THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 703 OF 2007 Date: .02.2008 Between: K.Shoba Prasad, s/o. K.Shankar Rao …Petitioner and The Senior Superintendent of Post Offices, Adilabad division, Adilabad & 3 others …Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 703 of 2007 ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Writ Petition is filed challenging the Order, dated 31.8.2006 in O.A. No.76 of 2006 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) whereunder and whereby application filed by the petitioner to treat the period from 23.9.1988 to 23.6.1999 as period spent on duty for all purposes, was dismissed. 2. The brief facts that are necessary for disposal of this Writ Petition may be stated as follows: While the petitioner was working as Postal Assistant in Adilabad Postal Division, during the period from 30.10.1981 to 15.9.1986, he committed certain financial irregularities i.e. having accepted certain deposits, failed to credit the amounts into Government accounts on the respective dates of collections from the depositors and also failed to note the transactions in the relevant records. After regular departmental enquiry, he was imposed major punishment of dismissal from service. The appeal filed by the petitioner was rejected as time barred. On a petition to the Postal Services Board, the Board, as per order dated 23.5.1998, modified the punishment to that of reduction of pay to minimum of the time scale for a period of three years without cumulative effect. Thereafter, the petitioner filed O.A. 1527 of 2002 before the Tribunal, against the Postal Service Board, New Delhi, for grant of full pay and allowances during the period of his non-employment from 24.9.1988 to 22.6.1999. The Tribunal, by its order dated 22.12.2003, disposed of the O.A. directing the respondent therein to treat the period from 23.9.1988 to 23.6.1999 as deemed suspension and pay the applicant therein salary and other emoluments within a period of two months from the date of communication of the said Order. In pursuance of that order, the Postal Services Board ordered to pay the petitioner, pay and allowance @ 80% of the amount that the petitioner would have normally drawn had he not been removed from service and to treat the said period as duty for the purpose of counting service for pension only. Now, the present O.A. is filed to grant enhanced increment from 13.8.1986 till 13.8.1996 and step up his pay to the next higher grade and pay salary in TBOP cadre from 13.8.1996 till date and also to treat him as TBOP official promoted on 13.8.1986 with all consequential benefits. The Tribunal dismissed the O.A. by the impugned order on the ground that the period of suspension shall not to be treated as the period spent on duty unless the competent authority specifically directs that it should be so treated for any specific purpose. Challenging the same, the present Writ Petition is filed. 3. The learned counsel for the petitioner contended that when the period of suspension was deemed suspension, Rule 54-B of the Fundamental Rules contemplates that it shall be treated as duty for all purposes, and therefore the petitioner is entitled to all benefits; that there is no differentiation between facet of suspension and deemed suspension, and having treated the period of suspension till the date of dismissal as duty for all purposes, all the benefits should have been granted to the petitioner. He further contended that as the respondents have not fully complied with the orders of the Tribunal in O.A. No.1527 of 2002, the present O.A. is filed which is erroneously dismissed by the Tribunal. Hence, he prayed to set aside the impugned order of the Tribunal. 4. On the other hand, the learned Assistant Solicitor General appearing for the respondents contended that FR 54-B has no application to the case of the present petitioner/delinquent officer as he has not been totally exonerated of the charges; that the period of suspension of the petitioner has to be treated as duty for the purpose of pension only; that the said order of the Tribunal has not been challenged; that the Tribunal has already given a finding to treat the period from 23.9.1988 to 23.6.1999 as deemed suspension and pay salary and other emoluments to the petitioner; that the present O.A. is filed after lapse of five years and so, there are no merits in the Writ Petition. Hence, he prayed to dismiss the Writ Petition. 5. In the first instance, the petitioner was dismissed from service vide order dated 23.9.1988. In the Criminal Case registered against the petitioner in crime no.17 of 1988 of Asifabad police station, for the offence under Section 409 I.P.C., the petitioner was acquitted on 20.08.1991. The appeal filed by the petitioner against the order of dismissal passed by the disciplinary authority, was rejected by appellate authority as time barred, by order dated 24.11.1994. The petitioner filed O.A. No.269 of 1995 which was disposed of on 24.11.1997 with a direction to the appellate authority to pass appropriate orders on condone delay petition in the appeal. Thereafter also, the appellate authority rejected the appeal by passing appropriate orders. The petitioner filed a petition to the Postal Service Board, New Delhi. By its order dated 23.5.1998, the Board modified the punishment to that of reduction of pay to minimum of the time scale for a period of three years without cumulative effect. Thereupon, the petitioner gave representation to treat his period of suspension till the date of reinstatement as period spent on duty and requested to pay full pay and allowances. On that, the Postal Service Board passed order dated 24.9.1999. The relevant portion of the order reads as follows: “(i) During this intervening period, K.Shoba Prasad may be paid pay and allowance @ 80% of the amount that he would have normally drawn had he not been removed from service. (ii)The period may be treated as duty for the purpose of counting service for pension only except that pay and allowances that will be restricted as indicated in sub-para (1) above.” 6. The learned counsel for the petitioner placed strong reliance on Rule 54-B(3) of the Fundamental Rules, which reads as follows: “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 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 communication to 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.” 7. But, Rule 54-B has no application to the facts of the present case inasmuch as it applies only when the Government servant, who has been suspended, is reinstated. Clause (3) thereof provides that where the authority opines that the suspension is 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. Even assuming for a moment that FR 54-B applies in view of the fact that the Tribunal gave a finding in O.A. No.1527 of 2002 to treat the period from 23.9.1988 to 23.6.1999 as deemed suspension, the petitioner would not automatically be entitled to full pay and allowances. If the suspension is wholly unjustified, then only he is entitled for full pay and allowances. 8. On the other hand, the relevant Rule which would apply to the facts of the present case is Rule 54 (1) (a) & (b), which reads as follows: “When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation (while under suspension or not) 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 his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (b)whether or not the said period shall be treated as a period spent on duty.” 9. A perusal of the above Rule shows that after a Government servant was reinstated as a result of appeal or review, there must be a specific order with regard to pay and allowances to be paid to the Government servant. Under sub-rule (2) of Rule 54, in case the Government servant is fully exonerated, then only he is entitled for full pay and allowances. In this case, the relevant portion of order dated 23.5.1998 of the Postal Services Board, which modified the punishment, reads as follows: “..The misconduct proved in respect of Article II and III are grave, but having regard to the fact that the petitioner had accounted for the money into Govt. A/c, the same does call for award of a punishment lesser than dismissal as ordered by the disciplinary authority…” Therefore, it is clear from the above that the petitioner was not fully exonerated in the departmental enquiry. 10. Further, when the competent authority treated the said period under FR 54 for the purpose of pension only, but not for any other purpose, the petitioner cannot turn around and ask for the self-same relief which has been claimed in the earlier round of litigation. The Order of the Tribunal in O.A. No.1527 of 2002, dated 22.12.2003, has become final as the Writ Petition No.3158 of 2004 filed challenging the said order, was dismissed by a Division Bench of this Court, and the Special Leave Petition filed by the Department before the Apex Court, was also dismissed. Therefore, in any view of the matter, as the petitioner has not been exonerated fully in the departmental enquiry and it is not shown that the suspension as well as dismissal was totally unjustified, it is not automatic to grant full pay and allowances for the said period. The Tribunal rightly dismissed the O.A. as the petitioner is not entitled for any relief in view of the fact that charge levelled against him in the departmental proceedings has been established. There are absolutely no grounds to interfere with the impugned order of the Tribunal. 11. The Writ Petition is, accordingly, dismissed. No costs. ---------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU .02.2008 DRK