Rajendra Nath Mittal, J. - (1.) Briefly, the facts are that the petitioner was employed as Inspector, Food & Supplies Department. He was suspended by the Director of the said department respondent No. 2 and ordered to be paid subsistence allowance under Rule 7.2 (1) (ii) (a) of the Punjab Civil Services Rules Volume 1, Part I, vide order dated Nov. 4, 1969. He was later charge-sheeted. On filing a reply against the charge-sheet, the enquiry was dropped and he was ordered to be reinstated vide order dated May 13, 1970 (copy annexure D.). It is alleged that in the order it was said that the period of suspension of the petitioner would be treated as leave of the kind due to him under Rule 7.3 of the Rules. The petitioner has challenged the order through this writ petition inter alia on the ground that before ordering that his period of suspension would be treated as leave of the kind due to him, he should have been given a show-cause notice. Notice of the writ petition was given to the respondents but none has appeared on their behalf to contest the same.
(2.) It is contended by the learned counsel for the petitioner that under Sub-rule (5) of Rule 73-B of the Rules, in the case of reinstatement the Government employee shall subject to the provisions of Sub-rules (8) and (9) be paid such amount of the pay and allowances to which he would have been entitled, had he not been suspended, as the competent authority may determine, after giving notice of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period as maybe specified in the notice. He submits that his pay and allowances were not determined in terms of the aforesaid Sub-rule. He further argues that under Sub-rule (9) the authority could not determine the amount payable to him less than the subsistence allowance and other allowances admissible to him under Rule 7. . Mr. Khoji urges that by treating the period of suspension as leave of the kind due to him, the petitioner has been deprived of the subsistence allowance, as no leave of any kind was due to him. in the aforesaid situation, he submits that the order is prima facie bad and liable to be set aside.
(3.) I find force in the contention of the learned counsel. From a reading of Sub-rule (5) along with Sub-rule (9) of Rule 7.3 of the Rules, it is evident that before fixing the pay and allowances of the Government employee for the period of suspension, on his reinstatement, it was incumbent upon the authority concerned to serve a show-cause notice on him. It is also provided in Sub-rule (9) of the said Rule that his allowances could not be less than the subsistence allowance. In the present case, because of treating the period of suspension of the petitioner as leave of the kind due to him, he is being asked to refund the subsistence allowance on the ground that no leave was due to him, which could not be done by them. Thus the part of the order dated May 13, 1970 that the period of suspension of the petitioner would be treated as leave of the kind due to him, is illegal and liable to be set aside. The Director may, however, pass a fresh order after hearing the petitioner.;