R.K.MERATHIA, J. - (1.) IN this writ petition the main question involved is whether the petitioner was entitled to receive the subsistence allowance to be calculated after including his increments which fell due during the pendency of the departmental proceeding?
(2.) IT appears that a departmental proceeding was initiated against the petitioner and he was put under suspension on 22.5.1990 (Annexure -1). During suspension, he filed a writ petition being CWJC No. 2921 of 1994 (R) challenging the letter dated 30.8.1994 (Annexure -2). By this letter his subsistence allowance was reduced on the ground that as per the Bipartite Settlement the petitioner was entitled to the full pay and allowances as on the date of suspension; as the departmental enquiry continued beyond one year, but inadvertently excess amount has been paid, which should be recovered by making deductions from the subsistence allowance. The petitioner 'scontention was that the subsistence allowance was correctly calculated and paid including the increments and the same could not have been reduced. This Court by Judgment dated 25.5.1995 remanded the matter to the respondents without expressing any opinion on the ground that the said order of reduction of subsistence allowance dated 30.8.1994 was passed without giving any opportunity of hearing to the petitioner. Consequently, after hearing the petitioner, the respondent No. 3 passed the order dated 26.7.1995 (Annexure -7), rejecting his aforesaid contention. After conclusion of the departmental proceedings the petitioner was found guilty and punished by order dated 28.8.1995 (Annexure - 8). In appeal, the punishment was modified by order dated 16.7.1996 (Annexure -C). The punishment awarded was stoppage of five increments with cumulative effect and that he shall not be entitled to any pay and allowances during the period of his suspension, save and except what has been paid to him as and by way of subsistence allowance. Learned counsel for the petitioner challenging the order dated 26.7.1995 (Annexure -7), submitted that after one year of suspension he was entitled to the full pay and allowances, calculated on including the increments which fell due during suspension.
(3.) IT was held in the said order dated 26.7.1995 (Annexure -7) that during the period of suspension, the petitioner was not entitled to claim increment and whatever Increment was paid by mistake, was liable to be recovered from him. This order was passed after considering the relevant Circulars in the light of the Shastri Award and Desai Award, particularly a Circular dated 25.9.1987 (Annexure -3). This Circular dated 25.9.1987 was challenged in the earlier writ petition and has been challenged again in this writ petition.;