Amal Kanti Sarkar v. State of West Bengal — 1989 DIGILAW 516 (CAL)

JUDGMENT In this application under Article 226 of the Constitution of India the petitioner has challenged the impugned order of dismissal dated 9th February, 1987 passed by the Managing Director (Disc) North Bengal State Transport Corporation, Cooch Behar, District Cooch Behar. The facts of the case are under: 2. On or about October 3, 1969 the petitioner was appointed as Stores Inspector, North Bengal State Transport Corporation in the scale of Rs. 235-325. In the year 1970 the pay scale of the petitioner was also revised at Rs.330-550. Thereafter on or about 4th April, 1973 the petitioner was entrusted -with an additional duty of the Purchase Section by the Order of the Deputy General Manager, Raigunj, issued under Memo No. 37/5/G. M. dated 4th April, 1973. Pursuant to the said Order the petitioner had to shoulder some additional responsibilities which according to him, he was not required to do. The petitioner raised protest against such imposition of additional duties but that was of no effect. Thereafter the petitioner was transferred to different places. 3. Suddenly on or about August 6, 1980 by an order being No. 867/19/S.T.C./R-1-3 issued by the Deputy General Manager. Raigunj, the petitioner was entrusted with further additional duty of Incharge of the newly created Transit Store Wing Section. The petitioner was allotted additional work of the Senior Purchase Assistant, Cashier and a part of the work of Accountant along with his own duties and functions of Stores Inspector, the post in which the petitioner was appointed. 4. The functions and duties of the post of the petitioner viz. Stores Inspector are inspection of incoming stores and spares purchased by the Department from time to time and issuance of Inspection Report and Receipt Certificate and handover the items to the Store Keeper. 5. 4. The functions and duties of the post of the petitioner viz. Stores Inspector are inspection of incoming stores and spares purchased by the Department from time to time and issuance of Inspection Report and Receipt Certificate and handover the items to the Store Keeper. 5. The functions of the Senior Purchase Assistant are as follows: - (a) Collecting quotation and tender from different suppliers and manufacturers, dealers and others, (b) preparation of Comparative statements of rates, (c) issue or purchase order, (d) checking of bills of outside depot of Raigunj Division, (e) issue of post factor purchase order, (f) correspondents with suppliers, with the North Bengal State Transport Corporation circle outside depot, (g) drawing of each from divisional cash, Raigunj Division, (h) making payments to the supplies, (i) preparation of statement of bills/cash memos, (j) had to go different marketing i. e. Raigunj Market Siliguri Market, Calcutta Markets and Maida Market etc. 6. The duties and functions of the Cashier are as follows:- (a) Payment of bills against cheque, cash or draft, (b) issue of petty cash for purchasing materials at the time of emergency purchase from the local market, (c) keeping the accounts of petty cash accounts, (d) final adjustment with divisional cash etc. 7. The different types of duties as indicated hereinabove were to be performed by the petitioner although his appointment was in the post of Stores Inspector. It is partinent to mention here that the additional work of accounts i. e. statement of bills, checking of bills, final adjustment of bills; correction of bills and correspondence etc. were to be done by the petitioner. Practically it became impossible for the petitioner to perform such voluminous works and/or duties. However, only for the sake of his service he bad to do all such works although he is not bound to perform the duties except those of Stores Inspector. The petitioner on several occasion objected to such imposition of additional duties and intimated the concerned authorities against the said voluminous works imposed upon him and further requested them to engage staff for smooch functioning of the said newly created Store Wing Section. The petitioner on several occasion objected to such imposition of additional duties and intimated the concerned authorities against the said voluminous works imposed upon him and further requested them to engage staff for smooch functioning of the said newly created Store Wing Section. Having received no response to all such objections, notes and correspondence, and the petitioner finding no other way, sent a note on December 30, 1982 informing the respondent authorities about his unwillingness to shoulder the responsibilities and the duties of the other posts forced upon him. However, the petitioner had to perform and/or shoulder such excessive works and/or duties to retain his service only. 8. Thereafter on or about April 17, 1984 the petitioner by and under Office Memo No. 83/8/STC/R-1-3A was released horn Transit Store Wing Section and was directed to report for duty to Store Officer. 9. Suddenly and surprisingly on or about August 20, 1984 by and under two different Memos the petitioner was informed that a disciplinary proceeding had been stared against hi m in connection with reports dated 6.7.84 and 23.7.84 submitted by Sri N.K. Das, Junior Accounts officer and the petitioner was suspended with immediate effect. Against the said purported order of suspension the petitioner came before this Court and obtained stay order and subsequently the said interim order of stay had been vacated by the Appeal Court. The said proceedings are still pending before this Court. 10. However, enquiry was made in those two cases. Before taking final decision in the said two disciplinary cases, another charge sheet being disciplinary Case No.38/85 as well as the suspension order were issued by two different memos dated 26th July, 1985. The petitioner was also directed to continue to remain under suspension till the finalisation of discipline Case No. 38/85, in continuation of his suspension of the earlier two discipline cases bearing No. 158/85/R and 159/84/R. It was also intimated to the petitioner that Sri G. P. Konar, Deputy Managing Director (D) bas been appointed as Enquiry Officer to enquire into the charges framed against the petitioner in the Departmental proceedings. 11. 11. Thereafter, the petitioner on one or two occasions took time to file his further statement due to his serious illness & prayed for supplying the copies of documents or xerox copy of documents mentioned in the schedule, so that the petitioner could deal with the allegations raised by the respondent authorities against him. Further the petitioner intimated, to concerned respondents that he was ready and willing to pay the costs for supplying such copies or xerox copies of the documents mentioned in the schedule, to be relied by the respondent authorities. Medical Certificate as granted by the petitioner's Doctor was also sent along with the said application to the Enquiry, Officer. The said application and/or letter was received by the concerned office on 23rd August, 1985. Several correspondences were made with the respondents authorities asking them to supply the certified copies of xerox copy of the documents upon which the respondent authorities were relying. The petitioner on all occasions communicated to the Enquiry Officer that he was willing to defray all the expenses for those copies of documents etc. 12. Inspire of all such applications, requests and prayers made by the petitioner, the respondents authorities did not supply such copies of the documents to be relied by them in the Enquiry. Ultimately, by and under a letter dated October 3, 1985 the disciplinary authority intimated the petitioner that the only document under Serial, No.5 of his requisition being the list submitted by him is supplied. So far as the other documents being available in singular copies and being the vital documents e. g. Bill, Challan and Pay Orders etc. it is not possible to get them copies. The petitioner was asked to take inspection of those documents and lake note, etc. 13. However, it is to be pointed out that all those documents which are very vital for the said enquiry, bears the names of spare parts, size, amount and/or price and also the other particulars which are also very much essential for the purpose of the enquiry. As such mere taking inspection or note would not serve the purpose of the petitioner to enable here to give satisfactory reply and/or to show cause against the charges framed by the respondents authorities. As such mere taking inspection or note would not serve the purpose of the petitioner to enable here to give satisfactory reply and/or to show cause against the charges framed by the respondents authorities. It is pertinent to note here that although the rules of service of the petitioner require that adequate opportunity should be given to the employee to defend his case, the respondent authorities inspite of repeated requests and prayers made by the petitioner did not supply the copies of these vital documents to be relied on by the respondent authorities. 14. The petitioner raised protest against such action of the respondents authorities through his various letters and particularly by his letter dated 11th October, 1985. Thereafter on or about 24th June, 1986 the petitioner was intimated the purported decisions of the Deputy Managing Director, North Bengal State Transport Corporation, Raigunj Division under two different memo, taken in the two earlier discipline cases, which are as follows:- 1. He is censured/warned. 2. His suspension period will be treated as punishment. He won’t get anything other than S/A for the suspension period. 3. His three increments will be held up for a period of three years. He will not be allowed to resume his duties till disposal of disc. Case No. 38/85 initiated from Head Quarters. 15. However the petitioner has preferred appeals before the concerned authorities against those two purported decisions taken by the Deputy Managing Director, in the earlier two discipline cases. 16. Thereafter the petitioner again made several correspondence with the disciplinary authorities arid requested to supply the copies of such documents at his cost forgiving appropriate reply to the said purported charge sheet issued the present discipline Case No, 38/85 but the respondents authorities did not bother to supply such copies of the documents to be relied by them but shifted the dates for hearing on several occasions. 17. Ultimately the date for enquiry was fixed on January 21, 1987 and the same was communicated to the petitioner although the copies as prayed for were not supplied to him. The petitioner raised protest against the same by his letter dated January 19, 1987. Suddenly and surprisingly on 13th February, 1987 an impugned order dated February 9, 1987 was received by the petitioner which runs as follows:- "I have gone through the case record thoroughly. The petitioner raised protest against the same by his letter dated January 19, 1987. Suddenly and surprisingly on 13th February, 1987 an impugned order dated February 9, 1987 was received by the petitioner which runs as follows:- "I have gone through the case record thoroughly. I have also gone through the report of the Enquiring Officer, Shri Sarkar was given sufficient chance to defend his case he preferred not to avail of the opportunities and wanted to avoid departmental proceedings. His intentions were very clear. The charges against Shri Sarskar are very grave in nature and based on documents heavily. The charge against him stands and I agree with the findings of the E. D. Shri Sarkar deserves on sympathy. I impose following penalty. He is dismissed from service with effect from the date or order. He will not get anything other than S. A. during the period of suspension. Dues lying with him will be realised from the gratuity payable to him." 18. Thereafter the petitioner by his letter dated 16th February, 1987 wrote to the respondents authorities to supply him the copy of the enquiry report as well as the findings of the Enquiring Officer at an early date. The said letter was received by the concerned authorities on 17.2.87 but unfortunately no copy of the enquiry report or the finding of the enquiry officer or the order authenticated by the respondents authorities has yet been served upon the petitioner. In the circumstances the petitioner has filed this application. 19. It is contended on behalf of the petitioner that the order of dismissal dated 9th February, 1987 passed by the Managing Director is arbitrary, illegal, mala fide and at the same time bad in law, In view of the fact that the Managing Director placed his reliance on the documents but most unfortunate event is that the Writ petitioner has not been supplied with the copies of such documents inspire of repeated representations and requests made by the petitioner to supply copies of those documents relied by the respondents authorities upon payment of cost by the petitioner. The Writ petitioner in his representation dated 27th September, 1985 categorically expressed his desire to defray all the expenses that will be caused for supplying the certified copies or xerox copies of the documents upon which the respondent authorities are relying on hi various other representations the petitioner also made the same representation for supplying copies of those documents upon which the respondents authorities have placed reliance on payment of the cost and/or expenses which is to be incurred by the respondent authorities for supplying those documents. It is contended that the respondent authorities deliberately and intentionally did not supply such vital documents i.e. Bill, Challan and Pay Orders etc. on the plea that it is not possible to get copied by type and also stating that this office is not equipped with any other copying machines. The respondent authorities, knowing it fully well that it is not possible for the petitioner to keep all those figures and the name of the items and/or materials in mind, did not allow the petitioner to get copies of those very vital documents upon which much reliance bas been placed by the respondents authorities. 20. The respondents authorities acted arbitrarily by not supplying the copies of several vital documents. The principles of natural justice and fair play have not been observed. The respondents could have made xerox copies of the documents could not have been copied by typing. The respondents authorities denied opportunity to the petitioner to give an effective reply to the charge levelled against the petitioner by not supplying the vital documents upon which the respondents authorities including the Enquiry Officer relied. This is wholly against the principles of natural justice. The action of the respondents is also viola live of the Service Rules as framed by the respondents authorities in that regard Rules 41 and 42 of the North Bengal State Transport Corporation, Coochbehar read as fellows :- "41. No order of dismissal, removal of reducting shall be passed on an employee fo the Corpn. (other than an order bases on facts which led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to lake action, and has been afforded an adequate opportunity of defending himself. No order of dismissal, removal of reducting shall be passed on an employee fo the Corpn. (other than an order bases on facts which led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to lake action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing order on the case. He shall be required, within reasonable time, to put in a written statement of the defence and to state whether be desired to be heard in person. If he so desired or if the authority concerned so directs an oral enquiry or oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as be may wish, provided that the officer conduction the enquiry day, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and ground thereof: Provided that this regulation shall not apply where the employee concerned has absconded or where it is for other reasons impracticable to communicate with him and all or any of the provision of this regulation may, in exceptional cases, fur social and sufficient reasons to be recorded in writing, be waived, where there is difficulty in observing exactly the requirements of this regulation and those requirements can be waived without injustice to the person charged." "42. No order imposing a penalty specified in clauses (ii), (iv) and (v) of Regulation 33, other than an order of suspension pending proceedings, shall be passed on any employee of the Corporation unless be bas been given au adequate opportunity of making any representation if any, has been taken into consideration before the order is passed. No order imposing a penalty specified in clauses (ii), (iv) and (v) of Regulation 33, other than an order of suspension pending proceedings, shall be passed on any employee of the Corporation unless be bas been given au adequate opportunity of making any representation if any, has been taken into consideration before the order is passed. Provided that the requirements of this regulation may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and they can be waived injustice the employee concerned." 21. Regulations 41 and 42 enjoin that reasonable and adequate opportunity should be given to the charged employee to defend himself but unfortunately no such opportunity has been afforded by the respondent authorities or the Enquiry Officer. Thus the entire proceedings have been vitiated. The impugned order of dismissal bas been passed in clear violation of the said Regulations of the North Bengal State Transport Corporation, Coochbehar. 22. The contentions of the petitioner are supported by the decisions of the Supreme Court. In the case of (1) Stale of Orissa v. Dr. (Miss) Binapani Dei & Ors. reported in AIR 1967 SC 1269 , it has been held as follows :- "It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after Informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State." In the instant case also, the petitioner was not given the report of the Enquiry Officer which is violative of principles of natural justice. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State." In the instant case also, the petitioner was not given the report of the Enquiry Officer which is violative of principles of natural justice. In the present case, the Writ petitioner has not been supplied with the copies of all such relevant documents upon which the respondents placed reliance and by that process the respondent authorities did not give adequate opportunity to the petitioner to submit his reply against the charges as framed by the respondent authority and thereby violative and the rules and/or regulations governing the service of the petitioner and specifically violated Rules 41 and 42 of the said Service Rules and/or Regulations as indicated hereinbefore. Such conduct of the respondent authorities is also violative of Article 14, Article 21 and Article 311 (2) of the Constitution of India and thus the impugned order of dismissal is a nullity and should be quashed. 23. The other judgment of the Supreme Court in the case of (2) State of Punjab v. K. R. Erry reported in AIR 1973 SC 834 also supports the contentions of the petitioner herein. In paragraph 22 of the said judgment, the Supreme Court observed as follows:- It is, therefore, clear that the State in the case of these three officers could not have applied a cut in the pension of the officers without giving them a reasonable opportunity to make their defence. The rule which declares that even an administrative authority has to act fairly after giving and opportunity to the persons whose rights and interests are affected by its decision is no more than an extension of the well-known rule which Courts in England had recognised in the 19th Century. (3) The Cooper v. Wandsworth Board of Works. (1963) 14 CBNS 180 the Board, which had, under the Act of 1855, the authority to demolish any building constructed if the owner thereof bad failed to give proper notice, was held bound to give the owner an opportunity of being heard before the demolition. It was contended in that case by the Board that their discretion to order demolition, was not a judicial discretion. But the Court decided unanimously in favour of the owner. It was contended in that case by the Board that their discretion to order demolition, was not a judicial discretion. But the Court decided unanimously in favour of the owner. Erle, C. J. held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard and that this had been applied “to many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down”. Willes, J. observed “that the rule was of universal application, and founded upon the plainest principles of justice”. In the case before us the officers are being deprived of part of their property by applying a cut to the pension. Therefore, it is quite essential in all fairness and elementary justice that they should have been given reasonable opportunity to show cause against the proposed action." 24. The petitioner is also supported by several other decisions of the Supreme Court. In the case of (4) Surath Chandra Chakravart v. The Stale of West Bengal reported in AIR 1971 SC 752 it has been observed as follows :- ".........We are unable to agree that the details without which a delinquent servant cannot properly defend himself are a matter of evidence. In this connection reference may be made to Fundamental Rule 55 which provides, inter alia, that without prejudice to the provisions of the Public Servants Enquiry Act, 1850 no order of dismissal, removal or reduction shall be passed on a member of service unless he is informed in writing of the grounds on which is proposed to take action and has been afforded on adequate opportunity of defending himself. The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstances which it is proposed to be taken into consideration in passing orders has also be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.................................... It is precisely for this reason that Fundamental Rule 55 provides as stated before, that the charge should be accompanied by a statement of allegations. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. The appellant repeatedly and at every stage brought it to the notice of the authorities concerned that be had not been supplied the statement of allegations and that the charges were extremely vague and indefinite. Inspite of all this no one cared to inform him of the facts, circumstances and particulars relevant to the charges. Even it the Enquiry Officer had made a report against him the appellant could have given a further opportunity at the stage of the second show cause notice to adduce any further evidence if he so desired after he had been given the necessary particulars and material in the form of a statement of allegations which had never been supplied to him before. This could undoubtedly be done in view of the provisions of Art.311(2) of the Constitution as they existed at the material time. The entire proceedings show a complete disregard of Fundamental Rule 55 in so far as it lays down in almost mandatory terms that the charges must be accompanied by a statement of allegations. We have no manner of doubt that the appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the trial Judge was fully justified in decreeing the suit." 25. In this situation, for the above reason alone, the trial Judge was fully justified in decreeing the suit." 25. The petitioner has not been furnished with the particulars of charges i. e. the copies of relevant documents on which the respondent authorities have placed reliance and further dismissed the petitioner on that basis his necessary to point out that inspite of repeated prayers and/or requests made by the Writ petitioner the respondent authorities turned a deaf ear to such prayer made by the Writ petitioner for supplying xerox copies at the cost of the said petitioner. 26. Reliance bas been placed in the decision made in the case of (5) State of U. P. v. Dr. S. P. Saxena & Anr. reported in 1987 (Supp.) Supreme Court Cases 165 wherein it has been observed as follows:- "Failure to supply the report resulted in violation of natural justice in any case. This failure has been considered to be fatal to the departmental proceedings so as to vitiate the order of dismissal passed against the respondent." 27. The contentious of the petitioner also finds support from the judgment in the case of (6) Chandruma Tewari v. Union of India reported in 1987 (Supp.) Supreme Court Cases 518 wherein it has been observed as follows :- "Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the Government Servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent Government Servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent Government Servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the, memo of charges is not relevant to the charges or it is not referred to or relied upon by the enquiry officer or the punishing authority in bolding the charges proved against the Government Servant, no exception can be taken to the validity of the proceedings of the order. If the document is not used against the party charged the ground of violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of fullt against him. On a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non-supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer," 28. The respondents authorities deliberately and intentionally did not supply the Writ petitioner the copy of material and relevant documents on which they have placed reliance and dismissed the Writ petitioner without giving any opportunity to him to deal with those documents. 29. It has been contended on behalf of the respondents that the petitioner was given all opportunities on several times to get the documents inspected and/or copies by him, but be was unwilling to get them copied and delayed the proceedings by killing time. In my view, the facts and circumstances as appearing from the pleadings, and which I have referred to earlier, do not justify this contention made on behalf of the respondents. 30. It has also been contended on behalf of the petitioner that the Enquiry Officer, being a legally trained officer, the petitioner should have been given the legal assistance. According to the petitioner, the Enquiry Officer was having qualification in law. 30. It has also been contended on behalf of the petitioner that the Enquiry Officer, being a legally trained officer, the petitioner should have been given the legal assistance. According to the petitioner, the Enquiry Officer was having qualification in law. The Disciplinary Authority as well as the Enquiry Officer rejected his prayer for a lawyer without giving any reasons, According to the petitioner, this is contrary of law and fair play. 31. It is now well settled that in the event the enquiry authority or the disciplinary authority is a legally trained officer, delinquent should be allowed to engage a lawyer at the time of enquiry as and when asked for by the delinquent. The respondent authorities rejected such prayer of the petitioner without assigning any reason. 32. Mr. A. Banerjee has been engaged in 4he present being, case No. 38/85 as Enquiry Officer. Mr. Benerjee who was also the Enquiry Officer in disciplinary Case Nos. 158 and 159 of 1984, had imposed punishment. The petitioner has preferred two several appeals and the said two appeals have not yet been decided by the concerned authorities. Mr. Banerjee also did not allow the petitioner to take the assistance of a lawyer in the instant case. The apprehension of the petitioner that there is likely bias cannot be thrashed out. 33. For the reason aforesaid this application is allowed. The proceedings being proceeding No. 38 of 1985 are quashed, but the respondents will be at liberty to proceed afresh with the enquiry after giving the petitioner a reasonable opportunity of being heard. Let the enquiry be held by an Enquiry Officer other than Mr. Banerjee who has already hold enquiries against the Petitioner. 34. The new Enquiry Officer shall consider the application if made by the petitioner for, representation by a lawyer and if his application is rejected the Enquiry Officer shall give reasons therefor and the petitioner will be at liberty to move before the appropriate, forum for redress of his grievance. 35. Let the proceedings be concluded after giving the petitioner a reasonable opportunity of being heard within 3 months from the date of communication of this order. 36. Since the petitioner was under suspension till the date of his dismissal the petitioner will continue to be under suspension until fresh order is passed pursuant to the fresh enquiry to be held in terms of this order. 36. Since the petitioner was under suspension till the date of his dismissal the petitioner will continue to be under suspension until fresh order is passed pursuant to the fresh enquiry to be held in terms of this order. In the event the enquiry terminates in favour of the petitioner, the petitioner will be entitled to the full salary for the period under suspension treating the petitioner as on duty for the entire period of the suspension. He shall also be entitled total services benefits. 37. If the proceedings are terminated against the petitioner be will not be entitled to any amount apart from the subsistence allowance paid to him subject to any order in the appellate proceedings or any other proceedings, that may be initiated petitioner thereafter. 38. The petitioner shall be paid from the date of dismissal and until the enquiry proceedings are completed and fresh order is made, subsistence allowance as admissible under the Rules. Let the arrears from the date of his dismissal till 30th November, 1989 be paid within 4 week is from the date of this order. Parties are to act on the signed copy of the operative part of this judgment and order.