judicial lockup and on his acquittal had sought the benefit of full pay and allowances. Rule 7.5 deals with that specific situation and, therefore, the benefit granted to him was based upon the said Rule but in the case of the petitioner, Rule 7.3 would be applicable and according to the said Rule, even on acquittal, the discretion is with the Competent Authority to take a decision with regard to C.W.P.No.18098 of 2003 (O&M) -9- the period of suspension. Rule 7.3 of the PCS Rules, Vol.1 Part I reads as follows:-
"Allowances on Reinstatement 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 allowances 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 shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub rule (1) is of opinion that the Govt. employee has been fully exonerated or, in case of suspension, that it was wholly unjustified, the Govt.
employee shall be given the full pay and allowances to which he would have been C.W.P.No.18098 of 2003 (O&M) -10- entitled, has he not been dismissed, removed, compulsorily retired or suspended, as the case may be.
(3) In other cases, the Govt. employee shall be given such proportion of such pay and allowances as such competent authority may prescribe:
Provided that the payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under rule 7.2 (4) In case falling under sub-rule (2) the period of absence from duty shall not be treated as a period spent on duty for all purposes:
(5) In a case falling under sub-rule (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government employee so desires, such authority may direct that the period of absence from duty shall be converted C.W.P.No.18098 of 2003 (O&M) -11- into leave of any kind due and admissible to the Government employee.
Note 1. This rule is absolute and unconditional and so the question of lien does not arise in the case of a Government employee who is dismissed from service and reinstated on appeal when the period of unemployment between the date of dismissal and reinstatement is declared by appellate authority as duty.
Note 2. Clause (b) of sub-rule (1) of this rule does not forbid the period spent under suspension being regarded as leave, and it is open to the revising or appellate authority to prescribe as the proportion of pay and allowances to be paid the leave salary which would be admissible, if the Government employee were on leave.
xxxx xxxx xxxx"
Rule 7.3(1) gives the discretion to the competent Authority to deal with the period of suspension as per sub-clauses (a) and (b). Thereafter, depending upon the facts and circumstances of the case, the competent Authority shall take a decision as has been provided under the subsequent sub-Rules. The case of the petitioner shall be covered under Rule 7.3 (3). This sub-Rule (3) has been further clarified and would fall in sub-Rule (5) where it is provided as to how that period has to be dealt with. In exercise of such power, the Competent Authority has C.W.P.No.18098 of 2003 (O&M) -12- decided to treat the period of suspension of the petitioner as leave of the kind due. Thus, the judgments on which reliance has been placed by the counsel for the petitioner would not be applicable to the claim of the petitioner.
However, there is a proviso attached to sub-rule (5), according to which, if a Government employee so desires, the Competent Authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government employee. This would invariably require a notice to be given to an employee before a decision is taken by the competent Authority on the question of how the period of absence from duty is to be treated. Respondents have not issued such a notice to the petitioner before passing the impugned order dated 28.10.2003 and, therefore, the same cannot sustain as the principles of natural justice have not been complied with especially when such a mandate is provided under this Rule itself. On this ground, the impugned order deserves to be set aside.
In view of the above, the order dated 28.10.2003 retiring the petitioner on his attaining the age of 55 years is maintained; however, the same is set aside to the extent it decides the suspension period of the petitioner i.e. from 22.8.1997 to 15.9.200 to be treated as leave of the kind due having been passed in violation of proviso to Rule 7.3(5) of the PCS Rules, Vol.1 Part 1.
The writ petition is partly dismissed and a direction is issued to the competent Authority to pass appropriate orders in accordance with law qua the period of suspension and grant consequential benefits to the C.W.P.No.18098 of 2003 (O&M) -13- petitioner. This exercise be completed within a period of 2 months from the date of receipt of certified copy of this order.
October 18, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE