IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 12602 of 2008. Decided on: 20.5.2011. ___________________________________________________________ Shri Onkar Singh. … Petitioner. Versus H.R.T.C. and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. S.R. Badhan, Advocate. For the respondents : Mr. Anil Jaswal, Dy. A.G. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers vide para 7 (a), (b) and (c):- “7 (a). The impugned order Annexure PB may be set aside & quashed. (b). The respondents be directed to treat the period of suspension as spent on duty and pay all allowances. (c). The respondents be also directed to treat the applicant to be in continuous service of the corporation with all benefits of service.” 2. In reply on behalf of the respondents, the following stand has been taken vide para 6 (a):- “6(a). The facts mentioned are subject to the strict proof and the charges framed are admitted to be correct. The appeal para of rejection is also admitted but the authority has passed a reasoned order dated 10.11.1996. This para is also partially admitted. The 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 observation regarding the quantum of sentence, the appropriate authority minimize the punishment of removal and the applicant has been taken into service. However, it is pointed out that the applicant has not been paid the amount for the period he has not worked i.e. on the principle of ‘no work no pay’ which has been laid down in the various judgments of the Hon’ble Supreme Court of India. So, the present original application is without any merit and principles of res judicata is rightly applicable for the reliefs sought for in the present application. The applicant cannot challenge quantum of punishment given to him after modifying the same on the observations of the Hon’ble Tribunal. Thus, the observations have been duly complied with by the respondent-Corporation. So, the applicant has no cause of action, as has been put in the present original application. The condition imposed upon the applicant is quite legal and in consonance with the service & financial rules and therefore, the action of the respondents is quite justified who in turn honoured the direction of the Hon’ble Tribunal. That the punishment in shape conditions imposed upon the applicant after reinstating him is within the frame work of Constitution and there is a validity of rules and regulations under which the respondent-Corporation has been working. So, there is no any type of violation of CCS (CCA) Rules or other service rules regarding the penalty & conduct of the applicant for which he is craving. The employee has to show his worth and competency in his work and conduct, only then he is entitled and becomes a deserving candidate for the post. At present, the applicant’s work & conduct is not satisfactory, he can only be given all the incentives in case, he improves 3 himself and proved to be an efficient and trust worthy & faithful employee. It is pertinent to mention here that the affidavit given by the applicant was a voluntarily action with full consent. This para is not admitted to be correct, to the extent that any force or pressure has been put upon the applicant. The applicant has shown his wisdom pointing out that he lacks the virtues of a faithful employee. So, his contention has no relevancy and for this reason, this original application may be dismissed in limine, as it is without any substance and relevancy.” 3. Rejoinder refuting the above stand on behalf of the respondents and re-iterating the averments set up in the petition has been filed. 4. Some undisputed facts may be noticed first. The petitioner had joined the employment of the respondent- Corporation as Driver on 27.7.1984. He worked as such up to September, 1991, when on 19.9.1991 the bus being driven by the petitioner to Haridwar met with an accident at Baggi Binola. Consequently, a case under Sections 279, 337 and 338 IPC was registered against him and he was ultimately convicted, but released on probation of good conduct. Thereafter, departmental proceedings were initiated against him, which culminated into his removal from service. Being aggrieved, he approached the erstwhile H.P. Administrative Tribunal (in short Tribunal), which held as under vide operative part of order dated 8.12.2004, Annexure PA:- “For the aforesaid reasons we come to the conclusion that the findings recorded against the applicant in the 4 departmental inquiry on the strength of the charges proved against him do not call for interference. However, the punishment imposed upon the applicant is shockingly disproportionate to the charges proved against him. Therefore, equity of justice demands that the appellate authority i.e. Managing Director, HRTC should consider the case of the applicant which is restricted to the quantum of sentence punishment alone. The applicant be also given personal hearing. Needless be done within 3 months from the date of receipt of the order.” 5. In pursuance of the above order dated 8.12.2004 of the Tribunal, the petitioner was re-instated in service “subject to qualifying the driving test for a period of two years in the first instance” on the following conditions vide office order dated 28.2.2005, Annexure PB:- 1. That the intervening period (from the date of removal to re-instatement) will be treated as dies non. However, the said period will be counted for pension and gratuity. 2. That nothing will be paid for the aforesaid period on the principle of “no work no pay” and only seniority will be given to him. 3. That he will get nothing more than the subsistence allowance already paid for the period of suspension. 4. That his further continuation in service would depend upon the satisfactory work and conduct during the period of two years of the re- instatement.” 6. The above conditions have been assailed by the petitioner, firstly, on the ground that as the petitioner was a duly 5 qualified Driver and had already served the respondent-Corporation for a period of more than seven years before his suspension/removal from service, there was no occasion for attaching a condition of qualifying driving test. In this regard, suffice it to say that since the petitioner was removed from service in the year 1995 and was ultimately reinstated in the year 2005, that is, after a gap of ten years, it cannot be said that the authorities of the respondent-Corporation were unreasonable in attaching such condition. Even otherwise as per statement at the bar made by the learned counsel for the petitioner, no such test has been held even till date and petitioner is continuing as Driver after re-instatement. 7. Secondly, it is submitted that the intervening period from the date of removal to re-instatement has been ordered to be treated as dies non, but to be counted for pension and gratuity. This is no punishment, either minor or major, and instead is in a way beneficiary stipulation for the petitioner as it gave him continuity of service, besides benefit of counting of such period for pension and gratuity. 8. Third ground pressed into service on behalf of the petitioner is that once he was re-instated in service, the natural corollary would have been that he would be deemed to be on duty and thus, entitled for full pay and allowances for the period between removal and re-instatement. The submission being fallacious appears to have been raised simply to be rejected. Admittedly, the petitioner was neither acquitted in the criminal case nor was exonerated in the departmental inquiry. It was only at the intervention of the Tribunal that the matter with regard to imposition 6 of penalty was reconsidered and on the face of it, in essence, no penalty has been imposed upon him while ordering his re- instatement and the aforesaid conditions are in fact in the nature of consequential orders/stipulations in order to regularize the period of suspension/removal from service and ultimate re-instatement. 9. On re-instatement only three situations can be visualized. In case the delinquent is exonerated honourably, he may be held entitled to be on duty and thus, eligible for payment of full back wages. However, even in such a situation, there is a catena of decisions of the Hon’ble Supreme Court to restrict the back wages to the extent of 20/25/30 per cent taking into account the principle that for that period the incumbent had not actually worked on the post and may also be in the meantime somewhere gainfully employed. However, in a case of indictment, back wages can altogether be denied on the principle of ‘no work no pay’. 10. The condition that petitioner’s “further continuation in service would depend upon his satisfactory work and conduct during the period of two years of the re-instatement” cannot be strictly construed to be fresh probation period simply for the reason that even otherwise the work and conduct of a public servant is required to be adjudged by the employer all through his service career and is amenable to the service rules applicable in a particular case. 11. In so far as the third condition as above is concerned, the grievance of the petitioner is that while restricting the emoluments for the suspension period to the extent of subsistence allowance already paid, no notice was issued to him by the 7 employer in violation of the mandatory provisions of sub rule (5) of Rule 54-B of the Fundamental Rules. It is further submitted that all through he was paid 50% of the emoluments as subsistence allowance, whereas, after initial three months period on suspension, he was entitled for subsistence allowance to the extent of 75% of the emoluments. To this extent the submission made on behalf of the petitioner has some substance. 12. In view of the above, the petition, which is without merit, except to the extent of determination of the emoluments payable to the petitioner for the period of suspension, is disposed of with a direction to the respondents/competent authority to re- consider the matter with regard to regularization of the period of suspension of the petitioner strictly in terms of sub rule (5) of Rule 54-B of the Fundamental Rules, after giving him notice in terms of the said rule, within three months from the date of production of copy of this judgment by the petitioner, after affording him an opportunity of being heard, if so desired. 13. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. May 20, 2011. (cr)