JUDGMENT U.K. Seth, J.
1. The petitioner was suspended in contemplation of an enquiry. However, he was reinstated with effect from 9.5.1985. Ultimately in the enquiry, the petitioner was found not guilty of the charges and he was reinstated with effect from the date of suspension. The respondents by order dated 28.7.1994 sought to recover certain amount from the gratuity payable to the petitioner on the ground that the petitioner during the period of suspension did not remain present at the station, therefore, the said period having been treated as leave without pay, the amount paid on account of subsistence allowance was sought to be deducted on the amount payable on account of gratuity. By another order dated 4.7.1995, the said amount was sought to be deducted from the gratuity payable to the petitioner. These two orders have been challenged in this writ petition.
2. Mr. Ashok Bhushan, learned counsel for the petitioner contends that once the petitioner has been reinstated after he was found not guilty of the charges in the enquiry, there is no scope for the respondents to deduct any amount from the gratuity payable to the petitioner.
3. Mr. O. P. Singh, learned counsel for respondents had relied on the statements made in paragraphs 6, 8, 14 and 16 of the counter-affidavit and contended that the amount was rightly adjusted against the gratuity payable to the petitioner. According to him, the petitioner was bound to remain present in the station during the period of suspension but he had absented from the place of his attachment for a total period of 1412 days. Therefore, he was treated as on leave without pay during the said period. By order dated 16.3.1992 the petitioner was required to submit either medical certificate or apply for sanction of leave. Since the petitioner could not fulfil the same, therefore, this period was treated as leave without pay by order dated 16.3.1992 which is Annexure CA-1 to the counter-affidavit. Mr. O. P. Singh learned counsel for respondents submits that the order contained in Annexure CA-1 to the counter-affidavit having not been challenged, the petitioner cannot claim any relief in this writ petition. According to him. the suspended employee is supposed to remain at the attached station and if he is absent in that event the same shall be treated as spent on leave and as such it is to be so decided. On these grounds, the writ petition should be dismissed.
4. Mr. Ashok Bhushan, learned counsel for the petitioner, on the other hand, draws my attention to Regulation 19 of the U. P. State Warehousing Staff Regulations, 1961 and points out that while passing the order on the disciplinary proceeding, the period of suspension should be treated either as on duty or on leave according to the order incorporated in the final order. In the final order, the period was never treated to be on leave. He also denied in the rejoinder-affidavit about the statements made in paragraph Nos. 6. 8, 15, 16 and 18 of the counter-affidavit. He had pointed out that whenever the petitioner had to leave the Headquarters, he had sent intimation to the Managing Director through the Local Office, copies whereof are annexed as Annexures to the rejoinder-affidavit. He had also alleged that on occasions the suspension allowance was not paid for which he was unable to maintain his family at Bareilly. It was also intimated to the authority concerned by his wife that the petitioner was suffering from heart ailment. He further contends that the order contained in Annexure-CA-1 to the counter-affidavit was passed without giving any opportunity to the petitioner. Therefore, the writ petition should be allowed since there was no justification for treating the period as on leave.
5. I have heard learned counsel for the parties at length.
6. It seems that the whole period of suspension has been treated to be on leave after the enquiry proceeding ended in favour of the petitioner which had directed reinstatement of the petitioner after having found not guilty oT the charges with effect from the date of suspension without mentioning as to how the period of suspension would be treated. It was not indicated in the said order which is Annexure-3 to the writ petition that this period would be treated as on leave. On the other hand. It has clearly pointed out that the petitioner was exonerated from the criminal case by order dated 24.12.1983 passed by the Chief Judicial Magistrate, Aligarh and that he was not found guilty in the disciplinary proceeding as such, he was reinstated with effect from the date of suspension, indicating that he was treated as on duty during the period of suspension.
7. Regulations 18 and 19 of the U. P. State Warehousing Corporation Staff Regulations, 1961 as mentioned above provide as follows :
"18. Grant of subsistence allowance to employees when under suspension.--An employee when suspended under these Regulations shall not be entitled, during the period of suspension, to draw his full pay but he will be paid during that period a monthly subsistence /allowance at such rate, not less than one fourth and not exceeding one half of his substantive pay and so much of the dearness allowance, if any. as the authority ordering suspension may determine.
19. Payment of the difference between subsistence allowance already paid and emoluments in case of reinstatement.--(1) if charges preferred against an employee placed under suspension are not proved in the departmental proceedings taken under these regulations, he shall be reinstated to his post and shall be paid the difference between the subsistence/ allowance already paid and the emoluments which he would have received but for such suspension. The period during which an employee is under suspension, shall if he is not removed or dismissed from the service, be treated as period of duty or leave as the authority passing the final order may direct.
(2) Discharge or acquittal of an employee in any criminal proceedings for any criminal offence involving moral turpitude shall not automatically entitle the employee to reinstatement. Notwithstanding such discharge of acquittal, the corporation shall be competent to institute or, if already instituted, to continue departmental proceedings on the same charges."
8. The above provisions clearly indicate that the authority passing the final order may direct how the period of suspension is to be treated. Unless the period of suspension is treated differently in the final order, the delinquent is to be treated as on duty during the said period. There is no scope for passing a separate order after the enquiry is over.
9. Regulation 19 (1) leaves no scope of ambiguity. It provides that in case the charges are not proved, then the delinquent shall be reinstated and he shall be paid the difference of suspension allowance and his due salary as if he was not suspended. Unless he is removed or dismissed from service, he shall be treated as on duty or on leave as the disciplinary authority may direct in the final order. The use of the expression ".....shall be reinstated...", "........shall....... be treated....", makes the position clear. The clear specific unambiguous provision provided does not leave any scope of doubt about the simple meaning Intended in it. The provision has to be interpreted keeping in mind that these provisions deal with matters which are penal in nature and Inflicts civil consequences on the delinquent. Therefore. If there be any ambiguity then it should be Interpreted in a manner which should go in favour of the delinquent. Therefore, unless it is directed in the final order of the disciplinary authority, a delinquent cannot be treated as on leave during the period of suspension when he was not removed or dismissed from service. The order passed by the disciplinary authority in that respect is final. The position cannot be changed subsequently. Inasmuch as the treating the delinquent as on leave during the period of suspension is also a punishment if he is found guilty of any charges which entails punishment other than removal or dismissal. Such punishment may also include forfeiture of payment of the difference of pay and the suspension allowance, which is otherwise payable when the charges are not proved. If the charges are not proved, the right to receive the difference of pay and suspension allowance becomes an entitlement of the delinquent by right. If he had left station to which he was attached without leave. In that event such fact is to be taken into consideration at the time of passing the final order.
10. It was open to the employer to bring this fact to the notice of the disciplinary authority and get the period treated as such leave without pay in the order itself by producing proper materials before the authority concerned. At the same time, nothing has been mentioned in the counter-affidavit to show that the order dated 16.3.1992, which was passed after one and half years after the order dated 10.9.1991 exonerating and reinstating the petitioner, was ever served on the petitioner. In paragraph 6 of the counter-affidavit, it has been stated that in the letter dated 16.3.1992 that as calculated by the authority concerned the petitioner was absent for 1412 days for which the petitioner could not submit any medical certificate and, therefore. It was declared leave without pay by order dated 16.3.1992. There is nothing in the counter-affidavit to indicate that as to whether the employer had ever given any notice to the petitioner with regard to the said calculation earlier than 16.3.1992. On the other hand. It shows that the calculation was done on 16.3.1992 and the order was passed on the same day. This very fact supports the contention of the petitioner made in the rejoinder-affidavit that the petitioner was never given any opportunity with regard thereto.
11. The question whether the said period should be treated as on leave without pay or not has to be determined in an appropriate manner particularly when there were admitted allegations that suspension allowance was not paid intermittently from time to time during the period when the petitioner remained under suspension and that the said question had never been dealt in the final order. If such a stand was taken. In that event, it would lead us to presume that though the petitioner was exonerated of the charges, yet he has been punished in a round about method. What the respondents could not do through the disciplinary proceedings has been sought to be achieved in oblique manner. In the facts of the present case, it raises a grave suspicion in the mind of the Court to the extent that this mode and method of treating the period as on leave without pay and adjusting the leave due to him against the said period is not genuine effort on the part of the respondents. On the other hand. It presupposes an oblique motive on the part of the respondents.
12. The statements made in other paragraphs of the counter-affidavit has reiterated the statement made in paragraph 6 to the effect that the petitioner was treated as on leave without pay during the said period by reason of the order dated 16.3.1992 which was sought to be justified by the respondents and was vehemently argued by the learned counsel for respondents.
13. In view of the above finding as indicated above, the writ petition succeeds and the Impugned order dated 28.7.1994 contained in Annexure-7 to the writ petition and the order dated 4.7.1995 (Annexure-9 to the writ petition) are hereby quashed. Let a writ of certiorari do issue accordingly. Respondents are hereby directed to pay the difference of pay and the suspension allowance to the petitioner during the period during which the petitioner remained under suspension and to pay the amount of gratuity since been withheld with 12% interest per annum simply calculated from 8.11.1995 till the date of payment. The said amount shall be paid to the petitioner within a period of six months from the date a certified copy of this order is produced before the concerned respondents. Let a writ of mandamus do issue accordingly.
14. The writ petition is thus disposed of. However, there will be no order as to cost.