- (1.)Petitioner was an ex-serviceman and had served the Indian Army from 17.9.1963 till the date of his discharge on 14.6.1981. He was appointed as a Clerk in the Department of Rehabilitation, Haryana vide letter dated 27.3.1990 (Annexure P-1). Thereafter, he was promoted as a Kanungo on 1.8.1995. While serving on this post, FIR No.893 dated 21.8.1997 under Sections 7/13/49/88 of the Prevention of Corruption Act, 1988 was registered against the petitioner at Police Station NIT Faridabad. He was placed under suspension on 22.8.1997 and continued as such till the passing of the order dated 12.6.2001 (Annexure P-3) vide which he was ordered to be retired from service w.e.f. 15.09.2001 as per the provisions contained in Rule 5.32-A (C) of the Punjab Civil Services Rules Volume II and Rule 3.26 (d) of the Punjab Civil Services Rules Vol.1 part I as applicable to the State of Haryana, (hereinafter referred to as PCS Rules) after his attaining the age of 55 years by giving him three months' notice. The criminal case registered against the petitioner resulted in his acquittal vide judgment dated 3.5.2003 (Annexure P-2) passed by the Special Judge, Faridabad. His suspension period was not decided earlier by the Competent Authority but vide a subsequent order dated 28.10.2003 (Annexure P-4) it was finalized by ordering the said period i.e. from 22.8.1997 to 15.9.2001 as leave of the kind due. These two orders i.e. 12.6.2001 (Annexure P-3) retiring the petitioner from service and 28.10.2003 (Annexure P-4) deciding the period of his suspension, have been challenged by the petitioner through the present writ petition.
(2.)It is the contention of the counsel for the petitioner that false criminal case was registered against the petitioner for which he was placed under suspension and before the decision in the criminal case, he has been retired from service merely because of his involvement in a criminal case. This, the counsel for the petitioner contends, is not sustainable in the light of the judgment passed by the Supreme Court in the case of The State of Gujarat and another vs. Suryakant Chunilal Shah, 1998 8 JT 326. His further contention is that the petitioner has been acquitted in the trial which proceeded after the registration of the criminal case and once the petitioner has been acquitted by the Special Judge, Faridabad vide judgment dated 3.5.2003 (Annexure P-2), order of retirement of the petitioner cannot sustain as the very basis for retiring the petitioner stands extinguished. He further places reliance upon the judgment passed by this Court in Jagmohan Lal vs. State of Punjab through Secretary to Punjab Government, Irrigation and others, 1967 AIR(P&H) 422 to contend that where the acquittal is either after getting benefit of doubt or for other reason, it does not make a difference and once the acquittal is ordered, the accused is to be treated as innocent. Attacking the impugned order dated 28.10.2003 vide which the period of suspension of the petitioner has been treated as leave of the kind due, counsel contends that if an employee is placed under suspension merely because a criminal case has been registered against him, then on his acquittal, he is entitled to full pay and allowances. In support of this contention, reliance has been placed upon Rule 7.5 of the PCS Rules, Vol.I Part I. Supporting this, reliance has been placed upon the judgment of this Court passed in CWP No.7178 of 2002 Bhim Singh vs. State of Haryana and others, decided on 12.3.2012 (Annexure P-6). His contention is that the observations made by the Competent Authority, while passing the order impugned, is that benefit of doubt has been given to the petitioner which cannot be looked into by the Competent Authority at the time of deciding the fate of period of suspension once the acquittal has been ordered by the trial Court. As per the Government instructions dated 19.11.1991 (Annexure P-5), an employee can be retired from service only when he has not earned 70% good or better annual confidential reports during the last 10 years and there should not be any entry regarding doubtful integrity during this period. He contends that only 7 annual confidential reports of the petitioner have been recorded as he had worked for only 7 years with the respondents i.e. from 30.3.1990 (date of joining) till 22.8.1997 i.e. the date of his suspension and thereafter he was retired on 15.9.2001.
(3.)Thus, the petitioner had 100% good reports with no adverse entry what to say of doubtful integrity. His further contention is that vide this impugned order dated 28.10.2003, the petitioner has also been deprived of the benefit of pension as at the time of his suspension, he had only 78' days earned leave and half pay leave of 140 days to his credit and the remaining period has been treated as extraordinary leave which is not counted as service for pension under Rule 4.7 of the PCS Rules Vol.2Part 1. The petitioner, thus, has only 7 years, 11 months and 23 days' service. Since the period of 10 years is not complete, he is not entitled to pension. Another submission which has been made is that before passing the impugned order dated 28.10.2003, Rule 7.3 (5) has not been complied with as the principles of natural justice have not been followed. In the proviso to this Rule, a notice was required to be issued to the petitioner prior to treating the said period for any specified purpose such as leave of the kind due. He, on this basis, contends that the impugned orders cannot sustain and the writ petition deserves to be allowed.