BALIA, J. - (1.) THIS appeal is against the order dated 8. 12. 1997 which disposed of the writ petition of the appellant-petitioner by directing the respondents to decide the question of grant of selection scale which was pending before the respondent No. 1 for long, within three months from the date of receipt of the order.
(2.) THE grievance of the petitioner in this appeal is that as recorded by the learned Single Judge, the petitioner had asked for three reliefs but the aforesaid order only disposed of third relief but no order has been passed by the learned Single Judge in respect of other two reliefs. THE three reliefs prayed by the petitioner in the writ petition are as under:- (a) by an appropriate writ, order or direction the part of order dated 22. 3. 97 (Annexure 6) whereby a sum of Rs. 24,964 has already been recovered be quashed. (b) by an appropriate writ, order or direction the respondent may kindly be directed to make full payment of suspension period i. e. 28. 7. 90 to 30. 6. 91. (c) by an appropriate writ, order or direction the respondents be directed to give selection scale of 18 and 27 years of service. These reliefs were claimed in the following background. The petitioner was put under suspension in connection with disciplinary proceedings commenced against him on 28. 07. 1990. The order of suspension was revoked by order dated 25. 8. 91. That enquiry has ultimately been dropped. The petitioner by order dated 30. 06. 1992 was compulsorily retired under Rule 244 (2) of the RSR. At the time of passing of such order the petitioner was working as Upper Division Clerk in the Rajasthan High Court. He challenged the order by way of S. B. Civil Writ Petition No. 479/93 which came to be dismissed by the learned Single Judge but on appeal the order of compulsory retirement was quashed by order dated 11. 03. 1996 and the appointing authority was required to decide the matter afresh according to Rules within a period of two months. Thereafter by order dated May, 8, 1999 the Registrar made the fresh order retiring the petitioner compulsorily under Rule 244 (2) of the RSR retrospectively from 30. 06. 1992 i. e. to say with effect from the date when the earlier order of compulsory retirement has come into force and it has been set aside. This order was set aside on departmental appeal by the Hon'ble Acting Chief Justice finding that the incumbent has already attained the age of superannuation of 58 years on August, 31, 1994 and he stood retired on that date. In that view of the matter, there could not have been any order of compulsory retirement subsequent thereto with retrospective effect. Once again the order of compulsory retirement of the petitioner was set aside. In the appeal, it was directed that the petitioner shall be entitled to back wages and other benefits from 30. 06. 1991 till 31. 08. 1994, the date of retirement. Thus, the situation remains that the petitioner stood retired from service without there being any adverse order against him in any departmental enquiry about any misconduct for which he had been suspended. As a matter of fact, the enquiry against the petitioner having been dropped and order of compulsory retirement having been set at naught with direction to the entitlement of full emoluments, while computing the emoluments for the said period and recomputing the amount of pension payable to the petitioner-appellant the petitioner was paid emoluments of UDC, as he was drawing at the time of retirement and it was also ordered that period under which he remained under suspension shall be adjusted against extraordinary leave without pay. On the said basis amount of subsistence allowance paid to the petitioner was sought to be recovered by adjusting the same against amount computed as payable to the petitioner for giving effect to the order of the Court. Reliefs (a) and (b) relate to forfeiture of subsistence allowance and emoluments for the period of suspension. Relief (c) relates to grant of selection grade on the basis of his continued service upto 31. 8. 94. Vide order under appeal direction has been issued only in relation to relief (c ). The question that arise for consideration is whether the period of suspension can be adjusted against leave without pay so as to deny him full remuneration of the said period and effect recovery of subsistence allowance. Subsistence allowance paid to the petitioner during the period of his suspension is being recovered from him by treating such period on leave without pay. This has been done by applying Rule 54 (3) of the RSR. Rule 54 reads as under:- 54. Re-instatement- (1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re-instated or would have been re-instated but for his retirement on superannuation while under suspension, the authority competent to order the re-instatement shall consider and make a specific order:- (a) regarding the pay and allowances to be paid to the Government servant for the period of this absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where such competent authority holds that the Government Servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowances as such competent authority may prescribed. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose. Note:-The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extraordinary leave in excess of three months in so far as temporary Government servants are concerned. Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. A perusal of the aforesaid rule goes to show that where a person has been reinstated, how the period during which he has remained out of employment on account of dismissal or has not discharged his duty due to order of suspension before reinstatement and how the emoluments for that period is to be settled. Sub rule (2) makes it abundantly clear that where the competent authority holds the Govt. servant as fully exonerated or in the case of suspension that it was not wholly unjustified, he is entitled to full pay and dearness allowance as if he had not been dismissed, removed or compulsorily retired as penalty or suspended as the case may be. In other cases the Govt. servant shall be given such emoluments, the competent authority may determine under sub rule 3 In the facts stated aforesaid, we are of the opinion that sub rule (3) had no application. When the enquiry into misconduct was dropped altogether. There is no possibility of any finding of any misconduct on the part of the petitioner and it becomes impossible for the petitioner to prove that he is fully exonerated. There is no warrant for the proposition that no enquiry is conducted, it must be held to be a case of `not fully exonerated' or suspension not `wholly unjustified'. If that were so, in all cases the dropping of enquiry would automatically bring the case within purview of sub rule (3) and the employee be subjected to denial of remuneration of period of suspension, an act of employer not to take work from him, while master employee relationship exists. For non discharge of duty, which is not by volition of the employee, no part of wages can be denied in this manner. Rule does not warrant this either. In fact the situation like this is not contemplated in the Rule 54. More so when the retirement of the petitioner in the public interest u/rule 244 (2) was also not sustained and the petitioner retired on attaining the age of superannuation without any order adverse to him in respect of charges levelled against him for which he was suspended and that enquiry having been dropped by the disciplinary authority himself without recording any order about the fact whether the alleged misconduct falls in category of proved, disproved or not proved. Sub rule (3) cannot be invoked. In these circumstances, it can be equated with a case where the petitioner has been exonerated fully in the enquiry. We are of the opinion that when no enquiry was conducted against the petitioner in respect of charges levelled against him and the same was dropped and order of compulsory retirement made in the public interest on dropping of the charges was also set aside and the petitioner was allowed to retire on attaining the age of superannuation in normal course, no presumption can be raised in the absence of any finding that suspension, which was revoked without holding any enquiry, was justified or fell outside the category of suspension which was wholly unjustified to take out the case out of sub rule 2 Such a period has to be governed only under sub rule (2) of Rule 54 quoted above and he is entitled to full salary and emoluments for the period as if he has not been suspended and is entitled to full pay and dearness allowance to which he would have been entitled had he not been suspended.
(3.) IN reply to the writ petition which has been filed by the respondents in this appeal, the only justification for the impugned recovery from the petitioner of the subsistence allowance is stated to be because the enquiry was dropped no finding was recorded, he cannot be treated to be fully exonerated. IN the case of suspension being revoked and no enquiry having been held, the question of exoneration wholly or partially is irrelevant. The relevant consideration under rule could be whether there was justification for putting the employee under suspension. The full remuneration is not being paid to the petitioner for the period under suspension because of the order made by the Registrar purported to be made under Rule 54 of the RSR. The said order was made on 18. 7. 92, which had been passed after the petitioner was compulsorily retired on 30. 6. 92 in the first instance by the order of the even date. The order reads as under:- *** Reading of the aforesaid order reveals that it is founded solely on the ground of compulsory retirement of the petitioner appellant, and dropping of the enquiry. The order of compulsory retirement has since been set aside twice over. It records no satisfaction of the competent officer that suspension of the employee was not wholly unjustified or that the delinquent is not fully exonerated. The order does not appear to have been made after affording an opportunity of hearing to the petitioner as it is necessarily required to be given. That is the law laid down by Apex Court in M. Gopala Krishna Naidu vs. State of M. P. (1), and followed in B. D. Gupta vs. State of Haryana (2), wherein the Court referring the corresponding provisions of Rule 54 of Fundamental Rules had held that order under Rule 54 must depend on the examination by the authority of all the facts and circumstances of the case and forming his opinion therefrom of two factual findings, whether the employee was fully exonerated, and in the case of suspension whether it was wholly unjustified. Besides an order under the Rule shall obviously affect the Govt. servant adversely if it is made under clause (3) and(5) Such an order resulting in pecuniary loss to the Govt. servant must be held to be an objective rather than a subjective function. The very nature of the function implies duty to act judicially. In such a case if any opportunity to show cause against such a proposed action is not given, the action is liable to be struck down as invalid. The order singularly fails to disclose either subjective or objective satisfaction about fundamental fact for making an order under sub rule (3) and (5) Therefore, it has to be held invalid and no deduction or recovery of subsistence allowance be made in pursuance of such order. ;