CIVIL WRIT PETITION NO.19079 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JUNE 30, 2010 Ramesh Kumar .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. N. Sharma, Advocate, for the petitioner. Mr. D. S. Nalwa, Addl.A.G., Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who was working as Clerk with PWD, (B&R), Haryana, had remained under suspension for the period w.e.f. 25.7.1995 to 30.9.1995 and then from 24.10.1996 to 25.5.2006 due to his involvement and subsequent conviction for an offence under Sections 304/149 IPC. Though convicted by the Trial Court, the petitioner was acquitted by this Court on 8.2.2005. The petitioner accordingly sought his reinstatement after his acquittal, which was so ordered and the petitioner was reinstated on 11.5.2006. However, the Superintending Engineer had passed an order, treating the CIVIL WRIT PETITION NO.19079 OF 2009 :{ 2 }: period of suspension as having been spent on duty for his retiral benefits but denied him the pay and allowances for this period in terms of Rule 7.3 of Punjab Civil Service Rules, Volume I, Part I. The petitioner has, thus, filed this writ petition to impugn this order and would claim that he having been exonerated of the charge levelled against him, would be entitled to get the pay and allowances for the complete period during which he had remained under suspension. The petitioner was placed under suspension on 12.12.1995 for his involvement in a case of murder as he was taken in custody on 25.7.1995 and remained so upto 30.9.1995. Later, the petitioner was convicted by Sessions Judge, Rohtak on 24.10.1996 for an offence under Sections 304/149 IPC. He was accordingly again taken into custody on 24.10.1996 and so placed under suspension. His appeal was allowed by this Court on 24/29.10.1996. Upon his acquittal, the petitioner made a representation for his reinstatement and was so reinstated w.e.f. 26.6.2006. Thus, the petitioner was denied pay and allowances for the period he had remained under suspension through an order dated 22.7.2009. To challenge the same, the petitioner had filed the present writ petition. On being put to notice, the State has filed reply. It is disclosed in the reply that the petitioner was arrested on 22.7.1995 and was sentenced on 24.10.1996 and, thus, had remained under suspension for a period as already noticed. While reinstating the petitioner into service upon his acquittal, the competent authority had decided that the suspension period would be regularised by denying him the pay and allowances other than the subsistence allowance CIVIL WRIT PETITION NO.19079 OF 2009 :{ 3 }: that was paid to him. Accordingly, it is stated that the order passed by the competent authority is just and legal and in accordance with the rule position. The prayer, thus, is made for dismissing the writ petition filed by the petitioner. The counsel for the petitioner refers to Rule 7.3 (1) of C.S.R. Volume I Part I in support of his contention that the petitioner was entitled to payment of full wages as he stood exonerated of the allegations made against him. Relevant rule for deciding the controversy appears to be Rule 7.5 of the Rules, as the suspension of the petitioner was due to his involvement in a criminal case. This Rule reads as under:- “7.5 An employee of Government against whom proceedings 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 being given only in the event of the officer being acquitted of blame or (if the proceedings CIVIL WRIT PETITION NO.19079 OF 2009 :{ 4 }: taken against him were for his arrest for debt), of its 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.” In support of his plea, the counsel has made reference to the case of Hukam Singh Vs. The State of Haryana and another, 2001 (1) RSJ 201. The Division Bench of this Court has held that when a person is acquitted of a criminal charge, he would be entitled to full salary and allowances for the period between suspension and dismissal. The State counsel points out that this was not a case where the petitioner was dismissed from service. The State counsel submits that the petitioner got involved in a criminal case of murder with which the Department had no concern. As per the counsel, the petitioner had disabled himself from rendering the service for the State on account of his conviction and incarceration in jail with which the respondent-Department had no concern in any manner. In such circumstances, burdening the State with the liability to pay full pay and allowances for the period, when the employee had remained in custody would amount to allowing pay and allowances to an employee who had not worked due to fault on his own part. In support, the counsel has made reference to the observations made by the Hon'ble Supreme Court in Ranchhodji Chaturji Thakore Vs. The Superintendent Engineer, Gujarat Electricity Board, 1997 (1) SLR 14. The Hon'ble Supreme Court in this case has observed as under:- “It was his conduct of involving himself in the crime that CIVIL WRIT PETITION NO.19079 OF 2009 :{ 5 }: was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single Judge and the Division Bench have not committed any error of law warranting interference.” Rule 7.5 of the Rules only says that full pay and allowances are payable only when an employee is fully exonerated. That would not mean that full pay and allowances are to be allowed in every case. Reference here may also be made to Note 9 below Rule 7.3 (2) of the Rules, which reads as under:- “Where a Government employee under suspension is acquitted by a Court of Law and the order reinstating him CIVIL WRIT PETITION NO.19079 OF 2009 :{ 6 }: is passed some time after the date of acquittal, full pay and allowances have to be paid from the date of acquittal to the date of re-joining duty and the period counted as duty for all purposes whereas for the period from the date of suspension/removal/dismissal to the date of acquittal he is to be allowed pay and allowances as directed by competent authority under sub rule (2) or sub rule (3) of this rule and the period treated as duty or non-duty under sub rule (4) or sub rule (5) of this rule, as the case may be.” The competent authority, thus, has a discretion to regulate the period of suspension from the date of suspension to the date of acquittal and pay and allowances for this period has to be allowed or denied by the competent authority in its discretion having regard to the facts of each case. In a case like this, where the employee gets involved in a criminal offence and, thus, remain away from duty on account of his suspension, which as a consequence is to be passed, it would not be very appropriate and fair to allow pay and allowances for the period for which department has no concern or responsibility. It has been so viewed by the Hon'ble Supreme Court, as per the observations noted above in the case of Ranchhodji Chaturji Thakore (supra). Accordingly, I am of the considered opinion that there is no merit in the plea raised in the writ petition and this prayer made by the petitioner can not be granted and is so rejected. At this stage, counsel for the petitioner would refer to the second prayer made in the writ petition, which is to allow the annual CIVIL WRIT PETITION NO.19079 OF 2009 :{ 7 }: increments and ACP scales to the petitioner as the suspension period has been treated as duty period. Prayer is that the period of suspension, which has been regularised as duty period, may have to be counted for the purpose of granting the pay scale or for increment etc. No order is pointed out to show that this prayer has been declined by the respondents in any manner. Accordingly, no occasion would arise for dealing with the prayer. If any order is passed which is adverse to the petitioner, then he would be at liberty to challenge the same. The writ petition is otherwise dismissed. June 30, 2010 ( RANJIT SINGH ) khurmi JUDGE