Surinder Singh vs State of Haryana

V.S. Aggarwal, J.—Surinder Singh was appointed as a Mathematics Master on ad hoc basis from 16.12.1985. He asserts that his appointment was through the Employment Exchange after considering the claims of all eligible persons. On 26.4.1988, the petitioner was arrested and remained in custody upto 10.4.1989 with respect to a criminal case registered against him pertaining to offences punishable Under Sections 148/302/324/452 read with Section 149 Indian Penal Code. On 10.4.1989, the learned Additional Sessions Judge, Sonepat acquitted the petitioner. The operative part of the judgment of learned Additional Sessions Judge, Sonepat reads:

"108. Therefore, in view of the contradictions regarding places of occurrences; the unnatural conduct of Rajbir, Surinder to remain silent spectators to the killing of Khazan Singh, the contradiction in medical and ocular evidence, the non-corroboration of the occurrence by any independent witness; the tainted investigation the fake recoveries of weapons of offence; the presence of Rajinder not at the place of occurrence; the delay in the F.I.R. the making of improvement in evidence during the trial of the case; not recording the names of the accused in the recovery memos, site plans; the presence of Surinder at the time occurrence being suspicious; the other improbabilities detailed above and the enmity Khazan Singh with others than the accused and the numerous other contradictions; discrepancies and infirmities in the prosecution evidence lead to the irresistible conclusion that the prosecution had failed to substantiate any of the charges against the accused or to prove beyond any doubt any part of the prosecution story by trust-worthy evidence. Hence, the accused are hereby acquitted of all the charges framed against them." After the petitioner was acquitted, he was allowed to join the duties on 22.5.1989 subject to the condition that the period when the petitioner remained in custody, will be decided later on. Later on it was decided to treat the period for which the petitioner was in custody as absence from duty.

Petitioner seeks a writ of certiorari for quashing the decision whereby it has been decided to treat the period of judicial custody of the petitioner as absence from duty and for a direction to the respondents to grant to the petitioner full salary and allowances and all other consequential benefits for the period 27.4.1988 to 21.5.1989. It is alleged that since the petitioner had been acquitted of all the charges by the Court, there is no question of treating the petitioner to be absent from duty because his services had never been terminated. Reference has been made to the case of one Ram Kumar, ad hoc Math Master who was working on ad hoc basis and remained in custody. As per the petitioner after he was acquitted, he was treated on duty for all intents and purposes. The true copy of the order so passed in his case has been annexed as Annexure P-8.

In the reply filed by respondents No. 1 and 2, basic facts have not been disputed. It is alleged that petitioner was working on ad hoc basis and remained in judicial custody from 26.4.1988 to 10.4.1989. The petitioner was an ad hoc employee and his case was not governed under any statutory rules. After considering all the aspects, it was decided to treat the petitioner when he was in custody as non duty period and he is not entitled to pay and allowances for the said period.

The short question that thus comes up for consideration is as to whether the petitioner who was an ad hoc employee, after acquittal was reinstated, is entitled to full pay and allowances for the period when he was in judicial custody during the pendency of the trial. Needless to emphasise that the petitioner has since been acquitted. This question has been considered more often than once and reference to some of the precedents on the subject will not be out of place to mention. In the case of Jagmohan Lal Vs. State of Punjab and Others, there was a criminal case against the Government employee. During the pendency of the same, the said employee was suspended. He was acquitted. It was held that he was entitled to full pay and allowances. Rules 7.3 and 7.5 of the Punjab Civil Services Rules, Volume I, Part-I were considered. In paragraph 7 this Court held as under :-

"Mr. H.L. Soni is not correct when he says that Rule 7.3 is applicable in the present case. That is a general rule, which is applicable when a person is reinstated after dismissal removal, compulsory retirement or suspension. It has nothing to do with a Government servant who is reinstated after suspension because of criminal proceedings. For that, the specific Rule is 7.5. The intentions under Rule 7.3. seems to be that it deals with the officers who are reinstated as a result of departmental enquiries by the departmental officers, as held by the Division Bench of this Court in K.K. Jaggia''s case 1965 67 P. L.R. 1092. This will further he borne out by reading Sub-rule (2) of this rule."

Similar question again came up for consideration in the case of Maha Singh v. State of Haryana, 1993 (8) S.L.R. 188. It was held that once the employee is acquitted and reinstated, he is entitled to full pay and allowances for the period he remained under suspension. No different is the decision of the Supreme Court. In the case of Sulekh Chand and Salek Chand Vs. Commissioner of Police and Others, , though the question under consideration was as to if on acquittal the appellants were entitled to promotion from the date when their juniors were promoted or not. It was held in the affirmative. The ratio of the cited decision is the same namely that once the person is acquitted, the very foundation of proceedings against him is knocked off. Therefore, the conclusion is obvious that once a person is acquitted and is in the government employment, he is entitled to full pay and allowances for the period he was in custody or under suspension.

Learned counsel appearing for the State urged that the petitioner was an ad hoc employee and cannot take advantage of the aforesaid precedents. We are afraid, the said argument is totally unfounded. An ad hoc employee is also an employee of the Government. He may not have certain benefits available to a regular employee but it must be remembered that he too discharges certain functions assigned to the post. In the facts, it has to be remembered that he was appointed without a break during the period he was in custody. His services were not terminated. When he was acquitted, he was allowed to join and subsequently his services have been regularised. In the absence of any separate rules in this regard, there is no reason to make any differentiation and the aforesaid precedents would indeed help and give all its benefits to the petitioner.

For all these reasons the petition is allowed. The decision of the respondents to treat the period when petitioner was in judicial custody as absence from duty is quashed. It is directed that he will be entitled to full salary and allowances and consequential benefits for the said period namely 27.4.1988 to 21.5.1989. There will be no order as to costs.