Baljit Singh vs Punjab And Haryana High Court Chd & Anr.

“9.

We have perused the Rules which have been placed before us.

Rule 5 provides for the penalties with which the employee can be visited with. The scheme of the Rules further is that an appeal can be carried against certain orders which are mentioned in Rule 15. The manner in which the appellate authority must exercise its appellate jurisdiction is delineated in Rule 19.

10.

The punishment as it is so described by the appellate authority viz., depriving the salary and placing the employee under dies non, do not appear to be penalties provided in Rule

5.

It was open to the appellate authority to enhance the punishment. The order, in other words, dated 29.01.2009 to the extent it became the subject matter of the civil suit would appear to be beyond the power of the appellate authority. To that extent, the appellant may be justified in calling into question the direction to deny him the salary by the appellate authority and treating it as dies non as a punishment. It is not a penalty contemplated in law. This, however, is not to be the end of our enquiry.

11.

The question would arise as to what is to be done with regard to the period when the appellant was kept out of service as a result of the proceedings against him. This, in turn, must be broadly divided into two periods. An employee may be kept out of service initially by way of an order of suspension. The disciplinary proceedings may culminate in an order of removal or dismissal or compulsory retirement. The order of suspension would then come to an end and it would merge in the order of removal interalia. After the order of removal inter alia till the order of reinstatement based on relief granted to the employee, the appellant would be out of service. According to Mr. Gurminder Singh what Rule 7.3 contemplates is power with the authority to provide for pay and allowances for the period the employee is kept out of service but limited to the period prior to the dismissal. The relevant part of the Rule 7.3 reads as follows:-"7.3. (1) When a Government employee, who has been dismissed, removed or compulsorily retired, is reinstated as a result of appeal, revision or review, or would have been so

Administrative Instruction. -A permanent post vacated by the reason of dismissal, removal or compulsory retirement of a Government employee should not be filled substantively until the expiry of a period of one year from the date of such dismissal, removal or compulsory retirement. Where, on the expiry of the period of one year, the permanent post is filled and the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post belonged. If there is no such vacant post, he should be accommodated against a supernumerary post which should be created in that grade with proper sanction and with the stipulation that it would terminate on the occurrence of the first substantive vacancy in that grade.

Note 3.-If no order is passed under sub-rule (5), directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as 'non-duty'. In such event, the past service (i.e., service rendered before dismissal, removal, compulsory retirement) will not be forfeited.

Note 4. -There is no bar to the conversion of any portion of a period of suspension into extraordinary leave. In the case of persons who are not fully exonerated, the conversion of the period of suspension into leave with or without allowances has the effect of removing the stigma of suspension and all the adverse consequences flowing therefrom. The moment the period of suspension is converted into leave, it has the effect of vacating the order of suspension, and it will be deemed not to have been passed at all. Therefore, if it is found that the total amount of ^SAHIL subsistence and compensatory allowances that an officer received during the period of suspension exceeds the amount of leave salary and allowances, the excess will have to be refunded and there is no escape from this conclusion."

12.

Rule 7.3A deals with pay and allowances where the dismissal, removal or compulsory retirement is set aside by a court of law and such employee is reinstated without holding any further inquiry. The relevant part of Rules 7.3 (B) reads as follows:-

"7.3-B. (1) When a Government employee who has been suspended is reinstated or would have been so re-instated but for his retirement on superannuation while under suspension the authority competent to order re-instatement shall consider and make a specific order -

(a)

regarding the pay and allowance to be paid to the Government employee for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be; and

(b)

whether or not the said period shall be treated as a period spent on duty.

(2)

Notwithstanding anything contained in rule 7.3 or rule 7.3-A, where a Government employee under suspension dies before the disciplinary or court proceedings instituted against him, are concluded, the period between the date of suspension and the date of death shall be treated as spent on duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled, had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3)

Where the authority competent to order re-instatement is of opinion that the suspension was wholly unjustified, the Government employee shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended:

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 his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government employee shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.

(4)

In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes."

13.

If we take up Rule 7.3-B relied upon by the learned Advocate General, it gives us the impression that its intent is to deal with cases where a person is placed under suspension but thereafter reinstated. `Conspicuous by its absence' in Rule 7.3B are expressions indicating that apart from suspension, the matter progressed to a stage where the employee came to be visited with any penalties. In other words, there can be cases where a person may be placed under suspension and without the matter progressing further, the authority in its discretion and power decides to revoke the suspension and he is reinstated. Rule 7.3, on the other hand, deals squarely with the situation where the employee whose services are terminated succeeds in an appeal or other remedy and there is an order of reinstatement and a question arises as to how the period prior to his dismissal is to be reckoned. The orders which can be passed are expressly provided for therein. In other words, the scheme of the Rules would appear to be that when an employee who has been proceeded against, succeeds before the higher forum, the question as to what is to be done for the period when he was kept out of service would have to be determined in the manner provided therein.

14.

Rule 15(v)(f) has been noticed by the High Court to find that there was power with the authority. Rule 15(v)(f) reads as follows:

"15.

Order against which appeal lies- Subject to the provision of Rule 14 a Government employee may prefer an appeal against all or any of the following orders, namely-

(v)

an order-

(f)

determining whether or not the period from the date of his suspension or from the date of his dismissal, removal, compulsory retirement or reduction to a lower service, grade, post, time scale of pay or stage in a time scale of pay to the date of his reinstatement or restoration to his service, grade or post shall be treated as a period spent on a duty for any purpose.

15.

Rule 15(v)(f) indeed contemplates that when there is a dismissal, removal, compulsory retirement or reduction to a lower service inter alia and there is an order of reinstatement, the authority is to pass an order as to whether the period from the date of suspension or from the date of his dismissal, removal or compulsory retirement till the date of his reinstatement, is to be treated as a period spent on duty for any purpose. This gives a clear indication that upon an order being passed by the appellate authority finding the termination of employee to be illegal and leaves it there, it would not ipso facto inevitably follow that the employee will become entitled to claim the salary for the entire period consequent upon his being found to be entitled to reinstatement. This is a matter for the authority to decide.”

“7.

The question involved in the present regular second appeals is as to whether treating of suspension period as non-duty period would amount to double jeopardy.

8.

A perusal of the record shows that enquiry was conducted against respondent on account of shortage of wheat stored in the year 1983-84 to 1984-85 due to negligence of respondent. Thereafter, recovery of Rs.2,11,451/- was imposed upon him vide order dated 13.09.1992 (in both the appeals) and he was also reverted to the post of Inspector Grade-II for five years.

9.

The punishment order was never challenged by the respondent. Consequent to the punishment order, his suspension period from 16.07.1986 to 21.10.1987 and 22.10.1987 to 24.11.1992 were treated as non-duty period vide order dated 14.03.2001 (in RSA-2203-2006) and 02.12.2002 (in RSA-2204-2006).

10.

Both the Courts failed to appreciate the very fact that the decision on suspension period was the consequent effect of punishment orders dated 14.03.2001 (in RSA-2203-2006) and 02.12.2002 (in RSA-2204-2006) and the respondent never challenged the same before the authorities or before the Civil Court. Therefore, both the Courts erred in law in holding that treating of suspension period as non-duty period would amount to double jeopardy.

11.

Doctrine of double jeopardy under Article 20(2) of the Constitution of India is not applicable in service jurisprudence. In the present case, respondent was suspended from service and thereafter, punishment of recovery of Rs.2,11,451/- was imposed upon him and he was reverted for five years to the post of Inspector Grade-II. Therefore, after the punishment the period during which he was suspended was also to be decided by the appellants.

12.

Rule 7.3-B of Punjab Civil Services Rules (Volume I Part I) clearly says that when a Government employee who has been suspended is reinstated, the competent authority shall consider and make a specific order as to whether the said suspension period shall be treated as period on duty or not which clearly shows that the passing of such order is a consequence of order of punishment. Further no notice is required for deciding the suspension period of an employee since it is a consequence of punishment which is awarded after an enquiry. Therefore, since in the present case the respondent was suspended for a certain period and thereafter, punishment was imposed upon him after holding enquiry, as per Rule 7.3-B his suspension period was to be considered and a specific order was required to be passed. Therefore, a decision on the same would not amount to double jeopardy. Further the appellant never challenged the punishment order and accepted the same.

13.

In view of the above, judgments and decrees dated 19.07.2005 passed by learned Civil Judge (Sr. Division), Ropar and judgments and decrees dated 09.03.2006 passed by Additional District Judge, Ropar are set aside.

14.

Accordingly, the present regular second appeals i.e. RSA-2203-2006 and RSA-2204-2006 are allowed.

15.

Pending miscellaneous applications, if any, are also disposed of.”