JUDGMENT
Anil Dev Singh, J.
(1) This is a writ petition whereby the petitioner seeks quashing of the order dated February 26, 1991 passed by the Commissioner(Slum & J.J.Wing), Delhi Development Authority, declining to pay the petitioner anything over and above the subsistence allowance already drawn by him during the period when he was under suspension and not treating the same as spent on duty even though suspension had been revoked on July 25, 1989. The facts giving rise to this petition are as under:-
(2) The petitioner was appointed as Ldc in the pay scale of Rs.950-1500 on 19th October, 1974 in the Slum and JJ. Department of the DDA. On January 22, 1983 the petitioner was promoted as UDC. However, on September 1, 1984 he was suspended in contemplation of a disciplinary enquiry On July 25, 1989 the suspension of the petitioner was revoked but without prejudice to the departmental proceedings anticipated against him for which he was earlier placed under suspension. Thereafter on April 9, 1990 the petitioner was served with a charge sheet. Since the petitioner was not paid full salary for the period of suspension, he represented to the authorities but his representation was rejected on February 26, 1991 by the Commissioner, Slum & J.J. Wing of the Dda who was of the opinion that suspension having been revoked pending finalisation of the disciplinary proceedings against the petitioner, he shall not be paid anything over and above the subsistence allowance already drawn by him during the period of suspension and that period was not to be treated as spent on duty for any purpose. This order was however, made subject to review in terms of sub-rule (6) of Fr 54B after conclusion of the proceedings and further orders were to be made according to the provisions of sub-rules (3) or (5) of Fr 54 B as the case may be. The petitioner was however, given a further right of representation to the Commissioner. Pursuant thereto the petitioner filed a representation against the aforesaid order of the Commissioner on March 5, 1991 which was followed by a number of reminders in this regard. He also sent a representation to the Joint Secretary(Finance), Govt. of India, Ministry of Urban Development, but his grievance was not redressed and he was informed by the Under Secretary to the Govt. of India by his letter dated August 2, 1991(page 45 of the paper book) that his representation has been forwarded to the concerned who will take suitable action and inform him of the same. Thereafter the petitioner again made several representations but without any effect. In the mean time the Slum Wing of the Dda was transferred to the Mcd, respondent No.4 with effect from September 18, 1992. Since the petitioner failed to receive the relief from the respondents, he filed the instant writ petition on January 27, 1993 in which rule was granted on January 29, 1993. To the writ petition the respondent-MCD filed a counter affidavit, wherein a stand has been taken that the questions relating to the grant of pay and allowances to the petitioner for the period during which he remained under suspension i.e. from September 1, 1984 to July 24, 1989 and the treatment of the period as on duty under Fr 54B are premature as these matters can be finally determined on conclusion of the departmental proceedings which are pending against him. From the counter affidavit it also appears that the representation of the petitioner against the letter dated February 26, 1991 was considered by the Commissioners. & J.J. Wing), Delhi Development Authority and the same was rejected by his order dated August 14, 1991 on the ground that according to sub-rule (3) of Fr 54B, full pay and allowances for the period of suspension can be paid only when the suspension was considered wholly unjustified. The order further stated that the suspension of the petitioner was revoked with a clear stipulation that the revocation of suspension was without prejudice to the departmental proceedings contemplated against him for which he was placed under suspension. He was also of the opinion that the petitioner can not be paid anything over and above the subsistence allowance already drawn by him during the period of suspension from September 1, 1984 to July 24, 1989 and that the period was not be treated as spent on duty for any purpose. It was also clarified that this order was provisional being subject to review in terms of sub-rule 6 of Fr 54B after conclusion of the departmental proceedings, when final order will be made according to the provisions of sub-rule (3) or (5) of Fr 54B as the case may be.
(3) In order to appreciate the controversy between the parties it will be convenient to set out Fundamental Rule 54B in so far as it is relevant to the case in hand:-
“(1)When a government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension the authority competent to order reinstatement shall consider and make a specific order –
(A)regarding the pay and allowances to be paid to the government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement) as the case may be; and
(B)Whether or not the said period shall be treated as a period spent on duty.
(2)Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him, are concluded, the period between the date of suspension and the date of death shall be treated as duty for ail purposes and his family shall be paid the full pay and allowance for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3)Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended;
PROVIDED that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation(within 60 days from the date on which the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay arid allowances as it -may determine.
(4)INa case falling under sub- rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5).In cases other than those falling under sub-rules (2) and (3) the Government shall, subject to the provisions of sub-rule (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent . authority may determine, after giving notice to the government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice.
(6)Where suspension is revoked pending finalisation of the disciplinary or,the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
(7)…………………
(8)The payment of allowances Under sub-rule (2), sub-rule (3) or sub rule
(5)shall be subject to all other conditions under which such allowances are admissible.
(9)The amount determined under the proviso to sub-rule (3) or under sub- rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.”
(4) Thus according to sub-rule (1) of Fr 54B a duty is cast on ‘the competent authority ordering reinstatement to apply its mind and make a specific order regarding the pay and allowances to be paid to the Government servant for the period intervening between the dates of his suspension and reinstatement. The- order regarding pay and allowances is a consequential order which is to be passed on the reinstatement of a Government servant. The requirement of passing such an order is couched in mandatory terms, which is indicated by the use of the word “shall” in sub-rule (1) of Rule 54B. Though the sub rule makes no express mention of the time imperative within which an order is to be made, the requirement for making such an order, however, is clearly indicated from its tenor, which shows that it should be made on reinstatement of a government servant. The decision regarding reinstatement of a government servant and the decision to pay or not to pay his full pay and allowances for the period he remained under suspension are parts of the same integrated process. In any event the gap between the two decisions should not be unreasonably long.
(5) In the present case the suspension of the petitioner was revoked and he was reinstated on July 25, 1989 without prejudice to the contemplated disciplinary enquiry against him but no order with regard to payment to him of pay and allowances for the period of his suspension was passed until February 26, 1991, when his representation for payment of the full pay and allowances for the said period was rejected. It should be clearly understood that sub-rule (1) of Fr 54B does not permit such a long aad inordinate delay in passing the order relating to payment of pay and allowances to the Government servant, who is reinstated on revocation of his suspension. If such an obligation is not imposed, the question of payment of pay and allowances for -the period during which the Government servant was kept under suspension will remain in limbo and orders in this respect may not be passed for a considerable long period of time. Such a situation must be avoided. It has already been noticed that the petitioner was suspended on September 1, 1984 in anticipation of disciplinary enquiry against him, and when his suspension was revoked after five years in 1989 till .then even a charge sheet had not been served on him, which ultimately came to be served only on April 9,1990.
(6) It is not the case of the respondent that the petitioner contributed in any way to the delay in the initiation of the disciplinary proceedings against him. There is no explanation whatsoever in the counter- affidavit as to why it took about six years for the disciplinary proceedings to commence. It is well settled that the disciplinary proceedings commence when a delinquent employee is charge sheeted.(See: Union’ of India vs. K.V .Jankiraman It 1991 (3) Sc 527. Therefore, when the suspension of ‘the petitioner was revoked, there was no disciplinary enquiry pending against him. There is no reason therefore, why the petitioner should have been deprived of his full pay and allowances for the period of his suspension on his reinstatement.
(7) In this background, there is need to examine other provisions of the Fr 54B. According to sub-rule (3) thereof if the competent authority comes to the conclusion that the suspension of the employee was legally unjustified, in that event he has to be paid full pay and allowances for the period he remained under suspension, to which he would have been entitled, had he not been suspended. In other words, normally when the suspension is without justification, the employee cannot be denied any portion of his pay and allowances for the period of his suspension and under sub-rule (4) the period of suspension has to he treated as one spent on duty but this is subject to sub rule (8) and to the exception appended as a proviso to ‘the sub-rule (3), which empowers the competent authority to determine an amount less than the whole amount of pay and allowances payable to the employee on his reinstatement after revocation , of his suspension, even in a case of unjustified suspension if it comes to the conclusion that the termination of disciplinary proceedings was delayed by him.
(8) Cases which do not fall in sub-rules (2) and (3) ‘are governed by sub-rule (5) under which the competent authority may determine the extent of salary and allowances which may be paid to the employee for the period spent on suspension. Therefore, where sub-rule (5) is applicable, the employee can be deprived of such portion of his salary or allowances for the period of his suspension as the competent authority may determine. But such a decision cannot be taken unless the employee has been given notice in regard to the amount proposed to. be paid to him and his representation has been considered in that regard. It is significant to note that sub rules (3) and (5) apply to a case of an employee whose suspension is revoked after finalisation of disciplinary proceedings.
(9) In the instant case sub-rules .(3) and (5) are not applicable as suspension of the petitioner was not revoked after finalisation of the disciplinary proceedings but was revoked even before the initiation of disciplinary proceedings. According to sub-rule (6) when suspension is revoked before finalisation of a pending disciplinary or court proceeding any decision taken under sub-rule (1) is subject to review by the competent authority after conclusion of the proceeding according to sub-rule (3) or sub-rule (5) depending upon the out come of the enquiry. But even this Rule is not .applicable to the case of the petitioner as the same comes into operation when suspension is revoked pending finalisation of disciplinary proceedings. Admittedly in the present case suspension was revoked when disciplinary proceedings were not pending. The service of the charge sheet on the petitioner and the departmental proceedings are events, which followed after about a year and a half of the revocation of suspension of the petitioner. All this impels me to hold that the order of the Commissioner (Slum & J.J. Wing) dated February 26, 1991 to the extent it deprives the petitioner of his pay and allowances during the period when he was under suspension, was illegal. I should, however, not be understood as holding that in every case when an order for payment of pay and allowances is not passed as soon as the order of reinstatement is made, the employee would be entitled to full pay and allowances during the period of suspension. Each case must depend upon its own facts and circumstances. I would also like to clarify that I am taking this view having regard to the peculiar facts and circumstances of the instant case namely that before his reinstatement; the petitioner remained suspended for more than six years without the disciplinary proceedings having been commenced against him. The provisional decision to deny him the salary during the period of his suspension was taken after eighteen months of the order of reinstatement. Therefore, the competent authority acted illegally in directing that the petitioner will not be paid fall pay and allowances for the period of suspension till the disciplinary proceedings are finalised. 10. In view of the aforesaid discussion, the writ petition succeeds and the rule is made absolute. The respondents are directed to make full payment of pay and allowances to the petitioner to which he would have been entitled for the period between September 1, 1984 and July 25, .1989, had he not been suspended, after deducting the subsistence allowance received by him during the period of suspension. The payment to the petitioner will, however, be without prejudice to the disciplinary enquiry which has been initiated against him.