Mohit S. Shah, J.:— The petitioner was working as Assistant Judge. Mehsana when he came to be suspended with effect from 1.4.1993 On 29.11.1994 the High Court issued chargesheet against the petitioner containing four charges. The Inquiry was entrusted to the then learned Additional Principal Judge. City Civil Court, Ahmedabad. The petitioner filed his written statement of defence. The department examined several witnesses. The petitioner did not examine himself as a witness, nor did he produce any other witness. The Inquiry Officer submitted report dated 25.9.1997 that the charges levelled against the petitioner were not proved at all. After considering the said report, the High Court passed the order dated 21.11.1997 holding that the charges levelled against the petitioner were not proved and he was, therefore, exonerated of all the charges. The order further provided that as the charges were not proved against the petitioner, the order of suspension for the said Inquiry was recalled but notice was ordered to be issued under Rule 152 of the BCSR to the petitioner calling upon him to show cause as to why the period of suspension should not be treated as not spent on duty.

2. The petitioner was accordingly given show cause notice under Rule 152. The petitioner submitted his reply dated 15.12.1997 After considering the same, the High Court on the administrative side (hereinafter referred to as “the Competent Authority”) passed the impugned order dated 10.9.1998 taking the view that the petitioner could not be treated as on duty with reference to the Inquiry in question. The High Court held that the order of suspension cannot be said to be wholly unjustified and that the period of suspension was required to be treated as such; that the delinquent was not entitled to the pay allowances and other benefits for the said period. It is the aforesaid order which is under challenge in this petition.

3. Before setting out the contentions raised by the learned Counsel for the petitioner, it is necessary to set out the provisions of Rule 152:—

“152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the Authority competent to order the reinstatement shall consider and make a specific order—

(a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty: and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the Authority mentioned in sub-rule (1) is of the opinion (hat the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.

(3) In other case, the Government servant shall be given such proportion of such pay and allowances as such Competent Authority may prescribe:

Provided that the payment of allowances under clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible.

(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In case failing under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such Competent Authority specifically directs that it shall be so treated for any specified purpose.”

(emphasis supplied)

4. Mr Girish Patel, learned Counsel for the petitioner has raised the following contentions:—

(i) The Inquiry Officer as well as the Disciplinary Authority had exonerated the petitioner of ail the four charges. The petitioner was thus fully exonerated and therefore, the petitioner was entitled to the pay and allowances for the entire period from 31.3.1993 to 20.11.1997 under sub-rule (2) of Rule 152.

(ii) The Competent Authority erred in imposing the punishment of treating the period of four years and eight months as suspension, even when there was no finding of misconduct against the petitioner. It, therefore, amounted to punishment without any misconduct having been proved against the petitioner.

(iii) The Competent Authority erred in misconstruing the provisions of sub-rule (2) of Rule 152. The Competent Authority: erred in holding that the Competent Authority is not required to consider the question whether the delinquent has been fully exonerated, in a case where the delinquent is suspended during pendency of the Departmental Inquiry and is thereafter reinstated when none of the charges against him in the Departmental Inquiry are proved and therefore he is reinstated. It is submitted that the question whether the delinquent has been fully exonerated is required to be considered by the Competent Authority in all the three categories of cases - dismissal, removal and suspension.

(iv) The Competent Authority erred in holding that for deciding the question whether the delinquent who is reinstated should be given the full pay and allowances, the only question to be examined is whether the suspension was wholly unjustified as on the date of the order of suspension.

(v) The Competent Authority erred in not considering that the suspension can have no independent existence. Suspension can either be as an aid to the Inquiry or suspension can be by way of punishment. If after suspension, in the Departmental Inquiry the delinquent is exonerated, suspension fails to the ground and exoneration will relate back to the date of suspension. Hence, there can be no question of treating the period of suspension as not spent on duty and denying the delinquent the arrears of difference of pay and allowances, otherwise, it will amount lo suspension as punishment without any misconduct having been proved.

(vi) The Competent Authority erred in not appreciating the distinction between the standard of proof in Departmental Inquiries and the standard of proof in criminal proceedings. In criminal proceedings, the accused may be acquitted on a technical ground or by giving him benefit of doubt where the guilt is not proved beyond reasonable doubt. Such distinction between honourable acquittal and acquittal by giving benefit of doubt, even if valid in criminal proceedings, cannot hold the field in civil proceedings or in matters of Departmental Inquiries where the standard of proof required is only preponderance of probabilities. Hence, once the delinquent is exonerated of all the charges levelled against him in the Departmental Inquiry, the Competent Authority has no discretion not to award full pay and allowances for the period of suspension or to direct that the period of suspension shall be treated as the period not spent on duty.

5. Mr Patel relied on the decision of a Division Bench of this Court in Girjaprasad Nagardas Dave v. The State of Gujarat, 1971 Labour & Industrial Cases 921. Mr Patel also relied on the decision of the Apex Court in Delhi Jal Board v. Mahinder Singh., (2000) 7 SCC 210 in support of his contention that when an employee is exonerated in a Departmental Inquiry, the exoneration relates back to the date of suspension or the date of initiation of the Departmental Inquiry as the case may be.

6. On the other hand. Mr. J.B Pardiwala. learned Standing Counsel for the High Court has opposed the petition and made the following submissions:—

(i) in cases where the delinquent is suspended from service, is exonerated in the Departmental Inquiry and, therefore, reinstated, the only question to be considered under sub-rule (2) of Rule 152 is whether the suspension of the delinquent was wholly unjustified. Only if the Disciplinary Authority (which is also the Competent Authority in this case) comes to a conclusion that the suspension was wholly unjustified, then only, the delinquent would be required to be given full pay and allowances. In such cases, the Competent Authority is not required to consider whether the delinquent has been fully exonerated, because that question is to be considered only in cases where the delinquent has been dismissed or removed from the service and is thereafter reinstated upon such dismissal or removal being set aside in appeal or on account of the verdict of a Court of law.

(ii) There was enough material with the High Court on the date of passing the suspension order. Apart from the complaint lodged by the President of the Bar Association regarding the corrupt practices adopted by the petitioner, there were also statements of six other Advocates recorded in the preliminary Inquiry. The preliminary Inquiry report was, therefore, sufficient to fully justify the order of suspension against the petitioner and therefore, the Competent Authority was justified in holding that the suspension of the petitioner was not unjustified.

(iii) Even otherwise, upon conclusion of the Departmental Inquiry, the Inquiry Officer and the Competent Authority had given the petitioner benefit of doubt. The Inquiry Officer had found that the circumstances of the case did raise suspicion against the petitioner but for lack of legal evidence, the charges against the petitioner were not proved. This did not mean that the petitioner's conduct was held to be free from all blame.

(iv) It is only in cases where the employee is suspended, but in the Departmental Inquiry or criminal case, the Departmental witnesses are disbelieved and the Competent Authority gives a positive finding in favour of the delinquent that the delinquent was made a victim of false complaint or in such similar cases that the Competent Authority would be required to give the delinquent full pay and allowances to which he would have been entitled had he not been suspended.

7. Having heard the learned Counsel for the parties, we find some substance in the submission made by Mr Girish Patel for the petitioner that on a correct interpretation on sub-rule (2) of Rule 152, the question whether the delinquent has been fully exonerated is required to be considered in all the three categories:—

(a) where the delinquent has been dismissed from service and is thereafter reinstated,

(b) where the delinquent is removed from service and is thereafter reinstated, or

(c) where the delinquent is suspended during pendency of the Departmental Inquiry and upon being exonerated in Departmental Inquiry is reinstated in service.

8. The further question whether the suspension of the delinquent was wholly unjustified would obviously arise only in case of suspension and therefore, in a case where the delinquent is suspended from service during pendency of the Departmental Inquiry and at the conclusion of the Inquiry, the delinquent is reinstated in service, obviously in such cases, the Competent Authority will be required to consider both the questions i.e whether the delinquent has been fully exonerated in the Departmental Inquiry and also the question whether the suspension of the delinquent was wholly unjustified. Merely because in cases of such suspension, the Competent Authority is required to consider the additional question whether the suspension was wholly unjustified, it does not follow that the question whether the delinquent has been fully exonerated is not required to be considered.

9. It is true that in the judgment dated 18.6.1997 in D.B Solanki v. High Court of Gujarat, a learned Single Judge of this Court took the view that the rule making Authority has made demarcation of cases where a Delinquent Officer has been reinstated after exoneration in case where he was dismissed and removed from service from the case where a Delinquent Officer is only under suspension. The learned Single Judge further took the view that in case of suspension on reinstatement, on full exoneration, the Delinquent Officer shall be given full pay and allowances only in case where the Competent Authority is of the opinion that the suspension was wholly unjustified and that mere exoneration is not sufficient to make a Delinquent Officer entitled for full pay and allowances for the period of suspension, however, where the delinquent who is exonerated in a Departmental Inquiry during pendency of which he was under suspension, if the only question to be considered were whether the suspension was wholly unjustified as on the date of suspension, the matter would only be required to be decided on the basis of the preliminary inquiry report or such other material which was available with the employer on the date of suspension. Such material is usually collected ex-parte and the employee would have an opportunity to meet with the allegations levelled against him at that stage. In a case where the delinquent is found to be innocent at the conclusion of the Departmental Inquiry, if the matter were to be examined only on the basis of the material which was available with the employer on the date of the order of suspension, the delinquent will never be able to get the full pay and allowances for the period of suspension because the question would be confined to justification or otherwise of suspension as on the date of suspension. In our view, therefore, sub rule (2) of Rule 152 cannot be read in the manner as contended on behalf of the respondents. We are, therefore, of the view that while deciding the question under sub-rules (2) and (4) of Rule 152 whether the delinquent should be given full pay and allowances for the period of suspension, the Competent Authority will have to consider both the questions whether the delinquent was fully exonerated in the Departmental Inquiry and whether the suspension was wholly justified in light of the findings given at the conclusion of the Departmental Inquiry.

10. Having placed the above interpretation on sub-rule (2) of Rule 152, we must also make it clear that at the time of consideration whether the delinquent is fully exonerated, it is not possible to accept the contention of Mr Patel that merely because the charges levelled against the delinquent in the Departmental Inquiry are not proved, it would automatically mean that the Competent Authority is bound to record a finding that the delinquent is fully exonerated. As rightly contended by the learned Standing Counsel for the respondents, even where the charges are not proved, the Competent Authority would be justified in considering whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent.

11. At this stage, we may refer to the following decisions cited by the learned Counsel for the respondents:—

(i) Krishnakant Raghunath Bibhavnekar v. State of Maharashtra, (1997) 3 SCC 636 : AIR 1997 SC 1434.

(ii) Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda v. Venkateswarulu, 1994 Supp (2) SCC 191 : AIR 1995 SC 258.

(iii) The Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, (1994) 1 SCC 541 : AIR 1994 SC 552.

(iv) Decision of a Division Bench of this Court in the case of BC Patel v. Registrar, High Court of Gujarat dated 22.7.2004

(v) Decision of a learned Single Judge of this Court in the case of D.B Solanki v. High Court of Gujarat dated 18.6.1997

12. In Krishnakant Raghuitath Bibhavnekar v. State of Maharashtra, (1997) 3 SCC 636 : AIR 1997 SC 1434, an employee of Government of India was prosecuted for misappropriation under Section 409 of IPC. Pending trial, he was kept under suspension and was paid subsistence allowance. After his acquittal the appellant was reinstated but the respondents did not grant the consequential benefit to him. The appellant approached the Administrative Tribunal which dismissed the application. Then, he preferred appeal by Special Leave. The Apex Court held that though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof, the employer may hold a Departmental Inquiry unless the self-same was subject of charge and that acquittal is not on benefit of doubt given. Even after reinstatement, the Authority may pass appropriate order including treating suspension period as period not spent on duty. The rules give the discretion to the Disciplinary Authority. The Apex Court, thus, recognised that when an employee under suspension is reinstated, the disciplinary Authority has discretion under the rules to decide whether the period of suspension should be treated as period spent on duty or not spent on duly.

13. In Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda v. Venkateswarulu, 1994 Supp (2) SCC 191 : AIR 1995 SC 258, the Apex Court indicated the question under consideration as under:—

“The common question for consideration in these appeals is whether an employee of the Andhra Pradesh State Road Transport Corporation (Corporation), who was kept under suspension pending investigation. Inquiry or trial in a criminal prosecution, is entitled to salary for the period of suspension after the criminal proceedings are terminated in his favour? The High Court has answered the question in the affirmative and in favour of the respondents. These appeals by the Corporation are against the judgment of the High Court.”

14. In that case also, the relevant rule being Rule 21(2) reads as under:—

“(2) (a) Where such Competent Authority holds that the employee has been fully exonerated or in the case of suspension, that it was unjustifiable, the employee shall be granted the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.”

15. The High Court held that on acquittal and reinstatement, the employee becomes-without any further scrutiny - entitled to the payment of full salary for a period from which he remained under suspension. The Apex Court did not agree with the above view of the High Court and held that it is open to the Competent Authority to withhold payment of full salary for the suspension period on justifiable grounds. Of course, the employee concerned has to be given a show cause notice in respect of proposed action and his reply taken into consideration before passing the final order.

16. Same view was taken by a Three Judge Bench of the Apex Court in the Management of Reserve Bank of India, New Delhi v. Bhopal Singh Punchal, (1994) 1 SCC 541 : AIR 1994 SC 552 and held as under:—

“The Competent Authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the Competent Authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period.”

17. This question was also examined at length by another Division Bench of this Court in BC Patel v. Registrar, High Court of Gujarat in Special Civil Application No. 8227 of 1997 decided on 22.7.2004 and the Court quoted the following observations of the Apex Court in Union of India v. K.V Jankiraman, (1991) 4 SCC 109 : AIR 1991 SC 2010:—

“There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post…”

18. It is, however, observed in the same judgment that:—

“However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests.”

19. Now we deal with the authorities cited by Mr Girish Patel, learned Counsel for the petitioner.

20. In Girjaprasad Nagardas Dave v. The State of Gujarat, 1971 Labour and Industrial Cases 921, a Division Bench of this Court considered the same Rule 152 and held as under:—

“It is, therefore, essential that the Competent Authority making a specific order under Rule 152 must, in cases of suspension, apply its mind also to the question whether or not suspension was wholly unjustified, even if it comes to the conclusion that the concerned Government servant has not been fully exonerated, and form an opinion with regard to the same and make an appropriate order under the said rule in conformity with the said opinion. An order made without due compliance with the aforesaid requirements must fail on the ground that it suffers from the vice of non-application of mind to one of the relevant factors which must enter into account before making a specific order under the said rule.”

21. In the facts of that case, the Court held that before making the impugned order, the Competent Authority had not at all applied its mind to the above aspects of the matter. The Court, therefore, quashed the order as suffering from vice of non-application of mind. The Court also left it open to the Competent Authority to take such proceedings afresh in the matter as it thinks proper after issuing a notice to the petitioner and make a specific order under Rule 152 in accordance with law and in light of the observations made in the judgment. The decision, therefore, does not support the case of the petitioners but only reiterates what has been held in the decisions already considered hereinabove.

22. Delhi Jal Board v. Mahinder Singh., (2000) 7 SCC 210 was a case relating to the sealed cover procedure being followed when an employee's case is considered for promotion but at the time of such consideration, he is facing the Departmental Inquiry. When the respondent therein was facing the Departmental Inquiry for the charge X, the DPC met and adopted the sealed cover procedure. The Inquiry for charge X ended in exoneration but by that time another Departmental Inquiry was initiated. The employer declined to open the sealed cover on the ground that the second inquiry had already commenced before the respondent was exonerated in the Inquiry. It was in the context of the fact that the Apex Court held that the pendency of the latter Departmental Inquiry would not bar the benefit of recommendation of DPC to the concerned employee. The Apex Court held as under:—

“The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending Disciplinary Inquiry. But the findings of the Disciplinary Inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the Disciplinary Inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the Disciplinary Inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first Inquiry ended in his favour and by the time the sealed cover was opened to give effect to it another Departmental Enquiry was started by the Department, would not in our view come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection.”

23. The above observations clearly indicate that the controversy in the case before the Apex Court is different from the controversy sought to be raised in the present petition which has already been concluded against the petitioner as per the decisions already discussed in paragraphs 11 to 14 of this judgment.

24. The above decisions, therefore, clearly support the stand of the respondents that even where the charges are not proved in the Departmental Inquiry or in a criminal trial, the Competent Authority has to consider whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent.

25. In the facts and circumstances of the case, we do find that the Inquiry Officer, even while holding that charge Nos. 2 and 3 were not proved, suspicion was created against the petitioner about the conduct of the petitioner.

26. On a perusal of the Inquiry Officer's report, which was accepted by the Competent Authority, charge Nos. 2 and 3 were not proved on account of lack of sufficient legal evidence. We are, therefore, of the view that in the facts and circumstances of the case, it cannot be said that the suspension of the petitioner was wholly unjustified even on the basis of the material available with the Competent Authority upon conclusion of the Inquiry.

27. In view of the above discussion, we find that though the respondent did not place correct interpretation on the provisions of sub-rule (2) of Rule 152 of BCSR, in the facts and circumstances of the case, it is not possible to hold that suspension of the petitioner during pendency of the Inquiry was wholly unjustified merely because all the four charges levelled against the petitioner were not proved.

28. In the result, the petition is dismissed. Rule is discharged.

(HRR)(Rule is discharged)