- (1.) SUNIL Ambwani, J. By an order dated 13-6-1989 passed by Manager, Rashtriya Kisan Inter College, Shamli, District Muzaffarnagar, in pursuance to the letter issued by the District Inspector of Schools, Muzaffarnagar on 3-6-1989 the petitioner was suspended on account of his involvement in crime case No. 43 of 1989, under Section 396 I. P. C. and crime case No. 47 of 1989, under Section 302 I. P. C. Sessions Trial No. 241 of 1990 and 16 of 1990, respectively were initiated against the petitioner under Section 395/396 I. P. C. and Section 302 I. P. C. respectively.
(2.) IT is alleged by learned Standing Counsel that the miscellaneous case No. 21 of 1990 for giving false evidence ended in conviction and against which the petitioner had preferred an appeal being Appeal No. 330 of 1991, which was allowed on July 5, 1999. However, it was provided in the judgment dated 5-7- 1999, Annexure-11 to the writ petition, that considering the facts and circumstances of the case the conviction will not adversely affect the service career of the accused. After acquittal in the aforesaid Sessions Trial on 16-8-1990, the petitioner approached the management of the college for joining, but the college did not take him back in service. Suspension allowance was given to petitioner only up to August, 1990. Petitioner filed a Writ Petition No. 1340 of 1992, which was decided on 11-8-1998, vide Annexure-3 to the writ petition, in which considering the facts and circumstances of the case, the District Inspector of Schools was directed to revoke the order of suspension, provided no appeal is pending against the said decisions in said two Sessions Trials i. e. S. T No. 16 of 1990 and 241 of 1990 respectively. It was further directed that in case no steps are taken by respondents in respect of Criminal Misc. Case No. 21 of 1990, in that event the petitioner should be reinstated and all service benefits that might be available to him under the law, may be paid to him as early as possible. Thereafter, petitioner made a representation dated 1-9-1998 before respondent No. 4 to consider and decide his case in terms of the directions given by this Court vide its order dated 11-8-1998. By order dated 16-11-1998, Annexure-5 to the writ petition, the District Inspector of Schools, Muzaffarnagar allowed the petitioner's representation dated 25-3-1991, with regard to resignation given by the petitioner after recording a finding that his resignation was not in accordance with Regulation 30, of Chapter III under the U. P. Intermediate Education Act, 1921, which provides that the resignation given by any employee against which a disciplinary proceedings are pending, can not be accepted without prior approval of District Inspector of Schools. The petitioner thereafter filed another Writ Petition No. 13859 of 1999, which was decided on 8-7-1999 with a direction to the authorities concerned to decide petitioners representation dated 18-3-1999 within a period of two months. The District Inspector of Schools has decided the said representation of the petitioner vide impugned order dated 11-1-2000, Annexure-10 to the writ petition, by which arrears of pay and other allowances for period of suspension i. e. from 9-5-1989 to 11-8-1998, have been denied to petitioner giving reasons that petitioner did not report for joining when he was released on bail in the criminal cases on 4-8-1989 and could not produce any proof of the fact that he was prevented from joining, or that he was forced to write resignation letter on 14-1-1981.
(3.) I have heard Sri Pradeep Saxena, learned counsel appearing on behalf of the petitioner and Sri K. K. Chand and learned Standing Counsel representing the respondents. Petitioner has relied upon Regulation 42 of Chapter III under the U. P. Intermediate Education Act, which reads as under:- " (42) A suspended employee if reinstated, shall be paid the difference between his salary and subsistence allowance already received by him. " It has been submitted by Sri Pradeep Saxena Counsel for petitioner that this Regulation does not leave any option with disciplinary authority or the District Inspector of Schools to withhold or to reduce the salary, which the petitioner is liable to be paid upon his reinstatement. In this context, it is relevant to mention that under Rule 54 (2) of the U. P. Fundamental Rules, Chapter II, paras 2 to 4 whenever a Government servant is reinstated or in the case of suspension, it is held that it was wholly un-justified, the Government servant shall be given full pay and allowances of which he would have been entitled had he not been dismissed, removed or suspended, as the case maybe. This sub-rule 2 has been interpreted by this Court, that in reaching such decision, an enquiry is to be made giving opportunity to the employee to show firstly that the suspension was wholly un-justified, and secondly he was not gainfully employed anywhere during the period of suspension. However, in the case of an employee of aided college, Regulation 42 will prevail and unless this Regulation is amended, the suspended employee becomes entitled to get difference between his salary and subsistence allowance already received by him. In the present case, the petitioner was given suspension allowance up to August, 1990 and thereafter even suspension allowance was not paid. He was reinstated on 11-8-1998. He, therefore became entitled to the difference between the subsistence allowance and amount equal of pay for the period he received suspension allowance and thereafter full pay.;