Holding

The appellate authority exceeded its jurisdiction by imposing denial of salary and treating the suspension period as dies‑non, which are not penalties under Rule 5, and the employee's salary entitlement for the out‑of‑service period must be determined under Rule 15(v)(f) and Rule 7.3, not automatically granted.

Summary

Sukhdarshan Singh, a clerk in the Punjab State Transport Department, was suspended in 1986 following an FIR and later removed from service in 2003 after a criminal conviction under Sections 324 and 506 of the IPC. The appellate authority set aside the termination but ordered that he receive no salary for the suspension period, treating it as dies‑non, which led the employee to file a civil suit for payment of the denied salary. The Supreme Court examined whether the appellate authority could impose such a denial of salary as a penalty under Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and whether the employee was automatically entitled to full pay for the entire out‑of‑service period. The Court held that the authority exceeded its jurisdiction because denial of salary and dies‑non are not penalties listed in Rule 5, and that salary entitlement must be decided under Rule 15(v)(f) and Rule 7.3, not automatically granted. Consequently, the trial court decree directing payment of salary for the out‑of‑service period was set aside and the appeals were allowed, with the matter of salary determination to be resolved by the competent authority within three months.

Issues considered

The appellate authority's power to deny salary and treat the suspension period as dies‑non as a penalty under Rule 5 of the 1970 Rules.
Whether termination set aside automatically entitles the employee to full salary for the entire period of suspension/out‑of‑service.
The correct statutory provision (Rule 15(v)(f) and Rule 7.3) governing the determination of salary and treatment of the out‑of‑service period.
The validity of the trial court decree directing payment of salary for the period the employee was out of service.

Legislation cited

Indian Penal Code, 1860s. 307, s. 324, s. 506
Payment of Wages Act, 1936

Subjects

service lawdisciplinary proceedingsterminationreinstatementdies nonpenaltyPunjab Civil Services Rulesappellate jurisdictionsalary entitlementsuspension

Judgment

1132 SUPREME COURT
[2022]REPORTS
3 S.C.R. 1132 [2022] 3 S.C.R.

A SUKHDARSHAN SINGH
v.
THE STATE OF PUNJAB & ORS.
(Civil Appeal Nos. 811-812 of 2022)
B MARCH 03, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Service Law: Punjab Civil Services (Punishment and Appeal)
Rules, 1970 – In the instant case, appellant was appointed as a
clerk by the State Transport Department – Two FIRs were lodged
C against him and in connection with these cases he was suspended
w.e.f 02.09.1986 – After appellant’s conviction, on 13.03.2003, an
order of termination was issued against the appellant – Appellate
authority set aside the termination order, however, directed that
appellant would not be entitled to any salary for the period of
suspension and it would be termed as dies non – This led to institution
D of civil suit in which it was held that once termination had been set
aside, appellant is entitled to get salary, except for the period during
which appellant had undergone imprisonment – On appeal, held:
The manner in which the appellate authority must exercise its
appellate jurisdiction is delineated in r.19 – r.5 provides for the
E penalties with which the employee can be visited with – The
punishment as it is so described by the appellate authority viz.,
depriving the salary and placing the employee under dies non, do
not appear to be penalties provided in r.5 – Thus the order of
appellate authority was beyond the power prescribed under the
rules – In regard to the period when appellant was kept out of
F service – r.15(v)(f) contemplates that when there is a dismissal,
removal, compulsory retirement or reduction to a lower service and
there is an order of reinstatement, the authority is to pass an order
as to whether the period from the date of suspension till the date of
his reinstatement, is to be treated as a period spent on duty for any
G purpose – An order being passed by the appellate authority finding
the termination of employee to be illegal and leaves it there, it would
not ipso facto inevitably follow that the employee will become entitled
to claim the salary for the entire period consequent upon his being
found to be entitled to reinstatement – This is a matter for the
authority to decide – This exercise to be undertaken and concluded
H within three months.
1132
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1133

Disposing of the appeals, the Court A
HELD: 1. Rule 5 provides for the penalties with which the
employee can be visited with. The scheme of the Rules further is
that an appeal can be carried against certain orders which are
mentioned in Rule 15. The manner in which the appellate
authority must exercise its appellate jurisdiction is delineated in B
Rule 19. The punishment as it is so described by the appellate
authority viz., depriving the salary and placing the employee under
dies non, do not appear to be penalties provided in Rule 5. It was
open to the appellate authority to enhance the punishment. The
order, in other words, dated 29.01.2009 to the extent it became
the subject matter of the civil suit would appear to be beyond the C
power of the appellate authority. To that extent, the appellant
may be justified in calling into question the direction to deny him
the salary by the appellate authority and treating it as dies non as
a punishment. It is not a penalty contemplated in law. [Paras 9,
10][1139-D-H; 1140-A-B] D
2. The question would arise as to what is to be done with
regard to the period when the appellant was kept out of service
as a result of the proceedings against him. This, in turn, must be
broadly divided into two periods. An employee may be kept out
of service initially by way of an order of suspension. The E
disciplinary proceedings may culminate in an order of removal or
dismissal or compulsory retirement. The order of suspension
would then come to an end and it would merge in the order of
removal inter alia. After the order of removal inter alia till the
order of reinstatement based on relief granted to the employee,
the appellant would be out of service. [Para 11][1140-C-E] F

3. Rule 15(v)(f) indeed contemplates that when there is a
dismissal, removal, compulsory retirement or reduction to a lower
service inter alia and there is an order of reinstatement, the
authority is to pass an order as to whether the period from the
date of suspension or from the date of his dismissal, removal or G
compulsory retirement till the date of his reinstatement, is to be
treated as a period spent on duty for any purpose. This gives a
clear indication that upon an order being passed by the appellate

H
1134 SUPREME COURT REPORTS [2022] 3 S.C.R.

A authority finding the termination of employee to be illegal and
leaves it there, it would not ipso facto inevitably follow that the
employee will become entitled to claim the salary for the entire
period consequent upon his being found to be entitled to
reinstatement. This is a matter for the authority to decide. [Para
15][1146-D-F]
B
4. The decree of the trial Court as confirmed by the first
appellate Court is to be sustained but the first appellate authority
in proceeding to impose the condition that the appellant will not
be entitled to any salary for the period and that it will be treated
C as dies non cannot be sustained. However, the further direction
by the decree passed by the trial Court and confirmed by the first
appellate authority that the appellant will be entitled to the salary
for the period he was kept out of service also cannot be sustained.
Insofar as the High Court has not noticed these aspects while
allowing the appeal and dismissing the review petition, the
D impugned judgment also cannot be sustained. Accordingly, the
impugned judgment is set aside and the judgment passed by the
first appellate Court is modified and the decree passed by the
trial Court directing payment of salary to the appellant for the
period that he was kept out of service is set aside. [Paras 16,
E 17][1146-G-H; 1147-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 811-
812 of 2022.
From the Judgment and Order dated 19.09.2018 in Review
F Application bearing RA-RS-84-C-2018 in RSA No.656 of 2015 and
Order dated 23.04.2018 of the High Court of Punjab and Haryana at
Chandigarh in RSA No.656 of 2015 (O&M).
Gurminder Singh, Sr. Adv., Pushpinder Singh, Ms. Shalini Kaul,
Advs. for the Appellant.
G
D. S. Patwalia, AG, Sehaj Bir Singh, DAG, Ms. Ranjeeta Rohatgi,
Adv. for the Respondents.

H
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1135

The Judgment of the Court was delivered by A
K. M. JOSEPH, J.
1. The appellant was appointed as a Clerk on 27.12.1979 by the
State Transport Department. A criminal case (FIR) came to be registered
on 02.09.1986. The allegations against him apparently pertained to alleged
B
acts of embezzlement. It was followed by a chargesheet on 06.10.1988.
In connection with the said case, the appellant came to be suspended
w.e.f. 02.09.1986. While he was undergoing suspension, yet another
occurrence took place which led to FIR No. 51/1995 being registered
under Sections 307 and 506 of the Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC’). The appellant came to be convicted by the trial C
court with regard to FIR No. 51/1995 by judgment dated 17.09.1996.
The appellant filed Criminal Appeal No. 703-SB/1996 against the
conviction. The appellant was convicted under Section 324 read with
Section 506 of the IPC by the trial court.
2. After a period of six years, the appellant came to be served D
with show cause notice dated 24.07.2002 under the Punjab Civil Services
(Punishment and Appeal) Rules, 1970 (hereinafter referred to as ‘1970
Rules’ for brevity). Rule 13 (i) of the ‘1970 Rules’ reads as follows:
“Special procedure in certain cases-Notwithstanding anything
contained in rules 8,9, 10, 11 and 12. E
(i) Where any penalty is imposed on a Government employee
on the ground of conduct which has led to his conviction on
a criminal charge; or
Provided that the Commission shall be consulted, where F
such consultation is necessary, before any orders are made
in any case under this rule.”
The appellant responded to the notice. However, by order dated
13.03.2003, it was decided to remove the appellant. To continue with the
narrative, as regards the first FIR relating to embezzlement, the Judicial G
Magistrate acquitted the appellant by order dated 22.12.2006. The fate
of the criminal appeal against the judgment emanating from FIR No.51/
1995 was as follows:
The High Court sustained the conviction of the appellant under
Section 324 and Section 506 of the IPC. However, it reduced the sentence H
1136 SUPREME COURT REPORTS [2022] 3 S.C.R.

A under Section 324 to the period undergone and ordered a sentence of
one month for offence under Section 506. This judgment was dated
09.04.2008.
3. The appeal preferred by the appellant against the order dated
13.03.2003 came to be disposed of by order dated 29.01.2009. By the
B said order, the appellate authority found inter alia and ordered as follows:
“Section 307 IPC is not fallen under the definition of “Mortal
Turpitude. But the sections i.e., 324 and 506 of the case are very
small and the simple imprisonment. Therefore, it is abundantly
and nor this offence is fallen under the category of “Moral
C Turpitude” and nor this case is belongs to government proceedings.
This personal dispute with the appellant and on causing some simple
injuries to the other person by the appellant. The Hon’ble Punjab
and Haryana High Court, by reducing his imprisonment, has
dispensed with remaining imprisonment, only after undergoing 39
days imprisonment. The Hon’ble High Court has taken this matter
D as sympathetically, therefore in view of the above I, also by giving
sympathy, is hereby set asides the termination order and is hereby
punishment for the appellant that he will be not given nothing for
the suspension period and this period will be declared as Dies-
Non period. But this order, this appeal is disposed off.”
E 4. Being aggrieved by the order of the appellate authority noting
that the appellant will not be given anything for the period of suspension
and this period will be declared as dies-non, a civil suit came to be instituted
on 09.12.2010 by the appellant. He sought a declaration to the effect
that the order dated 13.03.2003 and the appellate authority’s order dated
F 29.01.2009 to the extent that the pay of the appellant was denied was
illegal and arbitrary and against the Rules and that he was entitled to full
pay for the period that he had been denied, the salary and benefits. He
sought mandatory injunction to release the pay denied to him with 12 per
cent interest. Upon contest, the suit came to be decreed as follows:

G “As per my sequel of discussion on Issue No. 1 to 4 discussed
above, the suit of the plaintiff is decreed to the effect that order
dated 13.03.2003 and order dated 29.01.2009/17.02.2009 to the
extent whereby pay of the plaintiff has been denied are illegal,
arbitrary and against the rules. However, it is made clear that the
plaintiff is entitled to get salary which is denied by alleged orders
H
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1137
[K. M. JOSEPH, J.]

but not of the period during which the plaintiff and undergo A
imprisonment. Decree sheet be prepared. File be consigned to
record room after due compliance.”
The appeal by the respondent-State was unsuccessful. This led
to the second appeal from which the present appeals arise. The second
appeal came to be allowed by the High Court. In the original judgment, B
the High Court has proceeded to find that the appellate authority has
rightly found that respondent is not entitled to monetary benefit during
the intervening period from the date of termination till re-instatement
having regard to the conviction, there being modification only in sentence.
It was found that only a lenient view was taken by the appellate authority.
It was in these circumstances, relying on Rule 7.3 of Punjab Civil Service C
Rules, hereinafter referred to as the ‘Rules’, the court found that the
trial court and the appellate court erred in not appreciating that the
appellant was not acquitted in the criminal case and also that Rule 7.3
empowered the competent authority to pass appropriate order. Therefore,
the second appeal was allowed setting aside the judgments of the two D
courts.
In the review filed by the appellant from the judgment, complaint
of the appellant was that the court erred in interpreting Rule 7.3 of the
Rules. The appellant’s case was that Punjab Roadways under which
the appellant was employed had adopted the 1970 Rules. The appellant E
was placed under suspension in the FIR of the year 1986 wherein he
stood acquitted whereas the aforesaid FIR was different from the later
FIR pursuant to which he has been convicted and therefore the question
of treating the suspension period as dies non, in the said case did not
arise. Appellant relied upon Rules 5, 13 and 15 of the 1970 Rules. The
learned Single Judge found that the appellant continued under suspension F
till 13.3.2003. It is further found that the appellate authority was entitled
to regulate the suspension period under rule 15(f) of the 1970 Rules. It
was further found that in view of Rule 15(f) of the 1970 Rules and the
order of suspension of 1988 not having been challenged and it remained
intact as on the date of removal (13.3.2003), the review petition was G
allowed, to the extent of finding that a wrong provision, (Rule 7.3) was
quoted in the judgment which was sought to be reviewed. The contention
that dies non was impermissible because the appellant was not placed
under suspension with reference to the later FIR, was not accepted as
the respondent continued to be under suspension.
H
1138 SUPREME COURT REPORTS [2022] 3 S.C.R.

A It is feeling aggrieved by the original judgment passed by the High
Court allowing the second appeal and also the order passed in review
that the plaintiff is before us by way of these appeals.
5. We have heard Shri Gurminder Singh, learned Senior counsel
appearing on behalf of the appellant and Shri D.S. Patwalia, learned
B Advocate General appearing on behalf of the respondent-State.
6. Learned senior counsel for the appellant would point that once
the High Court found that it was in error in drawing support from Rule
7.3, it was in error in not noticing that it overturned the premise for the
judgment allowing the second appeal. The judgment would have no legs
C to stand on and therefore, the appeal filed by the State ought to have
been dismissed.
He would point out that Rule 7.3 indeed does not apply as found
by the High Court. As regards Rule 15(v)(f) of the 1970 Rules relied
upon by the High Court, it is pointed out that it only provides for an order
D passed thereunder which can lead to an appeal under the 1970 Rules. In
this case, learned senior counsel would reiterate the position which has
been accepted by the trial Court and the first appellant Court that once
the removal of the employee has been found illegal and reversed, the
employee is entitled to get the wages or the salary for the entire period
and it is only this that has been done by the trial Court as also the first
E appellate Court and there is no occasion for the High Court to interfere
thereunder.
Per contra, Shri D. S. Patwalia, learned Advocate General for
the respondent-State, would fairly submit that no reliance could be placed
on Rule 15(v)(f) of the ‘1970 Rules’ in the manner done by the High
F Court. He did submit that Rule 7.3 of the Rules was originally rightly
applied. He sought to draw support from Rule 7.3-B. He would highlight
the fact that this is a case where the guilt of the appellant was established
before the trial Court (conviction under Section 324 and Section 506 of
the IPC) and what is more, the appellate Court viz., the High Court has
G confirmed the verdict. All that the High Court did was it reduced the
period of imprisonment as already noticed. He would, therefore, point
out that it is a case where the appellant did not deserve to get anything
more than what was actually done by the appellate authority and it was
for this reason that the respondents were prepared to accept the order
of the appellate authority as it is. He further contended that the appellant
H would continue under suspension based on the earlier order of suspension.
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1139
[K. M. JOSEPH, J.]

FINDINGS A
7. Admittedly, the appellant stood removed on 13.03.2003. This
was on the basis of a conviction by the Criminal Court for offences
under Sections 324 and 506 of the IPC. Again undisputedly, in connection
with another FIR, the appellant was placed under suspension on
02.09.1986. His services was terminated by removal by order dated B
13.03.2003. It is this order of removal which came to be interfered with
by the appellate authority on 29.01.2009. As noticed, the appellate
authority, however, directed that the appellant will not be entitled to any
salary for the period in question and that it will be treated as dies non. It
is this which triggered the litigation in the civil Court and we have noticed
the decree which has been granted. The civil Court has proceeded on C
the basis that once a termination has been set aside, the employee must
get full salary without anything more. It is on this premise that the trial
Court and the first appellate Court have proceeded to allow the suit filed
by the appellant by directing that subject to the exception, that for the
period of imprisonment he would not get the salary and other benefits, D
he would get the salary for the rest of the period.
8. In this regard, Shri Gurminder Singh would point out that there
was no error committed by the Court for two reasons. He would submit
that once the appellate authority found the termination flawed and appellant
was to be reinstated, clearly the appellate authority (in disciplinary E
proceedings) exceeded the limits of its authority in proceeding as if it
could by the order deny him the salary treating it as punishment. It is
equally so when the appellate authority ordered dies non. In this regard,
he drew our attention to the penalties with which an employee can be
visited under the Rules viz., Rule 5 of the ‘1970 Rules’. He would,
therefore, point out that the appellate authority was clearly acting illegally F
in contemplating and providing for a punishment which is not within the
four walls of the ‘1970 Rules’. Secondly, he would support the order by
pointing out that it is settled law that once the termination is set aside,
the employee must get all the benefits.
9. We have perused the Rules which have been placed before us. G
Rule 5 provides for the penalties with which the employee can be visited
with. The scheme of the Rules further is that an appeal can be carried
against certain orders which are mentioned in Rule 15. The manner in
which the appellate authority must exercise its appellate jurisdiction is
delineated in Rule 19. H
1140 SUPREME COURT REPORTS [2022] 3 S.C.R.

A 10. The punishment as it is so described by the appellate authority
viz., depriving the salary and placing the employee under dies non, do
not appear to be penalties provided in Rule 5. It was open to the appellate
authority to enhance the punishment. The order, in other words, dated
29.01.2009 to the extent it became the subject matter of the civil suit
would appear to be beyond the power of the appellate authority. To that
B
extent, the appellant may be justified in calling into question the direction
to deny him the salary by the appellate authority and treating it as dies
non as a punishment. It is not a penalty contemplated in law. This, however,
is not to be the end of our enquiry.
11. The question would arise as to what is to be done with regard
C
to the period when the appellant was kept out of service as a result of
the proceedings against him. This, in turn, must be broadly divided into
two periods. An employee may be kept out of service initially by way of
an order of suspension. The disciplinary proceedings may culminate in
an order of removal or dismissal or compulsory retirement. The order of
D suspension would then come to an end and it would merge in the order
of removal interalia. After the order of removal inter alia till the order of
reinstatement based on relief granted to the employee, the appellant
would be out of service. According to Mr. Gurminder Singh what Rule
7.3 contemplates is power with the authority to provide for pay and
allowances for the period the employee is kept out of service but limited
E
to the period prior to the dismissal. The relevant part of the Rule 7.3
reads as follows:
“7.3. (1) When a Government employee, who has been dismissed,
removed or compulsorily retired, is reinstated as a result of appeal,
F revision or review, or would have been so reinstated but for his
retirement on superannuation while under suspension or not, the
authority competent to order re-instatement shall consider and
make a specific order–
(a) regarding the pay and allowances to be paid to the
G Government employee for the period of his absence from duty
including the period of suspension, preceding his dismissal,
removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period
spent on duty.
H
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1141
[K. M. JOSEPH, J.]

(2) Where the authority competent to order re-instatement is of A
opinion that the Government employee, who had been dismissed,
removed or compulsorily retired, has been fully exonerated, the
Government employee shall, subject to the provisions of sub-rule
(6), be paid his full pay and allowances to which he would have
been entitled, had he not been dismissed, removed or compulsorily
B
retired or suspended, prior to such dismissal, removal or
compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination
of the proceedings instituted against the Government employee
had been delayed due to reasons directly attributable to the
Government employee it may, after giving him an opportunity to C
make representation and after considering the representation, if
any, submitted by him, direct, for reasons to be recorded in writing,
that the Government employee shall, subject to the provisions of
sub-rule (7), be paid for the period of such delay only such amount
(not being the whole) of pay and allowances, as it may determine. D
(3) 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.
(4) In cases other than those covered by sub-rule (2) including E
cases where the order of dismissal, removal or compulsory
retirement from service is set aside by the authority exercising
powers of appeal, revision or review solely on the ground of
noncompliance with the requirements of clause (2) of article 311
of the Constitution and no further inquiry is proposed to be held, F
the Government employee shall, subject to the provisions of sub-
rules (6) and (7), be paid such amount (not being the whole) of
pay and allowances to which he would have been entitled, had he
not been dismissed, removed or compulsorily retired or suspended
prior to such dismissal, removal or 106 [7.3] THE PUNJAB CIVIL
SERVICES RULES VOLUME I (PART I) [Chap. VII] G
compulsory retirement, as the case may be, as the competent
authority may determine, after giving notice to the Government
employee of the quantum proposed and after considering the
representation, if any, submitted by him in that connection within
such period as may be specified in the notice: H
1142 SUPREME COURT REPORTS [2022] 3 S.C.R.

A Provided that any payment under this sub-rule to a Government
employee other than a Government employee who is governed
by the provisions of the payment of Wages Act, 1936 (Act 4 of
1936) shall be restricted to a period of three years immediately
preceding the date on which order for re-instatement of such
Government employee are passed by the authority exercising the
B
powers of appeal, revision or review, or immediately preceding
the date of retirement on superannuation of such Government
employee, as the case may be.
(5) In a case falling under sub-rule (4), the period of absence
from duty including the period of suspension preceding his dismissal,
C removal or compulsory retirement, as the case may be, shall not
be treated as a period spent on duty, unless the competent authority
specifically directs that it shall be so treated for any specified
purpose:
Provided that if the Government employee so desires such authority
D may direct that the period of absence from duty including the
period of suspension preceding his dismissal, removal or
compulsory retirement, as the case may be, shall be converted
into leave of any kind due and admissible to the Government
employee.
E Note. –The order of the competent authority under the preceding
proviso shall be absolute and no sanction of the higher authority
shall be necessary for the grant of–
(a) extraordinary leave in excess of three months in the case
of a temporary Government employee; and
F
(b) leave of any kind due in excess of five years in the case of
a permanent and quasipermanent Government employee.
(6) The payment of allowances under sub-rule (2) or sub-rule (4)
shall be subject to all other conditions under which such allowances
are admissible.
G
(7) The amount determined under the proviso to sub-rule (2), or
under sub-rule (4) shall not be less than the subsistence allowance
and other allowances admissible under rule 7.2.
(8) Any payment made under this rule to a Government employee
H on his reinstatement, shall be subject to adjustment of the amount,
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1143
[K. M. JOSEPH, J.]

if any, earned by him through an employment during the period A
between the date of removal, dismissal or compulsory retirement,
as the case may be, and the date of reinstatement. Where the
emoluments admissible under this rule are equal to or less than
the amounts earned during the employment elsewhere nothing
shall be paid to the Government employee.
B
Note 1.–This rule is absolute and unconditional and so the question
of lien does not arise in the case of a Government employee who
is dismissed from service and is reinstated on appeal, revision or
review when the period of unemployment between the date of
dismissal and reinstatement is declared by the authority exercising
the powers of appeal, revision or review as the period spent on C
duty.
Note 2.–Clause (b) of sub-rule (1) of this rule does not forbid the
period spent under suspension being treated as leave, and it is
open to the authority exercising the powers of appeal, revision or
review to specify the proportion of pay and allowances to be paid D
as the leave salary which would be permissible, if the Government
employee were on leave.
Administrative Instruction. –A permanent post vacated by the
reason of dismissal, removal or compulsory retirement of a
Government employee should not be filled substantively until the E
expiry of a period of one year from the date of such dismissal,
removal or compulsory retirement. Where, on the expiry of the
period of one year, the permanent post is filled and the original
incumbent of the post is reinstated thereafter, he should be
accommodated against any post which may be substantively F
vacant in the grade to which his previous substantive post belonged.
If there is no such vacant post, he should be accommodated against
a supernumerary post which should be created in that grade with
proper sanction and with the stipulation that it would terminate on
the occurrence of the first substantive vacancy in that grade.
G
Note 3.–If no order is passed under sub-rule (5), directing that
the period of absence be treated as duty for any specified purpose,
the period of absence should be treated as ‘non-duty’. In such
event, the past service (i.e., service rendered before dismissal,
removal, compulsory retirement) will not be forfeited.
H
1144 SUPREME COURT REPORTS [2022] 3 S.C.R.

A Note 4. –There is no bar to the conversion of any portion of a
period of suspension into extraordinary leave. In the case of persons
who are not fully exonerated, the conversion of the period of
suspension into leave with or without allowances has the effect
of removing the stigma of suspension and all the adverse
consequences flowing therefrom. The moment the period of
B
suspension is converted into leave, it has the effect of vacating
the order of suspension, and it will be deemed not to have been
passed at all. Therefore, if it is found that the total amount of
subsistence and compensatory allowances that an officer received
during the period of suspension exceeds the amount of leave salary
C and allowances, the excess will have to be refunded and there is
no escape from this conclusion.”
12. Rule 7.3A deals with pay and allowances where the dismissal,
removal or compulsory retirement is set aside by a court of law and
such employee is reinstated without holding any further inquiry.
D The relevant part of Rules 7.3 (B) reads as follows:-
“7.3-B. (1) When a Government employee who has been
suspended is reinstated or would have been so re-instated but for
his retirement on superannuation while under suspension the
authority competent to order re-instatement shall consider and
E make a specific order –
(a) regarding the pay and allowance to be paid to the Government
employee for the period of suspension ending with re-instatement
or the date of his retirement on superannuation, as the case may
be; and
F
(b) whether or not the said period shall be treated as a period
spent on duty.
(2) Notwithstanding anything contained in rule 7.3 or rule 7.3-A,
where a Government employee under suspension dies before the
disciplinary or court proceedings instituted against him, are
G
concluded, the period between the date of suspension and the
date of death shall be treated as spent on duty for all purposes
and his family shall be paid the full pay and allowances for that
period to which he would have been entitled, had he not been
suspended, subject to adjustment in respect of subsistence
H allowance already paid.
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1145
[K. M. JOSEPH, J.]

(3) Where the authority competent to order re-instatement is of A
opinion that the suspension was wholly unjustified, the Government
employee shall, subject to the provisions of sub-rule (8), be paid
the full pay and allowances to which he would have been entitled,
had he not been suspended:
Provided that where such authority is of opinion that the termination B
of the proceedings instituted against the Government employee,
had been delayed due to reasons directly attributable to the
Government employee, it may, after giving him an opportunity to
make his representation and after considering the representation,
if any, submitted by him, direct, for reasons to be recorded in
C
writing, that the Government employee shall be paid for the period
of such delay only such amount (not being the whole) of such pay
and allowances as it may determine.
(4) In a case falling under sub-rule (3), the period of suspension
shall be treated as a period spent on duty for all purposes.” D
13. If we take up Rule 7.3-B relied upon by the learned Advocate
General, it gives us the impression that its intent is to deal with cases
where a person is placed under suspension but thereafter reinstated.
‘Conspicuous by its absence’ in Rule 7.3B are expressions indicating
that apart from suspension, the matter progressed to a stage where the E
employee came to be visited with any penalties. In other words, there
can be cases where a person may be placed under suspension and without
the matter progressing further, the authority in its discretion and power
decides to revoke the suspension and he is reinstated. Rule 7.3, on the
other hand, deals squarely with the situation where the employee whose
services are terminated succeeds in an appeal or other remedy and there F
is an order of reinstatement and a question arises as to how the period
prior to his dismissal is to be reckoned. The orders which can be passed
are expressly provided for therein. In other words, the scheme of the
Rules would appear to be that when an employee who has been
proceeded against, succeeds before the higher forum, the question as to G
what is to be done for the period when he was kept out of service would
have to be determined in the manner provided therein.
14. Rule 15(v)(f) has been noticed by the High Court to find that
there was power with the authority. Rule 15(v)(f) reads as follows:
H
1146 SUPREME COURT REPORTS [2022] 3 S.C.R.

A “15. Order against which appeal lies- Subject to the provision of
Rule 14 a Government employee may prefer an appeal against all
or any of the following orders, namely-
…………………………………………………………………………………………………………….
…………………………………………………………………………………………………………….
B
(v) an order-
…………………………………………………………………………………………………………….
…………………………………………………………………………………………………………….
C (f) determining whether or not the period from the date of his
suspension or from the date of his dismissal, removal, compulsory
retirement or reduction to a lower service, grade, post, time scale
of pay or stage in a time scale of pay to the date of his reinstatement
or restoration to his service, grade or post shall be treated as a
D period spent on a duty for any purpose.
15. Rule 15(v)(f) indeed contemplates that when there is a
dismissal, removal, compulsory retirement or reduction to a lower service
inter alia and there is an order of reinstatement, the authority is to pass
an order as to whether the period from the date of suspension or from
E the date of his dismissal, removal or compulsory retirement till the date
of his reinstatement, is to be treated as a period spent on duty for any
purpose. This gives a clear indication that upon an order being passed by
the appellate authority finding the termination of employee to be illegal
and leaves it there, it would not ipso facto inevitably follow that the
employee will become entitled to claim the salary for the entire period
F consequent upon his being found to be entitled to reinstatement. This is
a matter for the authority to decide.
16. In such circumstances, in our view, the proper order to be
passed would be to find as follows:

G (1) The decree of the trial Court as confirmed by the first
appellate Court is to be sustained viz., we find that the first
appellate authority in proceeding to impose the condition
that the appellant will not be entitled to any salary for the
period and that it will be treated as dies non cannot be
sustained.
H
SUKHDARSHAN SINGH v. THE STATE OF PUNJAB & ORS. 1147
[K. M. JOSEPH, J.]

(2) However, the further direction by the decree passed by the A
trial Court and confirmed by the first appellate authority
that the appellant will be entitled to the salary for the period
he was kept out of service also cannot be sustained.
(3) Insofar as the High Court has not noticed these aspects
while allowing the appeal and dismissing the review petition, B
we are of the view that the impugned judgment also cannot
be sustained.
17. Accordingly, we dispose of the appeals by setting aside the
impugned judgment and modifying the judgment passed by the first
appellate Court and set aside the decree passed by the trial Court directing C
payment of salary to the appellant for the period that he was kept out of
service.
There will be a decree directing the second respondent to consider
as to how the period till the appellant was reinstated is to be treated and
consequential effect thereof. In other words, the question will be as D
regards the period from 13.03.2003 till 20.03.2009. This exercise will be
undertaken and concluded within a period of three months from today.
Parties are directed to bear their respective costs.
The civil appeals are allowed as above. E

Devika Gujral Appeals disposed of.
(Assisted by : Shevali Monga, LCRA)

F

G

H