The central legal point established is that the denial of full pay and allowances during suspension requires a notice to the employee as per FR 54-B(5), and the violation of procedural norms renders the order unsustainable.

Suman Shyam, J.

Heard Mr. M. Choudhury, learned senior counsel appearing for the writ petitioner. I have also heard Mr. D. Nath, Addl. Sr. Govt. Advocate, Assam, appearing for the official respondents.

2. The writ petitioner herein, who has retired from the post of Registrar in the office of the Inspector General of Prisons, Assam has approached this Court for the second time being aggrieved by the order of penalty dated 18.05.2009 issued by the respondent No.1.

3. The facts of the case, briefly stated, are that while serving as the Registrar in the office of the Inspector General of Prisons, Assam, the petitioner was placed under suspension by the order dated 05.04.2008 pending drawal of departmental proceeding. On 08.07.2008 a show cause notice was issued to the petitioner containing statement of allegations along with the list of documents and the list of witnesses based on which the charges were sought to be proved. The petitioner had submitted his reply to the show cause notice on 06.08.2008. However, before the conclusion of the departmental proceeding, the order of suspension was revoked on 04.10.2008 pursuant whereto the petitioner was reinstated in service with immediate effect. In the meantime, the petitioner had superannuated from service on attaining the age of retirement with effect from 28.02.2009. On the date of his retirement, the departmental proceeding initiated against him on the basis of the show cause notice dated 08.07.2008 had, however, remained inconclusive. Months after his retirement, the petitioner was served with an order of penalty dated 18.05.2009 imposing the minor penalty of censure upon him. The impugned order dated 18.05.2009 had also provided that the period of suspension of the petitioner shall be limited to the extent of subsistence allowance already drawn by him and the period of suspension shall be counted for pensionary benefits.

4. Since the enquiry report was not furnished to the petitioner nor was he given an opportunity of being heard before the impugned order of penalty dated 18.05.2009 was issued by the authority, the petitioner had preferred an appeal on 10.08.2009 before the appellate authority against the order of penalty dated 18.05.2009 but when no action was taken by the appellate authority to dispose of the appeal, the petitioner was compelled to approach this Court by filing WP(C) No.3499/2010 which was disposed of by this Court by the order dated 21.06.2010 directing the appellate authority to take on record the appeal dated 10.08.2009 submitted by the petitioner and dispose of the same in accordance with law by taking into account all the relevant facts and the law applicable in the matter. In terms of the order dated 21.06.2010 passed by this Court, the appellate authority had considered the appeal dated 10.08.2009 preferred by the petitioner by framing three issues which are as follows :-

"1. Whether the issue that the Enquiry Report was not furnished to him vitiated the Departmental Proceedings?

2. Whether the penalty of Censure is unjust?

3. Whether the remuneration to be paid during the period of suspension to the appellant shall be limited to the extent of subsistence allowance already drawn or due to him is also unjustified?"

5. The appellate authority had decided the first issue by holding that non-furnishing of enquiry report to the petitioner had resulted in an infirmity on the part of the disciplinary authority which required to be rectified. By observing that such infirmity was only of a technical nature, the authorities were asked to furnish a copy of the enquiry report to the petitioner at the earliest.

6. In so far as the Issue No.2 is concerned, the appellate authority had held that since the petitioner is a retired employee, hence, in view of the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, the penalty of censure could not have been imposed upon him and as such, the minor penalty of censure imposed upon the petitioner was held to be