JAI SINGH Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) THE petitioner was convicted in a criminal case and was given benefit of probation for one year by the trial Court. As a result of arrest he remained in police/judicial custody from 25.10.2010 to 3.01.2011. The trial followed. On 3.01.2011 the order of conviction was passed but the petitioner was released on probation of good conduct for a year. On 4.01.2011 the petitioner returned to his department and submitted joining report which was not accepted. It is Mr. Malik submission that the petitioner was taken back in service on 10.01.2011 and was assigned duties on 10.01.2011 and he has performed his duties till 26.01.2011. Mr. Nehra disputes this fact and states that the petitioner was allowed to join duty by an unauthorised person and therefore, the State is not bound by such permission, if any. Be that as it may, even if the petitioner's services were kept in limbo from 4.01.2011 to 27.01.2011 and co -terminus with the expiration of the period of probation of one year till 3.01.2012 it cannot be said that he was not in service of the State during that while since he was not dismissed from service following conviction under Sections 323, 324 and 452, IPC or on conduct which led to the conviction. The short controversy raised in this petition is whether the impugned order dated 6.08.2011 is legally bad inasmuch it denies back wages/salary for the period 25.10.2010, the date of arrest, to 3.01.2012 for reason of non -expiration of the period of probation. However, while denying back wages continuity of service has been granted for the aforesaid period. Mr. Malik submits that the petitioner was kept out of service for no fault of his for the impugned period since his client has not withheld his labour he has to the contrary been denied performing work without any order denying reinstatement. Therefore, he would have right to receive salary on the principle that the thread of employment did not snap and the petitioner continued to remain an employee of the State Government.

(2.) MR . Nehra, in such circumstances vehemently opposes the prayer for payment of back wages on the principle of no work no pay an by virtue of probation especially more so for the disputed period 10.01.2011 to 26.01.2011. Mr. Malik does not wish to join issue on the aforesaid short period and would be satisfied if that period is excluded together with the prior period from 4.01.2011, when joining report was submitted to 09.01.2011 when he was allowed to join duty without sanction of the competent authority as canvassed by Mr. Nehra if substantial justice is done to the petitioner by ordering payment of salary for the period 27.01.2011 to 3.01.2012.

(3.) THE present case is not one of dismissal from service. The petitioner was taken back in service and continued to remain in service by keeping him without work till the expiration of the probation period had run over by efflux of time. Neither any charge sheet was issued nor any departmental proceedings were initiated against him. Therefore, I am of the view that petitioner would be entitled to full salary for the period 26.01.2011 to 3.01.2012, the period prior thereto standing surrendered. Even though, the petitioner did not perform duties he is still entitled to arrears of full salary and allowances since he would be deemed to have done so because of an action of the State Government in denying him opportunity to serve. Probation following conviction in a criminal case has nothing to do with civil rights and claim to salary since the rules of service do not create such bar. Probation is a sentencing option available to the criminal court as an alternative of sending the defendant to jail. It is a guarantee for good conduct during probation. The convicted person is sent back to community living to demonstrate good behavior for the period of suspended sentence justifying opportunity of reconciliation and reparation and return to mainstream immediately conditionally free. It is inherent then that where the person is a government servant he is not restrained or precluded to perform work by virtue of operation of suspended sentence and remains free to discharge all things which have civil bearings, duties and responsibilities. The criminal charge in the present case did not arise out of public employment or duties arising therefrom. If the department choose not to take work from the petitioner during the period of probation they did so at their own peril even though the conviction stood and still does. It deserves repetition that the petitioner was not placed under suspension or deemed suspension. The employment meter kept running minus the period of police and judicial custody with no lawful instrument to stop it. Besides, the department did not pass an order withholding salary nor by assigning any reason till the impugned order was passed on 16.8.2012 on a memorial presented by the aggrieved petitioner. Denial of the claim for arrears of salary and allowances for the disputed period is found unreasonable. The judgment relied upon by Mr. Nehra is of no help to the State and is distinguishable on facts and law. Accordingly, the writ petition is allowed. The Impugned order dated 16.08.2012 (P -14) stands quashed to the impugned extent but relief to the extent indicated above is ordered to be granted to the petitioner with arrears calculated and disbursed within one month from the date this order is brought to the knowledge of the competent authority.