LPA No. 650 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 650 of 2011 O&M) Date of decision: July 20, 2011 Khurshid Ahmad ...Appellant Versus State of Haryana and others ...Respondents CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Saurabh Kashyap, Advocate, for the appellant. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? GURDEV SINGH, J. 1. The instant appeal under Clause X of the Letters Patent has been preferred by Khurshid Ahmad, appellant/writ petitioner, against the order dated 17.11.2010, vide which the learned Single Judge dismissed the writ petition filed by him, for quashing the letter dated 21.8.2010 (Annexure P/4), whereby his suspension period from 6.8.2006 to 29.5.2006 has been treated as period 'not spent on duty' and the period of dismissal from service from 16.11.2006 to 26.1.2010 has been treated on the principle of 'no work no pay'. 2. The petitioner joined the police department as Constable on 7.11.2003. On 6.8.2005, an FIR No. 238, dated 6.8.2005 under Sections LPA No. 650 of 2011 2 354, 376 (2) (g) IPC and under Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was registered against him and others in Police Station Sohna, District Gurgaon. In the trial, the petitioner-appellant and co-accused were acquitted, vide judgment dated 14.2.2006. On 2.11.206, a show cause notice was served upon him as to why he be not dismissed from service. He submitted reply to that notice. However, he was dismissed from service by the Superintendent of Police, Faridabad, vide order dated 16.11.2006. Against that order, he filed an appeal before the Inspector General of Police, which was also dismissed, vide order dated 9.4.2007. The revision petition filed by him against that order was dismissed on 5.1.2009 by the Director General of Police. Thereafter, he filed CWP No. 1689 of 2009 for quashing those orders and claimed ancillary relief and sought reinstatement with consequential service benefits. The writ petition was allowed, vide order dated 16.7.2009 and all the orders were set aside. Thereafter, show cause notice dated 5.8.2010 was served upon him as to why the period of suspension be not treated as the period not spent on duty. Letter dated 21.8.2010 was also issued to him that the period of suspension has been treated as the period not spent on duty and the period of dismissal has been treated on the principle 'no work no pay'. 3. The petitioner-appellant challenged that letter by filing above said writ petition. He pleaded therein that he was falsely implicated and the offence did not involve any moral turpitude and that offence was not relating to his duties. He was suspended for no fault of his and, as such, he could not be penalized for the period during which he remained suspended and for the period on account of his dismissal i.e. from 16.11.2006 to LPA No. 650 of 2011 3 26.1.2010. He remained jobless during the aforesaid period of dismissal. After the dismissal order has been set aside, he is entitled to continuity of service with monetary benefits. 4. The following order was passed by the learned Single Judge on 17.11.2010, which is impugned in the instant appeal:- “The order against the petitioner terminating his services cannot be said to be without jurisdiction. Since the petitioner got relief by virtue of the order passed by this Court, it cannot be said that he was deprived of right to perform his duties in any unfair manner. Accordingly, the payment for the period he remained under suspension or away from duty could rightly be declined. No case for interference, thus, is made out.” 5. We do not find that this order suffers from any illegality. While deciding the previous writ petition i.e. CWP No. 1689 of 2009, filed by the petitioner, the following question was posed by the learned Single Judge. “What would be the fate and effect of acquittal of an employee in a criminal proceedings, who is dismissed from service on the basis of the same very allegations by a Disciplinary Authority after having been charge-sheeted and on the basis of a finding by disciplinary enquiry ?” It was held that the evidence in the criminal trial and the version in the departmental proceedings being the same, there being no difference, the petitioner cannot be made to suffer different findings which are not even supported by evidence led in the departmental proceedings. It was found that the impugned order was not based on any material evidence and it was a case of no evidence. LPA No. 650 of 2011 4 6. It is the case of the petitioner himself that he had claimed ancillary relief and had sought reinstatement with consequential service benefits, in that writ petition. Those were not allowed. Therefore, he cannot re-agitate the same matter in the present writ petition. When no such order was passed, for the grant of those benefits, the only natural consequence is that the same were disallowed to him. 7. In has come on the record that vide letter dated 21.8.2010, the period of suspension from 6.8.2005 to 29.5.2006 was ordered to be treated as period not spent on duty, keeping in view Rule 7.3 (3) of Punjab CSR Vol. 1, Part 1(as applicable to the State of Haryana). The appellant- petitioner was suspended on account of registration of a criminal case against him and the offences, which were mentioned in the FIR, involved moral turpitude. It is an admitted fact that the finding of acquittal was recorded not on merit but on account of resiling of the prosecution witnesses from their previous statements. 8. There is no ground for admitting this appeal. Dismissed. (M.M. KUMAR) (GURDEV SINGH ) JUDGE JUDGE July 20, 2011 prem