5. Admissibility of pay and allowances and treatment of service on reinstatement after dismissal, removal or compulsory retirement as of appeal or review.- (1) When a member of the Service, who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement under the All India Services (Death-cum_Retirement Benefits) Rules, 1958 while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order- (1)(a) regarding the pay and allowances to be paid to the member of the Service for the period of his absence from duty including the suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (1)(b) whether or not the said period shall be treated as a period spent on duty; (2) The member of the Service shall, subject to the provisions of sub-rule (6) be paid the full 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 compulsory retirement, as the case may be, in cases;- (2)(i) where the authority competent to order rein-statement is of opinion that the member of the service who had been dismissed, removed or compulsorily retired has been fully exonerated, or (2)(ii) where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution and no further inquiry is proposed to be held: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the member of the Service had been delayed due to reasons directly attributable to the member of the Service, 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 writing, that the member of the Service shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such proportion of such pay and allowances as it may determine. (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) the member of the Service shall, subject to the provisions of sub-rule (6) and (7), be paid such proportion of the full 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 compulsory retirement, as the case may be, as the authority competent to order reinstatement may determine after giving notice to the member of the service of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within 60 days from the date on which the notice aforesaid is served on the member of the Service. (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the authority competent to order reinstatement specifically directs that it shall be so treated for any specified purpose: Provided that if the member of the Service so desires, such authority 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 member of Service. (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. (7) The portion of the full pay and allowances determined under the proviso to sub-rule (2) or under sub-rule (4) shall be neither be equal to the full pay and allowances nor less than the subsistence allowance and other allowances admissible under rule 4, as the case may be. (8) Any payment made under this rule to a member of the Service on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the pay and allowances admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the member of the Service.
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