Civil Writ Petition No. 4269 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4269 of 2010 Date of decision: 18.04.2011 Mathura Dass ...Petitioner Versus General Manager Operation and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Jai Vir Yadav, Advocate for the petitioner. Mr. Sagar Deswal, Advocate for Mr. Narender Hooda, Advocate for the respondents. RANJIT SINGH J. The petitioner joined the service with Haryana State Electricity Board on 08.01.1971 as Assistant Lineman. On 31.01.1986, he was promoted as Lineman. As per the petitioner, he was falsely implicated in FIR No. 497 dated 27.12.1993 alongwith Ami Lal. He was, accordingly, placed under suspension vide order dated 27.12.1993 and remained so till 08.01.1994. On 09.12.1995, the petitioner was convicted by the trial Court. Infact, on 16.12.1996 the petitioner was again placed under suspension. On 20.12.1996, order terminating the petitioner from service was passed with retrospective effect from 20.12.1995, which was the date of conviction of the petitioner by trial court. The petitioner had impugned this judgment by filing a criminal appeal, which was allowed on 09.11.2005. The conviction of the petitioner has been set aside and Civil Writ Petition No. 4269 of 2010 2 the petitioner was acquitted of the charges. On 19.12.2005, the petitioner submitted an application alongwith copy of the judgment praying for his reinstatement and permission to allow him to join duties. The petitioner submitted the reminder on 23.12.2005, which was followed by another request to reinstate him on 17.08.2006. No order, however, was passed. In the meantime, the petitioner attained the age of superannuation on 31.10.2006. The petitioner, accordingly, approached this Court through CWP No. 16605 of 2006, which was disposed of with the direction to the respondent to pass an appropriate order on the representation of the petitioner, which was annexed as Annexures P-5 to P-7 and are on record of the present writ petition as Annexures P-1 to P-3. Respondent No. 1, thereafter, had passed the impugned order Annexure P-5, withdrawing the order of termination dated 20.12.1996. The petitioner, however, has been denied salary and allowances for the period of suspension as well as for the duration he had remained terminated except subsistence allowance already paid. Further directions are issued for not counting the suspension and termination period for the purpose other than the pension and pensionary benefits. The petitioner has, accordingly, impugned this order through the present writ petition. Reply has been filed on behalf of respondents No. 1 to 3 saying that no fundamental or legal right of the petitioner has been violated. Otherwise common reply is filed to the contents of paras 2 to 10 of the petition. These averments are admitted being matter on record. While responding to paras 11 to 14 of the writ petition, it is stated that these averments are wrong and hence denied. The Civil Writ Petition No. 4269 of 2010 3 termination of the petitioner is justified on the ground of his conviction for an offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as an 'Act'). Thus, it is stated that the petitioner cannot claim that he has unblemished record as such. It is also disclosed that the petitioner was charge sheeted on 31.05.2004 for various acts of omission and commission committed by him during the discharge of his official duties. The petitioner had filed appeal against the termination order and prayed for setting aside the same. The Additional Secretary, HSEB, Panchkula considered the appeal and had dismissed the same through the impugned order on the ground of delay it being time barred. Respondents plead that there is no cause made out to interfere in the punishment awarded by the competent authority. It is stated that the petitioner had never challenged the order dated 02.03.1997 and the termination order dated 20.12.1996. The said order has subsequently been withdrawn in the year 2008 and, accordingly, the submission that this order was not challenged would be meaningless. The issue now required to be considered whether the petitioner would be entitled to pay allowances and other benefits for the period he has remained out of service on account of his termination, once the order has now been withdrawn. The perusal of the termination order annexed with the reply as Annexure R-3/1 would show that termination of the petitioner from the service had followed only on account of his conviction under Section 7 of the Act. The offence alleged against the petitioner also apparently was during the course of discharge of his official duties. Once the conviction was Civil Writ Petition No. 4269 of 2010 4 set aside by the appellate authority, the entire stigma standing against the petitioner would go. The respondents have justly withdrawn the termination order. The question would be whether that part of the order whereby the petitioner has been denied wages for the period on the principal of No Work No Pay is justified in law or not. An opportunity was given to the respondents to have instructions in this regard but the counsel for the respondents have pleaded helplessness in view of the impugned order passed earlier. The petitioner was available for work but was denied the same. The termination was on the basis which is now not found justified and proper. Can principle of No Work, No Pay strictly apply in this case once the termination on the basis of his conviction, has subsequently been set aside? The petitioner cannot be made to suffer the consequences of his conviction. The principle of No Work No Pay may not appear to apply in this case. Reference in this regard can be made to observations made in the case of Union of India versus K.V. Jankiraman etc., AIR 1991 Supreme Court 2010 . It is held in this case that when an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of “no work no pay” is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons. Civil Writ Petition No. 4269 of 2010 5 It may have been a different matter, had the petitioner been convicted for an offence not connected with his office and he had got himself involved in something with which the department had no concern or responsibility. As observed in K.V. Jankiraman's case (supra), there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on accounts of non-availability of evidence due to the acts attributable to the employee etc. in such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. Therefore to deny the salary to an employee would not in all circumstances be illegal. This is not a case where the salary is denied due to any of consideration as noticed by the Hon'ble Supreme Court. It is a case where the petitioner has been accused of offence which has a connection with the service. Once the petitioner is acquitted of offence under the Prevention of Corruption Act, denying him salary, and allowances on the ground of No Work No Pay may not be fair. Civil Writ Petition No. 4269 of 2010 6 Even in terms of rule position, the denial of pay and allowances for the period under suspension could be ordered only after following the procedure prescribed under the rules, which apparently has not been done. The writ petition is, accordingly, allowed. The petitioner is held entitled to pay and allowances for the period he has remained out of service and for the duration of his suspension period as well. The petitioner is also held entitled to costs, which are assessed as ` 10,000/-. April 18, 2011 (RANJIT SINGH ) rts JUDGE