Siri Bhagwan vs State Of Haryana & Anr.

Nidhi Gupta, J.

Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner to issue a writ in the nature of Mandamus directing the respondents to release the full salary along with consequential reliefs i.e. increments etc. of the suspension period i.e. from 15.10.1982 to 22.02.1991 by quashing the clause “ He will not be paid anything except what he has already paid as subsistence allowance for the suspension period contained in Annexure P-9; and issue a writ in the nature of Certiorari quashing the impugned order Annexure P-13 to the extent that order of recovery of Rs.2950/-; and issue a writ in the nature of Mandamus directing the respondents to release Rs.5000/- withheld by the respondents from the gratuity

vide order Annexure P-17; and grant interest on the delayed payment of pensionary benefits i.e. from the date of superannuation i.e. 29.2.1996 till the time payment is released in 2001.

Brief facts of the case in chronological sequence are as under: -

15.10.1982: Petitioner was working as an Accountant in the respondent Department. Petitioner was placed under suspension vide order dated 10.09.1982 (Annexure P-1) w.e.f. 15.10.1982.Petitioner was charge-sheeted thrice under Rules 7 and 8 of the Punishment and Appeal Rules, 1952. On the basis of these charge-sheets, two FIRs were registered against the petitioner.

Nil: Although petitioner was acquitted in the said two FIRs, regular departmental inquiry was conducted against the petitioner by the Sub-Divisional Officer, Rewari. It is the case of the petitioner that vide inquiry report dated Nil (Annexure P-4), petitioner was exonerated as all charges/allegations 1 to 9 made against the petitioner were found to be baseless.

22.07.1989: Despite that, petitioner was dismissed from service vide order dated 22.07.1989.

20.11.1989:Petitioner had filed Appeal dated 20.11.1989 before the respondent Government against his dismissal.

20.2.1991: Vide order dated 20.02.1991 (Annexure P-5), the Financial Commissioner had remanded the case to the Joint Secretary, Development, with direction to reinstate the petitioner forthwith and call upon him to furnish his detailed reply within two weeks thereafter and decide the case on merit afresh within 2 months.

20.02.1991: Subsequently, vide order dated 20.02.1991 (Annexure P-6), petitioner was reinstated and posted in the office of BDPO, Punhana, against vacant post.

13.02.1996: Petitioner was retired from service vide order dated 13.02.1996 (Annexure P-7) with effect from 29.02.1996 (A.M.) on attaining the age of superannuation.

01.03.1997: Petitioner had submitted a representation dated 01.03.1997 (Annexure P-8) to respondent No. 2 to release his pensionary benefits.

05.02.1998: However, vide order dated 05.02.1998 (Annexure P-9), respondent No. 2 directed to recover Rs. 10,680/- from the petitioner out of pending dues with the Government. Vide the impugned order, it was further directed that the suspension period of the petitioner from 15.10.1982 to 22.02.1991 be treated as duty for all intents and purposes.

18.03.1998:Against the aforesaid order dated 05.02.1998, petitioner had preferred an Appeal dated 18.03.1998 (Annexure P-10) before the Commissioner and Secretary to Government.

04.09.2000:Vide impugned order dated 04.09.2000 (Annexure P-13), the Special Secretary to Government of Haryana, Development and Panchayat Department, had modified the order dated 05.02.1998, directing recovery of Rs. 2,950/- due to the petitioner instead of Rs. 10,680/-.

14.09.2000: Vide order dated 14.09.2000 (Annexure P-14), Secretary to the Government of Haryana directed BDPO to release the pensionary benefits of the petitioner within 10 days.

06.02.2001: Vide order dated 06.02.2001 (Annexure P-15), petitioner has been allowed to cross the efficiency bar in the scale of Rs. 1400-2600 at the stage of Rs. 2300/- with effect from 01.07.1992. Petitioner has further been allowed first higher standard scale of Rs. 1600-2600.

In the background of the above facts, ld. counsel for the petitioner submits that in view of the fact that vide order dated 05.02.1998 (Annexure P-9)9), the Joint Secretary to Government of Haryana, Development and Panchayat Department had directed that suspension period of the petitioner be treated "as duty for all intents and purposes", therefore, salary of the petitioner could not have been restricted to merely the subsistence allowance already drawn by him. It is argued that restricting the suspension period to the extent of subsistence allowance already paid is in violation of the principles of natural justice as well as Rule 7.3 of the Punjab Civil Services Rules as applicable to the State of Haryana. As such, the impugned order dated 05.02.1998 (Annexure P-9) ordering recovery of Rs. 10,680/- from the petitioner is liable to be quashed and the entire period is to be treated as period spent on duty with full pay and allowances.

Ld. counsel further submits that the Appellate Authority, vide its order dated 04.09.2000 (Annexure P-13), had further directed that only Rs. 2,950/- were to be recovered from the retiral benefits of the petitioner instead of Rs. 10,680/-. It is contended that in this situation, not paying the interest on

the delayed payment of pensionary benefits is arbitrary, unreasonable, and violative of statutory rules.

It is further submitted that in not deciding the matter relating to the suspension period, the Appellate Authority has acted unreasonably. Hence, the said order dated 04.09.2000 (Annexure P-13) is impugned to the extent of not deciding the matter of full salary for the suspension period and is therefore liable to be interfered with.

It is accordingly prayed that the present writ petition be allowed and a writ in the nature of Mandamus be issued, directing the respondents to release the full salary along with consequential reliefs increments etc. of the suspension period i.e. from 15.10.1982 to 22/2/1991 by quashing the clause "He will not be paid anything except what he has already paid as subsistence allowance for the suspension period" contained in Annexure P-9; and the impugned order Annexure P-13 to the extent that order of recovery of Rs.2950/-be quashed and issue the directions to release Rs.5000/-withheld by the respondents from the gratuity vide order Annexure P-17 and further directions be issued to the respondents to grant interest on the delayed payment of pensionary benefits from the date of superannuation i.e. 29.2.1996 till the time payment is released.

Per contra, ld. State counsel has vehemently opposed the submissions of the petitioner and contended that the assertions made by the petitioner are based on a piecemeal reading of the relevant provision and without adverting to the correct facts of the case. Ld. State counsel takes this

Court through the case file to demonstrate that there is no merit in the case of the petitioner. It is accordingly prayed that the present writ petition be dismissed.

No other argument is made on behalf of learned counsel for the parties. I have heard ld. counsel and perused the case file and record in detail. I find no merit in the submissions advanced on behalf of the petitioner.

The sole/primary argument raised by the petitioner is that as, vide order dated 05.02.1998 (Annexure P-9), the suspension period of the petitioner had been treated as duty period "for all intents and purposes", therefore, granting only subsistence allowance for the said period was inequitable and illegal; and that the petitioner ought to have been granted full pay and all allowances for the said period. However, the said assertion of the petitioner is based on a piecemeal reading of the order dated 05.02.1998, the relevant extract of which is as follows:-

already paid as subsistence allowance for the suspension period.”

(Emphasis added)

From the above, it is clear that charges of embezzlement against the petitioner for an amount of Rs. 10,680/- stood proved; and that it was only upon taking a lenient view of the matter that the Punishing Authority had directed that the suspension period of the petitioner from 15.10.1982 to 22.02.1991 be treated as duty for all intents and purposes. No doubt the Punishing Authority had stated that the said period be treated as duty period for all intents and purposes, however, it was further clarified that the petitioner will not be paid anything for the period of suspension except for the subsistence allowance.

It is unambiguous that the petitioner was treated on duty for the period of suspension only by taking a lenient view of the matter. It is trite that if the intention of the Punishing Authority was to grant all pay and allowances to the petitioner for the period of suspension, then the Punishing Authority would not have added the latter caveat to the effect that the petitioner would not be paid anything for the suspension period except subsistence allowance, and would have concluded the impugned order directing the period of suspension to be treated as duty for all intents and purposes. Consequently, there is no merit in the contention of the petitioner.

The petitioner has further sought to buttress his aforesaid flimsy contention by submitting that even vide order dated 04.09.2000 (Annexure P-

13), the punishment meted out to the petitioner had been further diluted by directing recovery of only Rs. 2,950/- instead of Rs. 10,680/-. However, the said contention of the petitioner is again based on a piecemeal reading of the order dated 04.09.2000. The first paragraph of the said order dated 04.09.2000 (Annexure P-13) reads as follows:-

It was in view of the above adjustments/amounts already recovered from the petitioner, that it was found that only an amount of Rs. 2,950/- remain to be paid by the petitioner and recovery of the same was ordered.

Further, contention of the petitioner that vide Inquiry Report dated Nil (Annexure P-4), all charges against the petitioner were found to be baseless, is misleading. In fact, the said Enquiry Report has no relevance to the present case. On the contrary, a perusal of the Inquiry Report dated 20.12.1985 (Annexure R-2/T) produced by the respondents shows that all charges of embezzlement stood proved against the petitioner. On a perusal of Annexure P-4, it is seen that the same relates to the charge-sheet dated 23.02.1978 and the

allegations therein pertain to the period 1973––1974. Whereas the impugned orders Annexures P-9 and P-13 relate to the charge-sheet dated 17.05.1983, in which all 13 allegations of embezzlement and carelessness made against the petitioner were found to be proven, leading to his dismissal from service vide order dated 22.07.1989. However, a lenient view of the matter was taken by the Punishing Authority vide the impugned orders dated 05.02.1998 (Annexure P-9) and 04.09.2000 (P-13).

In view of the aforesaid facts, no ground is made out for interference in the impugned orders. Accordingly, the same is dismissed.

Pending application(s), if any, also stands disposed of.