GURCHARAN SINGH v. THE STATE OF PUNJAB & Ors.

CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. PRESENT: MR. AMIT CHOPRA, ADVOCATE FOR THE PETITIONER. MR. PRAVEEN CHANDER GOYAL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J.(ORAL) The petitioner has prayed that directions be issued to the respondents to count the period from 15.7.1944 to 22.8.1947, during which the petitioner served in Pakistan before partition of the country as a Teacher in Government Primary School, Nursar and also to count the period from

3.1.1957 to 12.2.1963, during which he remained under suspension which was followed by his termination and which was subsequently set aside in LPA 19 of 1967 decided on 9.9.1970. The petitioner was originally appointed as a Teacher in Government Primary School, Nursar, State Bhawalpur (now in Pakistan) on

15.7.1944 and worked there upto 22.8.1947, when he shifted to India. Thereafter, the petitioner was appointed as JBT Teacher in village Poola, Tehsil Nathana, District Ferozepur on 14.7.1950. The petitioner was placed under suspension on 3.1.1957 and the petitioner was ultimately dismissed from service on 13.2.1963. CWP No.214 of 1986 -2- The petitioner challenged his termination order by filing CWP No.524 of 1963, which was dismissed on 9.11.1966. The aforementioned order was challenged by the petitioner by filing LPA No.19 of 1967 which was allowed on 9.9.1970. The entire equiry proceedings as well as the termination orders were set aside. Counsel for the petitioner submits that the orders of termination of the petitioner were set aside by the Letters Patent Appeal Bench, therefore, the services rendered by him from 3.1.1957 to 12.2.1963 is to be counted for the purposes of fixation of pensionary benefits. Learned counsel further submits that as the petitioner had served in Pakistan from

15.7.1944 to 22.8.1947, therefore, this period is also to be counted for the purposes of fixing his pensionary benefits. Mr. Goyal, learned counsel for the State submits that there is no record pertaining to the service rendered by the petitioner in Pakistan and hence the aforementioned period cannot be counted. He has further placed reliance on Rule 7.3(5) of the Punjab Civil Service Rules (Vol.I Part I Chapter VII) to contend that if termination order is set aside in an appeal or revision, then the period of suspension would not be counted for the purposes of computing pensionary benefits. Rule 7.3(5) of the Punjab Civil Service Rules (Vol.I Part I Chapter VII) is reproduced hereunder:- “In a case falling under sub-rule(4),the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose: CWP No.214 of 1986 -3- Provided that if the Govt. employee so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Govt. employee.” Replying to the aforementioned argument, counsel for the petitioner, however, submits that the relevant Rule in the present would be Rule 7.3-A sub-Rule 3 which is as under:- “(3) If the dismissal, removal or compulsory retirement of a Government employee is set aside by the court on the merits of the case, the period intervening the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be trated as spent on duty for all purposes and he shall be paid full pay and allowances for that period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.” As per the aforementioned Rule, if the dismissal, removal or compulsorily retirement of the Government employee is set aside by the Court on merits of the case then the period of suspension would be treated as spent on duty for all purposes and the employee would be entitled to full pay and allowances of that period. After hearing the counsel for the parties, I am of the opinion CWP No.214 of 1986 -4- that as far as counting the period from 15.7.1944 to 22.8.1947 is concerned, the petitioner served in Pakistan, for which there is no record. Hence, this period cannot be counted for the purpose of qualifying service for pension. However, as far as the period from 3.1.1957 to 12.2.1963, during which period the petitioner remained under suspension is concerned, this period would have to be counted for the purposes of fixation of pensionary benefits, as the petitioner's termination, which was on account of his suspension has been set aside in LPA No.19 of 1967, decided on

9.9.1970. As per Rule 7.3-A, as the dismissal of the petitioner was set aside by the Court on merits, hence, the period of suspension has to be treated as spent on duty for all purposes and he would be entitled to full pay and allowances for that period. In the present case, as the termination order of the petitioner had been set aside by this Court, hence, he would be entitled to all the pay and allowances for the period from 3.1.1957 to 12.2.1963. The aforementioned period shall also be counted for the purposes of redetermining his pensionary benefits. The respondents are directed to pay the petitioner full pay and allowances for the aforementioned period within a period of 3 months from today and also to count such period for the purposes of his pensionary benefits and revise his pension w.e.f. the date of his retirement. This exercise be also completed within 3 months, as the petitioner is more than 80 years old. Writ petition is partly allowed. May 13, 2010 Gulati (ASHUTOSH MOHUNTA) JUDGE