An employee who is suspended from service is not entitled to full pay and allowances if he is not performing any work during the period of suspension.

JUDGMENT :

S. Chatterji, J. - The present writ petitioner, Chintamani Padhi, has tiled this writ petition against the Chairman and Managing Director of United Commercial Bank and other officers praying inter alia:

"...(i) With the order dated June 19, 1993 vide Annexure-1 and hold that the petitioner continued in service and the suspension order dated August 28, 1978 is invalid and inoperative.

(ii) Issue a direction to the opposite parties to revoke the order dated May 19, 1993 (Annexure-1) so far it related to suspension of the petitioner.

(iii) Direct the opposite parties to pay full salary and allowances to the petitioner for the entire period of his suspension/dismissal till his reinstatement and hold that the petitioner is entitled to the same.

(iv) Declare that the petitioner is entitled to be treated as on duty during the entire period of his suspension till his reinstatement..."

2. The facts of the case as it transpires from the: materials on record are that the petitioner while serving as Assistant Cashier in U.CO. Bank, Sambalpur Branch during the period from August 24,1977 to May 10,1978 there was an allegation of misappropriation of bank's money and a departmental proceeding was initiated against him by his employer. He was charge-sheeted on April 5,1978. The petitioner was placed under suspension with effect from August 28,1978. He was also criminally prosecuted before the Special Judge (Vigilance), Bhubaneswar in T.R. No. 17/79 under different Sections of the Prevention of Corruption Act and Indian Penal Code. The judgment was delivered by the Special Judge (Vig), on September 6,1986 and the petitioner was convicted. He was sentenced to suffer two years rigorous imprisonment and to pay a fine of Rs. 10,000/- in default, to undergo rigorous imprisonment for a further period of three months.

3. The petitioner was dismissed by the Bank with effect from September 8,1988. He preferred Criminal Appeal No. 153 of 1986 before this Court. By judgment dated August 6, 1992 the appeal was allowed and on the ground of benefit of doubt the petitioner was acquitted. The petitioner was reinstated in service on June 19, 1993 vide Annexure-1 and further placed under suspension alleged to be with retrospective effect. In view of such facts and circumstances the petitioner has sought the reliefs as indicated above.

4. The writ petition is opposed by the Bank by filing a comprehensive counter-affidavit. The allegations have been denied and disputed.

5. Mr. Jagannath Patnaik, learned counsel .' appearing for the petitioner has argued inter alia that the impugned order dated June 19,1993 as per Annexure-1 is bad in law and it must be held that the petitioner continued in service and the order of suspension dated August 28,1978 was invalid and inoperative. Precisely, he has submitted that the petitioner obtained subsistence allowance till he was dismissed from service with effect from September 8, 1986. The Judgment was passed by the High Court acquitting the petitioner on August 5, 1992 and the petitioner was served with rein-statement-cum-suspension order on June 19,1993. The petitioner is entitled to full pay and allowance for the period from November 1 28,1986 till June 19,1993. Challenging the irregularity and illegality of the impugned order vide Annexure-1, Mr. Patanaik has relied and referred to the decision reported in H.L. Mehra Vs. Union of India (UOI) and Others, The ratio of the said decision is that two conditions must co-exist before action can be taken under Rule 10(5)(b) of the C.C.A. Rules. One is that the Government servant must be under continuing suspension, and the other is that during the continuance of such suspension "any other disciplinary proceeding" is commenced against him. When the order of the dismissal was passed on October 26, 1967, the order of suspension dated April 11, 1963 passed: to exist and it did not revive thereafter by the subsequent setting aside of the order of dismissal by the first part of the impu