JUDGMENT Umeshwar Pandey, J.
1. The petitioner has approached this Court for grant of following reliefs under Article 226 of the Constitution of India :
(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 15.1.2000 (Annexure-5 to the writ petition) and 31.10.2001 (Annexure-12 to the writ petition) passed by the respondents.
(b) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the entire arrears with penal interest, In payment of the remaining of 25% of the salary of the entire period of suspension.
(c) Issue a writ, order or direction in the nature of mandamus commanding the respondents to release the pension of the petitioner on the basis of full salary and also pay the arrear.
(d) Issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) Award the cost of the petition to the petitioner.
2. It is contended by the petitioner that while working as a Block Development Officer on 11.9.1985 ; he was served with a suspension order on the charges of committing irregularity in the utilisation of grants at Gyanpur Block of District Varanasi. The charge-sheet dated 5.2.1986 was served upon him to which he sent a reply dated 5.5.1986. The Enquiry Officer submitted an ex parte report dated 26.8.1986 whereafter a supplementary charge-sheet dated 2.4.1988 was served upon the petitioner. He sent his reply to that also on 12.5.1988 and after completion of the enquiry, the report dated 20.6.1989 (Annexure-1 to the writ petition) was submitted. The disciplinary authority after proposing penalty on the basis of the enquiry report, served show cause notice upon the petitioner to which he sent his reply dated 31.5.1990. The punishing authority, vide order dated 21/24.11.1990 awarded punishment of dismissal against the petitioner. Aggrieved with the said order and the enquiry report the petitioner preferred a writ petition before this Court, being Writ Petition No. 3822 of 1991 and the Court, upon hearing the parties allowed the writ petition vide judgment dated 4.5.1998 (Annexure-2 to the writ petition) and quashed the petitioners' dismissal order. The Court, however, remitted back the matter to the disciplinary authority to pass fresh orders in the light of the observation made in the judgment. The Court also directed the authorities to pass orders in accordance with law in respect of pension and other retiral benefits of the petitioner, since he had already retired from services during the intervening period in the year 1990. The S.L.P. preferred by the respondents against the aforesaid judgment of this Court before the Supreme Court was also dismissed on 23.8.1999.
3. The petitioner further contends that respondent No. 1, thereafter, issued show cause notice (Annexure-3 to the writ petition). The petitioner filed his reply (Annexure-4 to the writ petition) dated 8.9.1999. Thereafter, respondents passed the impugned punishment order dated 15.1.2000 (Annexure-5 to the writ petition) directing recovery of Rs. 125.87 and to deduct 10% of the pension for one year. A direction (Annexure-6 to the writ petition) dated 19.2.2000 was also issued from the Government to the Commissioner Rural Development to pay the retiral benefits to the petitioner. The Government simultaneously issued an order vide Annexure-7 to the writ petition dated 19.2.2000 stating that no amount was payable to the petitioner in addition to what has already been paid to him as subsistence allowance during his suspension period. Thereafter, the petitioner on 22.5.2000 made a representation (Annexure-8 to the writ petition) and requested for the payment of the entire salary for the period of suspension. The petitioner's request, by a laconic order, was turned down by the Government, vide Annexure-9 to the writ petition. The matter for payment due to the petitioner, when came up before the Varanasi Treasury, a clarification was sought from the Government about petitioner's status. Vide Annexure-10 to the writ petition, the Government passed an order dated 17.7.2001 (Annexure-10 to the writ petition) that the period of suspension should be considered as period In service and that the subsistence allowance as stated in the office memo (Annexure-9 to the writ petition) dated 7.6.2000 should be read as salary and allowance. Thereafter, the petitioner made another representation (Annexure-11 to the writ petition) dated 8.8.2001 for release of full salary with allowances for his suspension period, but that representation was rejected by the Government, vide Annexure-12 to the writ petition. The petitioner contends that once the period of suspension has been accepted as service period he is legally entitled to get full salary with all allowances of that period. Under Rule 54A of the Fundamental Rules as contained in Financial Handbook Volume (II), Part (ii) to (iv) he is entitled to the full salary for the suspension period with all allowances during the suspension period.
4. The petitioner also submitted In para 62 of the writ petition that his pension has been fixed at 75% of his basic salary and dearness allowance, which is not in accordance with law. The pension should have been fixed on the basis of full salary of the petitioner, as period during which he was placed under suspension, has been accepted as a period spent on duty.
5. The respondents have filed a counter-affidavit and have though admitted the factual aspects of the whole petition, but they have, however, disputed the entitlement of the petitioner to the full salary and allowances of suspension period. They have also disputed the petitioner's claim for the fixation of his pension on the basis of full salary which could have been otherwise due to him on the date of retirement, had he not been placed under suspension while facing the disciplinary enquiry till the date of his retirement. The respondents have also disputed petitioner's interpretation vide para 23 of the counter-affidavit that the order dated 17.7.2001 (Annexure-10 to the writ petition) treating the suspension period of the petitioner as service period is to be treated for all practical purposes as to entitle him to payment of his full salary and allowances, etc. of that period. Respondents have further contended that the punishment order (Annexure-5 to the petition) passed against the petitioner is quite legal and is not challengeable. The retiral benefits which have been awarded to him in consequence thereto are all valid and undisputable. The pension of the petitioner has been fixed on the basis of the pay and dearness allowances made admissible to him under the relevant Government Order. The petitioner cannot claim the fixation of pension on the basis of full salary and dearness allowances.
6. The petitioner in reply to the counter-affidavit has filed his rejoinder-affidavit and has reiterated the entire claim and all the averments made in the writ petition. He has, however, further contended that on the basis of the Government Order dated 17.7.2001 (Annexure-10 to the writ petition), the Commissioner Rural Development, vide his order dated 28.7.2000 (Annexure R.A.-3 to the rejoinder-affidavit) admitted the entire service period of the petitioner including that of suspension period as spent on duty and, thus, his Earned Leave for encashment was calculated as 240 days. On the basis of Annexure-10 to the writ petition the Chief Development Officer, Varanasi treated the petitioner as reinstated in service with effect from 22.11.1990 and full salary and allowances have been directed to be paid to him from that date till 31.12.1990 (date of superannuation), vide his order dated 9.3.2000 (Annexure R.A.-2 to the writ petition).
7. We have heard learned counsel for the parties and have perused the entire material placed on record.
8. The petitioner has though challenged the order of punishment dated 15.1.2000 (Annexure-5 to the writ petition) but, no substantial argument has been advanced in that context by his counsel. The petitioner's counsel while placing his submissions has rather pressed the only relief in respect of fixation of petitioner's pension and the Government Order dated 31.10.2001 (Annexure-12 to the writ petition) rejecting his representation for release of his full salary and allowances for the period of suspension. Obviously, imposition of punishment, as contained in Annexure-5 to the writ petition, vide order dated 15.1.2000 is done after full-fledged disciplinary inquiry in which the petitioner was given due opportunity of hearing. It was found that charges of item No. 11 of the main charge-sheet and charges of item Nos. 1 and 2 of the supplementary charge-sheet were fully proved against him, whereas, charges of item Nos. 12, 26 and 29 were partly proved. The disciplinary authority after considering all the facts and circumstances and the materials available, found it to be just and proper for imposing punishment of recovery of Rs. 125.87 from the petitioner and for deduction of 10% of his pension for a period of one year. This punishment is imposed upon the petitioner on the basis of the inquiry report which was given by the Inquiry Officer, keeping in view the entire material collected and considered during the inquiry. The findings of the Inquiry Officer and that the findings arrived at on the basis of Inquiry report by the disciplinary authority for imposition of punishment upon the petitioner are the findings of fact and this Court being Court of extraordinary jurisdiction cannot interfere with such findings of fact within the provisions of Article 226 of the Constitution of India. As such, we do not find any justification or propriety in interfering with the impugned order of punishment dated 15.1.2000 (Annexure-5 to the writ petition) and no relief in respect thereto, could Justifiably be granted to the petitioner.
9. The petitioner, as a Block Development Officer posted in District of Varanasi, was found to have committed some irregularity in utilisation of grants about which charge-sheet was served upon him as back as 1986 and thereafter supplementary charge-sheet was also served in the year 1988 and after completion of the inquiry, report was submitted and punishment of dismissal was imposed upon him by the disciplinary authority in the year 1990 and that order of punishment dated 21/24.11.1990 was challenged in the writ petition before this Court and the same was quashed vide judgment dated 4.5.1998 (Annexure-2 to the writ petition). The matter was sent back to the disciplinary authority to pass fresh order in accordance with law keeping due regard to the observation made in the Judgment. The Court had also issued directions to the authorities to pass orders in respect of payment of pension and other retiral benefits to the petitioner. An S.L.P. before the Supreme Court against the said judgment was preferred which was also dismissed on 23.8.1999. Pursuant to the judgment passed by this Court, the respondents after calling further explanation from the petitioner passed the impugned order of punishment dated 15. 1.2000 and it simultaneously issued an order vide Annexure-7 to the writ petition dated 19.2.2000 that no additional amount of the suspension period would be payable to the petitioner. Later on another order dated 7.6.2000 (Annexure-9 to the writ petition) was passed by the State Government directing payment of 75% of salary and allowances to the petitioner for the said suspension period.
10. The petitioner relying upon the order dated 17.7.2001 (Annexure-10 to the writ petition) of the State Government contends that since his suspension period has been treated by the Government as service period, he should be made entitled to the full salary and allowances of that period Instead of only to the extent of 75%. From the facts of the case, it is evident that the dismissal order of the petitioner dated 21/24.11.1990 was, though set aside by this Court in Writ Petition No. 3822 of 1991 but the petitioner was not exonerated of all the charges, rather the Division Bench of this Court had remitted back the matter to the disciplinary authority to pass a fresh order in the light of observation made in the judgment. On observing further formalities in pursuance to the Court's judgment, the disciplinary authority also did not exonerate petitioner of all the charges levelled against him and some minor punishment was awarded vide impugned order of punishment (Annexure-5 to the writ petition). What should be the payment due to the petitioner for this period during which he remained under suspension, is precisely governed by the provisions of Sub-rule (2) of Rule 54A and Sub-rule (5) of Rule 54B of U.P. Fundamental Rules [Financial Hand Book Volume II (parts 2 to 4)]. These provisions are extracted below ;
"54A. [(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance, with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, and no further inquiry is proposed to be held, the Government servant shall, subject to the provisions of Sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, 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.]
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularised in accordance with the provisions contained in Sub-rule (5) of Rule 54.
54B (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."
11. In the aforesaid two sub-rules, it is provided that if a suspended Government servant would have been reinstated in the service who has retired on superannuation while under suspension, he shall 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.
12. In the present case, after passing order of punishment (Annexure-5 to the writ petition) the Government vide Annexure-7 to the writ petition served a show cause notice upon him to explain/represent in respect of the payment due to him for the period during which he remained under suspension. Pursuant thereto the petitioner represented to the Government (Annexure-8 to the writ petition) and after considering the representation as well as other attending circumstances and the facts of the case, the respondent found that payment of 75% of the salary and allowances would alone be admissible to him. The aforesaid two rules are quite clear for their import that such Government servant who had been suspended and had retired on superannuation while under suspension, the competent authority would determin'e the quantum of amount to be paid to such Government servant for the period of suspension and this amount would in no case be the whole of the pay and allowances.
13. The petitioner remained under suspension for a very long period, but after full enquiry he could not be exonerated and minor punishment has been awarded to him. If the respondents under the aforesaid sub-rules of the U.P. Fundamental Rules have decided that only 75% of the pay and allowances of that period of suspension would be payable to him, the same does not appear to be arbitrary and against any provisions of law or rules for the time being in force. The said order cannot be held to be illegal and based upon that if the impugned order Annexure-12 to the writ petition, rejecting the representation of the petitioner for payment of full salary and allowances, has been passed by the respondents. It also cannot be said violatlve to any statutory law or rules. Obviously the order dated 31.10.2001 in Annexure-12 cannot be challenged. The mere mention in the Government order dated 19.2.2001 vide Annexure-10 to the writ petition that the suspension period of the petitioner would be deemed to be his service period does not amount to be interpreted as a period spent on duty. This is simply for the purpose to show the continuity of his service. Even after passing of the order dated 21/24.11.1990 whereby he was dismissed from the service, if the suspension period has been treated as service period, that cannot be deemed to be the period spent on duty, as to entitle the petitioner for full salary. Since the petitioner, in the enquiry, has not been completely exonerated of the charges either by the Court or by the disciplinary authority, his suspension period under rules cannot be treated as period spent on duty.
14. The other contention raised before us by the learned counsel for the petitioner is that after the dismissal order of the petitioner was set aside by the Division Bench of this Court, he was entitled to be reinstated in service with full payment of salary and his pension should not have been fixed on the basis of 75% of his basic salary and allowances, as has been done in the present case. The dismissal order passed against the petitioner was quashed. He should be treated to have been reinstated in service in spite of the facts that the disciplinary enquiry was directed to carry on to a lawful and logical conclusion. The learned counsel has drawn our attention to Annexure-R.A. -2 to the rejoinder-affidavit, which shows that vide order dated 9.3.2000, the Chief Development Officer, Varanasi directed payment of full salary to the petitioner w.e.f. 22.11.1990 to 31.12.1990. These dates are the dates of the order of dismissal and order of superannuation of the petitioner from service. This is quite obvious that vide Judgment dated 4.5.1998 (Annexure-2 to the writ petition) the dismissal order was quashed. After the said order of dismissal became non existent, there was obviously no order of suspension or other adverse order against the petitioner as to disentitle him from payment of salary and allowances w.e.f. that date till the date of his superannuation (31.12.1990). After the date of dismissal (22.11.1990), the petitioner has been paid his full salary and allowances till the date of his superannuation, i.e., 31.12.1990. Accordingly, his pension and other retiral benefits should be calculated in the same manner only and not in accordance with 75% payment of salary and allowances of the suspension period. It is also not the case of the respondents that there was any second suspension order of the petitioner after the matter was remitted back by the Court for reconsideration in respect of award of punishment to the petitioner. Otherwise, also there could not be any second suspension order passed against the petitioner because by the time the matter was remitted in the year 1998 by this Court, the date of petitioner's superannuation from service had already passed. Therefore, the pensionary benefits to be given to the petitioner, as calculated by the authorities in the present case, appear to be wholly erroneous and the calculation should have been made on the basis of the full salary and allowances which had been lastly paid to him, in view of the orders of the Chief Development Officer, Varanasi (Annexure-2 to the rejoinder-affidavit).
15. In the aforesaid view of the matter. It is thus pertinent to issue directions to the respondents in the nature of writ of mandamus commanding the respondents to release the pension of the petitioner on the basis of his full salary and allowances and also pay the arrears with simple interest @ 6% per annum.
16. We accordingly, hereby partly allow the petition and issue writ of mandamus in the terms, as detailed in the preceding paragraphs of the judgment and direct the parties to bear their coals.