CWP No.3789 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3789 of 2008 Decided on : 17.03.2009 Zile Singh ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAY TEWARI Present:- Mr. Sushil Bhardwaj, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. AJAY TEWARI J. The petitioner was charge sheeted and placed under suspension. After regular inquiry, he was ultimately issued the punishment of censure. The order further laid down that the period of suspension of the petitioner would be treated as leave of the kind due. Learned counsel for the petitioner claims that suspension period of the petitioner should be treated as duty period. He has relied upon a judgment of this Court in the case of Krishan Sewak V. State of Haryana and another reported as 1997 (4) RSJ 162 wherein a Division Bench held as follows:- “Looking to the final order passed by the punishing Authority after the departmental enquiry resolution in a warning, it does not appear to be appropriate, just and proper to deny the petitioner the benefit of the suspension period. Though the petitioner CWP No.3789 of 2008 -2- did file an application, seeking regularisation of the suspension period by the sanction of the commuted or earned leave, he withdrew his application in January, 1997. He had already filed a representation before the State Government claiming that in view of the finding given by the Enquiry Officer, his suspension period may be treated to be period on duty. His representation was rejected. Looking to the facts of the case, the order refusing to treat the suspension period as period on duty cannot be upheld. As has been seen, the petitioner has been given warning on the charge that he failed to furnish the requisite documents after obtaining the scooter advance. There is no charge that he has misused the advance money. He did purchase the scooter, though he failed to produce the documents including mortgage deed and the purchase voucher in time. He furnished the papers very late and, for that reason warning has been awarded to him after departmental enquiry.” Similarly, in the case of Dalip Singh V. State of Haryana and another reported as 2004(1) RSJ 235 a Division Bench of this Court held as follows:- “There is no dispute to the fact that no notice was given to the petitioner separately before the disciplinary authority passed the order denying full salary to the petitioner for the period of suspension. Secondly, the punishment awarded in this case is also that of warning CWP No.3789 of 2008 -3- only. It was contended on behalf of the State that in the case of Sarwan Kumar (supra) the enquiry officer had found the petitioner not guilty of charges but the disciplinary authority while differing with the enquiry report, held the petitioner to be guilty of article of charges and imposed the punishment of warning. As such the said judgment has no application to the facts of the present case.....” “We are unable to understand this distinction. In both the cases the disciplinary authority must necessarily record its conclusion that articles of charges were proved. In the above mentioned cases, punishment of warning was imposed upon the delinquent officials. It would no way create any distinction from the case afore- referred merely because the enquiry officer had held that article of charges was not proved. We are of the considered view that the authorities concerned ought to have granted reasonable opportunity to the petitioner and consider the case of the petitioner in light of the law above referred. No reason, whatsoever, has been stated in the impugned order by the authorities for rejecting the claim of the petitioner with otherwise is quite sustainable in law.....” “For the reasons afore-stated, we set aside the order dated 26.4.2002 Annexure P-4 and direct the respondents to pay the petitioner his salary for the period CWP No.3789 of 2008 -4- in question. The writ petition is accordingly allowed, however, leaving the parties to bear their own costs. Similarly, in the case of Y. P. Sehgal V. State of Punjab and another reported as 1992(1) SLR 583 a Division Bench of this Court held as follows:- “In these circumstances, when the petitioner has been reinstated and the proposed disciplinary action against him has resulted in the imposition of minor punishment of censure, it is neither permissible in law nor fair to deny to him the arrears of salary and allowances beyond the subsistence allowance granted to him during the period of suspension. Otherwise, also, as already noted above, it is a settled rule of law that if an employee has to be disallowed the arrears of salary and allowances and he has to be paid nothing beyond the subsistence allowance, an opportunity of hearing by issuing a notice to him has to be granted, without which the impugned action would be wholly arbitrary and violative of the principles of natural justice. Since no such opportunity was afforded to the petitioner before passing the impugned order, the same is quashed, being violative of the principles of natural justice.” No contrary judgment has been cited by the respondents. In my opinion, the facts of the present case would be completely covered by the exposition of law extracted above. CWP No.3789 of 2008 -5- It is not disputed that though the petitioner was not exonerated, yet it can not be said that the infraction committed by him was serious. This is clear from the fact that punishment of censure was awarded to him. Further it is also not disputed that no notice was given to the petitioner separately before the disciplinary authority passed the order denying full salary to the petitioner. In the circumstances, this writ petition is allowed and the respondents are directed to consider the period of suspension of the petitioner as duty period. March 17, 2009 ( AJAY TEWARI ) ashish JUDGE