D. Basu, J.
1. C. R. Nos. 237, 238 and 239 of 1961 have been lakon up together as common questions arc involved in these three petitions. The petitioner in No. 337, Shyam Sunder Derey, was the post-man, Sudhangsu Sekhar Bhattacharjee, the petitioner in No. 238, was the Post Master and Rajbahadur Singli the petitioner in No. 239, was the officiating clerk of the Post Office at Chengail. On the complaint of the Durwan of the Ludlow Jute Company Ltd., at Chengail, that these three petitioners had withdrawn Rs. 21,000/- from the Postal Savings Bank Account of the said Durwan by fraudulently obtaining his signature on the withdrawal forms, a criminal ease under Section 420 of the Indian Penal Code was started against these three persons. Shortly thereafter on 12-9-59, the Inspector of Post Offices placed them under suspension. On 22-9-60, the petitioners in the three cases were discharged as the police failed to submit their report After their discharge on 22-9-60, these three petitioners requested the Superintendent of Post Offices, through a registered letter dated 31-10-60, to revoke the order of suspension, to reinstate them and to pay them all arrears of salaries and allowances. In his reply dated 21-11-60, the Superintendent informed the petitioners that the allegations against the petitioners were still under investigation by the police and that a decision in the matter would be taken shortly. Coming to know that a departmental enquiry against them had been started, the petitioners requested the Superintendent of Post Offices, through a registered letter dated 27-12-60 to let them know the result of the departmental enquiry. On 2-1-60, the petitioners were told that the departmental enquiry was still pending. Again another registered letter had been sent by the petitioners on 9-1-61 requesting the Superintendent either to reinstate them or to let them know the result of the enquiry within a fortnight from the date of the receipt of the said registered letter, but no response having been received, the petitioners have now come to this Court with a prayer for a writ of mandamus directing the opposite party to recall the order of suspension, to reinstate them and to pay them all arrears of pay and allowances.
2. In the affidavit-in-opposition filed on behalf of the respondent, the Union of India, it is admitted that the petitioner in each of these cases was placed under suspension on the 12th, 20th and 9th September, 1959, respectively, after he was arrested by the police on that date on the complaint of Raghunath Singh; that the police investigation is still continuing. It is further stated that on 4-7-61, that is, during the pendency of the present applications the petitioner, in each case, has been reinstated to his service and the order of suspension has been withdrawn without prejudice to the rights of the authorities to take up departmental proceedings against the petitioner in future and that since the order of suspension has been withdrawn, this Rule has been infructuous and should be dismissed.
3. Since the respondent has already revoked the order of suspension and reinstated the petitioners, the only questions left for the determination of this Court are:
(a) Whether the respondent should be directed to pay the arrears of pay and allowances from the respective dates of suspension, in September 1959, till the date of re-instatement on 4-7-61:
(b) Whether petitioners should get costs.
4. Point (a). The petitioners were placed under suspension upon their arrest on a criminal charge and pending a criminal case brought on that charge. The criminal case terminated in the discharge of the petitioners on the 22nd September, 1960. The respondent, thereafter, is said to have been continuing a Police enquiry as well as a Departmental inquiry. But these could not be completed so long nor was any satisfactory reply given to the Petitioners repeated correspondence. Even after the institution of these applications, respondent has not been prompt in this matter. On the other hand, the substantial reliefs prayed for, namely, revocation of the order of suspension and reinstatement, have been conceded, during the pendency of these applications. But no reason has been assigned as to why the petitioners should not get their pay and allowances during the period intervening the suspension and the reinstatement when they have been prevented from rendering their services owing to their suspension pending infructuous proceedings brought by the respondent. As matters stand, there is no blemish established against the petitioners with respect to that period. An employee of the Government cannot be deprived of his emoluments by an order of suspension which was founded on mere allegation and which the Government has withdrawn finding it untenable, after the employee has taken resort to a Court of Justice for relief.
5. A claim for recovery of arrears of salary, can, of course, be made only by suit. What the petitioners seek in the present proceedings is only a direction to pay. It is now established that when an order behind a levy is found to be ultra vires mandamus lies for directing the authority to make a refund: Burma Construction Co. v. State of Orissa, : AIR1962SC1320 ; Orient Paper Mills Ltd. v. State of Orissa, : 1SCR549 . If so, there is no reason why an authority cannot be directed to pay arrears of pay and allowances which the petitioners could have earned unless suspended without any lawful justification (sic).
6. Such direction should, accordingly, be made in this case, without prejudice to the right of the Government to resort to further proceedings as may be open to them under the law.
7. Point (b). The petitioners might not have to resort to litigation had the respondent given them the relief prior to the institution of these proceedings, in response to their repeated demands. When the Government has yielded only during the pendency of these proceedings, petitioners should get their costs.
8. Let the application be allowed with costs,hearing fee being assessed at 2 gold mohurs in eachcase. Let an order in the nature of mandamus beissued directing the respondent to pay the petitionerstheir pay and allowances at usual rates from therespective dates of suspension till the date of reinstatement, i.e. 4-7-61.