JUDGMENT : VINOD CHANDRAN, J. 1. The State has filed the above Original Petition on two grounds; one that the Tribunal did not give the respondent State enough time to place the entire facts before the Tribunal by filing a counter affidavit. Twenty Eight days from the date of filing the Original Application, it was allowed granting subsistence allowance for a person for about two years, rues the learned Government Pleader. There are also many factors which ought to have been considered by the Tribunal which factors were not placed before the Tribunal by the applicant. It is also submitted, specifically pointing out the facts of the case, the Tribunal's order would create a bad precedent insofar as an employee who was constantly on un-authorised absence is now granted subsistence allowance from 08.01.2016 to 14.12.2018, the period he was kept out of service due to a dismissal, on which later date he rejoined for reason of the dismissal having been set aside, as is seen from Ext.P9. 2. After having heard the learned Senior Government Pleader as also the learned Counsel appearing for the petitioner/respondent and after going through the records produced by the Government in the Original Petition we are convinced that the Tribunal ought to have given an opportunity to the State to file a counter affidavit especially when there is 45 days' time provided under the statute to file a counter affidavit. However, having heard the submissions on both sides, we are of the opinion that the order has to be sustained though the specific grounds raised by either parties does not find a place in the order of the Tribunal. We hence do not think that there is any requirement for a remand of the matter especially since we heard the matter elaborately and are answering the specific legal question posed by the State in challenge of the order to pay subsistence allowance. 3. We are called upon to consider the issue of grant of subsistence allowance between 08.01.2016 and 14.12.2018. The applicant was working as Store-in-Charge in the Ground Water Department. For un-authorised absence, he was proceeded against first by Ext.P3 dated 15.10.2011. An order was passed on 18.12.2013, Ext.P4, dismissing him from service. The dismissed employee filed an appeal before the Government. The Government by Ext.P5 interfered with the order and directed fresh disciplinary action against the employee. The applicant was working as Store-in-Charge in the Ground Water Department. For un-authorised absence, he was proceeded against first by Ext.P3 dated 15.10.2011. An order was passed on 18.12.2013, Ext.P4, dismissing him from service. The dismissed employee filed an appeal before the Government. The Government by Ext.P5 interfered with the order and directed fresh disciplinary action against the employee. By Ext.P6 the Director reinstated the employee and also directed him to join within seven days. It is submitted that the employee did not rejoin duty despite reinstatement and a specific direction to join within seven days. However we need not deliberate on that aspect since we are not as of now concerned with that period. Later Ext.P7 order was passed on 08.01.2016 from which the controversy arises. 4. Ext.P7 reiterated the dismissal of the Government servant as was done earlier. Ext.P7 is produced as Annexure A2 in the O.A. Ext.P7 was challenged by the applicant in O.A(EKM) No.143/2016 and the same was disposed of by a Division Bench of the Tribunal by order dated 25.05.2018 which is produced as Annexure A3 in the O.A. The Tribunal found the enquiry proceedings to be proper. But, however, found that the further proceedings of the Disciplinary Authority, pursuant to the enquiry, culminating in the punishment of dismissal was not in accordance with Rule 15 and set it aside. The finding was that the procedure stipulated for imposing major penalties under Rule 15 was not complied with. The Tribunal directed reconsideration of the issue which has now been carried out as per Ext.P8 dated 28.01.2019. 5. Even before that we see that the applicant was reinstated in service as per Ext.P9 on 14.12.2018; pursuant to the order of the Tribunal. We also pertinently notice that immediately after the Tribunal's order, Annexure A2 on 25.05.2018, the employee approached the Tribunal which passed an interim order based on which the reinstatement was ordered. It is further submitted by the learned Senior Government Pleader that after reinstatement he was again absent from duty. The learned Counsel for the respondent submits that he is on medical leave and not unauthorised absence. Again we observe that we are not concerned with that issue in the present case, which is confined to the issue of grant of subsistence allowance for the period prior to his immediate reinstatement. 6. The learned Counsel for the respondent submits that he is on medical leave and not unauthorised absence. Again we observe that we are not concerned with that issue in the present case, which is confined to the issue of grant of subsistence allowance for the period prior to his immediate reinstatement. 6. The claim of the applicant before the Tribunal was that he should be granted the subsistence allowance from 08.01.2016 to 17.12.2018, on which later date he joined pursuant to an order issued by the Tribunal which was complied with as per Ext.P9. The claim is also based on Rule 10(5) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 which we extract here under: Rule 10(5): Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and disciplinary authority,on a consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date from which he was originally dismissed, removed or compulsorily retired, as the case may be, and shall continue to remain under suspension until further orders. 7. The Rule provides that when an order of dismissal, removal or compulsory retirement from service imposed upon a Government Servant is set aside or declared void in consequence of or by a decision of a Court of law then, when the disciplinary authority decides to hold a further enquiry against him, on the same allegations, the Government Servant should be deemed to have been placed under suspension by the appointing authority from the date from which he was originally dismissed and he shall continue to remain under suspension until further orders. After Ext.P7 was issued though the formal enquiry conducted was upheld by the Tribunal, the further action taken by the disciplinary authority in accordance with Rule 15, is also the continuation of the domestic enquiry proceedings initiated against the delinquent employee. It commences with a show cause notice and concludes with an order of the Disciplinary Authority; either imposing penalty or exonerating the employee. It commences with a show cause notice and concludes with an order of the Disciplinary Authority; either imposing penalty or exonerating the employee. For that period he was kept out of employment, by reason only of a wrong order of dismissal, the rule deems him to be placed under suspension, during which period he is entitled to subsistence allowance. 8. Here we have to notice the argument of the learned Senior Government Pleader that this creates a wrong precedence, insofar as an employee who was guilty of consistent un-authorised absence is granted subsistence allowance for the period he was kept out of service only for reason of a punishment of dismissal having been imposed. We do not think that the Tribunal was instrumental in creating such a precedent, when the Rule position is clear insofar as the benefit being allowed to a Government employee. We also observe that the rule ensures that a government servant is not put to undue hardship by an order of dismissal, which is set aside on grounds of illegality, arbitrariness or even non-compliance of due procedure in imposing such drastic punishment; which is the only presumption when a dismissal order has been interfered with by a Court of law and further proceedings are taken to cure the defect pointed out by the Court. 9. There is also a contention taken by the learned Senior G.P that the period between 11.12.2012 and 16.12.2018 was treated in Ext.P8 itself as non-duty without forfeiture of past service dis-entitling the period to be reckoned for the purpose of pension, which we are of the opinion does not disentitle the employee from being granted subsistence allowance, which is the mandate of Rule 10(5) as we extracted herein above. This is especially so when the rule confers neither such power nor vests a discretion on the disciplinary authority, so to do ie: to decide on the right to subsistence allowance. 10. We pause here to briefly contemplate a situation where an employee is put under suspension, pending enquiry, pursuant to a memo of charges, who would be entitled to subsistence allowance at the rates provided in the rules. This is also to ensure that no government servant is illegally or arbitrarily kept out of employment for long. 10. We pause here to briefly contemplate a situation where an employee is put under suspension, pending enquiry, pursuant to a memo of charges, who would be entitled to subsistence allowance at the rates provided in the rules. This is also to ensure that no government servant is illegally or arbitrarily kept out of employment for long. On the conclusion of enquiry and also imposition of punishment, the disciplinary authority definitely can decide on how the period of suspension is to be treated; but cannot interfere with the payment already made of subsistence allowance or order refund, of a part or the full amounts already disbursed. This is the fiction employed by the rule in case of employees kept out of employment wrongly, by an order of dismissal; which has to be given its full effect and every consequential benefit therefrom flows to the employee. 11. We also notice that the respondent has been imposed with a penalty and the treatment of the period for which he was kept away from work, as non-duty, not also to be reckoned for pension, were not in the nature of a penalty; but on the exercise of discretion granted to the disciplinary authority to decide on how the suspension period is to be treated. The earlier order of dismissal is also demonstrated to be harsh, by the subsequent order which thought fit, imposition of a far lesser penalty of withholding of three annual increments with cumulative effect. In such circumstances, the employee has to be treated as continuing under suspension between 08.01.2016 to 14.12.2018, when he was kept away by a wrong order of dismissal; which was set aside by the Tribunal. We will not say anything further on Ext.P8 as to how the period has to be treated and we stop at the finding that Rule 10(5) entitled subsistence allowance to be paid to the applicant. How the periods has to be reckoned for pension or otherwise are all matters to be considered in a properly instituted appeal against Ext.P8. 12. In such circumstances, we direct the Government to pay the subsistence allowance as directed by the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. How the periods has to be reckoned for pension or otherwise are all matters to be considered in a properly instituted appeal against Ext.P8. 12. In such circumstances, we direct the Government to pay the subsistence allowance as directed by the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. We also make it clear that we have not made any observation as to the various periods in which the petitioner was reinstated in service but allegedly refused to join duty, as submitted by the learned Senior Government Pleader. Even with respect to the last reinstatement, the applicant has a contention that he joined and then took medical leave. These are all not matters on which we can speak on, in the constrained jurisdiction we exercise here in a challenge against the grant of subsistence allowance for a specific period. We make it clear that our order would govern only the aspect of payment of subsistence allowance between 08.01.2016 and 14.12.2018, all other questions are left open. The Original Petition is disposed of. There is no order as to costs.