M GOPALKRISHNA NAIDU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Prior to December 17, 1947 the appellant was serving as an Overseer in the Public Works Department of the Central Provinces and Berar Government. On December 17, 1947 he was suspended from service and prosecuted under Section 161 of the Penal Code. The trial resulted in his conviction but that was set aside in appeal on the ground that no proper sanction for prosecution was obtained. He was again prosecuted on the same charge but the Special Judge trying him quashed the charge-sheet on the ground that the investigation had not been carried out by the proper authorities. In revision the High Court of Nagpur held that the Special Judge was in error in so holding but recommended that the prosecution should not be proceeded with as nearly 10 years had gone by since it was launched against the appellant. Following the recommendation the prosecution was dropped, but a departmental inquiry was held on the same charges. The Inquiry Officer found the appellant not guilty but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed. By an order dated December 5, 1960 the Government held that the charges against the appellant were not proved beyond reasonable doubt. It also held that the suspension and the departmental inquiry "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from that date, he having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under F. R. 54 (5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension.

(2.) On a representation made by him against the said order having been rejected the appellant filed a petition under Art. 226 of the Constitution in the High Court of Madhya Pradesh for quashing the said order and for an order directing the Government to treat the period of absence from duty as period spent on duty under Cl. 2 of the said Fundamental Rule and to revise the pension payable to him under that clause. The High Court dismissed the petition but granted certificate to file this appeal and that is how this appeal has come up before us.

(3.) Fundamental Rule 54 on the interpretation of which this appeal depends is as follows:-