S. K. MAL LODHA, J. - (1.) THIS is a writ petition under Article 226 of the Constitution by which one Govind Prasad seeks to quash the orders Annexure 2, dated November 2, 1977 of the Deputy Chief Mechanical Engineer, Northern Railway and Annexure 4, dated May 18, 1978 passed in appeal by the Chief Workshop Engineer, Northern Railway.
(2.) THE petitioner was serving as Tool Checker in Foundry Workshop No. 3, Northern Railway, Jodhpur in 1965. He was prosecuted on a police report under section 409 of the Indian Penal Code and under sec. 5 (2) read with section 5 (l) (c) of the Prevention of Corruption Act for misappropriation of 29 copper ingots. THE Special Judge, Rajasthan, Jaipur City vide order dated March 31, 1967 convicted him to 1 year's rigorous imprisonment under section 409, I. P. C. and to 1 year's rigorous imprisonment under section 5 (2) read with section 5 (l) (c) of the Prevention of Corruption Act and the sentences were ordered to run concurrently. He was further sentenced to pay a total fine of Rs. 3,000/- and in default thereof to undergo six months rigorous imprisonment. An appeal was filed by the petitioner which was registered as Criminal Appeal No. 219 of 1967 (Govind Prasad vs. State, decided on April 16, 1969 ). That appeal was accepted, setting aside the conviction of the petitioner ordered by the Special Judge and the petitioner was acquitted. After acquittal, the petitioner was reinstated in service. He was not paid the full wages for the period, he remained under suspension with effect from November 26, 1965 upto the date reinstatement i. e. July 15, 1969. THE Deputy Chief Mechanical Engineer, Jodhpur treated the suspension of the petitioner as such vide his letter No. 14 Vig. /447/ 5pe/p. 1, dated August 24, 1970. THE petitioner filed S B Civil Writ Petition No. 3197 of 1977 (Govind Prasad vs. Union of India ). THE writ petition was allowed in part vide judgment dated January 21, 1977 and the order dated August 23, 1970 was quashed. While passing the order, it was observed: "the competent authority i. e. the non-petitioner No. 2 is directed to decide the matter according to law as early as possible after giving notice to the petitioner. It may be however made clear that the observations of the learned District Judge that the order passed by this Court does not amount to honourable acquittal shall not be taken into account while passing the order under Rule 2044 and the competent authority shall decide the matter after persuing the judgment of this Court in an independent manner. In the facts and circumstances of the case the parties are left to bear their own costs. " It may be stated that the judgment dated January 21, 1977 has been reported in 1977 R. L. W. 53. THE petitioner moved the Deputy Chief Mechanical Engineer, Northern Railway for payment of balance amount. THE Deputy Chief Mechanical Engineer, Jodhpur vide Annexure 2, dated November 2,1977 passed the following order: "keeping in mind the judgment of the Court, I come to the conclusion that Shri Govind Prasad's suspension was not wholly unjustified. He has already been paid subsistence allowance for the period of suspension and has thereafter been taken on duty, as ordered by the Court. For his suspension period, there is no case to pay him anything more than what he has already drawn as the subsistence allowance. He be however allowed full pay and allowances from the date of his acquittal (i. e. 16-4-69) to the date of rejoining the duty (ie. 15-7-69) and this period be counted as duty for all purposes. THE remaining period of suspension which has to be treated as leave due, if Shri Govind Prasad, so desires. " It may be pertinent here to extract the following portion from Annexure 2: "even in the judgment of the Hon'ble High Court, the Hon'ble High Court did not use the word 'honourably acquitted", while setting aside the conviction. " An appeal was taken under rule 22 (3) of the R. S. (D. & A.) Rules, 1968. THE petitioner was informed vide Annexure 4 dated May 18, 1978 that the Chief Workshop Engineer has rejected his appeal. In Annexure 4, it is written that the Chief Workshop Engineer had carefully considered the appeal and had not found any justification to alter the decision of the Deputy Chief Mechanical Engineer (Works), Jodhpur. It may be stated that the Chief Workshop Engineer has confirmed the order of the Deputy Chief Mechanical Engineer (Works), Jodhpur, but it is a non-speaking order. Feeling aggrieved by the aforesaid orders (Annexures 2 and 4), the petitioner has filed this writ petition for quashing these orders and has prayed that a direction may be issued for payment of the full wages to the petitioner from the date of suspension until he joined the duties i. e. November 26, 1965 to July 15, 1969. On July 25, 1978, a show cause notice was ordered to be issued to the respondents. Mr. L. R. Bhansali appeared for the respondents on November 15, 1978 and the writ petition was admitted and it was ordered that it may be listed for hearing in the third week of June, 1979. An application dated October 31, 1979 was filed on behalf of the petitioner praying therein that the writ petition may be listed for hearing at an early date. It was ordered on November 23, 1979 that it may be listed for hearing on December 10,1979 as a first case after part-heard case, if any. Mr. J. S. Rathore for Mr. L. R. Bhansali for the respondents appeared today and he pleaded no instructions on behalf of the respondents. I have heard Mr. K. N. Joshi for the petitioner. The contention raised by the learned counsel for the petitioner is that in view of rule 2044 of the Railway Establishment Code, Volume II, the petitioner is entitled to full wages from the date of suspension until he joined the duties, and the ground given by the Deputy Chief Mechanical Engineer (Works), Jodhpur that he is not so entitled because the High Court has not used the words "honourably acquitted" while acquitting the petitioner vide judgment (Annexure 1) dated April 16, 1969 is no valid reason in the eye of law. He however submitted that the observations of the Deputy Chief Mechanical Engineer (Works) Jodhpur ". . . . . . the remaining period of suspension (which has to be treated as suspension and not spent on duty) be treated as leave due, if Shri Govind Prasad, so desires" is not warranted by any law or rules. He placed reliance on Ramsinghji Viraji vs. State of Gujrat (1) and M. K. Balappachar vs. State of Mysore (2 ). The material portion of rule 2044, necessary for the present purpose is as under: "2044. (F. R. 54) Pay after Reinstatement - (1) When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (i) is of the opinion that the railway servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the railway servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be. (3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible; Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (F. R. 53 ). (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 spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the railway servant 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 Railway servant. " From sub-rule (2) of rule 2044, it is clear that after reinstatement, the railway servant is entitled to be paid full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended as the case may be. It is clear from sub-rule (4) of R. 2044 that in a case falling under sub-rule (2), the period of absence from duty inclusive of the period of suspension, dismissal or compulsorily retirement, as the case may be, shall be treated as a period spent on duty for all purposes. A somewhat similar question arose before the Division Bench of the Gujarat High Court in Ram Singh ji Viraji's Case (1) wherein while considering r. 152 (2) of the Bombay Civil Services Rules, it was observed as under : "while these criminal prosecutions were pending against the petitioner the Inspector General of Police by his order dated September 11, 1959 dismissed the petitioner from service on the basis of the conviction of the petitioner by the earlier order dated February 27, 1959 and the decision in appeal dated July 22, 1959 against this order of dismissal the petitioner filed Special Civil Application No. 161 of 1961 in this Court challenging the order of dismissal. During the pendency of the writ petition the Government of Maharashtra set aside the order of dismissal passed against the petitioner by the Inspector General of Police and directed that the petitioner should be reinstated. This order was passed by the Government on February 20, 1965 in view of this order of reinstatement the petitioner withdrew the aforesaid Special Civil Application. For the recovery of the amount alleged to have been misappropriated by the petitioner the Government of Gujarat had filed Civil Suit No. 620 of 1961 in the City Civil Court at Ahmedabad, praying for a decree in the sum of Rs. 6, 017/- against the petitioner but after the petitioner was acquitted in the two criminal trials and after the order of reinstatement was passed by the Government of Maharashtra, the State of Gujarat withdrew the said suit on April 19,1965. The Government of India has by its order dated June 11, 1965 allocated the petitioner to the State of Gujarat. By his letter, dated September 18, 1965 addressed to the Government of Maharashtra, the petitioner requested that the issuance of the orders regarding the treatment of the period of suspension as well as the period of absence from duty from the date of dismissal till the date of reinstatement as period spent on duty should be expedited, "and was reinstated after he was acquitted, is entitled to full pay during the period of his suspension as required by the general provision of law. " Chandrashekhar, J, as he then was, speaking for the Court in M. K. Balap-pachar's case (2) observed as under: "once he is acquitted, whether such acquittal is on account of lack of evidence or on account of any defect in the procedure in the trial, or on account of the court extending the benefit of doubt, so long as such acquittal stands, the presumption of innocence of the accused, should be given the full effect and he must also be regarded as being acquitted of the blame flowing from any of the acts or omissions which formed the subject-matter of the charge. Hence, the reason given by the Government for not paying the petitioner, his emoluments during the period of his suspension, is in our opinion, clearly unsustainable. " There is nothing in r. 2044 to show that the petitioner is not entitled to the full wages from the date of suspension (November 26, 1965) to the date of reinstatement (July 15, 1969 ). The Deputy Chief Mechanical Engineer (Works) has however, allowed full pay and allowances from the date of acquittal (April 16, 1969) to the date of rejoining duty (July 15, 1969 ). The reasons given by the Deputy Chief Mechanical Engineer (Works), Jodhpur for not paying the full emoluments during the period of his suspension, are, therefore, unsustainable. This view of mine stands supported from the aforesaid two decisions. The controversy is regarding payment of full pay and allowances from November 26, 1965 to April 15, 1969. It is only under sub-rule (5) that in a case falling under clause (3) that the period of absence from duty shall not be treated as the period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose. However, there is proviso appended to sub-rule (5) of rule 2044, which lays down that if the railway servant so desires, the authority may direct that the period of absence from duty shall be converted in to leave of any kind due and admissible to the railway servant. Thus, the petitioner is entitled to full pay and allowances during the period of suspension. No other point was pressed by the learned counsel for the petitioner, for my consideration. In the result, I allow this writ petition and quash the orders Annex-ure 2 dated November 2, 1977 and Annexure 4, dated May 18, 1978 and direct the Union of India to pay and to the petitioner full pay and allowances after deducting subsistence, allowance which had already been paid to him for the period from November 26, 1965 to April 15, 1969. As Mr. J. S. Rathore for Mr. L. R. Bhansali has pleaded no instructions and has not opposed the writ petition, I direct the parties to bear their own costs of this writ petition. .;