Decided on July 23,1975



- (1.) The petitioner, Shri Nand Kishore Tewary, was a Company Commandant of the 32 Battalion of the Central Reserve Police and at the relevant time was posted at Chizami in the State of Nagaland. There he was implicated in a case under Section 302 of the Penal Code, being Case No. 5 (8)/64 of the Phek Police Station in the District of Kohima, Nagaland. He was arrested and detained in custody by the Nagaland Police on 24-9-1964. So he was placed under suspension with effect from that date vide Memo. No. 132/2/6 5-AVD dated 9-2-1965 of the Ministry of Home/ Affairs, Government of India. Eventually, the case came up for trial before an Additional Sessions Judge at Shillong. The case was protracting. The State of Nagaland, the prosecutor in the case, made an application before the Court for permission to withdraw the case "for reasons of State" and the learned Additional Sessions Judge, allowed to withdraw the case and by his order dated 11th May, 1968, dismissed the case and acquitted the petitioner, by the following order: "Considered the withdrawal petition. Prosecution wants to withdraw the case for reasons of State. There are divergent views as to whether such reasons, extraneous to the case, are sufficient for withdrawal of a case. Nevertheless, all my endeavours to bring the case to an early end have become futile and I had to watch painfully the process of its prolongation. Now when the State withdraw the case further prolongation, it appears to me, will help nobody. Under the circumstances I allow withdrawal of the case. The case is dismissed, and the accused is acquitted under Section 494, Criminal Procedure Code. Sd/- M. C. Mahajan,. Additional Sessions Judge, Shillong."
(2.) The petitioner was then served with a notice bearing No. 132/2/65-AVD dated 29th August, 1968, by respondent No. 1. In that notice it was stated that the petitioner was deemed to have been placed under suspension with effect from 24th September, 1964, on the ground that he was arrested by the police on that date and detained in custody for a period exceeding 48 hours in respect of certain offences under investigation by the Nagaland Police, and that the President was "provisionally satisfied that in the circumstances of the case, it cannot be held that the suspension of Shri Tiwary was wholly unjustified". In exercise of the powers conferred by Fundamental Rule (hereinafter F. R.) 54, it was further stated that the President considered that the petitioner's "pay and allowances for the period of suspension, namely, 24-9-1964 to 28-6-1968 (both days inclusive) should be restricted to the subsistence allowance already drawn by him and that the period of suspension shall not be treated as one spent on duty for any purpose". By that notice the petitioner was given an "opportunity of making a representation against the action proposed above for consideration by the President." The petitioner submitted his representation, a copy of which is annexed to the petition marked as Annexure VI. Thereafter, on a consideration of the representation the impugned order No. 132/2/65-AVD dated 31st March, 1969, of the Ministry of Home Affairs, Government of India was passed. By this order "The President considers that the suspension of Shri Tiwary was justified and hereby orders that Shri Tiwary's pay and allowances for the period of suspension from 24-9-1964 to 19-5-1968, should be restricted to the subsistence allowance already drawn by him and the period of suspension should count as on duty for pension only. The President further orders that for the period of suspension from 11-5-1968 (the date of order of the Court acquitting Shri Tiwary) to 28-6-1968, Shri Tiwary should be given full pay and allowances and this period be treated as spent on duty for all purposes".
(3.) This order (vide Annexure VII) has been impugned by the petitioner by this application under Article 226 of the Constitution.;

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