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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.10857 of 2021 (O&M)
Date of decision: 30.01.2024
Harinder Singh Chahal
....Petitioner
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Dhiraj Chawla, Advocate
for the petitioner.
Mr. Arun William AAG, Punjab.
NAMIT KUMAR J.
1. The petitioner has approached this Court by way of filing
the instant petition under Article 226 of the Constitution of India, for
issuance of a writ in the nature of ceritiorari, for quashing the order
dated 11.03.2021 (Annexure P-7) whereby the suspension period w.e.f.
04.05.2017 to 12.06.2018, has been ordered to be treated as leave of the
kind due and thereby disallowing the pay and allowances to the
petitioner by treating the said period as not having been spent on duty.
2. The brief facts, as have been pleaded in the petition, are
that the petitioner was appointed as an Executive Officer in December,
2010. Thereafter, the petitioner was placed under suspension vide order
dated 04.05.2017 alongwith 11 other officers on the allegations of being
negligent in performance of their duties while they remained posted at
Town Improvement Trust, Bathinda, which was followed by issuance of
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charge-sheet dated 06.07.2017 under Rule 8 of “The Punjab Civil
Services (Punishment & Appeals) Rules, 1970”. The petitioner
submitted reply dated 27.07.2017 denying the allegations levelled in the
charge-sheet and after considering the said reply, Sh. Ajay Kanwar,
Engineer-in-Chief, Local Government, Punjab was appointed as an
Enquiry Officer vide order dated 16.10.2017, who vide his enquiry
report dated 24.09.2019 submitted the enquiry report against 12 officers
who were charge-sheeted collectively vide order dated 06.07.2017
namely (a) Sh. Kulwant Singh, Joint Deputy Director, (2) Sh. Gora Lal,
Executive Officer, (3) Sh. Harinder Singh Chahal, Executive Officer –
petitioner, (4) Sh. Jawahar Lal, Executive Officer, (5) Sh. Rajesh Garg,
Superintending Engineer, (6) Sh. Mukhtiar Singh, Trust Engineer
(Retd.) (7) Gurraj Singh, Trust Engineer, (8) Sh. Baljit Singh (Assistant
Trust Engineer), (9) Sh. Gurwinder Pal Singh, Assistant Trust Engineer
(10) Sh. Jasbir Singh, Junior Engineer, (11) Sh. Jora Singh, Assistant
Trust Engineer (Retd.), (12) Sh. Hans Raj Sharma, Trust Engineer
(Retd.).
3. The Enquiry Officer proved the charges levelled against the
petitioner and finally, the petitioner was inflicted the punishment of
stoppage of one increment without cumulative effect vide order dated
28.09.2020 (Annexure P-6). Subsequently, vide order dated 11.03.2021,
the suspension period of the petitioner from 04.05.2017 to 12.06.2018,
has been ordered to be treated as leave of the kind due. The said order
has been impugned in the present writ petition on the ground that once
the disciplinary proceedings have been concluded by awarding minor
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punishment, the suspension period cannot be treated as leave of the kind
due and the same is required to be treated as duty period. It has further
been pleaded that the other officers, who were also proceeded against
along with the petitioner, in their cases the suspension period has been
treated as duty period and the benefits due to them have already been
granted for the said period, although they were also awarded minor
punishment of ‘censure’.
4. In pursuance to notice of motion, reply by way of affidavit
of Rakesh Kumar, Joint Secretary, Department of Local Government,
Punjab, has been filed on behalf of the respondent wherein it has been
stated as under:-
“14. That subsequent thereto certain junior
employees, who were imposed with the penalty of Censure,
approached/represented that there suspension period be
considered as duty period and vide order dated 02.11.2020,
the same was granted. However, when the petitioner
approached seeking parity, his case was considered in light
of the fact that as detailed in the enquiry report and
considering his responsibility and role and also
considering the reply submitted by him coupled with the
penalty of stoppage of one increment (without cumulative
effect), the answering respondent exercising powers under
Rule 7.3 directed the conversion of the suspension period
into (leave of kind due)............
15. That the contents of Para 15 of the petition
are wrong and incorrect and wishful interpretation by the
petitioner. The petitioner is trying to derive parity with the
employees who were imposed with the punishment of
censure only because of the acts and conduct of the
petitioner being the senior and responsible officer who was
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at the helms of affairs. It is pertinent to reiterate that the
enquiry report categorically records that it was a duty of
the petitioner to check the essential works regarding the
construction of flats e.g., development of outer area, fire
fighting systems, laying HT/LT line and commissioning of
lift etc. there was lack of supervision and the petitioner
failed to reply on the unwanted delay in construction and
short comings in the construction of flats. Every employee
has its own role and responsibility and the petitioner being
the Executive Officer was held guilty on all five charges as
per Annexure P-4.”
5. Learned counsel for the petitioner contends that the
disciplinary proceedings have been concluded with the issuance of
punishment order dated 28.09.2020 (Annexure P-6), whereby minor
punishment of stoppage of one increment, without cumulative effect,
has been inflicted upon the petitioner and the suspension period from
04.05.2017 to 12.06.2018, has been treated as leave of the kind due. He
submits that once only minor punishment has been inflicted, therefore,
the suspension period is required to be treated as duty period for all
intents and purposes. He further submits that the action of the
respondents is based upon discrimination and arbitrariness and violative
of Articles 14 and 16 of the Constitution as other charged
officers/officials, who were also awarded minor punishment of censure,
their suspension period have been treated as duty period.
6. During the course of arguments, learned counsel for the
petitioner has produced a copy of Instructions dated 26.03.1990, issued
by Government of Punjab, which reads as under:-
“Letter No.13/44/99-2PP-2/5152 dated 26.03.1990
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Subject: In case, only a minor punishment is
awarded as a result of disciplinary action, the suspension
period be treated as duty period.
I have been directed that I should draw your
attention towards above subject and to say that it has been
stated vide Punjab Govt. Letter No.1270-2PP-70/15809
dated 16.5.1978 to the effect that on the proposal of
placing every Govt. employee under suspension, the same
be considered very carefully and the orders for suspension
should be passed only if the circumstances are proving the
same as correct fully. The suspension orders should not be
passed till there are serious charges against him and on
the basis of available material, prima facie the case of
termination or retirement against the concerned employee
should have been prepared and his remaining continuously
in service may create problem in the implementation of the
legal action.
2. In the light of above shown situation, having
regard to the Govt. of India Letter No.11012/15/85-Estt.
(EE dated 21.12.1985) it has been decided that in case the
departmental action against the employee has been
initiated for awarding major punishment and lastly, he is
awarded only a minor punishment, then his suspension will
be unjustified and he will be given full pay and allowances
for the suspension period by passing an appropriate order.
3. This order will be deemed to be applicable from
the date of issuance of this letter. There is no need to
reopen the decisions already taken.”
7. Learned counsel for the petitioner further submits that both
punishments of ‘censure’ and ‘stoppage of one annual increment
without cumulative effect’ are minor punishments and falls under Rule 5
of the 1970 Rules. He has placed reliance upon the Division Bench
judgments of this Court in “Y.P. Sehgal vs State of Punjab”, 1992(2)
SCT 179 and “Dalip Singh vs State of Haryana and another”,
2003(4) SCT 261, as well as the Single Bench of this Court in “Dr.
M.L. Kamra and others vs State of Haryana and others”, 2009(4) SCT
27 and “O.P. Sindhwani vs State of Haryana and another”, 2009(4)
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SCT 62.
8. Per contra, learned counsel for the State submits that since
in other cases only punishment of censure was inflicted and whereas the
petitioner has been awarded the punishment of stoppage of one annual
increment without cumulative effect, therefore, the
respondents/authorities have rightly taken the decision not to treat the
suspension period as duty period and has been ordered to treat the said
period as leave of the kind due.
9. I have heard learned counsel for the parties and perused the
record with their able assistance.
10. The issue which arises for consideration is, as to whether
the suspension period is to be treated as duty period or not, when
ultimately minor punishment is awarded in the disciplinary proceedings
which is not res integra. The Division Bench of this Court in Y.P.
Sehgal’s case (supra), has held that when the petitioner has been
reinstated and the proposed disciplinary action against him has resulted
in imposition of minor punishment, it is neither permissible in law nor
fair to deny him the arrears of salary and allowances for the suspension
period.
11. To the same effect are the judgments of this Court in Dalip
Singh’s case, Dr. M.L. Kamra’s case and O.P. Sindhwani’s case (supra).
12. Since both the punishments i.e. stoppage of one annual
increment without cumulative effect and censure are minor punishments
in terms of Rule 5 of the 1970 Rules, therefore, the suspension period
cannot be treated differently altogether by the authorities of the
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department in discriminatory and arbitrary manner, which is not
permissible under the law. In other remaining cases, the respondents
have treated the suspension period as duty period and granted due
benefits to them, for the said period, barring the case of the petitioner in
which the suspension period has been treated as leave of the kind due
and even in the light of the Instructions dated 26.03.1990, whereby it
has been decided that in case the departmental action has been initiated
against an employee and he is awarded only a minor punishment, then
his suspension period will be unjustified and he will be given full pay
and allowances for the suspension period by passing an appropriate
order.
13. For the foregoing reasons and in view of the Instructions
dated 26.03.1990 and the law laid down by this Court in the abovesaid
judgments, the present petition is allowed and the impugned order dated
11.03.2021 (Annexure P-7) is set-aside and the respondents are directed
to treat the suspension period of the petitioner from 04.05.2017 to
12.06.2018, as duty period and the petitioner shall be entitled to all
consequential benefits including pay and allowances after adjusting the
suspension allowance and the same shall be released to the petitioner
within a period of 03 months from the date of receipt of certified copy
of this order.
(NAMIT KUMAR)
JUDGE
30.01.2024
yakub Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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