Mehar Singh, J.
1. The respondent, Puran Chand, was a Foot Constable in the police and because of his prosecution for the offence of theft under Section 380 of the Penal Code, he was suspended according to Rule 1G.19 of the Punjab Police Rules, Volume II, 1934, on or about September 26, 1951. He was convicted of that offence by the trial Magistrate but on appeal was honourably acquitted on April 22, 1953, by the Sessions Judge of Amritsar.
He was then reinstated obviously in the wake of Rules 16.17 and 16.19 of the Punjab Police Rules, Volume II, 1934. He claimed arrears of salary amounting to Rs. 1,509/5/4, at the rate of Rs. 80/- per mensem, for the period of suspension of eighteen months and twenty six days. The appellant, the State of Punjab, urged a number of defences to the claim of the respondent but only one of those defences is material in this second appeal and that is whether the respondent is entitled to claim arrears of salary for the suspension period?
2. The trial Judge decreed the claim of the plaintiff to the amount of Rs. 1,188/6/6 deducting out of the claim amount the sum of money received by the respondent as suspension allowance and also deducting certain other amount as the claim with regard to it was found barred by time. The claim was found by the trial Court to be within time from the month of October 1951. The trial court allowed proportionate costs in favour of the respondent. The State of Punjab appealed and its appeal was dismissed by the appellate Court on 17-3-1956, on the only argument on its behalf having been rejected that a Civil Court cannot grant a decree for arrears of salary for the period of suspension in a case like the present.
3. In this second appeal by the State, the learned counsel on its behalf contends that where under statutory rules, as in the present case, there is power of suspension, then it is discretionary with the departmental or executive authority to grant the officer on reinstatement full pay for the period of suspension, but there is no light in such officer which he can enforce through a Civil Court to make a claim for full pay where it is not allowed by the departmental or executive authority,
In this respect he refers to Secretary of State v. Surinder Nath Goswami, ILR (1939) 1 Cal 46: (AIR 1938 Cal 759) and Rupa Ram v. Divisional Superintendent of North Western Railway, Lahore, AIR 1954 Punj 298, and points out that in Management of Hotel Imperial, New Delhi v. Hotel Workers' Union, (1960) 1 SCR 476: (AIR 1959 SC 1342) these two cases have been referred to with approval. In so far as the present case is concerned this last reference by the learned counsel is not quite accurate as, though those two cases have been referred to in the last mentioned case but not in reference to the argument that is urged by the learned counsel in the present case.
4. In Rule 10.70 (2) of Punjab Police Rules, Volume I, 1934, there is discretionary power in the suspending authority, on the police officer under suspension being honourably acquitted of the charge against him in departmental enquiry, to grant full pay to him, to which he would have been entitled if he had not been suspended. In the same sub-rule it is stated that 'in cases of honourable acquittal the period of suspension or dismissal will be treated as a period spent on duty'. This is the position in the case of honourable acquittal in a. departmental enquiry.
5. The respondent has however, been honourably acquitted by an ordinary Court of law on, appeal. It followed that the charge of theft against him was not correct. That charge was the basisof the suspension of the respondent. The basishaving been taken away, the suspension of therespondent was entirely without cause. It was,therefore, obviously, wrong. If according to therules in the case of honourable acquittal in a departmental enquiry the period of suspension is treatedas period spent on duty, it obviously must be treatedas period on duty when the honourable acquittalis by a Court of law. So that the period of suspension of the respondent was period spent byhim on duty. There is no acceptablebasis on account of which, when for theperiod of suspension he was on duty, he shouldbe deprived of any part of his salary. His suspension being wrong, he did not refuse to work orcarry out his duty and under the law his periodof suspension is to be treated as period spent onduty. Thus while during his suspension his contract of service was suspended but such suspensionbeing wrongful, he has a right to his full salary.1960-1 SCR 476 : (AIR 1959 SC 1342) was a case of an industrial dispute. Their Lordships have observed that in the case of the employer who holding a proper enquiry and coming to the conclusion that the employee should be dismissed, suspends him pending permission to dismiss as required by Section 33 of the Industrial Disputes Act, 1947, the ordinary law of master and, servant as to suspension, that right of suspension cannot be implied in the terms of an ordinary contract of employment between master and servant but that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself, should be taken to have been modified in view of the fundamental change introduced by Section 33 of the said Act in that law.
They have further observed that the undisputed common law right of the master to dismiss his servant for proper cause has been subjected by Section 33 of the said Act to a ban, and that means that, pending removal of the said statutory ban, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under Section 33 of the said Act. It follows, therefore, that if the Tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension.
If, on the other hand, the permission is refused, the suspension would be wrong and the workman-would be entitled to all his wages from the date of his suspension. Now, these observations have been made by their Lordships in the case of an industrial dispute between master and servant, but the same principle applies to the present case and nothing has been urged on behalf of the appellant to show that a different principle should govern a case like the present.
6. The learned counsel (or the appellant contends that under the relevant rules the superior police authorities have the complete power of suspension as also discretion to grant or not to grant full pay on reinstatement after disproof of charge against a police officer. He has, however, not been able to refer to any specific rule which would go to support him so far that even in the case where suspension is wrong, and found to be wrong as a fact by a Court of law, the right claimed by himon behalf of the appellant can be exercised.
If such was the position a Government servant could be whimsically suspended, kept in suspension for some considerable time, and then released fromsuspenion, at the same time depriving him of his arrears of salary other than what has been paid to him as subsistence allowance during suspension. The police rules do not justify such a capricious power in the authorities and the argument urged by the learned counsel is entirely without substance.
The two cases on which reliance has been placed by him are cases in which decisions were given before the decision of the Supreme Court that a claim for arrears of salary by a public servant is competent and they were decisions given at a time when the view prevailed that no suit layfor arrears of salary. Those cases are, therefore, not relevant to the facts of the present case.
7. The appeal fails and is dismissed with costs.
D.K. Mahajan, J.
8. I agree.