Punjab-Haryana High Court
Hukam Singh vs State Of Haryana And Another on 23 November, 2000
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Petitioner Hukam Singh seeks a direction to regularise the period from 1.2.1986 to 1.5.1986 when the petitioner had been suspended and for a direction to grant the salary of the period from 2.5.198610 18.2.1998.
2. The relevant facts are that the petitioner had been appointed as a Lecturer in Hindi on 21.9.1977 on ad hoc basis. His services were regularised w.e.f. 1.1.1980. He was convicted on 1.2.1986 for the offences punishable under Sections 302, 307 and 324 read with Section 34 of the Indian Penal Code. His services were terminated due to his conviction in a criminal case. The conviction of the petitioner was upheld by this Court and he preferred appeal in the Supreme Court. The Supreme Court had allowed the appeal and acquitted the petitioner. After acquittal, the petitioner was reinstated vide order dated 1.7.1998 and the petitioner has since joined his service. The petitioner represented for regularisation of the period of suspension from 1.2.1986 to 1.5.1986 and for grant of salary of the period from 2.5.1986 to 18.2.1998. He prayed for his name in seniority list to be kept as per his seniority that had been fixed when he was earlier in service.
The grievance of the petitioner is that due claim of the petitioner has not been granted and the Director, Secondary Education Haryana, Chandigarh, on 8.2.2000 had passed the following order:
"Consequent upon the decision of Hon'ble Supreme Court the applicant was allowed to join back his duty on 1.8.1998 but so far back wages to the applicant is concerned, that could not be given to him due to the reason explain below :
Shri Hukam Singh, Lecturer-in-Hindi, G.S.S.S., In-dri (Karnal) remained out of service from 1.2.1986 to 31.7.1998. As he did not work with the employer during this period, he is not entitled for back wages. Nothing will be paid to him beyond the subsistence allowance which has been paid to him for the suspension period i.e 1.2.1986 to 2.5.1986.
Whereas as per the provisions of Rule 7.3 of Punjab C.S.R. Vol.-1, Part-1, the competent authority is required to pass a specific order with regard to payment of salary etc. after reinstatement of Government employee keeping in view the circumstances of the case. The Hon'ble Supreme Court has held in Hukmi Chand v. Jhabua Cooperative Central Bank Limited and another, 1998(3) RSJ 306 : 1998(4) SCT 297 (SC), that the right to reinstatement on acquittal, therefore, does not carry with it by necessary implication a right of back wages. The grant of back wages in these circumstances will obviously depend upon the facts and circumstances of each case especially because in the interregnum, the employee does not work with the employer on account of valid termination of service. In Smt. K. Ponnamma v. State of Kerala and others, AIR 1997 SC 366O, case Hon'ble Supreme Court upheld the orders of the authority whereby suspension allowance was paid and salary not granted. Hence, the case of the applicant is also similar.
Keeping in view the above circumstances and the law of land in the case of Hukmi Chand v. Jhabua Cooperative Central Bank Limited and Smt. K. Pon-namma's case, Shri Hukam Singh, Lecturer-in-Hindi, G.S.S.S., Indri (Karnal) is not entitled for the back wages and his intervening period cannot be treated as duty period. Therefore, his claim is hereby rejected."
The petitioner claims that he is entitled to the back wages from 1.2.1986 to 31.7.1998 and the intervening period should be treated as duty. The order to the contrary is challenged to be illegal.
3. In the written statement filed, petition as such had been contested. It is not in dispute that the petitioner was convicted by the Additional Sessions Judge, Karnal, for the offences punishable under Sections 302/307/324 read with Section 34 of the Indian Penal Code. His services were terminated. His appeal was dismissed by this Court but the Supreme Court has allowed the appeal of the petitioner and he has been acquitted. The petitioner cannot be given the back wages because he had not served for that period. The right of reinstatement on acquittal does not carry with it an implication that back wages must be paid.
4. It is apparent from the statement of facts given above that the short question that comes up for consideration is as to whether in the peculiar facts when the petitioner has since been acquitted, he is entitled to the entire back wages or not ?
5. On behalf of the State, reliance was strongly placed on the decision of the Supreme Court in the case of Smt. K. Ponnamma v. State of Kerala and others, AIR 1997 Supreme Court 3660 : 1997(2) SCT 738 (SC). In the cited case, the Supreme Court was concerned with Kerala Service Rules, 1959. The concerned person had been suspended during the trial and the question for consideration was as to whether after acquittal, the said person would be entitled to the entire salary for that period or not ? The answer provided by the Supreme Court was as under :-
"A reading thereof would clearly indicate that where an officer has been kept under suspension, on account of the pendency of the charge/detention for 48 hours and continued to remain under suspension pending the trial of the criminal charge, statutorily he/she is disabled to perform the duties of the post. On reinstatement under Rule 56, the competent authority shall have a duty to consider whether, on reinstatement, suspended officer would be entitled to the payment of full pay etc. for the period of his suspension. The mandate of Rule 56 is that the competent authority should consider the case in accordance with the rules and pass the order. The nature of the order is discretionary depending upon the facts in the case. It is seen that on account of the involvement of the petitioner in a criminal charge by statutory operation, she was under suspension till she was acquitted. On acquittal, the department enquiry was conducted as to the nature of the order to be made under Rule 56. Accordingly, the authority in its discretion, found that the payment of the salary during the period of suspension except suspension allowance already paid, could not be granted. It being in accordance with the rules, we do not think that the High Court has committed any error warranting interference."
The ratio decidendi of this judgment will not apply because the Supreme Court in that case was concerned with Rule 56 of the Rules applicable in Karnal State which is para materia to Rule 7.3 of the Punjab Civil Services Rules as applicable to the State of Haryana. As would be noticed hereinafter, in the present case the Rule applicable would be 7.5 of the Punjab Civil Services Rules as applicable to the State of Haryana and consequently we have little hesitation in accepting the said contention.
6. Our attention was further drawn to the subsequent decision of the Supreme Court in the case of Hukmi Chand v. Jhabua Cooperative Central Bank Ltd. Jhabua (M.P.) and another, 1998(3) Recent Services Judgments 306. In the cited case, under Chapter XI of the Rules pertaining to conditions of employees of Cooperative Central Bank in M.P., Rule 49 was to the following effect :-
"49. (i) If an employee is arrested on any criminal charge the President shall order his suspension from the date of arrest and may allow suspension allowance provided in the rules, during the period of enquiry. After the completion of enquiry his salary and allowances may be determined in accordance with the nature of the case against him and it may also be determined whether to treat him on duty or leave during the period of suspension. If the employee be found not guilty of all charges levelled against him, the Bank may consider whether to pay him for the suspension period full salary and allowance admissible to him or to treat him on duty during that period. If an employee is convicted and sentenced for any offence by jail sentence his services shall be deemed to have been terminated and in such a case it will not be necessary to give him a charge-sheet for the absence from duty.
(ii) When the sentence awarded by a lower Court is set aside by a superior Court and the employee is honourably acquitted he may be reinstated in the service of the Bank without any back wages, unless otherwise stated in the order."
It is abundantly clear from the said rule that the decision had to be taken after the person is acquitted if back wages have to be provided or not. The Supreme Court also held on the same lines. Keeping in view the above-said rule, it was held that grant of back wages would depend upon the facts and circumstances of that case. The said rule is not applicable in Haryana and consequently even the decision in Hukmi Chand's case (supra) will not apply.
7. At this stage, we deem it necessary to advert to Rule 7.3 of the Punjab Civil Services Rules as applicable to Haryana State (for short "the Rules"). Sub-rules (1) and (2) of Rule 7.3 of the Rules reads as under: "
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 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 exonerated or, in the case of suspension, that it was wholly unjustified, the Government employee shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be."
Rule 7.5 of the Rules also assumes importance. In this connection, reference can well be made to Rule 7.5 of the Rules which deals with suspension during pendency of criminal proceedings and effect thereafter. It reads as under :-
"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 allowance 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 its 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."
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 taken 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.
8. In our this view, we are supported by the judgment of this Court in the case of Maha Singh v. State of Haryana and another, 1993(8) Services Law Reporter 188:1994(1) SCT 154 (P&H). Same view was expressed by this Court in the case of Lehna Singh v. The State of Haryana and others, 1993(3) Recent Services Judgments 119 : 1994(1) SCT 173 (P&H). 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.
9. Order accordingly.