Civil Misc.No.21558 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 07, 2011 Sat Parkash Garg ...Petitioner VERSUS Uttar Haryana Bijli Vitran Nigam Limited, Panchkula & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.D.R.Bansal, Advocate, for the petitioner. Mr.B.R.Rana, Advocate, for the respondents. ***** RANJIT SINGH, J. The petitioner has retired as Commercial Assistant from HSEB/UHBVN on 31.7.2003. He has filed this writ petition to challenge the punishment of warning imposed on him and also the Civil Misc.No.21558 of 2008 (O&M) : 2 : recoveries, which have been effected from his arrears, which he has termed as illegal. On 6.8.1996, the petitioner was placed under suspension. He, however, was not issued a charge sheet for long time. A charge sheet was served to him on 24.2.1997 for major penalty. The petitioner submitted his reply. The competent disciplinary authority then issued warning to the petitioner on 19.12.1997 and, thus, finalised the charge sheet. The petitioner was reinstated on 19.12.1997 and his suspension period was ordered to be treated as leave of kind due. The petitioner filed an appeal against this order, when six months suspension period out of the total period of suspension was treated as a leave and the rest of the period was treated as spent on duty. The petitioner filed a revision against the same, which, till date has not been decided. The petitioner has accordingly impugned the punishment of warning on the ground that he could not have been imposed this penalty once he was charge sheeted for major punishment. On 31.7.1998, the petitioner was again charge sheeted. Some of the charges were the same as contained in the previous charge sheet. Enquiry report thereafter was submitted but was not supplied to the petitioner. He, however, was served a show cause notice proposing the punishment of dismissal from service. The petitioner had submitted reply, but no action was taken thereafter. The petitioner, in the meantime, retired on attaining the age of superannuation on 31.7.2003. Nearly three months after his retirement, respondent No.4 has written to the petitioner that some of ` 60,000/- has been recovered from his arrears and another sum of Civil Misc.No.21558 of 2008 (O&M) : 3 : `95,071-28P is still to be recovered, being 10% of the embezzled amount of ` 15,50,712.80P. A sum of `18,325/- is also to be recovered relating to Pundri Division. While issuing gratuity payable to the petitioner, an amount of `1,13,397/- was recovered on 3.11.2003. The petitioner represented against the illegal recovery. The petitioner filed Civil Writ Petition No.12488 of 2007, which was disposed of with direction to the respondents to decide his representation by taking into account the comments annexed with the petition as Annexures P-15 to P-17. The petitioner thereafter filed a contempt petition when the respondents failed to comply with the orders passed by the court in the writ petition. While the contempt petition was pending, the respondents decided the representation of the petitioner on 23.4.2008. As per the petitioner, the representation was decided without considering the comments (Annexures P-15 to P-17). The contempt proceedings, however, were ultimately dropped and so the petitioner has now filed the present petition to claim that the period of suspension be treated as duty period and not as a leave of kind due as any action treating this period as leave of kind due would operate more harshly than even the main punishment of warning awarded to the petitioner. A reply has been filed on behalf of the respondent- Nigam. The perusal of the reply would show that the petitioner was placed under suspension on 6.8.1996 and was reinstated on 19.12.1997. It is conceded that the charge sheet was finalised by issuing warning to the petitioner. As per the respondents, the suspension period of the petitioner has been rightly regularised as Civil Misc.No.21558 of 2008 (O&M) : 4 : leave of kind due as he was not fully exonerated of the charges. The respondents would also point out that petitioner was charge sheeted for being responsible for 10% of the total embezzlement to the tune of `15,50,712-80P, for which the enquiry was conducted. Out of this amount, a sum of `60,000/- has been recovered from his arrears of pay and remaining amount of ` 95,071-20P is yet to be recovered. There is another charge sheet issued to the petitioner for which he is held responsible for `18,325/- which is an amount outstanding against him. As per the respondents, the petitioner has a right to file an appeal against the order of recovery, which he has not filed so far and accordingly it is stated by way of preliminary objection that his prayer in this regard deserves to be dismissed on this ground. Counsel for the petitioner concedes this fact and says that he may be granted liberty to appeal against the order of recovery. Since the time for filing such an appeal has gone passed, he prays that he may be granted permission to file this appeal within a period of one month. I find this request to be reasonable. Accordingly, the liberty is granted to the petitioner to file an appeal against the order of recovery within a period of one month. In case the petitioner files this appeal within this period, the same shall not be dismissed on the ground of delay and shall be considered on merits. So far as the direction to regularise the period of six months of suspension as a leave of kind due is concerned, the same cannot be sustained in view of the law laid down in Ram Kumar Vs. H.V.P.N.L. and others, 2002(1) RSJ 187. This view would also find Civil Misc.No.21558 of 2008 (O&M) : 5 : support from the ratio of law laid down in Krishan Sewak Versus The State of Haryana and another, 1997(4) RSJ 162. In this case, it was observed that where a period of suspension is regularised by grant of leave of the kind due and case is disposed of by penalty of warning, it would not be appropriate, just and proper to deny the benefit of pay and allowances for the period of suspension. The respondents were accordingly directed to treat the suspension period as duty period and allow all the consequential benefits. Reference can also be made to Rattan Singh Chaudhary Vs. The State of Punjab and another, 1971 SLR 692 where it is held that disallowing the pay and allowances by treating the period as not spent on duty leads to serious civil consequences. The competent authority is to pass an order in a quasi judicial manner affording the opportunity of hearing. This is so stated by Single Judge of this court by interpreting Sub Rule 2 of Rule 7.3 after noticing that the petitioner therein was only awarded the punishment of stoppage of two next increments with cumulative effect. The court found that consequential order passed under Rule 7.3 would cause much more damage than the original order passed in this case. Noticing all these judgments, this court in CWP No.21304 of 2008 (Dr.M.L.Kamra and others Vs. State of Haryana and others), decided on 14.7.2009 has held that where the person remains under suspension for considerable period but ultimately the case against him is disposed of by awarding warning, then disentitling him to full pay and allowances for the period would operate more harshly than the punishment of warning awarded to him. Having made reference to various provisions, this court in Civil Misc.No.21558 of 2008 (O&M) : 6 : Dr.M.L.Kamra (supra) has observed as under:- “The combined reading of these provisions would show that the justification for payment of pay and allowances would primarily depend upon the outcome of the inquiry which is held, for which the government employee is placed under suspension. If the consequential effect of the rule is seen operating harshly than the punishment awarded, then the same can certainly be termed unfair and unjust. In this background, a view is possible that it would not be fair, just and equitable to forfeit the pay and allowances of person, who was left with the award of warning only.” As noted in this case, if the case is considered fit enough to be disposed of by award of warning, then it can be said that there was hardly any requirement to place the petitioner under suspension. It is, thus, possible to say that the suspension period was unjustified. As per the provisions, competent authority is called upon to examine that the suspension of the employee in question was not wholly unjustified. Accordingly, the direction to treat the period of six months of suspension as a leave of kind due cannot be issued as it will operate more harshly than the main punishment of warning as awarded in this case. The same is set-aside. The period of suspension shall be treated as duty period. As a consequence, the period under which the petitioner remained under suspension shall be treated as duty period. So far as the recovery is concerned, it Civil Misc.No.21558 of 2008 (O&M) : 7 : would be for the appellate authority to decided in accordance with law. The writ petition is disposed of accordingly. February 07, 2011 ( RANJIT SINGH ) ramesh JUDGE