Fundamental Rule 54(3) is not applicable to suspension due to a pending criminal case. A show cause notice is necessary before passing an adverse order against a Government servant under Fundamental Rule 54.

( 1 ) THE petitioner has challenged the order of the Superintendent of Police, Delhi, holding that his period of suspension was not a period spent on duty. This order was passed on 28-10-1970 under the purported exercise of the power under F. R. 54 (3 ). The petition is also directed against the orders of the D. I. G. and the I. G. rejecting his representation against the order of Superintendent of Police. The petitioner claims that as he was acquitted in a criminal case, (which necessitated his suspension), and, therefore, the period of suspension should be treated as one spent on duty. He further claims that he is entitled to full pay and allowances and the other service benefits accruing to him during the said period and thereafter.

( 2 ) AT the relevant time the petitioner was working as a Constable in Delhi Police, Delhi. A criminal case was filed against him for his allegedly committing an offence under Section 294, Indian Penal Code. He was put under suspension with effect from 20-7-1965. Shri R. L. Sharma, Judicial Magistrate 1st Class, New Delhi, tried his case and acquitted him. No appeal was preferred against this decision. No departmental proceedings were also held against the petitioner thereafter. He was re-instated in service with effect from 31-7-1970, the date on which be was acquitted by the Judicial Magistrate. On 28-10-1970 the Superintendent of Police, Delhi, passed an order (purportedly) under F. R. 54 (3 ). It was held that the period from 20-7-1965 to 30-7-1970 was a period spent not on duty. It was also ordered that the petitioner was not entitled "to any other emoluments except of the subsistance allowance". The petitioner preferred a representation to the D. I. G. The same was rejected by the D. I. G. on the ground that as the Magistrate had acquitted the petitioner by giving him benefit of doubt, he cannot be considered to have been "fully exonerated" within the meaning of F. R. 54. The D. I. G. , therefore, rejected the petitioner s representation on 28-1-1971. A further representation to the I. G. was also reacted on 23-7-1971.

( 3 ) THE petitioner s submissions are as under :

(I) Under Section 7 of the Punjab Police Act, suspension is an independent punishment cannot be imposed unless regular departmental proceeding was held under Article 311 of the Constitution. No such proceeding was held against the petitioner.

(II) F. R. 54 (3) is not applicable to suspension by virtue of pending criminal case. It is applicable only to a case where a person is re-instated after the order of removal, dismissal or compulsory retirement passed in a disciplinary proceeding is set aside.

(III) Before passing the impugned order, the petitioner should have been given an opportunity to show cause. No such opportunity was given to him.

(IV) On true interpretation of the judgment of the Judicial Magistrate, his case is one of no evidence and not of benefit of doubt. No counter-affidavit filed by the respondents opposing the contentions raised in the Writ Petition.

( 4 ) EVEN assuming with the respondents that the relevant provision applicable is F. R. 54 and not Section 7 of the Punjab Police Act the petitioner must succeed. It is, therefore, not necessary to deal with the first submission of the petitioner. So also it is not necessary to record any finding on the question on merits whether the judgment is one of benefit of doubt or of acquittal.

( 5 ) IT appears that F. R. 54 (3) has been erroneously invoked in the impugned order F. R. 54 (3) reads as follows:

"in a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. "is amandatory requirement of F. R. 54 (3) that period spension should be treated as a period spent on duty for all purposes when a delinquent servant is fully exonerated and his order of dismissal, removal or compul