RSA No.5143 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5143 of 2011 (O&M) Date of decision: 02.01.2012 State of Punjab and others ......Appellants Vs. S.S. Bangra ...Respondent CORAM:-HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present: Mr. Satish Bhanot, Additional Advocate General, Punjab for appellants. *** Tejinder Singh Dhindsa, J. (Oral). CM No.14988-C of 2011: This is an application under Section 5 of the Limitation Act for condonation of delay of 4 days in filing the appeal. In view of averments made in the application, application is allowed and delay of 4 days in filing the instant second appeal is condoned. RSA No.5143 of 2011: The State of Punjab, appellant/defendant is in second appeal against the judgment and decree of both the Courts below. Respondent/plaintiff filed a suit for declaration and mandatory injunction seeking the declaration of the effect that the order dated 10.02.2003 treating his suspension period as leave of the kind due to be illegal, unconstitutional, discriminatory and having been based against the RSA No.5143 of 2011 (O&M) -2- principle of natural justice. Plaintiff/respondent further prayed that he was also entitled to the proficiency step up benefits on completion of 8 years of service but the same had also been denied to him. It was pleaded in the suit that he joined as Excise and Taxation Officer on 15.04.1991. A false case was registered against him under Section 304 Part-II IPC for which he stood trial. Meanwhile, the plaintiff/respondent has been placed under suspension vide order dated 22.02.1994. Upon acquittal by the Sessions Judge, Bathinda, he was reinstated vide order dated 27.06.1996. The plaintiff/respondent submitted a representation dated 18.12.2000 for treating the suspension period as duty period for all intent and purposes. However, vide order dated 10.02.2003, the suspension period was treated as leave of the kind due. It was also categorically averred that no show cause notice has been served upon the plaintiff/respondent prior to the passing of order dated 10.02.2003 and as such the action was contrary to the principle of natural justice. Suit of the plaintiff/respondent was decreed by the trial court and order dated 10.02.2003 to the extent of treating the suspension period as leave of the kind due and not treating the same as duty period and further for not making payment of remaining arrears of the suspension period and also denial of the proficiency step up benefit on completion of 8 years of service, was held to be illegal, null and void. The trial Court held that the suspension period is to be treated as duty period, the plaintiff/respondent was held entitled for remaining arrears of suspension period alongwith interest @6% P.A. from the date of suit till recovery. Still further, the plaintiff was also entitled to recovery of arrears for 8 years proficiency step up w.e.f. 15.04.1999 with interest @ 6% P.A. from the date of suit till RSA No.5143 of 2011 (O&M) -3- payment. Being aggrieved, State of Punjab, appellant/defendant filed an appeal in the Court of Additional District Judge, Patiala and the same stands dismissed vide judgment dated 26.08.2011 thereby upholding the judgment and decree dated 21.05.2008 passed in favour of the plaintiff. Resultantly, the instant second appeal before this Court. Mr. Satish Bhanot, Additional Advocate General, Punjab has vehemently argued that acquittal of the plaintiff/respondent by the Sessions Court was on the basis of having been given benefit of doubt and it was not an honourable acquittal. In terms thereof, learned counsel submits that order dated 10.02.2003 whereby the suspension period of the plaintiff/respondent having been treated as leave of the kind due did not suffer from any legal infirmity. Counsel for the appellant contends that even the benefit of proficiency step up upon completion of 8 years of service could not have been released to him. I have heard counsel for the appellant at length. There is no dispute as regards the fact that the plaintiff/respondent was placed under suspension on 22.02.1994 and was reinstated on 27.06.1996. In the case registered against him under Section 304 Part II IPC for which he stood trial, the plaintiff/respondent stands acquitted. It was open for an employer to have resorted to an initiation of disciplinary proceedings to enquire into any misconduct but such course of action was not adopted. Rule 7.3 of the Punjab Civil Services Rules Vol.I Part I Chapter VII deals with the subject of allowances on reinstatement in respect of the employee having been placed under suspension and the same reads as follows: RSA No.5143 of 2011 (O&M) -4- "7.3 (1) When a Government employee, who has been dismissed, removed or compulsory retired, is reinstated as a result of appeal, revision or review, or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order re-instatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government employee for the period of his asence from duty including the period of suspension, preceding his dismissal removal or compulsory retirement, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order re-instatement is of opinion that the Government employee, who had been dismissed, removed or comulsorily retired, has been fully exonerated, the Government employee shall, subject to the provisions of sub-rule (6), be paid his fullpay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended, prior to such dismissal, removal or compulsory retirement, as the case may be; (3) In a case falling under sub-rule (2) the period o absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall treated as a period spent on duty for all purposes." Rule 7.3 confer the powers upon the Government to decide about the period of suspension. Sub Rule 2 of Rule 7.3, however, specifically prescribes that in the event, an employee, who is fully exonerated of the charge and the Government is of the opinion that the suspension of the petitioner was wholly unjustified, the government employee shall be entitled to full pay and allowances. In the facts of the present case, the plaintiff/respondent stands acquitted in the criminal prosecution which he faced, be it on the basis of having been given the benefit of dout. The RSA No.5143 of 2011 (O&M) -5- department has choosen not to initiate any departmental proceedings to return a finding on misconduct against the plaintiff/respondent. In such a situation, there was no basis for passing of the order dated 10.02.2003 so as to treated the suspension period of plaintiff/respondent as leave of the kind due. Still further, it is the concurrent finding of fact by both the Courts below that prior to passing of the order dated 10.02.2003 whereby the suspension period of the plaintiff/respondent have been treated as leave of the kind due, no opportunity of hearing/notice was issued to him. Such an order certainly entailed civil consequences and the principle of natural justice, equity and fairplay could not have been given a go by. The Division Bench of this Court in the case of Smt. Poonam Rani Vs. Uttar Haryana Bijli Vitran Nigam Ltd. 2008(1) SCT 819 held as follows: "7. Learned Additional Chief Judicial Magistrate, Jind, has ordered acquittal of the petitioner after threadbare examination of the evidence. It has been noticed that the prosecution has miserably failed to connect the accused with the commission of offences for which they have been charge sheeted. It has further been noticed that no guilt can be attributed to the accused and due to lack of evidence charges are not sustainable against them. In such circumstances, it can hardly be said that the acquittal of the petitioner is not hounourable. As such, contention of the learned counsel for the Nigam, to the contrary, cannot be accepted. The petitioner was suspended because of criminal prosecution against her. Once she is acquitted therein and reinstated into service, she is entitled to full pay during the period of her suspension. Similar view was taken by a Division Bench of this Court in the case reported as Shashi Kumar V. Uttar Haryana Bijli Vitran Nigam and another,2005(1) Service Cases Today 577. In the case of Shiv Kumar Goel v. State of Haryna and RSA No.5143 of 2011 (O&M) -6- another,2007(1) Service Cases Today 739, also a Division Bench of this Court observed as under: "If the Criminal Court recorded finding that there was no evidence to prove the charge of corruption against the charged employee, notwithstanding observations as to acquittal by benefit of doubt, it will be considered hounourable acquittal. His benefits of pay and allowance over and above subsistence allowance cannot be forfeited still observing him guilty of the same charges." For the reasons recorded above, I am unable to pursuade myself to take a different view as regards the entitlement of the plaintiff/respondent with regard to the suspension period as has been taken by the Courts below. There is no infirmity in the impugned judgment whereby the plaintiff/respondent has been held entitled to all benefits for the period he remained under suspension as also the benefit of proficiency step up upon completion of 8 years of service. Learned counsel for the appellant has placed reliance on the judgment rendered by the Apex Court reported as 1997(2) SLR 396 titled as Krishnakant Raghunath Bibhavnekar Versus State of Maharashtra & others to contend that even upon reinstatement after acquittal the benefit of the suspension period and the same could not have been given the benefit of the suspension period and the same could not have been treated as on duty. The facts of the case relied upon by the counsel for the appellant are on a completely different footing. The observation of Hon'ble the Supreme Court were in the backdrop wherein the conduct of the employee therein was in question and such employee had been placed under suspension on the charges of defalcation of public funds and fabrication of records. Even under such circumstances, the Hon'ble Supreme Court held that the grant of RSA No.5143 of 2011 (O&M) -7- full backwages for the period under suspension would not be granted as a matter of course. The facts of the case in hand are entirely different. No question of law much less substantial question of law arises for determination of the present appeal. The appeal is devoid of merit and is, accordingly, dismissed. Appeal dismissed. January 02, 2011 (TEJINDER SINGH DHINDSA) harjeet JUDGE