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2013 DIGILAW 357 (PNJ)

Sukhchain Singh v. State of Punjab

2013-03-18

Augustine George Masih

body2013
JUDGMENT Mr. Augustine George Masih, J. (Oral):- Petitioner has approached this Court praying for quashing the part of the order dated 16.10.2006 (Annexure P-3) whereby the order of dismissal of the petitioner dated 18.4.2004/24.3.2005 has been set aside but he has been deprived of the salary for the period on the ground that he has not served the department. 2. Counsel for the petitioner contends that initially petitioner was convicted by the trial Court under Section 498-A read with Section 406 IPC. On an appeal preferred by him, learned Addl. Sessions Judge, Amritsar vide order dated 7.8.2002 (Annexure P-1) acquitted the petitioner of the charge framed under Section 498-A IPC, however, the appeal with regard to the offence under Section 406 IPC was dismissed and the petitioner was taken into custody to serve the remaining part of the sentence. Petitioner was thereafter taken back in service vide order dated 16.10.2006 (Annexure P-3) by setting aside the order of dismissal, however, it was ordered that the period for which he did not perform the duty may be treated as leave of the kind due. Petitioner preferred Criminal Revision No. 1662 of 2002 against the order passed by the Addl. Sessions Judge, Amritsar dated 7.8.2002. The said revision petition came up for hearing on 16.9.2008 when the Court set aside the judgment passed by the trial Court and acquitted the petitioner of the charges framed against him. On the basis of his acquittal, he submitted a legal notice dated 27.7.2010 (Annexure P-6) to the Secretary, Govt. of Punjab, Department of Education-respondent No.1 asserting therein that he is entitled to the grant of pay and allowances of the period he had remained out of service because of the criminal proceedings initiated against him, which resulted in conviction leading to his dismissal from service and on his acquittal he is entitled to the benefits under Rule 7.3(2) of the Punjab Civil Services Rules, Volume-I, Part-I. The said benefits have not been granted to the petitioner, thus, the present writ petition has been filed by him. 3. 3. Counsel for the petitioner while referring to Rule 7.3(2) of the Punjab Civil Services Rules, Volume-I, Part-I asserts that the petitioner be paid the pay and allowances of the period he had remained out of service because of conviction which has resulted in his dismissal till the date of his reinstatement in the light of the fact that he now stands acquitted of the charges levelled against him. He accordingly contends that the petition be allowed by setting aside the part of the order dated 16.10.2006 (Annexure P-3), which denies him the pay and allowances for the period when the petitioner was out of service. 4. On the other hand, counsel for the respondents, submits that the acquittal of the petitioner is not based on merits but is merely on the ground that a compromise has been entered into between the parties which resulted in passing of the order dated 16.09.2008 (Annexure P-5) by this Court in Criminal Revision Petition No. 1662 of 2002 preferred by the petitioner. The fact remains that the petitioner had undergone sentence on the basis of his conviction and, therefore, the petitioner is not entitled to the claim as has been made by him in the present petition. She contends that in the matter a lenient view had been taken by the appointing authority while deciding his representation for reinstatement and the petitioner is not entitled to any claim, the writ petition may be dismissed. 5. On considering the submissions made by the counsel for the parties and with their assistance have gone through the records of the case. 6. The fact that the petitioner was dismissed from service on the basis of his conviction without holding any departmental inquiry, stands admitted. It is also not in dispute that the Criminal Revision Petition which was preferred by the petitioner in this Court, he stands acquitted vide order dated 16.9.2008 (Annexure P-5). 6. The fact that the petitioner was dismissed from service on the basis of his conviction without holding any departmental inquiry, stands admitted. It is also not in dispute that the Criminal Revision Petition which was preferred by the petitioner in this Court, he stands acquitted vide order dated 16.9.2008 (Annexure P-5). In the light of this factual position the statutory rules governing the claim of allowances on reinstatement which would be applicable to the case of the petitioner is Rule 7.3(2) of the Punjab Civil Services Rules, Volume-I, Part-I, which reads as follows:- “(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 full pay 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: Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government employee had been delayed due to reasons directly attributable to the Government employee it may, after giving him an opportunity to make representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government employee shall, subject to the provisions of sub-rule (7), be paid for the period of such delay only such amount (not being the whole) of pay and allowances, as it may determine. (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 be treated as a period spent on duty for all purposes.” 7. Claim of the petitioner is supported by the judgment passed by this Court in Shiv Kumar Goel vs. State of Haryana and others 2007(1) S.C.T. 739 wherein it has been observed that if the Criminal Court records a finding that there is no evidence to prove the charge against the employee, notwithstanding observations as to acquittal by the benefit of doubt, it will be considered honourable acquittal and the employee shall be entitled to pay and allowances. 8. 8. Perusal of the provisions and the judgment referred to by the counsel for the petitioner, it is clearly established that the petitioner on his reinstatement is also entitled to the grant of pay and allowances for the period he had remained out of service especially when the said period is treated as period spent on duty for all purposes. The writ petition, therefore, stands allowed. Impugned order dated 16.10.2006 (Annexure P-3) which restricts the grant of the benefit of the service to be treated as leave of the kind due shall stand set aside and it shall be treated as period spent on duty for all intends and purposes. All the consequential benefits be released to the petitioner within a period of three months from the date of receipt of certified copy of the order. ---------0.B.S.0------------ ———————————