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2010 DIGILAW 1002 (PNJ)

Kanwal Singh v. State Of Haryana

2010-02-25

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1 The petitioner was serving as Head Teacher at Primary School, Kanwarpura, District Sirsa in the year 2003. An FIR No. 50 dated 11.9.2003 under Sections 302, 307, 34 of the IPC was registered at Police Station Mohana, District Sonepat against the petitioner, his wife, sons and daughter-in-law, for allegedly causing death of one of the daughter-in-law, namely, Sunita wife of Anand Singh, the son of the petitioner. The petitioner and other family members were arrested and put to trial. Additional Sessions Judge, Sonepat vide his judgment dated 20.9.2004/30.9.2004 convicted and sentenced the petitioner and other family members for life imprisonment with fine. The petitioner and other family members preferred an appeal i.e. Crl. Appeal No. 868-DB of 2004 before this Court. This appeal was decided vide judgment dated 8.5.2006 and all the appellants, except Anand Singh, the husband of the deceased were acquitted of the charges. In sofar as the petitioner is concerned, he had taken a plea of alibi before the trial Court. The High Court, while acquitting the petitioner, made specific observations about this plea of the petitioner in the following manner :- "....To our mind, the aforementioned three accused had been able to substantiate their pleas of being present at a place other than the place of occurrence on the date and time of the occurrence. Entries made in Documents Ex. D-1 and D-2 on 10.9.2003 by Kanwal Singh showed his presence in Village Kanwarpura on the day in question. Said village was situated in District Sirsa whereas the occurrence in question had taken place in the area of District Sonepat... In a case where the bride either commits suicide or is murdered by her in-laws family, the tempers run high. So much so that attempt is made to rope in the entire family of the husband of the victim. Almost all the family members of the husband are attributed one role or the other so as to implicate them, although they may not have done anything in the entire occurrence. Under these circumstances, duty is cast upon the Court to sift the grain from the chaff and find out if some of the accused have been falsely roped. Almost all the family members of the husband are attributed one role or the other so as to implicate them, although they may not have done anything in the entire occurrence. Under these circumstances, duty is cast upon the Court to sift the grain from the chaff and find out if some of the accused have been falsely roped. The facts and circumstances of the present case also point towards the false implication of accused Kanwal Singh, Jaibeer, Bhateri and Reena...." 2 On conviction of the petitioner by the trial court, he was placed under suspension on 11.9.2003 and a show-cause notice dated 13.5.2005 was served upon him in District Jail, Sonepat for initiating action against him. On being acquitted by the High Court, the petitioner was reinstated in service vide order dated 26.5.2006 and was posted as Head Teacher at Govt. Girls Primary School, District Sirsa. During the period of suspension i.e. w.e.f. 11.9.2003 till rejoining, the petitioner was paid only subsistence allowance at the rate of 50%. After his acquittal, the petitioner made a period of suspension. The aforesaid representation was followed by various written requests, copies thereof have been placed on record as Annexures P-5 to P-9. The claim of the petitioner for payment of the salary has been rejected vide Memo dated 22.8.2007 (Annexure P-10) on the following grounds :- "The suspension period cannot be treated as on duty. He is also not entitled to any remuneration in addition to suspension allowance, received by him explanation of the concerned Block Education Officer and dealing hand he sent within 15 days positively. Also send name of the then District Elementary Education Officer to enable this office to call his explanation." It is this order which is subject matter of challenge in this writ petition. 3 On being put to notice, the State-respondent has filed its reply. The only plea raised in the reply is that since the petitioner was convicted for the offence, and thus he is not entitled to any other amount, except the subsistence allowance, in terms of Rule 7.3 of the Punjab Civil Services Rules Vol. I Part-I. Chapter VII of the aforesaid Rules deals with the dismissal, removal and suspension whereas Rules 7.2 to 7.5 deal with the grant of allowances etc. during the period of suspension. I Part-I. Chapter VII of the aforesaid Rules deals with the dismissal, removal and suspension whereas Rules 7.2 to 7.5 deal with the grant of allowances etc. during the period of suspension. The relevant extract of the Rules is noticed here-in-below :- "CESSATION OF PAY AND ALLOWANCES ON REMOVAL OR DISMISSAL 7.1 The pay and allowances of a Government employee who is dismissed or removed from service cease from the date of such dismissal or removal. ALLOWANCES DURING PERIOD OF SUSPENSION 7.2 (1) A Government employee under suspension shall be entitled to the following payments, namely :- xxx xxx xxx (ii) In the case of any other Government employee - (iii) 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 substance allowance may be increased by a suitable amount not exceeding 30 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. (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. Provided that in the case of 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 of 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 mount earned by him, nothing in this provision shall apply to him. ALLOWANCES ON REINSTATEMENT 7.3 (1) When a Government employee, who has been dismissed, removed or compulsory retired, is reinstated as a result of appeal, revision or review, or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order re-instatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty including the period of suspension, preceding his dismissal removal or compulsory retirement, as the case be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order re-instatement is of opinion that the Government employee, who had been dismissed, removed or compulsorily retired, has been fully exonerated, the Government employee shall, subject to the provisions of sub-rule (6), be paid his fullpay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended, prior to such dismissal, removal or compulsory retirement, as the case may be : (3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall treated as a period spent on duty for all purposes. XXX XXX XXX 7.5. An employee of Government against whom proceeding have been taken either for his arrest for debt or on a criminal 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 is undergoing imprisonment, and not allowed to draw any pay and allowances (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 officers liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified." 4 Rule 7.3 confers the power upon the Government to decide about the period of suspension. Sub-rule (2) of Rule 7.3, however, specifically prescribes that in the event an employee who is fully exonerated of the charge and the Government is of the opinion that the suspension of the petitioner was wholly unjustified, the Government employee shall be entitled to full pay and allowance. Sub-rule (2) of Rule 7.3, however, specifically prescribes that in the event an employee who is fully exonerated of the charge and the Government is of the opinion that the suspension of the petitioner was wholly unjustified, the Government employee shall be entitled to full pay and allowance. Rule 7.5 also specifically prescribes that in the event the petitioner is acquitted of the blame or (if the proceedings taken against him were for his arrest for debt), of it being proved that the Officers liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified, is entitled to full salary. In the present case, though the petitioner was involved in the criminal case, however, he has been finally acquitted of the charge with specific finding that the petitioner was falsely implicated. It has also come on record that the petitioner was 250 Kms away from the place of occurrence and his involvement is out of question. Similar issue came up for consideration before the Honble Supreme Court in the case of Brahma Chandra Gupta v. Union of India, 1984 AIR (SC) 380. In the aforesaid case also, the trial court sentenced the appellant to suffer imprisonment for a period of one and half years. Appellant preferred an appeal against his conviction and sentence. The appeal was allowed and the appellant was held not guilty of the offence. On being acquitted the appellant was reinstated in service. While ordering reinstatement in service, the concerned authority was required to decide how the period of suspension should be treated. The concerned authority divided the period of suspension of the appellant into two parts, the first period was from the date of suspension to the date of dismissal on conviction and second from the date of dismissal to date of reinstatement. With regard to the latter part, the concerned authority directed the payment of full salary after giving credit for the suspension allowance that was drawn by him. The question then remained with regard to the first period. For this period, the concerned authority was of the opinion that the appellant could not be said to be fully exonerated and therefore, a direction was given that the appellant should be given 3/4th of his salary for the period of suspension. The question then remained with regard to the first period. For this period, the concerned authority was of the opinion that the appellant could not be said to be fully exonerated and therefore, a direction was given that the appellant should be given 3/4th of his salary for the period of suspension. The consequence was that for the aforementioned period 1/4th of his salary was not paid to the appellant. The appellant filed a suit and the trial court held that it was not open to the authority concerned to deny him full salary for the period of suspension. Resultantly, the matter went up to the Honble Supreme Court. The Honble Supreme Court observed as under :- "6... Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, he was reinstated and was paid full salary for the period commencing from his acquittal and further that even for the period in question the concerned authority has to held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach...." 5 Even a Division Bench of this Court in the case of Hukam Singh v. State of Haryana and another, 2001(2) SCT 696, while considering similar issue, has observed as under :- "8. In our this view, we are supported by the judgment of this Court in the case of Maha Singh v. State of Haryana and another, 1993(8) Service Law Reporter 188 : 1994(1) SCT 154 (P&H). Same view was expressed by this Court in the case of Lehna Singh v. The State of Haryana and others, 1993(3) Recent Services Judgments 119 : 1994(1) SCT 173 (P&H). Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioners being acquitted, he would be entitled to full salary and allowances for the period of suspensions and dismissal. The impugned order Annexure P-7 is accordingly quashed. Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioners being acquitted, he would be entitled to full salary and allowances for the period of suspensions and dismissal. The impugned order Annexure P-7 is accordingly quashed. The petitioner can thereafter be considered for any further promotion that may be due in accordance with the rules. No order as to costs." 6 Except the arrest of the petitioner in the criminal case, no departmental proceedings were initiated against him to find out any misconduct on his part. As a matter of fact, no misconduct has been alleged. The petitioner has been denied the full wages on account of his conviction. He has been completely acquitted of the charge with specific findings by the High Court that the petitioner was not involved in the incident. Thus there is no material before this Court to justify the denial of full wages to the petitioner, particularly, in view of rule position as noticed here-in-above. 7 In view of the above circumstances, this petition is allowed. Impugned order dated 22.8.2007 (Annexure P-10) is hereby quashed. Respondents are directed to pay full wages during the period of suspension i.e. from 11.9.2003 to 10.5.2006 alongwith all permissible allowances to the petitioner within a period of two months from the date a certified copy of this order is received by the competent authority, failing which the petitioner shall be entitled to interest at the rate of 6% per annum till the amount is actually paid. Needless to say that the petitioner shall be entitled to all increments and pay revision, if any, during the period in question. Petition allowed.