- (1.) THIS appeal is preferred against the judgment and decree passed by the Subordinate Judge, Cooch Behar in Title Suit No. 5 of 1980 dated december 17, 1982 and decree dated January 7, 1983 respectively.
(2.) THE plaintiff filed the suit for declaration and recovery of arrear salary and allowance, compensation and also for permanent injunction.
(3.) THE facts of the case, in short, are as follows :-The Respondent (Plaintiff) appointed as a postman in the Postal Department, Government of India in the year 1951 was promoted as a Clerk in 1962. In the year 1967, the respondent was posted at Dinhata post office. On 27-9-1967. a Registered bag was closed by H-14 out (RMS Running Section) for delivery of the same to the Dinhata Post Office. On 28-9-1967 train mail was Received by Dinhata Post Office at 11-30 hours from RMS Running section and on that date, respondent was on duty from 7 to 10 and 12 to 17 hours as per duty allotment. On 28-9-1967. one Biswanath Sarkar, the then Registration clerk of Dinhata Post Office (for short Biswanath hereafter)received amongst other registration bags five registered bags in good condition namely (1) Alipurduar R. M. S. (2)Dinhata Bazar (3) Alipurduar R. M. S. (4) Alipurduar Junction and (5) Registration Bag H-14 Out dated 27. 9. 67 with the words, cards, scale, tables and bag intact and Biswanath gave a clear receipt in the relevant book for those registration bags. Biswanath accounted for the aforesaid 1 to 4 items in his registered abstract but failed to account for the registered bag closed by H-14 out dated 27. 9. 67. Such bag made for Dinhata Post office was found lost from Dinhata on 28. 9. 1967 and it was not traceable after transfer of the said Biswanath and this loss was from his custody, at 11-30 hours when the said bag H-14 Out was received at Dinhata post Office with all other mail bags the respondent was not on duty and he was also not, present in the post office. Someone also of Dinhata Post Office received such bags including the H-14 Out bag under supervision of Shri Jyotir Bikash roy Barman, Head Clerk of Dinhata Post Office. That in such lost registered bag of H-14 Out dated 27. 9. 67 there was one insured letter for Rs. 1200/- Which was sent from Choudhury bazar, Cuttack Post Office butt the booking office could not produce any paper showing that any such insured letter No. 1561 dt. 25. 9. 67 was at all sent in such registration bag closed by H-14 Out. For such loss of the aforesaid bag from the custody of Biswanath the then Assistant Superintendent of Post Office, Jalpaiguri Division lodged a written complaint with the officer- in- Charge, Dinhata Police Station. On such complaint Dinhata P. S. Case NO. 5 (1)/68 under Section 380 i. p. C. was started against the respondent and Biswanath. Thereafter, the respondent was arrested by the Police in connection with the said case and he was enlarged on bail therefater. On 29. 2. 68 the respondent was suspended by the senior superintended of Post and Telegraph, Jalpaiguri Division with effect from thereaftemoon of 27. 2. 68 under sub-rule 1 of Rule 10 of the Central Civil Service (Classification, control and Appeal) Rules, 1965 (for brevity "the said Rules" hereafter) and no order regarding subsistence allowance was passed along with the order of suspension. Thereafter a charge-sheet was submitted by the police. The aforesaid criminal case was subsequently withdrawn by the public Prosecutor and the respondent was acquitted of the charge under Section 380 I. P. C. but the order of suspension against the respondent was not withdrawn. Thereafter on 3. 3. 1976, the Superintendent of post Office, Jalpaiguri Division passed order for recovery of the entire amount of Rs. 12. 00/- covered by the lost insured letter from Biswanath and Shri Jyotir Bikash Roy Barman and the responsibility of making payment was shared as under rs. 9000/- by Biswanath Sarkar and Rs. 300/- by Joytir Bikash roy Barman who were neither suspended nor arrested in connection with the loss of the said insured letter. Thereafter a case under Section 409 I. P. C. started by the police at the instance of the Postal Department resulted in the termination of the criminal proceedings. on the basis of a final report no. 79 dated 15. 6. 1977. The S. D. J. M. , Dinhata accepted the said report and discharged the respondent. Ultimately the order of suspension on the respondent was revoked on 28. 4. 78. Respondent was allowed to resume his duties on and from 3. 5. 1978 at Matha Bhanga Post Office. 3a. By order dated 15. 3. 1968 respondent was allowed subsistence allowance at an amount equal to the leave salary and dearness allowance. Such subsistence allowance was ordered to be increased by 25% with effect from 28. 2. 1968. It was further ordered on 2. 9. 78 that the pay of respondent would be drawn on the revised scale from the date or his joining, but the treatment regarding the period of suspension was not made known, to result of treatment of suspension period was disclosed till August 24, 1979 when the Superintendent of Post Office issued a notice informing the respondent that he would be given an opportunity of making a representation against the proposal to treat the period of suspension not on duty for any purpose except that the said period shall be counted as on duty for the purpose of pension benefits. Respondent submitted his representation. An order dated October 4, 1979 was passed for the payment of 2/3rd. of the pay and allowance for the aforesaid period of suspension and a supplementary bill for the amount of Rs. 17. 16. 85 was sent for acceptance. The case of respondent is that he is entitled to all service benefits and the period of suspension cannot be treated as a period of leave. The suit was filed in the court below after service off notice under Section 80 Civil procedure Code. Appellants filed written statement denying the plaintiff's allegations. The defence case in its barest outline is presented as under. 3b. The total emolument was Rs. 225/- at the time of suspension of respondent from service I. e. February 27, 1968 (A. N.) when he was posted as Clerk at Dinhata post Office. Functioning of respondent as Mail Clerk from 7 to 10 and 12 to 17, hours was denied, that Biswanath received some other registration bags. Registration bag H-14/0ut (as "the bag in question" hereafter) was last from the custody of Biswanath on the aforesaid date, the mail bag containing due registered bag for Dinhata Sub-Post Office was closed and this was duly conveyed by H-14/0ut section on September 28, 1967. The Mail bag along with other mail bags were made over to the Bail peon at Dinhata Railway Station on the same day. Respondent received the bag in question at Dinhata Post Office at 11-45 hours from Rambhajan Mahato, Mail Peon. ;