Sanjeev Kaushik, Member (J).
1. The applicant is aggrieved against the order dated 16.10.2014 read with order dated 22.04.2014 (Annexure A-1) vide which absence period of the applicant from 08.06.1998 to 18.06.1998 and suspension period from 19.06.1998 to 07.03.2003 has been treated as leave of the kind due. He has further sought issuance of a direction to the respondents to treat the above period as ‘spent on duty’ and grant full pay & allowances & all the consequential benefits arising therefrom along with the retiral benefits with interest and also re-fix the pay as per the revised pay scale w.e.f. 01.01.2006.
2. At the very outset, Sh. V.K. Sharma, learned counsel for the applicant submitted that he is restricting his relief/prayer qua treatment of suspension period as leave of the kind due, and with regard to the interest part, he will file a separate O.A.
3. This case has a chequered history. The applicant entered into service with the Chandigarh Administration as Sub Divisional Engineer on 29.12.1976 and he was promoted to the post of Executive Engineer w.e.f. 20.08.1986. He was also given current duty charge of the post of Superintending Engineer w.e.f. 15.10.1992 and independent charge thereof w.e.f. 20.04.1993 in the regular pay scale and finally promoted as Superintending Engineer on regular basis w.e.f. 14.08.1995. An FIR No. 1/1998 was registered against the applicant under sections 406, 409, 420, 120-B of the IPC read with sections 13(1) (a) (b) (c) (d) & 13(2) of the Prevention of Corruption Act. He was placed under Suspension vide order dated 19.06.1998 in contemplation of disciplinary action against the applicant for committing a serious misconduct of absence from duty under Rule 4(1) (a) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. The above departmental proceedings initiated against the applicant culminated into punishment of stoppage of two increments with cumulative effect vide order dated 29.05.1999. It is also stated that said punishment order was the subject matter before the Hon’ble jurisdictional High Court in C.W.P No. 422/2000 which was admitted and is still pending for adjudication. On conclusion of departmental proceeding on 29.05.1999, the order of suspension under Rule 4(1) (a), which was made on 19.06.1998, substituted on 29.07.1998, would ce
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ase to exist. His suspension order was revoked vide order dated 07.03.2003 by exercising the powers conferred under clause (c) of sub-rule (5) of Rule 4 of the 1970 Rules. The applicant filed O.A No. 146/CH/2010 before this Court claiming various reliefs including non regularization of suspension period from 19.06.1998 to 07.03.2003 etc. The said O.A was allowed vide order dated 15.04.2011 whereby the respondents were directed to regularize the suspension period w.e.f. 30.05.1999 to 07.03.2003 as duty for all intends and purposes and also consequential benefits flowing there from and further grant him the scale of post of Chief Engineer w.e.f. 14.08.2003 and then fix the pay in the revised scale and then place in the revised scale w.e.f. 01.01.2006 and 8% interest was also allowed on leave encashment and DCRG. The said order of this court was subject matter before the Hon’ble High Court in C.W.P No. 15092/2011 at the hands of the Administration. In the meantime, the applicant was also acquitted from the charges levelled against him vide order dated 27.07.2013. The said judgment attainted finality as same has not been challenged till date. Aforementioned CWP was decided on 16.07.2014 and while disposing the writ petition, the Hon’ble High Court has recorded a finding that the criminal case lodged in pursuance of the said FIR has resulted into acquittal of the applicant, therefore, petitioner (Chandigarh Administration) is required to take a decision in respect of relief of grant of ACP scale, revised pension and other retiral benefits which was ordered to be done within a period of three months from the service of the order upon the authorities. Vide impugned order dated 21.01.2014 and subsequent order dated 22.04.2014 suspension period of the applicant from 08.06.1998 to 18.06.1998 and 19.06.1998 to 07.03.2003 has been treated as leave of any kind due. Thereafter the applicant submitted a detailed representation dated 28.10.2014 raising various pleas that once he has been acquitted of the charge, on the basis of which he was kept under suspension, then said period is to be treated as on duty for all intend & purposes. Hence, the present O.A.
4. The respondents contested the claim of the applicant by filing a detailed written statement wherein they have not disputed about the factual accuracy. However, it is submitted that in terms of the rule formulation, the period when the applicant was under suspension, was treated as leave of the kind due and he also supported the impugned orders. It is also submitted that since the applicant was placed under suspension on the account of departmental proceeding, therefore, as per the Rule 7.3 (5) of the 1970 Rules, the said period cannot be treated as having been spend on duty. It is further submitted that in terms of the order passed by the Hon’ble High Court in earlier round of litigation, the competent authority reconsidered the entire matter and thereafter, impugned order was passed. Therefore, the present O.A may be dismissed.
5. The applicant has also filed rejoinder contradicting the averment made in the written statement.
6. In support of the above, Sh.V.K. Sharma, learned counsel for the applicant vehemently argued that once the basis of suspension that was criminal case, has been decided in favour of the applicant and he has been acquitted from the court of law, therefore, impugned order treating that period as leave of kind due is illegal, arbitrary and against the rule formulation. To buttress his submission, he placed reliance upon the judgment passed by the Hon’ble jurisdictional High Court in the case of State of Punjab and Ors. Vs. S. Bangra - RSA No. 5143/2011, Poonam Rani Vs. Uttar Haryana Bijli Vitran Nigam Ltd., 2008 (1) SCT 819, Shashi Kumar Vs. Uttar Haryana Bill Vitran Nigam and Another, 2005 (1) SCT 577 and in the case of Shiv Goel Vs. State of Haryana and Another, 2007 (1) SCT 739. He also placed reliance upon the judgment passed by the Hon’ble Supreme Court in case of Ashim Kumar Sharma & Ors. Vs. Arun Kumar Roy, 2002 (1) SLR 472 to the effect that once it was directed that the respondents had to consider the case of the applicant, then they cannot brush aside the findings recorded by this court by not considering his contention.
7. Sh. Aseem Rai, learned counsel for respondents no. 1 to 3 opposed the prayer of the applicant and submitted that once the Hon’ble High Court has granted the liberty to pass a fresh order, therefore, in terms of Rule 7.3 (5) of the 1970 Rule, the Advisor to Administrator after considering the entire case, passed the speaking order treating the suspension period as leave of the kind due. To buttress his submission, he placed reliance upon the judgment passed by the Hon’ble Supreme Court in case Phool Kumar Vs. State of Haryana & Ors., 2007 (2) RSJ 257.
8. We have given our thoughtful consideration to the entire matter and perused the pleadings available on record with the able assistance of the learned counsel appearing for the respective parties.
9. The solitary contention which is to be adjudicated is as to whether the period when the applicant was placed under suspension pending criminal trial, be treated as continuous service or not?
10. A conjective perusal of the pleadings makes it clear that initially the applicant was placed under suspension 19.06.1998 in contemplation of departmental proceedings. The said departmental proceedings culminated into punishment of stoppage of two increments on 29.05.1999 but the applicant was not reinstated as he was involved in a criminal case. Pending criminal case, the applicant was continued under suspension. His suspension period was revoked only on 07.03.2003 by exercising the power under 4 (5) (c) of the 1970 Rules. Thereafter, the applicant was reinstated and he retired on 31.04.2007 after attaining the age of superannuation. Vide order dated 27.07.2013, he was acquitted in pending criminal case. In earlier round of litigation, O.A No. 146/CH/2010 filed by the applicant was allowed vide order dated 15.04.2011. The relevant para 14 of the order reads as under:-
'14. In view of the discussion herein above the O.A. succeeds and the impugned orders Annexure A-2, A-3, A-5 & A-6 are not sustainable in the eyes of law