Dr. K.B.S. Rajan, Judicial Member:
1. This is a remanded matter. Briefly stated, the case of the applicant in OA No. 549 of 2009 was that while working as a sepoy in the respondents' organization, he was kept under suspension from July, 1986 as he was involved in a criminal offence and was under custody for a period exceeding 48 days. The criminal case at the trial court level culminated into his conviction and sentence and consequently, invoking the provisions of Rule 19 (1) of the CCS (CCandA) Rules, 1965, the applicant was dismissed from service without holding any inquiry, vide order dated 08-04-2005 effective from that very date. Criminal Revision Petition filed by the applicant was successful and he was as such acquitted in the criminal case on 08-08-2007, of course, purely on the basis of benefit of doubt. In pursuance of the said order of acquittal, the respondents issued an order dated 07-0-10-2008 (Annexure A-7 in the said OA), setting aside the initial dismissal order but expressing simultaneously as to their decision to hold an inquiry and further the applicant was deemed to have been under suspension from 08-04-2005. Subsistence allowance to the extent of 50% was allowed through order dated 02-07-2009, vide Annexure A-11 of the said OA The applicant agitated against the same in the aforesaid OA and also claimed that the period of suspension should be treated as duty and consequential benefits should flow there from, including promotion as well as monetary benefits. The Tribunal did not find any illegality in the aforesaid impugned orders dated 07-10-2008 and 02-07-2009; however, the Tribunal held that the applicant is entitled to subsistence allowance at rate stipulated in Annexure A-11 order but in the escalated pay scale as by then the pay of the post held by the applicant was revised. The said order of the Tribunal dated 29-10-2009 reads as under:-
"10. In view of the above, while the relief of quashing of orders at Annexure A-7 and Annexure A-11 is rejected it is declared that the applicant is entitled to subsistence allowance at the rate (in terms of percentage) already fixed by the respondents calculating the amount on the basis of the pay which applicant would have been placed in under the revised pay scales. It is however, made clear that the applicant is entitled to such subsistence allowance from the date of filing of the OA, namely August, 2009 and not earlier.
11. Before parting with this case, we would earnestly hope that the respondents take further prompt action in respect of disciplinary proceedings if any proposed by them as the applicant is being paid subsistence allowance without rendering any service which will be heavy burden upon the exchequer/public money. The records perused by us indicate though the case was not accorded that priority which the disciplinary proceedings, especially involving suspension and payment of subsistence allowance deserved, as per the instructions of the DOPandT."
2. Not being satisfied by the aforesaid order of the Tribunal, the applicant as well as the department moved the High Court, in W.P. No. 5011 of 2009 and W.P. (c) No. 16343 of 2010 respectively. The challenge by the applicant is that he could not have been treated as one who is deemed to have been placed under suspension with effect from 08-04-2005 in terms of Section 10(4) of the CCA Rules while the establishment questioned the rate of subsistence allowance ordered to be paid to him for the period of suspension which varied from time to time in accordance with the differential escalation in the pay scale that went up with the passage of time stage by stage.
3. The High Court dealt with the two petitions in the common judgment dated 12-03-2012 and considered the following issues:
((i) What is the effect of Annexure A7 order dated 7.10.2008 issued by the Joint Commissioner of the Cochin Commissioner ate of Central Excise and Customs?
(ii) Could the employee be treated as one liable to be deemed to have been under suspension with effect from 8.4.2005? If not, what if any is the legal effect of the direction at Sl.No.(iii) in Annexure A7 dated 7.10.2008?
(iii) Is the finding of the Tribunal on the issue of subsistence allowance justified on facts and in law?
4. In so far as the issue (iii) above is concerned, the High Court has held as under:-
"11. At the outset, we may deal with the third among the issues we have noted above. As of now, the fact of the matter remains that the issue appears to be clearly covered by the decision of the Apex Court in Union of India v. R.K.Chopra (Civil Appeal No.1096/10) wherein the ratio decidendi emerging appears to be that the differential in terms of the escalated pay scales during the currency of the order of suspension would not have any impact on the subsistence allowance to be paid, however that, such issue would be dealt with by the competent authority in the establishment at the closure of proceedings terminating the order of suspension. It may, in some cases, depend upon the final outcome of the disciplinary proceedings also. In our view, the learned Tribunal not having been appraised by the law laid in this regard by the Apex Court, that issue needs to be re-considered by the Tribunal. We hasten to clarify that we have not expressed anything finally on the said issue since by this, we are making an order of remand leaving open all issues on law and facts on assessment of subsistence allowance open for consideration."
5. In regard to the legal validity of the directions of the respondents in order dated 07-10-2008, the High Court has first quoted the following from the said order:-
"NOW, THEREFORE, the undersigned hereby-
i. set aside the said order of dismissal from service;
ii. directs that a further inquiry should beheld under the provisions of the CCS (CCA) Rules, 1965, against Shri.P.R.Sasidharan, on the allegations which led to his dismissal from service.
iii. Directs that the said Shri.P.R.Sasidharan shall under Sub-rule (4) of Rule 10 of the CCS (CCA) Rules, 1965, be deemed to have been placed under suspension with effect from 08.04.05, and shall continue to remain under suspension until further orders."
6. As regards (i) above, the High Court has held the same as 'self working order'. As regards (ii), the High Court has held, "This is also within the format of law and is not even under challenge before us."
7. With reference to (iii) i.e. continued suspension from 08-04-2005, i.e. the date of dismissal until further orders, the High Court held that provisions of Rule 10(4) would not be applicable in cases where the dismissal ordered was under Rule 19(1) of the CCS (CCandA) Rules, and further, no order of suspension could be retrospective in view of the requirement of periodical review as per the rules which could not be possible in case of retrospective suspension and thus, shifted the date of commencement of the period of deemed suspension from the very date of issue of Annexure A-7 order (i.e. 07-10-2008) which is the date of applicant's deemed rejoining his duty. For the period from the date of acquittal by the criminal court i.e. 08-08-2007 till date of deemed reinstatement, i.e. 07-10-2008, the High Court declared that the same would entitle him to full pay and allowance in terms of the two government decisions dated 29-11-1966 and 19-9-1975 (cited in para 14 of the judgment).
8. As by the time the case was heard by the High Court, the penalty proceedings sought to be proceeded, vide order dated 07-10-2008 culminated into awarding of penalty of dismissal from service, the High Court stated that regarding the same, the High Court would be going beyond its jurisdiction under Article 226/227 of the Constitution and further it would amount to foreclosing the opportunity of the applicant for judicial review of disciplinary proceedings as it now stands before the Tribunal.
9. Thus, the direction of the High Court is that the matter relating to issue of subsistence allowance needs to be reconsidered by the Tribunal (in view of the law laid down by the Apex Court in the case of Union of India vs R.K. Chopra (CA No. 1096 of 2010). As regards the Disciplinary proceedings as well, it is for the Tribunal to deal with the same.
10. The case thus, having been remanded from the High Court, the applicant filed an amendment to the OA, restricting the claim to full pay and allowance for the period from the initial date of suspension i.e. 25-07-1986 upto 07-10-2008 along with the residual prayer i.e. to grant such other relief or reliefs that may be urged at the time of hearing or that the Tribunal may deem fit to be just and proper and of course, cost as well. The amendment application having been allowed, the OA has been given a new number (O.A. No. 1231 of 2012 -substituting the earlier OA No. 549 of 2009) and the respondents had adopted the same reply as they had filed earlier.
11. Senior Counsel for the applicant brought out succinctly the facts of the case and stated that through a separate OA, challenge is made against the departmental proceedings and so far as this case is concerned, it is with reference to the manner in which the period from the date of initial suspension in 1986 till 07-10-008 i.e. date of issue of order setting aside the dismissal order is to be regulated.
12. The Senior Counsel had referred to certain decisions of the Apex Court as well as the High Court of Kerala in support of his case that once an order of dismissal had been issued, the earlier suspension order merges with the order of dismissal and when the order of dismissal is held illegal, and the same set aside, there cannot be any suspension. This would mean that the entire period would be treated as duty and hence, the applicant is entitled to full pay and allowances. The cases relied upon by the Senior Counsel are as under:-
(a) AIR 1955 SC 600
(b) AIR 1974 SC 1281
(c) 1980 Vol III SLR 745
(d) 1983 ILR Vol II 74.
13. Senior Central Govt. Standing Counsel for the respondents first contended that when the matter is remanded back from High Court, it is only that claim as already made in the OA should have been continued and justified and the prayer now sought for is entirely different from the one made in the OA originally filed. In so far as the present claim is concerned the Senior Central Government Standing Counsel stated that the subsistence allowance has been granted as per the rules and the applicant is not entitled to the full pay and allowances as claimed by him.
14. Arguments have been heard and documents perused. The High Court has remitted the matter with reference to quantum of Subsistence Allowance as it has held "the issue appears to be clearly covered by the decision of the Apex Court in Union of India v. R.K.Chopra (Civil Appeal No.1096/10) wherein the ratio decidendi emerging appears to be that the differential in terms of the escalated pay scales during the currency of the order of suspension would not have any impact on the subsistence allowance to be paid, however that, such issue would be dealt with by the competent authority in the establishment at the closure of proceedings terminating the order of suspension. It may, in some cases, depend upon the final outcome of the disciplinary proceedings also. In our view, the learned Tribunal not having been appraised by the law laid in this regard by the Apex Court, that issue needs to be re-considered by the Tribunal". Since the decision in R.K.Chopra in CA No. 1096 was delivered on 01-02-2010, which is posterior to the date of the order of the Tribunal 29-10-2009, there was, naturally, no scope for the Tribunal to follow the said decision. All that the Tribunal could do was to keep in view the earlier decisions such as Umesh Chandra Mishra (1993 Supp 2 SCC 210) and R.P. Kapoor vs Union of India (1999 (8) SCC 110). The Apex Court has referred to the above two decisions as well in its decision in Chopra and held that these decisions did not deal with the relevant provisions in the Revised Pay Rules and in the case of R.K. Chopra (supra) the Apex Court has laid down the law that subsistence allowance should be only in terms of the pay and pay scale at the time of suspension and not to be based on the basis of the escalated pay scale from time to time.
15. As regards the decisions relied upon by the Senior Counsel, the decisions have been gone through. If any of these decisions applies to the facts of this case, the applicant would be entitled to the relief of full pay and allowance sought for.
16. In the case of Om Prakash Gupta vs State of UP (1955) 2 SCR 391, the appellant was in the United Provinces Civil (Executive Service) in 1940 and on 26th August, 1944, he was suspended pending inquiry into his conduct During the period of suspension the applicant was paid subsistence allowances. Inquiry against him was completed in September, 1944 and the appellant was awarded the penalty of dismissal in November, 1944. Appeal preferred before the Governor was unsuccessful. The appellant filed civil suit inter alia for a declaration that the dismissal was wrong, illegal, void and inoperative and had claimed the arrears of salary. The suit was decreed in part declaring that the order of dismissal was illegal and that the appellant still continued as a member of the Service. But arrears of salary were declined by the Civil Judge. Appeal preferred by the appellant before the High Court against the refusal to decree for arrears was unsuccessful and the case reached the Apex Court. The Apex Court considered the case on the factual premises of law then existing that under the Classification Rules an order of suspension was a penalty. The penalty could be imposed for good and sufficient reasons which may be based on materials already existing pending an inquiry' After the inquiry there may be the imposition of a severer penalty. However, the appellant preferred to give up his claim for arrears of salary less subsistence allowance paid to him from the date of the order of suspension until the date of the order of dismissal. He, however, contended that the order of suspension continued to be in force only until the 25th November, 1944, the date of order of dismissal. On that date the order of suspension ceased to exist and the appellant was entitled to recover arrears of salary from the 25th November, 1944, to the 31st December, 1947, inclusive. Thus, the Apex Court had to deal with the issue of payment of full salary for the period from the date of dismissal till the date the order of dismissal had been held illegal. The appellant in the above case who was suspended from August 1944 and dismissed in November 1944 was made entitled to full salary from November, 1944 till the date of declaration that the dismissal was illegal. Here, in the instant case, the High Court itself has held that the applicant is entitled to full pay for the period from the date of dismissal till the date of reinstatement consequent to the acquittal of the applicant from the criminal case. In any event, in that case, the rules applicable in the case of Omprakash (supra) were different (suspension being a penalty which got merged with severer penalty of dismissal and on the declaration of the court that the dismissal order is illegal, the sting of suspension also vanishes).Thus, the decision in the case of Omprakash (supra) is not of any assistance to the applicant.
17. In so far as the decision in the case of H.L. Mehra v. Union of India, (1974) 4 SCC 396, the Senior Counsel relied upon para 7 thereof and the same is as under:-
7. Let us first examine the question on principle. When an order of suspension is made against a Government servant pending an inquiry into his conduct, the relationship of master and servant does not come to an end. What the Government, as master, does in such a case is merely to suspend the Government servant from performing the duties of his office. The Government issues a direction forbidding the Government servant from doing the work which he was required to do under the terms of the contract of service or the statute or rules governing his conditions of service, at the same time keeping in force the relationship of master and servant. In other words, to quote Hegde, J. from V.P. Gindroniya v. State of M.P. "the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey". This being the true nature of an order of suspension, it follows that the Government servant would be entitled to his remuneration for the period of suspension unless there is some provision in the statute or rules governing his conditions of service which provides for withholding of such remuneration. Now, when an order of dismissal is passed, the viyculum juris between the Government and the servant is dissolved: the relationship of master and servant between them is extinguished. Then the order of suspension must a fortiori come to an end. But what happens when the order of dismissal is subsequently set aside? Does that revive the order of suspension? We do not think so. Once the suspension has come to an end by an order of dismissal, which was effective when made, it cannot be revived by more subsequent setting aside of the order of dismissal in the absence of a statutory provision or rule to that effect. That is precisely the reason why sub- rules (3) and (4) had to be introduced in Rule 10 providing for retrospective revival and continuance of the suspension in cases falling within those sub- rules. This position which emerges clearly on principle is supported also by authority. There is a decision of a Bench of six judges of this Court which endorses the same view. That is the decision in Om Prakash Gupta v. State of Uttar Pradesh. The appellant in that case was suspended from service with effect from August 24, 1944 pending an inquiry into his conduct. The Commissioner completed the inquiry and made a report to the Government and on the basis of the report the Government passed an order dated November 25, 1944 dismissing the appellant from service. The appellant claimed that the order of dismissal passed against him was illegal and void and he continued to be in service and was entitled to recover arrears of salary. The claim that the order of dismissal was illegal and void and the appellant continued to be in service was upheld by the High Court but relief by way of recovery of arrears of salary was refused and the appellant, therefore, preferred an appeal to this Court. The claim of the appellant for arrears of salary which was debated before this Court related to two distinct periods: one from the date of the order of suspension up to the date of the order of dismissal, and the other from the date of the order of dismissal up to the date when the order of dismissal was set aside by the Court. So far as the claim for the first period was concerned, the appellant gave it up before this Court, as it would have necessitated a remand which would have involved the appellant in heavy expenditure and harassment. The claim for the second period was, however, seriously pressed on behalf of the appellant and this Court decreed it for reasons which may best be stated in the words of Imam, J. speaking on behalf of the Court: (SCR pp. 400-401).
"He" i.e. the appellant, "however, contended that the order of suspension continued to be in force only until November 25, 1944, the date of the order of dismissal. On that date the order of suspension ceased to exist and the appellant was entitled to recover arrears of salary from November 25, 1944, to December 31, 1947, inclusive. The Attorney-General strongly contended that it continued to be in force and that it was not at all affected by the declaration of the Civil Judge that the order of dismissal was illegal. In view of that decision the order of dismissal must be regarded as a nullity and non-existent in the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended. He referred to the case of M. Gopal Krishna Naidu v. State of Madhya Pradesh. On behalf of the appellant reliance was placed on the case of Provincial Government, Central Provinces and Berar through Collector, Amraoti v. Shamshul Hussain Siraj Hussain. The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant. With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a civil court that the order of dismissal was illegal could not revive an order of suspension which did not exist. The case referred to by the Attorney-General is not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from November 25, 1944, to December 31, 1947."
18. That was a case where the appellant while functioning as Sr. Superintendent of R.M.S. Division Allahabad came to be suspended on 11-04- 1963, on the ground that a criminal case was under investigation. The investigation resulted in a criminal case having been filed on a particular charge, and the appellant was found guilty of offences under the Prevention of Corruption Act and was convicted. Whilst the criminal case was pending an inquiry against the appellant under Rule 15 of the CCS (CCA) Rules, 1957 was initiated. The appellant preferred an appeal against the conviction and the appellate Court confirmed the conviction and also maintained the sentence passed against him. On the basis of such conviction order dated October 26, 1967 dismissing the appellant from service with immediate effect under Rule 19(1) of CCS (CCA) Rules, 1965 came to be passed. The appeal against the conviction was, thereafter, heard by the Apex Court and by a judgment dated March 19, 1971 the Apex Court allowed the appeal and set aside the conviction of the appellant. The conviction of the appellant having been set aside, the order of dismissal based on the conviction obviously could not be sustained and the President, therefore, decided that the order of dismissal should be set aside and passed an order to the following effect on June 9, 1971:
"Whereas Shri H.L. Mehra, the then Senior Supdt. of RMS was dismissed from service with effect from October 26, 1967 on the ground of conduct which led to his conviction on a criminal charge vide order No. 7/6/63 -- Disc. dated the October 26, 1967;
And whereas the said conviction has been set aside by the Supreme Court and the said Shri H.L. Mehra has been acquitted of the said charge;
And whereas in consequence of such acquittal the President has decided that the said order of dismissal should be set aside;
And whereas Shri H.L. Mehra, the then Senior Supdt. of RMS was under suspension vide order No. 10/9/63 -- Vig. dated April 11, 1963, at the time of dismissal, and an enquiry under the provisions of CCS (CCA) Rules, 1957 as ordered vide memo No. 7/6/63 -- Disc. dated March 8, 1965 was pending against him: And whereas the President has decided that the said enquiry pending against Shri H.L. Mehra, may be continued and under sub-rule 5(b) of Rule 10 of CCS (CCA) Rules, 1965, Shri H.L. Mehra should continue under suspension until the termination of such proceedings.
Now, therefore, the President hereby:
(i) sets aside the said order of dismissal;
(ii) directs that the enquiry pending against Shri H.L. Mehra, shall be continued until its finalization;
(iii) directs that the said Shri H.L. Mehra, shall under sub-rule 5(b) of Rule 10 of CCS (CCA) Rules, 1965 continue to remain under suspension until further orders."
(A comparison of the above order dated 8th March, 1965 in the above case with that of order dated 07-10-2008 would go to show that both of them are on similar lines)
19. The appellant being aggrieved by this order insofar as it directed continuance of the inquiry instituted against him by the Memorandum dated March 8, 1965 and also continued his suspension under sub-rule 57(b) of Rule 10 of the CCS (CCA) Rules, 1965, filed a writ petition in the Delhi High Court challenging the validity of this order on various grounds The Division Bench of the Delhi High Court by a judgment dated February 25, 1972 rejected the various grounds urged on behalf of the appellant against the validity of the order dated June 9, 1971 and dismissed the writ petition. Hence the appeal before the Apex Court by the appellant with certificate obtained from the Delhi High Court.
20. The Apex Court analyzed the order passed by the Administrative Authority and held that the same consisted in three parts. One part set aside the order of dismissal passed against the appellant on October 26, 1967 the other part directed continuance of the inquiry instituted against the appellant by the Memorandum dated March 8, 1965 while the third part continued the suspension of the appellant under sub-rule 5(b) of Rule 10 of the CCS (CCA) Rules, 1965. As the second part was not challenged by the appellant, the same was held to be valid. The only question debated before the Apex Court was -- and that raised a rather serious controversy - whether the third part of the impugned order was valid: was it competent to the President, in the circumstances of the case, to continue the suspension of the appellant under sub-rule 5(b) of Rule 10 of the CCS (CCA) Rules, 1965? Even if it was not, could this part of the impugned order be sustained under any other provision of Rule 10 of CCS (CCA) Rules, 1965?
21. The Apex Court thus confined its examination only to the question as to whether the initial order of suspension passed prior to order of dismissal in terms of Rule 19(1), could be purported to be continued after the order of dismissal set aside. The Apex Court held as under:-
".....the third pan of the impugned order continuing the suspension of the appellant must be held to be void and inoperative. That means that the suspension of the appellant under the order dated April 11, 1963 came to an end on October 25, 1967 when the order of dismissal was passed against him and since then the appellant is no longer under suspension. The appellant must, therefore, be held to be entitled to salary from October 25, 1967 and an order for payment of arrears of salary must be passed in his favour."
The Apex Court in the above case directed as under:-
"11. We, therefore, partly allow the appeal and issue a writ of mandamus quashing and setting aside the third part of the impugned order dated June 9, 1971 continuing the suspension of the appellant and direct the respondents to pay to the appellant arrears of salary from October 26, 1967, after deducting the amount of subsistence allowance, if any paid to him."
22. Thus, in the above case also the period of suspension prior to dismissal was retained as suspension only in contradistinction to the period of suspension from the date of dismissal till the date of setting aside of the order of dismissal or till the date of acquittal, for which period the appellant was made entitled to full pay and allowances.
23. It is appropriate to take into account certain other decisions of the Apex Court to ascertain as to how the period of suspension prior to date of dismissal had been dealt with.
24. In Krishnakant Raghunath Bibhavnekar v. State of Maharashtra, (1997) 3 SCC 636 The appellant while working as Compositor in the Government of India Printing Press, was charged for offences punishable, inter alia, under Section 409 of IPC. Pending trial, he was kept under suspension and was paid subsistence allowance. After his acquittal, the appellant was reinstated but the respondents did not grant the consequential benefits to him. Consequently, the appellant approached the Administrative Tribunal. The Tribunal by the impugned order dated 27-4-1995 in OA No. 40 of 1992, dismissed the application. When the matter was taken up with the Apex Court, the Apex Court has held as under:-
"4. Mr Ranjit Kumar, learned counsel for the appellant, contends that under Rule 72(3) of the Maharashtra Civil Services (Joining Time, Foreign Services and Payment during Suspension, Dismissal and Removal) Rules, 1991 (for short "the Rules"), the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paras 5 and 6 of the additional affidavit."
25. In the case of Ranchhodji Chaturji Thamkore vs Supdt. Engineer, Gujarat Electricity Board, (1996) 11 SCC 603, the petitioner therein was involved in a criminal case and the sessions court had convicted him and on that basis, the petitioner was dismissed from service without holding the inquiry. The petitioned appealed against the conviction and the appeal was allowed and the petitioner acquitted. On the basis of the same, the applicant sought for reinstatement and back wages for the period he was out of service. The High Court ordered reinstatement but no back wages was directed to be paid. The petitioner came to the Apex Court challenging the decision of the High Court when it refused salary and the Apex Court has held as under:-
"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages."
26. In view of the above decisions of the Apex Court which stipulate that there is no question of treating the period of suspension as of duty, the decision relied upon by the Senior Counsel in the case reported in 1980 (3) SLR 745 is not of much assistance to the applicant's case.
27. The claim of the applicant in the instant O.M. is that, as per the amended prayer he should be declared to be entitled to full salary from 1986 (i.e. the date of suspension) till 07-10-2008, when the order setting aside the order of dismissal was passed. Out of the above period, the High Court has already held that the applicant would be entitled to full pay and allowance from the date of acquittal (08-08-2007) till 07-10-2008. It has also affirmed the power of the respondents to keep the applicant under suspension prospectively after reinstatement under Rule 10(1) of the CCS (CCandA) Rules. Thus, the question is as to the entitlement of subsistence allowance from the initial date of suspension i.e. from 1986 till the date of dismissal i.e. 08-04-2005.
28. It is to be emphasized and reiterated here that the claim of the applicant for full pay and allowances cannot be acceded to in view of the decision by the Apex Court in the case of Krishnakant Raghunath Bibhavnekar (supra) as also other case cited above. Thus, it is in respect of the extent of subsistence allowance that the case has to be considered (in addition to the disciplinary proceedings, which is stated to have been separately prosecuted by the applicant in another OA) and while so considering the issue, the law relating to quantum of subsistence allowance, as laid down by the Apex Court in the case of R.K.Chopra be kept in view.
29. As already stated earlier, the decision in R.K. Chopra could not be earlier taken into account as the Tribunal's order is anterior to the date of pronouncement of the judgment in the case of R.K. Chopra. The Tribunal took into account the related decision by the Apex Court as available then, i.e. R.P. Kapur (supra) and Umesh Chandra Misra (supra). The Apex Court had also referred to the said cases and the observation of the Apex Court and final decision is as under:-
14. In R.P. Kapur case this Court was dealing with the scope of the Railway Services (Pension) Rules, 1993 and the effect of Note 1 and proviso to Rule 50 and the Court took the view that the above mentioned proviso is not applicable to a case of compulsory retirement. The scope of Note 3 to Rule 7 was not in issue in R.P. Kapur case.
5. In Umesh Chandra Misra case this Court was dealing with the case of a railway employee who was denied subsistence allowance at the rate of 75% of the salary for the period from 20-5-1976 to 17-2-1977 and this Court directed the respondents to pay him the subsistence allowance from 20-11-1975 to 19-5-1976 at the rate of 50% of the salary and from 20-5- 1976 to 17-2-1977 at the rate of 75% of the salary with interest on both the amounts with a further direction that the subsistence allowance be paid on the basis of the revised scale of pay. The legality of Note 3 to Rule 7 was never an issue in that case.
16. The claim for payment of subsistence allowance of a government servant is dealt with in Chapter VIII of the Fundamental Rules. FR 53which is relevant for our purpose reads as follows:
"53. (1) A government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely:
(i) * * *
(ii) in the case of any other government servant--
(a) a subsistence allowance at an amount equal to the leave salary which the government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary:
Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the government servant;
(ii) the amount of subsistence allowance, may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the government servant;
(iii) the rate of dearness allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above.
(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances."
The said rule provides that the government servant under suspension shall be entitled to subsistence allowance at an amount equal to the leave salary which the government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance if admissible on the basis of such leave salary.
17. The proviso to Rule 53(1)(ii)(a) says that where the period of suspension exceeds three months, the authority is competent to vary the amount subject to some restrictions. We may in this connection refer to a Government of India Order GOMs No. F-2(36)-Ests/-III/58 dated 27-8- 1958 given in Swamy's Compilation of Fundamental and Supplementary Rules, which deals with the revision of scale of pay while a government servant is under suspension. The two categories of cases have been dealt with in that office memorandum. One refers to cases in which the revised scale of pay takes effect from a date prior to the date of suspension and other cases in which the revised scales of pay takes effect from a date falling within the period of suspension.
18. The Office Memorandum reads as follows:
"(2) Revision of scale of pay while under suspension.--A question having arisen as to whether a government servant under suspension might be given an option to elect any revised scales of pay which might be introduced in respect of the post held by him immediately prior to suspension is revised, the Government of India has decided as follows:
(1) Cases in which the revised scale of pay takes effect from a date prior to the date of suspension.
In such cases the government servant should be allowed to exercise the option under FR 23 even if the period during which he exercises the option falls within the period of suspension. He will be entitled to the benefit of increase in pay, if any, in respect of the duty period before suspension, and also in the subsistence allowance, for the period of suspension, as a result of such option.
(2) Cases in which the revised scale of pay takes effect from a date falling within the period of suspension.
(a) Under suspension a government servant retains a lien on his substantive post. As the expression `holder of a post' occurring in FR 23 includes also a person who holds a lien or a suspended lien on the post even though he may not be actually holding the post, such a government servant should be allowed the option under FR 23 even while under suspension. The benefit of option will, however, practically accrue to him in respect of the period of suspension, only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not.
(b) A government servant who does not retain a lien on a post the pay of which is changed, is not entitled to exercise the option under FR 23. If, however, he is reinstated in the post and the period of suspension is treated as duty, he may be allowed to exercise the option after such reinstatement. In such cases, if there is a time-limit prescribed for exercising the option and such period had already expired during the period of suspension, a relaxation may be made in each individual case for extending the period during which the option may be exercised."
(emphasis supplied)
19. The above mentioned Rules as well as the memorandum makes it clear that if there is a revision of scale of pay in respect of a post held by a government servant, prior to the suspension period, he is permitted to exercise option under FR 23, even if the period during which he is to exercise the option falls within the period of suspension and then, he will be entitled to the benefit of increase in pay and also in subsistence allowance for the period of suspension, as a result of such option. But if the revised scale of pay takes effect from a date falling within the period of suspension then, the benefit of option, for revised scale of pay will accrue to him in respect of the period of suspension only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not.
20. In the present case, the Revised Pay Rules came into force on the 1st day of January, 1996 when the respondent was under suspension. Therefore, even if he had exercised his option under FR 23 for the benefit of the above pay revision, the same would have accrued to him only after his reinstatement depending on the fact whether the period of suspension is treated as "on duty" or not. So far as the respondent is concerned, he was dismissed from service on 4-8-2005, therefore the question of the benefit of the revised pay and the subsistence allowance thereon on the basis of the Revised Pay Rules did not accrue to him.
21. The Revised Pay Rules, which came into force on 1-1-1996 in our view are in conformity with FR 53 and the above mentioned office memorandum issued by the Government of India. Rule 5 of the Revised Pay Rules deals with drawal of pay in the revised scales which reads as follows:
"5. Drawal of pay in the revised scales.--Save as otherwise provided in these rules, a government servant shall draw pay in the revised scale applicable to the post to which he is appointed:
Provided that a government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
* * *
22. Rule 6 which deals with the exercise of option reads as follows:
"6. Exercise of Option.--(1) The option under the proviso to Rule 5 shall be exercised in writing in the form appended to the Second Schedule so as to reach the authority mentioned in sub- rule (2) within three months of the date of publication of these Rules or where an existing scale has been revised by any order made subsequent to that date, within three months of the date of such order:
Provided that--
(i) In the case of a government servant who is, on the date of such publication or, as the case may be, date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his taking charge of his post in India; and
(ii) Where a government servant is under suspension on the 1st day of January, 1996, the option may be exercised within three months of the date of his return to his duty if that date is later than the date prescribed in this sub-rule."
(emphasis supplied)
23. On a combined reading of Rules 5 and 6, it is clear that a government servant under suspension on the 1st day of January, 1996 is entitled to exercise his option within three months of the date of his return to duty if that date is later than the date prescribed in the sub-rule and if the intimation is not received he is deemed to have elected to be governed by the revised scale of pay with effect on and from the 1st day of January, 1996 on his return to duty. The respondent herein did not return to duty since he was dismissed from service and hence there was no question of either exercising the option or the application of the deeming provision.
24. Rule 7 deals with the fixation of initial pay in the revised scale which reads as follows:
"7. Fixation of initial pay in the revised scale.--(1) The initial pay of a government servant who elects, or is deemed to have elected under sub-rule (3) of the Rule 6 to be governed by the revised scale on and from the 1st day of January, 1996, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:
* * *
Note 3.--Where a government servant is on leave on the 1st day of January, 1996, he shall become entitled to pay in the revised scale of pay from the date he joins duty. In case of government servant under suspension, he shall continue to draw subsistence allowance based on existing scale of pay and his pay in the revised scale of pay will be subject to final order on the pending disciplinary proceedings."
(emphasis supplied)
25. The words "existing scale" have been defined under Rule 3(2) which reads as under:
"3. (2) Existing scale in relation to a government servant means the present scale applicable to the post held by the government servant (or, as the case may be, personal scale applicable to him) as on the 1st day of January, 1996 whether in a substantive or officiating capacity."
The words "revised scale" have been defined under Rule 3(5) which reads as under:
"3. (5) 'Revised scale' in relation to any post specified in Column 2 of the First Schedule means the scale of pay specified against that post in Column 4 thereof unless a different revised scale is notified separately for that post."
26. Note 3 under Rule 7, therefore, indicates that when a government servant was on leave on 1-1-1996, he would become entitled to pay in the revised scale of pay from the date he joined the duty. However, in the case of a government servant under suspension, he would continue to draw subsistence allowance based on the then existing scale of pay and his pay in the revised scale of pay would be subject to final order on the pending disciplinary proceedings.
27. The Revised Pay Rules were framed by the President of India in exercise of the powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution. The proviso to Article 309 enables the President to make rules to regulate the recruitment and conditions of service of the persons mentioned therein. The Rules framed by the President of India in exercise of the powers conferred by the proviso to Article 309 have the force of law. Further, Note 3 to Rule 7 of the Revised Pay Rules, 1997 were not challenged.
28. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27-8-1958 it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not.
29. In view of the clear distinction drawn by the rule-making authority between the cases in which the revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the government servant is under suspension.
30. So far as the present case is concerned, the Revised Pay Rules came into force on 1-1-1996 when the respondent was under suspension and later he was dismissed from service on 4-8-2005 and hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of the Revised Pay Rules. We, therefore, allow the appeal and set aside those orders.
31. We are informed that the respondent herein has filed an appeal against the order of conviction passed by the criminal court and the same is pending consideration and if he is acquitted in appeal, the disciplinary authority would take appropriate decision on the respondent's claim for revised pay scale and the subsistence allowance in accordance with law.
30. In view of the law declared by the Apex Court that in regard to subsistence allowance, the revision of pay and allowances has no bearing, the applicant is not entitled to the subsistence allowance at the revised rate. It is accordingly declared.
31. The OA is therefore, dismissed. In regard to the disciplinary proceedings, the applicant's right to seek appropriate legal remedy is not hampered by this order. No order as to cost.