Section 49 in West Bengal Municipal (Employees' Service) Rules, 2010
49. Pay and allowances on reinstatement by the Competent Authority
. (1) When an employee 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 specific order(a)regarding the pay and allowances to be paid to the employees for the period of suspension ending with reinstatement or the date of 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 47 where are employee under suspension dies before the disciplinary proceedings or court proceedings 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 the 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 opinion that the suspension was wholly unjustified, the 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 of the proceedings instituted against the employee had been delayed due to reasons directly attributable to the employee, it may, after giving him an opportunity to make his representation within sixty 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 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 failing 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 failing under sub-rule (2) or sub-rule (3), the employee shall, subject to the provisions of sub-rule (8) and sub-rule (9), be paid such amount (not being the whole) of the pay and allowances to which he would been entitled had he not been suspended, as the competent authority may determine after giving notice to the employee of the quantum proposed and considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be 'specified in the notice.(6)Where suspension is revoked pending finalisation of the disciplinary or court proceedings, any order passed under sub-rule (1) before the conclusion of the proceeding against the employee shall be reviewed on its own motion after the conclusion of the proceeding 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 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 specific purpose :Provided that if the employee so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the employee.Note : The order of the competent authority shall be absolute for the grant of(a)extra-ordinary leave in excess of three months in the case of temporary employee; and(b)leave of any kind in excess of five years in the case of permanent employee.(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 subsistence allowance and other allowances admissible under rule 47.Note 1 : When the orders passed are in respect of an employee, in temporary appointment regard should be paid to the period for which the temporary appointment was sanctioned.Note 2 : A permanent post vacated by the dismissal, removal or compulsory retirement of an employee should not be filled up substantively until expiry of the period of one year from the date of such dismissal, removal or compulsory retirement as the case may be. On the expiry of the period of one year, the post may be filled up substantively subject to the condition that the arrangement so made will be reversed if the dismissed employee is reinstated on appeal or otherwise. It is nor necessary to keep a post vacant for a period of one year to provide for the contingency of subsequent reinstatement and confirmation in respect of an employee who at the time of dismissal, removal or compulsory retirement was not holding substantively permanent post but would have been considered for confirmation but for penalty imposed.Note 3 : Where the period of suspension is ordered to be treated as one spent on leave and when on conversion it is found that part of the period is treated as extra-ordinary leave for which no leave salary is admissible, the recovery of the subsistence allowance already paid shall 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 would be deemed not to have been passed at all. Therefore, if it is found that the total amount of the subsistence and other allowances that an employee received during the period of suspension exceeds the amount of leave salary and allowance, the excess shall have to be refunded.Note 4 : A person who is removed or dismissed from service has no locus standi as an employee. There is thus no bar to such a person accepting an employment when an appeal or a representation against the penalties imposed on him is pending before competent authority or where a suit against Local Body for redress of his grievances is sub-judice in the Court of Law. If, however, the penalty of removal or dismissal from service is set aside in consequence of or by a decision of the competent authority or of the Court of Law and the person concerned is reinstated in service from a date earlier than the date on which the relevant order is passed, arrear due, if any, admissible to the reinstated person shall be deducted by the amount drawn during the period of such employment.
