- (1.) BY the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents to pay him the salary and other allowances from the date of removing him from service i. e. 5-12- 2001 till the date of his reinstatement in service along with interest @ 9% per annum.
(2.) THE facts and circumstances giving rise to the instant writ petition are that disciplinary proceedings under rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "the CCA Rules" hereinafter) were initiated against the petitioner. THE memorandum of charges along with Statement of Allegations were served on the petitioner and during contemplation of the disciplinary proceedings, he was placed under suspension from 31-1-2001 to 5-12-2001. After holding the inquiry and finding the charges proved, the penalty of removal from service was imposed and in pursuance thereof, the petitioner was removed from service vide order Annx. 1 dated 5-12- 2001. THE petitioner challenged the order of removal from service by way of filing an appeal before the respondent No. 3, the Director General, R. A. C. Rang II, Jaipur, the Appellate Authority. THE said appeal was dismissed by the Appellate Authority vide order dated 19. 6. 2002 (Annx. 2 ). THE petitioner filed a review petition before His Excellency the Governor of the State of Rajasthan and the review petition came to be accepted by His Excellency the Governor of Rajasthan vide order dated 6-1- 2005 (Annx. 3), setting aside the orders of the Disciplinary Authority and the Appellate Authority. Vide order Annx. 4 dated 25-1-2005, the petitioner has been reinstated in service after passing the order on the review petition filed by the petitioner. However, the petitioner made a representation Annx. 5 dated 12-5- 2005 for payment of salary and other allowance from the date of his removal till reinstatement. THE representation filed by the petitioner has neither been considered nor decided by the respondents. Hence this writ petition. I have heard learned counsel for the parties. It is contended by the learned counsel for the petitioner that the order removing the petitioner from service has been set aside on a review petition filed by him before His Excellency the Governor of Rajasthan and, therefore, the petitioner is entitled for the salary and allowances from the date of his removal till he was reinstated in service. Learned counsel has relied on the decision of the Hon'ble Supreme Court in Union of India vs. Madhusudan Prasad, (2004) 1 SCC 43; and the decisions of this Court in Life Insurance Corporation of India & Anr. vs. Rampal Singh, 2006 (1) CDR 593 (Raj.) (DB) = (2006 (2) RLW 1264 (Raj.); and Pramod Kumar Sharma vs. Laxmi Narain Sharma, 1991 (1) RLR 133. Learned Deputy Government Advocate appearing for the respondents contended that the Reviewing Authority has not made any order for payment of the salary and allowances for the period from the date of removal of the petitioner till his reinstatement in service and without there being a specific order of the Reviewing Authority, the petitioner is not entitled for the pay and allowance for the said period. He has relied on a recent decision of the Hon'ble Supreme Court in U. P. State Brassware Corporation Ltd. & Anr. vs. Udai Narain Pandey, AIR 2006 SC 586. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties.
(3.) IN Union of INdia vs. Madhusudan Prasad (supra), the Hon'ble Supreme Court held that it is true that when a reinstatement is ordered in appeal review, the authorities can pass specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement. It was further observed as under:- " IN the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. But the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. Therefore, Fundamental Rule 54 cannot be invoked by the authorities to deny him back wages from the date of dismissal to reinstatement. " The Hon'ble Apex Court further held that these relevant facts were considered and the learned Single Judge as also the Division Bench ordered the payment of back wages and the Hon'ble Apex Court did not find the case as a fit case where Fundamental Rule 54 could have been involved by the authorities. Fundamental Rule 54 came to be considered by a Constitution Bench of the Hon'ble Supreme Court in Managing Director, ECIL vs. B. Karunakar, (1993) 4 SCC 727. Fundamental Rule 54 reads as under:- " 54 (1 ). When a government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. " ;