Civil Writ Petition No. 3424 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 3424 of 1989
Date of decision: 15.10.2009
Dr. Mohinder Singh ...petitioner
Versus
The State of Haryana ...respondent.
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH
*****
Present: Mr. R.K. Malik, Senior Advocate with
Mr. Yashdeep Singh, Advocate
for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana
for the State.
*****
RANJIT SINGH J.
The petitioner, who was working as Medical Officer in the
Health Department has filed this writ petition to impugn the order,
Annexure P-7, whereby his period of suspension has been
regularised to be counted as duty but still the petitioner is held
entitled to subsistence allowance only during the period of
suspension. The petitioner was placed under suspension on
2.4.1985, which was made effective w.e.f. 10.4.1985, that being the
date when this order was conveyed to him.
It was alleged that the petitioner was found in a drunken
condition and refused to check up some of the accused. For this, the
petitioner was charge sheeted. The perusal of the charge sheet
would show that one Narinder Singh, made an attempt to enter into
Nursing Hospital at Bhiwani in the drunken condition. He was
brought to the General Hospital at 7.30 p.m. At that time, Sh.C.M.
Civil Writ Petition No. 3424 of 1989 2
Gupta, Medical Officer was on duty but was busy in operation
theater. The petitioner was on night duty and accordingly police
requested him to medically examine the accused, Narinder Singh,
but he refused. The police on the basis of this made an allegation
against the petitioner that he had taken liquor during duty hours and
action could not be taken against the accused on account of non
cooperative attitude of the petitioner in not medically examining the
said accused. Allegation of misbehaving with some of the constables
was also made against the petitioner and he was accordingly charge
sheeted.
The petitioner submitted his reply, copy of which is on
record as Annexure P-3. Obviously, the petitioner has denied the
allegation as made against him. Taking into consideration the reply
filed by the petitioner, charge preferred against him was dropped.
The petitioner, however, remained under suspension up to
5.11.1985. Though this charge preferred against the petitioner was
dropped but he was served with another charge sheet with the
allegation that during his period of suspension, he did not remain at
his head quarters, which was fixed at Narnaul. The petitioner
submitted reply to this charge sheet and ultimately was warned for
having committed this misconduct. No action, however, was taken
against the petitioner for charge, for which he was placed under
suspension. Taking this to be a punishment awarded to the
petitioner, the period of suspension has been regularised. Though it
is directed to be counted as duty but petitioner still has not been held
entitled to full pay and allowances during the period of his
suspension on the authority of Rule 7.3 (2) of CSR Vol. 1 Part 1.
Civil Writ Petition No. 3424 of 1989 3
Two questions would thus arise for consideration. Can
the warning awarded to the petitioner be taken into consideration
while regularising the period of suspension of the petitioner, which
was not for the allegation for which this punishment was awarded.
Incidental question would be to see if the punishment of warning
should lead to non payment of full salary and whether such order
would be fair having regard to the facts and circumstances of this
case.
Once the charge for which the petitioner was suspended
was dropped and not pursued further, it would necessarily mean that
the petitioner has not been awarded any punishment for the charge
alleged, which led to his suspension. It would obviously mean that
the petitioner was fully exonerated of the charge. It is possible thus to
view that his suspension for this allegation was wholly unjustified. As
per Rule 7.3 (2), the petitioner shall be entitled to full pay and
allowances for this period as if he has not been suspended at all.
This would clearly come out from the contents of the Rules. The
justification given by the respondents to deny the full pay and
allowances to the petitioner for this period on the ground that he was
warned thus would not be justified. This punishment was awarded to
the petitioner for a different allegation. The suspension of the
petitioner was not related to the subsequent charge preferred against
the petitioner for which he was proceeded against for award of minor
penalty under Rule 8 of Punishment and Appeal Rules, 1987. The
earlier charge sheet which was dropped is dated 24.3.1987 and is
annexed with the record as Annexure P-2. The punishment of
warning has been awarded to the petitioner on a charge sheet, which
Civil Writ Petition No. 3424 of 1989 4
is dated 15.12.1987. This is for entirely different allegation. For this
allegation, the petitioner was not proceeded against for award of
major penalty. This charge sheet was under Rule 8 for award of
minor penalty. Thus this charge sheet or the punishment that has
ultimately been awarded to the petitioner has no connection with his
suspension. The allegation for which the petitioner has been warned
is only to the effect that he has not remained at the Head Quarters
during part of period of suspension from 20.4.1985 to 13.5.1995. He
has been treated as absent for this period. I am clearly of the view
that this punishment cannot legally be taken into consideration to
have an effect on the pay and allowances that would be payable to
the petitioner for a period of suspension. The respondent authorities
could competently pass an order denying full pay and allowances to
the petitioner for the period of suspension only, if he had been
awarded a punishment for the allegation for which he was placed
under suspension. The petitioner was never placed under
suspension for being absent from his Head Quarters during the
period of suspension.
Even otherwise, it would not be fair and appropriate to
deny the benefit of pay and allowances for the period of suspension
where ultimately an employee is left with just an award of warning.
In this regard, reference can be made to a decision in Civil Writ
Petition No. 21304 of 2008 decided on 14.7.2009. In this case it has
been viewed as under:
“If the case is considered fit enough to be disposed of by
award of warning then it can be said that there was hardly
any requirement to place the petitioners under
Civil Writ Petition No. 3424 of 1989 5suspension. It is thus possible to say that the suspension
was unjustified. As per the rule, competent authority is
called upon to conclude that the suspension of the said
servant was not wholly unjustified.”
Reference here can also be made to a decision in the
case of Krishan Sewak versus The State of Haryana and another
1997 (4) RSJ 162. In this case also it is held that it would not be
appropriate, just and proper to deny benefit of pay and allowances
for the period of suspension where the said period is regularized by
grant of leave of kind due and where the case is disposed of by
penalty of warning. Similar view was taken in Rattan Singh
Chaudhary versus The State of Punjab 1971 SLR 692. In this
case, it has been held that disallowing the pay and allowances by
treating the period as not having been spent on duty leads to serious
civil consequences and that the competent authority is to pass an
order in a quasi judicial manner affording the opportunity of hearing.
Not only that, it was further observed as under:
” It is so stated by interpreting sub Rule 2 of Rule 7.3,
Single Judge of this Court after noticing that the petitioner
therein was only awarded the punishment of stoppage of
two next increment without cumulative effect, but the
consequential order passed under Rule 7.3 would cause
much more damage than the original order passed in this
case.”
Even the reading of Rule 7.3 (2) of the Rules would show
that justification for payment of pay and allowances would primarily
depend upon the outcome of the inquiry which is held, for which the
Civil Writ Petition No. 3424 of 1989 6
government employee is placed under suspension, where the
consequential effect of rule is seen operating harshly than the
punishment awarded. The same can cetainly be termed as unfair
and unjust. The view thus is possible that it would not be fair, just and
equitable to forfeit the pay and allowances of the person, who is
ultimately left with the award of warning only. This consideration
would arise if it is viewed that the punishment of warning as awarded
to the petitioner can be taken into consideration for the purpose of
regularizing his period of suspension. As already noticed, this
punishment primarily cannot be taken into consideration while
passing an order regularizing the period of suspension of the
petitioner so far as the grant of pay and allowances is concerned.
Viewing the case from any angle, the irresistible
conclusion is that the denial of full pay and allowances to the
petitioner for a period he has remained under suspension is neither
legally permissible course nor would it be just, fair and appropriate.
The writ petition is accordingly allowed. The impugned orders,
Annexures P-7 and P-8, are set aside. The petitioner is held entitled
to full pay and allowances for the period he has remained under
suspension i.e. from 15.4.1985 to 5.11.1985. There shall be no
order as to costs.
October 15, 2009 ( RANJIT SINGH ) rts JUDGE