IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.16677 of 2010 DATE OF DECISION : SEPTEMBER 30, 2010 DARSHAN LAL BHANDARI ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. CM Munjal, Advocate, for the petitioner(s). AJAI LAMBA, J. (Oral) 1. This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing orders dated 28.5.2008, 10.11.2008, 22.6.2010 and 16.8.2010, Annexures P-13, P-16, P-18 and P-19, respectively. 2. It has been pleaded that the petitioner was appointed as a Peon in the office of Deputy Commissioner, Ferozepur, on 6.12.1980 and, thereafter, was promoted as a Clerk on 7.7.1988. The petitioner was further promoted as Senior Assistant on 1.1.1991. In 1997, the petitioner was transferred to Moga, on creation of a new revenue district. The petitioner Civil Writ Petition No.16677 of 2010 2 wanted to avail the benefit of Self Employment Scheme floated by the respondent-State. Under the circumstances, the petitioner applied for leave for 5 years under the Scheme. It has been pleaded that the petitioner spent substantial amount for purchase of a shop, to be self employed. The petitioner applied for leave on 12.9.2005 under the Scheme. The respondents, vide order dated 14.2.2006, however, directed the petitioner to join duty on 1.3.2006. The application for leave under the self employment scheme was declined. 3. In para-6 of the petition, it has been pleaded that the petitioner informed the employer by sending a written letter that the petitioner had already started his business, which was progressing and it would not be possible for the petitioner to attend office. Copy of the letter has been placed on record as Annexure P-8. Vide letter (Annexure P-8), the petitioner again pleaded for sanction of leave for 5 years under Self Employment Scheme. It has further been pleaded that the leave was not sanctioned, rather the period of absence was converted into earned leave. 4. In view of continued absence of the petitioner, it seems that departmental action was initiated against the petitioner. Regular inquiry was conducted. The Inquiry Officer submitted the report on 27.8.2007. 5. Order (Annexure P-16) is the order passed by the Deputy Commissioner, Moga i.e. the Punishing Authority. On a perusal of the same, it is brought out that the petitioner, in fact, had proceeded on medical leave with effect from 14.1.2005. While on medical leave, the petitioner filed an application for leave for 5 years under the Self Employment Scheme, on 12.9.2005. The respondents, vide order dated Civil Writ Petition No.16677 of 2010 3 24.2.2006, however, allowed the petitioner earned leave up to 28.2.2006 and refused leave of 5 years under the Self Employment Scheme. The petitioner was asked to join duty on 1.3.2006. 6. Order dated 24.2.2006 has not been placed on record for consideration of this Court. Even the inquiry report has not been placed on record for consideration of this Court and, therefore, the facts are being gathered from the impugned orders only. 7. `It is the admitted case of the petitioner that the petitioner did not join duty at all despite the fact that the leave was not sanctioned and was declined. Even in inquiry proceedings, although opportunity of hearing was given to the petitioner repeatedly, yet the petitioner did not join inquiry proceedings. Charge-sheet was served and no reply to the charge-sheet was filed. The Punishing Authority, on receipt of the inquiry report and other documents, served a show cause notice on the petitioner to enable the petitioner to bring out his defence. Even though repeated attempts were made through personal service and through publication in newspapers, the petitioner did not appear before the Punishing Authority nor did he file any reply. It is under these circumstances that the facts and circumstances of the case have been considered and the impugned order (Annexure P-16) dismissing the petitioner from service has been passed. 8. It seems that the petitioner carried an appeal to the Commissioner. It has been brought out that the leave for 5 years could not have been sanctioned for administrative reasons i.e. due to shortage of staff. The petitioner did not appear before the appellate authority, rather Civil Writ Petition No.16677 of 2010 4 filed an application with the request that his Advocate be allowed to appear instead of him. The petitioner was given notice by way of registered post, however, the petitioner did not appear and, therefore, vide order passed on 22.6.2010 (Annexure P-18), the appeal has been dismissed. 9. Annexure P-19 is an order passed by the revisional authority dismissing the revision petition. 10. Considering the totality of facts and circumstances of the case, I find that the petitioner was given due opportunity of hearing. The petitioner intentionally did not bring out his defence before the Inquiry Officer or before the Punishing Authority. The facts and circumstances make it evident that the petitioner remained absent after 1.3.2006. In such circumstances, I find the punishment awarded to the petitioner to be commensurate with the misconduct. 11. In view of the above, I find no ground to interfere with orders, Annexures P-16, P-18 and P-19 as no illegality can be traced in the orders, so as to call for their review on judicial side. 12. In regard to the claim of the petitioner for Subsistence Allowance, vide order (Annexure P-13), the application has been 'filed' by the Deputy Commissioner on the ground that the petitioner had not cooperated during inquiry and had not come present. 13. The respondents were required to consider the claim of the petitioner for payment of Subsistence Allowance during the period of suspension, in terms of provisions of Rule 7.2 of the Punjab Civil Services Rules (Volume I Part I Chapter VII). The Rule reads as under:- Civil Writ Petition No.16677 of 2010 5 “7.2 (1) A Government employee under suspension shall be entitled to the following payments, namely :- (i)in the case of a Warrant Officer in Civil employ who is liable to revert to military duty, the pay and allowances to which he would have been entitled had he been suspended, while in military employment. (ii)In the case of any other Government employee - (a) A subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on leave on half pay, and in addition dearness allowance, if admissible, on the basis of such leave salary : Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows :- (i)the amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee. (ii)the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government employee. Civil Writ Petition No.16677 of 2010 6 (iii)the rate of dearness allowance will be based on the increased, or as the case may be the decreased amount of subsistence allowance admissible under clauses (i) and (ii) above ; (b)any other compensatory allowances admissible from time to time on the basis of pay of which the Government employee was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances. (2) No payment under sub-rule (1) shall be made unless the Government employee furnishes a certificate that he is not engaged in any other employment, business, profession or vocation. Provided that in the case of a Government employee dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods as the case may be fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him, where the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.” 14. The respondents were required to consider the claim of the petitioner for payment of subsistence allowance under the provision Civil Writ Petition No.16677 of 2010 7 extracted above. The case could not have been 'filed' because the petitioner did not cooperate during inquiry proceedings. 15. Accordingly, the writ petition is disposed of with a direction to the respondents to consider the claim of the petitioner under the provisions of the aforesaid Rule. The petitioner would be required to file a fresh representation in regard to the claim for Subsistence Allowance, which shall be dealt with and decided by the respondents within a period of 3 months of its filing, by passing a reasoned and speaking order. In case, the petitioner is found entitled to payment of subsistence allowance, the same shall be released in favour of the petitioner within two months of taking a decision on the representation of the petitioner. September 30, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?