IREC Rule No.1345: Pay On Reinstatement From Suspension
- Pay On Reinstatement From Suspension:-
(1) When a railway servant who has been suspended is reinstated (or would have been so reinstated but for his retirement (including premature retirement) while under suspension,) the authority competent to order reinstatement shall consider and make a specific order;
(a) Regarding the pay and allowances to be paid to the railway servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 1343 where a railway servant under suspension dies before the disciplinary or the court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as 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 allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the railway servant 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 the opinion that the termination of the proceedings instituted against the railway servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within 60 days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant 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.
(5) In cases other than those falling under sub-rules (2) and (3) the railway servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the railway savant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed 60 days from the date on which the notice has been served) as may be specified in the notice.
(6) Where suspension is revoked pending finalization of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the railway servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
(7) In a case falling under sub-rule (5), the period of suspension 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 railway servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note: The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of;
(a) Extraordinary leave in excess of 03 months in the case of temporary railway servant; and
(b) Leave of any kind in excess of 05 years in the case of permanent or quasi-permanent railway servant.
(8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to sub-rule (3) or under sub-rule(5) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342.
Government of India’s Orders
(1) FR-54 Absolute: A Government servant was dismissed from service on the 08.03.1927, and, on appeal, was reinstated with effect from the 27.10.1927. The appellate authority declared, under FR-54, that the period of unemployment between the dates of dismissal and reinstatement should be treated as spent on duty and allowed to count for leave and increments. As there was no post against which the lien of the Government servant could be shown for the period of dismissal, the question arose whether in the absence of lie on a permanent post the period of unemployment could count for leave or increments. It was decided that FR-54 is absolute and unconditional and that it could not be absolute if the condition of lien had first to be satisfied.
[Authority: Government Of India, Finance Department No.F/28-R-I/28, 05.04.1928]
(2) When suspension regularized as leave consequential recovery inescapable.–A question having arisen whether in case where the period of suspension is ordered to be treated as one spent on leave and when on conversion it is found that the greater part of the period is to be treated as extraordinary leave for which no leave salary is admissible, the recovery of the subsistence allowance already paid would be in order. The moment the period of 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 and allowances, the excess will have to be refunded and there is no escape from this conclusion.
[Authority: G.I., M.F., U.O., No.3409-E.IV/53, 25.04.1953, 1953, U.O.No.320-E.IV/54, 22.02.1954 to the Communications Division and M.F.,(Cs) U.O.No.1681-C.II/54, 02.03.1954]
(3) Treatment Of Period Of Absence And Payment Thereof: The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FR-54, 54(A) and 54(B).
(1) The decision of the competent authority under FR-54, 54(A) and 54(B) is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty. It is not necessary that the decision on (a) above should depend upon the decision on (b) above. The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose(s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as non-duty. If no order is passed 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 or suspension will not be forfeited.
(2) As FR-54 is absolute the law of limitation need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of Dismissal / Removal / Compulsory retirement / Suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR-54, FR-54(A) and FR-54(B) with the exception of those covered under sub-rule (4) of FR-54 and sub-rule (2) (i) of FR-54(A).
[Authority: Government Of India O.M.No.15(14)E.IV (59), 25.05.1962, 09.08.1962 r/w provisions of FR-54, 54(A) and 54(B)]
(4) Regulation Of Pay On Reinstatement On Grounds Of Equity Or Court Judgment, etc:
(1) The following questions in connection with the reinstatement of dismissed / removed / discharged Government servants or the Government servants whose service had been terminated, came up for consideration;
(1) Whether before the Government of India decide to reinstate an individual on grounds of equity, concurrence of the Ministry of Finance should be obtained for payment of pay and allowances for the intervening period; or whether the administrative authorities, could themselves, after following the prescribed procedure, e.g. consultation with the Union Public Service Commission etc., reinstate the person and sanction payment of pay and allowances under FR-54.
(2) Whether in cases of reinstatement on the ground of dismissal / removal / discharge from or termination of service being held by a court of law or by an appellate / reviewing authority to have been made without following the procedure required under Article-311 of the Constitution, payment of full pay and allowances for the intervening period is automatic and compulsory.
(2) As regards question (1) above, it has been decided that the concurrence of the Ministry of Finance will not be necessary for reinstating a Government servant if the authority, which reinstates the Government servant, is competent to appoint him. The question as to what pay and allowances should be allowed for the intervening period and whether or not the period should be treated as duty will be deal with under FR-54.
(3) Regarding question (2) stated in para 1 above, it has been decided that FR-54 is inapplicable in cases where dismissal / removal / discharge from or termination of service is held by a court or law or by an appellate / reviewing authority to have been without following the procedure required under Article- 311 of the Constitution. In such cases;
(i) If it is decided to hold a further inquiry and thus deem the Government servant to have been placed under suspension from the date of dismissal / removal / discharge / termination under Rule 12(3) or 12(4) of Central Civil Services (Classification, Control and Appeal) Rules, 1957 or a corresponding rule, the Government servant will be paid the subsistence allowance from the date he is deemed to have placed under suspension;
(ii) If the Government servant is not deemed to have been under suspension as envisaged under (i) above, the payment of full pay and allowances for the intervening period and treatment of that period as duty for all purposes will be automatic and compulsory, provided that;
(a) The arrears should be paid subject to law of limitation;
(b) Where the reinstated Government servant has secured employment during any between the dismissal / removal / discharge / termination and reinstatement, the pay and allowances admissible to him after reinstatement for the intervening period shall be reduced by the emoluments earned by him during such employment if such pay and allowances exceed such emoluments. If the pay and allowances admissible to him are equal to or less than the emoluments earned by him nothing shall be paid to him: provided that the amount to be paid under (i) and (ii) above will be determined subject to the directions, if any, in the decree of the court regarding arrears of salary.
(4) As the termination of service of a Government servant without following the procedure laid down in the Central Civil Service (Classification, Control and Appeal) Rules, the Central Civil Services (Temporary service) Rules, the C.S.R. or the terms of his appointment, etc, results in the payment of arrears by way of pay and allowances, the need for meticulously observing the proper procedure in such cases is once again impressed on all concerned.
(5) In all cases where the circumstances leading to a Government servant’s reinstatement reveal that the authority which terminated his services, either willfully, did not observe, or through gross negligence failed to observe the proper procedure as explained above, before terminating his service, proceedings should be instituted against such authority under Rule-16 of the Central Civil Services (Classification, Control and Appeal) Rules, and the question of recovering from such authority the whole or part of the pecuniary loss arising from the reinstatement of the Government servant should be considered.
[Authority: Government Of India, Ministry Of Home Affairs O.M.No.F.2/9/59-Ests.(A), 27.05.1961 and 30.05.1962]
- Suspension Treated As Dies-Non Not Reckoned As Service: It has been decided in consultation with the Comptroller and Auditor-General that the period of suspension of a Government servant, which is treated as dies-non, should not be reckoned as ‘Service’ for the purpose of any of these rules.
[Authority: Government Of India, Ministry Of Finance, Endorsement No.F.7 (41)-Est. IV/53, 18.07.1953 and U.N.No.1824/E.IV/54, 23.02.1954 to the A.G., P&T]