CWP No. 2658 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2658 of 2010 (O&M) Decided on : 05 -01-2011 Ram Dhari ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Rakesh Nehra, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana MAHESH GROVER, J This petition has been filed with a prayer that Annexure P-3 be quashed which has the effect of denial of 25% of the salary to the petitioner on account of his having remained suspended during the course of period when he was facing trial in a criminal offence. The petitioner was placed under suspension on account of his involvement in a case registered vide FIR No. 119 dated 22.3.1997 under the provisions of Section 420, 423, 468, 470, 471 120 IPC. He was acquitted by giving the benefit of doubt. The petitioner on account of his involvement in a criminal case remained under suspension for a period of more than 2 years. He was reinstated subsequent to his acquittal and the other benefits were given to him. He was already drawing subsistence allowance at the rate of 75% but he was denied the remaining 25% of the pay and allowances. The petitioner has prayed that according to rule 7.5 he is entitled to the complete pay in view of the fact that he has since been acquitted of the charge against him. CWP No. 2658 of 2010 (O&M) 2 In order to enhance, his case, the learned counsel for the petitioner has placed reliance on cases titled as Jagmohan Lal vs. State of Punjab through Secy. to Punjab Govt. Irrigation and others AIR 1967 Pb. & Hy. 422, Maha Singh v. State of Haryana 1994(1) SCT 154, Hukam Singh vs. State of Haryana and another 2001 (2) SCT 696 and Kanwal Singh v. State of Haryana and another 2010 (3) SCT 464. On the other hand, learned counsel for the respondents has placed reliance on the judgment of the Supreme Court titled as Krihnakant Raghunath Bibhavnekar vs. State of Maharastha 1997 (2) SCT 641 and has contended that since the petitioner was placed under suspension for a criminal offence and that he has been merely acquitted on technical ground he cannot be paid the remaining 25% of the pay as has been claimed by him. Further refers to the observations of the Hon'ble Supreme Court to contend that the conduct of the petitioner was relevant as he is a public servant and since he was involved in a criminal offence, he ought not be granted the complete benefits. The relevant rules which are necessary to be noticed are extracted here below:- “CESSATION OF PAY AND ALLOWANCES ON REMOVAL OR DISMISSAL 7.1 The pay and allowances of a Government employee who is dismissed or removed from service cease from the date of such dismissal or removal. ALLOWANCES DURING PERIOD OF SUSPENSION 7.2 (1) A Government employee under suspension shall be entitled to the following payments, namely:- CWP No. 2658 of 2010 (O&M) 3 x x x x x x x x x x x x (ii)In the case of any other Government employee - (iii)A subsistence allowance at an amount equal to the leave salary which the Government 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 Government 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 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 Government employee. Provided that in the case of Government employee dismissed, removed or compulsorily retired from service, who is deemed CWP No. 2658 of 2010 (O&M) 4 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 earnings during such period or periods as the case may be 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 Government 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 CWP No. 2658 of 2010 (O&M) 5 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 xxxx xxxxx 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 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 CWP No. 2658 of 2010 (O&M) 6 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.” I have heard rival contentions of the learned counsel for the parties. This Court in Jagmohan Lal vs. State of Punjab through Secy. to Punjab Govt. Irrigation and others reported as AIR 1967 Pb. & Hy. 422 held as under:- “The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are 'discharged' or 'acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable CWP No. 2658 of 2010 (O&M) 7 doubt, it is generally held that there being doubt in the mind of the court the accused is acquitted. I am, therefore, quite clear in my mind that the intention underlying rule 7.5 can be no other except this; the moment the criminal charge on account of which an officer was suspended fails in a court of law, he should be deemed to be acquitted of the blame. Any other interpretation would defeat the very purpose of the rule. It is futile to except a finding of either honourable acquittal or complete innocence in a judgment of acquittal. The reason is obvious; the criminal Courts are not concerned to find the innocence of the accused. They are only concerned to find whether the prosecution has succeeded in proving beyond a reasonable doubt the guilt of the accused.” The aforesaid view has also been reiterated in the judgments relied upon by the petitioner. 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. Ordered accordingly. January 05, 2011 (Mahesh Grover) rekha Judge