A civil servant permitted to retire from service while under suspension should be treated as on duty for the period of suspension.

K. S. PUTTASWAMY, J.

( 1 ) AFTER service of notices on the respondents, this case was posted before me today for preliminary hearing 'group-B'. As agreed to by both sides, this case is treated as listed for final hearing today and is accordingly heard.

( 2 ) ISSUE rule nisi.

( 3 ) IN this petition under Art. 226 of the Constitution, the petitioner has sought for a writ in the nature of mandamus to the respondents to treat his period of suspension from 4-5-1980 to 21-10-1980 as on duty and accord him all such consequential benefits flowing from such declaration.

( 4 ) A few days before 4-6-1980, the petitioner, a member of Karnataka judicial service in the cadre of District Judges, while travelling in a passenger bus was alleged to have been involved in a drunken brawl in connection with which a complaint was lodged by a co-passenger or crew of the bus before the police. By an order no. EPS 6011980 dated 3-6-1980 (Annexure-C), this Court, on the administrative side, placed the petitioner under suspension till further orders with a direction that he should be paid the subsistence allowance permissible by the Rules. On a representation made by the petitioner, Government accepting the recommendation of this court and exercising the powers conferred on it by Rule 285 of the Karnataka Civil Service Rules (hereinafter referred to as the KCSR), by its notification No. DPAR 82 SHC 80 dated 22-10-1980 (Annexure-D) permitted the petitioner to volutarily retire from service with immediate effect, in pursuance of which he has retired from service from 22-10-1980.

( 5 ) ON his retirement the petitioner represented to treat the period of his suspension from 4-6-1980 to 21-10-1980 as on duty and settle his pension and other terminal benefits. On 29-1-1981 (Annexure-F) the Registrar of this court has requested respondent No. 4 to make payment of subsistence allowance for the aforesaid period.

( 6 ) THE petitioner has urged that on his retirement the period of suspension has only to be treated 'as on duty' irrespective of the result of the intended prosecution against him and payments regulated only on that basis.

( 7 ) SRI S. D. Chhatre, learned counsel for the petitioner, contends that on the retirement of his client from service, the earlier order of suspension lapsed or disappeared and that he should be deemed to be on duty from 4-6-1980 to 21-10-1980.

( 8 ) SRI B. B. Mandappa, learned III addl. Government Advocate, appearing for the respondents, in justifying the communication dated 29-1-1981 of the Registrar, urged that the petitioner cannot be deemed to be on duty under rule 101 oi the KCSR till the termination of the criminal proceedings against the petitioner, for which reason only he was placed under suspension.

( 9 ) SRI Mandappa, does not dispute that on the order made by Government on 22-10-1980, the relationship of"master and servant' betwen the petitioner and the State has ceased to exist. With the severence of status, the petitioner's rejoining duty even after the termination of the criminal proceedings, does not and cannot arise. In this view, the result of the criminal prosecution already launched or to be launched against the petitioner does not after his status at all. A fortiori this court or Government, revoking the earlier order of suspension or regulating his period of suspension will not also arise whatever be the result of the criminal prosecution, if any, launched or to be launched against the petitioner. Even otherwise, on Government permitting the petitioner to retire from service, the earlier order of suspension has necessarily to be treated as having lapsed and is no longer available for being regulated by the disciplinary or the appellate authorities. In these circumstances the period of suspension has only to be treated as on duty and cannot be treated as under suspension.

( 10 ) RULE 101 of the KCSR applies to a case where a criminal prosecution is pending against a civil servant and such servant is not permitte

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