- (1.) The petitioner is working as a Junior Engineer in the Irrigation Department of the State of Haryana. Vide order dated 8th April, 1986 (copy Annexure P-1 to the writ petition), the petitioner effect. It was mentioned in the suspenstion with immediate effect. It was mentioned in the suspension order that he would be paid subsistence allowance as admissible under the rules. Without serving any charge-sheet, the order of suspension was revoked on 28th August, 1987 which was of course without prejudice to the disciplinary proceedings to be taken against the petitioner. The petitioner rejoined his duty with effect from 1st September, 1987. The learned counsel for the petitioner has stated at the bar that a charge-sheet was served somewhere in January, 1989 and he gave reply within the stipulated period and the matter rests there. However, the learned counsel for the respondent is not in a position to vouchsafe this fact.
(2.) The learned counsel for the petitioner has submitted that once an order of reinstatement has been passed, though even pending departmental enquiry an order under Rule 7.3 of the Punjab Civil Services Rules, Volume I, Part I (as applicable to the State of Haryana) (hereinafter called the Rules), had to be passed by the competent authority as to how the period of suspension was to be treated and how much pay/allowances were admissible for the relevant period. He has submitted that the pendency of enquiry or culmination thereof has nothing to do for the passing of the order by the competent Authority under Rule 7.3 of the Rules. Rule 7.3 of the Rules may be noticed :- "R. 7.3 Allowances on Reinstatement :- ----------------------------- (1) When a Government employee, who has been suspended in reinstated, or xxx the authority competent to order the reinstatment shall consider and make a specific order :- (a) regarding pay and allowances to be paid to the Govt. employee for the period of his absence from duty occasioned by suspension and/or xxx ending with his reinstatement xxxx and, (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (i) is of opinion that x x x in the case of suspension, that it was wholly unjustified, the Govt. employee shall be given the full pay and allowances to which he would have been entitled, had he not been x x x x x suspended x x x x." (3) In other cases, the Government employee shall be given such proportion of such pay and allowances as such competent authority may prescribe : Provided that the payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible : Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under rule 7.2. (4) In a case falling under sub-rule (2) the period of absence from duty shall be treated as period spent on duty for all purposes. (5) In a case falling under sub-rule (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose : "Provided that if the Govt. employee so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government."
(3.) The learned counsel for the petitioner in support of his contention, has relied upon a Division Bench Judgment of this Court in R.P. Kapur v. Union of India and another, 1967 AIR(P&H) 417 It was held as under :- "The respondents on the other hand say that they cannot take a decision unless the enquiry against the petitioner is completed, which enquiry cannot be held in view of the stay order issued by the Supreme Court mentioned above. It is further said on behalf of the respondents that the petitioner has not been reinstated by the Order dated 14th May, 1965, within the meaning of the said rule 9(i), as reinstatement there must mean reinstatement after a member of the Service has been exonerated. To my mind, there appears to be no logic in any of the two contentions raised by the respondents. Suspension is not one of the punishments prescribed by rule 3 of the Disciplinary Rules. Consequently, the suspension contemplated by rule 9 must means suspension otherwise than by way of penalty. Moreover, it is not necessary that a person against whom an enquiry has been ordered must invariably be suspended. Mr. Shankar, learned counsel for the respondents, does not dispute that if a member of the Service is ultimately fully exonerated he would, al all events be entitled to full pay and allowances even for the period during which he was under suspension by virtue of Rule 9(2). Is it then legitimate to restrict the scope of the word 'reinstated' in Rule 9(1) as canvassed by the respondents I think the answer is 'no'. If suspension, as contemplated by Rule 9, is not a punishment, then 'reinstated' must necessarily include reinstatement as a result of rescission of the suspension order. I am further of the opinion that justifiability of suspension order in Rule 9(2) must be determined irrespective of the result of enquiry and not necessarily after the conclusion thereof. As a matter of fact, on the earlier occasions, orders were passed giving the petitioner full pay and allowances in spite of the pendency of the enquiry. What rule 9(2) requires is that the concerned authority must consider whether or not there was justification for suspending the member of the Service on the facts and circumstances as obtained on the date of suspension and irrespective of the pendency or result of the enquiry. In this view, it follows that the competent authority namely respondent No. 1 must decide and make an order as to whether the suspension of the petitioner was justified or not and to allow the petitioner the consequential relief in terms of Rule 9 depending on the decision of the said respondent No. 1. The respondents are not justified in their stand that they can decide this question only at the conclusion of the enquiry which according to them, can take place only after Dhingra's has been finally decided and which may take years.";