Amiya Kumar Mookerji, J. - (1.) This Rule is directed against an order dated 9th of October, 1974 by which the General Secretary of the Calcutta Port Shramik Union was informed that as the petitioner was acquitted by ti e High Court on benefit of doubt, the period from 1st September, 1970 to 12th August, 1973 was rightly treated under ordinary leave rules. The petitioner was a peon under the control of Traffic Manager. A criminal case was started against him under Section 380 of the Indian Penal Code. He was suspended from 1st October, 1970. Thereafter, by an order dated 29th May, 1971 passed by the Presidency Magistrate, 6th Court, Calcutta the petitioner was found guilty of the charges and was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for a further period of one month. The petitioner was dismissed from service with effect from 14th October, 1971. His subsistence allowance was also stopped from that date. The petitioner preferred an appeal against the order of conviction. A Division Bench of this Court by its order dated 13th August, 1973 allowed the appeal and set aside the order of conviction and sentence by the learned Magistrate on the petitioner under Section 380 of the Indian Penal Code. The fine, it paid, was directed to be refunded, and the petitioner was discharged Horn his bail bond. The petitioner thereafter made a representation to the Traffic Manager, Calcutta port Trust stating that the Hon'ble High Court has set aside the order of conviction. So the petitioner Could be reinstated. By an administrative order dated 18-9-73 the petitioner was reinstate in service. Thereafter he made various representations to the authorities concerned for treating the period of his suspension from 1-9-70 to 29-5-71 and the period of his dismissal from 30-5-71 to 26-9-73 as spent on duty. The petitioner being aggrieved by the impugned order moved this Court under Art. 226 of the Constitution and obtained the present Rule.
(2.) An affidavit-in-opposition has been filed on behalf of the respondents and affirmed by Sugandhi Kumar Roychoudhury, a head clerk of the traffic department wherein it is stated that a petitioner resumed his duties of his acquittal with effect from 27-5-73 and out of the period of absence from the date of dismissal to the date prior to his acquittal, that is to say, 14-10-71 to 12-7-73, leave for 83 days was allowed on half pay and rest on no pay under the revised leave Rules. The petitioner from the date of bis acquittal to the date prior to his resumption of duties, that is to say, from 13-8-7) to 26-9-73 has been treated as on duty. He has also stated therein that the petitioner is covered by the Fundamental Rule No. 54 as the Fundamental Rules and the Supplementary Rules have been adopted by the Commissioners for the Port of Calcutta and applicable to all employees.
(3.) Mr. Mazumdar appearing on behalf of the petitioner contended that the respondents had no right to withhold salary for the period of suspension because in absence of misconduct suspension should be deemed to be treated on duty. It is further contended that as the petitioner has been acquitted by this court, in that event, the respondent could not treat the period as on leave.;