JUDGMENT Chandrasekhar Menon, J. in O. P. No. 3766/80. 1. The directions contained in the Judgment dated 8th February 1983 was given effect to by reinstating the petitioner in service by Ext. P-4 order. By Ext. P-5 order dated 30th August 1983, he was given quasi permanent capacity in the post of Mailman with effect from the date of his reinstatement. Ext. P-6 order dated 20th August 1983 regularised his absence during the period from 19th September 1980 to 23rd March 1983 as duty for all purposes except for pay and allowances. It is stated in Ext. P. 6 that no pay and allowances for the period would be drawn for the broken period, since he had not performed any duty during the said period. The petitioner submits that the direction that no pay and allowances shall be paid to him for the period during which he was kept out of employment is unsustainable. 2. The petitioner entered service consequent on his selection for appointment as mailman under the respondent. He was first appointed on 17th March, 1980 and continued in employment till 17th September 1980. He was kept out of employment thereafter. He filed O.P, No. 3766 of 1980 seeking the issue of a writ of mandamus directing the 2nd respondent to regularise his appointment and allow him to continue in service as in the case of others who were selected along with him. The Original Petition was allowed by Ext. P.3 Judgement dated 8th February 1983 holding that the reason for not allowing him to continue in service on and after 18th September, 1983 was unsustainable. It was, therefore, directed that: "In the circumstances, the petitioner is entitled to get his appointment as per the select list Ext. P-1. The 2nd respondent is directed to appoint the petitioner and to regularise him in the service. He should be given a regular appointment in a substantive vacancy taking due note of his rank in the select list." The petitioner submits that persons who were selected along with him and included in Ext. P-1 list were in continuous employment pursuant to their selection even during the period from 18th September 1980 to 23rd March, 1983 when he was reinstated pursuant to Ext. P-3 Judgment. It is not disputed that he would have continued in service for his exclusion from Ext. P-2. P-1 list were in continuous employment pursuant to their selection even during the period from 18th September 1980 to 23rd March, 1983 when he was reinstated pursuant to Ext. P-3 Judgment. It is not disputed that he would have continued in service for his exclusion from Ext. P-2. The reason for such exclusion it was admitted before this Court in O. P. 3766/80, was the impression which the respondents had that the petitioner was arrested and kept in Police custody for 14 days in connection with Kumbalam Murder Case. Respondents made this assumption on the basis of a statement made by the petitioner at the time of his appointment disclosing that he was arrested and kept in custody for participation in a political study class and respondents, on verification, assumed that statement was wrong since the petitioner was actually arrested and kept in custody for his involvement in Kumbalam Murder Case. It was not disputed that the petitioner was not involved in the Kumbalam Murder Case. It was on this basis that: this Court proceeded to direct that the exclusion of the petitioner from continuous employment subsequent to Ext. P-2 order was unsustainable. It, therefore, necessarily follows that the non employment of the petitioner during the period from 18th September, 1980 to 23rd March 1983 was not due to any fault of the petitioner, but is attributable to an assumption made by the respondents which was subsequently proved to be wrong. But for this wrong assumption, the petitioner would have continued in employment and would have drawn the remuneration attached to the post. The question which arises for consideration .is whether the petitioner is entitled to remuneration attached to the post for the period from 18th September 1980 to 23rd March 1983 during which period he was out of employment and which period has been declared by Exts. P-4 and P-6 orders to be duty for all other purposes. 3. Counsel for the petitioner relies on five decisions in support of his proposition that he is entitled for pay and allowances during the above period. The decision reported in Devendra Pratan v. State of U.P. AIR 1962 SC 1334 dealing with the case of an employee for salary during the period of suspension. 3. Counsel for the petitioner relies on five decisions in support of his proposition that he is entitled for pay and allowances during the above period. The decision reported in Devendra Pratan v. State of U.P. AIR 1962 SC 1334 dealing with the case of an employee for salary during the period of suspension. Repelling the contentions on behalf of the State that R.54 of the fundamental rules framed by the State of Utter Pradesh enables the denial of a portion of the whole of the remuneration of an employee under suspension, the Supreme Court held that the rule has no application to the case where an order of dismissal is declared invalid by a Civil Court. It was held that: ".......The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration, which he would have earned had he been permitted to work." This principle was reiterated in the decision reported in Mohan Lal v. Management, Bharat Electronics Ltd. AIR 1981 SC 1253 M. P. Menon, J., dealing with a similar situation in his judgment reported in K, Saradamma v. Senior Superintendent of Post Offices ILR 1983 (2) Ker 741 held that: "......Where a dismissal order is declared a nullity, the dismissed employee can claim restitution. He has a right to be put back in the position he would have occupied, but for the suspension and the dismissal. This leads to the result that the employee concerned can claim full wages for the period of suspension and also for the period he is kept out after the dismissal, unless such rights have been bartered away by agreement or are modified and restricted by statutes governing the contract. " In the decision reported in Rajappan Nair v. State of Kerala ILR 1984 (1) Ker. " In the decision reported in Rajappan Nair v. State of Kerala ILR 1984 (1) Ker. 1 a Division Bench of this court affirming an earlier decision of Khalid, J., as he then was, reported in 1978 KLT 29 , held that the Government servant whose rightful promotion was delayed, but is later given promotion with effect from an earlier date, is entitled to remuneration attached to the post from the date of retrospective promotion. It was held that: " ......If for no fault of his promotion to a Government servant is delayed and it is given to him later with retrospective effect from the date on which it was due the Government servant is naturally entitled to restoration of the benefits which he has lost not on account of his conduct or latches. It is only appropriate that the Government should restore to him all that is lost by way of salary or other emoluments. A Full Bench of this Court in the decision reported in M. Kunju Mohammed v. State of Kerala 1984 (2) SLR 473 also approved the same proposition observing that: " ........The petitioners need not suffer for the Corporation's -failure to follow the rule. The corporation shall pay the petitioners the salary and allowances due to them as Assistant Executive Engineers from 4th December 1979, when they were entitled to be appointed to the service ." It is evident from the above pronouncements that a person who was wrongly prevented from continuing in service is entitled on the wrong being rectified by virtue of orders of Court, for restitution of the benefits which he would have enjoyed had he been continued in service as he should have been. 4. Shri. P. V. Madhavan Nambiar, standing counsel for the respondents submits that the petitioner is not entitled to the relief sought in the original petition for two reasons. It is submitted firstly that the petitioner had sought the same relief of pay and allowances for the period during which he was kept out of employment, but the same was not allowed by this Court in the Judgement in Q. P. No. 3766 of 1980. He, therefore submits, that by implication, the relief sought by the petitioner must be taken to have been rejected and such rejection precludes the petitioner on the principles of res judicata from seeking relief in a subsequent Original Petition. He, therefore submits, that by implication, the relief sought by the petitioner must be taken to have been rejected and such rejection precludes the petitioner on the principles of res judicata from seeking relief in a subsequent Original Petition. Secondly it is submitted that the petitioner had not worked during the period from 18th September, 1980 to 23rd March 1983 and the denial of pay and allowances for that period cannot be treated as arbitrary or illegal. 5. As far as the first submission is concerned, apart from the technicality, Justice of the cause requires the respondents to be directed to restore the petitioner to the position which he would have occupied but for the wrong refusal to continue him in service, to give restitution in respect of all benefits which he would have enjoyed but for the wrong refusal. I am inclined to accept the submission made on behalf of the petitioner that this Court naturally expected the Government of India to give the petitioner full restitution consequent on his reinstatement in service with continuity of service from 18th September 1980. 6. As far as the 2nd submission is concerned, it cannot now be disputed that the petitioner was prevented from performing the duty attached to the post by reason of a wrong assumption made by the respondents in spite of his willingness, nay, anxiety to be continued in employment. I am not referred to any rule which provides that a person who was wrongly prevented from performing the duty attached to the post might be denied emoluments even after such services are regularised by orders of competent authority. If there are no rules to that effect, the refusal of full restitution on the plea that he did not work during the period cannot be sustained. True it is that he did not work; but he could not, because he was not permitted to. In these circumstances, I do not find any merit in the 2nd submission either. The Original Petition is, therefore, allowed, there will be no orders as to costs.