Haryana State Small Industries and Export Corporation Limited vs Ram Dass

L.N. Mittal, J.—Judgment debtor (JD) Haryana State Small Industries and Export Corporation Limited has filed this revision petition under Article 227 of the Constitution of India impugning order dated 09.02.2008 Annexure P-1 passed by the executing Court thereby directing the petitioner-JD to pay 50% of the wages of respondent-decree holder (DH)-Ram Dass after giving benefit of all allowances and increments for the period in dispute. Respondent was employee of the petitioner. Respondent was placed under suspension vide order dated 10.12.1987. After enquiry, he was removed from service vide order dated 29.01.1990. His service appeal was dismissed on 24.04.1990. Suit filed by respondent challenging the orders of suspension, removal and Appellate Authority was decreed by the trial Court vide judgment and decree dated 11.02.1994. In appeal, preferred by the petitioner, first appellate Court vide judgment and decree dated 02.12.1998 modified the judgment and decree of the trial Court to the following effect:

Due to the reasons stated above this appeal is partially accepted. The decree passed by the learned trial court dated 2.11.1994 is accordingly modified. It is held that the order dated 19.1.1990 passed by the punishing authority terminating the services of the plaintiff and also of the Appellate Authority dated 24.4.90 are not in accordance with law. These are set aside. The appellant/defendants will be at liberty to hold a fresh inquiry against the respondent/plaintiff. He shall be entitled to half back wages for the period he remained out of job which he would have otherwise drawn. He shall not be entitled to any interest. The plaintiff shall be entitled to full salary from the date of submitting the joining report alongwith the copy of judgment and decree passed in this case today.

In execution petition, the petitioner denied the benefit of increments which the respondent would have earned during the period from 10.12.1987 (date of suspension) till 08.12.1998 when he was reinstated pursuant to judgment and decree dated 02.12.1998 passed by the appellate Court. Learned executing court vide impugned order Annexure P-1 has directed the petitioner to calculate the wages of the respondent by giving him benefit of allowances and increments for the aforesaid disputed period. Feeling aggrieved, JD has filed this revision petition to challenge said order.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner relying on division bench judgment of this Court in the case of Satish Rathee Vs. State of Haryana and Another, , contended that an employee under suspension does not earn any increment and therefore, the respondent is not entitled to benefit of any increment for the disputed period.

On the other hand, counsel for respondent-DH contended that suspension order merged in removal order and the removal order has been set aside by the Court and therefore, respondent-DH has been rightly held entitled to benefit of increments for the disputed period.

I have carefully considered the matter. The respondent remained under suspension since 10.12.1987 the date of suspension order till 29.01.1990 the date of order of his removal from service. During the said suspension period, respondent could not have earned any increment in view of Division Bench judgment of this Court in the case Satish Rathee (supra). However, since 29.01.1990 (date of removal order) till 08.12.1998 when he was reinstated, the respondent was certainly entitled to benefit of increments because the removal order dated 29.01.1990 has been set aside. Consequently, he could not be deemed to be under suspension for the said period from 29.01.1990 till 08.12.1998 and for subsequent period. Resultantly, the respondent would be entitled to benefit of increments for the said period.

For the reasons aforesaid, I find that impugned order of the executing Court suffers from illegality and jurisdictional error to the extent of giving benefit of increments to respondent-DH during his aforesaid suspension period whereas impugned order of the executing court does not suffer from any perversity, illegality or jurisdictional error regarding grant of benefit of increments to the respondent for the remaining period. The revision petition is accordingly allowed partly. Impugned order Annexure P-1 passed by the executing Court is modified and petitioner-JD is directed to pay 50% of the back wages to the respondent by granting him benefit of allowances and increments for the period since 29.01.1990 till 08.12.1998 and onwards also.