- (1.) Heard learned counsel for the parties.
(2.) Learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 7 whereby this Court has decided Service Single No. 4849 of 2013 ( Jamuna Deen Awasthi vs. State of U.P.and others ) vide judgment and order dated 15.9.2017, for the brevity the aforesaid order dated 15.9.2017 is being produced as under : "Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. The petitioner was placed under suspension vide order dated 25.8.1973 by the Commandant 27th Bn. P.A.C., Sitapur on account of pendency of a criminal case pursuant to a first information report registered under Section 147 , 148 , 149 , 307 , 120 , 409 , 332 IPC and 6 P.A.C. Act and 43 of D.I.R. Act being case crime No. 82A of 1973. During the pendency of the criminal proceedings the petitioner attained the age of superannuation on 30.11.2004 and during this entire period he was paid subsistence allowance in accordance with Rules. The criminal proceeding ended in acquittal vide judgement dated 11.12.2001 passed by the Judicial Magistrate (First), Lucknow and thereafter the petitioner approached the respondents for payment of arrears of salary and retiral benefits failing which he approached this Court in Writ Petition No. 2449 of 2011 which was disposed of vide judgement and order dated 19.5.2011, directing the opposite parties No. 2 and 3 to pass appropriate speaking order. It is pursuant thereto the impugned order dated 29.3.2011 has been passed by the Commandant 27th Bn. P.A.C. Sitapur denying arrears of salary to the petitioner for the period of suspension, i.e., 25.8.1973 to 30.11.2004 only on the ground that he never furnished certificate of non employment elsewhere during the aforesaid period of suspension hence he is not entitled for the arrears of salary though after the date he attained the age of superannuation he is entitled for pension and directions have been issued for payment thereof. Learned counsel for the petitioner submitted that the above decision is wholly illegal and not in accordance with the Rules. Learned Standing Counsel, however, submitted that under Fundamental Rule 53(2) a Government servant during the period of suspension is required to furnish a certificate of non employment but since the petitioner never furnished any such certificate, therefore, there is no error in the impugned order and the writ petition is liable to be dismissed. Having heard learned counsel for the parties and perusing the record, in my view, this writ petition deserves to be succeed. It is not in dispute that during the period of suspension, i.e., 25.08.1973 to 30.04.2004 the petitioner was regularly paid subsistence allowance in accordance with the Rules, i.e., Fundamental Rule 53, which reads as under: "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:- (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 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 per cent of the subsistence allowance admissible during the period of 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 per cent 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 allowance admissible from time to time on the basis of pay, of which the Government servant was in receipt of the date of suspension: Provided that the Government servant shall not be entitled to the compensatory allowances unless the said authority is satisfied that the Government servant continues to meet the expenditure for which they are granted. (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 or removed from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal, 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 his 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 and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him."
(3.) Sub-rule 2 of Fundamental Rule 53 provides that no payment under sub-rule 1 shall be made unless the Government servant furnish a certificate that he is not engaged in any other employment, business, profession or vocation. The above certificate, therefore, is required before making payment under Fundamental Rule 53(1),i.e., subsistence allowance. In the case in hand the subsistence allowance was already paid to petitioner meaning thereby the respondents admitted the stand of petitioner that he is not employed elsewhere during suspension period. Having done so it does not lie in the mouth of the respondents to deny arrears of salary for the period of suspension when the proceedings ended in his acquittal only on the ground that sub-rule 2 is not complied with and non employment certificate was not provided though he was already paid subsistence allowance for which the condition precedent was the submission of non employment certificate. Once subsistence allowance was paid meaning thereby the respondents admitted that such compliance is there. No other reason has been given by the respondents to deny arrears of salary to the petitioner pursuant to order of suspension resulting in reinstatement of petitioner due to his acquittal in the criminal case. Where an employee is placed under suspension on account of any criminal case if the criminal case ultimately results in acquittal the arrears of salary cannot be denied to the employee concerned.;