Satish Rathee vs State of Haryana and Another

Jawahar Lal Gupta, J.—The petitioner, an Assistant Food and Supplies Officer was placed under suspension vide order dated January 29, 1986. He was reinstated vide order dated October 18, 1991. The order of reinstatement was without prejudice to the final action that may be taken against him. Vide order dated December 17, 1997, it was directed that an amount of Rs. 1,23,052.80 shall be recovered from the petitioner on account of the loss caused by him. It was further directed that his pay will be reduced to the minimum stage of the time scale of pay for a period of three years. Aggrieved by this order, the petitioner has filed an appeal which is pending. In the meantime, the petitioner represented for the regularisation of the period of his suspension. This matter has been decided vide order dated June 11, 1998. It has been held that since the petitioner has not been exonerated of the charge levelled against him, he will not be paid anything beyond the subsistence allowance that was actually reimbursed to him. A copy of this order has been produced as Annexure P.8 with the writ petition. Aggrieved by this order, the petitioner has filed the present writ petition.

Mr. CM. Chopra, counsel for the petitioner has contended that he was entitled to the enhancement of the subsistence allowance from 50% to 75% at the expiry of six months from the date of the order of suspension viz January 29. 1986. It has been further submitted that the petitioner should have been granted all the increments. Lastly, it has been contended that vide order dated June 9 1998, the operation of the order dated December 17, 1997 has been stayed by the appellate authority. Thus, the Department has acted illegally in restricting the payment to the subsistence allowance only for the period of suspension.

Admittedly, the petitioner was suspended on January 29, 1986. If he was not paid subsistence allowance at a higher rate, the cause of action had accrued to him in July, 1986. It has not been shown that the petitioner had raised even his little finger at the appropriate time so as to claim the subsistence allowance at a higher rate. The claim is sought to be made after a lapse of more than 12 years. At this stage, if the petitioner were to file a civil suit, a plea of limitation shall be available to the respondents. At the lowest, a triable issue of limitation would arise.

Mr. Chopra submits that the non-payment of the subsistence allowance at the appropriate rate is a continuing wrong and gives a recurring cause of action to the petitioner.

The contention is wholly misconceived. The payment had accrued in July, 1986. It was not reimbursed to the petitioner even on his reinstatement in 1991. If he had any grievance, he had to approach a court of law within a reasonable time. He had failed to do so. We are not inclined to entertain the claim for the payment of subsistence allowance at higher rate at this belated stage.

It was then contended that the petitioner was entitled to the grant of increments for the period during which he had remained under suspension. According to the learned Counsel, all increments accrue automatically and unless an order for withholding the increments is passed, the employee is entitled to the enhancement of his salary at the end of each year. Reference has been made to the provision contained in Rule 4.7 of the Punjab Civil Services Rules, Volume I, Part I.

It is the admitted position that the petitioner was under a cloud. A charge sheet has pending against him. He had been placed under suspension in January 1986. Thus, it cannot be said that the petitioner''s work and conduct was satisfactory so as to entitle him to the release of increments automatically. Still further, at the end of the period of suspension, the petitioner was not exonerated. He has been found guilty of the charge of causing loss to the Government. As a result, penalty for recovery of a substantial amount of money along with reduction to the lowest stage of time scale for a period of three years has been awarded to him. Since the petitioner''s conduct was under scrutiny and ultimately he was found to be wanting in the performance of his duties, it cannot be said that he was entitled to the automatic release of the increments. After the imposition of the penalty, the competent authority has considered the petitioner''s case with regard to the emoluments for the period of suspension. Keeping in view the final order, it has taken a view that he will not be entitled to anything beyond what was paid during the period of suspension. In doing so, the authority cannot be said to have acted arbitrarily. After all, a person who had caused loss of lacs to the Government, has been let off with a penalty for the recovery of only 20% of the loss. If the authority has considered it appropriate to restrict the payment to the emoluments already disbursed, we do not find any infirmity in the order or any ground to hold that the increments for the period of suspension when the petitioner was not performing any duties, should be actually released to him. In our view, an employee earns an increment only on the satisfactory performance of duties. While under suspension, the petitioner perJormed no duties. He has no claim to get an increment especially when he has been found to be guilty of the charge levelled against him.

Lastly, it was contended that the operation of the order of penalty having been stayed, the order was honest and consequently, the authority had to decide the matter as if no penalty had been awarded.

We are unable to accept this contention. A copy of the order passed by the appellate authority has been produced an Annexure P.9 with the writ petition. A perusal thereof shows that the operation of the order dated December 7, 1997 passed by the Director, Food and Supplies has been stayed "till further order". It is only an interim measure. The implication of the order is that no recovery shall be made from the petitioner till the authority passes the final order. Still further, his existing emoluments shall not be reduced to the minimum of the scale as ordered by the Director. However, the order cannot be read to mean that the finding of guilt as established against the petitioner has been effaced from the record.

No other point has been raised.

In view of the above, we find no merit in this writ petition. It is, consequently, dismissed in limine.