A temporary Government servant under suspension whose services are terminated by notice under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, without any order of reinstatement, can claim full salary for the period of suspension.

( 1 ) ONE of the interesting questions that has been raised in this appeal is whether a temporary Government servant under suspension whose services are terminated by notice under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, without any order of reinstatement, can claim full salary for the period of suspension ?

( 2 ) THE respondent filed the suit out of which this appeal arises for recovery of Rs. 8,950. 00 against the appellant. He was an Assistant in the office of the Chief Controller of Imports and Exports and worked as such till November 19, 1953, when he was suspended on account of his arrest in a criminal case. Nothing was done in the criminal case which appears to have been dropped. On January 21, 1958, the appellant issued a notice under rule 5 of the said Rules to the Respondent 1ntimating that the services of the latter were no longer required and that the respondent would be paid one month s salary including allowances in lieu of notice. It is not disputed that one month s full pay and allowances in lieu of the notice were paid to the respondent. During the period of suspension from November 19, 1953, to January 21, 1958, when the said termination notice was issued, the respondent had been paid subsistence allowance in accordance with Fundamental Rule 53 which was undoubtedly much less than the full pay and allowances to which the respondent would have been entitled but for the suspension. In the suit that the respondent filed the validity of the order of suspension or the notice of termination of services were not challenged. Since the said notice was received on or about 26-1-1958 the respondent claimed full salary and allowances for the period of suspension (19-11-1953 to 26-1-1958) amounting to Rs. 8,950. 00. The case of the appellant was that the respondent was not entitled to full pay and allowances for the period of suspension and was entitled only to the subsistence allowance fixed, which was admittedly paid. Without prejudice to this contention, the appellant submitted that the amount claimed by the respondent was not correct and that if the respondent were held entitled to full pay and allowances for the suspension period, the amount due to him would be Rs. 8,541. 51 Paise. The correctness of this amount of Rs. 8,541. 51 Paise was not disputed by the respondent as is clear from the statement to that effect made in paragraph 8 of the replication filed by him.

( 3 ) IT may here be stated that the appellant did not raise any objection in his written-statement that any part of the respondent s claim was barred by limitation. Later, however, upon an application by the appellant, an additional issue was framed on the basis of which the trial Court has gone into the question of limitation. The issues framed in the suit were these.-

"1. Whether the plaintiff is entitled to the full pay and allowances inclusive of the increments for the period 19-11-1953 to 26-2-1958 ? 2, Whether the plaintiff is entitled to any amounts as gratuity from the defendant ? 2-A. Whether the dates when the cause of action arose to the plaintiff as given in the plaint are correct ? If not when the cause of action arose to the plaintiff and to what effect ? 3. Relief. "

( 4 ) THE trial Court came to the conclusion that the respondent was entitled to full pay and allowances and increments for the suspension period ; that the respondent was not entitled to his claim for gratuity as it had been given up and the suit was within limitation. In the result, the trial Court granted the respondent a decree for Rs. 8,541-51 Paise with proportionate costs.

( 5 ) IT is contended on behalf of the appellant that no challenge has been made to the validity of the order of suspension and the respondent having admittedly been paid the subsistence allowance to which he was entitled, no claim for full pay, allowances or increments could be made by the respondent. On the the other hand, it is contended on behalf of the r