The Vishakhapatnam & Anr. v. A.Madhusudhan

Provided that the amendment aforesaid shall not be applied unless the Board obtains the approval of the Central Government.” After framing of the 1964 Regulations, the Board of VPT, in its meeting held on 22-11-1967, resolved to recommend amendment of Regulation 4 so as to make the provisions of the Fundamental Rules, Supplementary Rules, Civil Service Regulations, General Financial Rules, Treasury Rules, State Railway Provident Fund Rules, Contributory Provident Fund Rules etc. applicable establishment. The proposed amendment was approved by the Central Government. Thereafter, the same was notified in Andhra Pradesh Gazette dated 15-2-1968. By virtue of this amendment, the provisions of the Fundamental Rules (FRs) automatically became applicable to the employees of VPT. Rule 54B of the Fundamental Rules, which provide for treatment to be meted for the period of suspension of an employee who is reinstated or would have been so reinstated, but for his retirement, including premature retirement, reads thus: “54B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order— a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; 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 disciplinary or the Court proceedings instituted against him are 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) 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 proceedings instituted against 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 fro 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 the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings 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 the 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 order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.” In exercise of the power vested in it under Section 28 of the Act, the Board of VPT framed the Visakhapatnam Port Trust Employees (Classification, Control and Appeal) Regulations, 1968. Regulation 7 of these Regulations provides for suspension of an employee in contemplation or during pendency of an enquiry or against whom any criminal offence is under investigation, enquiry or trial or who, in the opinion of the competent authority, has engaged himself in activities prejudicial to the interest of the security of the State.

A conjoint reading of various sub-rules of Rule 54B reproduced above shows that when an employee who has been suspended is reinstated, the competent authority has to make a specific order regarding the pay and allowances to be paid to him for the period of suspension. Where the competent authority forms an opinion that the suspension of the employee was wholly unjustified, the latter becomes entitled to full pay and allowances for the period of suspension. In such a case, the period of suspension has to be treated as period spent on duty for all purposes. In other cases, the competent authority has to determine the amount of pay and allowances, which may be paid to the employee during the period of suspension. For this purpose, a notice is required to be given to the employee in terms of sub-rule 5. In the present case, we find that the respondent had not been fully exonerated. Rather, the disciplinary authority had imposed penalty of reduction to the lower post.

The Appellate Authority modified the penalty by directing that the punishment would remain operative for a period of one year. Therefore, appellant No.2 had the right to determine what amount of pay and allowances over and above what had already been paid to the respondent by way of subsistence allowance during the period of suspension, should be paid to him. This is precisely what the said appellant did when he directed that the respondent shall not be entitled to monetary benefits for the period of suspension and the subsistence allowance already paid to him shall be treated as proportionate pay. In view of the above, we hold that the learned Single Judge committed an error by directing the appellants to pay full pay and allowances to the respondent. This appears to have happened because attention of the learned Single Judge was not drawn to the 1964 Regulations and Rule 54B. Learned counsel for the respondent made a feeble attempt to argue that order dated 21.10.1991 was vitiated due to violation of the rules of natural justice because no notice or opportunity was given to his client, but we do not find any justification to entertain the same because the respondent did not take this plea in the writ petition and no such argument was advanced before the learned Single Judge.