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S. Barman Roy, J.—During the pendency of this writ petition, the deceased Petitioner died. After his death his legal heirs, namely, his wife and children have been substituted.
By this writ petition under Article 226 of the Constitution of India, the deceased Petitioner prayed for a writ/direction asking the Respondents to pay him the full salary and allowances for the period when he was under suspension and also for paying him salary and allowances according to the scale of Tripura Civil Service Grade-II Officer with effect from 21.10.72 to 24.11.80 and according to the scale of T.C.S. Grade-I officers since 25.11.80.
The case of the deceased Petitioner, in short, is that when he was serving as Sub-Treasury Officer at Dharmanagar, North Tripura, a Criminal case was instituted against him u/s 409 I.P.C. During pendency of the said Criminal case, the deceased Petitioner was placed under suspension with effect from 13.3.61. However, on 15.8.66 the said order of suspensior was revoked though criminal case was pending even at that time. During the period of suspension the deceased Petitioner was given only his subsistence allowance. Subsequently by judgment dated 31.5.1977, the Criminal Court acquitted the deceased Petitioner from the charge u/s 409 I.P.C.
Though the deceased Petitioner was reinstated after revoking the suspension order on 15.8.66, yet his immediate juniors were allowed to be promoted on 21.10.72 to the cadre of T.C.S. Grade-II against promotion quota superseding the deceased Petitioner presumably because the criminal case against the deceased Petitioner was pending at that time. After the deceased Petitioner was acquitted of various charges in the criminal case, his case was considered by the D.P.C. for promotion and accordingly by Notification dated 12.5.81 he was promoted to T.C.S. Grade-II against promotion quota on probation with retrospective effect from 21.10.72 when some of his junior officers were promoted to the said post superseding him. Subsequently the deceased Petitioner was again promoted to T.C.S. Grade-I with effect from 25.11.1980.
Now the case of the deceased Petitioner is that though he had received subsistence allowance during the period when he was under suspension with effect from 13.3.61 till about 15.8.66 when the said order of suspension was revoked, yet he has not been given full pay and allowances for the said period. Apart from subsistence allowance during the said period, nothing more was paid to him. His further case is that though he was given promotion to T.C.S. Grade-II by an order dated 12.5.81 with retrospective effect from 21.10.72 and to T.C.S. Grade-I with effect from 25.11.80, yet lie has not been given the salary and allowances according to the scale of pay applicable to T.C.S. Grade-II officers during the relevant period with effect from 21.10.72 till 24.11.80 and from 25.11.80 as per pay scale of T.C.S. Grade-I officers when the said orders of promotion were issued. So further grievance of the deceased Petitioner is that he should be given the salary and allowances for the aforesaid period from 21.10.72 to 24.11.80 according to the scale of pay applicable to T.C.S. Grade-II officers and since 25.11.80 he was entitled to pay scale of T.C.S. Grade-I.
It appears from various documents annexed to the writ petition that number of correspondences were exchanged between the State Government and the office of the Accountant General Tripura in this matter. It appears there from that though at the initial stage the Government had no objection against payment of salary to the deceased Petitioner as per scale applicable to T.C.S. Grade-II officers for the period from 21.10.72 till 24.11.80, yet Accountant General, Tripura did not accept such proposal of the State Government as the State Government did not relax the Government of India''s decision No. 17 under Article 193 of Civil Service Regulation, Vol. I. For this reason, office of the Accountant General, Tripura time and again sought clarification from the Govt. of Tripura as to whether aforesaid relaxation had been made by the Stale Government for issuing appropriate pay slip inflator of the deceased Petitioner, However, pursuant to a direction issued by this Court by order dated 24.11.92 in this case, Government of Tripura issued letter dated 22.3.93 stating that the Govt. had already examined the matter and found that there was no scope for relaxation of Government of India''s decision No. 17 below Article 193 of the Civil Service Regulation, Vol. I. Said letter is quoted hereunder:
No. F23 (23)-GA/89 GOVERNMENT OF TRIPURA APPOINTMENT AND SERVICES DEPARTMENT
Dated, Agartala, the 22nd March, 1993.
To
The Accountant General (A and E)
Tripura, Agartala.
Subject: Payment of arrears of pay and allowances to Shri J.K. Bhattacharjee, retd. TCS Officer.
Sir,
I am directed to refer to your letter No. GAI/PF/3654 dated 3.2.82 and No. GAI/PF/JKB/170 dated 27.5.1988 on the subject noted above to say that the proposal for relaxation of the Government of India''s decision No. 17 below Article 193 of C.S.R. Vol-I was duly considered by the Government. But there is no scope towards relaxation of above provision of Rule.
Yours faithfully
From the aforesaid it is, therefore, apparent that the Government declined to relax the aforesaid decision No. 17 of the Government of India under Article 193 of Civil Service Regulation, Vol-I and accordingly, the office of the Accountant General, Tripura refused to issue appropriate pay slip to the deceased Petitioner.
Furthermore, as regards payment of full salary and allowances for the period of suspension, Government of Tripura issued the order dated 5.2.82 (Annexure-F) rejecting the prayer of the deceased Petitioner for payment of full salary and allowances for the period of suspension. The said order dated 5.2.82 reads as under:
No. F. 6(17)-VIG/66 GOVERNMENT OF TRIPURA ADMINISTRATIVE REFORMS DEPARTMENT
Dated, Agartala, the 5th February, 1982. ORDER
In continuation of this Government''s order of even number dated the 1st August, 1986, revoking the order of suspension of Shri Jatindra Kumar Bhattacharya, Sub-Treasury Officer, Dharmanagar, Tripura it is hereby ordered that the aforesaid Shri Jatindra Kumar Bhattacharya will not be paid to him for the enters period of allowances than what was paid to him for the entire period of his suspension and also that the entire period of his suspension be treated as a period spent on duty only for the purpose of pension.
By order and in the name of the Governor, Sd/- S.C. Baul. Deputy Secretary to the Government of Tripura.
Again by letter dated 22.11.86 (Annexure-G), Government of Tripura informed the deceased Petitioner that his prayer for payment of full salary and allowances for the period of suspension can not be acceded to and the said letter reads as under:
No. F. 6 (17)-VIG/66 GOVERNMENT OF TRIPURA ADMINISTRATIVE REFORMS DEPARTMENT
Dated, Agartala, the 22nd Nov. 1986.
To
Shri J.K. Bhattacharjee,
Retds. Under Secretary to the
Govt. of Tripura. P.O. Ramnagar,
Ramnagar, Agartala.
Pin: 799 002.
Subject: Prayer for payment of arrears during suspension period.
Sir,
I am directed to refer to your letter No. PE and S/84 dated 23rd May, 1984 on subject noted above addressed to the Chief Secretary, Govt. of Tripura, Administrated Reforms Department, Agartala.
It is regretted that your prayer can not be accused to.
Yours faithfully, Sd/- N.C. Deb Barma Deputy Secretary to the Government of Tripura.
After some correspondences were exchanged between the deceased Petitioner and the Government of Tripura, the deceased Petitioner was again formed by the Government of Tripura that his prayer for relaxation of Government of India''s decision No. 17 under Article 193 of the Civil Service Regulation I can not be allowed. The letter dated 30.5.89 (Annexure-J), issued by the Government of Tripura to the deceased Petitioner contains the aforesaid information the same is re-produced below:
NO. F.4 (142)- GA/56 GOVERNMENT OF TRIPURA APPOINTMENT AND SERVICES DEPARTMENT
Dated, Agartala, the 30th May, 1989.
To
Shri J.K. Bhattacharjee,
Retired TCS/Under Secretary to the Govt. of Tripura,
P/O. Ramnagar-6
Agartala.
799002.
Subject: Prayer for relaxation of G.I. Decision No. 17 below Article 193 of C.S.R. Vol. I by the Finance Department, Govt. of Tripura.
Sir,
I am directed to refer to your representation dated 25.3.88 on the subject mentioned above and to say that Accountant General, Tripura in consultation with Comptroller and Auditor General of India has informed that arrears of pay etc. as claimed by you can not be authorized for payment as per Govt. of India''s decision No. 17 below Article 193 of CSR Vol. I, Further, Accountant General, Tripura has pointed out that no arrears of payment was authorized in any cases of similar nature as per their records.
Yours faithfully, (R.K. Gon) Under Secretary to the Government of Tripura.
In the aforesaid circumstances, the deceased Petitioner had approached this Court for appropriate relief as indicated above.
However, it is necessary to mention here that before filing the present write petition, on an earlier occasion, the deceased Petitioner also filed writ petition being Civil Rule No. 11 of 1987 in this Court seeking the same relief as prayed for in the present writ petition. However, during the pungency of the aforesaid Civil Rule No. 11 of 1987, Government of Tripura by its letter dated 12.10.87 (Annexure-B) again requested the office of the Accountant General, Tripura to issue a propping Pay Slip allowing the deceased Petitioner to draw his arrears of salary etc. for the aforesaid period of his suspension to avoid financial hardship to the deceased Petitioner after his retirement. In this connection Government of Tripura gave elaborate reasons in the aforesaid letter dated 12.10.87 as to why such prayer of the deceased Petitioner should be allowed. In view of the aforesaid letter, the deceased Petitioner believed that his prayer would be allowed and his grievances would be redressed by the Respondents and accordingly, he withdrew the writ petition. This Court by an order dated 7.4.88 disposed of the said writ petition. The order dated 7.4.88 reads as under:
ORDER
7.4.88. Heard Mr. B. Das, Learned Counsel for the Petitioner.
By an order passed today in Civil Misc. Case No. 345 of 1987, the copy of the letter of the Government of Tripura under No. F.4 (142)- GA/56 dated 12th October, 1987 has been allowed to be annexed as Annexure- ''L'' to the Writ petition. Mr. Das submits that as the state has accepted the demand of the Petitioner, the Petitioner does not want to press the present petition and accordingly the petition is dismissed.
We hope and trust that the Accountant General, Tripura, shall comply with the orders of the Government as early as possible to give relief to the present Petitioner.
It is, therefore, apparent from the aforesaid order dated 7.4.88 that the deceased Petitioner withdrew the writ petition on the understanding that the Respondents would allow his prayer and redress his grievances. This Court also expressed the hope and trust that the Accountant General, Tripura would comply with the orders of the Government as early as possible to give complete relief to the deceased Petitioner. Despite what is stated above, the deceased Petitioner was again informed by the Government of Tripura by its letter dated 30.5.89 that the Accountant General, Tripura in consultation with the Comptroller and Auditor General of India decided that arrears of pay etc. as claimed by the deceased Petitioner can not be authorized for payment as per Government of India''s decision No. 17 below Article 193 of C.S.R., Vol-I. This letter of the Government of Tripura has already been quoted above.
In these circumstances, the deceased Petitioner had to file this writ petition again in this Court seeking the relief as already stated.
So, this Court in this case is now required to decide two things, namely, whether the Petitioners are entitled the full pay and allowances of the deceased Petitioner for the period during which he was under suspension and also whether the deceased Petitioner was entitled to salary and allowances according to the pay scale of T.C.S. Grade-II officers from 21.10.72 to 24.11.80 and also according to T.C.S. Grade-I scale since 25.11.80. It would be convenient to take up the case of suspension first. Relevant provision in this regard is provided by F.R. 54. F.R. 54 reads as under:
F.R. 54(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re-instated or would have been re-instated but for his retirement on superannuation while under suspension, the authority competent to order the re-instatement 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 or for the period of suspension ending with the date of his retirement on superannuation as the case may be 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 (1) is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government 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 Government 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 53.
(4) In case falling under Clause (2) the period of absence from duty 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 Government servant so desires, such authority may direct that the period of absence from duly shall be converted into leave of any kind due and admissible to the Government servant.
It has already been noted above that the Government of Tripura merely refused to pay the full pay and allowances of the deceased Petitioner for the period of his suspension, though such period was treated as a period spent on duty, without holding whether or not the deceased Petitioner was fully exonerated in the criminal case. Now, Sub-rule (2) of F.R. 54 provides that where the authority mentioned in Sub-rule (1) is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been, inter-alias, suspended. Sub-rule (3) thereof further provides that in other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. I have already quoted the letter of the Government of Tripura by which prayer of the deceased Petitioner to pay him full salary and allowances etc. for the period of his suspension was rejected without communicating any decision of the competent authority as to whether he was fully exonerated or not or as to whether the suspension order was fully unjustified or not. The Government did not communicate any decision to the deceased Petitioner as to whether his case is covered by Sub-rule (2) or by Sub-rule (3) of F.R. 54. The deceased Petitioner was also not given any opportunity to show cause with regard to the aforesaid decision taken by the Government that apart from subsistence allowance the deceased Petitioner had already received, he would not be entitled to any further payment. F.R. 54, as quoted above, has subsequently undergone lot of amendments. That apart F.R. 54-A and F.R. 54-B have been inserted. Original F.R. 54 has been substantially amended. However, the present case is covered by F.R. 54 as it stood during the period when suspension order of the deceased Petitioner was revoked. The provision of F.R. 54 which was in force during the material time is what is quoted above.
The Supreme Court in M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, has settled the position of law in this regard holding that the Government servant is at least entitled to a show cause notice before any such decision is taken under F.R. 54. In paragraph 7 it has been held by the Supreme Court in Gopalkrishna''s case as follows:
(7) It is true as Mr. Sen pointed out that F.R. 54 docs not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Clause 2 or Clause 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion there from of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Beside an order passed under this rule would obviously affect the Government servant adversely if it is one made under Clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirely, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The. very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.
In paragraph 10 of the same judgment the Supreme Court further held as follows:
(10) In our view F.R. 54 contemplates a duty to act in accordance with the basic concept of justice and fairly. The authority therefore had to afford a reasonable opportunity to the Appellant to show cause why Clauses 3 and 5 should not be applied and that having not been done the order must be held to be invalid.
Now admittedly the Respondent did not take any decision in accordance with the provisions of F.R. 54, neither the deceased Petitioner was served with a show cause notice as to why he should not be given the full pay and allowances for the period of his suspension. Following the aforesaid decision in the case of Gopalkrishna. The Supreme Court again in B.D. Gupta Vs. State of Haryana, expressed the same view in the context of Punjab Civil Service Rules. Rule 7.3 of Punjab Civil Services Rules is similar to the provisions of F.R. 54.
Following the aforesaid authorities, I am constrained to observe that is rejecting the prayer of the deceased Petitioner to give him full pay and allowanced for the period during which he was under suspension, Respondents acted in violation of F.R. 54 inasmuch as the Respondents did not take any decision in accordance with the provisions of F.R. 54 on the question as to whether the Court completely exonerated the deceased Petitioner from the criminal case or not; or as to whether suspension was fully justified or not. Without taking such decision, Government has no authority/jurisdiction to decide the question as to whether the deceased Petitioner should be given full pay and allowances or he should not be given any thing apart from subsistence allowance for the period during which he was under suspension. That apart, the deceased Petitioner was not given any notice calling upon him to show cause against the proposal of the Respondents not to give him full pay and allowances for the period of suspension. Therefore, whatever decision was taken by the Government was contrary to the provisions of F.R. 54 and is equally violative of principles of natural justice. As has been done by the Supreme Court in the aforesaid cases of Gopalkrishna and B.D. Gupta, I could have remanded the case back to the Government for deciding it afresh in accordance with the provision of F.R. 54 and in conformity with the principles of natural justice. But the deceases Petitioner not only retired from his service during the pungency of this Rule, he has also expired. Therefore, he will no longer be available for showing cause against such notice. In these circumstances I am left with no option but to hold that the legal heirs of the deceased Petitioner are not supposed to be fully conversant with the facts and circumstances of the case of the deceased Petitioner and therefore, they are certainly handicapped in effectively giving reply to any such show cause notice in these circumstances, I am left with no option but to direct the Respondents to pay the legal heirs of the deceased Petitioner the full pay and allowances for the period of suspension.
The next important question to be decided in this case is whether the deceased Petitioner was in fact entitled to the full pay and allowances according to the scale of T.C.S. Grade-II officer from 21.10.72 till 24.11.80 and thereafter according to the scale of pay of T.C.S. Grade-I officers since 25.11.80?
According to the Respondents, in view of Government of India''s decision No. 17 under Article 193 of C.S.R., Vol. I, the deceased Petitioner was not entitled to pay scale of T.C.S, Grade-II and Grade-I respectively for the relevant periods as the deceased Petitioner did not perform any duly as officer of the aforesaid Grade. Sub-Para 2 of the aforesaid decision No. 17 relevant for our purpose and it reads as under:
A question has been raised as to how the seniority should be fixed in cases of the above type where, for promotion to the next higher grade a minimum period of Service is prescribed but which the Government servant concerned could not put in on account of suspension, which was ultimately found to be wholly unjustified. It has now been decided that in such a case, the period during which any other junior to the suspended officer concerned was promoted to the higher grade should be reckoned towards the minimum periods of service referred to above for the purpose of determining his eligibility for promotion to the higher grade. It has been decided that the pay of such category of Government servant should, on promotion be fixed by allowing the intervening period, during which the suspended officer could not be promoted due to his suspension, to be counted for increments in the higher grade, but no arrears would be admissible. These concessions will also be admissible to those Government servants who, though not under suspension, could not be promoted to the higher grade on account of their being implicated in departmental proceedings, or on account of their conduct being under investigation and who were subsequently completely exonerated.
According to the Accountant General, Tripura, unless the Government of Tripura relaxes the aforesaid decision of the Government of India, it is not possible for the office of the Accountant General, Tripura to issue necessary Pay Slip in favour of the deceased Petitioner to give him pay and allowances according to the scale of T.C.S. Grade-II and Grade-I for the period during which the deceased Petitioner actually did not perform any duty. The said decision clearly stipulates that though the intervening period may be treated as period spent on duty and his seniority and pay should be fixed accordingly, but no arrears would be admissible. In short the deceased Petitioner was entitled to only a notional promotion for the purpose of fixation of pay after his actual promotion and for the purpose of seniority etc., but he was not entitled to any arrears. That apart the Respondents in their correspondences referred to F.R. 17 which provides that subject to any exception specifically made in these rules and to the provision of Sub-rule (2) thereof, a officer shall begin to draw the pay and allowances attached to his tenure of a part with effect from the date when he assumes the duties of that post and shall center to draw them as soon as he ceases to discharge those duties. Proviso thereto further provides that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.
Therefore, the Respondents rejected the prayer of the deceased Petitioner to allow him to draw the pay and allowances with effect from the date on which he was promoted to the post of T.C.S. Grade-II and Grade-I with retrospective effect from the respective dates.
The Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., had an occasion to deal with a case more or less of similar nature in which also it was contended on behalf of the Union of India that in view of certain Memoranda issued by the Govt. of India, a Government servant was not entitled to draw the pay and allowances according to the scale of respective post to which such Government officer was promoted with retrospective effect until and unless he actually assumed the duties in such post to which he was promoted. The Supreme Court outright rejected the aforesaid contention. In this case the Supreme Court had an occasion to examine the similar provision made in an office Memorandum No. 22011/1/79. Estt (A) dated 30.1.1982 and Anr. office Memorandum No. 22011/2/86. Estta (A) dated 12.1.1988 issued by the Government of India (Department of Personnel and Training). The Memorandum dated 30.1.82 was to some extent amended by the subsequent Memorandum dated 12.1.88. But for the purposes of our case the relevant provisions of the aforesaid two Memoranda are same. The said Memorandum dated 30.1.82, inter-alias, provides that in the normal course, on the conclusion of the disciplinary/Court proceedings, the sealed cover or covers may be opened and in case the officer is completely exonerated i.e. to statutory penalty, including that of censure is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/Court proceedings against him may be determined with reference to the position (s) assigned to him in the findings in the sealed cover/covers and with reference to the date of promotional of his next junior on the basis of such position. The officer concerned may then be promoted, if necessary by reverting the junior-most officiating person and he may be given a notional promotion from the date he would have been promoted as determined in the manner indicated in the said Memorandum. But no arrears of Pay shall be payable to him for the period of notional promotion preceding the date of actual promotion. If any penalty is imposed on the officer as a result of the disciplinary proceedings of if he is found guilty in the Court proceedings against him the findings in the sealed cover/covers shall not be acted upon. The officer''s use for promotion may be considered in the usual manner by the next D.P.C. which sets in the normal course after the conclusion of the disciplinary Court proceed. These provisions in the aforesaid two Memoranda as regards non-payment of mears of salary for the period of notional promotion preceding the date of actual no motion in effect is surely similar to the aforesaid Government of India''s decision No. 17(2) under Article 193 of the C.S.R., Vol. I.
While dealing with the aforesaid two Memoranda the Supreme Court in the case of K.V. Jankiraman (supra) held in paragraph 7 that there is no doubt that than an employee is completely exonerated and is not visited with the penalty even censure indicating thereby that he was not found blameworthy in the least he could not be deprived of any benefit including the salary of the promotional post. Supreme Court also dealt with F.R. 17. While dealing with F.R. 17, the Supreme Court again observed in paragraph 7 itself-
We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. Ii is for this reason that F.R. 17(1) will also be inapplicable to such cases.
We are therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be Cases where the proceedings, whether disciplinary or criminal are for example, delayed at die instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extern to which he deserves it. Life being complex it is not possible to anticipate and numerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they (sic)ist and lay down an inflexible rule that in every case when an employee is donated from disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first Sub-paragraph after Clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion," we direct that in place of the said sentence the following sentence be read in the Memorandum:
However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstance of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it will record its reasons for doing so.
To this extent we set aside the conclusion of the Tribunal on the said point.
After laying down the law in this regard, as stated above, the Supreme Court directed the authorities to examine the case of the employee concerned as to whether he was entitled to the arrears of salary for the intervening period and to what extent should be decided by the authorities. In case the authority denies the employee the salary in full or in part it would of course record its reasons for doing so. The Supreme Court also observed that if the employee was completely exonerated and not even a punishment of censure was imposed upon him departmentally, the employee concerned must be held to be entitled to full pay and allowances for the intervening period.
This being the position of law as laid down by the Apex Court, I would have preferred to remand the case back to the Respondent authorities to decide afresh after recording reasons therefore as to whether the deceased Petitioner was entitled to full pay and allowances for the intervening period or whether he was entitled to a portion thereof or none at all. I must observe here that no counter affidavit has been filed on behalf of the Respondents. I have heard Mr. B. Das, learned senior Counsel for the Petitioners as well as Mr. S. Roy, learned Govt. Advocate for the Respondent Nos. 1 and 2. The learned Govt. Advocate produced the relevant file during the course of the hearing and I have examined the same While rejecting the prayer of the deceased Petitioner for full pay and allowances since the date of his notional promotion, first to T.C.S. Grade-II and thereafter to T.C.S. Grade-I, post the Respondents did not record any reason whatsoever apart from what is provided under F.R. 17 and the Government of India''s decision No. l7 under Article 193 of C.S.R., Vol. I. But it has not been recorded whether or not the deceased Petitioner was fully exonerated from the criminal case. It is of course an admitted fact that not even punishment of censure was imposed upon the deceased Petitioner departmentally after he was acquired from the criminal case. But I cannot remand the case back to the Respondent authorities as the deceased Petitioner is no longer available as he died during the pendency of this writ petition in this Court and his legal heirs have been substituted. Surely the legal heirs of the deceased Petitioner are not expected to be fully conversant with all the facts and circumstances of the case of the deceased Petitioner. Therefore, it would not be possible for the legal heirs of the deceased Petitioner to give an effective reply if any show cause notice is issued by the Respondents in this regard. In view of my decision as regards entitlement of the deceased Petitioner for full pay and allowances during the Suspension period, the deceased Petitioner was entitled to a show cause notice before the Respondents took decision under F.R. 54 It has been held by the Supreme Court in series of decisions, as noted in this judgment herein above, that a Government employee in similar circumstances is surely entitled a notice to show cause before the Respondents take decision under F.R.54. If principles of natural justice is applicable before a decision is taken under F.R. 54, there is no reason to hold that principles of natural justice would not apply when the Respondents want to decide the question as to the entitlement of the Govt. employee to full pay and allowances since the date of his notional promotion to a higher post. Had the deceased Petitioner been alive now, I would have directed the Respondents to decide this question afresh after issuing a notice to show cause. But the deceased Petitioner is no longer available as he died during the pendency of this writ petition. Therefore, it is not possible on that part of the legal heirs of the deceased Petitioner to effectively give reply to any such show cause notice. For this reason, I decline to refer the matter to the Govt. again for a fresh decision. I, therefore, hold that the legal heirs of the deceased Petitioner are entitled to full pay and allowances to which the deceased Petitioner would have been entitled for the intervening period from the date his notional promotion to the post of T.C.S. Grade-II and Grade-I till he actually assumed charge of such posts. In fact Mr. S. Roy, learned Govt. Advocate was fair enough to concede that in view of law laid down by the Apex Court in the aforesaid decisions, Petitioners, who are the legal heirs of the deceased Petitioner, are entitled to the relief''s they have prayed for.
For the aforesaid reasons, I allow this petition and direct the Respondents to pay the full pay and allowances to the legal of the deceased Petitioner for the period during which the deceased Petitioner was under suspension. I further direct the Respondents to pay the legal heirs of the deceased Petitioner the full pay and allowances according to the scale of T.C.S. Grade-I and Grade-II posts since the date of notional promotion of the deceased Petitioner to such posts till the date on Which he had actually assumed charge of such posts. I further direct the Respondents to make payment, as stated above, within a period of 3(three) months from today.
No order as to costs.