ORDER
Mukundakam Sharma, J.
1. This writ petition is filed by the petitioner praying for a direction to the respondent to pay to the petitioner full pay and allowances from the date of his suspension to the date of his reinstatement and also to treat the entire period as spent on duty, i.e. w.e.f. September 9, 1974 to May 15, 1978.
2. The petitioner while working with the respondent Corporation was arrested on September 9, 1974 in connection with a criminal case instituted under Sections 302/34 of the Indian Penal Code. After filing of a charge-sheet in the said criminal case, trial was started and finally the petitioner was convicted in the said criminal case under Section 304 Part I, Indian Penal Code by a judgment and order dated December 13, 1976 and he was sentenced to undergo rigorous imprisonment for a period of eight years by the Additional Sessions Judge, Delhi. Being aggrieved by the aforesaid judgment and order of conviction, the petitioner filed an appeal in this Court. The said appeal was taken up for consideration and by judgment and order dated November 21, 1977 the petitioner was acquitted of the charges on benefit of doubt.
3. In view of the institution and registration of the aforesaid criminal case against the petitioner, he was put under suspension w.e.f. September 9, 1974. The petitioner continued to the under suspension till November 26, 1977 when the petitioner was removed from service. It is stated that during the aforesaid period of his suspension the petitioner was paid 50% of his salary as subsistence allowance. It is to be pointed out at this stage that the aforesaid subsistence allowance was paid by the respondent only up to October 21, 1976. However, after removing the petitioner from service by order dated November 26, 1977 the petitioner was allowed to rejoin his services by an order dated May 9, 1978 pursuant to which the petitioner rejoined his duties on May 16, 1978.
4. The present petition is, therefore, filed by the petitioner, contending inter alia that although he was acquitted on benefit of doubt from the criminal case by the judgment and order passed by the High Court on November 21, 1977, the action taken by the respondent on November 26, 1977 to remove him from service was illegal and, therefore, the petitioner is entitled to receive full salary and allowance during the aforesaid period, i.e. from November 21, 1977 to November 26, 1977? The second submission is that the petitioner is also not paid his entire subsistence allowance in terms of the orders passed by this Court on May 23, 1984 and order dated October 27, 1977 in CWP No. 602/1977. It was also sought to be contended on behalf of the petitioner that before issuing any order, under fundamental Rule 54 it was incumbent on the respondent to issue a show-cause notice and to take a decision in accordance with the aforesaid provision. Only after consideration of any reply filed by the petitioner as against such show-cause notice, action could be taken by the respondent and the same having not been done in the present case, the action is illegal and without jurisdiction. However, during the course of submissions the Counsel restricted his submission with regard to the decision taken by the respondent under Fundamental Rule 54(b). Having regard to the aforesaid submissions I have heard the learned Counsel appearing for the respondent also.
5. The petitioner was convicted in the criminal case instituted against him and he was convicted under Section 304 Part I of the Indian Penal Code by an order dated December 13, 1976. However, on the appeal filed by the petitioner he was acquitted on benefit of doubt by a judgment and order passed by the High Court. The said order was passed by the High Court on November 21, 1977. Therefore, the petitioner could not have been removed from service in view of his conviction in the criminal case, for the petitioner stood acquitted on benefit of doubt on November 21, 1977 and, therefore, there was no scope for the respondent to pass an order against the petitioner removing him from service on November 26, 1977. The petitioner is, therefore, held to be entitled to full pay and allowances w.e.f. November 26, 1977 to May 16, 1978. The petitioner is directed to make the aforesaid payment to the petitioner in accordance with law.
6. The next issue is with regard to the issue of regularisation of the service of the petitioner for the period during which he was under suspension. There can be no denial of the fact that during the period of suspension an employee is entitled to receive subsistence allowance which at the minimum in the present case should be 50% of the salary and allowances receivable by the said employee. Fundamental Rule 53 also provides that in case of prolongation of the period of suspension the employee shall be entitled to get a review of his order of suspension. However, in the present case no such review had taken place and, therefore, at this distant date it will not be possible to ascertain as to whether or not there was any case of review made out for enhancement of the subsistence allowance to be payable to the petitioner. However, it cannot be denied that the petitioner is atleast entitled to 50% of the subsistence allowance which was required to be paid to him during the period of his suspension. The respondent has passed an order under Rule 54(b) of the Fundamental Rules that the petitioner would not be entitled to full any and allowances for the period of his suspension and the said position is reiterated in the counter-affidavit filed by the respondent. It is pointed out in the said counter-affidavit that the Disciplinary Authority has restricted the subsistence allowance of the petitioner to 50% after serving him with a show-cause notice and giving him full opportunity of being heard. In my considered opinion, since a show-cause notice was issued and the petitioner was given a reasonable opportunity of being heard, the said order passed by the Disciplinary Authority restricting the subsistence allowance of the petitioner to 50% and thereby regularising the service under suspension cannot be faulted.
7. However, Counsel appearing for the petitioner has pointed out another mistake committed by the respondent. It is pointed out by him that the respondent has denied to the petitioner the benefit of the increments which the petitioner is otherwise entitled to for the period during which he was under suspension. The aforesaid action of denying any increment during the period of his suspension cannot be said to be in accordance with law, for withholding and forfeiting the increments even for any period would amount to imposition of punishment as the same is included within the list of punishment provided for under the discipline and appeal rules, The petitioner was put under suspension due to Ms involvement in a criminal case and subsequently by the order passed by the High Court he stood acquitted of the charges on benefit of doubt. Therefore, no punishment could be awarded to the petitioner either by way of withholding of the increment or by way of its forfeiture. The respondent could not have denied to the petitioner the aforesaid benefit of payment of increments for the period during which the petitioner was under suspension. Counsel appearing for the respondent submits that the said relief which is sought for now was not pleaded in the writ petition. However, the said plea which is now raised is a legal issue which could be decided on the basis of records available and goes to the root of the matter.
8. Accordingly, the writ petition stands allowed to the aforesaid extent. In the light of the discussion as aforesaid, the following directions are issued to the respondent:
(1) The respondent shall pay to the petitioner the entire pay and allowances which he was otherwise eligible to receive from the period from November 26, 1977 to May 16, 1978 minus the subsistence allowance, if any, received by the petitioner for the aforesaid period.
(2) The increments which the petitioner was entitled to receive in due course during the period of his suspension shall be paid to the petitioner in accordance with law, and his pay shall be so fixed for the subsequent period of his service. 9. The benefit as aforesaid shall be paid to the petitioner within two months from the date of receipt of copy of this order. In case the payment is not made within a period of sixty days from the date of receipt of copy of this order, the petitioner shall be entitled to recover interest at the rate of 12% per annum from the said date from the respondents till date of payment.