Sukhdarshan Singh vs The State Of Punjab on 3 March, 2022
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Supreme Court of India
Sukhdarshan Singh vs The State Of Punjab on 3 March, 2022
Author: K.M. Joseph
Bench: K.M. Joseph, Hrishikesh Roy
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 811-812 OF 2022
SUKHDARSHAN SINGH APPELLANT(S)
VERSUS
THE STATE OF PUNJAB & ORS. RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.
1. The appellant was appointed as a Clerk on 27.12.1979
by the State Transport Department. A criminal case (FIR)
came to be registered on 02.09.1986. The allegations
against him apparently pertained to alleged acts of
embezzlement. It was followed by a chargesheet on
06.10.1988. In connection with the said case, the appellant
came to be suspended w.e.f. 02.09.1986. While he was
undergoing suspension, yet another occurrence took place
which led to FIR No. 51/1995 being registered under
Sections 307 and 506 of the Indian Penal Code, 1860
Signature Not Verified (hereinafter referred to as ‘IPC’). The appellant came to
Digitally signed by
JAGDISH KUMAR
Date: 2022.03.03
17:54:47 IST
Reason: be convicted by the trial court with regard to FIR No.
51/1995 by judgment dated 17.09.1996. The appellant filed
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Criminal Appeal No. 703-SB/1996 against the conviction. The
appellant was convicted under Section 324 read with Section
506 of the IPC by the trial court.
2. After a period of six years, the appellant came to be
served with show cause notice dated 24.07.2002 under the
Punjab Civil Services (Punishment and Appeal) Rules, 1970
(hereinafter referred to as ‘1970 Rules’ for brevity). Rule
13 (i) of the ‘1970 Rules’ reads as follows:
“Special procedure in certain cases-Notwithstanding
anything contained in rules 8,9, 10, 11 and 12.
(i) Where any penalty is imposed on a Government
employee on the ground of conduct which has
led to his conviction on a criminal charge;
or
Provided that the Commission shall be
consulted, where such consultation is
necessary, before any orders are made in any
case under this rule.”
The appellant responded to the notice. However, by
order dated 13.03.2003, it was decided to remove the
appellant. To continue with the narrative, as regards the
first FIR relating to embezzlement, the Judicial Magistrate
acquitted the appellant by order dated 22.12.2006. The fate
of the criminal appeal against the judgment emanating from
FIR No.51/1995 was as follows:
The High Court sustained the conviction of the
appellant under Section 324 and Section 506 of the IPC.
However, it reduced the sentence under Section 324 to the
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period undergone and ordered a sentence of one month for
offence under Section 506. This judgment was dated
09.04.2008.
3. The appeal preferred by the appellant against the
order dated 13.03.2003 came to be disposed of by order
dated 29.01.2009. By the said order, the appellate
authority found inter alia and ordered as follows:
“Section 307 IPC is not fallen under the definition
of “Mortal Turpitude. But the sections i.e., 324
and 506 of the case are very small and the simple
imprisonment. Therefore, it is abundantly and nor
this offence is fallen under the category of “Moral
Turpitude” and nor this case is belongs to
government proceedings. This personal dispute with
the appellant and on causing some simple injuries to
the other person by the appellant. The Hon’ble
Punjab and Haryana High Court, by reducing his
imprisonment, has dispensed with remaining
imprisonment, only after undergoing 39 days
imprisonment. The Hon’ble High Court has taken this
matter as sympathetically, therefore in view of the
above I, also by giving sympathy, is hereby set
asides the termination order and is hereby
punishment for the appellant that he will be not
given nothing for the suspension period and this
period will be declared as Dies-Non period. But
this order, this appeal is disposed off.”
4. Being aggrieved by the order of the appellate
authority noting that the appellant will not be given
anything for the period of suspension and this period will
be declared as dies-non, a civil suit came to be instituted
on 09.12.2010 by the appellant. He sought a declaration to
the effect that the order dated 13.03.2003 and the
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appellate authority’s order dated 29.01.2009 to the extent
that the pay of the appellant was denied was illegal and
arbitrary and against the Rules and that he was entitled to
full pay for the period that he had been denied, the salary
and benefits. He sought mandatory injunction to release the
pay denied to him with 12 per cent interest. Upon contest,
the suit came to be decreed as follows:
“As per my sequel of discussion on Issue No. 1 to 4
discussed above, the suit of the plaintiff is decreed
to the effect that order dated 13.03.2003 and order
dated 29.01.2009/17.02.2009 to the extent whereby pay
of the plaintiff has been denied are illegal,
arbitrary and against the rules. However, it is made
clear that the plaintiff is entitled to get salary
which is denied by alleged orders but not of the
period during which the plaintiff and undergo
imprisonment. Decree sheet be prepared. File be
consigned to record room after due compliance.”
The appeal by the respondent-State was unsuccessful.
This led to the second appeal from which the present
appeals arise. The second appeal came to be allowed by the
High Court. In the original judgment, the High Court has
proceeded to find that the appellate authority has rightly
found that respondent is not entitled to monetary benefit
during the intervening period from the date of termination
till re-instatement having regard to the conviction, there
being modification only in sentence. It was found that only
a lenient view was taken by the appellate authority. It was
in these circumstances, relying on Rule 7.3 of Punjab Civil
Service Rules, hereinafter referred to as the ‘Rules’, the
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court found that the trial court and the appellate court
erred in not appreciating that the appellant was not
acquitted in the criminal case and also that Rule 7.3
empowered the competent authority to pass appropriate
order. Therefore, the second appeal was allowed setting
aside the judgments of the two courts.
In the review filed by the appellant from the
judgment, complaint of the appellant was that the court
erred in interpreting Rule 7.3 of the Rules. The
appellant’s case was that Punjab Roadways under which the
appellant was employed had adopted the 1970 Rules. The
appellant was placed under suspension in the FIR of the
year 1986 wherein he stood acquitted whereas the aforesaid
FIR was different from the later FIR pursuant to which he
has been convicted and therefore the question of treating
the suspension period as dies non, in the said case did not
arise. Appellant relied upon Rules 5, 13 and 15 of the 1970
Rules. The learned Single Judge found that the appellant
continued under suspension till 13.3.2003. It is further
found that the appellate authority was entitled to regulate
the suspension period under rule 15(f) of the 1970 Rules.
It was further found that in view of Rule 15(f) of the 1970
Rules and the order of suspension of 1988 not having been
challenged and it remained intact as on the date of removal
(13.3.2003), the review petition was allowed, to the extent
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of finding that a wrong provision, (Rule 7.3) was quoted in
the judgment which was sought to be reviewed. The
contention that dies non was impermissible because the
appellant was not placed under suspension with reference to
the later FIR, was not accepted as the respondent continued
to be under suspension.
It is feeling aggrieved by the original judgment
passed by the High Court allowing the second appeal and
also the order passed in review that the plaintiff is
before us by way of these appeals.
5. We have heard Shri Gurminder Singh, learned Senior
counsel appearing on behalf of the appellant and Shri D.S.
Patwalia, learned Advocate General appearing on behalf of
the respondent-State.
6. Learned senior counsel for the appellant would point
that once the High Court found that it was in error in
drawing support from Rule 7.3, it was in error in not
noticing that it overturned the premise for the judgment
allowing the second appeal. The judgment would have no legs
to stand on and therefore, the appeal filed by the State
ought to have been dismissed.
He would point out that Rule 7.3 indeed does not apply
as found by the High Court. As regards Rule 15(v)(f) of the
1970 Rules relied upon by the High Court, it is pointed out
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that it only provides for an order passed thereunder which
can lead to an appeal under the 1970 Rules. In this case,
learned senior counsel would reiterate the position which
has been accepted by the trial Court and the first
appellant Court that once the removal of the employee has
been found illegal and reversed, the employee is entitled
to get the wages or the salary for the entire period and it
is only this that has been done by the trial Court as also
the first appellate Court and there is no occasion for the
High Court to interfere thereunder.
Per contra, Shri D. S. Patwalia, learned Advocate
General for the respondent-State, would fairly submit that
no reliance could be placed on Rule 15(v)(f) of the ‘1970
Rules’ in the manner done by the High Court. He did submit
that Rule 7.3 of the Rules was originally rightly applied.
He sought to draw support from Rule 7.3-B. He would
highlight the fact that this is a case where the guilt of
the appellant was established before the trial Court
(conviction under Section 324 and Section 506 of the IPC)
and what is more, the appellate Court viz., the High Court
has confirmed the verdict. All that the High Court did was
it reduced the period of imprisonment as already noticed.
He would, therefore, point out that it is a case where the
appellant did not deserve to get anything more than what
was actually done by the appellate authority and it was for
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this reason that the respondents were prepared to accept
the order of the appellate authority as it is. He further
contended that the appellant would continue under
suspension based on the earlier order of suspension.
FINDINGS
7. Admittedly, the appellant stood removed on 13.03.2003.
This was on the basis of a conviction by the Criminal Court
for offences under Sections 324 and 506 of the IPC. Again
undisputedly, in connection with another FIR, the appellant
was placed under suspension on 02.09.1986. His services was
terminated by removal by order dated 13.03.2003. It is this
order of removal which came to be interfered with by the
appellate authority on 29.01.2009. As noticed, the
appellate authority, however, directed that the appellant
will not be entitled to any salary for the period in
question and that it will be treated as dies non. It is
this which triggered the litigation in the civil Court and
we have noticed the decree which has been granted. The
civil Court has proceeded on the basis that once a
termination has been set aside, the employee must get full
salary without anything more. It is on this premise that
the trial Court and the first appellate Court have
proceeded to allow the suit filed by the appellant by
directing that subject to the exception, that for the
period of imprisonment he would not get the salary and
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other benefits, he would get the salary for the rest of the
period.
8. In this regard, Shri Gurminder Singh would point out
that there was no error committed by the Court for two
reasons. He would submit that once the appellate authority
found the termination flawed and appellant was to be
reinstated, clearly the appellate authority (in
disciplinary proceedings) exceeded the limits of its
authority in proceeding as if it could by the order deny
him the salary treating it as punishment. It is equally so
when the appellate authority ordered dies non. In this
regard, he drew our attention to the penalties with which
an employee can be visited under the Rules viz., Rule 5 of
the ‘1970 Rules’. He would, therefore, point out that the
appellate authority was clearly acting illegally in
contemplating and providing for a punishment which is not
within the four walls of the ‘1970 Rules’. Secondly, he
would support the order by pointing out that it is settled
law that once the termination is set aside, the employee
must get all the benefits.
9. We have perused the Rules which have been placed
before us. Rule 5 provides for the penalties with which
the employee can be visited with. The scheme of the Rules
further is that an appeal can be carried against certain
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orders which are mentioned in Rule 15. The manner in which
the appellate authority must exercise its appellate
jurisdiction is delineated in Rule 19.
10. The punishment as it is so described by the appellate
authority viz., depriving the salary and placing the
employee under dies non, do not appear to be penalties
provided in Rule 5. It was open to the appellate authority
to enhance the punishment. The order, in other words, dated
29.01.2009 to the extent it became the subject matter of
the civil suit would appear to be beyond the power of the
appellate authority. To that extent, the appellant may be
justified in calling into question the direction to deny
him the salary by the appellate authority and treating it
as dies non as a punishment. It is not a penalty
contemplated in law. This, however, is not to be the end of
our enquiry.
11. The question would arise as to what is to be done with
regard to the period when the appellant was kept out of
service as a result of the proceedings against him. This,
in turn, must be broadly divided into two periods. An
employee may be kept out of service initially by way of an
order of suspension. The disciplinary proceedings may
culminate in an order of removal or dismissal or compulsory
retirement. The order of suspension would then come to an
end and it would merge in the order of removal interalia.
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After the order of removal inter alia till the order of
reinstatement based on relief granted to the employee, the
appellant would be out of service. According to Mr.
Gurminder Singh what Rule 7.3 contemplates is power with
the authority to provide for pay and allowances for the
period the employee is kept out of service but limited to
the period prior to the dismissal. The relevant part of the
Rule 7.3 reads as follows:
“7.3. (1) When a Government employee, who has been
dismissed, removed or compulsorily retired, is
reinstated as a result of appeal, revision or review,
or would have been so reinstated but for his retirement
on superannuation while under suspension or not, the
authority competent to order re-instatement 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 shall be treated
as a period spent on duty.
(2) Where the authority competent to order re-
instatement 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:
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
representation and after considering the
representation, if any, submitted by him, direct, for
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reasons to be recorded in writing, that the Government
employee shall, subject to the provisions of sub-rule
(7), be paid for the period of such delay only such
amount (not being the whole) of pay and allowances, as
it may determine.
(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.
(4) In cases other than those covered by sub-rule (2)
including cases where the order of dismissal, removal
or compulsory retirement from service is set aside by
the authority exercising powers of appeal, revision or
review solely on the ground of noncompliance with the
requirements of clause (2) of article 311 of the
Constitution and no further inquiry is proposed to be
held, the Government employee shall, subject to the
provisions of sub-rules (6) and (7), be paid such
amount (not being the whole) of 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 106 [7.3] THE
PUNJAB CIVIL SERVICES RULES VOLUME I (PART I) [Chap.
VII] compulsory retirement, as the case may be, as the
competent authority may determine, after giving notice
to the Government employee of the quantum proposed and
after considering the representation, if any, submitted
by him in that connection within such period as may be
specified in the notice:
Provided that any payment under this sub-rule to a
Government employee other than a Government employee
who is governed by the provisions of the payment of
Wages Act, 1936 (Act 4 of 1936) shall be restricted to
a period of three years immediately preceding the date
on which order for re-instatement of such Government
employee are passed by the authority exercising the
powers of appeal, revision or review, or immediately
preceding the date of retirement on superannuation of
such Government employee, as the case may be.
(5) In a case falling under sub-rule (4), the period of
absence from duty including the period of suspension
preceding his dismissal, removal or compulsory
retirement, as the case may be, shall not be treated as
a period spent on duty, unless the competent authority
specifically directs that it shall be so treated for
any specified purpose:
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Provided that if the Government employee so desires
such authority may direct that the period of absence
from duty including the period of suspension preceding
his dismissal, removal or compulsory retirement, as the
case may be, shall be converted into leave of any kind
due and admissible to the Government employee.
Note. –The order of the competent authority under the
preceding proviso shall be absolute and no sanction of
the higher authority shall be necessary for the grant
of–
(a) extraordinary leave in excess of three months in
the case of a temporary Government employee; and
(b) leave of any kind due in excess of five years in
the case of a permanent and quasi permanent
Government employee.
(6) The payment of allowances under sub-rule (2) or
sub-rule (4) shall be subject to all other conditions
under which such allowances are admissible.
(7) The amount determined under the proviso to sub-rule
(2), or under sub-rule (4) shall not be less than the
subsistence allowance and other allowances admissible
under rule 7.2.
(8) Any payment made under this rule to a Government
employee on his reinstatement, shall be subject to
adjustment of the amount, if any, earned by him through
an employment during the period between the date of
removal, dismissal or compulsory retirement, as the
case may be, and the date of reinstatement. Where the
emoluments admissible under this rule are equal to or
less than the amounts earned during the employment
elsewhere nothing shall be paid to the Government
employee.
Note 1.–This rule is absolute and unconditional and so
the question of lien does not arise in the case of a
Government employee who is dismissed from service and
is reinstated on appeal, revision or review when the
period of unemployment between the date of dismissal
and reinstatement is declared by the authority
exercising the powers of appeal, revision or review as
the period spent on duty.
Note 2.–Clause (b) of sub-rule (1) of this rule does
not forbid the period spent under suspension being
treated as leave, and it is open to the authority
exercising the powers of appeal, revision or review to
specify the proportion of pay and allowances to be paid
as the leave salary which would be permissible, if the
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Government employee were on leave.
Administrative Instruction. –A permanent post vacated
by the reason of dismissal, removal or compulsory
retirement of a Government employee should not be
filled substantively until the expiry of a period of
one year from the date of such dismissal, removal or
compulsory retirement. Where, on the expiry of the
period of one year, the permanent post is filled and
the original incumbent of the post is reinstated
thereafter, he should be accommodated against any post
which may be substantively vacant in the grade to which
his previous substantive post belonged. If there is no
such vacant post, he should be accommodated against a
supernumerary post which should be created in that
grade with proper sanction and with the stipulation
that it would terminate on the occurrence of the first
substantive vacancy in that grade.
Note 3.–If no order is passed under sub-rule (5),
directing that the period of absence be treated as duty
for any specified purpose, the period of absence should
be treated as ‘non-duty’. In such event, the past
service (i.e., service rendered before dismissal,
removal, compulsory retirement) will not be forfeited.
Note 4. –There is no bar to the conversion of any
portion of a period of suspension into extraordinary
leave. In the case of persons who are not fully
exonerated, the conversion of the period of suspension
into leave with or without allowances has the effect of
removing the stigma of suspension and all the adverse
consequences flowing therefrom. The moment the period
of suspension is converted into leave, it has the
effect of vacating the order of suspension, and it will
be deemed not to have been passed at all. Therefore, if
it is found that the total amount of subsistence and
compensatory allowances that an officer received during
the period of suspension exceeds the amount of leave
salary and allowances, the excess will have to be
refunded and there is no escape from this conclusion.”
12. Rule 7.3A deals with pay and allowances where the
dismissal, removal or compulsory retirement is set aside by
a court of law and such employee is reinstated without
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holding any further inquiry.
The relevant part of Rules 7.3 (B) reads as follows:-
“7.3-B. (1) When a Government employee who has been
suspended is reinstated 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 –
(a) regarding the pay and allowance 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
(b) whether or not the said period shall be treated as
a period spent on duty.
(2) Notwithstanding anything contained in rule 7.3 or
rule 7.3-A, where a Government employee under
suspension dies before the disciplinary or court
proceedings instituted against him, are concluded, the
period between the date of suspension and the date of
death shall be treated as spent on duty for all
purposes and his family shall be paid the full pay and
allowances for that period to which he would have been
entitled, had he not been suspended, subject to
adjustment in respect of subsistence allowance already
paid.
(3) Where the authority competent to order re-
instatement is 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:
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.
(4) In a case falling under sub-rule (3), the period of
suspension shall be treated as a period spent on duty
for all purposes.”
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13. If we take up Rule 7.3-B relied upon by the learned
Advocate General, it gives us the impression that its
intent is to deal with cases where a person is placed under
suspension but thereafter reinstated. ‘Conspicuous by its
absence’ in Rule 7.3B are expressions indicating that apart
from suspension, the matter progressed to a stage where the
employee came to be visited with any penalties. In other
words, there can be cases where a person may be placed
under suspension and without the matter progressing
further, the authority in its discretion and power decides
to revoke the suspension and he is reinstated. Rule 7.3, on
the other hand, deals squarely with the situation where the
employee whose services are terminated succeeds in an
appeal or other remedy and there is an order of
reinstatement and a question arises as to how the period
prior to his dismissal is to be reckoned. The orders which
can be passed are expressly provided for therein. In other
words, the scheme of the Rules would appear to be that when
an employee who has been proceeded against, succeeds before
the higher forum, the question as to what is to be done for
the period when he was kept out of service would have to be
determined in the manner provided therein.
14. Rule 15(v)(f) has been noticed by the High Court to
find that there was power with the authority. Rule 15(v)(f)
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reads as follows:
“15. Order against which appeal lies- Subject to the
provision of Rule 14 a Government employee may prefer
an appeal against all or any of the following orders,
namely-
…………………………………………………………………………………………………………….
…………………………………………………………………………………………………………….
(v) an order-
…………………………………………………………………………………………………………….
…………………………………………………………………………………………………………….
(f) determining whether or not the period from the
date of his suspension or from the date of his
dismissal, removal, compulsory retirement or reduction
to a lower service, grade, post, time scale of pay or
stage in a time scale of pay to the date of his
reinstatement or restoration to his service, grade or
post shall be treated as a period spent on a duty for
any purpose.
15. Rule 15(v)(f) indeed contemplates that when there is a
dismissal, removal, compulsory retirement or reduction to a
lower service inter alia and there is an order of
reinstatement, the authority is to pass an order as to
whether the period from the date of suspension or from the
date of his dismissal, removal or compulsory retirement
till the date of his reinstatement, is to be treated as a
period spent on duty for any purpose. This gives a clear
indication that upon an order being passed by the appellate
authority finding the termination of employee to be illegal
and leaves it there, it would not ipso facto inevitably
follow that the employee will become entitled to claim the
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salary for the entire period consequent upon his being
found to be entitled to reinstatement. This is a matter for
the authority to decide.
16. In such circumstances, in our view, the proper order
to be passed would be to find as follows:
(1) The decree of the trial Court as confirmed by the
first appellate Court is to be sustained viz., we
find that the first appellate authority in
proceeding to impose the condition that the
appellant will not be entitled to any salary for the
period and that it will be treated as dies non
cannot be sustained.
(2) However, the further direction by the decree passed
by the trial Court and confirmed by the first
appellate authority that the appellant will be
entitled to the salary for the period he was kept
out of service also cannot be sustained.
(3) Insofar as the High Court has not noticed these
aspects while allowing the appeal and dismissing the
review petition, we are of the view that the
impugned judgment also cannot be sustained.
17. Accordingly, we dispose of the appeals by setting
aside the impugned judgment and modifying the judgment
passed by the first appellate Court and set aside the
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decree passed by the trial Court directing payment of
salary to the appellant for the period that he was kept out
of service.
There will be a decree directing the second respondent
to consider as to how the period till the appellant was
reinstated is to be treated and consequential effect
thereof. In other words, the question will be as regards
the period from 13.03.2003 till 20.03.2009. This exercise
will be undertaken and concluded within a period of three
months from today.
Parties are directed to bear their respective costs.
The civil appeals are allowed as above.
…………………………………………………………………., J.
[K.M. JOSEPH ]
…………………………………………………………………., J.
[HRISHIKESH ROY ]
New Delhi;
March 03, 2022.
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