Hardayal Hardy, C.J.
(1) Several contentions have been raised by the petitioner in this civil writ petition challenging the order dated 9-6-1971 made by the President of India whereby an inquiry pending against the petitioner has been ordered to be continued and till the termination of such inquiry he has been directed to continue to remain under suspension. The contentions may be set out as under :-
1.Under Rule 10 (5) (b) the of Central Civil Services (Classification, control and Appeal ) Rules, 1965, which will hereafter be called the 1965 Rules, there cannot be continuation of suspension when the criminal proceedings which were previously pending against the petitioner have resulted in acquittal. 2. The proceedings having been taken under the Central Civil Services (Classification, Control and Appeal) Rules, 1957 hereafter called the 1957 Rules, could only be continued under those rules and not under the 1965 Rules. 3. The provisions of Fundamental Rules 53, 54, 54 (a) and 54(b) as amended vide notification dated 14-5-71 do not have application to the case of the petitioner as he was honourably acquitted by the Supreme Court of India on 19-3-1971 and had acquired the right to be reinstated in service immediately ' thereafter with full salary and allowances and other service benefits and was to be governed by the then existing Fundamental Rules 53 and 54. 4. The Rules of May 1971 do not purport to be retrospective. The petitioner had already been acquitted after the Rules had come into force. These Rules could not be made to operate against the petitioner retrospectively. 5. Assuming that the President had such power of reviving the inquiry that was abandoned or of starting a fresh inquiry. the action taken against the petitioner amounts to an abuse of such power. It is to deprive the petitioner of the benefits of acquittal.
(2) In order to appreciate the contentions raised by the petitioner, it is necessary to set out certain facts that have a bearing on the matters in controversy between the parties.
(3) The petitioner was working as a Senior Superintendent in Railway Mail Service, A Division, Allahabad on April Ii, 1963. By an order made on that day he was suspended from service on the ground that a case in respect of certain criminal offences was under investigation against him. The order of suspension was made by the President of India in exercise of powers conferred by sub-rule (1) of Rule 12 of 1957 Rules. The criminal offences alleged against the petitioner related to the period 24-12-1961 to 31-8-1962 when he was functioning as Officer on Special Duty (P.&.T. Board) at Panjim, Goa.
(4) Upon the completion of the investigation by the Special Police Establishment, sanction for his prosecution was given by the Government of India and he was convicted by the special Judge for Greater Bombay under various charges excepting a charge under Section 5(2) read with Section 5 (1) (d) of the Prevention of Corruption Act. 1947. His appeal was dismissed by the High Court of Bombay, but ' on a certificate granted by the High Court under Article 134(l)(c) of the Constitution his appeal was accepted by the Supreme Court ride its judgment/order dated 19-3-1971 and his conviction and sentence were set aside.
(5) Meanwhile on 8-3-1965 the Government of India Department of '. Communication (P&T; Board) sent a memorandum to the petitioner intimating that the President proposed to hold an inquiry against him under Rule 15 of the 1957 Rules. Between 8th March, 1965 and 27th January, 1967, inquiry proceedings went on for some time, but in view of the petitioner's conviction by the High Court of Bombay he was dismissed from service vide order dated 26-10-1967. When the petitioner was ultimately acquitted by the Supreme Court he made a representation to the Union of India through the Secretary to the Government of India, Ministry of Posts & Telegraphs and the Chairman P.&.T. Board, New Delhi asking for his reinstatement in service, payment of arrears of salary, allowances and increments and promotion due to him and other benefits of continuous service. He followed it up by another representation made to the President.
(6) On 9-6-1971 the President set aside the order of dismissal and directed that the Departmental inquiry against the petitioner be continued under sub-rule (5) of Rule 10 of 1965 Rules and the petitioner shall also continue to remain under suspension till the termination of such proceedings.
(7) On 28-7-1971 the Government of India, Ministry of Communications, made an order that the petitioner shall draw subsistence allowance for the period 26-10-1967 to 8-6-1971 and from 9-6-1971 onwards at the rate at which he was drawing allowances for the first 12 months until further orders. On 9-12-1971 the petitioner was served with a memorandum containing the Articles of Charges the statement of imputations of misconduct or misbehavior and the lists of documents and witnesses by whom the articles of charges were proposed to be substantiated.
(8) It may be mentioned here that before this memorandum was served on the petitioner he had moved this Court in a petition under Article 226 of the Constitution impleading the Union of India and the Chairman Post and Telegraphs Board as the two respondents, but before issuing a rule nisi the Motion Bench directed a notice to issue to the respondents for 16-12-1971. During this interval the memorandum with its annexures was served on the petitioner. On 16-12-1971 a rule nisi was issued and on 22-1-1972 Shri Bharathan, Assistant Director-General (Vigilance) filed an affidavit in opposition to the petition. The petitioner's affidavit in rejoinder was filed on February 7, 1972.
(9) In the petition, the petitioner has inter-alia, prayed for quashing the order of the President dated 9-6-1971 and also for an order/and/or direction in the nature of mandamus or otherwise calling upon the respondents to take back the petitioner in service and pay him full salary and allowances as if the petitioner has been in continuous service from the date of his suspension i.e. 11-4-1962 till his rein-. statement.
(10) In the affidavit filed on behalf of the respondent the facts alleged by the petitioner have not been controverter. We thereforee turn to the contentions urged on behalf of the petitioner.
(11) It cannot be disputed that the petitioner was convicted by a Special Judge and his conviction was up-held by the High Court of Bombay. During this interval a Departmental inquiry was also in progress. Proviso (a) to Clause (2) of Article 311 of the Constitution lays down that the question of a reasonable opportunity does not arise in the case of a person who is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. The necessary consequence of the petitioner's conviction by the High Court of Bombay was that the petitioner could be dismissed from service without the departmental inquiry being proceeded with any further. The contention urged on behalf of the petitioner however was that with the order of dismissal having been passed the inquiry automatically came to an end and with that the order of suspension also came to an end. The argument advanced was that once the inquiry and the order of suspension came to an end, in the absence of a rule neither the inquiry could be revived nor the order of suspension could be continued. Under Rule 10 of 1965 Rules once an inquiry or order of suspension had come to an end there is no provision for reviving the said order.
(12) While dealing with this question we may as well dispose of the second contention urged on behalf of the petitioner. It was stated that proceedings having been taken under 1957 Rules they could be continued only under those Rules and not under 1965 Rules. This contention omits to take into consideration the provisions of proviso (b) to Rule 34 (1) of the 1965 Rules which read :-
'ANY proceedings under the said rules, pending at the commencement of those rules shall be continued and disposed of as far may be, in accordance with the provisions of these rules, as if such proceedings were proceedings under these rules.'
According to that proviso, the provisions of 1957 Rules were no longer applicable and the inquiry proceedings which were pending had to be continued and disposed of in accordance with the provisions of 1965 Rules. But the question still remains whether the inquiry proceedings were pending after the order of dismissal was made on 26-10-67 and that raises the question of construction of Rule 10 of 1965 Rules.
(13) The argument advanced on behalf of the petitioner was that under Rule 10 (5) (b) where a Government servant is suspended or is deemed to have been suspended (whether in connection with a disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings. When an order of dismissal was passed the suspension of the petitioner automatically came to an end, and it was not the case of the respondents that any other disciplinary proceeding was commenced against the petitioner during the continuance of that suspension. The authority competent to place the petitioner under suspension could not thereforee direct that the petitioner shall continue to be under suspension until the termination of all or any of such proceeding.
(14) The argument appears to us to be wholly un-sustainable. The petitioner was suspended on 11-4-1963 as a case against him in respect of criminal offence was under investigation. Disciplinary proceedings were commenced against him on 8-3-1965 during the continuance of that suspension. On 26-10-1967 he was convicted for an offence under Section 5 (1) (a) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and he was thereforee dismissed from service in exercise of the powers conferred by Rule 19(1) of the 1965 Rules, in consultation with the Union Public Service Commission by the President of India. On 9th June 1971, the President made an order that the dismissal of the petitioner with effect from 26-10-1967 was on the ground of conduct which had led to his conviction on a criminal charge but since the Supreme Court had up-set the order of conviction, the order of dismissal was set aside. But during all this period the disciplinary proceeding and the order of suspension had not been set aside. Those orders were still pending. The President thereforee decided that the inquiry pending against the petitioner may be continued and under sub-rule 5 (b) of Rule 10 of 1965 Rules, the petitioner should continue to remain under suspension until the termination of such proceedings. By setting aside the dismissal order the status quo ante was restored with the result that the inquiry against the petitioner must be deemed to be in existence on the date the dismissal was set aside and he must also be deemed to be under suspension when (by an order dated 9-6-1971) it was decided to continue with the inquiry against him. The original inquiry was never abandoned and no order abandoning or cancelling the same was ever issued.
(15) Counsel for the respondents invited our attention to the provisions of clause (4) of Rule 10 of 1965 Rules which read as under :-
'WHERE a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case. decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.'
(16) It was submitted that when the order of dismissal was set aside and the disciplinary authority on a consideration of the circumstances of the case was still of the opinion to hold a further inquiry against the petitioner on the allegations on which the penalty of dismissal was originally imposed on him, the petitioner must be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal and to continue to re under suspension until further orders. In such a situation no order under Rule 10 (5) (b) need have been passed, but by way abundant caution the order dated 9-6-1971 was passed after the competent authority had recorded its reasons as provided by the said sub-rule. In this connection our attention was invited to three articles of charge which were served on the petitioner on 9-12-1971.
(17) It is true that these three articles of charge were served on the petitioner after he had moved this Court by means of a petition under Article 226 of the Constitution. But that would not make any difference as Ob 9-6-1971 the petitioner was informed that the inquiry pending against him shall be continued. The memorandum which is attached as Annexure R2 to the respondents' counter-affidavit dated 9-12-1971 containing articles of charges and the statement of imputations of misconduct or mis-behavior, a list of documents and a list of witnesses, is a step in that direction. It is also true that the Supreme Court in its judgment dated 19-3-1971 observed with reference to these three articles of charge as follows :-
'THE learned Judges of the High Court also did not go into the allegation that the appellant utilised his official position in sending his personal goods in the vehicles engaged by the postal department. The accusation is that the appellant sent some of his goods in the vehicles engaged by the postal department from Panjim in Goa to Margoa or Sawanthiwadi or Belgaum. These places are not very far from Panjim. The High Court held that that the offence committed by the appellant in that regard if true, is of a technical nature and thereforee it thought it unnecessary to examine the evidence relating to the same. Evidently in its view the accusation regarding the sending of some articles in the vehicles engaged by the postal department was of a trifling nature and thereforee not worth examining.'
(18) But the fact remains that neither the High Court nor the Supreme Court had gone into these articles of charge and it was up to the disciplinary authority to consider whether a further inquiry against the petitioner was called for on those articles of charge. The gravamen of those articles of charge is that the petitioner is alleged to have utilised the postal bags, postal seals and postal labels for dispatch of his private goods and thus misused government property for his personal interest. He also abused his official position by managing to send his private luggage containing luxury goods from his residence at Panjim to Margoa Post Office by using private truck hired by Postal department for transport of mails and from Margoa Post Office loaded goods in R.M.S.vans and booked them for transport to Daman via Bombay. When the postal authorities were alerted and were waiting to intercept goods he is alleged to have devised and actually played a trick to recover his private luggage by involving the department in additional expenditure. The private luggage was withdrawn at Colem from the Railway Van carrying foreign parcels. He utilised the postal bags, postal seals and postal labels for dispatch of his private goods and thus misused government property for his personal interest and benefit.
(19) Whether these allegations would ultimately render the petitioner liable for mis-conduct in the discharge of his duties as a public servant or whether these accusations would be regarded as of trifling nature is a matter for the inquiry Commissioner and the disciplinary authority to consider, but there can be no denying the fact that these charges did not form the subject-matter of the criminal offences of which the petitioner was ultimately acquitted.
(20) The result is that the President was competent to direct that the petitioner should continue to be under suspension and the inquiry against him should also proceed until the termination of the disciplinary proceedings against him.
(21) This takes us to the third contention urged on behalf of the petitioner. It was urged that under Fundamental Rule 54 when a Government servant who has been dismissed is re-instated the authority competent to order his re-instatement 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 or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and '(b) whether or not the said period shall be treated as period spent on duty.
According to the learned counsel for the petitioner, regarding rule 152(2) of the Bombay Civil services Rules, which was identical to fundamental rule 54, it was held by Division Bench of Gujarat High Court.
(22) In Ramsinhji Viraji Rathod Parmanand Society v. The State of Gujarat and another (1971 S.L.R.743) that when a Government servant is suspended on criminal prosecution and is acquitted from Court on benefit of doubt, he is entitled to full pay for suspension period because there is no concept like honourable acquittal or full exoneration in criminal trial. Fundamental Rule 54 no doubt deals with the question of pay and allowances of a Government servant who was once dismissed and re-instated, but it is left to the competent authority to consider and make a specific order regarding the pay and allowances to be paid to him. Ordinarily the pay and allowances of a Government servant who is dismissed or removed from service cease from the date of such dismissal or removal (see F.R. 52). But these questions will arise only after the petitioner is finally exonerated of the charges resulting from the further inquiry. We may in this connection refer to a decision of the Supreme Court in State of Assam and another v. Raghava Rajgopalachari1972 S.L.R. 44, where it was held that if a Government servant was not fully exonerated, it was for the Government to consider what proportion of pay and allowances should be given and what period of absence should be treated as duty.
(23) In the present case the case of the petitioner falls under F.R. 53 where a subsistence allowance is payable to him. In that connection an order has already been made by the President on 28-7-1971 (Annexure R 4 to the counter-affidavit) wherein it has been provided that the petitioner shall draw subsistence allowance for the period 26-10-1967 to 8-6-1971 and from 9-6-1971 onwards at the rate at which he was drawing allowances for the first twelve months untill further orders. The payment of subsistence allowance is subject to the production of certificate prescribed in proviso No. 2 to F.R. 53(2). The question as to whether the amended rules 53,54, 54(a) and 54(b) would apply to the petitioner's case or he would be governed by F.Rs. 53 and 54 as they prevailed before 14-5-1971, would arise only after the result of the inquiry. This observation also applies to contention No. 4 urged by the petitioner.
(24) The last contention urged on behalf of the petitioner is that the action of the President in ordering a fresh inquiry amounts to an abuse of power for its object is to deprive the petitioner of the benefits of acquittal. We do not find any force in this contention for we have already said that notwithstanding the acquittal of the petitioner the question forming the subject-matter of inquiry in the three articles of charge was not before the High Court or Supreme Court. We are alive to the fact that the petitioner has been under suspension from 8-3-1963 and has had to fight his way through from one court to another. But if the disciplinary authority is of the view that the inquiry against the petitioner has to be continued and he has to remain under suspension, we find ourselves completely helpless. It is not for this Court to sit in appeal over the decision of the disciplinary authority as to whether a case for continuance of the inquiry is made out. Prima fade there is nothing in the order made by the President which calls for such reaction on our part. All we can say is that the Inquiry Commissioner should conclude the proceedings, if possible, within six months from today's date. We cannot persuade ourselves to hold that the action of the President amounts to an abuse of power.
(25) The petition is accordingly dismissed, but in the circumstances there will be no order as to costs.