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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226 of the Constitution of India has been filed by the petitioner for issuance of a writ in thenature of Certiorari to quash the order dated 11/14.01.2025 (Annexure P-4) to the extent that suspension period from 03.10.2016 to 31.03.2020 was not considered as duty period for all intents and purpose; and further direction be issued to release the fully salary of the suspension period from 03.10.2016 το 31.03.2020 with market rate interest.
Brief facts of the case in chronological sequence are as under: -15.09.2012: On the recommendation made by the Haryana Public Service Commission (hereinafter referred to as 'HPSC'), the petitioner was appointed as Medical Officer on regular basis on 15.9.2012.
27.08.2015: While the petitioner was posted at CHC Ganaur, District Sonipat, a complaint was received against the petitioner to the effect that the petitioner had "misbehaved with complainant and his wife".
28.09.2016: Vide order dated 28.09.2016 (Annexure P-1), the petitioner was placed under suspension with immediate effect for disobedience and indiscipline.
09.03.2020: Vide order dated 09.03.2020 (Annexure P-2), the petitioner was reinstated in service with immediate effect and posted at CHC Centre Miran, District Bhiwani.
03.04.2020: The petitioner joined her duty.
21.09.2020: Almost four years after suspension, the petitioner was issued charge-sheet dated 21.09.2020 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 2016. The petitioner immediately submitted her reply to the charge-sheet. Thereafter, inquiry was conducted.
25.06.2021: The Inquiry Officer submitted Inquiry Report dated 25.06.2021 (Annexure P-3), finding that charges against the petitioner were not proved.
11/14.01.2025: Vide order dated 11/14.01.2025 (Annexure P-4), the petitioner was exonerated and further directed that the period of suspension from 03.10.2016 to 31.03.2020 shall be treated as leave of the kind due.
It is inter alia submitted by ld. Senior Counsel for the petitioner that once the petitioner has been exonerated, there is no justification not to consider the suspension period from 03.10.2016 to 31.03.2020 as duty period for all intents and purposes. It is submitted that to not do so is contrary to Rule 89 of the Haryana Civil Services (General) Rules, 2016. Accordingly, prays that the impugned order dated 11/14.01.2025 (Annexure P-4) be set aside to the extent that suspension period from 03.10.2016 to 31.03.2020 was not considered as duty period for all intents and purpose and further direction be issued to release full salary of the suspension period with market rate interest.
Per contra, learned State counsel has opposed submissions on behalf of the petitioner and contended that as per provisions of the Haryana Civil Services (General) Rules, 2016, the competent authority is empowered to decide the fate of suspension/dismissal period as per merits of the case whether to treat this period as duty period or not. It is also provided in the rules to convert such period against leave of kind due, payment of full salary, allowances from the date of re-joining subject to submission of a certificate by the concerned employee that she was not engaged in any other employment, business, profession vocation during the period of suspension/dismissal. It is contended that as per the facts of the instant case, it is evident that the order dated 14.01.2025 (Annexure P-4) is legal and sustainable in the eyes of the law as the suspension/dismissal period has been decided by the competent authority as per merits of the case in view of the provisions of the Haryana Civil Services (General) Rules, 2016. The relevant Rules 87, 88, 90 and 91 are reproduced as under:-
“87. Pay and allowance on reinstatement after suspension.
When a Government employee under suspension is reinstated, or would have been reinstated but for his retirement on superannuation, the authority competent to order the reinstatement 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, occasioned by suspension and/or dismissal, removal or compulsory retirement ending with his reinstatement 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.
Provided that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under the rules.
Note.- If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence shall be treated as 'non-duty'. In such event, the past service (i.e. service rendered before dismissal removal, compulsory retirement or suspension) shall not be forfeited.
88. In case penalty of dismissal, removal or compulsory retirement is set aside.
(1) Subsistence allowance for the period of deemed suspension or continued suspension.-
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government employee while under suspension is set aside-
(i)on appeal or review and the case is remitted for further inquiry or action with any other directions; or
(ii)declared or rendered void in consequence of or by a decision of a court of law and the punishing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal orcompulsory retirement was originally imposed, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders and he shall be entitled to subsistence allowance as admissible under these rules.
(2) Pay and allowance for the period of absence, on reinstatement after dismissal, removal or compulsory retirement.-
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government employee while under suspension is set aside-
(i)on appeal or review or
(ii)declared or rendered void in consequence of or by a decision of a court of law; and is reinstated, or may have been reinstated but for his retirement on superannuation, the authority competent to the order reinstatement shall consider and make a specific order-
(a)regarding the pay and allowances to be paid to the Government employee for the above said period and reasons of absence from duty; and
(b)whether or not the said period shall be treated as a period spent on duty.
Note 1.- Where a Government employee is prosecuted for commission of defalcation of public funds and fabrication of records and said prosecution culminates into acquittal, he cannot be made entitled to reinstatement with grant of all consequential benefits alongwith back wages etc. as a matter of course, if the conduct alleged is the foundation for prosecution, though it may end in acquittal due to lack of sufficient evidence. In such a case, unless the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all or the acquittal is not on a benefit of doubt given, it shall be open to the competent authority to enquire into the misconduct and take appropriate action thereon. Even otherwise, the competent authority may, on reinstatement after following the principles of natural justice, pass appropriate order including treating suspension period as Pay and allowances on reinstatement after suspension. In case penalty of dismissal, removal or compulsory retirement is set aside.
Non-duty and when the suspension period pending trial of such an employee is so treated to be as non-duty, he shall not be entitled to the consequential benefits i.e. not entitled to be treated as on duty from the date of suspension till the date of the acquittal for the purpose of computation of pensionary benefits etc.
Note 2. On re-instatement after removal, dismissal or compulsory retirement from service, the date of re-instatement shall be the date on which he assumes charge of his post.
Note 3- If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence shall be treated as 'non-duty'. In such event, the past service (i.e. service rendered before dismissal, removal, compulsory retirement or suspension) shall not be forfeited.
90 Pay and allowances if not fully exonerated.
Where the competent authority is of the opinion that the Government employee has not been fully exonerated, he shall be given such proportion of pay and allowances as the competent authority may prescribe. The payment of allowances shall be subject to all other conditions under which such allowances are admissible. The period of absence from duty shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be treated as duty for any specified purpose.
Note 1. If no order is passed to treat the period of absence as duty for any specified purpose, the period of absence shall be treated as 'non-duty. In such event, the past service (i.e. service rendered before dismissal, removal, compulsory retirement or suspension) shall not be forfeited.
Note 2.- Except as per provision in Note 2 below rule 89, in all other cases on re instatement after suspension, the date of re-instatement shall be the date on which the Government employee assumes charge of his post. For the intervening period from the date of order of re-instatement to date of assumption of charge the Government employee shall also be treated as remained under suspension.
91. Conversion of suspension period as leave of the kind due.
Where the suspension period is not to be treated as duty by the competent authority the same may be converted into leave of the kind due if the Government employee concerned so desire.
Note. 1- The period of suspension shall not be converted into leave of the kind due without the consent of the Government employee.
Note 2.- The period spent under suspension, if converted into leave of the kind due, the subsistence allowance already received shall be adjusted as per admissibility of leave salary. If such leave period consists of extraordinary leave, the subsistence allowance already paid to the Government employee forperiod of extraordinary leave shall be recovered.
Note 3. The order of the competent authority regarding conversion of period of suspension as leave of the kind due is absolute and no sanction from higher authority would be necessary for the grant of any kind of leave to any extent at the credit of the Government employee including extraordinary leave. The period of extraordinary leave shall not be treated as qualifying service for the any purpose, except the suspension period spent under medical treatment, if any."
As per the above rules, the competent is empowered to decide suspension period as leave of kind due. Hence the present writ petition is liable to be dismissed.”
Accordingly, prays that present writ petition be dismissed.
No other argument is made on behalf of learned counsel for the parties. I have heard Id. counsel for the parties and perused the case file and record in detail. I find no merit in the submissions advanced on behalf of the State counsel.
Service conditions of the petitioner are governed by the Haryana Civil Services (General) Rules, 2016. The ld. State counsel has referred to all the rules except the most relevant. In the facts and circumstances of the present case, Rule 89 is pertinent, which reads as follows: -
“89. Pay and allowances in case of fully exoneration.-
Where the competent authority is of the opinion that the Government employee has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government employee shall be given the full pay and allowances to which he shall have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be. The payment of allowances shall be subject to all other conditions under which such allowances are admissible. The period of absence from duty shall also be treated as a period spent on duty for all purposes".
A bare reading of the above provision shows that where the government employee has been fully exonerated, he is entitled to full pay and allowances and the period of absence from duty, is also to be treated as period spent on duty. Admittedly, petitioner stood fully exonerated of all the charges made against her. As such, as per the above provision, the suspension period from 03.10.2016 to 31.03.2020 is also to be treated as period spent on duty.
Further, Rule 5 of the Haryana Civil Services (Punishment and Appeal) Rules, 2016 is also relevant, which reads as follows: -
“5. Suspension and withholding of emoluments.-
(1)The appointing authority or any other authority to which it is subordinate or the punishing authority or any other authority empowered in that behalf by the Governor, by general or special order, may place a Government employee under suspension where-
(a)or a disciplinary proceeding against him is contemplated or is pending,
(b)a case against him in respect of any criminal offence is under investigation, inquiry or trial; or
(c)In the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State;
Provided that where a Government employee against whom disciplinary proceedings are contemplated is suspended, such suspension shall not be valid, where the disciplinary proceedings are not initiated against him before the expiry of a period of ninety days from the date from which the employee was suspended.
Provided further that the competent authority in the matter may, at any time before the expiry of the said period of ninety days and after considering the special circumstances for not initiating disciplinary proceedings, to be recorded in writing and after seeking the approval of next higher authority allow continuance of the suspension beyond ninety days but not beyond one hundred eighty days without the disciplinary proceedings being initiated".
Thus, as per the first proviso, suspension period of the petitioner is not valid as the disciplinary proceedings have been initiated against the petitioner four years after suspension; and not within the stipulated period of 90 days.The factual matrix of the case as noted above, definitively outlines that all delay has been caused on account of the respondents, inasmuch as in respect of complaint dated 27.08.2015, order of suspension was issued on 28.09.2016 (Annexure P-1), that is after one year. Thereafter, no action was taken in the matter for almost four years, and petitioner was reinstated vide order dated 09.03.2020 (Annexure P-2) with immediate effect; and charge-sheet was issued only on 21.09.2020.
Even otherwise, in terms of the provisions reproduced above, it is clear that once the petitioner stands exonerated in the regular inquiry conducted against her, the suspension period cannot be treated as leave of the kind due, and petitioner shall be entitled for full pay and allowances to which she would have been otherwise entitled.
Reference may also be made to the judgment of the Hon’ble Supreme Court in Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, wherein it is held as under:-
“That where the incumbent was willing to work but was denied the opportunity to work for no fault of him, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto."
Consequently, the present writ petition stands allowed and Impugned order dated 11/14.01.2025 (Annexure P-4) is set aside to the extent that it has been directed that suspension period from 03.10.2016 to 31.03.2020 will be treated as leave of the kind due. It is further directed that full salary of the petitioner for the said suspension period from 03.10.2016 to 31.03.2020 be released to the petitioner within a period of six months from date of receipt of certified copy of this order, along with interest at the rate of 6% per annum.
Pending application(s), if any, also stands disposed of.