Civil Writ Petition No. 5130 of 1999 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 5130 of 1999 (O&M) Date of Decision: November 23rd, 2010 Jaswant Singh Kanwar …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.D. Sharma, Senior Advocate with Mr. Anupam Sharma, Advocate for the petitioner. Mr. Salil Sagar, Additional Advocate General, Punjab, Mr. Ravin S. Chauhan, Deputy Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 11607 of 2010 Civil Misc. Application is allowed. Documents (Annexures P10 and P11) are taken on record. Civil Writ Petition No. 5130 of 1999 Petitioner Jaswant Singh Kanwar, who retired as Assistant Controller (Finance and Accounts), from the Department of Finance, Punjab, Chandigarh, has approached this Court by filing the present writ petition and has prayed that the impugned order dated 22.10.1998 (Annexure P5) be quashed. A perusal of the impugned order (Annexure P5) reveals that the petitioner, who was working in the office of the Civil Writ Petition No. 5130 of 1999 (O&M) 2 General Manager, Punjab Roadways at Chandigarh, was placed under suspension vide order dated 17.2.1988 due to shortage of cash found in the accounts by the inspection party while making physical check of the cash for the period commencing from 1.1.1988 to 3.2.1988. The impugned order (Annexure P5) further states that thereafter the charge sheet was served upon the petitioner. His reply was not found satisfactory and the Enquiry Officer was appointed. The Enquiry Report was not accepted by the Government and the Show Cause Notice was issued to the petitioner. Reply to the Show Cause Notice was also not found satisfactory and two increments of the petitioner with cumulative effect were stopped and his suspension period commencing from 17.2.1988 to 7.1.1993 was treated as leave of kind due. The impugned order further states that the punishment was approved by the Punjab Public Service Commission, vide communication dated 25.4.1996. The appeal filed by the petitioner was also rejected. The impugned order (Annexure P5), under challenge, further states that the petitioner had filed a writ petition viz. Civil Writ Petition No. 12841 of 1997 in this Court and the matter was remanded back to the Punishing Authority to decide afresh. After reconsideration, the Principal Secretary to Government of Punjab, Department of Finance, had ordered that the period of suspension from 17.2.1988 to 7.1.1993 would be treated as leave of kind due and the petitioner would be entitled to pay and allowances not more than the subsistence allowance paid to him during the period of his suspension and furthermore the period of suspension would not be treated as a period spent on duty. In the present writ petition, the petitioner is not only seeking quashing of this punishment, so awarded, Civil Writ Petition No. 5130 of 1999 (O&M) 3 but also prayed that the order (Annexure P7) be also set aside whereby for the period of suspension, no increment has been awarded to the petitioner. Even though the impugned order (Annexure P5) noticed all the facts in brief, but still, to answer the issues raised in the present writ petition, the facts can be recapitulated as under. In the month of February 1988, the petitioner was working as an Assistant Accounts Officer in the office of the General Manager, Punjab Roadways, Chandigarh, where he was lateron designated as Assistant Controller (Finance and Accounts). The Inspection Committee had carried out a physical verification of accounts in the office of the petitioner and it came to light that three cashiers namely Ved Parkash, Rattan Chand and Bhag Singh, under the control and supervision of the petitioner, had embezzled a sum of ` 3,97,646.70. Consequently, the petitioner was suspended on 17.2.1988. Thereafter, the charge sheet was served upon the petitioner on 3.6.1988 and the Enquiry Officer was appointed. It is stated that the Enquiry Officer had exonerated the petitioner from the charge of embezzlement. However, for certain lapses on the part of the petitioner, he was held responsible. The Government had not agreed with the report of the Enquiry Officer and issued a Show Cause Notice to the petitioner on 19.8.1992. The petitioner has submitted his reply thereto on 15.10.1992. However, the petitioner was reinstated in service on 7.1.1993. The order dated 4.5.1994 (Annexure 3) was passed whereby the entire period of suspension was treated as a leave of the kind due and two increments of the petitioner with cumulative effect were stopped. This action of the respondents was challenged by the petitioner in this Court by way of filing a Civil Writ Civil Writ Petition No. 5130 of 1999 (O&M) 4 Petition. A Division Bench of this Court had decided the said writ petition viz Civil Writ Petition No. 12841 of 1997, preferred by the petitioner, vide order dated 20.3.1998 (Annexure P4) by observing as under:- “...The petitioner now complains that he is being asked to refund an amount of more than one lac rupees on the ground that the Competent Authority has decided to treat the period of suspension as leave of the kind due. The petitioner complains that it is an unbearable burden for a retired employee and that such a decision should not have been taken without the grant of a reasonable opportunity. Learned counsel for the State very fairly states that he has been instructed by the Department to give an undertaking that the matter shall be decided afresh hearing the petitioner. The learned counsel clarifies that the orders dated May 4, 1994 and September 15, 1994 shall not be implemented and that a fresh decision shall be taken after the grant of due and reasonable opportunity to the petitioner. In view of the undertaking given on behalf of the respondents Mr. Sharma prays for permission to withdraw the writ petition and states that he would raise all the objections raised in this petition before the Appropriate Authority. Civil Writ Petition No. 5130 of 1999 (O&M) 5 The petition is accordingly disposed of. No costs”. As noticed above, in pursuance of order (Annexure P4), order (Annexure 5) was passed, wherein it was ordered that the petitioner would not be entitled to pay and allowances more than the subsistence allowance paid to him during the period, for which he remained under suspension. Furthermore, the period of suspension would not be treated as the period spent on duty. It is pleaded in the present writ petition that the respondent, while deciding the matter afresh, had not considered the arguments with respect to the increments which were withheld qua the period of suspension. It is urged that the increments which had accrued to the petitioner, during his suspension, cannot be withheld. It is further stated that the increments became due to the petitioner on 1.5.1988, 1.5.1989, 1.5.1990, 1.5.1991, 1.5.1992, 1.5.1993 and 1.5.1994 and even the petitioner is not to be paid more than the subsistence allowance, thus, he is entitled to the increments. The petitioner has placed reliance upon Rule 7.3.B(1) of the Punjab Civil Services Rules, Volume I Part I. This rule has been reproduced in para 9 of the writ petition and for facility of reference, the same is reproduced hereunder:- “7.3-B (1) When a Government employee who has been suspended is reinstated or would have been so re-instated but for his retirement on superannuation while under suspension the authority competent to order re-instatement shall consider and make a specific order- (a) regarding the pay and allowance to be Civil Writ Petition No. 5130 of 1999 (O&M) 6 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 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 Civil Writ Petition No. 5130 of 1999 (O&M) 7 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 or the quantum proposed and after 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 finalisation of the disciplinary or court proceedings, Civil Writ Petition No. 5130 of 1999 (O&M) 8 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 or 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. Note- The order of the competent authority under the preceding proviso shall be absolute and no sanction of the higher authority shall be necessary for the grant of- (a) extraordinary leave in excess of three months in the case of temporary Government employee; and (b) leave of any kind in excess of five years in the case of permanent Government Civil Writ Petition No. 5130 of 1999 (O&M) 9 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 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. Note- A suspended Mounted Police Officer on reinstatement, even if such officer is found not guilty of charges preferred against him will not be given conveyance allowance for the period of suspension. Note2 The period spent under medical treatment by a Government employee under suspension, shall be treated as spent under suspension and the subsistence allowance as admissible under the rules shall be given for that period on reinstatement, it shall be specified whether it is to be treated as 'duty' or 'non- duty' with reference to the provisions of this rule, unless the Government employee concerned desires and the competent authority orders that it may be Civil Writ Petition No. 5130 of 1999 (O&M) 10 converted into leave of the kind due and admissible to him. Note3: Extra post is not required to be created for grant of full pay and allowances on reinstatement of a suspended employee after his having been fully exonerated. Note 4: Also see note 4 under rule 7.3(8)”. The petitioner has further relied upon Rule 4.7 of the Punjab Civil Services Rules, Volume I Part I to say that till an increment is withheld the same, in ordinary circumstances, has to flow to the employee. Furthermore, the petitioner, vide Civil Misc. No. 11607 of 2010, has placed on record a copy of the judgment dated 30.1.2006, passed by the Judicial Magistrate Ist Class, Chandigarh, whereby he was acquitted of the charges in case FIR No. 27 dated 5.2.1998 registered at Police Station East, Chandigarh, under Sections 409, 477- A and 120-B IPC. The Court of Judicial Magistrate Ist Class, Chandigarh, has acquitted the petitioner of the charges by giving benefit of doubt as it was stated that the prosecution has miserably failed to prove the charges framed against him. Furthermore, the petitioner has relied upon the order dated 13.3.2008 (Annexure P11), passed qua Rattan Lal, Assistant Cashier, who had embezzled the funds to say that in the case of Rattan Lal, the period of suspension has been treated as a period on duty for all intents and purposes. Learned counsel for the petitioner, during the course of arguments, has urged that no notice regarding the proposed punishment was issued to the petitioner. However, a perusal of the impugned order Civil Writ Petition No. 5130 of 1999 (O&M) 11 (Annexure P5) reveals that personal hearing was granted to the petitioner. The relevant portion of the impugned order (Annexure P5) reads as under:- “...In view of the aforesaid judgment dated 28.3.98 of the Hon'ble High Court of Punjab & Haryana, the case of Sh. J.S. Kanwar, Assistant Controller (F&A) has been reconsidered and he has also been heard in person on 10.9.98. Now reconsidering all the aspects of the case, the undersigned decides that in supersession of the orders issued by this Department vide letter No. 1/130/90/13T/T&A/94/5013 dated 4.5.94 (treating the suspension period as leave of the kind due) and No. 2/133/13T/94/T&A/10580 dated 15.9.94 (rejecting his representation against treating the suspension period as leave of kind due). Sh. J.S. Kanwar, Assistant Controller (F&A) Retd. will be entitled (during the period of suspension) to pay and allowances not more than the subsistence allowance paid to him during the period of suspension. Further the period of suspension shall not be treated as a period spent on duty...” The petitioner cannot claim parity with the case of Rattan Lal, Cashier, as he was not holding the office of responsibility which the petitioner was holding as an Assistant Controller (Finance and Accounts). The petitioner was admittedly the Drawing and Disbursing Civil Writ Petition No. 5130 of 1999 (O&M) 12 Officer also. Higher the post higher the responsibility. Therefore, the parameters of punishment in the eyes of the Punishing Authority can differ. The petitioner being the Assistant Controller (Finance and Accounts) cannot claim parity with Rattan Lal, Assistant Cashier, who is a lowest ranked employee in the cadre. However, the petitioner has placed reliance upon the judgment rendered by the Division Bench of this Court in Rattan Lal v. State of Punjab and Others 1995(2) Service Cases Today 650, wherein it was held as under:- “...2. On notice of motion, written statement has been filed accepting the facts as stated above. After hearing the counsel for the parties, we are of the view that in the absence of any order passed by the competent Authority, stopping or withholding of increments, even if the petitioner is under suspension, he has earned the same and subsistence allowance is accordingly to be paid to the petitioner. We so direct. These directions be complied within three months from the communication of this order...” Even though Rattan Lal was the junior most employee, vide order (Annexure P11), his suspension period has been treated as a period on duty. By virtue of the order of the Division Bench he has been granted increments for the period of suspension also. The impugned order (Annexure P5) specifically states that the period of suspension is not to be treated as a period on duty. If that is so, the petitioner will not be entitled to the increments as it is to be considered that for the Civil Writ Petition No. 5130 of 1999 (O&M) 13 relevant period of suspension, the petitioner had not discharged any duty. That being so, the petitioner will not be entitled to earn increments. At the same time, this Court cannot ignore of the fact that Rattan Lal, Assistant Cashier, who had embezzled the amount, has not only earned the increments in view of the order passed by this Court but his period of suspension has been treated towards duty and he has earned salary for that period as well. In the present case, the impugned order (Annexure P5) was passed on 22.10.1998. Thereafter, the petitioner has been acquitted in the criminal proceedings as well. Therefore, acquittal of the petitioner in the criminal case and the fact that his co-employee Assistant Cashier, who had embezzled the funds, has been granted benefit of increments, can be considered as a mitigating circumstance and the doctrine of proportionality can be invoked. Taking the facts and circumstances of the case in view, the order of punishment dated 22.10.1998 (Annexure P5) is modified to the extent that for the period of suspension, the petitioner will not be entitled to pay and allowances not more than the subsistence allowance so paid. However, the petitioner is held entitled to the increments which have accrued to him during the period of his suspension. With the observations made above, the present writ petition is disposed of with no order as to costs. (Kanwaljit Singh Ahluwalia) Judge November 23rd, 2010 “DK”