S.H.A.Raza, J. - (1.) A short question 'which is involved inf this writ petition is as to whether the suspension order having merged in the dismissal order and no subsequent order of suspension having been passed to place the petitioner again on suspension with effect from the date of order of dismissal it Is open to the opposite party to treat the petitioner under suspension and reduce the payment to 1/4th of his salary.
(2.) THE facts giving rise to this petition are that the petitioner was charged with an offence involving embezzlement of Rs. 37/00/- and on 17-6- 1969 a FIR was lodged against the petitioner. THE police during the investigation found that one Sri P. L. Cnaturvedi who was then working on the post of Deputy Director was also involved in the offence of the said embezzlement, f he police took cognizance of the offence and charge sheet was submitted against the petitioner as well as Sri P. L. Chaturvedi. THE petitioner as well as Sri Chaturvedi are standing trial for the said offence of embezzlement. Lateron a departmental enquiry was contemplated against the petitioner alone. It is pertinent to mention here that by means of the order dated 9_6-l969 the petitioner was suspended and after disciplinary enquiry he was dismissed from service with effect from 7-6-1975. No subsequent order of suspension was ever passed placing the petitioner under suspension with effect from the date of order of dismissal. Aggrieved, against the order of dismissal, the petitioner filed a claim petition in the year 1978 questioning the validity and legality of the order of dismissal and also prayed for quashing of the suspension order though it was not necessary as the suspension order merged with the dismissal order. On 21-10-1987 the U. P. Public Services Tribunal allowed the claim petition and quashed the order of dismissal dated 7-6-1979, The Tribunal quashed the enquiry report as well as the dismissal order and directed that the petitioner would be deemed to be in service and entitled to receive allowances and subsistence allowance as the department may decide. The petitioner has claimed that after enquiry report and dismissal order was quashed, he became entitled to full salary with effect from 9-7-1969 i.e. the date when he was suspended. It was averred that during the entire disciplinary proceedings the petitioner was not paid a single shell as subsistence allowance inspite of the fact that he had completed all the formalities required for drawing subsistence allowance.
(3.) RULE 49A of Classification, Control and Appeal RULEs, 1930, reads as under : "49-A (1). A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority Provided that in the case of any Government servant or Class of Government servants, not belonging to a State Service, the appointing authority may delegate its power under this sub-rule to next lower authority Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this sub-rule : Provided also that in the case of a member of a judicial service (within the meaning of Article 236 of the Constitution), the Governor may delegate his powers under this sub-rule of the High Court : (I-A). A government servant in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Appointing Authority under whom he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. (2) A Government servant shall be deemed to have been placed or, as the case may be continued to be placed under suspension by an order of the appointing authority- (a) with effect irom the date of his detention, if he is detained in custody whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours; and (b) with effect from the date of his conviction, if in the [event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation-The period of forty eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment if any, shall be taken into account. (3) where a penalty of dismissal or removal &from service imposed upon a Government servant is set-aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the 'original order of dismissal or removal; (b) if he was not under suspension, he shall if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date of the original order of dismissal or removal ; Provided that nothing in this sub-rule shall be construed as affecting the power of the competent authority, in a case where a penalty of dismissal or removal from service imposed upon a Government servant is set-aside in appeal or. on review under these rules on grounds other than the merits of the allegations on which the said penalty was imposed but the case is not remitted for further inquiry or action or with any directions, to pass an order of suspension pending further inquiry against him on those allegations, so, however, that any such suspension shall not have retrospective effect. (4) when a penalty of dismissal or removal from service imposed upon a Government servant is set-aside or declared or rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further Inquiry against him on the allegations on which the penalty of dismissal or removal was originally impose whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted- (a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on the from the date of the original order of dismissal or removal ; (b) if he was not under such suspension, he shall, if so directed by the Appointing Authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal. (5) (a) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until It is modified or revoked by any authority specified in sub-rule (1). (b) where a Government servant is suspended or is deemed to have been suspended whether in connection with any disciplinary proceeding or otherwise and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings. (6) Subsidiary Rule 199, Financial Handbook, Volume II, Parts II to IV, shall cease to apply to Government servants governed by this rule. N. B.- As a rule, suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Suspension, where deemed necessary, should, as far as possible, immediately precede the framing or charges and their communication to the Government servant Charged. This note has been deleted vide Notification No. 18/3-1973 Appointment- 3, date 23rd March. 1974.";