Punjab-Haryana High Court
The State Of Punjab & Others vs Jaswant Singh on 22 March, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
Regular Second Appeal No.2943 of 2008 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 22, 2010
The State of Punjab & others
...Appellants
VERSUS
Jaswant Singh
...Respondent
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.N.D.S.Mann, Addl.A.G.Punjab,
for the appellants.
Mr.Nakul Sharma, Advocate,
for the respondent.
*****
RANJIT SINGH, J.
State is in Regular Second Appeal to impugn the order passed by Addl.District Judge, Ferozepur whereby the order dated 17.3.2004 was declared illegal, null & void and, thus, respondent- plaintiff was held entitled to all the remuneration/full wages during the Regular Second Appeal No.2943 of 2008 (O&M) :2:
entire period of suspension.
The respondent-plaintiff, who was employed as a Conductor in Punjab Roadways, Ferozepur and had pleaded that he was falsely implicated in a case by inspectorate staff and placed under illegal suspension. Thereafter, a penalty of withholding of one annual increment without cumulative effect was passed on 5.5.2003. Another order was passed on 17.3.2004, whereby it was directed that respondent-plaintiff would not get anything except the subsistence allowance, which he had received during the period of his suspension. Aggrieved against this, respondent-plaintiff challenged both the orders dated 5.5.2003 and 17.3.2004 alleging that these are wrong, illegal and passed in violation of principle of natural justice.
Appellants appeared in response to a notice and have justified the suspension as well as the order of punishment of stoppage of one increment without cumulative effect. It is averred that the respondent-plaintiff had committed a fraud of Rs.36/- while on duty and after collecting the fare from the passengers, had not issued them tickets. It is further averred that the checking staff made a report and thereafter the respondent-plaintiff was placed under suspension. Regular enquiry was held and the respondent-plaintiff was found guilty. A show cause notice thereafter was issued and the penalty of withholding of one annual increment without cumulative effect was passed. Vide a separate order dated 17.3.2004, the payment for period of suspension was passed directing that respondent-plaintiff would not get anything except the subsistence allowance. This order was statedly passed after issuing show cause Regular Second Appeal No.2943 of 2008 (O&M) :3:
notice.
The respondent-plaintiff challenged these orders. The trial Court dismissed the suit on 28.11.2006. The respondent-plaintiff had appealed against the same and the first Appellate Court has set- aside the order dated 17.3.2004 on the ground that two orders of punishment cannot be passed for the one allegation. The State has accordingly filed an appeal.
Mr.Mann would refer to Hira Lal Sharma Vs. State of Haryana and another, 2004(4) R.S.J. 654 to contend that when the employee is not fully exonerated and punishment of censure is awarded, then restricting the benefit of suspension period case would be covered by Rule 7.3(1) of Punjab Civil Services Rules Vol.I and no further show cause notice is required. Order forfeiting the salary was held justified. The facts in this case were different. In Hira Lal's case (supra), the petitioner was dismissed from service but on appeal his punishment was reduced to censure. He had thus remained out of service, which period was regularised by directing that he would not be entitled to anything more than subsistence allowance while dismissing the appeal. The ratio may not apply to facts stated here in this case.
There cannot be scope of much doubt that the view taken by the first Appellate Court that the orders amount to two punishments and, thus, would be a double jeopardy is not legally sound. The punishment awarded to the respondent-plaintiff was only for stoppage of one increment without cumulative effect. Thereafter the appellants were to pass an order to decide about the salary for the period for which the respondent-plaintiff had remained under Regular Second Appeal No.2943 of 2008 (O&M) :4:
suspension. Rule 7.3 (1) and 7.3(2) of the Rules would govern the treatment of such a period. It was clearly observed by this court in order dated 29.1.2010 that the observations made by the first Appellate Court in this regard cannot be allowed to stand as this may not be correct legal position. It was further observed in the said order that while regularising the period of suspension, if such an order could be passed, which would appear more harsh than the punishment awarded for the allegations made. The reference made by the Appellate Court to some of the judgments was also noted and the counsel were directed to assist the court in this regard. Unfortunately, the State counsel having prayed for time on more than one occasion to prepare the case on this aspect, has today not addressed any argument in this regard.
The counsel for the respondent-plaintiff, however, has drawn my attention to judgments in the cases of Krishan Sewak Vs. The State of Haryana and another, 1997(4) RSJ 162 and Y.P.Sehgal Vs. State of Punjab and another, 1992(1) SLR 583. In the case of Krishan Sewak (supra) the allegations were disposed of by awarding penalty of warning. The period of suspension was regularised by grant of leave of the kind due. In this background, it was observed that the penalty of warning imposed after departmental enquiry was appropriate and to deny benefit of suspension period to the petitioner therein was held not justified. The respondent-State was accordingly directed to treat the period of suspension as duty period and to allow the benefits to him for the same.
The principle, which had weighed with the court, Regular Second Appeal No.2943 of 2008 (O&M) :5:
obviously was that the order, which was passed to regularise the period of suspension if allowed to operate more harshly than the punishment awarded for the offence, then it may be seen as unfair. Similar view is expressed by this court in Y.P.Sehgal's case (supra). In this case, the allegation was disposed of by awarding censure. It was held that it was neither permissible in law nor fair to deny arrears of salary and allowances for the period of suspension.
The reason which has weighed with this Court in the cases of Krishan Sewak and Y.P.Sehgal (supra) may not be strictly attracted to the facts of the present case. It is not a case where offence has been disposed of with award of warning or censure. The punishment awarded to the respondent-plaintiff can also not said to be minor punishment. Stoppage of one increment without cumulative effect is a major penalty and not a minor one. It is in this context required to be seen whether the direction to forfeit the period of his suspension would operate harshly in any manner. Once the allegations are disposed of with the award of punishment, which is a major penalty, it would not be possible to hold that the appellants were not justified in issuing directions about the salary for the period of suspension in terms of Rule 7.3 (1) and 7.3 (2). The substantial question of law, thus, would arise in this case as to whether order directing regularising the period of suspension could be treated as punishment or is a consequential order required to be passed in terms of Rule 7.3 (1) and 7.3 (2) of the Rules. The question of law as formulated has not been rightly appreciated and decided by the first Appellate Court.
Accordingly, the view taken by the first Appellate Court Regular Second Appeal No.2943 of 2008 (O&M) :6:
cannot be sustained. The judgment under appeal is, therefore, set- aside. The question of law is accordingly answered. The order dated 17.3.2004 shall stand restored. Decree sheet be prepared accordingly.
The Regular Second Appeal is accordingly allowed.
March 22, 2010 ( RANJIT SINGH ) ramesh JUDGE