JUDGMENT
Rajesh Balia, J.
1. This appeal is against the order dated 8th December, 1997 which disposed of the writ petition of the appellant-petitioner by directing the respondents to decide the question of grant of selection scale which was pending before the respondent No. 1 for long, within three months from the date of receipt of the order.
2. The grievance of the petitioner in this appeal is that as recorded by the learned Single Judge, the petitioner had asked for three reliefs but the aforesaid order, only disposed of third relief but no order has been passed by the learned Single Judge in respect of other two reliefs. To three reliefs prayed by the petitioner in the writ petition are as under:
(a) by an appropriate writ, order or direction the part of order dated 22.3.1997 (Annexure 6) whereby a sum of Rs. 24,964 has already been recovered be quashed.
(b) by an appropriate writ, order or direction the respondent may kindly be directed to make full payment of suspension period i.e. 28.7.1990 to 30.6.1991.
(c) by an appropriate writ, order or direction the respondents be directed to give selection scale of 18 and 2 7 years of service.
3. These reliefs were claimed in the following background. The petitioner was put under suspension in connection with disciplinary proceedings commenced against him on 28th July, 1990. The order of suspension was revoked by order dated 25.8.1991. That enquiry has ultimately been dropped. The petitioner by order dated 30th June, 1992 was compulsorily retired under Rule 244(2) of the RSR. At the time of passing of such order the petitioner was working as Upper Division Clerk in the Rajasthan High Court. He challenged the order by way of S.B. Civil Writ Petition No. 479/1993 which came to be dismissed by the learned Single Judge but on appeal the order of compulsory retirement was quashed by order dated 11th March, 1996 and the appointing authority was required to decide the matter afresh according to Rules within a period of two months. Thereafter by order dated May, 8, 1999 the Registrar made the fresh order retiring the petitioner compulsorily under Rule 244(2) of the RSR retrospectively from 30th June, 1992 i.e. to say with effect from the date when the earlier order of compulsory retirement has come into force and it has been set aside. This order was set aside on departmental appeal by the Hon’ble Acting Chief Justice finding that the incumbent has already attained the age of superannuation of 58 years on August, 31, 1994 and he stood retired on that date. In that view of the matter, there could not have any order of compulsory retirement subsequent thereto with retrospective effect. Once again the order of compulsory retirement of the petitioner was set aside. In the appeal, it was directed that the petitioner shall be entitled to back wages and other benefits from 30th June, 1991 till 31 August, 1994, the date of retirement. Thus, the situation remains that the petitioner stood retired from service without there being any adverse order against him in any departmental enquiry about any misconduct for which he had been suspended. As a matter of fact, the enquiry against the petitioner having been dropped and order of compulsory retirement having been set at naught with direction to the entitlement of full emoluments, while computing the emoluments for the said period and recomputing the amount of pension payable to the petitioner-appellant the petitioner was paid emoluments of UDC, as he was drawing at the time of retirement and it was also ordered that period under which he remained under suspension shall be adjusted against extraordinary leave without pay. On the said basis amount of subsistence allowance paid to the petitioner was sought to be recovered by adjusting the same against amount computed as payable to the petitioner for giving effect to the order of the Court. Reliefs (a) and (b) relate to forfeiture of subsistence allowance and emoluments for the period of suspension Relief (c) relates to grant of selection grade on the basis of his continued service upto 31.8.1994. Vide order under appeal direction has been issued only in relation to relief (c). The question that arise for consideration is whether the period of suspension can be adjusted against leave without pay so as to deny him full remuneration of the said period and effect recovery of subsistence allowance. Subsistence allowance paid to the petitioner during the period of his suspension is being recovered from him by treating such period on leave without pay. This has been done by applying Rule 54 (3) of the RSR.
Rule 54 reads as under:
54. Re-instatement- (1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re- instated or would have been re-instated but for his retirement on superannuation while under suspension, the authority competent to order the re-instatement shall consider and make a specific order:
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where such competent authority holds that the Government Servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowances as such competent authority may prescribe.
(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose.
Note:–The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extraordinary leave in excess of three months in so far at temporary Government servants are concerned:
Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.
4. A perusal of the aforesaid rule goes to show that where a person has been reinstated, how the period during which he has remained out of employment on account of dismissal or has not discharged his duty due to order of suspension before reinstatement and how the emoluments for that period is to be settled. Sub-Rule (2) makes it abundantly clear that where the competent authority holds the Govt. servant as fully exonerated or in the case of suspension that it was not wholly unjustified, he is entitled to full pay and dearness allowance as if he had not been dismissed, removed or compulsorily retired as penalty or suspended as the case may be. In other cases the Govt. servant shall be given such emoluments, the competent authority may determine under Sub-Rule (3).
5. In the facts stated aforesaid, we are of the opinion that Sub-Rule (3) had no application. When the enquiry into misconduct was dropped altogether. There is no possibility of any finding of any misconduct on the part of the petitioner and it becomes impossible for the petitioner to prove that he is fully exonerated. There is no warrant for the proposition that no enquiry is conducted, it must be held to be a case of ‘not fully exonerated’ or suspension not ‘wholly unjustified’. If that were so, in all cases the dropping of enquiry would automatically bring the case within purview of Sub-Rule (3) and the employee be subjected to denial of remuneration of period of suspension, an act of employer not to take work from him, while master employee relationship exists. For non-discharge of duty, which is not be volition of the employee, no part of wages can be denied in this manner. Rule does not warrant this either. In fact the situation like this is not contemplated in the Rule 54. More so when the retirement of the petitioner in the public interest under Rule 244(2) was also not sustained and the petitioner retired on attaining the age of superannuation without any order adverse to him in respect of charges levelled against him for which he was suspended and that enquiry having been dropped by the disciplinary authority himself without recording any order about the fact whether the alleged misconduct falls in category of proved, disproved or not proved. Sub-Rule (3) cannot be invoked. In these circumstances, it can be equated with a case where the petitioner has been exonerated fully in the enquiry.
6. We are of the opinion that when no enquiry was conducted against the petitioner in respect of charges levelled against him and the same was dropped and order of compulsory retirement made in the public interest on dropping of the charges was also set aside and the petitioner was allowed to retire on attaining the age of superannuation in normal course, no presumption can be raised in the absence of any finding that suspension, which was revoked without holding any enquiry, was justified or fell outside the category of suspension which was wholly unjustified to take out the case out of Sub-Rule (2). Such a period has to be governed only under Sub-Rule (2) of Rule 54 quoted above and he is entitled to full salary and emoluments for the period as if he has not been suspended and is entitled to full pay and clearness allowance to which he would have been entitled had he not been suspended.
7. In reply to the writ petition which has been filed by the respondents in this appeal, the only justification for the impugned recovery from the petitioner of the subsistence allowance is stated to be because the enquiry was dropped no finding was recorded, he cannot be treated to be fully exonerated. In the case of suspension being revoked and no enquiry having been held, the question of exoneration wholly or partially is irrelevant. The relevant consideration under rule could be whether there was justification for putting the employee under suspension.
8. The full remuneration is not being paid to the petitioner for the period under suspension because of the order made by the Registrar purported to’ be made under Rule 54 of the RSR. The said order was made on 18.7.1992, which had been passed after the petitioner was compulsorily retired on 30.6.1992 in the first instance by the order of the even date. The order reads as under:
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9. Reading of the aforesaid order reveals that it is founded solely on the ground of compulsory retirement of the petitioner appellant, and dropping of the enquiry. The order of compulsory retirement has since been set aside twice over. It records no satisfaction of the competent officer that suspension of the employee was not wholly unjustified or that the delinquent is not fully exonerated. The order does not appear to have been made after affording an opportunity of hearing to the petitioner as it is necessarily required to be given. That is the law Lald down by Apex Court in M. Gopala Krishna Naidu v. State of M.P. and followed in B.D. Gupta v. State of Haryana wherein the Court referring the corresponding provisions of Rule 54 of Fundamental Rules had held that order under Rule 54 must depend on the examination by the authority of all the facts arid circumstances of the case and forming his opinion therefrom of two factual findings, whether the employee was fully exonerated, and in the case of suspension whether it was wholly unjustified. Besides an order under the Rule shall obviously affect the Govt. servant adversely if it is made under Clauses (3) and (5). Such an order resulting in pecuniary loss to the Govt. servant must be held to be an objective rather than a subjective function. The very nature of the function implies duty to act judicially. In such a case if any opportunity to show cause against such a proposed action is not given, the action is liable to be struck down as invalid. The order singularly fails to disclose either subjective or objective satisfaction about fundamental fact for making an order under Sub-Rules (3) and (5). Therefore, it has to be held invalid and no deduction or recovery of subsistence allowance be made in pursuance of such order.
10. The same principle was applied by the Gujarat High Court. While considering the issue in the light of Sub-Rules (1) & (2) of Rule 152 of the Bombay Civil Service Rules which is para mataria with Rule 54(1) and (2) of the R.S.R. a Bench of Gujarat High Court in G.N. Dave v. State of Gujarat 1971 LTC 921 speaking through P.D. Desai, J. held;
Rule 152 thus makes a clear distinction between the case of a Government servant who may have been dismissed or removed from service and reinstated and the case of a Government servant who may have been suspended from service and reinstated. In the case of suspension, Sub-Rule (2) of Rule 152 enjoins upon the competent authority to form an opinion whether the suspension was wholly unjustified or not before making a specific order regarding the pay and allowances to be paid to the concerned Government servant for the period of his absence from duty and whether or not to treat the said period as period spent on duty. The formation of the requisite opinion is made a condition precedent to the exercise of the power to make a specific order on the two matters referred to in Sub-Rule (2) of Rule 152 and, in our opinion, advisedly so.
In such a case, though the concerned Government servant may not have been fully exonerated of the charge levelled against him, it may be possible for the competent authority to reach a conclusion that his suspension from service as an interim measure pending departmental inquiry was wholly unjustified having regard to the trivial nature of the charge levelled against him or unsatisfactory evidence available to the appropriate authority in support of the charge at the time when the order of suspension was made or the unduly long time spent in holding the departmental inquiry or such other or similar grounds. It is, therefore, essential that the competent authority making a specific order under Rule 152 must, in cases of suspension, apply its mind also to the question whether or not suspension was wholly unjustified, even if it comes to the conclusion that the concerned Government servant has not been fully exonerated, and form an opinion with regard to the same and make an appropriate order under the said Rule in conformity with said opinion. An order made without due compliance with the aforesaid requirements must fail on the ground that it suffers from the vice of non- application of mind to one of the relevant factors which must enter into account before making a specific order under the said Rule.
11. The law also appears to be. well settled that when the Rules provided that if an employee is not found guilty or fully exonerated of the charges then he will be given full pay and allowances for the period of suspension, then there is an obligation on the authorities to complete the enquiry and decide the question of guilt or otherwise of the employee concerned. If the authorities withdrew the enquiry thereby depriving such employee of the opportunity to prove that charge against him was wrong and that the suspension was wholly unjustified, the employee could not be deprived of his full pay and allowances because in such event the employee cannot be held to be at fault. In Distt. Mechanical Engineer S.E. Rly. v. Kartar Singh ILR (1967) MP 988 the Madhya Pradesh High Court considered the case wherein a Railway employee was placed under suspension pending an enquiry. Thereafter authorities withdrew the enquiry. The question arose whether the employee could be deprived of his full remuneration for the period of suspension. The Court applying the aforesaid principle held that employee was entitled to full wages for the suspension period.
12. In U.O.I. v. T.L. Dakshinamurthy the Court considered the case wherein a railway servant was charged with attempting to sell gunny bags belonging to Railways and was placed under suspension. However without holding any enquiry into these charges services of petitioner were terminated by an order of discharge simplicitor under the terms of agreement. The employee was not paid full wages for suspension period. The Court while found that under the Rules an order for termination simplicitor could be made, but as the order of suspension had not been revoked, that order continued to remain in force resulting in loss of 50% of employee’s remuneration. For this reason the order was held to be punitive and violative of Article 311. The Court said:
The facts in the present case show that the railway administration placed the respondent under suspension from 8.5.1950. The result of the suspension was that the respondent was able,to get only half his salary, and the rest of it was withheld under the rules. If the order of the railway administration dated 15.6.1950 is regarded only as terminating the services of the respondent from 22.6.1950 the appellant, would not be entitled to withhold half the salary which it did by virtue of the order of suspension. Nothing was done by the order dt. 15.6.1950 to nullify the effect of the order of suspension. Under the circumstances, it must be held that the order dt. 15.6.1950 was by way of punishment.
13. In similar circumstances a Bench of Delhi High Court in U.O.I. v. Gian Singh found the employee to be entitled to full wages. The employee concerned has been suspended on being arrested on a criminal charge. Later on the criminal charge was dropped and services of the employee were terminated without making any order for revoking suspension order. While construing the order of termination to include implicitly the order revoking suspension, the Court held that the employee is entitled to full wages for suspension period. The Court said:
The inevitable conclusion, therefore, is that the services of the respondent were terminated on the basis that the order of suspension stood revoked and was ineffective. If that is the correct conclusion, then the respondent would be entitled to claim his full pay and allowances for the period of suspension, which would admittedly be the sum of Rs. 8,541.51 Paisa.
14. Reference in this connection may be made to decision of the Apex Court in B.D. Gupta v. State of Haryana. . In this case the Court made it clear that where enquiry is dropped or charge was withdrawn, the case cannot fall in the category of ‘not fully exonerated’ because by withdrawing proceedings in respect of one of the charge Govt. made it impossible for applicant to get him fully exonerated. The case arose under Rule 7.3 of Punjab Civil Service Rule which was para materia with Rule 54 of the Fundamental Rules which provided that
54. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or
When a Government servant who has been dismissed, removed or suspended is reinstated;
the revising or appellate authority may grant to him for the period of his absence from
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(b) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe.
In a case falling under Clause (a) the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so direct.
15. It can be noticed that provisions are para materia with Rule 54 of R.S. Rules with which we are concerned. The case reveals that the incumbent was put under suspension pending an enquiry in two charges. In respect of charge 1(a) he was exonerated. In respect of charge 1(b), the enquiry was withdrawn. Since no enquiry was held in charge 1(b), the employee was considered by the competent authority under Rule 54 to be falling under the case where suspension could not be termed as ‘not wholly justified’, and ordered that employee should not be paid anything more than what was paid as subsistence allowance during the period of suspension.
16. The State of Haryana contended that this was a case equivalent to a case in which an accused is not honourably acquitted, relying on an unreported decision of Supreme Court in State of Assam v. Raghava Rajgopalachari (CA Nos. 1551 and 1532/1966) decided on 6.10.1967. The Court repelled the contention and held the employee entitled to full remuneration for the period by holding as under:
This decision cannot apply to the instant case for the simple reason that Government, by withdrawing the proceedings initiated against the appellant in respect of Charge 1 (b), made it impossible for the appellant to get himself fully exonerated. Since the appellant had been exonerated of Charge 1(a) and since Charge 1(b) was withdrawn, it is impossible for Government to proceed on the basis as if the appellant has not been fully exonerated or to assume that the order of suspension was one which was not wholly unjustified.
17. Even assuming, that the petitioner is not entitled as a matter of course for full remuneration in such circumstances, and Rule 54 operates, even so the order made under Rule 54(3) is not sustainable for the aforesaid reason. At any rate, subsistence allowance paid during period of suspension is not liable to be recovered. Subsistence allowance is paid under Rule 53 of the RSR, which reads as under:
53. Subsistence grant.–(1) A Government servant under suspension shall be entitled to the following payments, namely:
(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 pay and in addition dearness allowance based on such leave salary;
Provided that where the period of suspension exceeds six 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 six months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding to 50 percent of the subsistence allowance admissible during the period of first six 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 percent of the subsistence allowance admissible during the period of the first six 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 allowance admissible from time to time on the basis of pay which the Government servant was in receipt on the date of suspension subject to the fulfilment of other conditions laid down for the drawal of such allowances.
(2) No payment under Sub-Rule (1) shall be made unless the Government servant furnishes a certificate, that he is not engaged in any other employment, business, profession or vocation:
Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement under Sub-Rule (3) or Sub-Rule (4) of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence, allowance and other allowances equal to the amount by which earnings during such period or periods as the case may be, fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.
18. This rule makes it imperative to pay subsistence allowance to an employee during the period of suspension at the aforesaid rates. This subsistence allowance is not paid provisionally. Rule 54 operates when a person is reinstated. Rule 54 is not an non- obstante Clause. It does not deal with the question of interfering with the subsistence allowance paid under Rule 53. Under Rule 53 if subsistence allowance is paid on the condition that while the master and employee relation is not terminated but is suspended temporarily during that period he does not work anywhere else. It is for providing livelihood to such an employee. Rule 54 does not envisage that any part of the subsistence allowance paid under Rule 53 is liable to be reduced or recovered in pursuance of any order made under Rule 54. Infact, it does not deal with the subject of subsistence allowance paid under Rule 53 at all. As will be seen presently, no salary accrues to the incumbent during the period of suspension and he is not entitled to any remuneration. Rule 54 requires two things to be determined whether the period during which the person remains out of employment on account of dismissal was not allowed to serve his duties can be considered as spent on duty when reinstated and whether on such reinstatement he is entitled to any remuneration paid alongwith such period of absence from duty. Obviously this is so because once person is reinstated, he also becomes entitled to remuneration for that period as per remuneration payable under the terms of employment and since he has not discharged his duties within that period, what remuneration is to be paid to him is only to be determined. Rules 53 and 54 do not simultaneously operate but operate on different fields. The only reasonable and harmonious construction that can be of Rule 54 is that on reinstatement of an employee while determining the question of treating the period spent during suspension, the question of accrual of remuneration and payable during that period is to be decided by the authority. When the question of actual payment of such remuneration for that period arises he may be entitled to only such remuneration to be paid to him which exceeds subsistence allowance already paid to him but no amount of subsistence allowance paid under Rule 53 is liable to be withdrawn or recovered.
19. The case before us squarely falls in the aforesaid ratio.
20. There is yet another reason for us to hold that no recovery of subsistence allowance can be recovered otherwise. Subsistence allowance is not paid as emolument or remuneration. It is paid for continuing the link of employer-employee during the suspension period to meet the employee’s minimal needs of sustenance. That is essential to sustain his right to life. That subsistence allowance is paid and payable irrespective of result of enquiry. Even in case, the employees is punished suspension is not revoked, it does not entitle the employer to recover any part of subsistence allowance from him by treating the period of suspension as period not spent not on duty for which no remuneration may accrue on the premise of continuity of service on reinstatement. Recovery of subsistence allowance in any circumstance would result in forfeiting his right to receive subsistence allowance in case he is exonerated, though not fully or his suspension was held to be not wholly unjustified. The subsistence allowance is payable under different set of rules, because of a particular situation arising from actions of the employer, to guarantee minimum living wage during suspension are not to be withdrawn. Neither Rule 53 provides payment of subsistence allowance subject to orders made under Rule 54, nor do the Rule 54 envisage that by making order for treating the period of suspension as not spent on duty or being adjusted against admissible leave, the subsistence allowance otherwise payable under Rule 53 during the period the employee is not required to discharge his duty, under the direction of the employer and not on his volition, shall result in recovery of subsistence allowance. Forfeiting the subsistence allowance in any circumstances would not only give rise to an anomalous situation that man punished will retain the subsistence allowance, but a person who is reinstated though found guilty of lesser charge and lessor punishment then termination of services is imposed or is not found guilty at all, shall forfeit his subsistence allowance wholly or partly by effecting recovery thereof.
21. Subsistence allowance is not payable to an employee under suspension as continued remuneration. In the absence of Rules, if suspension is not authorised by Rules, then it merely amounts employer’s direction to the employee not to work. There is no implied term of contract that an employer can suspend an employee without pay. In such circumstances, though in compliance of employers an employee may not discharge his duties, but he is entitled to full remuneration for the period of suspension. That was the principle laid in Management of Imperial Hotel New Delhi v. Hotel Workers Union and in R.P. Kapur v. Union of India and Anr. . Under this situation, the question of less or no payment to an employee simply does not arise and question of recovery will also not arise on revocation of suspension.
22. Position of law where suspension is authorised under terms of service may be stated thus. Where there is power conferred on the employer to suspend an employee, whether under express form in the contract or under the rules governing the terms and conditions of service, the order of suspension has the effect of temporarily suspending the relation of master and servant, without terminating it, with the consequence that employee is not bound to render the service and the employer is not bound to pay. In such a case employee is not entitled to receive any payment at all from the employer, unless terms of condition envisages some payment as subsistence allowance. This principle was enunciated in Management of Imperial Hotel, New Delhi v. Hotel Workers Union and R.P. Kapur v. U.O.I, and Anr. and v.P. Gindroniya v. State of M.P. . The same principle was applied in Vice Chancellor, Jammu University v. Dushiant Kumar Rampal . That is to say subsistence allowance is not the remuneration of employment, but an amount payable to an employee to make the conditions of service more humane and reasonable in the sense that it will fulfil the requirement of natural justice as a part of a fair and just enquiry before he is indicted for any misconduct.
23. In State of M.P. v. State of Maharashtra it was laid down that suspension merely suspends employee’s claim to salary. During suspension there is suspension allowance. Real effect of order of suspension is that though he continues to be in service, he is not permitted to work and is paid only subsistence allowance which is less than his salary.
24. The necessity and compulsion to pay subsistence allowance during the suspension pending enquiry can be said to be a part of essentials of fair and just procedure to conduct an enquiry which can be attributed to rule against unreasonableness and arbitrariness under Article 14 of the Constitution and right to life, which includes livelihood, under Article 21 of the Constitution. This can be seen from the fact that where subsistence allowance has not been paid to an employee under suspension during enquiry disabling him from participating in the enquiry has been held to result in violation of natural justice vitiating the enquiry itself. Reference in this connection may be made to Inderjit C. Parekh and Ors. v. B.K. Bhatt and Anr. , and Ghanshamdas v. State of M.P. .
25. Reference in this connection may also be made to State of Maharashtra v. Chandrabhen Tale . If was a case where a nominal subsistence allowance of Re. 1/- was paid to the employee under suspension during pendency of his appeal against an order of conviction because he was on bail, under proviso to Rule 151 and was not paid his normal subsistence allowance. The Court upheld the contention raised with reference to Articles 14, 16, 21 and 311(2) of the Constitution challenging the validity of such provisions providing reduced subsistence allowance which is Illusory and meaningless on the ground that reduction in normal subsistence allowance to an employee who is prohibited from engaging himself in any other vocation during the period of suspension contravenes Article 21 and also Articles 14 and 16 being unreasonable and directed that normal subsistence allowance must be paid irrespective of whether he is undergoing imprisonment or on bail, and said proviso to Rule 151 envisaging paying a nominal subsistence allowance of Re. 1/- was held to be unreasonable, unconstitutional and void.
26. Thus requirement of minimal reasonable payment as subsistence allowance during suspension is not only a mere question of term of a contract of employment, but forms part of the constitutional theme of procedural reasonableness and rule against arbitrariness. What is reasonable sum as subsistence allowance in measured in terms of normal subsistence allowance under the Rules presumably for such payment, if any. It is not paid as a part of remuneration as such but flows from a different obligation. In these circumstances, on reinstatement whether such allowance can be withdrawn or adjusted in such a manner so as to result in affecting any recovery from such allowance? Rule does not provide expressly for any such recovery to be made from subsistence allowance already paid. The contention is that since under Rule 54(3) an order has to be made for treating the period under suspension for treating it to be on duty or otherwise and consequence on the entitlement to remuneration for such period on that basis impliedly authorises recovery of subsistence allowance, where full remuneration does not become payable to the employee reinstated.
27. We are unable to read any such implied authority to reduce or annihilate the amount of subsistence allowance, and recover the same by adjustment against remuneration that becomes payable to the employee on reinstatement or in any other manner. Rule 54 merely provides for determining the question how the period under suspension is to be treated on reinstatement and remuneration becomes payable in accordance with such order. It can only mean that where no remuneration become payable as per the order made under Rule 54, the employee shall not be paid anything more than subsistence allowance, If any remuneration becomes payable to such reinstated employee, the employee is only entitled to additional payment of such remunerations to the extent it exceeds subsistence allowance already paid. But in no circumstances subsistence allowance payable as such under Rule 54 of RSR can be reduced so as to effect recovery of any part of subsistence allowance. Therefore, the amount of subsistence allowance ordered to be adjusted because period of suspension has been ordered to be adjusted against leave without pay, meaning thereby no remuneration is payable for that period, makes the impugned order as an order of effecting recovery of subsistence allowance, not against any additional sum payable by way of remuneration for that period, but by way of denying the subsistence allowance in lien of reinstatement. That in our opinion will be an order punitive in nature and not authorised by law and against the constitutional mandate.
28. Therefore, the recovery of suspension allowance paid to the appellant petitioner for the period of suspension by adjusting the same against remuneration that became payable to the appellant because of the direction contained in order setting aside the order of compulsory retirement must be held to be void.
29. As discussed above, we are unable to sustain the contention raised by respondents for denying the full pay and dearness allowance for the period of suspension by adjusting the period of suspension against leave without pay under Rule 54(5). In the facts and circumstances of the case petitioner’s case is governed by Rule 54(2) of the Rules.
30. As a result, this appeal is allowed. The reliefs (a) & (b) claimed by the petitioner in his writ petition referred to above are granted and the respondents are directed to make him full payment of salary and dearness allowance for the period of suspension viz. from 28.7.1990 to 30.6.1991 and are restrained from recovering any amount from petitioner paid to him by way of subsistence allowance and if any amount has been recovered in pursuance of the order dated 22.7.1997, the same shall be refunded. On the amount of difference between the full salary and dearness amount and the amount of subsistence allowance already paid to the petitioner for the period of suspension which shall become payable to the petitioner as a result of this order, the petitioner shall further be, entitled to interest @ 12% per annum on such amount with effect from the date of filing of the writ petition until the payment is made. So far as relief No. 3 is concerned, we are in agreement with the order made by the learned Single Judge. The writ petition stands disposed of as above.
31. There shall be no orders as to costs.
