Civil Writ Petition No. 3424 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 3424 of 1989 Date of decision: 15.10.2009 Dr. Mohinder Singh ...petitioner Versus The State of Haryana ...respondent. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH ***** Present: Mr. R.K. Malik, Senior Advocate with Mr. Yashdeep Singh, Advocate for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana for the State. ***** RANJIT SINGH J. The petitioner, who was working as Medical Officer in the Health Department has filed this writ petition to impugn the order, Annexure P-7, whereby his period of suspension has been regularised to be counted as duty but still the petitioner is held entitled to subsistence allowance only during the period of suspension. The petitioner was placed under suspension on 2.4.1985, which was made effective w.e.f. 10.4.1985, that being the date when this order was conveyed to him. It was alleged that the petitioner was found in a drunken condition and refused to check up some of the accused. For this, the petitioner was charge sheeted. The perusal of the charge sheet would show that one Narinder Singh, made an attempt to enter into Nursing Hospital at Bhiwani in the drunken condition. He was brought to the General Hospital at 7.30 p.m. At that time, Sh.C.M. Civil Writ Petition No. 3424 of 1989 2 Gupta, Medical Officer was on duty but was busy in operation theater. The petitioner was on night duty and accordingly police requested him to medically examine the accused, Narinder Singh, but he refused. The police on the basis of this made an allegation against the petitioner that he had taken liquor during duty hours and action could not be taken against the accused on account of non cooperative attitude of the petitioner in not medically examining the said accused. Allegation of misbehaving with some of the constables was also made against the petitioner and he was accordingly charge sheeted. The petitioner submitted his reply, copy of which is on record as Annexure P-3. Obviously, the petitioner has denied the allegation as made against him. Taking into consideration the reply filed by the petitioner, charge preferred against him was dropped. The petitioner, however, remained under suspension up to 5.11.1985. Though this charge preferred against the petitioner was dropped but he was served with another charge sheet with the allegation that during his period of suspension, he did not remain at his head quarters, which was fixed at Narnaul. The petitioner submitted reply to this charge sheet and ultimately was warned for having committed this misconduct. No action, however, was taken against the petitioner for charge, for which he was placed under suspension. Taking this to be a punishment awarded to the petitioner, the period of suspension has been regularised. Though it is directed to be counted as duty but petitioner still has not been held entitled to full pay and allowances during the period of his suspension on the authority of Rule 7.3 (2) of CSR Vol. 1 Part 1. Civil Writ Petition No. 3424 of 1989 3 Two questions would thus arise for consideration. Can the warning awarded to the petitioner be taken into consideration while regularising the period of suspension of the petitioner, which was not for the allegation for which this punishment was awarded. Incidental question would be to see if the punishment of warning should lead to non payment of full salary and whether such order would be fair having regard to the facts and circumstances of this case. Once the charge for which the petitioner was suspended was dropped and not pursued further, it would necessarily mean that the petitioner has not been awarded any punishment for the charge alleged, which led to his suspension. It would obviously mean that the petitioner was fully exonerated of the charge. It is possible thus to view that his suspension for this allegation was wholly unjustified. As per Rule 7.3 (2), the petitioner shall be entitled to full pay and allowances for this period as if he has not been suspended at all. This would clearly come out from the contents of the Rules. The justification given by the respondents to deny the full pay and allowances to the petitioner for this period on the ground that he was warned thus would not be justified. This punishment was awarded to the petitioner for a different allegation. The suspension of the petitioner was not related to the subsequent charge preferred against the petitioner for which he was proceeded against for award of minor penalty under Rule 8 of Punishment and Appeal Rules, 1987. The earlier charge sheet which was dropped is dated 24.3.1987 and is annexed with the record as Annexure P-2. The punishment of warning has been awarded to the petitioner on a charge sheet, which Civil Writ Petition No. 3424 of 1989 4 is dated 15.12.1987. This is for entirely different allegation. For this allegation, the petitioner was not proceeded against for award of major penalty. This charge sheet was under Rule 8 for award of minor penalty. Thus this charge sheet or the punishment that has ultimately been awarded to the petitioner has no connection with his suspension. The allegation for which the petitioner has been warned is only to the effect that he has not remained at the Head Quarters during part of period of suspension from 20.4.1985 to 13.5.1995. He has been treated as absent for this period. I am clearly of the view that this punishment cannot legally be taken into consideration to have an effect on the pay and allowances that would be payable to the petitioner for a period of suspension. The respondent authorities could competently pass an order denying full pay and allowances to the petitioner for the period of suspension only, if he had been awarded a punishment for the allegation for which he was placed under suspension. The petitioner was never placed under suspension for being absent from his Head Quarters during the period of suspension. Even otherwise, it would not be fair and appropriate to deny the benefit of pay and allowances for the period of suspension where ultimately an employee is left with just an award of warning. In this regard, reference can be made to a decision in Civil Writ Petition No. 21304 of 2008 decided on 14.7.2009. In this case it has been viewed as under: “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 Civil Writ Petition No. 3424 of 1989 5 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.” Reference here can also be made to a decision in the case of Krishan Sewak versus The State of Haryana and another 1997 (4) RSJ 162. In this case also it is held that it would not be appropriate, just and proper to deny benefit of pay and allowances for the period of suspension where the said period is regularized by grant of leave of kind due and where the case is disposed of by penalty of warning. Similar view was taken in Rattan Singh Chaudhary versus The State of Punjab 1971 SLR 692. In this case, 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 and that the competent authority is to pass an order in a quasi judicial manner affording the opportunity of hearing. Not only that, it was further observed as under: “ 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.” Even the reading of Rule 7.3 (2) of the Rules would show that justification for payment of pay and allowances would primarily depend upon the outcome of the inquiry which is held, for which the Civil Writ Petition No. 3424 of 1989 6 government employee is placed under suspension, where the consequential effect of rule is seen operating harshly than the punishment awarded. The same can cetainly be termed as unfair and unjust. The view thus is possible that it would not be fair, just and equitable to forfeit the pay and allowances of the person, who is ultimately left with the award of warning only. This consideration would arise if it is viewed that the punishment of warning as awarded to the petitioner can be taken into consideration for the purpose of regularizing his period of suspension. As already noticed, this punishment primarily cannot be taken into consideration while passing an order regularizing the period of suspension of the petitioner so far as the grant of pay and allowances is concerned. Viewing the case from any angle, the irresistible conclusion is that the denial of full pay and allowances to the petitioner for a period he has remained under suspension is neither legally permissible course nor would it be just, fair and appropriate. The writ petition is accordingly allowed. The impugned orders, Annexures P-7 and P-8, are set aside. The petitioner is held entitled to full pay and allowances for the period he has remained under suspension i.e. from 15.4.1985 to 5.11.1985. There shall be no order as to costs. October 15, 2009 ( RANJIT SINGH ) rts JUDGE