JUDGMENT Tarun Agarwala, J.
1. The petitioner is a constable and was placed under suspension by an order dated 18.1.1994 on the ground that a Criminal Case No. 122 of 1993 was lodged against him. The competent authority by an order dated 13.8.1999 revoked the suspension order and reinstated the petitioner pending disposal of the criminal case and departmental inquiry, if any. The order also indicated that the allowances payable during the suspension period would be considered after the decision of the case or at a later stage.
2. The petitioner alleged that he made several representations to the authority to reconsider the matter and pay the remaining amount of salary for the suspended period and eventually filed Writ Petition No. 41887 of 2004 before this Court which was disposed of by an order dated 6.10.2004, directing the authorities to decide his representation preferably within a period of three months The representation of the petitioner was rejected by the authority by an order dated 20.6.2005. Consequently, the present writ petition.
3. The impugned order indicates stated that the petitioner had been convicted and given life imprisonment by judgment a dated 3.12.2003 of the Criminal 3Court, against which, the petitioner has filed an appeal before the Appellate Court, which is pending. The competent authority, therefore, rejected the representation of the petitioner on the ground that till the disposal of the appeal, no orders on his pay could be passed.
4. The learned counsel for the petitioner submitted that the impugned order was patently erroneous and was liable to be quashed. The learned counsel for the petitioner contended that under Rule 54B(1) the petitioner was entitled to be paid the pay for the period of suspension pursuant to the order of reinstatement. The submission of the learned counsel for the petitioner is that since the petitioners suspension was revoked by to order dated 13.8.1999, the petitioner was entitled for full pay during the period of suspension, i.e., from 18.1.1994 to 13.8.1999 under Rule 54-B(1) of the Uttar Pradesh Fundamental Rules, Volume-II, Parts 2 to 4.
5. On the other hand, Sri Suresh Singh, the teamed counsel for the respondents submitted that the petitioner was not entitled for any relief. The petitioner had been convicted and final orders on his pay would be passed by the authority under Rule 54-B(6) of the Fundamental Rules. The learned Standing Counsel further submitted that the petitioner had been issued a show cause notice dated 29.6.2005 to show cause why his services, should not be dismissed in view of his conviction in a criminal case and in view of the aforesaid show cause notice, the competent authority would pass final orders on his pay lander Rule 54-B(6) of the Fundamental Rules.
6. Heard Sri Umesh Vats, the learned counsel for the petitioner and Sri Suresh Singh, the learned Standing Counsel for the respondents
7. In exercise of the powers under Sub-sections (2) and (3) of Section 46 read with Sections 2 and 7 of the Police Act, 1861, The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 has been framed. Rule 17 provides for suspending a Police Officer pending comtemplation of an inquiry. Rule 17(1)(b) states:-
"(b) A Police Officer in respect of or against whom an investigation enquriy or trial relating to a Criminal charge is pending may at the discretion of the appointing authority under: whom he is serving be placed under suspension, until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Police Officer or is likely to embarrass him in the discharge of his duties or involves moral turpitude. If the prosecution is instituted by a private person on complain the appointing authority may decide whether the circumstance of the case justify the suspension of the accused."
8. On the basis of the aforesaid Rule, the petitioner was suspended pending finalization of the criminal trial. Rule 17 however does not provide for payment of subsistence allowance during the suspension period and, for this purpose, the Fundamental Rules comes into play which is equally applicable to the petitioner Rule 54-B of the Uttar Pradesh Financial Hand Book, Volume II, parts 2 to 4 is relevant, which is quoted herein:-
"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowance to be paid to the Government servant f or the period of suspension ending with reinstatement or the date of his reinstatement 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) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or court proceeding instituted against him arep concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall) subject to the provisions of Sub-rule (8), to be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceeding instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing that ,the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under Sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under Sub-rules (2) and (3), the Government servant shall subject to the provisions of Sub-rules(8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(6) Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order parsed under Sub-rule (1) before the conclusion of the porceeding against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1), who shall make an order according to the provisions of Sub-rule{3) or Sub-rule (5), as the case may be.
(7) In a case falling under Sub-rule (5) the period of suspension, shall not be treated as a period spent on duty unless tile competent authority specifically directs that it shall be so treated for any specified purposes:
Provided that if the Government servant desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
NOTE- The order of the competent authority under the proceeding proviso shall be absolute and no higher sanction shall be necessary for the grant of-
(a) Extraordinary leave in excess of three months in the case of temporary Government servant; and
(b) Leave of any kind in excess of five years in the case of permanent Government servant (8) The payment of allowances under Sub-rule (2), Sub-rale(3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to Sub-rule (3) or Sub-rule (5) shall not be less than the subsistence allowance an|d other allowances admissible under Rule 53.
(10) Any payment made under this Rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of suspension and the date of reinstatement or, the date of retirement on superannuation while under suspension. Where the emsoluments admissible under (his Rule are equal to or less than those during the employment elsewhere, nothing shall be paid to the Government servant.
NOTE- Where the Government servant does not report for duty within reasonable time after the issue of the order of reinstatement after suspension, on pay and allowances will be paid to him for such period till he actually takes over charge.
9. Sub-section (1) of Rule 54-B contemplates that where a Government servant, who was suspended, is reinstated, in that case, the competent authority will make a specific order with regard to pay and allowances to be paid to the Government servant for the period of suspension ending with the reinstatement and also make an order whether or not the said period would be treated as a period spent on duty. The learned counsel for the petitioner has relied upon this provision and submitted that the petitioner was entitled to be paid the entire pay and allowances for the suspended period after the order of suspension was withdrawn in the year 1999. From a perusal of the order dated 13.8.1999, it is clear that the said order was passed in consonance with the provisions of Rule 54-B(1) of the U.P. Fundamental Rules. The said order contemplated that further orders with regard to the allowances during the suspended period would be passed after the decision of the Criminal Court or subsequently reconsidered at a later stage. It has also come on record that the petitioner has been convicted by a judgment dated 3.12.2003 by the Criminal Court and that a show cause notice under Rule 8(2)(a) has been issued to the petitioner under the Rules of 1991, to show cause, as to why the petitioner's services should not be dismissed. It has been stated at the Bar, that pursuant to the show cause notice, the petitioner had submitted bis reply and final orders are yet to be passed by the authority. In my view, Sub-clause(6) of Rule 54-B would come into play and the order with regard to the payment of pay and allowances during the suspended period would be reviewed by the competent authority who would pass necessary orders at the time when final orders are being passed under Rule 8(2)(a) of the Rules of 1991.
10. In view of the aforesaid, the order dated 20.6.2005 rejecting the representation of the petitioner, on the ground, that the petitioner was not entitled to the pay and allowances for the suspended period during the pendency of the appeal, before the appellate court, is not correct. The competent authority is required to review and pass fresh orders under Sub-clause (6) of Rule 54-B of the U.P. Fundamental Rules immediately after he issues the order under Rule 8(2)(a) of the Rules of l991.
11. In view of the aforesaid, the impugned order does not survive and is quashed. The writ petition is allowed. The matter is remitted bade to the competent authority to pass a fresh order with regard to the petitioner's pay and allowances under Sub-clause(6) of Rules 54-B of the U.P. Fundamental Rules immediately after he issues an order under Rule (8)(2)(a) of the Rules of 1991.