SUKHDARSHAN SINGH versus THE STATE OF PUNJAB & ORS. on 3 March 2022

[2022] 3 S.C.R.

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SUKHDARSHAN SINGH

v.

THE STATE OF PUNJAB & ORS.

(Civil Appeal Nos. 811-812 of 2022)

BMARCH 03, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Service Law: Punjab Civil Services (Punishment and Appeal)Rules, 1970 – In the instant case, appellant was appointed as aclerk by the State Transport Department – Two FIRs were lodgedCagainst him and in connection with these cases he was suspendedw.e.f 02.09.1986 – After appellant’s conviction, on 13.03.2003, anorder of termination was issued against the appellant – Appellateauthority set aside the termination order, however, directed thatappellant would not be entitled to any salary for the period ofsuspension and it would be termed as dies non – This led to institutionDof civil suit in which it was held that once termination had been setaside, appellant is entitled to get salary, except for the period duringwhich appellant had undergone imprisonment – On appeal, held:The manner in which the appellate authority must exercise itsappellate jurisdiction is delineated in r.19 – r.5 provides for theEpenalties with which the employee can be visited with – Thepunishment as it is so described by the appellate authority viz.,depriving the salary and placing the employee under dies non, donot appear to be penalties provided in r.5 – Thus the order ofappellate authority was beyond the power prescribed under therules – In regard to the period when appellant was kept out ofFservice – r.15(v)(f) contemplates that when there is a dismissal,removal, compulsory retirement or reduction to a lower service andthere is an order of reinstatement, the authority is to pass an orderas to whether the period from the date of suspension till the date ofhis reinstatement, is to be treated as a period spent on duty for anyGpurpose – An order being passed by the appellate authority findingthe termination of employee to be illegal and leaves it there, it wouldnot ipso facto inevitably follow that the employee will become entitledto claim the salary for the entire period consequent upon his beingfound to be entitled to reinstatement – This is a matter for theauthority to decide – This exercise to be undertaken and concludedHwithin three months.

Disposing of the appeals, the Court

HELD: 1. Rule 5 provides for the penalties with which theemployee can be visited with. The scheme of the Rules further isthat an appeal can be carried against certain orders which arementioned in Rule 15. The manner in which the appellateauthority must exercise its appellate jurisdiction is delineated inRule 19. The punishment as it is so described by the appellateauthority viz., depriving the salary and placing the employee underdies non, do not appear to be penalties provided in Rule 5. It wasopen to the appellate authority to enhance the punishment. Theorder, in other words, dated 29.01.2009 to the extent it becamethe subject matter of the civil suit would appear to be beyond thepower of the appellate authority. To that extent, the appellantmay be justified in calling into question the direction to deny himthe salary by the appellate authority and treating it as dies non asa punishment. It is not a penalty contemplated in law. [Paras 9,10][1139-D-H; 1140-A-B]

2. The question would arise as to what is to be done withregard to the period when the appellant was kept out of serviceas a result of the proceedings against him. This, in turn, must bebroadly divided into two periods. An employee may be kept outof service initially by way of an order of suspension. Thedisciplinary proceedings may culminate in an order of removal ordismissal or compulsory retirement. The order of suspensionwould then come to an end and it would merge in the order ofremoval inter alia. After the order of removal inter alia till theorder of reinstatement based on relief granted to the employee,the appellant would be out of service. [Para 11][1140-C-E]

3. Rule 15(v)(f) indeed contemplates that when there is adismissal, removal, compulsory retirement or reduction to a lowerservice inter alia and there is an order of reinstatement, theauthority is to pass an order as to whether the period from thedate of suspension or from the date of his dismissal, removal orcompulsory retirement till the date of his reinstatement, is to betreated as a period spent on duty for any purpose. This gives aclear indication that upon an order being passed by the appellate AB

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Aauthority finding the termination of employee to be illegal andleaves it there, it would not ipso facto inevitably follow that theemployee will become entitled to claim the salary for the entireperiod consequent upon his being found to be entitled toreinstatement. This is a matter for the authority to decide. [Para15][1146-D-F]B

4. The decree of the trial Court as confirmed by the firstappellate Court is to be sustained but the first appellate authorityin proceeding to impose the condition that the appellant will notbe entitled to any salary for the period and that it will be treatedCas dies non cannot be sustained. However, the further directionby the decree passed by the trial Court and confirmed by the firstappellate authority that the appellant will be entitled to the salaryfor the period he was kept out of service also cannot be sustained.Insofar as the High Court has not noticed these aspects whileallowing the appeal and dismissing the review petition, theDimpugned judgment also cannot be sustained. Accordingly, theimpugned judgment is set aside and the judgment passed by thefirst appellate Court is modified and the decree passed by thetrial Court directing payment of salary to the appellant for theperiod that he was kept out of service is set aside. [Paras 16,E17][1146-G-H; 1147-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 811-812 of 2022.

From the Judgment and Order dated 19.09.2018 in ReviewFApplication bearing RA-RS-84-C-2018 in RSA No.656 of 2015 andOrder dated 23.04.2018 of the High Court of Punjab and Haryana atChandigarh in RSA No.656 of 2015 (O&M).

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Gurminder Singh, Sr. Adv., Pushpinder Singh, Ms. Shalini Kaul,Advs. for the Appellant.

D. S. Patwalia, AG, Sehaj Bir Singh, DAG, Ms. Ranjeeta Rohatgi,Adv. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appellant was appointed as a Clerk on 27.12.1979 by theState Transport Department. A criminal case (FIR) came to be registeredon 02.09.1986. The allegations against him apparently pertained to allegedacts of embezzlement. It was followed by a chargesheet on 06.10.1988.In connection with the said case, the appellant came to be suspendedw.e.f. 02.09.1986. While he was undergoing suspension, yet anotheroccurrence took place which led to FIR No. 51/1995 being registeredunder Sections 307 and 506 of the Indian Penal Code, 1860 (hereinafterreferred to as ‘IPC’). The appellant came to be convicted by the trialcourt with regard to FIR No. 51/1995 by judgment dated 17.09.1996.The appellant filed Criminal Appeal No. 703-SB/1996 against theconviction. The appellant was convicted under Section 324 read withSection 506 of the IPC by the trial court.

2. After a period of six years, the appellant came to be servedwith show cause notice dated 24.07.2002 under the Punjab Civil Services(Punishment and Appeal) Rules, 1970 (hereinafter referred to as ‘1970Rules’ for brevity). Rule 13 (i) of the ‘1970 Rules’ reads as follows:

“Special procedure in certain cases-Notwithstanding anythingcontained in rules 8,9, 10, 11 and 12.

(i) Where any penalty is imposed on a Government employeeon the ground of conduct which has led to his conviction ona criminal charge; or Provided that the Commission shall be consulted, wheresuch consultation is necessary, before any orders are madein any case under this rule.”

The appellant responded to the notice. However, by order dated13.03.2003, it was decided to remove the appellant. To continue with thenarrative, as regards the first FIR relating to embezzlement, the JudicialMagistrate acquitted the appellant by order dated 22.12.2006. The fateof the criminal appeal against the judgment emanating from FIR No.51/1995 was as follows:

The High Court sustained the conviction of the appellant underSection 324 and Section 506 of the IPC. However, it reduced the sentence A

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Aunder Section 324 to the period undergone and ordered a sentence ofone month for offence under Section 506. This judgment was dated09.04.2008.

3. The appeal preferred by the appellant against the order dated13.03.2003 came to be disposed of by order dated 29.01.2009. By theBsaid order, the appellate authority found inter alia and ordered as follows:

“Section 307 IPC is not fallen under the definition of “MortalTurpitude. But the sections i.e., 324 and 506 of the case are verysmall and the simple imprisonment. Therefore, it is abundantlyand nor this offence is fallen under the category of “MoralCTurpitude” and nor this case is belongs to government proceedings.This personal dispute with the appellant and on causing some simpleinjuries to the other person by the appellant. The Hon’ble Punjaband Haryana High Court, by reducing his imprisonment, hasdispensed with remaining imprisonment, only after undergoing 39days imprisonment. The Hon’ble High Court has taken this matterDas sympathetically, therefore in view of the above I, also by givingsympathy, is hereby set asides the termination order and is herebypunishment for the appellant that he will be not given nothing for-the suspension period and this period will be declared as DiesNon period. But this order, this appeal is disposed off.”E4. Being aggrieved by the order of the appellate authority notingthat the appellant will not be given anything for the period of suspensionand this period will be declared as dies-non, a civil suit came to be institutedon 09.12.2010 by the appellant. He sought a declaration to the effectthat the order dated 13.03.2003 and the appellate authority’s order datedF29.01.2009 to the extent that the pay of the appellant was denied wasillegal and arbitrary and against the Rules and that he was entitled to fullpay for the period that he had been denied, the salary and benefits. Hesought mandatory injunction to release the pay denied to him with 12 percent interest. Upon contest, the suit came to be decreed as follows:

G“As per my sequel of discussion on Issue No. 1 to 4 discussedabove, the suit of the plaintiff is decreed to the effect that orderdated 13.03.2003 and order dated 29.01.2009/17.02.2009 to theextent whereby pay of the plaintiff has been denied are illegal,arbitrary and against the rules. However, it is made clear that theplaintiff is entitled to get salary which is denied by alleged ordersH

but not of the period during which the plaintiff and undergoimprisonment. Decree sheet be prepared. File be consigned torecord room after due compliance.”

The appeal by the respondent-State was unsuccessful. This ledto the second appeal from which the present appeals arise. The secondappeal came to be allowed by the High Court. In the original judgment,the High Court has proceeded to find that the appellate authority hasrightly found that respondent is not entitled to monetary benefit duringthe intervening period from the date of termination till re-instatementhaving regard to the conviction, there being modification only in sentence.It was found that only a lenient view was taken by the appellate authority.It was in these circumstances, relying on Rule 7.3 of Punjab Civil ServiceRules, hereinafter referred to as the ‘Rules’, the court found that thetrial court and the appellate court erred in not appreciating that theappellant was not acquitted in the criminal case and also that Rule 7.3empowered the competent authority to pass appropriate order. Therefore,the second appeal was allowed setting aside the judgments of the twocourts.

In the review filed by the appellant from the judgment, complaintof the appellant was that the court erred in interpreting Rule 7.3 of theRules. The appellant’s case was that Punjab Roadways under whichthe appellant was employed had adopted the 1970 Rules. The appellantwas placed under suspension in the FIR of the year 1986 wherein hestood acquitted whereas the aforesaid FIR was different from the laterFIR pursuant to which he has been convicted and therefore the questionof treating the suspension period as dies non, in the said case did notarise. Appellant relied upon Rules 5, 13 and 15 of the 1970 Rules. Thelearned Single Judge found that the appellant continued under suspensiontill 13.3.2003. It is further found that the appellate authority was entitledto regulate the suspension period under rule 15(f) of the 1970 Rules. Itwas further found that in view of Rule 15(f) of the 1970 Rules and theorder of suspension of 1988 not having been challenged and it remainedintact as on the date of removal (13.3.2003), the review petition wasallowed, to the extent of finding that a wrong provision, (Rule 7.3) wasquoted in the judgment which was sought to be reviewed. The contentionthat dies non was impermissible because the appellant was not placedunder suspension with reference to the later FIR, was not accepted asthe respondent continued to be under suspension.

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It is feeling aggrieved by the original judgment passed by the HighCourt allowing the second appeal and also the order passed in reviewthat the plaintiff is before us by way of these appeals.

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5. We have heard Shri Gurminder Singh, learned Senior counselappearing on behalf of the appellant and Shri D.S. Patwalia, learnedBAdvocate General appearing on behalf of the respondent-State.

6. Learned senior counsel for the appellant would point that oncethe High Court found that it was in error in drawing support from Rule7.3, it was in error in not noticing that it overturned the premise for thejudgment allowing the second appeal. The judgment would have no legsCto stand on and therefore, the appeal filed by the State ought to havebeen dismissed.

He would point out that Rule 7.3 indeed does not apply as foundby the High Court. As regards Rule 15(v)(f) of the 1970 Rules reliedupon by the High Court, it is pointed out that it only provides for an orderDpassed thereunder which can lead to an appeal under the 1970 Rules. Inthis case, learned senior counsel would reiterate the position which hasbeen accepted by the trial Court and the first appellant Court that oncethe removal of the employee has been found illegal and reversed, theemployee is entitled to get the wages or the salary for the entire periodand it is only this that has been done by the trial Court as also the firstEappellate Court and there is no occasion for the High Court to interferethereunder.

Per contra, Shri D. S. Patwalia, learned Advocate General forthe respondent-State, would fairly submit that no reliance could be placedon Rule 15(v)(f) of the ‘1970 Rules’ in the manner done by the HighFCourt. He did submit that Rule 7.3 of the Rules was originally rightlyapplied. He sought to draw support from Rule 7.3-B. He would highlightthe fact that this is a case where the guilt of the appellant was establishedbefore the trial Court (conviction under Section 324 and Section 506 ofthe IPC) and what is more, the appellate Court viz., the High Court hasGconfirmed the verdict. All that the High Court did was it reduced theperiod of imprisonment as already noticed. He would, therefore, pointout that it is a case where the appellant did not deserve to get anythingmore than what was actually done by the appellate authority and it wasfor this reason that the respondents were prepared to accept the orderof the appellate authority as it is. He further contended that the appellantHwould continue under suspension based on the earlier order of suspension.

FINDINGS

7. Admittedly, the appellant stood removed on 13.03.2003. Thiswas on the basis of a conviction by the Criminal Court for offencesunder Sections 324 and 506 of the IPC. Again undisputedly, in connectionwith another FIR, the appellant was placed under suspension on02.09.1986. His services was terminated by removal by order dated13.03.2003. It is this order of removal which came to be interfered withby the appellate authority on 29.01.2009. As noticed, the appellateauthority, however, directed that the appellant will not be entitled to anysalary for the period in question and that it will be treated as dies non. Itis this which triggered the litigation in the civil Court and we have noticedthe decree which has been granted. The civil Court has proceeded onthe basis that once a termination has been set aside, the employee mustget full salary without anything more. It is on this premise that the trialCourt and the first appellate Court have proceeded to allow the suit filedby the appellant by directing that subject to the exception, that for theperiod of imprisonment he would not get the salary and other benefits,he would get the salary for the rest of the period.

8. In this regard, Shri Gurminder Singh would point out that therewas no error committed by the Court for two reasons. He would submitthat once the appellate authority found the termination flawed and appellantwas to be reinstated, clearly the appellate authority (in disciplinaryproceedings) exceeded the limits of its authority in proceeding as if itcould by the order deny him the salary treating it as punishment. It isequally so when the appellate authority ordered dies non. In this regard,he drew our attention to the penalties with which an employee can bevisited under the Rules viz., Rule 5 of the ‘1970 Rules’. He would,therefore, point out that the appellate authority was clearly acting illegallyin contemplating and providing for a punishment which is not within thefour walls of the ‘1970 Rules’. Secondly, he would support the order bypointing out that it is settled law that once the termination is set aside,the employee must get all the benefits.

9. We have perused the Rules which have been placed before us.Rule 5 provides for the penalties with which the employee can be visitedwith. The scheme of the Rules further is that an appeal can be carriedagainst certain orders which are mentioned in Rule 15. The manner inwhich the appellate authority must exercise its appellate jurisdiction isdelineated in Rule 19.

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A10. The punishment as it is so described by the appellate authorityviz., depriving the salary and placing the employee under dies non, donot appear to be penalties provided in Rule 5. It was open to the appellateauthority to enhance the punishment. The order, in other words, dated29.01.2009 to the extent it became the subject matter of the civil suitwould appear to be beyond the power of the appellate authority. To thatBextent, the appellant may be justified in calling into question the directionto deny him the salary by the appellate authority and treating it as diesnon as a punishment. It is not a penalty contemplated in law. This, however,is not to be the end of our enquiry.

11. The question would arise as to what is to be done with regardCto the period when the appellant was kept out of service as a result ofthe proceedings against him. This, in turn, must be broadly divided intotwo periods. An employee may be kept out of service initially by way ofan order of suspension. The disciplinary proceedings may culminate inan order of removal or dismissal or compulsory retirement. The order ofDsuspension would then come to an end and it would merge in the orderof removal interalia. After the order of removal inter alia till the order ofreinstatement based on relief granted to the employee, the appellantwould be out of service. According to Mr. Gurminder Singh what Rule7.3 contemplates is power with the authority to provide for pay andallowances for the period the employee is kept out of service but limitedEto the period prior to the dismissal. The relevant part of the Rule 7.3reads as follows:

“7.3. (1) When a Government employee, who has been dismissed,removed or compulsorily retired, is reinstated as a result of appeal,revision or review, or would have been so reinstated but for hisFretirement on superannuation while under suspension or not, theauthority competent to order re-instatement shall consider andmake a specific order–

(a) regarding the pay and allowances to be paid to theGGovernment employee for the period of his absence from dutyincluding 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 periodspent on duty.

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(2) Where the authority competent to order re-instatement is ofopinion that the Government employee, who had been dismissed,removed or compulsorily retired, has been fully exonerated, theGovernment employee shall, subject to the provisions of sub-rule(6), be paid his full pay and allowances to which he would havebeen entitled, had he not been dismissed, removed or compulsorilyretired or suspended, prior to such dismissal, removal orcompulsory retirement, as the case may be:

Provided that where such authority is of opinion that the terminationof the proceedings instituted against the Government employeehad been delayed due to reasons directly attributable to theGovernment employee it may, after giving him an opportunity tomake representation and after considering the representation, ifany, submitted by him, direct, for reasons to be recorded in writing,that the Government employee shall, subject to the provisions ofsub-rule (7), be paid for the period of such delay only such amount(not being the whole) of pay and allowances, as it may determine.

(3) In a case falling under sub-rule (2), the period of absencefrom duty including the period of suspension preceding dismissal,removal or compulsory retirement, as the case may be, shall betreated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) includingcases where the order of dismissal, removal or compulsoryretirement from service is set aside by the authority exercisingpowers of appeal, revision or review solely on the ground ofnoncompliance with the requirements of clause (2) of article 311of the Constitution and no further inquiry is proposed to be held,the Government employee shall, subject to the provisions of sub-rules (6) and (7), be paid such amount (not being the whole) ofpay and allowances to which he would have been entitled, had henot been dismissed, removed or compulsorily retired or suspendedprior to such dismissal, removal or 106 [7.3] THE PUNJAB CIVILSERVICES RULES VOLUME I (PART I) [Chap. VII]compulsory retirement, as the case may be, as the competentauthority may determine, after giving notice to the Governmentemployee of the quantum proposed and after considering therepresentation, if any, submitted by him in that connection withinsuch period as may be specified in the notice:

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AProvided that any payment under this sub-rule to a Governmentemployee other than a Government employee who is governedby the provisions of the payment of Wages Act, 1936 (Act 4 of1936) shall be restricted to a period of three years immediatelypreceding the date on which order for re-instatement of suchGovernment employee are passed by the authority exercising theBpowers of appeal, revision or review, or immediately precedingthe date of retirement on superannuation of such Governmentemployee, as the case may be.

(5) In a case falling under sub-rule (4), the period of absencefrom duty including the period of suspension preceding his dismissal,Cremoval or compulsory retirement, as the case may be, shall notbe treated as a period spent on duty, unless the competent authorityspecifically directs that it shall be so treated for any specifiedpurpose:

Provided that if the Government employee so desires such authorityDmay direct that the period of absence from duty including theperiod of suspension preceding his dismissal, removal orcompulsory retirement, as the case may be, shall be convertedinto leave of any kind due and admissible to the Governmentemployee.

ENote. –The order of the competent authority under the precedingproviso shall be absolute and no sanction of the higher authorityshall be necessary for the grant of–

(a) extraordinary leave in excess of three months in the caseof a temporary Government employee; and F

(b) leave of any kind due in excess of five years in the case ofa permanent and quasipermanent Government employee.

(6) The payment of allowances under sub-rule (2) or sub-rule (4)shall be subject to all other conditions under which such allowancesare admissible.G

(7) The amount determined under the proviso to sub-rule (2), orunder sub-rule (4) shall not be less than the subsistence allowanceand other allowances admissible under rule 7.2.

(8) Any payment made under this rule to a Government employeeHon his reinstatement, shall be subject to adjustment of the amount, if any, earned by him through an employment during the periodbetween the date of removal, dismissal or compulsory retirement,as the case may be, and the date of reinstatement. Where theemoluments admissible under this rule are equal to or less thanthe amounts earned during the employment elsewhere nothingshall be paid to the Government employee.

Note 1.–This rule is absolute and unconditional and so the questionof lien does not arise in the case of a Government employee whois dismissed from service and is reinstated on appeal, revision orreview when the period of unemployment between the date ofdismissal and reinstatement is declared by the authority exercisingthe powers of appeal, revision or review as the period spent onduty.

Note 2.–Clause (b) of sub-rule (1) of this rule does not forbid theperiod spent under suspension being treated as leave, and it isopen to the authority exercising the powers of appeal, revision orreview to specify the proportion of pay and allowances to be paidas the leave salary which would be permissible, if the Governmentemployee were on leave.

Administrative Instruction. –A permanent post vacated by thereason of dismissal, removal or compulsory retirement of aGovernment employee should not be filled substantively until theexpiry of a period of one year from the date of such dismissal,removal or compulsory retirement. Where, on the expiry of theperiod of one year, the permanent post is filled and the originalincumbent of the post is reinstated thereafter, he should beaccommodated against any post which may be substantivelyvacant in the grade to which his previous substantive post belonged.If there is no such vacant post, he should be accommodated againsta supernumerary post which should be created in that grade withproper sanction and with the stipulation that it would terminate onthe occurrence of the first substantive vacancy in that grade.

Note 3.–If no order is passed under sub-rule (5), directing thatthe period of absence be treated as duty for any specified purpose,the period of absence should be treated as ‘non-duty’. In suchevent, the past service (i.e., service rendered before dismissal,removal, compulsory retirement) will not be forfeited.

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ANote 4. –There is no bar to the conversion of any portion of aperiod of suspension into extraordinary leave. In the case of personswho are not fully exonerated, the conversion of the period ofsuspension into leave with or without allowances has the effectof removing the stigma of suspension and all the adverseconsequences flowing therefrom. The moment the period ofBsuspension is converted into leave, it has the effect of vacatingthe order of suspension, and it will be deemed not to have beenpassed at all. Therefore, if it is found that the total amount ofsubsistence and compensatory allowances that an officer receivedduring the period of suspension exceeds the amount of leave salaryCand allowances, the excess will have to be refunded and there isno escape from this conclusion.”

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12. Rule 7.3A deals with pay and allowances where the dismissal,removal or compulsory retirement is set aside by a court of law andsuch employee is reinstated without holding any further inquiry.

DThe relevant part of Rules 7.3 (B) reads as follows:- “7.3-B. (1) When a Government employee who has beensuspended is reinstated or would have been so re-instated but forhis retirement on superannuation while under suspension theauthority competent to order re-instatement shall consider andEmake a specific order –

(a) regarding the pay and allowance to be paid to the Governmentemployee for the period of suspension ending with re-instatementor the date of his retirement on superannuation, as the case maybe; and F

(b) whether or not the said period shall be treated as a periodspent on duty.

(2) Notwithstanding anything contained in rule 7.3 or rule 7.3-A,where a Government employee under suspension dies before thedisciplinary or court proceedings instituted against him, areGconcluded, the period between the date of suspension and thedate of death shall be treated as spent on duty for all purposesand his family shall be paid the full pay and allowances for thatperiod to which he would have been entitled, had he not beensuspended, subject to adjustment in respect of subsistenceHallowance already paid.

(3) Where the authority competent to order re-instatement is ofopinion that the suspension was wholly unjustified, the Governmentemployee shall, subject to the provisions of sub-rule (8), be paidthe full pay and allowances to which he would have been entitled,had he not been suspended:

Provided that where such authority is of opinion that the terminationof the proceedings instituted against the Government employee,had been delayed due to reasons directly attributable to theGovernment employee, it may, after giving him an opportunity tomake his representation and after considering the representation,if any, submitted by him, direct, for reasons to be recorded inwriting, that the Government employee shall be paid for the periodof such delay only such amount (not being the whole) of such payand allowances as it may determine.

(4) In a case falling under sub-rule (3), the period of suspensionshall be treated as a period spent on duty for all purposes.”

13. If we take up Rule 7.3-B relied upon by the learned AdvocateGeneral, it gives us the impression that its intent is to deal with caseswhere a person is placed under suspension but thereafter reinstated.‘Conspicuous by its absence’ in Rule 7.3B are expressions indicatingthat apart from suspension, the matter progressed to a stage where theemployee came to be visited with any penalties. In other words, therecan be cases where a person may be placed under suspension and withoutthe matter progressing further, the authority in its discretion and powerdecides to revoke the suspension and he is reinstated. Rule 7.3, on theother hand, deals squarely with the situation where the employee whoseservices are terminated succeeds in an appeal or other remedy and thereis an order of reinstatement and a question arises as to how the periodprior to his dismissal is to be reckoned. The orders which can be passedare expressly provided for therein. In other words, the scheme of theRules would appear to be that when an employee who has beenproceeded against, succeeds before the higher forum, the question as towhat is to be done for the period when he was kept out of service wouldhave to be determined in the manner provided therein.

14. Rule 15(v)(f) has been noticed by the High Court to find thatthere was power with the authority. Rule 15(v)(f) reads as follows:

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(v) an order-

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(f) determining whether or not the period from the date of hissuspension or from the date of his dismissal, removal, compulsoryretirement or reduction to a lower service, grade, post, time scaleof pay or stage in a time scale of pay to the date of his reinstatementor restoration to his service, grade or post shall be treated as aDperiod spent on a duty for any purpose.

15. Rule 15(v)(f) indeed contemplates that when there is adismissal, removal, compulsory retirement or reduction to a lower serviceinter alia and there is an order of reinstatement, the authority is to passan order as to whether the period from the date of suspension or fromEthe date of his dismissal, removal or compulsory retirement till the dateof his reinstatement, is to be treated as a period spent on duty for anypurpose. This gives a clear indication that upon an order being passed bythe appellate authority finding the termination of employee to be illegaland leaves it there, it would not ipso facto inevitably follow that theemployee will become entitled to claim the salary for the entire periodFconsequent upon his being found to be entitled to reinstatement. This isa matter for the authority to decide.

16. In such circumstances, in our view, the proper order to bepassed would be to find as follows:

G(1)The decree of the trial Court as confirmed by the firstappellate Court is to be sustained viz., we find that the firstappellate authority in proceeding to impose the conditionthat the appellant will not be entitled to any salary for theperiod and that it will be treated as dies non cannot besustained.

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(2) However, the further direction by the decree passed by thetrial Court and confirmed by the first appellate authoritythat the appellant will be entitled to the salary for the periodhe was kept out of service also cannot be sustained.

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(3) Insofar as the High Court has not noticed these aspectswhile allowing the appeal and dismissing the review petition,Bwe are of the view that the impugned judgment also cannotbe sustained.

17. Accordingly, we dispose of the appeals by setting aside theimpugned judgment and modifying the judgment passed by the firstappellate Court and set aside the decree passed by the trial Court directingpayment of salary to the appellant for the period that he was kept out ofservice.

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There will be a decree directing the second respondent to consideras to how the period till the appellant was reinstated is to be treated andconsequential effect thereof. In other words, the question will be asDregards the period from 13.03.2003 till 20.03.2009. This exercise will beundertaken and concluded within a period of three months from today.

Parties are directed to bear their respective costs.

The civil appeals are allowed as above.

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Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeals disposed of.

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