RSA No. 3257 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3257 of 2011 (O&M) Date of decision 8.8.2011. State of Haryana through Collector, Bhiwani and others ...... Appellants. versus Hargian Singh ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Rajiv Malhotra, Advocate for the appellants. K.C.PURI . J. Challenge in this appeal is the judgment and decree dated 11.11.2010 passed by Mrs. Anita Chaudhary, District Judge, Bhiwani, vide which the appeal preferred by the defendants/appellant against the judgment and decree dated 21.4.2010 passed by Smt. Shashi Chauhan, Additional Civil Judge ( Senior Division ), Bhiwani was dismissed. 2. The case of the plaintiff as set forth in brief is that he was recruited as a constable on 9.11.1974 and after completion of training was RSA No. 3257 of 2011 2 posted at HAP Ambala. Plaintiff served at different stations under Hissar Range and retired on 31.8.2006. The work and conduct of the plaintiff remained highly satisfactory throughout his service. He earned commendation certificates from Inspector General of Police and Director of Police. It has been pleaded that the criminal case under sections 223 and 224 of the Indian Penal Code was registered against the plaintiff and other constables namely Madan Lal, Sandeep and Rajender vide FIR No.188 dated 3.4.2003 and plaintiff was suspended with effect from 17.4.2003 and reinstated pending enquiry on 22.12.2003. The criminal case was adjudicated by the Court of Shri Kuldeep Singh, learned Judicial Magistrate Ist Class, Rohtak and the plaintiff was acquitted vide judgment dated 9.3.2006. It has been pleaded that departmental enquiry was also initiated simultaneously on the same facts for which criminal case was registered by appointing District Inspector of Police, Bhiwani as enquiry officer. The enquiry officer after conducting the departmental enquiry in an improper manner submitted findings holding the plaintiff and others guilty of charges. The punishing authority without considering the material, issued show cause notice dated 30.8.2006 to the plaintiff proposing the punishment of stoppage of three annual increments with permanent effect. The plaintiff filed reply to the said show cause notice. The punishing authority without considering the reply inflicted punishment of “Censure” vide order dated 14.12.2006. The said order has been challenged and prayer has been made for grant of full salary in respect of suspension period i.e. 17.4.2003 to 22.12.2003. RSA No. 3257 of 2011 3 3. On put to notice, the defendant filed written statement and took up preliminary objection with regard to the maintainability of the present suit. 4. On merits, it has been alleged that present suit is misuse of process of law as the order dated 27.12.2006 passed by the Superintendent of Police, Bhiwani whereby suspension period of plaintiff and other officials from 17.4.2003 to 20.12.2003 was treated as not spent on duty is as per Rule 7.3(3) of C.S.R. Volume I. The plaintiff along with other officials were dealt departmentally for not performing their duty carefully which resulted into escape of Pawan Kumar on 2.4.2003 from PGI, Rohtak who was accused in case FIR No.62 dated 210.6.1999 under Sections 395, 396 and 397 IPC and under Section 25/54/59 of the Arms Act registered at Police Station Bondh Kalan. On the basis of the conclusion of Enquiry Officer, show cause notice was served upon the plaintiff, after considering his reply and affording personal hearing, passed the order dated 14.12.2006 awarding censure to the plaintiff and other officials. Denying other averments, the defendants prayed for dismissal of the suit. 5. In replication, plaintiff reiterated the averments of the plaint whereas denied those of the written statement. 6. From the pleadings of the parties, following issues were framed on 26.2.2008 by the trial Court :- 1. Whether the plaintiff is entitled to full wages of suspension period with effect from 17.4.2003 to 22.12.2003 with interest at the rate of 18% per annum from the due date till realization ?OPP 2. If issue No.1 is proved in affirmative then whether the plaintiff is entitled to the relief of mandatory injunction RSA No. 3257 of 2011 4 as prayed for ?OPP 3. Whether the suit is not maintainable in its present form ? ODP 4. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The trial Court after appraisal of the evidence decreed the suit of the plaintiff vide judgment and decree dated 21.4.2010 and the plaintiff was held entitled to full pay of suspension period from 17.4.2003 to 22.12.2003 along with interest at the rate of 12% per annum from accrual date till realization. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 21.4.2010, the defendants/appellants have preferred the Ist appeal before the Appellate Court. The said appeal was dismissed vide judgment and decree dated 11.11.2010 passed by the First Appellate Court. 9. Still feeling dis-satisfied with the aforesaid judgment and decree dated 21.4.2010 and judgment and decree dated 11.11.2010, referred to above, the State-defendants have preferred the present appeal. 10. Along with the appeal an application for condonation of 172 days delay has been moved. For the reasons mentioned in the application, the delay in filing the appeal stands condoned. 11. The defendants/appellants in paragraph No.9 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal :- (i) Whether the learned trial Court as well as Lower Appellate Court committed a patent error of law by over reaching its jurisdiction and allowing the full salary to RSA No. 3257 of 2011 5 the respondent-plaintiff for the period that he remained under suspension in view of the language of Rule 7.3 of CSR which gives the said power only to the competent authority ? 12. Learned counsel for the appellants has submitted that the plaintiff was found guilty in the enquiry and as such under Rule 7.3 of the C.S.R., the competent authority was entitled to award punishment of withholding pay over and above the subsistence allowance. So that was perfectly legal and right. 13. I have carefully considered the said submissions but do not find any force in that submission. 14. Rule 7.3 (3) of the Punjab Civil Services Rules has to be interpreted inconsonance of the justice and equity. A criminal case was registered against the plaintiff and he was acquitted in that case. In the departmental enquiry also only punishment awarded as censure. So, in these circumstances, the concurrent finding recorded by both the Courts below does not call for any interference. However, in the present case, the punishment awarded to plaintiff/respondent is censure only. In CWP No. 21304 of 2008 titled as Dr. M.L. Kamra and others vs. State of Haryana and others decided on 14.7.2009, this Court has held that where the punishment awarded was only warning, in that case, government employee should be entitled to the full pay and the order of punishment withholding the pay during the suspension period in case of warning only cannot be upheld. So, in view of above discussion, the substantial question of law raised by the appellants stands determined against the appellants. RSA No. 3257 of 2011 6 In view of findings on the above point, the appeal is without any merit and the same stands dismissed. In view of peculiar circumstances of the case, parties are left to bear their own costs. A copy of the judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 08 , 2011 sv