C.W.P No. 1326 of 2007 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 1326 of 2007 (O&M) Date of decision : July 07, 2010 Chanan Singh, ...... Petitioner (s) v. The State of Punjab and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. G.S.Bal, Advocate for the petitioner. Mr. S.S.Gill, DAG Punjab for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This writ petition has been filed for quashing the order dated 6.12.2005 (Annexure P-3) whereby the claim of the petitioner for counting his service w.e.f 5.8.1987 onwards for the purpose of grant of increments and superannuation benefits was rejected. The petitioner joined service in the Punjab Police on 25.11.1962 as a Constable. After 25 years of service on 5.11.1987, the petitioner was implicated in a criminal case under Sections 148/149/452/302 of the IPC. Consequently, he was suspended. Initially, he C.W.P No. 1326 of 2007 (O&M) ::2:: was convicted by the trial Court under Section 304 of the IPC and was sentenced to undergo RI for two years and fine of Rs.5,000/-. At that stage, the respondents could have dismissed the petitioner or taken any action pursuant to the conviction but they chose not to do so. In appeal, this Court, vide judgment dated 5.11.2003, reduced the sentence to payment of Rs.2 lacs as compensation. On further appeal before the Hon'ble Supreme Court, the conviction was maintained but the punishment was reduced to compensation of Rs.60,000/- by judgment dated 6.8.2004. It is not disputed that the said amount has been duly deposited. During this interregnum, the petitioner was reinstated on 2.6.1998 and was allowed to finally retire on attaining the age of superannuation w.e.f 30.11.2001. He was released final pension on the basis of the salary he was drawing on 5.11.1987 which was the date of his suspension. No order was passed with regard to his suspension period and no increments whatsoever were released to him even after his reinstatement upto his retirement. Originally, the petitioner filed CWP No.13576 of 2005 for the same relief. The said petition was disposed of by judgment dated 6.9.2005 whereby the respondents therein were directed to decide the legal notice of the petitioner. Pursuant to the direction of this Court, the impugned order was passed in which it was held as follows :- “ xx xx xx xx Ex-Constable Chanan Singh No.1961/BTL has been convicted on a criminal charge against him and was sentenced to imprisonment. The sentence was upheld by the appellate Courts. As such he is not entitled to any increment, arrears and other benefits for the suspension C.W.P No. 1326 of 2007 (O&M) ::3:: period and thereafter as his reinstatement by the then Inspector General of Police, Border Amritsar was subject to decision of pending appeal. The suspension period and period subsequent thereto cannot be considered for award of service benefits. However, keeping in view his family circumstances, hardships faced by him and also his family's welfare and also taking note of his length of service which was more than twenty years to his credit at the time of his involvement in the above said case, his pension case is forwarded to the competent authority i.e Accountant General (A & E) Punjab, Chandigarh.” Counsel for the petitioner has argued that it was incumbent upon the respondents to first pass an order regarding the suspension period of the petitioner under rule 7.3(b) of the Punjab Civil Services Rules (Vol.I). Thereafter, since no inquiry, whatsoever, was instituted against the petitioner, atleast increments from the date of his reinstatement till the date of his retirement had to be credited to the petitioner. Counsel for the respondents has drawn my attention to the order (Annexure P-3) wherein it has been recorded that the petitioner had only been provisionally reinstated subject to the decision of the criminal case. As per the learned counsel, since the conviction of the petitioner was upheld, no fault could be found with the impugned order. In my opinion, this reasoning is too facile. No doubt, the government had a right to inquire into the conduct of its employee leading to his conviction and pass an appropriate order with regard to his continuance or otherwise in service and, even if the petitioner was permitted C.W.P No. 1326 of 2007 (O&M) ::4:: to continue, any punishment could have been imposed upon him. This was admittedly not done. No inquiry was instituted against the petitioner. Counsel for the petitioner has drawn the attention of the Court to rule 2.2(b) of the Punjab Civil Services Rules (Vol.II), a relevant portion of which reads thus :- “ (b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings, to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. Provided that -- (1) Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment shall after the final retirement of the officer, he deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (2) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or C.W.P No. 1326 of 2007 (O&M) ::5:: during his re-employment,- (i) shall not be instituted save with the sanction of the Government; (ii) shall be in respect of any event which took place more than four years before the institution of such proceedings; and xx xx xx xx xx” As per counsel for the petitioner, no inquiry having been instituted either prior to the retirement of the petitioner or even within a period of four years from the judgment of the Hon'ble Supreme Court, it was not open to the respondents to deny the claim of the petitioner in this cavalier fashion as has been done by Annexure P-3. He has relied upon J.K.Dhir vs State of Punjab, 1987(4) SLR 72, wherein a Full Bench of this Court authoritatively ruled that no inquiry proceedings can be initiated against an employee after more than four years of his retirement. Counsel for the respondents has fairly conceded that this indeed is a position of law. Once this is so, there is no escape from the conclusion that the impugned order (Annexure P-3) cannot stand the test of law. Consequently, this writ petition is allowed and the impugned order (Annexure P-3) is set aside. However, the question remains as to what relief the petitioner is entitled to. Counsel for the petitioner has argued that the petitioner would have earned his increments as a matter of right. In this connection, he has relied upon Balwinder Singh vs State of Punjab, 1995(3) RSJ 31. However, counsel for the respondents has relied upon Satish Rathee vs State of Punjab, 1992(2) RSJ 129 wherein a Division Bench of this Court held that C.W.P No. 1326 of 2007 (O&M) ::6:: an employee is not entitled to earn increments during his suspension period particularly when he is found guilty. In these circumstances, the appropriate relief which can be granted to the petitioner is that a direction is issued to respondent No.3 to firstly take a reasoned decision as to how the period of suspension of the petitioner is to be treated and thereafter pass a fresh reasoned order on the plea of the petitioner for the grant of increments keeping in view the above mentioned position of law. Respondent No.3 is further directed to pass a speaking order/s and, if the petitioner is found entitled to any relief, the same be granted to him within a period of four months from the receipt of a certified copy of this order. In case, the petitioner is found entitled to increments and consequent re-fixation of salary and pension etc., the benefit of the same be paid to him within four months. It is made clear that in case the needful is not done within the stipulated period, the petitioner would be entitled to interest @ 8% p.a on any accrued amount which may be found due from the date of entitlement till the date of release. As the main petition has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) July 07, 2010. JUDGE `kk'