Judgment

P.B.SAWANT, J.

(1) LEAVE granted.

(2) THE appellant was working in the Northern Railway as Assistant Station Master at Bareilly drawing at the relevant time basic salary of Rs. 404.00 in the payscale of Rs. 330-560. On 9/05/1974, he was arrested in connection with the May 1974 Railway strike. On 10/05/1974, he was dismissed from service without inquiry, on account of his arrest. However, on his acquittal by the Judicial Magistrate (Transport) on 11/09/1974, he was reinstated in service w.e.f. 3/10/1974. At the time of the reinstatement in service, the Divisional Superintendent, Moradabad after giving an interview to the appellant, passed the following order of punishment in lieu of the dismissal from service, viz., (i) reduction in pay to Rs. 350.00 in the grade of Rs. 330-560; (ii) stoppage of increment for three years; and (iii) the period from 10/05/197 4/10/1974 to be treated as suspension.

(3) THE appellant preferred proceedings before the Payment of Wages Authority under Sect cent of the salary for the period from November 20, 197 5/05/1976,

(4) AS regards his full salary for the period from 10/05/1974 to October 3, 1974, the appellant relies on the fact that admittedly the period from 10/05/197 4/10/1974 was treated as suspension as per the Divisional Surintendents order dated 3/10/1974 and, therefore, he ought to have been paid full salary as per paragraph (a) of the Railway Boards letter/circular dated 28/09/1978. This contention is misplaced since read with paragraph (b) of the said letter/circular, it is clear that the full salary was payable only to those against whom neither prosecution nor disciplinary action was taken. Although in the present case the appellant was prosecuted and acquitted, admittedly the order dated 3/10/1974 was passed as and by way of punishment in a disciplinary proceeding, in lieu of the dismissal of the appellant.

(5) IT was then contended on his behalf that in any case the order itself directs the period from 10/05/197 4/10/1974 to be treated as a period of suspension and hence the appellant is entitled at least to the subsistence allowance. This argument is also misconceived because the period is directed to be treated as suspension as and by way of punishment. It is not suspension pending disciplinary inquiry which alone can entitle an employee for subsistence allowance. Suspension is also one of the punishments and the suspension imposed on the appellant was by way of punishment. Hence the appellant is not entitled to any subsistence allowance during the said period.

(6) AS regards the appellants claim for subsistence allowance from May 20, 197 6/02/1977, it is based on the ground that as per the Railway Boards letter/circular dated 21/01/1966 where a Railway servant is convicted in a court of law, action to dismiss, remove or to complilsorily retire him from service should not be taken before the period for filing the appeal has elapsed or if any appeal has been filed till it has been decided by the first court of appeal. Admittedly, the appellant had filed an appeal against his conviction and the appeal was decided on 17/02/1977. However, the respondent-Railways had removed him from service on 30/04/1976 on the basis of the conviction order of the Sessions court. The appellant was paid subsistence allowance at the rate of 50 per cent of the salary only, from 20/11/1975 from which date he was suspended till 30/04/1976 when he was dismissed from service. In view of the Railway Boards said letter/circular he could have been dismissed from service only w.e.f. 17/02/1977. Hence he ought to have been paid subsistence allowance up to 17/02/1977. What is further, since sub-clause (a) of clause (ii) of Rule 2043 of the Indian Railway Establishment Code (Volume II) states that where the period of suspension exceeds six months, the amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of t