Allowed

Bikkar Singh v. Pujab Water Supply & Sewerage Board Chd and Anr.

Punjab & Haryana HC26 Apr 2013CWP/7083/1996

Case brief

AI extract

What is this about?

In a civil writ petition, the High Court of Punjab and Haryana set aside an order denying full back pay and allowances to a government employee reinstated after criminal acquittal on benefit of doubt. The Court held no departmental inquiry occurred and acquitted amounts to exoneration.

What did the court decide?

The impugned order was quashed. The petitioner was held entitled to full pay and allowances from 7.11.1988 to 28.2.1993 plus interest at 7% from 1.3.1993.

Bikkar Singh Vs Pujab Water Supply… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

CWP No.7083 of 1996

-1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶5

CWP No.7083 of 1996 Date of decision: 26.4.2013 Bikkar Singh ….Petitioner Vs.

¶6

Punjab Water Supply and Sewerage Board and another

¶7

….Respondents

¶8

CORAM: HON’BLE MR.JUSTICE GURMEET SINGH SANDHAWALIA

¶9

¶10

Whether Reporters of local papers may be allowed to see the

¶11

judgment?

¶12

Whether to be referred to the Reporters or not?

¶13

Whether the judgment should be reported in the Digest?

¶14

¶15

Present: Mr. Manpreet Singh, Advocate for Mr. Amrik Singh Kalra, Advocate for the petitioner

¶16

Mr. Vijay Kumar Kaushal, Advocate for respondent no. 1 and 2.

¶17

¶18

G.S.SANDHAWALIA, J.

¶19

1. The present petition has been filed under Articles 226/227 of the Constitution of India challenging the order dated 23.2.1995 (Annexure P-4) wherein respondent No,2 held that subsistence allowance paid to the petitioner during suspension period would be considered as maximum emoluments paid to him in view of Rule 7.3(2) of the Punjab Civil Services Rules Vol.I Part-I (hereinafter called as “the Rules”) despite the fact that the petitioner had been acquitted by the Criminal Court by giving him benefit of doubt.

CWP No.7083 of 1996

-2-

The pleaded case of the petitioner was that the petitioner who was working as Chowkidar in the respondent-Board was arrayed as an accused in FIR No.254 dated 17.12.1987 under Section 411 IPC lodged by the Sub Divisional Engineer of the respondent-Board on account of shortages in the store. Thereafter, the petitioner was suspended on 7.11.1988 and 50% salary of the petitioner was deducted with effect from 10.11.1988 till 30.11.1990. From 30.12.1990 to 28.2.1993 the respondents deducted 25% of the salary and paid 75% of the same to him till 28.2.1993. From 1.3.1993 he was given full salary. The other benefits and allowances were also not paid during the suspension period. On 29.7.1993 the petitioner was reinstated and it was further directed that subsistence allowance already paid to him during the suspension period would be considered as maximum emoluments to be paid to him. The petitioner approached respondent no,2 praying that the order should be modified on the ground that he had been acquitted on 23.12.1992 of the charge under Section 411 IPC whereas co-accused Pala Ram had admitted his guilt and had been convicted on 7.11.1988. Since no heed had been paid to the request of the petitioner, he approached this Court by filing the Civil Writ Petition No.14155 of 1993 challenging the order dated 29.7.1993. The Division Bench vide order dated 29.7.1994 quashed the said order on the ground that no opportunity of hearing had been given and left it open to the authority to pass a fresh order in accordance with law. Thereafter, the respondents in compliance with the order of this Court issued show cause notice dated 16.9.1994 to the petitioner whereby he was asked to show cause as to why the subsistence allowance already paid to him during the suspension period should not be considered as maximum

¶24

CWP No.7083 of 1996 -3-

¶25

¶26

emoluments paid to him on the ground that he had been acquitted by the Court giving benefit of doubt. The petitioner submitted representation dated 24.9.1994 and personal hearing was given to him and in the impugned order it was recorded that he had failed to bring out any new fact in his defence and accordingly, the impugned order was passed. Thereafter, the petitioner filed representations dated 19.5.1995 and 26.11.1995 and served a legal notice dated 12.2.1996 that the said order be withdrawn but of no avail. Accordingly, the present writ petition has been filed. The grounds taken in the writ petition was that once the petitioner had been acquitted, denial of full back pay and allowances on the ground that the acquittal was on the basis of benefit of doubt was not justified.

¶27

In the written statement filed by the Board, the defence taken was that Rule 15 of the Punishment and Appeal Rules, 1970 provided a remedy of appeal and, therefore, the writ petition deserves to be dismissed. The order had rightly been passed because the charge against the petitioner amounted to moral turpitude being of theft which is serious in nature. The decision taken was independent of the observations recorded by the Judicial Magistrate who had acquitted the petitioner by giving benefit of doubt.

¶28

Firstly the plea taken of alternative remedy is to be discussed and dealt with. It would be apt to notice that the writ petition was admitted for regular hearing on 30.8.1996. Almost a period of 17 years have passed since then and the dispute is regarding the payment of the full allowances during the suspension period. A Division Bench of this Court in Schedule Caste Cooperative Society Vs. State of Punjab 2005 (1) PLR 665 has held that in admitted matter, the Court will

CWP No.7083 of 1996

-4-

not take into consideration the plea of alternative remedy as it would lead to travesty of justice. It has been held as under:-

¶33

“31. The respondent-State of Punjab has, however, endeavoured to oppose the claim of the petitioner society, during the course of arguments, only on two grounds. It is first urged by Ms. Swati Gupta, learned Assistant Advocate General, Punjab, who appears for the State of Punjab, that under the Rules itself, there is a provision for filing an appeal and the petitioner society, having an alternative remedy, should be relegated to file an appeal against the impugned order. It is conceded position that objection with regard to availability of an alternative remedy has not been raised in the written statement. Further, availability of alternative remedy cannot be pleaded as an absolute bar for entertainment of a writ under Article 226 of the Constitution of India. We need not elaborate on this issue as the matter already stands settled by string of judicial precedents. Reference in this connection be made to a Division Bench judgment of this Court in M/s Jindal Strips Limited and Anr. v. State of Haryana and Ors., (1995-3)111 P.L.R. 532, decided by the then Hon'ble Chief Justice and one of us (V.K. Bali, J.) wherein, entire case law has been discussed. Non-raising of objection with regard to alternative remedy at the motion stage and admission thereof and when the matter may come up for hearing after long years is one of the grounds on which the Court may not insist upon a party to approach alternative form for redressal of his grievance.

CWP No.7083 of 1996

-5-

Said principle applies to the facts of this case in as much as, as mentioned above, no objection has been raised with regard to availability of alternative remedy in the written statement nor such an argument, it is apparent, was pressed at the time of admission of the writ petition and the matter is pending in this Court since 1995. It would be too iniquitous at this stage to dismiss this petition on account of availability of alternative remedy.”

¶38

Recently, the Apex Court in Krishan Lal Vs. Food Corporation of India and others (2012) 4 SCC 786 has also observed that it would not be feasible to relegate the petitioner to alternative remedy at this stage. The relevant observations read as under:-

¶39

On behalf of the respondent-Corporation it was argued that the appellant ought to have resorted to the arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs.10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him.

¶40

It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as

CWP No.7083 of 1996

-6-

in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected.”

¶45

Keeping in view the said principle in mind, the defence that

¶46

there was an alternative remedy of appeal provided is necessarily to be brushed aside and outrightly rejected.

¶47

Counsel for the petitioner has, thus, submitted that the order was not justifiable as there was no distinction between honourable acquittal and acquittal by giving benefit of doubt. The relevant provisions which would govern the proceedings admittedly are Rule 7.3 (B) of the Rules which entitle an employee who had been suspended and subsequently reinstated a right to claim full pay and allowance. Rule 7.3(B) of the Rules is reproduced hereunder:-

¶48

“7.3-B (1) When a Government employee who has been suspended is re-instated 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-

¶49

(a) regarding the pay and allowances 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

CWP No.7083 of 1996

-7-

(b) Whether or not the said period shall be treated as a period spent on duty.

¶54

(2) xxx xxx xxx xxx

¶55

(3) Where the authority competent to order reinstatement is

¶56

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 :

¶57

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.”

¶58

A perusal of the aforesaid provision goes on to show that the specific order has to be made regarding Government employee who had been suspended and reinstated regarding his pay and allowances to be paid to him during the period of suspension, on reinstatement and whether or not the said period is to be treated as period spent on duty. If the competent authority comes to the conclusion that the suspension was wholly unjustified it shall give a right to the employee for the full pay and allowances. In the present case, there has been no departmental proceedings against the petitioner for the alleged misappropriation of

CWP No.7083 of 1996

-8-

which he was acquitted by giving the benefit of doubt by the Criminal Court on 23.12.1992 which led to his reinstatement. The reason for denial was on the ground that acquittal was on account of the benefit of doubt. Respondent no.2 was to apply his judicious mind and come to the conclusion to substantiate the fact that the suspension was justified in order to deny the fully pay and allowances. The reasoning given is solely on the ground that since the acquittal was on the basis of benefit of doubt, therefore, the petitioner was not entitled for the full pay and allowances.

¶63

A Division Bench of this Court in Bhag Singh Vs. Punjab and Sind Bank 2005(6) SLR 464 examined the said issue wherein an employee had been acquitted by giving the benefit of doubt. Accordingly, it came to the conclusion that the concept of honourable acquittal, fully exonerated or acquitted of blame are all unknown to the Criminal Procedure Code, 1973 and held that the petitioner employee was entitled to all consequential benefits especially since he had already been exonerated in the departmental proceedings. Relevant portion of the judgment reads as under:-

¶64

“10. The expression "honourable acquittal" has been considered by a Division Bench of the Madras High Court in the case of Union of India v. Jayaram, AIR 1960 Madras 325 . In that case, Rajamannar, C.J. delivering the judgment observed as under:-

¶65

"There is no conception like "honourable acquittal" in Criminal P.C. The onus of establishing the guilt of accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be

CWP No.7083 of 1996

-9-

acquitted.

Clause (b) of Article 193 of the Civil Service Regulations which says that when a Government servant who was under suspension is honourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended applies only to the case of departmental inquiry.

¶71

Where the servant was suspended because there was a criminal prosecution against him, and he was acquitted therein, and reinstated he is entitled under the general law, to the full pay during the period of his suspension. To such a case Article 193(b) does not apply."

¶72

As noticed earlier, the petitioner has been acquitted in both the criminal cases as there was no evidence of his participation in any undesirable activity. Therefore, the petitioner was reinstated in service.”

¶73

The aforesaid observations squarely cover the case in hand since in the present case, even no departmental proceedings were ever initiated against the petitioner and only because of the criminal trial, the petitioner had been placed under suspension. Once the Court had acquitted the petitioner by disbelieving the recovery which had been shown from the petitioner and giving him benefit of doubt. The reasoning of respondent no.2 that the petitioner had not been fully exonerated in the criminal trial would not entitle him for the full pay and allowances cannot be said to be justified. The reasoning in support of the impugned order, thus, cannot be held to be sustainable and accordingly, the order is quashed. The petitioner is, thus, held entitled for full pay and

CWP No.7083 of 1996

-10-

allowances from the date of his suspension i.e. 7.11.1988 till he was not paid full pay i.e. 28.2.1993 along with interest at the rate of 7% per annum. The interest would be reckoned from 1.3.1993 when he started receiving full pay and allowances. The said amount be paid to the petitioner within a period of two months from the date of receipt of a copy of this order.

¶78

The writ petition is allowed in the aforesaid terms .

¶79

26.4.2013 (G.S.SANDHAWALIA) Pka JUDGE

¶80

CWP No.7083 of 1996

¶81

-11-

¶82

Bikkar Singh v. Pujab Water Supply & Sewerage Board Chd and Anr.

Case brief

What is this about?

What did the court decide?

Bikkar Singh v. Pujab Water Supply & Sewerage Board Chd and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Haryana through the Secy. to Govt. of Haryana PWD Chd & Ors. Vs Sh. Budh Ram

M/S Shri Gopal Rice Mills, Dhuri Vs State of Punjab & Ors.

Rameshwar Singh Vs State of Haryana and Others

Sardul Singh Chander Vs Pseb, Patiala and Ors.

Jagdish Chander and Ors. Vs State of Punjab and Ors.

Raj Kumar Vs State of Haryana and Ors.