S.B. Wad, J.
(1) The petitioner has challenged the order of the Superintendent of Police, Delhi, holding that his period of suspension was not a period spent on duty. This order was passed on 28-10-1970 under the purported exercise of the power under F.R. 54(3). The petition is also directed against the orders of the D.I.G. and the I.G. rejecting his representation against the order of Superintendent of Police. The petitioner claims that as he was acquitted in a criminal case, (which necessitated his suspension), and, thereforee, the period of suspension should be treated as one spent on duty. He further claims that he is entitled to full pay and allowances and the other service benefits accruing to him during the said period 'and thereafter.
(2) At the relevant time the petitioner was working as a Constable in Delhi Police, Delhi. A criminal case was filed against him for his allegedly committing an offence under Section 294, Indian Penal Code . He was put under suspension with effect from 20-7-1965. Shri R. L. Sharma, Judicial Magistrate 1st Class, New Delhi, tried his case and acquitted him. No appeal was preferred against this decision. No departmental proceedings were also held against the petitioner thereafter. He was re-instated in service with effect from 31-7-1970, the date on which be was acquitted by the Judicial Magistrate. On 28-10-1970 the Superintendent of Police, Delhi, passed an order (purportedly) under F.R. 54(3). It was held that the period from 20-7-1965 to 30-7-1970 was a period spent not on duty. It was also ordered that the petitioner was not entitled 'to any other emoluments except of the subsistance allowance'. The petitioner preferred a representation to the D.I.G. The same was rejected by the D.I.G. on the ground that as the Magistrate had acquitted the petitioner by giving him benefit of doubt, he cannot be considered to have been 'fully exonerated' within the meaning of F.R. 54. The D.I.G., thereforee, rejected the petitioner's representation on 28-1-1971. A further representation to the I.G. was also reacted on 23-7-1971.
(3) The petitioner's submissions are as under :
(I)Under Section 7 of the Punjab Police Act, suspension is an independent punishment cannot be imposed unless regular departmental proceeding was held under Article 311 of the Constitution. No such proceeding was held against the petitioner.
(II)F.R. 54(3) is not applicable to suspension by virtue of pending criminal case. It is applicable only to a case where a person is re-instated after the order of removal, dismissal or compulsory retirement passed in a disciplinary proceeding is set aside.
(III)Before passing the impugned order, the petitioner should have been given an opportunity to show cause. No such opportunity was given to him.
(IV)On true interpretation of the judgment of the Judicial Magistrate, his case is one of no evidence and not of benefit of doubt.
No counter-affidavit filed by the respondents opposing the contentions raised in the Writ Petition.
(4) Even assuming with the respondents that the relevant provision applicable is F.R. 54 and not Section 7 of the Punjab Police Act the petitioner must succeed. It is, thereforee, not necessary to deal with the first submission of the petitioner. So also it is not necessary to record any finding on the question on merits whether the judgment is one of benefit of doubt or of acquittal.
(5) It appears that F.R. 54(3) has been erroneously invoked in the impugned order F.R. 54(3) reads as follows:
'INa case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.'
is amandatory requirement of F.R. 54(3) that period spension should be treated as a period spent on duty for all purposes when a delinquent servant is fully exonerated and his order of dismissal, removal or compulsory retirement is set aside. On plain reading, F.R. 54(3) is not applicable to the present case. The term 'fully exonerated' is not defined or explained in the Fundamental Rules. Fundamental Rule 54(4) throws some light on the concept of full exoneration. The said rule provides that if a Government servant is exonerated for non-compliance with requirements of clause (2) of Article 311 of the Constitution, the Government has discretion (on satisfaction of the conditions mentioned therein) to pay an amount smaller than the full pay. The spirit of the provisions appears to be that if a delinquent servant is exonerated merely for noncompliance of the technical procedural Rules and is not exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on benefit of doubt, it cannot be said that he is acquitted for non-compliance with the technical Rules of procedure. Indeed, in criminal law, an acquittal on benefit of doubt is a complete acquittal on merits. Reasoning of the D.I.G. is contrary to law. The State did not prefer an appeal against the order of acquittal by the Magistrate. thereforee, the judgment of acquittal has become final. It means that the acquittal on merits has become final. If it was a mere case of a' doubt according to the strict requirement of rule in a criminal trial, the petitioner could have been proceeded against departmentally. Technical rules of evidence are not applicable to departmental proceedings. The petitioner was charged under Section 294 of the Indian Penal Code . Indecent behavior with a woman is certainly a conduct unbecoming of a Government servant. But it appears that the respondents were convinced that there was no sufficient evidence to hold that the conduct of the petitioner was unbecoming of a Government servant. By inference one can reach this conclusion, as no departmental proceeding was held against the petitioner. The impugned order was passed by the D.S.P. within four months of his acquittal. The impugned order cannot be justified under F.R. 54(1), (2), (3) or (4).
(6) Even assuming that the is passed under F.R. 54(2) or F.R. 54(4) the order cannot be upheld No Show Cause Notice was issued to the befor passing the impugned order.In M. Gopalkrishna Naidu v. the State of Madhya Pradesh : (1968)IILLJ125SC it was held that a Show Cause Notice is necessary where in adverse order is passed against a Government servant under F.R. 54. To hold that a person was not on duty for five years, and paying him only subsistence allowance results into heavy financial loss a Government servant. Such order results into break in service, effecting seniority, promotions and the pension benefits of a Government servant. There is no doubt that these are serious civil consequences. The impugned order and the orders of the D.I.G. and I.G. are vocative of naturel Justice.
(7) But the impugned order cannot be sustained for a more serious infirmity F.R. 54 is not applicable to cases where a Government servant is suspended in view of the pending criminal case. It is applicable only to the cases of re-instatement (on revocation of the suspension order) where an order of dismissal, removal or compulsory retirement passed in a departmental proceeding is set aside. The counsel turn the respondent', even on specific query, could not point out to me any provision of law whereby a Government servant can be denied the benefit of 'duty' and full pay where such a servant is suspended due to the pendency of a criminal case in which he is acquilted.
(8) For the reasons stated above the impugned order dated 31-10-1970' and the orders of D.I.G. an I.G. dated 28-1-1971 and 23-7-1971 respectively are quashed and set aside. The petitioner shall be treated as on duly for the period of his suspension. He is entitled to full pay and allowances and all the consequential benefits of his being on duty for the said period. The petition is allowed with costs. Rule is made absolute.