RSA No.1348 of 2007 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1348 of 2007 Date of Decision: 24.01.2011 Punjab State Electricity Board and others ……Appellants Versus Jarnail Singh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. N. S. Boparai, Advocate for the appellants. Mr. Veneet Sharma, Advocate for the respondent. L.N. MITTAL, J (ORAL) Defendants-Punjab State Electricity Board (in short, PSEB) and its officers, having failed in both the Courts below, are in second appeal. Respondent-plaintiff-Jarnail Singh, who was employed as Assistant Lineman in PSEB. The plaintiff was arrested in FIR No.44 dated 21.05.1997 under Section 302 IPC. Intimation of his arrest was given by Sub-Divisional Officer of PSEB vide memo dated 23.05.1997. On account of arrest, the plaintiff was placed under suspension. Ultimately, the plaintiff was acquitted in the said case giving benefit of doubt, by learned Sessions Judge, Amritsar vide judgment dated 19.04.1999. Pursuant thereto, the plaintiff was reinstated vide order dated 02.08.1999. Thereafter charge- sheet dated 28.10.1999 was served on him. Plaintiff submitted reply to the same. Vide order dated 18.08.2000, one annual increment of the plaintiff without cumulative effect was stopped and vide the said order itself, the RSA No.1348 of 2007 - 2 - suspension period was treated to be leave of the kind due. Plaintiff preferred appeal against the said order. Appellate Authority vide order dated 09.04.2002 restored the increment, but did not treat the suspension period as period spent on duty. Respondent-plaintiff filed suit to challenge the same. The plaintiff sought declaration that order dated 09.04.2002 of the appellate authority whereby suspension period of the plaintiff has been treated as period not spent on duty is null and void and the plaintiff is entitled to all consequential benefits along with interest at the rate of 18% per annum. Defendants contested the suit. Factual position was not controverted. However, the impugned order was defended, alleging the same to be legal and valid. It was pleaded that plaintiff is not entitled to get the suspension period treated as period spent on duty. The said period has been rightly treated to be leave of the kind due. Various other pleas were also raised. Learned Civil Judge (Senior Division), Amritsar vide judgment and decree dated 25.05.2004 decreed the plaintiff's suit with simple interest at the rate of 10% per annum. First appeal preferred by defendants has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Amritsar vide judgment and decree dated 12.10.2006, except reducing the rate of interest from 10% to 8% per annum provided the arrears are paid within four months, failing which interest rate awarded by the trial Court shall be paid. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that Rule 7.3 of the Punjab State Electricity Board Main Service Regulations RSA No.1348 of 2007 - 3 - Volume I Part I, 1972 (in short, the Rules) has not been taken into consideration by the Courts below and in view of said Rule, the appellants were entitled to treat the suspension period of the plaintiff as period not spent on duty. In support of this contention, reliance has been placed on three judgments of Hon'ble Supreme Court i.e . Smt. K. Ponnamma versus The State of Kerala and others, 1997(3) RSJ 32; Depot Manager, A.P. State Road Transport Corporation, Hanumakonda versus V. Venkateswarulu and another etc.etc., 1994(2) RSJ 681 and Ajit Kumar Nag versus G.M. (P.J) Indian Oil Corporation Ltd. Haldia and others, 2005(4) RSJ 614. On the other hand, learned counsel for the respondent-plaintiff contended that the plaintiff stood acquitted of the charge against him on account of which he was placed under suspension and, therefore, suspension period deserves to be treated as period spent on duty. Reliance in support of this contention has been placed on judgment of Supreme Court in the case of Andhra Bank versus W.T. Seshachalam, 2004(1) RSJ 706 and judgment of this Court in the case of Maha Singh versus State of Haryana and another, 1994 (1) RSJ 251. In the alternative, it was contended that the plaintiff has not even been paid the subsistence allowance for the suspension period and the plaintiff is entitled for the same. I have carefully considered the rival contentions. Relevant Sub-Rules (1), (2) and (3) of Rule 7.3 of the Rules are reproduced hereunder:- “7.3 (1) When a Board Employee, who has been dismissed, removed, compulsorily retired or suspended, is reinstated, or would have been reinstated but for his retirement on superannuation while RSA No.1348 of 2007 - 4 - under suspension, 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 Board employee for the period of his absence from duty, or for the period of suspension, ending with 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-regulation (1) is of opinion that the Board employee has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Board 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. (3) In other cases, the Board employee shall be given such proportion of such pay and allowances as the Board may prescribe:- Provided that the payment of allowances under Clause (2) or Clause (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 Regulation 7.2.” Sub-Rule (2) of Rule 7.3 of the Rules stipulates that the employee shall be given full pay and allowances for the suspension period if the competent authority is of the opinion that the suspension was 'wholly unjustified’. In other cases, in accordance with Sub-Rule (3) of Rule 7.3 of RSA No.1348 of 2007 - 5 - the Rules, the employee shall be given such proportion of such pay and allowances as the Board may prescribe. It is thus manifest that the question to be decided would be whether the suspension was wholly unjustified or not. If the suspension was wholly unjustified, then the plaintiff would be entitled to full pay and allowances for the suspension period. If the suspension was not wholly unjustified, then it is for the competent authority to decide proportion of pay and allowances to which the plaintiff/employee shall be entitled to for the suspension period. In the instant case, the plaintiff was arrested in murder case. Consequently, he became liable to suspension and was accordingly suspended. Perusal of judgment of Sessions Judge whereby plaintiff was acquitted in the said case reveals that the plaintiff remained in custody during the trial. In other words, even if the plaintiff had not been placed under suspension, he would not have attended his duty during suspension period being in custody and, therefore, he would not have been entitled to full pay and allowances for the suspension period. In any event, suspension of the plaintiff during his arrest and trial in the murder case cannot be said to be unjustified much less wholly unjustified. Consequently, the plaintiff is not entitled to benefit of Sub-Rule (2) of Rule 7.3 of the Rules regarding full pay and allowances for the suspension period. On the contrary, case of the plaintiff is consequently covered by Sub-Rule (3) of Rule 7.3 of the Rules and the competent authority has decided to treat the suspension period as leave of the kind due. No fault can, therefore, be found with the order passed by the competent authority treating the suspension period as leave of the kind due. In this conclusion, I am supported by direct judgments of Hon’ble Supreme Court in the cases of Smt. K. Ponnamma (supra) and V. Venkateswarulu (supra). In those cases, the employee was suspended on account of prosecution on criminal charge. On acquittal, the employee was reinstated. It was held that competent authority in its discretion could order that full salary for the suspension period except subsistence allowance RSA No.1348 of 2007 - 6 - already paid, be not paid. It was held that denial of back wages being in accordance with the Rules, the order was justified. Even after acquittal in criminal case, it was within power of the competent authority to withhold full salary for the suspension period on justifiable grounds. Even in the case of Ajit Kumar Nag (supra), it was held that acquittal by a Criminal Court would not debar an employer from exercising power in accordance with Rules and Regulations in force. Consequently, in the instant case, the impugned order of the defendants treating the suspension period of the plaintiff as leave of the kind due being in accordance with Rule 7.3 of the Rules cannot be faulted with and, therefore, the plaintiff cannot be held entitled to full salary and allowances for the said period. Judgment in the case of W.T. Seshachalam (supra) cited by learned counsel for the plaintiff- respondent is not at all applicable to the facts of the instant case. In that case, Sastry Award was applicable to the Workman, who was entitled to full pay and allowances as subsistence allowance after one year of suspension. Consequently, Workman was held entitled to said subsistence allowance in accordance with provisions of Sastry Award. In the instant case, Rules applicable to the plaintiff are different as discussed hereinbefore. Judgment in the case of Maha Singh (supra) to some extent supports the contention of counsel for plaintiff-respondent. However, in view of judgments of Hon’ble Supreme Court in the cases of Smt. K. Ponnamma (supra) and V. Venkateswarulu (supra), the contention raised by counsel for respondent cannot be accepted. For the reasons aforesaid, I find that the following substantial question of law arises for determination in this second appeal:- “Whether finding of the Courts below that order of the defendants treating suspension period of the plaintiff as leave of the kind due is null, void and illegal , is patently perverse and illegal and not sustainable in law?” RSA No.1348 of 2007 - 7 - For the reasons already recorded, answer to this question is in the affirmative i.e in favour of the appellants. Alternative contention of counsel for the plaintiff-respondent that plaintiff is entitled to subsistence allowance for the suspension period has to be accepted. Second proviso to Sub-Rule (3) of Rule 7.3 of the Rules categorically stipulates that proportion of pay and allowances to be paid to the suspended employee for the suspension period shall not be less than the subsistence allowance and other allowances admissible under Rules 7.2. Consequently, the plaintiff is entitled to at least subsistence allowance for the suspension period. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of both the Courts below are set aside and suit filed by the plaintiff-respondent is dismissed. However, the plaintiff shall be paid subsistence allowance for the suspension period as per Rules of the defendants. (L. N. MITTAL) JUDGE 24.01.2011 A.kaundal