S. N. BHARGAVA, J. - (1.) THE petitioner is a Deputy Supdt. of Police and was placed under suspension vide order dated 25-2-85 (Annexure-1) which bears an endorsement that the petitioner should report daily to the DG & IGP, Rajasthan, Jaipur and mark his attendance in the office of the DG, & I. G. of Police. He was further directed not to leave headquarter without obtaining prior permission. By another order dated 27th July, 1985 (Annexure-2) the petitioner was allowed to draw subsistence allowance to the extent of an amount equal to the leave salary which he would have drawn if he had been on leave on half pay, during the period of his suspension and dearness allowance etc. as admissible on such pay. This subsistence allowance was lateron raised to 75%. THE petitioner was getting Rs. 1600/- as basic pay in the scale of Rs. 1000-30-1300-40-1500-50-1800-60-1860.
(2.) AFTER passing the suspension order dated 25-2-85 annual grade increments fell due on 1-9-85 and again on 1-9-1986 and also on 1-9-1987 but they were not allowed to the petitioner and were not added to his pay for calculating the subsistence allowance from these respective dates. The petitioner further asserts that no orders of stoppage of annual grade increments have been passed by the Government, and still, the annual grade increments have not been taken into consideration while determining his subsistence allowance. The petitioner made representations to which he ultimately received reply (Annexure 3) that under the Rules, he is not entitled to subsistence allowance taking into consideration the annual grade increments to his pay. The petitioner preferred an appeal No 437/1986 against the order dated 31-5-86, before the Rajasthan Civil Services Appellate Tribunal, Jaipur, which was dismissed by order dated 3-12-87. It is against this order that the present writ petition has been filed by the petitioner. Since there were two apparently conflicting decisions of the Tribunal, notices were issued as to why the writ petition should not be admitted and disposed of. A general notice was issued to the Advocates so that they could appear and argue in this regard. Government has not filed any reply to the writ petition. We have heard arguments at length. Learned counsel for the petitioner has drawn our attention to Mritunjai Singh vs. State of U. P. (1) wherein relying on Balvantrai Ratilal vs. State of Maharashtra (2) it has been observed that suspension does not disentitle an employee to get increment during suspension period where contract of service subsists during the period. This authority was relied by the Service Tribunal in its decision dated 26-2-85 passed in Appeal No. 628/82 Dulichand vs. State of Rajasthan, therein, relying on rule 53 of R. S. R. it was held that employees are entitled to increment during suspension and subsistence allowance is to be calculated accordingly. Earlier to this judgment, the Service Tribunal in the case of Gyan Chand Mathur vs. State of Rajasthan (3) even after noticing Mritunjai's case (supra) had taken a contrary view. This judgment was not noticed by the Service Tribunal in Dulichand's case. In the present case, the Service Tribunal has noticed both these judgments and has adopted the view taken in Gyan Chand's case. Learned counsel for the petitioner also drew our attentibn to Management Hotel Imperial vs. Hotel Worker's Union (4) wherein their lordships of. the Supreme Court have held that an employer has a right to suspend an employee but the contract of service continues.
(3.) HE has also drawn our attention to Balvantrai Ratilal vs. State of Maharashtra (supra) wherein also, the Supreme Court relying on Hotel Imperial's case (supra) has re-affirmed that an authority entitled to appoint a public servant is entitled to suspend him pending departmental enquiry or criminal proceeding. It has been observed in that case that as to what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection, and if there is such a provision, the payment during suspension will be made in accordance therewith, but if there is no such provision, public servant will be entitled to his full emoluments even during the period of suspension. Our attention has also been drawn to V. P. Gindroniya vs. State of Madhya Pradesh (5) which has been relied in a later decision in Jammu University vs. D. K. Rampal (6) wherein their lordships have observed that order of suspension has the effect of temporarily suspending the relation of master and servant, with the consequence that the employee is not bound to render service and the employer is not bound to pay. In such a case, employee would not be entitled to receive any amount at all from the employer unless the contract of employment or the rules governing the terms and conditions of service, provide for payment of some subsistence allowance. Learned counsel for the petitioner has further submitted that attending office everyday amounts to rendering services or performing duty by the employee and since, in the present case, the petitioner was directed to attend office every day and mark his attendance, he should be deemed to be on duty and as such, entitled to whole salary. In this connection, he has placed reliance on Asha Ram Birla, vs. G. M. Raj. Cooperative Dairy Federation (7) as also on the meaning of word 'continue' given in the 20th Century Chambers Dictionary. ;