1980 PLP (C (PLC(CS))

The learned counsel for the appellant argued that once the order of termination of services of the appellant has been cancelled and withdrawn, the period from 22nd April, 1978 to the date of the issue of the fresh order should be treated as duty. Unless this is done, the appeal does not become infructuous because a major portion of the period she has remained out of service would be extraordinary leave without pay, consequently giving a fresh cause to the appellant for appeal. He, therefore, pressed that the appeal should not be dismissed as infructuous, but a regular judgment be issued on the prayer made in the appeal. The departmental representative made a reference to section 17 of the Civil Servants Act, 1973, the relevant portion of which runs as under :‑ Pay.‑‑A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade: Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine. After hearing both the parties, we come to the conclusion that the order of the respondent to treat his period of absence as leave due on full pay/half pay including the leave extraordinary, is not covered by the rules and the provisions of the Civil Servants Act, 1973. The abovequoted provision permits the competent authority to determine arrears of pay to be paid to a civil servant, in such circumstances of setting aside the original order of punishment. It does not permit the period to be treated as leave of the kind due. A reference is necessary to F. R. 54, in this context. The relevant portion runs as follows :‑ F. R. 4.‑When a Government servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty‑ (a) If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension ; or (b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. It would appear from the above reading of the F. R. that the period of absence in the present case has to be treated as duty because the case falls under clause (a). We, therefore, set aside the respondent department's order dated the 27th February, 1980. The appellant is reinstated into service with effect from the 22nd April 1978, the date from which she was terminated, with all consequential benefits treating the period from 22nd April, 1978 to the date of re‑instatement as duty with full pay and allowances as admissible under rules. In this case, the respondent Department has not furnished any objections so far. The Official has remained on suspension for some time from January to April, 1978. The period has neither been specified by the appellant nor the department during the pleadings. Since, however, the case clearly falls under clause (a) of F. R. 54, the period suspension has also to be treated as duty with full pay and allowances. Parties to be informed. Order accordingly.