Judgment 1. THIS appeal is preferred against the judgment and decree passed by the Subordinate Judge, Cooch Behar in Title Suit No. 5 of 1980 dated december 17, 1982 and decree dated January 7, 1983 respectively. 2. THE plaintiff filed the suit for declaration and recovery of arrear salary and allowance, compensation and also for permanent injunction. The facts of the case, in short, are as follows :-The Respondent (Plaintiff) appointed as a postman in the Postal Department, Government of India in the year 1951 was promoted as a Clerk in 1962. In the year 1967, the respondent was posted at Dinhata post office. On 27-9-1967. a Registered bag was closed by H-14 out (RMS Running Section) for delivery of the same to the Dinhata Post Office. On 28-9-1967 train mail was Received by Dinhata Post Office at 11-30 hours from RMS Running section and on that date, respondent was on duty from 7 to 10 and 12 to 17 hours as per duty allotment. On 28-9-1967. one Biswanath Sarkar, the then Registration clerk of Dinhata Post Office (for short Biswanath hereafter)received amongst other registration bags five registered bags in good condition namely (1) Alipurduar R. M. S. (2)Dinhata Bazar (3) Alipurduar R. M. S. (4) Alipurduar Junction and (5) Registration Bag H-14 Out dated 27. 9. 67 with the words, cards, scale, tables and bag intact and Biswanath gave a clear receipt in the relevant book for those registration bags. Biswanath accounted for the aforesaid 1 to 4 items in his registered abstract but failed to account for the registered bag closed by H-14 out dated 27. 9. 67. Such bag made for Dinhata Post office was found lost from Dinhata on 28. 9. 1967 and it was not traceable after transfer of the said Biswanath and this loss was from his custody, at 11-30 hours when the said bag H-14 Out was received at Dinhata post Office with all other mail bags the respondent was not on duty and he was also not, present in the post office. Someone also of Dinhata Post Office received such bags including the H-14 Out bag under supervision of Shri Jyotir Bikash roy Barman, Head Clerk of Dinhata Post Office. That in such lost registered bag of H-14 Out dated 27. 9. 67 there was one insured letter for Rs. Someone also of Dinhata Post Office received such bags including the H-14 Out bag under supervision of Shri Jyotir Bikash roy Barman, Head Clerk of Dinhata Post Office. That in such lost registered bag of H-14 Out dated 27. 9. 67 there was one insured letter for Rs. 1200/- Which was sent from Choudhury bazar, Cuttack Post Office butt the booking office could not produce any paper showing that any such insured letter No. 1561 dt. 25. 9. 67 was at all sent in such registration bag closed by H-14 Out. For such loss of the aforesaid bag from the custody of Biswanath the then Assistant Superintendent of Post Office, Jalpaiguri Division lodged a written complaint with the officer- in- Charge, Dinhata Police Station. On such complaint Dinhata P. S. Case NO. 5 (1)/68 under Section 380 i. p. C. was started against the respondent and Biswanath. Thereafter, the respondent was arrested by the Police in connection with the said case and he was enlarged on bail therefater. On 29. 2. 68 the respondent was suspended by the senior superintended of Post and Telegraph, Jalpaiguri Division with effect from thereaftemoon of 27. 2. 68 under sub-rule 1 of Rule 10 of the Central Civil Service (Classification, control and Appeal) Rules, 1965 (for brevity "the said Rules" hereafter) and no order regarding subsistence allowance was passed along with the order of suspension. Thereafter a charge-sheet was submitted by the police. The aforesaid criminal case was subsequently withdrawn by the public Prosecutor and the respondent was acquitted of the charge under Section 380 I. P. C. but the order of suspension against the respondent was not withdrawn. Thereafter on 3. 3. 1976, the Superintendent of post Office, Jalpaiguri Division passed order for recovery of the entire amount of Rs. 12. 00/- covered by the lost insured letter from Biswanath and Shri Jyotir Bikash Roy Barman and the responsibility of making payment was shared as under rs. 9000/- by Biswanath Sarkar and Rs. 300/- by Joytir Bikash roy Barman who were neither suspended nor arrested in connection with the loss of the said insured letter. Thereafter a case under Section 409 I. P. C. started by the police at the instance of the Postal Department resulted in the termination of the criminal proceedings. on the basis of a final report no. 79 dated 15. 6. 1977. Thereafter a case under Section 409 I. P. C. started by the police at the instance of the Postal Department resulted in the termination of the criminal proceedings. on the basis of a final report no. 79 dated 15. 6. 1977. The S. D. J. M. , Dinhata accepted the said report and discharged the respondent. Ultimately the order of suspension on the respondent was revoked on 28. 4. 78. Respondent was allowed to resume his duties on and from 3. 5. 1978 at Matha Bhanga Post Office. 3a. By order dated 15. 3. 1968 respondent was allowed subsistence allowance at an amount equal to the leave salary and dearness allowance. Such subsistence allowance was ordered to be increased by 25% with effect from 28. 2. 1968. It was further ordered on 2. 9. 78 that the pay of respondent would be drawn on the revised scale from the date or his joining, but the treatment regarding the period of suspension was not made known, to result of treatment of suspension period was disclosed till August 24, 1979 when the Superintendent of Post Office issued a notice informing the respondent that he would be given an opportunity of making a representation against the proposal to treat the period of suspension not on duty for any purpose except that the said period shall be counted as on duty for the purpose of pension benefits. Respondent submitted his representation. An order dated October 4, 1979 was passed for the payment of 2/3rd. of the pay and allowance for the aforesaid period of suspension and a supplementary bill for the amount of Rs. 17. 16. 85 was sent for acceptance. The case of respondent is that he is entitled to all service benefits and the period of suspension cannot be treated as a period of leave. The suit was filed in the court below after service off notice under Section 80 Civil procedure Code. Appellants filed written statement denying the plaintiff's allegations. The defence case in its barest outline is presented as under. 3b. The total emolument was Rs. 225/- at the time of suspension of respondent from service I. e. February 27, 1968 (A. N.) when he was posted as Clerk at Dinhata post Office. Functioning of respondent as Mail Clerk from 7 to 10 and 12 to 17, hours was denied, that Biswanath received some other registration bags. 3b. The total emolument was Rs. 225/- at the time of suspension of respondent from service I. e. February 27, 1968 (A. N.) when he was posted as Clerk at Dinhata post Office. Functioning of respondent as Mail Clerk from 7 to 10 and 12 to 17, hours was denied, that Biswanath received some other registration bags. Registration bag H-14/0ut (as "the bag in question" hereafter) was last from the custody of Biswanath on the aforesaid date, the mail bag containing due registered bag for Dinhata Sub-Post Office was closed and this was duly conveyed by H-14/0ut section on September 28, 1967. The Mail bag along with other mail bags were made over to the Bail peon at Dinhata Railway Station on the same day. Respondent received the bag in question at Dinhata Post Office at 11-45 hours from Rambhajan Mahato, Mail Peon. 3. ON September 28, 1967 Biswanath received four registered bags and one registered list from respondent. The registered bag was opened and necessary entries were made in the registered abstract on September 28, 1967 at Dinhata Post Office and signed by the group officers concerned. Respondent received the bag in question along with other bags and made entries Bfocfgandnteejsigt of registration on September 28, 1967 in the hand to hand receipt book maintained by him. The bag in question was not received by Biswanath nor the said bag in question was handed over by respondent to Biswanath. as a result, Biswanath did not make any entry showing receipt of the bag in question in the registered abstract maintained by him. Appellant further denied any entry in hand to hand receipt book maintained by respondent who subsequently manipulated the record intentionally by false entries in order to misappropriate the bag in question and thereby- to shift the responsibility on Biswanath. Respondent was present in the post office at 11-30 hours and the bag was received at 11-30 hours. Respondent received the bag in question, but did not hand over the same to anybody. In the bag in question the insured letter no. 1561 dated September 25, 1967 for rs. 1200/- was sent from Chowdhury Bazar (Cuttak ). There are valid documents to show that the insured letter no. 1561 dated September 25, 1967 thus [placed in the bag in question reached the Dinhata post Office. In the bag in question the insured letter no. 1561 dated September 25, 1967 for rs. 1200/- was sent from Chowdhury Bazar (Cuttak ). There are valid documents to show that the insured letter no. 1561 dated September 25, 1967 thus [placed in the bag in question reached the Dinhata post Office. The Department after being satisfied about the despatch of the insured bag paid compensation to the sender of the letter. A written complaint was lodged by the Assistant Superintendent of the said Post Office with the Officer- in- Charge, Dinhata police Station for the loss of the bag in question from the custody of respondent who was placed under suspension in terms of Rule 10 (1) of the said Rules with effect from February 27, 1968 when he was arrested by the police and since a case against him was under investigation. The orders regarding payment of subsistence allowance were issued. P. S. Case No. S (1)/68 was initiated. Police submitted charge sheet and the charges under section 380/403 of the I. P. C. were framed against respondent. Subseqently it was revealed that the Magistrate had no jurisdiction to try the case. On June 27, 1572 the case on the prayer of prosecution was allowed to be withdrawn. The case was, however, reopened against respondent. Respondent was sought to be tried under Section 409 of I. P. C. . in the court of Special Judge, Cooch Behar. The DEO, Dinhata took charge of the investigation. Superintendent of Police, DEB, cooch Behar intimated that the case has been reopened and the withdrawal of the order of suspension, in the circumstances, did not arise. No departmental proceeding was, however, initiated against respondent at the relevant time as the criminal proceeding was pending against him. Jyoti Roy burman was not suspended as no criminal case was pending or started against him. Biswanath was, however, placed under suspension with effect from May 15, 1970 and the. same was revoked on January 4, 1971. The criminal proceeding, that was initiated under section 40 I. P. C. against respondent, could not be proceeded with cm the ground of destruction of the documents after the expiry of the prescribed period. The order of suspension thus imposed upon respondent was withdrawn. On May 3, 1978, 2, respondent- resumed his duties. Respondent was given subsistence allowance of Rs 33,145. The order of suspension thus imposed upon respondent was withdrawn. On May 3, 1978, 2, respondent- resumed his duties. Respondent was given subsistence allowance of Rs 33,145. 71 for the period between February 27, 1968 and Ma' 1978. A departmental proceeding for the imposition of minor penalty under Rule' 16 of the said Rules was initiated after expiry of almost seven months from the date of revocation of the order of suspension and the said proceeding culminated in the imposition of penalty of withholding increment for one year. The period of suspension undergone by the plaintiff/ respondent except the pensionary benefits was treated as non-duty. Respondent was informed that his pay could be fixed in the revised scale with effect from the date of reinstatement and travelling allowance advance was not admissible as per Rules. Respondent preferred an appeal against the order passed 'in the ' departmental proceeding for. withholding of one increment and the said appeal was pending. Mo appeal was preferred against the order treating the period of suspension as not on duty which would not count towards the pensionary benefits. Respondent thus waived his right and as such he now could not be permitted to challenge the said, order of suspension in a court of law. The order of suspension was legal and the orders deducting pay and allowances during the period of suspension are legal, valid and binding on respondent. 4. UPON the rival pleadings of the parties the trial Judge framed eight issues. Issues Nos. 4 to 7 were taken up together. The trial Judge found that the respondent was never detained for a period of 48 hours. There is no rule requiring the appellant to suspend the concerned employees with effect from the date "of arrest of the employee. The appellant by revoking the order of suspension should be reinstated in service immediately after the submission of the final report. The continuance of the order of suspension beyond the date of withdrawal and end of the aforesaid criminal case until the initiation of a fresh proceeding was not permissible under the Rules. The trial Judge further found that a fresh order of suspension should have been passed by the appellant after the initiation of fresh criminal proceeding, but that was not done the trial Judge also found that the criminal procedings initiated against respondent under Section 409 i. P. C. also. The trial Judge further found that a fresh order of suspension should have been passed by the appellant after the initiation of fresh criminal proceeding, but that was not done the trial Judge also found that the criminal procedings initiated against respondent under Section 409 i. P. C. also. terminated in favour of respondent since the documents which were destroyed after the prescribed period, could not be produced and for which respondent should be held responsible by any stretch of imagination. The trial Judge reached the finding that them was nothing on record to show that there was slightest justification on the part of the postal Authority to against respondent,nor the postal Authority had any responsible forming an opinion that the order of suspension against respondent was justified and the Postal Authority without any tests of objectivity formed an opinion that the order of suspension was not wholly unjustified and respondent was not full pay and allowance during the period of suspension and respondent was not to be treated on-duty during the entire period of suspension. The trial Judge also held that when the entire case was, based on the loss of one bag for which respondent was held responsible the postal authority i. e. the appellant failed to substantiate that the loss in question was due to the respondent alone or due to the respondent and some other persons. The trial Court further considered the basic and fundamental grievances of respondent that there was no reason to deprive the respondent of his pay and allowance and increment for the year and other benefits which were allowed to the other two persons who were implicated in the same proceedings, but respondent was denied natural justice by reasons of the aforesaid order. Respondent was never found guilty and there was no ground for passing order of sue pension and the continuance thereof for a long period i. e. 10 years 2 months and 4 days hence the plaintiff was entitred to full pay and allowance for the period of suspension. The plaintiff was deprived of the full pay and allowance by reason of the order of suspension wrongly imposed upon him by the appellant. The trial Judge reached his findings in respect of the issue Nos. 3 and in favour of respondent. In respect; of Issue Nos. The plaintiff was deprived of the full pay and allowance by reason of the order of suspension wrongly imposed upon him by the appellant. The trial Judge reached his findings in respect of the issue Nos. 3 and in favour of respondent. In respect; of Issue Nos. 1, 2, 9 and 10 the trial Court held that the suit is maintainable in its present form and respondent is entitled to a decree for declaration, that the order of suspention against respondent was wholy unjustified, that respondent is entitled to a decree for- recovery of full pay and allowances including the pay according to revised pay scale and also increment and other benefits as admissible under the Rules. 5. ACCORDINGLY, the suit was decreed in part. the order of suspension was declared illegal, unjustified, ultra virus and not binding on the part of respondent and respondent is entitled to recover full pay and allowances including the gay according to revised scale of pay and all other benefits which he would have been entitred to had he not been suspended and if he was in service during the entire period of suspension minus the amount already paid as subsistence allowance and in other words, the plaintiff should get the recovery of amount as claimed in Item I in Schedule to the plaint. The appellant was directed, to make payment of the decretal amount as mentioned in Item Nos. 1 and 2 of the schedule to the plaint within six months from the date of the decree. 6. AGAINST the said. . . judgement and decree the present appeal was presented before this - Court. Mr. Samarendranath Banerjee, the. learned senior Advocate duly assisted' by. Mr. Sadananda. Ganguly, tike learned' Advocate appearing for the appellant claimed and contended that' the trial court committed grave error by not taking' into account relevant document i. e. the order passed by the Superintendent of Post Office dated August 24, J979 in the department proceedings under Rule 16 of the said Rules where the competent authority,' on a consideration of the relevant materials imposed a penalty of withholding increment for one year. A notice, of the same date was issued by the authority directing respondent to submit his representation proposal to treat the period of suspension not on duty except for the purpose of pensionary benefits. Mr. A notice, of the same date was issued by the authority directing respondent to submit his representation proposal to treat the period of suspension not on duty except for the purpose of pensionary benefits. Mr. Banerjee further submitted that in the absence of any prayer in the plaint for a declaration that the order as passed under Fundamental rule 54 (b) of the Fundamental rule (for short FR hereafter)and the order imposink against which respondent preferred the ' appeal which was pending, the suit is not maintainable when a statutory remedy provided and such remedy is availed of. 7. THE next submission of Mr. Banerjee is that the finding of the trial Judge to the effect that the order of suspension was wholly unjustified is without any basis inasmuch as the important fact that the criminal proceeding under section 380 of I. P. C. had to be Withdrawn because the Magistrate had no jurisdiction to try the case against respondent a government servant - without proper sanction from the competent authority and the trial Judge erred in holding that such technical default is enough to hold the criminal proceeding is wholly without any ground. The departmental proceeding as claimed by Mr. Banerjee was properly initiated. The interpretation of the provisions of Rule 54 (b) of FR according to Mr. Banerjee was not at all made, that the trial Judge was in error in holding that the criminal proceeding was not permissible and was further in error in holding that the departmental proceeding was not permissible inasmuch as mere termination of the criminal proceeding does not debar the Authorities from initiating the departmental proceeding. Mr. Banerjee further urged that the trial judge also did not consider the true import, scope and effect of Rule 54 (b)of FR in as much as on a proper consideration of the order determining the eligibility of the pay and allowance and the decision treating the period of suspension, as provided under the law, the instituted by respondent was wholly premature and should been dismissed. It was further submitted that there was no consideration and /or appreciation of documentary evidence adduced on behalf of the appellant, that the trial Judge should not have allowed the cost to the extent of Rs. 3,359. 80 against the Union of India. 8. It was further submitted that there was no consideration and /or appreciation of documentary evidence adduced on behalf of the appellant, that the trial Judge should not have allowed the cost to the extent of Rs. 3,359. 80 against the Union of India. 8. THE learned counsel appearing on behalf of respondent claimed and contended that the trial Judge was justified in decreeing the suit in part, that the finding of the trial judge that the order of suspension was wholly unjustified that the prolonged suspension was wholly unjustified, that the prolonged suspension for ten years two months and four days was not only punitive in character, but at the same time the same worked out disadvantages to respondent, that the order passed by the Magistrate trying the matter, that respondent should have been allowed to join his duties, that the prolonged suspension without any rational justification meted out unjust and great hardship to respondent and that the prolonged suspension for the reasons indicated in the is justified and proper and that the finding of the trial court that order of suspension is unjustified, is not liable to be interfered with by this Court. The order of the competent authority imposing penalty of withholding of one increment does not operate as a bar to treat the period of suspension as on duty. The learned Advocate for respondent further pinpointed that the recovery of Rs. 1200/- was effected from Biswanath and Jyoti Roy Burman and the recovery' of the amount, according to the learned counsel for respondent, from the concerned employee having been effected, no departmental proceedings should have been initiated against respondent inasmuch a the foundation of the charge against respondent ceases to exist for the sole reason that the aforesaid employees duly accepted the order of the recovery of the aforesaid amount from their salary. Further contention advanced on behalf of the respondent is that respondent cannot be saddled with the penalty of withholding of one increment. The challenge of the appellant that the suit is premature and not maintainable is without substance inasmuch as respondent prayed for a declaration that the order of suspension is illegal, ultra vires and not binding upon Despondent. It is also claimed on behalf of respondent that the order of suspension is rightly found wholly unjustified by the trial court. The challenge of the appellant that the suit is premature and not maintainable is without substance inasmuch as respondent prayed for a declaration that the order of suspension is illegal, ultra vires and not binding upon Despondent. It is also claimed on behalf of respondent that the order of suspension is rightly found wholly unjustified by the trial court. The order of the competent authority imposing penalty of withholding one increment cannot be a ground for refusing the reliefs prayed for by respondent. The order of the concerned authority that the period of suspension shall not be treated 'spent on duty' for all purposes excepting pensionary benefits is also punitive in nature inasmuch as the said order involves civil consequences. 9. BEFORE embarking upon the rival contention of the parties it is fit and proper to refer to the relevant provisions of the said rules and the FR 54 (b ). Respondent was placed under suspension by the authority in exercise of the power under Clause (b) of sub-rule (1) of Rule 10 of the said Rules. The Superintendent, Past Office, Jalpaiguri division in exercise of power under Rule 53 (1) of FR ordered the increase in subsistence allowance of 2 5% with effect from February 28, 1969. The revocation of order of suspension was made in exercise of power under Clause (c) of sub-Rule (5)of Rule 10 of the said Rules. Clause (b) of Sub-rule (1)of the Rule 10 of the said Rules is quoted below:-Where a case against him in respect of any criminal offence is under investigation, inquiry or trial : provided that, except in case of an order of suspension made by the Controller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant- General or equivalent other than a regular member of the Indian Audit and Accounts service), where the order of suspension is made by an authority lower than the appointing authority the circumstances in which the order was made. 10. CLAUSE (c) of Sub-rale (5) of Rule 10 of the said rules reads thus : "an order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any, authority to which that authority is subordinate. CLAUSE (c) of Sub-rale (5) of Rule 10 of the said rules reads thus : "an order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any, authority to which that authority is subordinate. Sub-RULES (5) and (7) off Rule 54 (B) are set out below; "sab-Rule (5) : In case other than those falling under Sub-Rules (2) and (3) the Government servant shall, subject to' the provisions of Sub-Rules (8) and (9) be paid such amount. not being the whole) of the pay and allowances to which he would have been entitled to had he not been suspended, as the. competent authority may determine, after giving notice to the Government servant to the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which, in no case, shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. " Sub-Rule (7) : In a case falling under Sub-Rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose. " 11. LET us now examine the rival contention of the parties in the perspective of the actual matrix the provisions of the said Rules and the FR as are quoted above. The Superintendent of Bast Office, Cooch Behar Division issued a notice being Ext. (b) directing respondent to submit a representation within 21 days from the date of receipt _of the said notice against the proposal to grant 2/3rd. of his pay and allowances for the period he has been under sue pension to which he would have been entitled had he not been suspended and to count the period of suspension towards the pension only in terms of Rule 54 (B ). On the same date, another order charges against the respondent in a given situation of the present nature requires the observance of natural justice and fair play in action. imposing minor penalty of with holding of one increment was issued. Respondent duly submitted his representation against the said proposal as indicated above. On the same date, another order charges against the respondent in a given situation of the present nature requires the observance of natural justice and fair play in action. imposing minor penalty of with holding of one increment was issued. Respondent duly submitted his representation against the said proposal as indicated above. Respondent duly claimed that under Rule 12 of the CC5 (CC4) Rules, 1972 leave of any category for more than 5 year's can be granted by the President. It is also recorded that the proposal is fraught with grave consequences for the reasons that respondent was kept under suspension for 10 years 2 months and 4 days. The decision of the authority that the order of suspension was not wholly unjustified was challenged on the ground that respondent was placed under suspension as a result of arrest by the police. Ext. 5, i. e. final report under Section 173 of the Code of Criminal Procedure records during investigation that all possible attempts were made to submit charge sheet against the accused persons, but to no effect as the requisite documents on which the case stood were, not seized by the previous Investigating Officer. The documents required for the case could not be made available as the period for preservation of documents was already not available. Postal Authority reported that the same was sent to the Post Master General on August 4, 1969. The final report further recorded that as there was no chance to submit the charge sheet in this case against the accused persons for want of requisite documents, the SP, DEB, CBR passed an order pursuant to which the police authority submitted PRO 79 dated June 19, 1977 under Section 409 of I. P. C. The Sub-Divisional Magistrate, Dinhata disharged respondent. 12. RESPONDENT further pointed out that there was no trial in the Court of Law where respondent could effectively counter the charges and allegations. No departmental proceeding was drawn up against him wherein he could have the opportunity of full knowledbe of the facts and circumstances of this case mentioned in the notice and refuted the allegations. The departmental proceeding was initiated after revocation of the suspension order of minor penalty. No departmental proceeding was drawn up against him wherein he could have the opportunity of full knowledbe of the facts and circumstances of this case mentioned in the notice and refuted the allegations. The departmental proceeding was initiated after revocation of the suspension order of minor penalty. The statutory provisions as contained in the said Rules make it abanduntly clear that in a proceeaing for a minor penalty the delinquent shall be given libarty or to counter the charges by way of effective defence, It is also an admitted position that both the relevant documents and the original No. 1561 were not traceable. In those circumstances, issue of the notice for minor penalty could not but be treated as camouflage and/or counter-blast to defeat the claim of the respondent. The minor penalty without effective determination of the charges against the respondent in a given situation of the present nature requires the observance of natural justice and fair play in action. 13. RESPONDENT further pointed but that the appointing authority who kept him under suspension for the period of ten years two months and four days is the most interested party and his unilateral decision to declare the suspension as not wholly unjustified cannot be said to be impartial and judicious and accordingly, respondent prayed that the entire period of suspension be treated as on duty for all purposes and full pay and allowances be paid to him for the ends of justice. It is also an admitted position that respondent before the passing of the final order under Rule 54 (B) was not given opportunity of hearing. It is also an admitted fact that the documents were not preserved. Respondent had no opportunity to deal with the matter in an effective manner inasmuch as had he been given an opportunity of being heard he could have established his stand that the appellant had no material before it to substantiate the charges levelled against him Appellant in the absence of basic and fundamental documents proceeded only on the basis of allegations contained in the said notice dated january 6, 1979. No materials were available to the appellant. Appellant had no materials before them for sustaining the charges. 14. No materials were available to the appellant. Appellant had no materials before them for sustaining the charges. 14. APART from that respondent should not have been forced also to suffer an en explained prolongation of the suspension for a period of ten years two months and four days which is wholly illegal inasmuch as the appellant and his officers were no in a position to proceed with the criminal proceeding for want of the documents. the proceedings initiated under section 380 IPC was initiated without the authority of law because the appellant, without obtaining the sanction as required under the law, was mot entitled to proceed against respondent, so the suspension during the perked thus lost on account of the criminal [prosecution under section 380 ipc which should not have been proceeded with or kept pending could not be said to be justified and respondent was not responsible for the pendency of the proceeding under Section 380 of the IRC and Section 09 of the IRC. The appellant knew very well that the police, despite their attempts, could not seize the documents nor they could produce the documents required for the purpose of prosecution under section 409 IPC. In those circumstances, the court is required to consider as to whether, it could be said, the order of suspension was fully justified or unjustified. At this stage, it is necessary to consider as to whether it is justified or not. 15. OUR attention is drawn to the letter being NO. 201/ 43/76-Disc. II dated the 5th. July 1976 issued by the Director General of Post and Telegraph Department. Clause (e)of the said letter is quoted below : - "in order to keep the period of suspension to the barest minimum the competent authority should take all possible steps to file a charge sheet in a Court of Law, where an official has' been placed under suspension on account of a court case, or serve the charge sheet if the action is to be taken under the general Civil Service (Classification, Control and appeal) Rules, 1965, within three months from the date of suspension and in case it is not possible to do so to report the matter to higher authorities explaining the reasons for delay. " 16. FURTHER attention is invited to another letter being no. 39/33/72 Esttt4) dated December 1972 issued by G. I. Department of Personnel, 0. " 16. FURTHER attention is invited to another letter being no. 39/33/72 Esttt4) dated December 1972 issued by G. I. Department of Personnel, 0. M. The said letter is quoted below : "the Government of India have decided that - (1)in cases involving criminal proceedings against the government servants every effort should be made to complete the investigations and file the charge sheet in a court of law within three months from the date of suspension, and (ii) in cases other than those pending in courts, the total period of suspension viz. both in respect of investigation and disciplinary proceedings should not ordinarily exceed six months. In exceptional cases where it may not be possible to ad here to the said time limits the disciplinary authority should report the matter to the next higher authority, explaining the reasons for the delay. " The letter being NO. 221/18/65-4vd dated September 7, 1965 is issued by G. I. , M. H. A. , O. M The said letter is quoted below : "the Government has decided that in case of officers under suspension, the investigation should be completed and a charge sheet filed in court of competent jurisdiction in cases of prosecution or served on the officer in cases of departmental proceedings within six months as a rule. If the investigation is likely to take more time, it should be considered whether, the suspension order should be revoked and the officer permitted to resume duty. If the presence of the officer is considered detrimental to the collection of evidence etc* or if he is likely to tamper with the evidence, he may be transferred on revocation of the suspension order. " 17. OUR attention is also drawn to the following : the letter being No. 39/39/70-Est (4) dated February 4, 1971 is quoted be low : - "in partial modification of the above orders, the government has decided that every effort should be made to file the charge sheet in court or serve the charge sheet on the; Government servant, as the case may be, within three months of the date of suspension and in cases in which it may not be possible to do so, the disciplinary authority should report the matter to the next higher authority explaining the reasons for the delay. " 18. " 18. THE letter being No. 1012/7/76 Ests (4) dated September 14, 1978 is issued by G. I. , M. H. A, O. M. The said letter reads "in spite of the instructions referred to above, instances have come to notice in which Government servants continued to be under suspension for unduly long periods. Such unduly long suspension while putting the employee concerned to undue hardship involves payment of subsistence allowance without the employee performing any useful service to the Government. It is, therefore, impressed on all the authorities concerned that they should scrupulously observe the time-limits laid down in the preceding paragraph and review the cases of suspension to see whether continued suspension in all cases is really necessary,. The authorities superior to the disciplinary authorities should also give appropriate directions to the disciplinary authorities keeping in view the provisions contained above. Re decision to treat the order of suspension as not on duty was without the consideration of the aforesaid direction. The decision of the authority as contained in memo dated august 24, 1979 that to impose penalty of withholding one year's increment is also required to be examined in the light of the O. M. NO. 45/56/64-EEV dated October - 10, 1964 which, inter alia, provides that government servant could be placed under suspension if a prima facie case is made out for justifying his prosecution or disciplinary proceedings which are likely to end in dismissal removal or compulsory retirement. The said instruction thus makes it clear that the suspension should, be resorted only to those; cases where a major penalty is likely to be imposed on the conclusion of the proceedings and not a minor penalty. When the prosecution terminated in favour of respondent and there was no proceeding for imposition of major penalty, the order of suspension cannot but be considered to be unjustified. Imposition of minor penalty could not be a ground for treating the order of suspension as being wholly unjustified in terms of FR 54 (B ). Certain salient features require in depth study. The departmental proceedings under Rule 16 of the said Rules was initiated in the month of January, 1979. Imposition of minor penalty could not be a ground for treating the order of suspension as being wholly unjustified in terms of FR 54 (B ). Certain salient features require in depth study. The departmental proceedings under Rule 16 of the said Rules was initiated in the month of January, 1979. Penalty of withholding of one increment was imposed by an order dated august 24, 1979 i. e. long after the revocation of the order of suspension and the decision that the order of suspension was not wholly unjustified was taken on October 4, 1979 i. e. after the imposition of the minor penalty. The suspension of respondent for ten years-two months and four days placed him under disability and distress for in definition duration. The administrative instructions as are quoted above cannot be ignored, nor the same could be by-passed. The appellant did not place the documents before the trial court that every effort was made to complete the investigation and file the charge sheet in the court of law within three months from the date of suspension and the appellant and/or their officers failed to establish that the order of suspension was not wholly unjustified They should have placed the cogent materials before the competent authority in support of the stand that they took all possible steps for filing charge sheet in the court of law of that the authority made very possible endeavour to file the charge sheet within the period" of three months. The appellant and/or their officers did not place before the trial court that the speedy follow-up action in the suspension of respondent was although out taken and the time limits prescribed under the administrative instructions were duly complied with. No documents were produced before the trial court as to how, why and in what circumstances the most basic documents were not preserved and) why the inordinate delay was allowed to take place in concluding the investigation, The appellant never produced before the trial court the relevant documents in support of the stand that the order of suspension was not wholly unjustified. Even the investigation as envisaged under the Code of Criminal Procedure could not be completed. It is known to the appellant and/or their officers. Respondent could not be made responsible for the prolonged suspension. Even the investigation as envisaged under the Code of Criminal Procedure could not be completed. It is known to the appellant and/or their officers. Respondent could not be made responsible for the prolonged suspension. Respondent could not be suspended illegally and arbitrarily on the ground that the case against him in respect of criminal offence was under investigation. The entire matter was left at the stage of investigation and was not completed within the period of three months or six months. The appellant did not take any care to examine justification of the continuation of the suspension of respondent, nor did they see whether the prolonged suspension of respondent is an absolute necessity. The contention of Mr. Banerjee that the trial Court did not take into consideration relevant documents produced before the trial Court is without any susbtance. The trial Court did apply the objective tests for determining the real controversy. It is an admitted position that there are long periods extending over years during which the appellant did not act and the period of suspension was prolonged for no fault of respondent. These period extending ten years two months and four days were not due to the fault of respondent. There was no proper application of mind to the prolonged suspension of respondent by the appellant and/or its competent authority. The competent authority never cared to find out whether the order of suspension was wholly justified nor did they take into account that the prolonged suspension was continued in clearest breach of the administrative instructions supplementing FR 54 (B ). Mr. Banerjee' s contention, in our view, has had no foundation inasmuch as no explanation nor any answer by way of evidence either oral or documentary could be found in support of the reasons for the prolongation of the order of suspension. The plea of Mr. Banerjee that the absence of any prayer in the plaint for a declaration that the order as passed under PR 54 (B) is ultra vires no relief can be granted. , This contention of Mr. Banerjee is to be viewed from the: angle of prayer (d) of the plaint. The plea of Mr. Banerjee that the absence of any prayer in the plaint for a declaration that the order as passed under PR 54 (B) is ultra vires no relief can be granted. , This contention of Mr. Banerjee is to be viewed from the: angle of prayer (d) of the plaint. The plaintiff prayed that he is entitled to a declaration that the period covered by the order of suspension shall be treated for a period spent on duty for all purposes and also for a declaration and mandatory injunction for immediate treatment of suspension within the period of service. So the prayer (d) of the plaint substantially covers the question of Rule 54 (B) of the FR. The order passed by the concerned authority on a. proceeding under Rule 16 of the said Rules has initiated admittedly long after the order of revocation of suspension. An order imposing minor penalty cannot be used as a ground for treating the period of prolonged suspension as being not wholly unjustified. The imposition of minor penalty as indicated above cannot be a ground for treating the prolonged suspension as being not wholly unjustified. Rule 54 (B) cannot be construed in such manner as is sought to be advanced by Mr. . Banerjee. It is incumbent upon the appellant to pass a separate order dealing with the period of suspension immediately after the passing of order of revocation of suspension and that has made on April 28, 1978. The appellant did not take any steps for passing a similar order till the imposition of minor penalty of withholding of one increment. This, is our view, was not justified. Rule 54 (B), according to Mr. Banerjee, was not properly interpreted. Rule 54 (B) does not confer unfettered and arbitrary power upon the appellants and/or the competent authority to treat the period of suspension not spent on duty except for the purpose of pensionary benefits. The said order as contained in Ext. 12 (a) does not deal with the case of the department which took 10 years 2 months and 4 days for the purpose of completion of investigation. 19. WHILE dealing with FR 54 (B) we should not overlook another very important aspect of the matter. The said order as contained in Ext. 12 (a) does not deal with the case of the department which took 10 years 2 months and 4 days for the purpose of completion of investigation. 19. WHILE dealing with FR 54 (B) we should not overlook another very important aspect of the matter. Treating the petitioner not on duty on the ground that the order of suspension was not wholly unjustified was reached by the appellant after one year and five months from the date of passing the order of revocation of suspension. Rule 54 (B) of the fundamental Rules provides that if a Government servant who has been suspended, is- reinstated the authority competent to make an order of reinstatement shall consider and make specific order regarding pay and allowances to be paid to the government servant for the period of suspension ending with the reinstatement. The circumstances and the amount to be paid are provided in the said Rule. It is apparent when a government servant so suspended is reinstated, a duty is cast on the authority to pass an order under Rule 54 (B ). In the present case no such order has been passed till the imposition of minor penalty of withholding of. one increment. The order imposing the aforesaid penalty is a subsequent event and we do not find any justification for the competent authority not to have passed any order under Rule 54 (B)after having reinstated the respondent by an order dated april 28, 1978. It is also evident from the order hereby the order of suspension was found by the appellant not to be wholly unjustified that the order of imposing minor penalty Mas taken into account but such an order imposing minor penalty would not have been taken into account had the order been passed immediately after the order of revocation of suspension. The order passed by the appellant declaring the suspension is not wholly unjustified suffers from consideration of the order imposing minor penalty, which in our view should not have been taken into account for the reasons that the order was not in existence when the decision to revoke the order of suspension was arrived at. The order passed by the appellant declaring the suspension is not wholly unjustified suffers from consideration of the order imposing minor penalty, which in our view should not have been taken into account for the reasons that the order was not in existence when the decision to revoke the order of suspension was arrived at. The consideration of imposing minor penalty at a belated stage for the purpose of treating the suspension not wholly unjustified is wholly extraneous to the scope of Rule 54 (B)which requires the competent authority to pass appropriate orders immediately after the order of revocation of suspension was made. But that was" not done This infirmity goes to the root of the matter and the order passed by the appellant that the suspension of the respondent was not wholly unjustified is, therefore, vitiated by the consideration of the order imposing minor penalty which was undoubtedly taken long after the order of revocation of suspension of the respondent. 20. THE criminal proceedings which was launched against the respondent, did not enter the stage of enquiry or trial and this aspect of the. matter was completely lost sight of. The permissibility of criminal proceeding, as contended by Mr. Banerjee, should be examined in the light of the events that took place from the date of suspension till the date of revocation of the order of suspension. It is an admitted position that the respondent was saddled with a prosecution without any authority inasmuch as public servant cannot be fastened with a criminal proceeding without the sanction or permission by the competent authority. But that was not done. Then again the respondent was again fastened with the criminal proceeding under Section 4 09 of the Indian penal de at the time when the documents were not preserved and the laches; could not be attributed to the respondent. The department should have 'taken due care in preserving the documents far the purpose of prosecution. This has admittedly not done;. In the circumstances, the findings of the trial Court that the criminal proceeding was not permissible, cannot be said to be improper and without any legal basis. The order of suspension, though not a penalty, operates as punishment and it also works out insurtmountable disadvantages to the holder of a civil post. This has admittedly not done;. In the circumstances, the findings of the trial Court that the criminal proceeding was not permissible, cannot be said to be improper and without any legal basis. The order of suspension, though not a penalty, operates as punishment and it also works out insurtmountable disadvantages to the holder of a civil post. Administrative instructions lay down guidelines for frequent examination of the cases of those employees who are kept under prolonged suspension. In the present case barring once there was no such examination of the case of the respondent who suffered prolonged suspension which adversely affected the respondent not only financially but also socially. Even in a case of prolonged suspension of more than 10 years the principle of natural justice would apply inasmuch as the executive cannot be [permitted to keep a government servant under suspension for more than a decade. In our opinion, a government servant is entitled to full salary and allowances if he is suspended from his office for an indefinite period otherwise there will be clear and distinct violation of the principle of natural justice. Because of certain serious report of misconduct, the matter should be investigated with utmost expedition and reasonable care and diligence and charges should be framed against him within a reasonable period of time. All these aspects are totally absent in the facts and circumstances of the present case. If such principle was not to be recognised, it would imply that the executive is being vested with a total arbitrary and unfettered power of placing his employee under total disability and disadvantage for an indefinite period that is, in the facts of the present case, more than a decade. The Court is not oblivious of the fundamentals of the suspension particularly because suspension of a servant is not a penalty. But prolonged suspension has far reaching adverse effect on the employee concerned, his emoluments get restricted, his anxiety deepens as his fate hangs in the balance. Since the said rules and/or provision of Fundamental Rules continue to apply to him he cannot supplement his subsistence allowance. Where the suspension has been ordered during the pendency of the criminal proceeding it might have an adverse effect on his. defence. Prolonged' suspension undermines the prestige and status of an employee and brings him down in the eyes of the public. Where the suspension has been ordered during the pendency of the criminal proceeding it might have an adverse effect on his. defence. Prolonged' suspension undermines the prestige and status of an employee and brings him down in the eyes of the public. Apart from that, the effect of suspension on the morale of services is rather disastrous. No doubt, am order of suspension is simply an interim procedural order; it does not, by itself, establish the employee guilty but in practical life things are quite different. The society and the public at large looks upon such suspended employee for an indefinite period as a guilty person. The order of suspension gives an impression in the mind of the public that there is something serious and the stigma is mot totally hashed away, if the employee subsequently is exonerated and reinstated in his service. An order of suspension, though not a penalty, brings to bear on the employee consequences far more serious in nature than severest of penalties. To come with such situation the government issued executive instruction which, in our view, cannot be departed from. A reference may be made to the case of B. S. Minhas vs. Indian Statistical institute reported in (1 983) Supreme Court Cases, 582 wherein the Supreme Court, inter alia, held that an administrative instruction supplementing rales may not be statutory in character even then the executive is required to adhere to the said instruction. In the case of B. S. Minnas (supra)the observation of Mr. Justice Frankfurter, as culled, which is very much significant, reads thus: "an executive agency must be rigorously held to the standards by which it professes its action to be judged. . . . . . . Accordingly, dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. . . . . . . The judicially evolved rule of administrative law is now firmly established and) if I may add, rightly so. He that takes the procedural sword shall perish with the sword. " Therefore, the plea of the appellants that the trial Judge did not consider the true import, scope and effect of Rule 54 (b) of FR in our view, is without any substance. The trial Judge objectively considered pros and cons of the entire matter and thereafter observed. . . . " Therefore, the plea of the appellants that the trial Judge did not consider the true import, scope and effect of Rule 54 (b) of FR in our view, is without any substance. The trial Judge objectively considered pros and cons of the entire matter and thereafter observed. . . . "i am not satisfied with this contention in as much as there is nothing in the rules either expressly or impliedly which takes away the jurisdiction this Court to come forward to give relief to a citizen who has aggrieved and prejudiced due to an arbitrary and illegal act of any public servant who has not followed the rules of the Government according to principle of natural justice equity and good conscience. " The trial Judge carefully considered the defence case and thereafter decreed the suit in part. We are of the view that the findings of the trial Court in reaching the conclusion do not suffer from any infirmity. The Supreme Court in the case of O. P. Gupta vs. Union of India and Ors. reported (1987) 4 SCC 328 inter alia held that an order of suspension unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression "subsistence allowance" has an undeniable penal significance. "subsistence" means means of supporting life especially a minimum livelihood. The expression "life" does not merely connote animal existence or a continued drudgery through life. It has a much wider meaning. Although suspension is not one of the punishments specified in Rule 11 of the Central Civil Services (CCA) Rules, an order of suspension is not to be lightly passed against the government servant. Their lordships further proceeded to observe that there is no presumption that the government always acts in a manner which is just and fair. There was no occation whatsoever to protect the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. Suspension is a case like the present one where there was no question of inflecting any departmental punishment prima facie total amounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The government must view such action of the competent authority with concern. 21. Suspension is a case like the present one where there was no question of inflecting any departmental punishment prima facie total amounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The government must view such action of the competent authority with concern. 21. THE judgment of the Supreme Court is a reminder to the authority that suspension cannot be passed lightly nor the same can be prolonged to the detriment of a government employee. Sometimes it total amounts to imposition of penalty which is manifestly repugnant to the principle of natural justice. There is no warrant for prolonged suspension of 10 years 2 months and 4 days in the present case. The contention of Mr. Banerjee, in our view,. is to be examined in the light of the decisions of the Supreme Court as laid down in the above case. The appellant and its officers never cared to adhere to the instructions nor they have taken any steps for speedy finalisation of the case of the respondent who remained under suspension for more than a decade. The appellants did not produce any document' showing that it was not possible to adhere: to the time limit nor there was any document to show that the disciplinary authority ever reported the matter to the higher authority explaining the reasons for the delay. This is a serious departure from the procedures and/or guideline laid down by the government. 22. IN the circumstances, we are of the view that the judgment and decree of the trial Court does not suffer from any infirmity and does not call for interference of this court. The appeal cannot be sustained. The appeal is. While dismissing the appeal we modify the judgment and decree of the trial court to the effect that the respondent shall not be paid damages nor cost shall be paid to him to the extent of Rs. 3,359. 60 but the respondent shall be paid full salary and allowances for the period of suspension i. e. 1. 0 years 2 months and 4 days after adjustment of the amount already paid to the respondent by way of subsistence allowance by. the competent authority. The appellant shall also be required to pay all the service benefits if not already paid on the footing, that the order of suspension was wholly unjustified. 23. 0 years 2 months and 4 days after adjustment of the amount already paid to the respondent by way of subsistence allowance by. the competent authority. The appellant shall also be required to pay all the service benefits if not already paid on the footing, that the order of suspension was wholly unjustified. 23. SUBJECT to the modifications made above this appeal is dismissed. There will be no order as to costs. Let the records go down immediately. 24. APPELLANT is directed to implement the order within a period of three months from the date of arrival of records in the court below. Appeal dismissed.