IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2943 of 2008. Decided on: 15.06.2010. Amar Chand. …Petitioner. -Versus- Himachal Pradesh Government through its Secretary (Home), Shimla and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Material facts necessary for the adjudication of this petition are that the disciplinary proceedings were initiated against the petitioner. The inquiry officer was appointed. In the inquiry, Articles No. I and II were held to be proved and Article No. III was held to be not proved. The disciplinary authority imposed the penalty of forfeiture of one annual increment of pay of the petitioner with permanent effect vide order dated 19th June, 1992. Petitioner preferred an appeal against the imposition of the penalty vide order dated 19th June, 1992 before the appellate authority. The appellate authority vide order dated 23.02.1994 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. modified the order of penalty from forfeiture of one annual increment of pay with permanent effect to withholding of one increment without cumulative effect. 2. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that once the penalty has been modified by the appellate authority from major to minor vide order dated 23.2.1994, the period of suspension was required to be considered unjustified and full pay and allowances were required to be paid to his client for the period of suspension. He further contended that once the order dated 28.03.1994 has been passed, the increment was to be restored to his client after the lapse of one year from the date his increment was withheld for one year without cumulative effect. He lastly contended that the period of suspension was to be treated on duty in terms of instructions issued under F.R. 54-B on 03.12.1985. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that since the period from 29.8.1988 to 29.6.1989 has been treated as leave without pay and the period w.e.f. 19.6.1989 to 2.5.1992 has been treated as leave of the kind due, this period cannot be counted for earning annual increments. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It will be apt at this stage to reproduce instruction No. 3, issued on 3rd December, 1985 by the G.I., Dept. of Per. & Trg., O.M. No. 11012/15/85-Estt.(A)., which reads thus: “(3) Period of suspension to be treated as duty if minor penalty only is imposed.-Reference is invited to O.M. No. 43/56/64-AVD, dated 22-10-1964 {not printed}, containing the guidelines for placing Government servants under suspension and to say that these instructions lay down, inter alia, that Government servant could be placed under suspension, if a prima facie case is made out justifying his prosecution or disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The staff Side of the Committee of the National Council set up to review the CCS (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for the imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances paid for suspension period. Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B.” 6. A bare perusal of this instruction reveals that where the departmental proceedings against a suspended employee for the imposition of a major penalty finally ends with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, is entitled to be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54- B. In the present case, initially the disciplinary authority has imposed major penalty upon the petitioner on 19.6.1992 by ordering forfeiture of one annual increment of pay of the petitioner with permanent effect. The penalty imposed by the disciplinary authority was modified by the appellate authority on 23.02.1994 from major to minor. In view of this, the suspension cannot be said to be justified and the petitioner is entitled to be paid full pay and allowances for the period of suspension. The petitioner has remained suspended w.e.f. 20.06.1989 to 02.05.1992. The respondents have justified their stand by arguing that the period w.e.f. 29.8.1988 to 02.05.1992 cannot be counted since the same was regularized as leave without pay and leave of the kind due. This stand is contrary to the instructions reproduced hereinabove. The petitioner has to be treated on duty on the basis of instructions dated 3rd December, 1985 for the suspension period from 20.06.1989 to 02.05.1992. The suspension of the petitioner was unjustified since finally, the minor penalty was imposed upon him. He was entitled to restoration of one increment which was withheld vide order dated 19.06.1992 7. Accordingly, in view of the observations made hereinabove, the writ petition is allowed with a direction to the respondents that the period w.e.f. 20.06.1989 to 02.05.1992 be treated on duty for all intents and purposes and the petitioner is held entitled to restoration of one increment after the period of one year from 19.6.1992. He is held entitled to leave encashment and his pension is to be enhanced after the restoration of one increment. The needful shall be done within a period of ten weeks from today. (Rajiv Sharma) Judge June 15, 2010. (bhupender)