Augustine George Masih, J.
Oral:
Petitioner who was working as a Sub Inspector in the wireless wing of Haryana Police, was placed under suspension with effect from 25.4.1998 for having been arrested in case FIR No.239 dated 25.4.1998 under Sections 148, 149, 308 IPC, Police Station Civil Lines, Rohtak, vide order dated 22.5.1998. He continued as such till 23.1.2001 when he was reinstated in service without prejudice to the Court case pending against him. He remained in judicial lockup with effect from 30.4.1998 to 15.2.1999. He was acquitted of the charge by the learned Additional Sessions Judge, Rohtak vide his judgment dated 24.3.2001 (Annexure P-1) on conclusion of the criminal trial against the petitioner.
Petitioner was issued show cause notice by the Superintendent of Police, (Telecommunications) dated 26.6.2001 as to why the period from 30.4.1998 to 15.2.1999 during which he remained in judicial custody be not treated as leave without pay (Annexure P-2). Reply to the show cause notice was given by the petitioner wherein he stated that he has been acquitted by the trial Court of the criminal charges on merits as he has been found to be innocent as his plea of alibi has been accepted by the Court on the ground that he was on night duty at Fatehabad which is at a distance of about 150 kms. from Rohtak where the incident had taken place and he had proved with absolute certainty completely excluding the possibility of his presence at the place of occurrence. This reply of the petitioner did not find favour with the Superintendent of Police and vide order dated 5.9.2001 (Annexure P-4) period from 30.4.1998 to 22.1.2001 was treated as suspension period and he was held not entitled to any amount except what he had already drawn.
Petitioner preferred an appeal dated 15.9.2001 before the Inspector General of Police, who decided that since the petitioner had remained in judicial lockup, as such, the period from 30.4.1998 to 15.2.1999 cannot be treated as period spent on duty but the same can be regularized by granting leave of kind due. The other period of suspension was ordered to be treated as spent on duty for all intents and purposes under Rule 7.3(2) of Civil Service Rules, Volume I Part I. Further, appeal preferred by the petitioner to the Director General of Police, Haryana, received the same fate as it was rejected vide order dated 25.1.2002 (Annexure P-8). Thereafter, the respondents proceeded to decide the period spent by him during his suspension and vide order dated 11.3.2002 (Annexure R-1) held as follows:-
“xxxxxxxx. As such his above period is hereby regularized as under:-
| 25.4.98 to 29.4.98 | Period spent on duty for all intents and purposes under rule 7.3(2) of CSR Vol.I, Part-I. |
| 30.4.98 to 15.2.99 | 291 days earned leave on full pay. |
| 16.2.99 to 22.1.2001 | Period spent on duty for all intents and purposes under rule 7.3 (2) of CSR Vol.-I, Part-I.” |
Respondents have filed reply wherein the stand taken is that since the petitioner remained in judicial lock up from 30.4.1998 to 15.2.1999, he is not entitled to get pay and allowances for the said period on the principle of 'no work no pay'. The claim which the petitioner was entitled to under the Rules had been granted by the respondents vide order dated 11.3.2002 (Annexure R-1) and no further benefit is available to the petitioner under the Rules governing his service.
On considering the submissions made by the counsel for the parties and with their assistance, I have gone through the records of the case. The prayer made in the writ petition by the petitioner deserves to be allowed.
Facts as recorded above are not in dispute. The only claim which now requires to be considered and decided is whether the petitioner is entitled to the pay and allowances for the period 30.4.1998 to 15.2.1999 which he spent in judicial lock-up. Rules 7.2, 7.3 and 7.5 of the Punjab Civil Service Rules, Vol.-I Part-I, which are relevant for decision of the present case, read as follows:-
“ALLOWANCES DURING PERIOD OF SUSPENSION
7.2 (1) A Government employee under suspension shall be entitled to the following payments, namely:-
xxxxxxxx xxxx xxxx
(ii) In the case of any other Government employee-
(iii) A subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on leave on half pay, and in addition dearness allowance, if admissible, on the basis of such leave salary;
Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:-
(i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 30 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee.
(ii)The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of first six months, if in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government employee.
Provided that in the case of Government employee dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods as the case may be fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him, where the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this provision shall apply to him.
ALLOWANCES ON REINSTATEMENT
7.3 (1) When a Government employee, who has been dismissed, removed, compulsory retired or suspended, is reinstated as a result of appeal, revision or review, or would have been reinstated but for his retirement on superannuation while under suspension or not, 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 including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be; and
(b) whether or not the said period be treated as a period spent on duty.
(2) Whether the authority competent to order reinstatement is of opinion that the Government employee who had been dismissed, removed or compulsorily retired, has been fully exonerated, the Government employee shall, subject to the provisions of sub-rule (6), be paid his full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
(3) In a case falling under sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.”
xxxxxxxx xxxx xxxx
“7.5 An employee of Government against whom proceeding have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any period during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence allowance that may be granted in accordance with the principle laid down in rule 7.2) for such period until the final termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt), of it being proved that the officer's liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified.”
These Rules 7.3 and 7.5 when considered, deal with two different situations. Rule 7.3 of the Rules is general in application whereas rule 7.5 is specific and, therefore, will have precedence over Rule 7.3 wherever applicable in the given facts and circumstances of the case. Rule 7.3 and 7.5 came up for consideration before a Division Bench of this Court in HukamSingh's case (supra) wherein on considering these two Rules in similar facts and circumstances, as in the present case, this Court has held as follows:-
“It is abundantly clear that Rule 7.3 of the Rules is the general rule, while in case a person is acquitted, it is specific Rule 7.5 of the Rules that would be attracted. The law is well settled that special Rule will always take precedence over the general rule and consequently it must follow that under Rule 7.5 of the Rules, referred to above, the petitioner was entitled to the full back wages because, as mentioned above, the earlier decisions referred to above have little application in the present case.
In our this view, we are supported by the judgment of this Court in the case of Maha Singh vs. State of Haryana and another, 1993 (8) Services Law Reporter, 188. Same view was expressed by this Court in the case of Lehna Singh vs. The State of Haryana and others, 1993 (3) Recent Services Judgments 119. Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioner's being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal. The impugned order Annexure P/7 is accordingly quashed. The petitioner can thereafter be considered for any further promotion that may be due in accordance with the rules. No order as to costs.”
In the present case, petitioner was tried in FIR No.239 dated 25.4.1998 and the Additional Session Judge, Rohtak, vide order dated 24.3.2001 (Annexure P-1), on considering the evidence led by the prosecution and defence, accepted the plea of alibi raised by the petitioner. Para 18 of the judgment dated 24.3.2001 reads as follows:-
“18. Thus, the facts and circumstances as discussed above of our case are very much similar to the facts of the case State of Haryana vs. Prabhu and others (Supra) as in the first version the injured not only one but two if third was unconscious have given the history of injuries as a road side accident to the doctor within half an hour of the occurrence. But after sixteen hours delay in lodging the FIR coloured version creeps in even then three of accused were not named in the FIR and Bhim Singh's name was introduced as he had an altercation allegedly with the injured Narender at 8/8.30 P.M. who himself has given his name to other injured though, they have not seen him as the first altercation was narrated to them by the said Narender. The accused persons were never known to them before hand. Their names came to their knowledge after 7/8 days of the occurrence when they have been arrested by the Police and shown to them as admitted by PW10 Anil Kumar and PW9 Dharambir. There is no attribution specific who caused what injury to three injured persons. The injuries caused to them their ocular version do not found corroboration from medical evidence. Even about nature of injuries the doctors have never ruled out the possibility that they have been caused due to fall on the hard surface or even with a stone i.e. of Narender (head injury) on the road side accident. The injured were found by the doctor under the influence of liquor and the probability of the defence taken by the accused that in the mid night during darkness they have tried to enter a house and were chased by the residents due to brick bating, they have received injuries beside fall on hard surface. Thus the truthful version of the prosecution has not come forward and is not trust worthy and thus, when Bhim Singh was a SI Wireless at Fatehabad at a distance of about 150 kilometer from Rohtak for such a sensitive post one cannot take the risk of being a truant from office as Wireless operation require presence of a person or its operator on the apparatus, failing which his absence can be detected. Through out the state of Haryana as the Police Wireless system works 24 hours a day and the investigation officer Badan Singh (PW20) has even, verified this fact that he was on duty on the night. Accordingly, there is a merit in the plea of alibi raised by Bhim Singh as he has proved with absolute certainty excluding completely the possibility of his presence at the place of occurrence. (1984 (2) CR (SC) 13, State of Maharashtra vs. Nar Singh Rao Gangaram Pimple).”
In view of the above findings as recorded by the Sessions Court, which has attained finality, it is a case of pure acquittal as the petitioner was not found present at the place of occurrence.
Claim of the petitioner is fully covered by the provisions of Rule 7.5 of the PCSR Vol.-I Part-I as he stands acquitted of the blame in the criminal case registered against him in which he was arrested and was in custody from 30.4.1998 to 15.2.1999. As per this rule, petitioner being acquitted of the charge in the criminal proceedings is entitled to full amount of pay subject to adjustment of allowances paid to him during this period.
Further, this Court in the case of JagmohanLal vs. State of Punjab, AIR 1967 (PandH) 422 had gone to the extent of holding in a case which had nothing to do with his official work or duties that the moment he is acquitted of the charge, he is acquitted of the blame and it does not make a difference whether the acquittal was after giving benefit of doubt or for other reasons. Relevant portion of the judgment reads as follows:-
“The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are 'discharged' or 'acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being doubt in the mind of the court the accused is acquitted.
I am, therefore, quite clear in my mind that the intention underlying rule 7.5 can be no other except this; the moment the criminal charge on account of which an officer was suspended fails in a court of law, he should be deemed to be acquitted of the blame. Any other interpretation would defeat the very purpose of the rule. It is futile to except a finding of either honourable acquittal or complete innocence in a judgment of acquittal. The reason is obvious; the criminal Courts are not concerned to find the innocence of the accused. They are only concerned to find whether the prosecution has succeeded in proving beyond a reasonable doubt the guilt of the accused.”
Thereafter, two Division Benches of this Court in ShashiKumar vs. Uttar Haryana Bijli Vitran Nigam and another, 2005 (1) SCT 576 and ShivKumar Goel vs. State of Haryana and another, 2007(1) SCT 739, have again held that acquittal in criminal proceedings either by giving benefit of doubt or honourable acquittal by the criminal Court by recording finding that there was no evidence to prove the charge against the employee, he would be entitled to the benefit of pay and allowances over and above the subsistence allowance.
In the light of the above, the claim of the petitioner in the present writ petition for grant of full salary and allowances for the period 30.4.1998 to 15.2.1999 is accepted. Directions are issued to the respondents to make the payment to the petitioner within a period of two months from the date of receipt of certified copy of the order. However, the amount, if any, already paid to the petitioner towards subsistence allowance etc. during the period 30.4.1998 to 15.2.1999 shall be adjusted towards the amount due to the petitioner. Impugned orders dated 5.9.2001, 13.12.2001 and 25.1.2002 are hereby set aside to this limited extent.
Writ petition is allowed in above terms.