Dr. Mehar Chand Sarewal vs The State of Punjab

P.C. Pandit, J.—This is a petition filed by Dr. Mehar Chand Sarewal under Article 226 of the Constitution. According to the allegations of the petitioner, he was posted as Assistant Surgeon P.C M.S. and was attached to the T.B Sanitorium at Amritsar. Some allegations of misconduct were leveled against him and an enquiry was then held by Dr. P.N. Chattani. On the basis of his report, the petitioner was dismissed from service on 26th of April, 1962. This order of dismissal was challenged by the petitioner by filing a regular civil suit in the court of the learned Subordinate Judge at Ambala. On 20th of August, 1964, the suit was decreed and it was held that the dismissal of the petitioner was illegal, void and inoperative and the petitioner still continued to be in Government service. The State of Punjab did not file any appeal against this decree, but on the other hand they accepted this decision to be correct and re-instated the petitioner by means of the order dated 24th of February, 1965. By this order the Government also decided that the petitioner was entitled to his full pay and allowances from the date of his suspension i.e. l7th July, 1960 to the date of his re-instatement. Simultaneously the Government parsed another order that immediately on his re-instatement, the petitioner should be placed under suspension so that a fresh departmental enquiry might be held against him regarding the charges which had already been framed against him. The effect of both these orders was that the petitioner continued to remain suspended and the order regarding his re-instatement was merely a paper transaction. The pay and allowances of the petitioner from the date of his suspension to the date of his re-instatement came to about Rs. 23,000/-. The petitioner, therefore, requested the State Government to pay that amount to him. However, a sum of Rs. 18,400/- only was paid to him, which was received under protest. The petitioner then wrote to the Secretary to Government, Punjab, Medical and Health Department that the balance of the amount should also be given to him. A copy of this letter was sent to the Director of Health Services, Punjab who then wrote to the said Secretary in this connection and requested him to issue necessary instructions to the Accountant General, Punjab, for doing the needful in the matter. However, no further action had been taken in the matter and the amount due to the petitioner was not being paid to him. Although the petitioner was again suspended in February 1965 and was told that a fresh enquiry would be held into the charges levelled against him, yet no such enquiry had been conducted so far and even an enquiry officer had not been appointed for the purpose. That led to the filing of the present writ petition on 30th of November, 1965, challenging the order of suspension and inaction of the State Government in not paying the arrears of pay and allowances to the petitioner.

It may be mentioned that during the course of the arguments before me, learned counsel only prayed that the State Government be directed to pay the balance of the amount due to the petitioner. With regard to the other prayer, the same was not pressed, because in the return filed by the State it had been mentioned that an enquiry officer had been appointed.

In the return filed by the State, it was said that the petitioner joined as Assistant Surgeon Class II (non-gazeted) on 13th January, 1956. On 23rd January, 1960 he joined as PCMS Class II (Gazetted) on the recommendation of the Punjab Public Service Commission and posted on general duty at Rajendra Hospital, Patiala from the same date. From there he was transferred to the T. B. Sanatorium, Amritsar during February, 1960, where he took charge on 11th February, 1980 It was admitted that a notice was served on the petitioner requiring him to show cause why he should not be dismissed from service. After considering the reply given by him, it was decided to dismiss him from service with effect from 26th April, 1962. The approval of the Public Service Commission was obtained before doing so. It was admitted that the petitioner was taken on duty and then suspended. The suspension, however, was not a continuous one. The Government was not aware of the actual amount paid to the petitioner or the precise amount which was due to him. It was stated that the remaining amount which the petitioner was asking for represented the arrears of pay and allowances which he claimed to have become payable to him if he was allowed the benefit of progressive grade increments. But for a brief period of 5 1/2 months, the petitioner had been under suspension ever since his elevation to PCMS Class II (gazetted) on charges which were at present the subject of an enquiry. It had, therefore been decided to keep this issue pending till the finalisation of the enquiry against the petitioner. It was stated that Shri M. Isa Das, Officer on Special Duty, Health Directorate, Punjab, had since been appointed as an enquiry officer to go into the charges levelled against the petitioner. The petitioner was getting subsistence allowance as admissible under the rules.

The only question for decision is whether the Government could, in law, with-hold toe payment of the balance of the arrears of pay and allowances to the petitioner.

After hearing the counsel for the parties, I am of the view that this petition must succeed. The Government was duty bound to pay the arrears of pay and allowances to the petitioner. In the first place this matter has been settled inter paries by a competent court. Admittedly, the petitioner brought a civil suit in the court of the learned Senior Subordinate Judge, Ambala, for a declaration to the effect that he continued to be in service of the Punjab Government and the order dated 26th April, 1962 dismissing him from service was illegal, void and without jurisdiction and that he was entitled to be re-instated to his post and was further entitled to his salary with progressive grade increments and other emoluments including the dearness allowance from the date of his suspension i.e. 17th July, 1960, till the date of the filing of the suit i.e. 1st August, 1963. This amount was separately calculated and a schedule showing the same was attached with the plaint. The suit was decreed by the learned Senior Subordinate Judge on 20th August, 1964. In the decree sheet, the relief claimed in the suit was mentioned in detail and then it was ordered that a decree for declaration was passed in favour of the plaintiff against the Punjab State. There is thus no manner of doubt that the decree declared that the petitioner was entitled to his salary with progressive grade increments and other emoluments including dearness allowance from the date of his suspension till the date of the filing of the suit. No appeal was filed against this decree by the Punjab State with the result that it became final. As a matter of fact this decision of the civil court was given effect to by the Government when they passed the order dated 24th February, 1965 to the following effect: -

In pursuance of the judgment and decree dated 20th August, 1964 passed by the Sub-Judge 1st Class Ambala in case Dr. Mehar Chand Sarwal v. State. The Government of Punjab is pleased to reinstate Dr. Mehar Chand Sarwal with immediate effect. He will be entitled to full pay and allowances for the period from the date of suspension viz: 17th July, 1960 to the date of reinstatement". In face of this decision, I am unable to see as to how the Government can with-hold the balance of the arrears of pay and allowances due to the petitioner.

Secondly, the learned counsel for the State relied on two rules, 4.5 A and 4.7 given in the Punjab Civil Services Rules Volume I in support of the action taken by the Government in not paying the balance due to the petitioner. These rules, in my opinion, have nothing to do with the case of the petitioner. The relevant part of rule 4.5A, runs thus-

4.5 A. (1) Notwithstanding anything contained in these rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another Service or cadre, and subsequently confirmed in that Service or cadre -

(a) during the period of probation he shall draw pay at the minimum of the time-scale or at the probationary stages of the time. scale of the service or post, as the case may be : * * * " This rule, as would be seen, applies to probationers It was not the case of the Government in their return that the petitioner was a probationer. As a matter of fact an affidavit had been filed by the petitioner before me on 23rd of May, 1966 to the effect that he was not a probationer, as argued by the State Counsel. He had been promoted from Assistant Surgeon Class II (non-gazetted) to PCMS Class II (Gazetted) on the recommendation of the Public Service Commission and there was absolutely no question of his being a probationer. Besides, if that had been so, the Government would have easily taken this stand in the return and in that case there would have been no question of their keeping the issue regarding the payment of the balance pending till the finalisation of the enquiry against the petitioner. Rule 4.7 says -

4.7. An increment shall ordinarily be drawn as a matter of course, unless it is withheld. An increment may be withheld from a Government servant by a competent authority if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments". This rule has no application to the instant case. It was not the case of the Government in their return that the competent authority had withheld the increments of the petitioner. Such an order is passed usually as a measure of punishment, if the conduct of the Government servant had not been good or his work had not been satisfactory. It is not the position of the Government that the conduct of the petitioner had not been good or his work had not been satisfactory and on that ground the competent authority had withheld his increments. Further, under this rule, the withholding authority had to state the period for which the increment was withheld and whether the postponement should have the effect of postponing the future increments. No such order was passed as regards the petitioner. As I have already said, the reliance on these two rules by the Government is merely an after-thought in order to support the action taken by them. This was not their case in the return filed by them.

In view of what I have said above, this petition succeeds and the State Government is directed to give effect to the civil court decree and pay to the petitioner all the emoluments which are legally due to him under the said decree There will, however, be no order as to costs.