1. The petitioner was serving as a Sub-Registrar under the Government of Orissa, until he Was placed under suspension on 27-6-1951 in consequence of certain allegations of corruption made against him while serving at Patrapur in the District of Ganjam. After his suspension a regular departmental enquiry was commenced against him and on 2-8-1952 nine charges were framed against him (see Annexure B) and he was called upon to show cause why he may not be suitably punished. He showed cause, and it appears that some sort of departmental enquiry was held but the findings arrived at were not communicated to him. But on 22-8-1956 (see Annexure D) Government directed his reinstatement in service pending disposal of the departmental proceedings against him. He was then reinstated in service. Eventually on 20-4-1959 Government decided that the period of suspension already undergone by the petitioner shall be treated as substantive punishment (see Annexure E), that it will not be treated as duty, and will not count for pension.
2. It is admitted that a second notice, as required by Article 311(2) of the Constitution was not issued to the petitioner. No tentative punishment; was first decided upon, nor was he called upon to show cause why the proposed, punishment may not be inflicted against him. The sole question therefore for consideration now is whether, on the facts as stated above the petitioner was entitled to a second notice under Article 311(2). In terms, that Article says that the notice would be required only if the proposed punishment is either dismissal or removal from Government service or reduction in rank. It is true that the petitioner was a Sub-Registrar at the time he was placed under suspension and he was also reinstated and posted, as Sub-Registrar. The learned Advocate-General, 'therefore, contended that there was no 'reduction in rank'. But as pointed out by their Lordships of the Supreme Court in the well known Dhingra's case, (Parshotam Lal Dhingra v. Union of India) reported in AIR 1958 SC 36, where there is loss of seniority or forfeiture of a portion of pay and allowances by way of punishment, there may be a reduction in rank.
3. The final order of Government does not clearly specify the pay which the petitioner was permitted to draw from the date of his reinstatement, and whether his pay would be fixed, from that date, after taking into account the increments which he would have drawn in the time scale of Sub-Registrar from the date of suspension (27-6-1951) till the date of reinstatement (22-8-1956). If he is not permitted to draw the increments for the said period and his pay is fixed at the same rate as he was receiving on the date of suspension the result would be that many persons junior to him would become senior to him, on a higher salary, and there would be thus loss of seniority including forfeiture of a portion of his pay. In such a case there would clearly be 'reduction in rank' and Government wanted to impose such a punishment they should have issued a second notice as required by Article 311(2) before passing final orders. Admittedly as no such notice was issued, we must hold that no reduction in rank was contemplated by them when they passed their final orders on 20-4-1959. This fact is admitted in Government Letter No. Regn. 94/60/44309-R dated the 17th October 1960 addressed to the Secretary Board of Revenue, a copy of which was communicated to the petitioner (Vide Annexure F).
4. Hence, by way of clarification we direct that as no reduction in rank was contemplated by Government the petitioner shall be entitled to get all the increments to which he would have been entitled, from the date of suspension namely 27-6-1951 till the date of his reinstatement namely, 22-8-1956--had he not been placed under suspension; and his seniority amongst Sub-Registrars shall not also be affected in any way. The learned Advocate-General has no objection to this order being passed.
5. The petition is disposed of accordingly,but there will be no order for costs.
6. I agree.