IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 1555 of 2010 Date of Decision : March 10, 2011 Mahabir Singh ....Appellant Versus State of Haryana and others .....Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE T.P.S.MANN Present : Mr. Vijay Singh Kajla, Advocate for the appellant. Mr. Aman Chaudhary, Addl. Advocate General, Haryana for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the order dated 1.7.2010 passed by the learned Single Judge holding that the appellant was not entitled to full pay and allowances during his period of suspension when he was arrested by the respondent-State in case FIR No. 126, dated 28.7.2006, under Sections 304-B/498-A/34 IPC, registered at Police Station Bawani Khera. In pursuance of his arrest on 27.8.2006, he was placed under suspension, which could be revoked only on 23.3.2007 after his acquittal on 8.1.2007. Then he made a representation on 9.4.2007 (P-3) with a prayer for withdrawal of the salary of suspension period. However, his request was rejected vide order 12.4.2010 (P-4), by observing as under:- LPA No. 1555 of 2010 -2- “ He represented against the above said suspension order vide representation dated 20.11.02. After considering his representation/explanation in view of the suspension order, the department had asked the comments of District Education Officer, Bhiwani and as well as of concerned. Further a reminder was also issued to the District Education Officer, Bhiwani for sending the requisite comments vide Memo No. 5/9-07 HRME (4) dated 25.9.07. the accused was not fully exonerated. In view of the LR's guideline dated 10.1.2006 enclosed herewith as the accused cannot be said to have been fully exonerated, therefore, he is not entitled to get full pay and allowances during the suspension period from 27.8.06 to 8.1.07. Leave of kind due is approved for the period.” 2. Feeling aggrieved of the aforesaid order, the appellant filed C.W.P. No. 11409 of 2010, which has been dismissed by the learned Single Judge holding that the appellant is not entitled to full pay and allowances for the period of suspension. A short order passed by the learned Single Judge reads thus:- “ In view of the law laid down by the Hon'ble Supreme Court in Ranchhodji Chaturji Thakore Vs. The Superintendent Engineer, Gujarat Electricity Board, 1997 (1) SLR 14, the authorities, in my view, would have power and jurisdiction to determine whether the full pay and allowances are to be released to the petitioner or not. Once the decision is taken on the ground that the responsibility LPA No. 1555 of 2010 -3- for getting involved in a criminal case was that of the petitioner, the authorities would be justified in not releasing full pay and allowances to the petitioner for the period for which he remained under suspension. No case for interference is made out. Dismissed.” 3. Mr. Vijay Singh Kajla, learned counsel for the appellant has argued that once the appellant has been acquitted of criminal charge then his suspension should be considered as absolutely unwarranted and he shall be paid full pay and allowances for the period commencing from 27.8.2006 to 22.3.2007 when he was reinstated. In support of his submission, learned counsel has placed reliance on Rule 7.3 read with Rule 7.5 of the Punjab Civil Services Rules (for brevity 'the Rules'). In support of his stand learned counsel has also placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of B.D. Gupta v. State of Haryana, 1972 AIR SC 2472 and a Division Bench judgment of this Court rendered in the case of Hukam Singh v. State of Haryana, 2001 (2) SCT 696. The second submission made by the learned counsel is that in any case the subsistence allowance in terms of Rule 7.2 of the Rules could not be denied to him. 4. Mr. Aman Chaudhary, learned Additional Advocate General, Haryana, has, however, submitted that after the appellant was placed under suspension on account of his arrest in a criminal case then no fault of the employer-department could be found because in such a case the suspension is the necessary consequence of arrest. In support of his submission, learned State counsel has placed reliance on Rule 4A LPA No. 1555 of 2010 -4- (2)(a) of the Haryana Civil Services (Punishment & Appeal) Rules, 1987. Mr. Chaudhary has also pointed out that the learned Single Judge has rightly placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and another, (1996) 11 SCC 603, which has been reiterated in subsequent judgment in the cases of Union of India and others v. Jaipal Singh (2004) 1 SCC 121 and Baldev Singh v. Union of India and others, (2005) 8 SCC 747, and has argued that mere acquittal of an employee concerned in criminal case would not automatically entitle him to full salary because he has not worked for the relevant period. However, Mr. Chaudhary, in support of his submission, has pointed out that the subsistence allowance has not been paid to the appellant but the appellant would be entitled to subsistence allowance in terms of Rule 7.2 of the Rules. 5. Having heard learned counsel for the parties and perusing the paper-book with their able assistance, we find that in order to decide the controversy, Rule 7.5 needs detailed examination and the same reads as under:- “SUSPENSION DURING PENDENCY OF CRIMINAL PROCEEDINGS, OR PROCEEDINGS FOR ARREST FOR DEBT, OR DURING DETENTION UNDER A LAW PROVIDING FOR PREVENTIVE DETENTION. 7.5 An employee of Govt. against whom proceeding have been taken either for his arrest for debt or on a criminal LPA No. 1555 of 2010 -5- charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or in undergoing imprisonment, and not allowed to draw any pay and allowance (other than any subsistence allowance that may be granted in accordance with the principles laid down in rule 7.2) for such periods until the final termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt), of it being proved that the officer's liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified.” 6. A perusal of the aforesaid Rule shows that if a Government employee has been arrested on a criminal charge then he is deemed to be under suspension for the period during which he is detained in custody or is undergoing imprisonment. In such a situation, he is not allowed to draw any pay and allowance other than subsistence allowance that may be granted in accordance with the provision of Rule 7.2 of the Rules for such period until the final termination of the criminal proceedings initiated against him or until he is released from the detention followed by reinstatement. The rule further provides that adjustment of his LPA No. 1555 of 2010 -6- allowances for the period of suspension in the aforesaid eventuality has to be made according to the circumstances of each case. According to the illustration of the rule the full amount of pay and allowances could be given only if the Officer is completely acquitted of blame or if it is proved that the officer's liability arose from circumstances beyond his control or the detention was found to be unjustified by the competent authority. 7. A question in sum and substance similar to the one in hand has arisen before Hon'ble the Supreme Court in the case of Ranchhodji Chaturji Thakore (supra) wherein an employee was reinstated in service after acquittal and the question arose concerning payment of back wages to him. Their lordships of Hon'ble the Supreme Court observed that it was his own conduct which led to his involvement in the crime that was taken into account for his not being in service of the employer. Consequent upon his acquittal, the employee became entitled for reinstatement for the reason that his service was terminated on the basis of the conviction by operation of the statutory rules. In that case, the employee was convicted but later on acquitted by the Appellate Court. Hon'ble the Supreme Court held that the question of back wages could be considered only if the action by way of disciplinary proceedings was initiated by the department and such an action was found to be unsustainable in law. In that situation, it could be said that the employee was prevented unlawfully from discharging his duties because his conduct becomes relevant. Accordingly, it was opined in that case that the conduct of the delinquent was such which led to his involvement in a crime, though he was later acquitted, therefore, he had LPA No. 1555 of 2010 -7- disabled himself from rendering the service on account of conviction. Therefore, he was not held entitled to back wages. The aforesaid view has been followed in Jaipal Singh's case (supra) by holding that the employer cannot be saddled with the liability also for back wages for the period when he was out of service during/after conviction suffered by him in the criminal case. The view of Hon'ble the Supreme Court is discernible from para 4 which reads as under:- “ If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period for which they could LPA No. 1555 of 2010 -8- not avail of the services of the respondent. The High court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High court insofar as it directed payment of back wages is liable to be and is hereby set aside.” 8. Likewise in Baldev Singh's case (supra) the principle of no work no pay was applied and it was observed that merely because there has been an acquittal it would not automatically entitle the employee to get salary for the whole period. Therefore, we are of the view that the appellant would not be entitled to full salary and allowances for the period of suspension from 27.8.2006 to 22.3.2007. 9. However, we find merit in the second contention raised by the learned counsel for the appellant with regard to admissibility of subsistence allowance, which has in fact not been seriously disputed by the learned Additional Advocate General, Haryana. Accordingly, it has to be held that the appellant would be entitled to subsistence allowance as per the provision of Rule 7.2 of the Rules, which reads as under: "7.2 (1) A Government employee under suspension shall be entitled to the following payment, namely:- (i) In the case of a Warrant Officer in Civil employ (employment?) 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 LPA No. 1555 of 2010 -9- 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; (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; LPA No. 1555 of 2010 -10- (b) any other compensatory allowance 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 fulfilment 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, and the authority which made or is deemed to have made the order of suspension is satisfied 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 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 are equal to or less than the amount earned by him nothing in this proviso shall apply to him." 10. A perusal of Rule 7.2(1)(ii)(a) would show that a LPA No. 1555 of 2010 -11- Government employee placed under suspension would be entitled to an amount equal to the leave salary on the assumption when he would have been on leave on half-pay along with Dearness Allowance if admissible. Where period of suspension exceeds six months then various eventualities have been discussed in the proviso appended to Rule 7.2 (1)(ii)(a). As per clause (i) of the proviso, the amount of subsistence allowance could be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of first six months, if in the opinion of the competent authority the period of suspension has not prolonged for the reasons directly attributable to the Government employee. In other words, if the suspension period of the Government employee is to exceed beyond six months for the reasons which are not attributable to him, then the amount of subsistence allowance could be increased maximum to 50 per cent of the amount already received by him as subsistence allowance. The other clauses of the said proviso deals with the situation of decrease of subsistence allowance, the rate of dearness allowance and any other compensatory allowance admissible from time to time on the basis of pay which the Government employee was in receipt on the date of his suspension. Sub-rule (2) of Rule 7.2 of the Rules requires the Government employee to furnish a certificate that during suspension period he was not engaged in any other employment, business, profession or vocation. 11. It is obvious that for the first six months of the suspension period, the petitioner-appellant would be entitled to be paid subsistence allowance in terms of Rule 7.2 of the Rules. Accordingly, we direct the respondents to make payment of subsistence allowance at the rate of LPA No. 1555 of 2010 -12- 50% for the first six months and at the rate of 75% for the latter period. 12. In view of above, the appeal is partly allowed and the view taken by the learned Single Judge is modified to that extent. The appeal stands disposed of in the above terms. (M.M.KUMAR) JUDGE (T.P.S. MANN) March 10, 2011 JUDGE ajay-I/Pkapoor