CIVIL WRIT PETITION NO.5843 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 23, 2009 O.P.Sindhwani .....Petitioner VERSUS State of Haryana and another ....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. K. Malik, Sr.Advocate with Mr. Surya Prakash Singh, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. After having been appointed as a Junior Engineer, the petitioner was promoted as Executive Engineer in the year 1978. On 12.10.1990, the petitioner was served a charge sheet under Rule 7 of the Punishment and Appeal Rules. The petitioner made a request for supply of certain documents for filing reply to the charge sheet. CIVIL WRIT PETITION NO.5843 OF 2009 :{ 2 }: Ultimately, the inspection was allowed in January 1992. The petitioner, thus, retired on 30.4.1992 on superannuation. The retiral benefit of the petitioner were not released on the ground that disciplinary proceedings were pending against him. The petitioner accordingly filed a writ petition before this Court in the year 1993. The Division Bench directed the respondents to complete the disciplinary proceedings within one year with a further direction to them to make payment of the pension etc. The enquiry still was not completed within the stipulated period. The petitioner also filed a contempt petition in the year 1995. The respondents, however, changed the track and instead of conducting the regular enquiry, the proceedings were converted from Rule 7 to Rule 8 of the Punishment and Appeal Rules (hereinafter referred to as “the Rules”) and the petitioner was issued show cause notice for recovery of Rs.2,53,000/-. Finally, an order of recovery of this amount was passed on 24.8.1995 with 12% interest besides directing that warning be issued to the petitioner. Copy of the order is annexed as Annexure P-1. The petitioner challenged this order, directing recovery by filing CWP No.13086 of 1995. As an interim measure, this Court directed the respondents to deposit the entire sum as payable to the petitioner as leave encashment, gratuity, subsistence allowance in a nationalised bank so that the petitioner could get interest on the said amount. During the pendency of the writ petition, the respondents took a conscious decision to exonerate all the persons against whom the cases were pending. Even the criminal case was withdrawn. The Department itself reviewed the punishment awarded to the petitioner CIVIL WRIT PETITION NO.5843 OF 2009 :{ 3 }: and withdrew the punishment through an order dated 17.4.2008/9.5.2008. Since the order of punishment was withdrawn, the writ petition filed by the petitioner was rendered infructuous and was disposed of as such by this Court on 14.5.2008. It was further directed that the petitioner would be entitled to withdraw all the amounts deposited in the nationalised bank. In the meantime, Superintendent Engineer requested the Engineer-in-Chief to decide the grant of leave encashment due to the petitioner. Instead the petitioner was informed about the Government decision to the effect that the suspension period has been treated as a leave of the kind due. The petitioner has accordingly filed this writ petition, seeking direction that the period of suspension from 10.4.1990 to 30.4.1992 be treated as duty for all intents and purpose with a further direction to release full salary and allowance to the petitioner for the period he had remained under suspension. He has also prayed for release of leave encashment for 240 days admissible to the petitioner alongwith interest at the market rate. On being put to notice, the respondents have filed reply. It is conceded that the punishment awarded to the petitioner through order dated 24.8.1995 has been withdrawn by the competent authority on 9.5.2008. It is then stated that the Government has issued order, regularising the suspension period of the petitioner as a leave of kind due because the respondents are of the view that the suspension of the petitioner as ordered was not wholly unjustified keeping in view the gravity of the charge. This is stated to be in accordance with Rule 7.3 (1)(b) of the Rules. It is accordingly stated that the provisions of Rule 7.3 of the Rules are not violated. CIVIL WRIT PETITION NO.5843 OF 2009 :{ 4 }: Mr.R.K.Malik, learned senior counsel for the petitioner, would contend that once the punishment order has been withdrawn by the competent authority, there would hardly be any justification to regularise the period of suspension as a leave of kind due and this period has to be treated as on duty for all intents and purposes. The counsel would urge that impugned order Annexure P-6, to this an extent, is contrary to Rule 7.3 of the Rules. As per the counsel, there is no justification for not releasing the amount due on account of leave encashment. Mr.Harish Rathee, on the contrary, would urge that the petitioner in this case has not been exonerated of the charge but the punishment has been withdrawn, for the reasons as are disclosed in the order withdrawing the punishment. He would, therefore, urge that this can not be treated as a case of complete exoneration of the petitioner and, thus, it has been considered that the suspension of the petitioner was not wholly unjustified. He would accordingly contend that the prayer of the petitioner for grant of full pay for the period he had remained under suspension, as such, can not be accepted even in terms of Rule 7.3 of the Rules. I have considered the submissions made before me. I am afraid it will not be possible for me to accept the view canvassed by Mr.Rathee. Once the competent authority has taken a conscious decision to withdraw the punishment, which was awarded to the petitioner, there would not be any justification for the respondents to say that the petitioner was not fully exonerated. Not only the order of punishment has been withdrawn but even the amount, which was directed to be recovered, is now not to be recovered. Would there by CIVIL WRIT PETITION NO.5843 OF 2009 :{ 5 }: any justification as such, to withhold the pay and allowances for the period, the petitioner had remained under suspension? It may also be noticed that the petitioner had only been awarded a warning alongwith the direction for recovery of the amount and this order has been completely withdrawn. Even if the punishment of warning was to stand in the record of the petitioner, then also it may not have been justified to direct that the pay and allowances of the petitioner for the period of his suspension be not given to him. In a recent decision, it has been held that where the case is closed by award of warning, direction to forfeit and not to give the pay and allowance for the period of suspension would operate more harshly than a punishment and, thus, unfair and unequitable. Reference in this regard can be made to the observations made in Civil Writ Petition No.21304 of 2008 (Dr.M.L.Kamra and others Vs. State of Haryana and others), decided on 14.7.2009. In this case, it is held that:- “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.” CIVIL WRIT PETITION NO.5843 OF 2009 :{ 6 }: The Court further observed that:- “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 petitioners under suspension. It is, thus, possible to say that the suspension was unjustified. As per the rule, competent authority is called upon to conclude that the suspension of the said servant was not wholly unjustified.” Similar view has been taken by this Court in Krishan Sewak Vs. The State of Haryana and another, 1997 (4) RSJ 162 to hold 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. Further in Rattan Singh Chaudhary Vs. The State of Punjab and another, 1971 SLR 692, it has been held that disallowing the pay and allowances by treating the period as not having been 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. It is so stated by interpreting Sub Rule (2) of Rule 7.3, Single Judge of this Court after noticing that the petitioner therein was only awarded the punishment of stoppage of two next increment without cumulative effect, but the consequential order passed under Rule 7.3 would cause much more damage than the original order passed in this case. In the present case, the punishment awarded to the petitioner has been withdrawn. The effect would be that the petitioner has been fully exonerated. In that view of the matter, it is possible to view that CIVIL WRIT PETITION NO.5843 OF 2009 :{ 7 }: the suspension of the petitioner was not fully justified and so the case for full pay and allowances to the petitioner for the period of suspension is, thus, made out. The period as such, is required to be treated as a period spent on duty in terms of Rule 7.3 (4) of the Rules. There is no justification also to withhold the payment of leave encashment. The writ petition is accordingly allowed. The respondents are directed to release the amount due on account of full pay and allowances for the period the petitioner had remained under suspension. He shall also be released the payment due to him on account of leave encashment in terms of the Rules. Let the needful be done within a period of three months from the date of receipt of copy of this order. July 23, 2009 ( RANJIT SINGH ) khurmi JUDGE