CWP NO.1243 OF 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 19.11.2008 Ex.S.I.Bindra Ban ..Petitioner Versus State of Punjab and others ..Respondents CORUM HON’BLE MR.JUSTICE PERMOD KOHLI Present: None for the petitioner Mr.SS Sahu, AAG, Punjab PERMOD KOHLI,J. (ORAL) The petitioner was serving in the Punjab Police as Sub Inspector in the year 1979. He was involved in a criminal case for offences under Sections 302/34/347/342 of the IPC and a charge- sheet was presented in the court of Sessions Judge. On trial, he was acquitted of the charges, except Section 342 and convicted one year’s rigorous imprisonment alongwith fine of Rs.1000/-. The conviction came to be challenged by the petitioner before the High Court in Crl.Appeal No.455-SB of 1981. The State also filed an appeal being Crl.Appeal No.35-DBA of 1982. The Division Bench of this Court acquitted the petitioner of the charge under Section 342 IPC vide order dated 2.5.1984. He was prematurely retired from service w.e.f. 3.7.1984. Prior to his premature retirement, the Senior Superintendent of Police, Jalandhar vide his order dated CWP NO.1243 OF 1988 2 30.5.1983 reinstated the petitioner on his acquittal, however, without any financial benefit, by ordering forfeiture of two years of his service with permanent effect. From the order dated 30.5.1983, it appears that this order was passed without initiating departmental proceedings against the petitioner. On his involvement in criminal charges, the petitioner was suspended on 22.6.1979 and remained under suspension till 21.8.1981 when he was ordered to be reinstated. The petitioner made a representation against the forfeiture of his two years service. On consideration of representation, the Senior Superintendent of Police, Jalandhar vide his order dated 17.9.1984 revoked the order of forfeiture of service, but deprived the petitioner of the financial benefits. An appeal preferred by the petitioner also came to be dismissed by the Deputy Inspector General of Police, Jalandhar Cantt. The petitioner made some further representations and finally filed the present petition challenging the order of the respondents (Annexures P-3 and P-5) whereby the forfeiture of two years service has been revoked, but without any financial benefits and representation was rejected. In the reply filed, the respondents have specifically stated that on acquittal of the petitioner, the order of forfeiture of two years service was revoked. It is, however, stated that the petitioner is not entitled to the financial benefits, in view of Rule 7.3-B (3) (1) of the Punjab Civil Services (Vol.1, Part-1) which reads as under:- “7.3-B (1) When a Government employee who has been suspended is reinstated or would have been so re-instated for his retirement on CWP NO.1243 OF 1988 3 superannuation while under suspension the authority competent to order re-instatement shall consider and make a specific order- (a)regarding the pay and allowances to be paid to the Government employee for the period of suspension ending with re-instatement 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)Notwithstanding anything contained in rule 7.3 or rule 7.3-A, where a Government employee under suspension dies before the disciplinary or court proceedings instituted against him, are concluded, the period between the date of suspension and the date of death shall be treated as spent on duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled, had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3)Where the authority competent to order re- instatement is of opinion that the suspension was wholly unjustified, the Government employee shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he CWP NO.1243 OF 1988 4 would have been entitled, had he not been suspended. Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government employee, had been delayed due to reasons directly attributable to the Government employee, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct for reasons to be recorded in writing that the Government employee shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4)In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. (5)In cases other than those falling under sub- rules (2) and (3), the Government employee shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been suspended, as the competent authority may determine, after giving notice to the Government employee of the quantum proposed and after CWP NO.1243 OF 1988 5 considering the representation, if any, submitted by him in that connection within such period as may be specified in the notice. (6)Where suspension is revoked pending finalization of the disciplinary or court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government employee shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub- rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5) as the case may be. (7)In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the 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 order that the period of suspension shall be converted into leave of any kind due and admissible to the Government employee. (8)The payment of allowances under sub-rule (2), sub-rule (3) or sub rule (5) shall be subject to all other conditions under which such allowances CWP NO.1243 OF 1988 6 are admissible. (9)The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under rule 7.2.” Sub Rule (1) of Rule 7.3-B empowers the Government to take decision regarding the period of suspension. It is admitted case of the respondents that there is no specific decision regarding the period of suspension, particularly when the petitioner was acquitted of the criminal charge. Sub Rule (3) further provides that where the competent authorities is of the opinion that the suspension was wholly unjustified, the Government employee is entitled to full pay and allowances etc. In the present case, the competent authority, though ordered reinstatement of the petitioner vide order dated 17.9.1984, but directed the forfeiture of two years service without considering the facts and without recording any reason. Subsequently, when the representation of the petitioner was considered and rejected, no reason has been recorded. In this view of the matter, this petition is allowed and respondents are directed to take decision as to whether period of suspension of the petitioner is to be treated as period on duty and if the competent authority is of the opinion that the period of suspension is to be treated as period on duty and there is no legal impediment, the petitioner shall be entitled to the monetary benefits. If for any other reason, the competent authority is of the opinion that the petitioner is not entitled to the monetary benefits, it CWP NO.1243 OF 1988 7 will record its reason and communicate the decision to the petitioner. Let the process of consideration be concluded within a period of four months. (PERMOD KOHLI) JUDGE 19.11.2008 MFK Note:Whether to be referred to reporter or not:YES/NO