IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1660 of 2011 Date of Decision: 17.11.2011. Ishwar Singh --Appellant Versus State of Haryana & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. R.S. Malik, Advocate for the appellant. Mr. R.K.S. Brar, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) This L.P.A arises out of order dated 1.6.2011 passed by learned Single Judge in CWP No. 2131 of 2011. Briefly speaking the facts relevant for the purposes of this appeal are that appellant was convicted for offences under Sections 279, 338 IPC by the trial court vide judgement dated 28.4.1997. A criminal appeal filed against the order of conviction also came to be dismissed vide order dated 3.4.1998. Criminal Revision No.384 of 1998 stands allowed vide order dated 3.2.2010 and conviction and sentence of the appellant has been set aside. Appellant was ordered to be dismissed from service vide order dated 10.9.2008 on account of his conviction under sections 279, 338 IPC. As a consequence of his acquittal in criminal revision, appellant stands reinstated vide order dated 26.11.2010. The relevant extract from the order reads as under:- “ I hereby set aside the order of dismissal dated 10.9.2008 passed by the GM, HR, Kurukshetra and order him LPA No. 1660 of 2011 -2- to be taken back into service with immediate effect with continuity of service for pension and such like purposes. As far as the period during which Sh. Ishwar Singh remained out of service is concerned, he is not entitled for back wages in view of the judgement dated 28.10.1996 passed by the Apex Court in SLP © No.22538 of 1996 titled as Ranchhodji Chaturjit Thakore Vs. S.E. Gujarat Electricity Board (page 713, Vol.15)” The appellant is aggrieved of the stipulation in the order, whereby he has been deprived of the back wages. By virtue of the aforesaid order appellant is not entitled to salary for the period from 10.9.2008 to 30.11.2010. Appellant accordingly filed CWP No. 2658 of 2010 which has been partially allowed by learned Single Judge with the following directions:- “ Having regard to the aforesaid, I am of the considered view that the petition deserves to succeed. Consequently, the writ petition is allowed and the petitioner is held entitled to the remaining benefits of 25% of pay and allowances during the period he remained under suspension.” Learned counsel for the State has argued that since the appellant remained out of service on account of his dismissal, he is not entitled to any wages on the principle of “No work no pay”. His further contention is that in view of the involvement of the appellant in a criminal case, no salary is payable for the period he was in jail and/or unable to discharge his duties. We have perused the order of dismissal dated 10.9.2008. Relevant extract of the order reads as under:- “ The conviction of Sh.Ishwar Singh Driver No.168 has also been upheld by the Appellate Court vide judgement and order dated 3.4.1998, which has not been LPA No. 1660 of 2011 -3- stayed/set aside by the Hon'ble High Court. Therefore I am of considered view that the conduct of the official Sh.Ishwar Singh Driver No.168 which has led to his conviction is such that it is not desirable to retain him in service in public interest. I hereby order dismissal from service of Sh.Ishwar Singh Driver No.168 with immediate effect. Sd/- General Manager, Haryana Roadways, Kurukshetra, Dated: 10.9.2008.” From the perusal of the aforesaid order, it is evident that the appellant was dismissed merely on his conviction without holding any departmental/disciplinary proceedings into his conduct. At the time of dismissal the competent authority had taken into consideration only conviction of the appellant by the Appellate Court and also the fact that the judgement of conviction, though, subject matter of revision before the High Court had not been stayed or set aside till then. It is abundantly clear that the conviction of the appellant alone was a factor for his dismissal without examining the conduct of the appellant independent of the order of the criminal court. Now the appellant stands acquitted of the criminal charge by the High Court vide its judgement dated 3.2.2010. We have also perused the aforesaid judgement. The findings recorded by the High Court clearly reveal that the High Court is of the opinion that perhaps the accident for which the appellant was convicted was improbable. The relevant opinion of the High Court in this regard is noticed hereunder:- “From the statements of the said witnesses as reproduced above, as also from the statement of PW-1 i.e. Amar Nath, driver of the three-wheeler, it is made evident that the prosecution case is consistent to the fact that but hit the three-wheeler from behind. As against the case set up by the prosecution, the statement of PW-9 is contrary. The report LPA No. 1660 of 2011 -4- given after mechanical examination of the three-wheeler indicates only a scratch at the back side of the three-wheeler which in the opinion of the mechanic who is an expert witness examined by the prosecution, was not possible on account of accident at the instance of the bus. In view of the above, I am of the considered opinion that evidence has been mis-read causing manifest injustice. Eye-witness account is contrary to the account given by Mechanic, PW-9. If the bus could not have hit the three- wheeler from behind, as opined, the incident as stated in the prosecution case was not possible. The prosecution has failed to prove that the petitioner has committed offences, as alleged.” After having considered the evidence on record and formulating the above opinion on appreciation of the evidence the High court allowed the revision and set aside the judgement of conviction passed by the courts below. From the above circumstances, it appears that the appellant was prevented from discharging his duties on account of the criminal case pending against him and not on account of any other misconduct attributable to him. Learned Single Judge while examining the question of reinstatement and claim of the appellant for full wages only referred to Rule 7.3 of the Punjab Civil Services Rules as applicable to the State of Haryana. We deem it appropriate to examine the scheme of rules governing the issue in question. Relevant extract of Rule 7.1 to 7.5 are noticed hereunder:- “ CESSATION OF PAY AND ALLOWANCES ON REMOVAL OR DISMISSAL. 7.1 The pay and allowances of a Govt. employee who is dismissed or removed from service cease from the date of such dismissal or removal. LPA No. 1660 of 2011 -5- ALLOWANCES DURING PERIOD OF SUSPENSION 7.2 (1) A Govt. employee under suspension shall be entitled to the following payments, namely. Xxx xxx xxx (ii) In the case of any other Govt. employee- (iii) A subsistence allowance at an amount equal to the leave salary which the Govt. employee would have drawn if he had been on leave on half, pay, and in addition dearness allowance, if admissible, on the basis of such leave salary: Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:- (i) the amount of substance allowance may be increased by a suitable amount not exceeding 30 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Govt. employee. (ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Govt. employee. Provided that in the case of Govt. employee dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate for any period of periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earning during such period or periods as the case may be LPA No. 1660 of 2011 -6- fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him, where the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this provision shall apply to him. ALLOWANCES ON REINSTATEMENT 7.3(1) When a Govt. employee, who has been dismissed, removed or compulsory retired, is reinstated as a result of appeal, revision or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, 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 his absence from duty including the period of suspension, preceding his dismissal removal or compulsory retirement, as the case be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order re-instatement is of opinion that the Government employee, who had been dismissed, removed or compulsorily retired, has been fully exonerated, the Government employee shall, subject to the provisions of sub-rule (6), be paid his fullpay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended, prior to such dismissal, removal or compulsory retirement, as the case may be : (3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall treated as a period spent on duty for all purposes. XXX XXX XXX 7.5. An employee of Government against whom proceeding have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for LPA No. 1660 of 2011 -7- preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence allowance that may be granted in accordance with the principles laid down in rule 7.2) for such periods until the final termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt), of it being proved that the officer's liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified." Under Rule 7.1 a Govt. employee becomes disentitled to pay and allowances on his dismissal or removal from service. Rule 7.2 deals with the payment of subsistence allowance to an employee placed under suspension. Rule 7.3 (i) empowers the competent authority to decide in respect to the period of a Govt. employee remained dismissed or removed or compulsory retired or under suspension. Sub rule 2 of Rule 7.3, however, specifically prescribes that in the event a Govt. employee who had been dismissed, removed or compulsorily retired has been fully exonerated, on reinstatement, he shall be paid full pay and allowances to which he would have been entitled to, had he not been dismissed, removed or compulsorily retired or suspended. Sub Rule 3 of Rule 7.3 further provides for treating the entire period of suspension preceding dismissal, removal or compulsory retirement as a period spent on duty for all purposes LPA No. 1660 of 2011 -8- in a case covered under sub rule 2. Sub rule 7.5 also specifically prescribes that in the event a Govt. employee is acquitted of the blame and it is proved that the official's liability arose from the circumstances beyond control or the detention being held by the competent authority to be unjustified, is entitled to full salary. In the present case, though, the appellant was involved in a criminal case, however, the High Court while deciding the criminality of the appellant found that charge against him was unjustified and he was exonerated of all the charges. Based upon the findings of the criminal court the appellant has been reinstated but without the back wages for the period he remained out of service. Learned Single Judge, however, allowed 25% of the balance wages to the petitioner for the period he remained under suspension that means for the period of suspension he has been granted full wages which establish that the learned Single Judge was satisfied that the suspension of the petitioner was unjustified. Learned Single Judge, however, declined the claim of the appellant for wages for the period he was dismissed from service till his acquittal even without recording any reasons for such a declaration of disentitlement. Learned Single Judge has further allowed the full wages from the date of his acquittal till the date of his reinstatement on account of delay on the part of the respondents to take a decision. From the perusal of the order impugned in the writ petition i.e. Dated 26.11.2010, whereby petitioner has been reinstated, it also appears that the entire period the petitioner remained out of service has been treated as continuity in service. Thus, to deprive him of the wages is an inherent contradiction. On the one hand the petitioner has been reinstated being fully exonerated and on the other hand he has been deprived of his wages LPA No. 1660 of 2011 -9- even while treating the entire period as continuity in service. A similar issue came up for consideration before the Hon'ble Supreme Court in case of Brahma Chandra Gupta v. Union of India, 1984 AIR (SC) 380, wherein it has been noticed as under:- “ 6..Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, he was reinstated and was paid full salary for the period commencing from his acquittal and further that even for the period in question the concerned authority has to held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach... Even a Division Bench of this Court in the case of Hukam Singh v. State of Haryana and another, 2001(2) SCT 696, while considering similar issue has observed as under:- “8. In our this view, we are supported by the judgement of this Court in the case of Maha Singh v. State of Haryana and another, 1993 (8) Service Law Reporter 1`88: 1994 (1) SCT 154 (P&H). Same view was expressed by this Court in the case of Lehna Singh v. The State of Haryana and others, 1993 (3) Recent Services Judgements 119: 1994(1) SCT 173 (P&H). Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioner's being acquitted, he would be entitled to full salary and allowances for the period of suspensions and dismissal. The impugned order Annexure P-7 is accordingly quashed. The petitioner can thereafter be considered for any further promotion that may be due in accordance with the rules. No LPA No. 1660 of 2011 -10- order as to costs.” Applying the ratio of the aforesaid judgements, we are of the considered opinion that appellant's dismissal was purely on his conviction in the criminal case, where he has been acquitted by the High Court with the finding that the charge is improbable. No other allegation of misconduct is attributable to the appellant nor any such misconduct has been established in any departmental inquiry or otherwise found by the disciplinary/competent authority. There is no valid ground for denying him the wages for the period he remained out of service on account of criminal proceedings/conviction. In the totality of the circumstances, the factual and legal background noticed herein above, we allow this appeal and set aside the judgement under appeal as also the order dated 26.11.2010 to the extent the appellant has been deprived of the wages for the period he remained out of service on account of his dismissal. We further declare that the appellant is entitled to full wages for the period he remained out of service on account of his conviction. Claim of appellant be determined and admissible amount be released within three months. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 17.11.2011. lucky Whether to be reported? Yes.