1. By way of this petition, the petitioner has prayed for the following reliefs :
[A] quash and set aside the order dated 6.2.2001 and direct the respondent Government to treat the suspension period from 5.2.1996 to 31.3.1998, as duty period for all purposes, and grant all consequential benefits, and
[B] quash and set aside the order dated 31.1.2000 so far as it holds that the charge against the petitioner is proved, and
[C] direct the authorities to make payment of pensionery benefits to petitioner immediately, and
[D] further direct the authorities to pay interest @ 18% p.a., for the delayed payment of retirement dues and
[E] ”
2. The short facts of the case are that the petitioner was initially appointed in the Department of Industries, Government of Gujarat and during the course of his employment, the petitioner was promoted from time to time and lastly he was promoted in the cadre of ClassII. The petitioner worked as such till he attained the age of superannuation on 31.03.1998.
2.1. It is the case of the petitioner that on 02.02.1996, he was placed under suspension for the alleged misconduct in opening of the Tender on 04.07.1994. In connection with the said irregularity, the petitioner was served with the charge sheet on 25.07.1996. Pursuant thereto, the petitioner submitted his reply vide his reply dated 17.12.1996. Thereafter, inquiry was initiated against the petitioner and on completion of the inquiry, the Inquiry Officer submitted his report dated 19.08.1997, whereby the Inquiry Officer came to be conclusion that the charge levelled against the petitioner was not proved. Pursuant to the said inquiry report, the Government did not take any action on the said report till the petitioner attained the age of superannuation. On 24.08.1998, the disciplinary authority recorded disagreement with the findings of the Inquiry officer and came to the conclusion that the charge against the petitioner is proved. The petitioner submitted his reply to the said disagreement report vide reply dated 05.09.1998. On 31.01.2000, the Government passed an order to the effect that the inquiry in question against the petitioner is dropped.
2.2. It is the case of the petitioner that in spite of the said order, the pension case of the petitioner was not finalized and he is paid only provisional pension. Again on 31.08.2000, the Government issued show cause notice to the petitioner to show cause as to why the period of suspension from 05.02.1996 to 31.03.1998 be not treated as suspension under the relevant provisions of the Rules. Pursuant to the said notice, the petitioner submitted his reply dated 28.09.2000. Thereafter the Government vide order dated 06.02.2001, passed an order holding the period from 05.02.1996 to 31.03.1998 as suspension period. Being aggrieved by the said order, the petitioner has preferred the present petition.
3. Heard learned counsel for the respective parties and perused the documents on record. It appears from the record that in the inquiry proceedings initiated against the petitioner, the charges levelled against him were proved beyond doubt. However, under the provisions of Rule 189 of the B.C.S.R. Rules, the penalty of penal act could be imposed only in case of serious misconduct. Since the misconduct committed by the petitioner did not attract the penal provisions of Rule 189 of the said Rules and since the petitioner had already retired on superannuation and no other penalty could be imposed upon the petitioner, the respondent had decided to drop the inquiry proceedings against the petitioner. However, while considering the aspect of regularization of the suspension period, the respondent has relied upon the provisions of Rule 152(5) of the said Rules which provided that if the misconduct alleged against the petitioner was proved in the inquiry proceedings initiated against him, then the period of suspension could not be regularized. In the present case, the charges levelled against the petitioner were not proved in the departmental inquiry. Therefore, by relying upon the provisions of Rule 152(5) of the said Rules, the period of suspension was treated as such by the respondent. Therefore, in my opinion, the decision taken by the respondent is just and legal and in accordance with the provisions of Rule 152(5) of the said Rules.
3.1. At this stage, it would be relevant to refer to the decision of this Court in the case of K.D. Desai v. High Court of Gujarat 2009 (3) GLH 631, wherein in para 18, following observations have been made : “18. The above decisions, therefore, clearly support the stand of the respondents that even where the charges are not proves 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. “
4. Considering the facts of the case and keeping in mind the principle laid down in the aforesaid decision, I am of the opinion that the respondents were completely justified in passing the impugned order and hence, I do not find any reasons to disturb the same.
5. In the result, the petition is dismissed. Rule is discharged. Interim relief if any, stands vacated.
(K.S.JHAVERI, J.) /phalguni/