Gujarat High Court
A.A. Bhoira, Retireed By Engineer vs State Of Gujarat on 6 October, 2003
Equivalent citations: [2004(101)FLR947], (2003)3GLR2756
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr. Mukul Sinha for petitioner and learned AGP Mr. N.D.Gohil appearing on behalf of respondent.
2. The brief facts of the present petition are as under.
2.1 The petitioner was working as a Deputy Engineer in the Public Works Department. He was served with a charge sheet dated 7.7.1972 alleging that he was guilty of negligence in supervising the work of subordinate Junior Engineer and as such he was placed under suspension w.e.f. 1.10.1973. Thereafter departmental inquiry was conducted and, the respondent Government, by order dated 13.4.1977 quashed the departmental proceedings. Then respondent had, in the meantime, issued another charge sheet dated 8.12.1972 and terminated the service of the petitioner by order dated 24.1.1979. The petitioner, therefore, challenged the termination order by filing Special Civil Application No. 2638 of 1979 wherein this Court by order dated 24.12.1981 had quashed and set aside the order of dismissal and had further directed reinstatement of the petitioner with all consequential benefits. Then by order dated 16.7.1983 the respondent again reopened the inquiry in respect to old charge sheet dated 7.7.1972 and by order dated 15.12.1988 the inquiry officer had concluded that the charge Nos. 1 & 2 are partially proved whereas charge Nos. 3, 4, 5 & 6 were held not proved. On the basis of the said finding the respondent passed a final order of punishment of stoppage of one increment without any future effect by order dated 27.9.1989. At that occasion the State Government has not passed any order in respect to regularising the suspension period. Meanwhile, petitioner was retired on 30.4.1990 and respondent has granted provisional pension but, no final order was passed in respect of pension. Therefore, petitioner had approached to this Court by filing Special Civil Application No. 2785 of 1996 which was dismissed because of delay. Ultimately in Letters Patent Appeal No. 536 of 1996 the Division Bench of this Court has disposed of the matter with a direction to the respondent to decide the question of regularising the suspension period in respect of the show cause notice which was received by the petitioner dated 14.8.1998. The Letters Patent Bench also directed the respondent to decide or to take appropriate decision within a period of two months from the date of receipt of petitioner's reply. The petitioner submitted his reply dated 25.8.1998 for regularising the suspension period which was rejected by the State Government declaring the period of suspension to be treated as period as on suspension without giving any reason, consequence of which was not even discussed and no orders on the payment of wages was passed on 10.11.1998.
3. It is necessary to note one important fact that petitioner was dismissed from service on 24.1.1979 and that order was challenged by the petitioner in Special Civil Application No. 2633 of 1979. At that occasion on behalf of the respondent State learned AGP Mr. M.M.Jadeja made the statement at Bar that the petitioner will be reinstated in service within a period of two weeks from the date of the said order. In view of that statement the order of dismissal was quashed and set aside and State Government was directed to reinstate the petitioner in service within a period of two weeks from the date of the order and granting him all the consequential benefits including the continuity of service and, the rule was made absolute accordingly. This order was passed by this Court on 24.12.1981 on the basis of the letter of the Deputy Secretary (R&B) Department. The said order is quoted as under:
"Mr. M.M.Jadeja for the respondent-State makes a statement at the Bar that the petitioner will be reinstated in service within two weeks from today. In view of this statement, the impugned order of dismissal is quashed and the State Government is directed to reinstate the petitioner in service within two weeks from today granting him all the consequential benefits including continuity in service etc. The rule is made absolute accordingly. No order as to costs. The letter of the Deputy Secretary R & B taken on record."
4. Thereafter the respondent State has reopened the earlier inquiry in respect to the old charge sheet dated 7.7.1972. In between, another charge sheet dated 8.12.1972 was served by the respondent to the petitioner. Page 15 (Annexure-1) is the charge sheet dated 7.7.1972. In all six charges were framed against the petitioner. Page 24 (Annexure-B) is the suspension order dated 1.10.1973. It is necessary to note that in suspension order, it is not made clear as to on what basis suspension order has been issued by the respondent State. It is also not made clear whether the said suspension is in respect to the first charge sheet dated 7.7.1972 or in respect to the second charge sheet dated 8.12.1972. Page 27 (Annexure-4) is the dismissal order dated 24.1.1979 in respect to the charge sheet dated 8.12.1972. In respect to the charge sheet dated 7.7.1972, ultimately, after completion of denovo departmental inquiry as per order dated 13.4.1977 the inquiry officer has recorded the finding and that finding was accepted by the State Government wherein charge No.1 and 2 were partly held not to be proved against the petitioner and only punishment of stoppage of one increment without cumulative effect was imposed. Thereafter, petitioner had approached to this Court by filing Special Civil Application No. 2785 of 1996 with a prayer to regularise the suspension period from 1973 to 1979 but, by order dated 15.4.1996, this Court has rejected the petition only on the ground of delay. Then petitioner had received show cause notice dated 14.8.1998 calling the explanation from the petitioner as to why the suspension period from 1973 to 1979 should not be treated as suspension. In the said notice the respondent State has come to conclusion before calling the explanation from the petitioner that once the petitioner is found guilty and charge No.1 & 2 were not partly proved, then, under Rule 152 of the Bombay Civil Service Rules the suspension period cannot be treated as spent on duty. This being a conclusion before receiving the explanation from the petitioner. On that basis, the explanation was called for from the petitioner. On 25.8.1998 the reply was given by the petitioner to the State Authority. The petitioner has pointed out that one increment has been stopped with cumulative effect which comes to Rs.1280.00 and due to that, total service of 5 years and 4 months may not be considered to be suspension as it is but, same may be treated as spent on duty. This request was made by the petitioner to the authority. The petition which was dismissed by this Court on the ground of delay, against that Letters Patent Appeal was filed by the petitioner wherein this Court has passed order on 25.8.1998 with a direction to the respondent to pass appropriate orders on show cause notice dated 14.8.1998 within a period of two months and accordingly appeal was disposed of. Then, ultimately respondent State has passed an order on 10.11.1998. In the said order after receiving the reply from the petitioner; whether his reply has been considered or not or whether the State authority has applied its mind in respect to the reply submitted by the petitioner or not, for that there is no discussion at all in the order. No reasons have been given by the respondent in the said order that the explanation which was given by the petitioner is not accepted for the reasons which is not disclosed in the order. Ultimately the State authority has decided the entire period from 1.10.1973 to 24.1.1979 as suspension and not spent on duty. Against that affidavit-in-reply is filed by the respondent. The main contention was that earlier, petition was filed by the petitioner challenging not to regularise the suspension period which was dismissed on the ground of delay and respondent State authority has applied the mind and passed appropriate orders on 10.11.1998 which is legal and valid because petitioner was not fully exonerated by the respondent State authority. I have perused the reply submitted by the respondent.
5. Learned advocate Mr. Mukul Sinha appearing on behalf of the petitioner has submitted that once the dismissal order is set aside by this Court on the basis of the statement and letter of Deputy Secretary R&B department and this Court has directed the respondent to reinstate the petitioner with all consequential benefits including continuity of service, that itself is sufficient that petitioner is entitled all the benefits of suspension period as if petitioner was never suspended by the respondent authority. He also submitted that suspension order is merged with the dismissal order which has been set aside, thereafter suspension order cannot be revived and therefore, petitioner is entitled the benefit of the directions issued by this Court to the effect that petitioner is reinstated with continuity of service with all consequential benefits. It includes the suspension period for which the petitioner is entitled full wages with all consequential benefits as if the petitioner was suspended during the period from 1973 to 1979. Mr. Sinha has also submitted that the respondent State has not considered while passing the order on 10.11.1998 that at the time when suspension order was passed against the petitioner whether it was justified or not at the relevant time. Mr. Sinha also submitted that first charge sheet is dated 7.7.1972 and the second charge sheet is dated 8.12.1972 and suspension order is dated 1.10.1973. What is the rational behind issuing the two charge sheets and thereafter the petitioner was suspended is not explained. Normally the suspension order is prior point of time in comparison to the charge sheet but in the facts of this case initially two charge sheets were served to the petitioner and thereafter suspension order was passed by the respondent authority. Therefore, he also submitted that there is no reason given by the authority as to on what basis suspension order has been passed, that is, either on the basis of first charge sheet or on the basis of second charge sheet and no reference to that effect has been mentioned by the respondent. Mr. Sinha has also pointed out that in entire order of suspension not a whisper has been mentioned by the State Government as to for which misconduct suspension order has been passed. It is merely a suspension order without indicating alleged misconduct against the petitioner. Therefore, he submitted that this aspect must have to be examined by the respondent at the time when the suspension order was required to be regularised under Rule 152 of the Bombay Civil Service Rules. But that aspect was not examined by the respondent State authority. He also submitted that no reasons have been given as to why the reply given by the petitioner was not accepted by the respondent authority. Therefore, according to him the order dated 10.11.1998 is a non-speaking order and it amounts to non-application of mind and therefore, required to be quashed and set aside.
6. Learned AGP Mr. N.D.Gohil has submitted that under Rule 151 and 152 of the Bombay Civil Service Rules, the respondent State authority is required to pass order after the departmental inquiry is over and punishment order is passed or if the employee is fully exonerated by the department. He submitted that punishment order has been passed by the respondent State authority and that is how he was not fully exonerated and ultimately respondent authority has decided that suspension is treated as suspension and not spent on duty which is legal and valid. Learned AGP also pointed out that reply given by the petitioner was taken into account and, for that, authority has considered it and then order has been passed. However, he made it clear that no such discussion in the order was made by the respondent authority. However, he submitted that order passed by the respondent authority dated 10.11.1998 is legal and valid and in accordance with Rule 151 and 152 of the Bombay Civil Service Rules.
7. I have considered the submissions made by both the learned advocates. It is necessary to note one fact that suspension order itself is not justified looking to the facts which are on record. Apparently, at the time of issuing first charge sheet dated 7.7.1972 the respondent authority has not thought it fit to suspend the employee because there was no serious charge according to the respondent otherwise suspension order must have to be passed by the respondent. Then while issuing second charge sheet dated 8.12.1972 also no suspension order has been passed. Subsequently, after a period of 10 months, suspension order was passed on 1.10.1973, meaning thereby that there was no such occasion to suspend the petitioner from service. The suspension order itself is without any reason and without indicating any alleged misconduct against the petitioner. In the suspension order no reference has been made as to whether it relate to first charge sheet or second charge sheet. It is also relevant to refer the relevant Rules of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971 where Rule 5 relate to suspension whereby power has been given to the appointing authority to which it is subordinate or the disciplinary authority or any other authority empowered by the Government in that behalf may place a Government servant under suspension; (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of the criminal offence involving moral turpitude is under investigation, inquiry or trial. In case of order passed by subordinate authority then he should have to inform the appointing authority. Now question is that at the time of passing the suspension order what is the requirement which is to be considered by the appointing authority before passing the suspension order. It is well established that suspension is not a punishment and it being an interim measure. During the period of suspension relationship master and servant remained in existence and it is not a case of termination. Normally suspension order cannot be passed as an administrative routine or automatic, a moment misconduct has been committed by the concerned employee. It should have to be passed with application of mind by the authority and, to justify the application of mind, reasoned order must have to be passed by the appointing authority. Certain principles have been decided by the Apex Court in case of State Of Orissa V. Bimal Kumar Mohandy, AIR 1994 SC 2296. The relevant observations made in para 12 are quoted as under:
"It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."
8. In light of the observations made by the Apex Court as referred above, the question remain as to whether, in facts of the present case those guidelines have been followed by the respondent authority or not. In the facts of this case the first charge sheet is dated 7.7.1972 and the second charge sheet is dated 8.12.1972. Looking to the gravity of misconduct considering in respect to both the charge sheet the appointing authority has not thought it fit to suspend the petitioner from service, meaning thereby that along with the charge sheet or prior to the charge sheet, at the stage of contemplation no suspension order was passed by the appointing authority against the petitioner but thereafter on 1.10.1973 suspension order has been passed by the Deputy Secretary to the Government of Gujarat Public Works Department. In suspension order no reasons have been given by the authority. No reference is made about the alleged misconduct against the petitioner. Even there is no reference that in respect to which charge sheet petitioner is suspended by the authority. I fail to understand that why the suspension order has been passed by the authority after a period of 12 months in respect of first charge sheet and in respect of second charge sheet after a period of 11 months. It is necessary to quote the suspension order which is at page 24 (Annexure-B) wherein no whisper has been made by the authority as to why suspension has been passed against the petitioner:
"Shri A.A.Bhoira, Deputy Engineer, working in the Wankaner Check Dam Sub-Division is reverted to the Public Works Department and on his reversion to this Department Shri Bhoira is suspended from Government service with immediate effect until further orders.
2. During the period of suspension, Shri Bhoira should be granted subsistence allowance as admissible under the rules. The payment of dearness allowance if otherwise payable to Shri Bhoira should, however, be withhold until further orders.
3. It is not permissible for Shri Bhoira to accept private employment or to do business while under suspension in view of the provisions of rule 15 of the Gujarat Civil Service Conduct Rules, 1971. If while under suspension, he accepts private employment or does business, he will be guilty of misconduct and will be liable to dealt with accordingly. He will also in that case forfeit his claims to subsistence allowance.
4. Shri Bhoria should not leave his headquarter during the period of his suspension without the prior written permission of Government. In case, he has to leave his head quarters for any reasons, he should apply to Government for the Government permission.
By order and in the name of the Governor of Gujarat."
9. Looking to the order passed by this Court which is at page 32 wherein dismissal order dated 24.1.1979 relating to the charge sheet dated 8.12.1972 was challenged in Special Civil Application No. 2633 of 1979 whereby the dismissal order has been set aside and direction has been issued by this Court to reinstate the petitioner in service with all consequential benefits including the continuity in service. After this order no denovo inquiry has been started or initiated by the authority in respect to same chargesheet dated 8.12.1972. Meaning thereby, this chapter has come to end when this Court has passed an order on 24.12.1981 and in pursuance to that, petitioner was reinstated in service. In respect to the second charge sheet dated 7.7.1972, departmental inquiry was completed by the inquiry officer on 16.7.1983 after a period of 11 years though reply was submitted by the petitioner on 3.11.1972. Thereafter inquiry report was submitted to the disciplinary authority by the inquiry officer on 15.12.1989 after the period of 6 years from the date of completion of departmental inquiry. The inquiry report was considered and accepted by the disciplinary authority but not deferred the inquiry report. In all six allegations were made out of which in four allegations petitioner was exonerated by the inquiry officer and in respect to the allegation No.1 & 2 those allegations were partly not proved against the petitioner. Therefore, on the basis of the punishment of stoppage of one increment without cumulative effect was imposed and this chapter has come to an end by order dated 27.9.1989. It is necessary to note that after issuance of charge sheet dated 7.7.1972, after a period of 16 years prima facie there was nothing against the petitioner except allegation of lack of supervision against the petitioner. Then petitioner had approached to this Court by filing Special Civil Application No. 2785 of 1996 with a prayer to regularise the suspension period from 1.10.1973 to 24.1.1979. According to my opinion at that occasion when this petition was filed petitioner was not properly advised by the concerned lawyer because there was no need to file petition for regularising the suspension period in light of the observations made by this Court in order dated 24.12.1981 where the dismissal order was set aside and this Court has directed the respondent to reinstate the petitioner in service with continuity of service and with all consequential benefits but, apart from that fact, ultimately, the relevant fact is that show cause notice dated 14.8.1998 was served to the petitioner calling the explanation from the petitioner as to why the suspension period of six years should not be treated as suspension as it is. The reply was given by the petitioner on 25.8.1998. In the show cause notice the disciplinary authority has predecided the mind in respect to Rule 152 that because the punishment has been imposed by the disciplinary authority, petitioner is not entitled any benefit under Rule 152 of Bombay Civil Service Rules. Thereafter, the present order dated 10.11.1998, which is in question, has been passed by the disciplinary authority and treated the suspension period w.e.f. 1.10.1973 to 24.1.1979 as a suspension and petitioner is not entitled any benefit. It is also necessary to note at this juncture that even an authority who has passed this order on 10.11.1998 has not considered the earlier order passed by this Court on 24.12.1981 in Special Civil Application No. 2633 of 1979 whereby the dismissal order was set aside by the department on the basis of the letter of Deputy Secretary R & B department. When it is not clear that suspension order dated 1.10.1973 has been passed relate to which charge sheet then automatically the suspension order must have to come to an end a moment the petitioner was reinstated in service. Therefore, a natural result is that the petitioner when reinstated then suspension order amounts to be revoked by the authority in the year 1981. It was the duty of the disciplinary authority to regularise the suspension period of petitioner but it was not done and ultimately petition was filed with a prayer to regularise the suspension period and after that in the year 1998 a show cause notice dated 14.8.1998 was served to the petitioner and ultimately order is passed on 10.11.1998. A bare perusal of the facts is that first charge is sheet dated 7.7.1972 and the second charge sheet is dated 8.12.1972, more than 30 years agony remained with the employee who suffered lot during this interim period and entire career has been ruined by the department and looking to the punishment no serious misconduct is committed by the petitioner which has been found to be proved against the petitioner. More than 30 years period has been taken by the department for imposing the punishment of stoppage of one increment without cumulative effect. The responsible officer or the highest authority of the concerned department is required to be enquired for passing such an order which officer was in fault, which ultimately ruined the career of the petitioner who was, at the relevant time, was working on the post of Deputy Executive Engineer.
10. Now under Rule 152 if the authority require to pass any order for regularising the suspension order, an opportunity must have to be given to the concerned employee. This aspect has been examined by the Division Bench of this Court in the case of Ramsunder Shamlal V. Y.B.Jhala Or His Successor, Commissioner of Police, Ahmedabad and Others, 1999 (1) GLH 150 wherein this Court has observed that order under Rule 152 of Bombay Civil Service Rules is not passed as a part of punishment and as no such punishment is envisaged under Bombay Police Punishment Rules. As this order may sometimes have far reaching financial consequences as far as the employee is concerned; it is just and equitable that he be given reasonable opportunity of being heard and that alone would be perfectly in accordance with the principles of natural justice. The said observation made by this Court in para 6 is quoted as under:
"Though the instant case stands on a different footing, the principles laid down in the above two cases can be followed while passing an order under Section 152 of the BCSR. The order under Rule 152 BCSR is not passed as part of the punishment and as no such punishment is envisaged under Bombay Police Punishment Rules. As this order may sometimes have far reaching financial consequences as far as the employee is concerned; it is just and equitable that he be given reasonable opportunity of being heard and that alone would be perfectly in accord with the principles of natural justice. Therefore, we set aside Annexure'H' order, which is confirmed by Annexure'J' order, so far as it relates to the stand taken that the period of suspension be treated as such, and direct that the Competent Authority may issue fresh notice to the appellant under Rule 152 of the BCSR and the appellant be heard before any decision is taken under Rule 152. The Authorities may take a decision having regard to the provisions contained in Rule 152."
11. What would be the effect of suspension when it has been passed in mechanical manner without application of mind, this aspect has been considered by this Court in the case of Arunbhai Madhubhai Patel v. State of Gujarat and Anr., 2003 (3) GLR 1952. The relevant observation made by this Court in para 8 is quoted as under:
"Normally the procedure which requires to be followed by the employer in case when any misconduct committed by an employee during the course of employment, then, firstly he should have to follow the guidelines that in light of the allegations made against the employee, whether it is necessary to suspend the employee or not. There are relevant establishment factors that ordinarily suspension order should not have been passed unless when the circumstances are found to justify it and discretion should be exercised with care and caution. It is also established and settled position of law that unless the allegations made against the employee are of serious nature and on the basis of evidence available, prima facie case attributes major penalty and his active service is likely to cause embarrassment or to hamper the investigation of the case or prejudice investigation, inquiry, trial, subserve discipline or to cause public scandal. In other words, a moment misconduct has been committed, the competent authority should have to apply its mind considering the gravity of charge and the circumstances, whether suspension is justified or not. In each case of misconduct committed by the employee, suspension order is not a routine matter and / or course which can be adopted against the employee irrespective of the fact whether misconduct is in serious nature or not and whether it would result into major punishment finally. The effect of suspension against the employee which ultimately suspends the life of the employee in all respects. It is not merely a stigma against an employee alone but it is a stigma against the family as a whole and it amounts to social stigma against the employee and his family members. A moment employee is suspended, the society will ask the question to each of the family members why the husband and / or father, is suspended. Not only that, this creates some doubt as to general conduct of the employee in the society. It demoralize the employee who has been suspended without any justification. Merely an employee joining services, the employee does not mortgage or barter away his basic rights as human being including his fundamental rights in favour of the employer. Merely, having powers to suspend the employee, it cannot be casually exercised in any case of misconduct. The suspension itself is an inhuman act which is an unpropitious effect on the life of an employee. Therefore, the question is that an employee who has been suspended either at the stage of preliminary inquiry or at the stage of chargesheet, the employee remained under suspension till conclusion of the inquiry or till the order of punishment. After the punishment imposed against the employee in result of inquiry, the question would require to be examined again independently by the competent authority, whether suspension period can be treated as spent on duty or not. At that occasion, it is the duty of the competent authority to consider independently while keeping in mind and considering the punishment imposed against the employee, whether in view of the facts of the case, suspension is justified or not? If at the end of inquiry and at the occasion of issuing punishment order, this aspect shall have to be examined by the competent authority without being influenced by the finding given by the inquiry officer. Merely, punishment has been imposed on the employee, is not enough to say that the employee is not entitled to be treated as suspension period spent on duty. This attitude, conduct and approach of the employer is giving another punishment by exercising the discretionary powers in an arbitrary manner to the employee because at the time of considering the case of the employee, whether suspension period is required to be considered spent on duty or not, as such, no independent and objective standard has been observed by the employer. Normally, without application of mind and only bearing in mind the result of the inquiry report, suspension period has been treated as suspension. Therefore, according to my opinion, such approach of the employer is giving another punishment to the employee over and above the punishment order issued against the employee in respect of the misconduct committed by the employee. In light of the procedure, which normally should have to be undertaken by the employer. But unfortunately, in most of the cases, the employees are sufferer because of non objective attitude and look in the matter of order passed by the employer while considering whether suspension period can be treated as spent on duty or not. Therefore, considering the facts of the present case, it clearly transpires that no reason is disclosed in suspension order dated 5th March, 2001, and as such, there is no justification mentioned while suspending the employee. Similarly, even there is not justification in revocation of suspension period. It is also necessary to note that suspension order has been revoked during pendency of inquiry, then what is the purpose to suspend the employee during pendency of inquiry, meaning thereby, the order of suspension was absolutely not justified when it was passed against the petitioner. This aspect has not been taken into account by the competent authority and at the time of passing the punishment order, period of suspension has been treated as suspension being the other punishment imposed by the competent authority as punishment of censure is not enough. Thus, these two types of approach not to apply the mind independently and objectively to consider whether suspension was at all justified or not. This is very requirement under Regulation 86[2] of the Service Regulations of the respondent Corporation. In light of this background and considering the facts of the present case, the view taken by the Apex Court in case of M. PAUL Anthony Capt. V. Bharat Gold Mines Ltd. reported in 1999 SC 1416 : 1999 LAB I.C. 1565. The relevant observations made by the Apex Court in para-29 are referred as under:-
"29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare whether officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non payment of Subsistence Allowance is an inhuman act which has an unpropititous effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of "Subsistence Allowance", so that the employee may sustain himself. This Court in O.P. Gupta v. Union of India, [1987] 4 SCC 328 : AIR 1987 SC 2257 made by the following observations with regard to Subsistence Allowance [para 15 of AIR]:
"An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India [ AIR 1958 SC 300 ] is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression "subsistence allowance" has an undeniable penal significance. The dictionary meaning of the word "subsist" as given in Shorter Oxford English Dictionary Vol.II at p.2171 is "to remain alive as on food : to continue to exist", "Subsistence" means - means of supporting life, especially a minimum livelihood."
12. In light of the law which has been examined by the Apex Court as well as Division Bench of this Court and as a single Judge the principle is very clear that before passing the orders under Rule 152 of Bombay Civil Civil Service Rules a reasonable opportunity of hearing must have to be given to the concerned employee calling the explanation from such employee. Therefore, the relevancy that whatever the answer is given by the employee while receiving the show cause notice from the authority is required to be considered by the respondent. The authority should have to apply its mind and discuss the defence or explanation of the employee and why the authority is not believing or accepting the explanation, for that authority should have to disclose the reason or it should have to discuss the reason in the ultimate order. Looking to the facts of this case, the reply given by the employee on 25.8.1998 and pointed out to the authority that ultimately one increment has been stopped without cumulative effect comes to loss to Rs.1,280.00 and on that ground the suspension period is more than five years and four months, therefore, same may be treated as spent on duty. In final order it is noted by the authority that reply was received from the petitioner but what was the reply or explanation, no discussion. Why reply was not accepted, no discussion. Meaning thereby, that no reasons have been given by the authority while passing the final order on 10.11.1998. This being an unreasoned order and whatever the opportunity was given to the employee is merely become futile exercise and no effect or impact upon the authority. Therefore, this order dated 10.11.1998 is unreasoned order which amounts to non-application of mind by the authority. Another aspect is required to be taken into account is that petitioner was suspended on 1.10.1973 and remained under suspension up to 24.1.1979. Not to treat the said period on duty if the real loss is calculated, according to my opinion it comes to more than Rs.1 lakh and other benefits. It has been denied to the petitioner only on the ground that a minor penalty has been imposed and petitioner was held liable for that and therefore the entire period has been treated as suspension. Even Rule 152 sub Rule (3) also not taken into consideration by the respondent authority. Therefore, the order dated 10.11.1998 is contrary to the principles of natural justice, it being arbitrary order passed by the authority without application of mind. The real impact of the said order is that the petitioner will lose the increments of this interim period and also the promotion in between and fixation of salary which ultimately at this stage affect the right of pension and gratuity which will be received by the employee at the time of retirement. Therefore, before passing orders under Rule 152, it is the duty of the respondent authority to consider whether initial order of suspension which was passed by the authority whether it has been justified in any angle looking to the gravity of misconduct or even looking to the punishment imposed by the authority, that aspect has not been examined and even considered by the respondent authority. Looking to the facts of this case, the suspension order dated 1.10.1973 is nothing but a routine order issued by the authority without application of mind at all. In the suspension order no reference is incorporated to the alleged misconduct by the respondent authority. According to my opinion a moment dismissal order is set aside on the basis of the letter of Deputy Secretary (R&B) department and in result thereto, direction has been issued by this Court on 24.12.1981 in Special Civil Application No. 2633 of 1979 to reinstate the petitioner in service with all consequential benefits including continuity of service etc. and rule was made absolute, is enough to set aside the order dated 10.11.1998 which has been passed by the authority against the petitioner treating the period of suspension as it is. But this aspect has been lost sight of the respondent while concluding the matter under Rule 152 of the Bombay Civil Service Rules by order dated 10.11.1998. Therefore, according to my opinion, considering the above aspect, the order which has been passed by the authority dated 10.11.1998 is required to be quashed and set aside.
13. In result, the order dated 10.11.1998 passed by the respondent authority is hereby quashed and set aside with a direction to the respondent authority to treat the petitioner on duty or to treat the suspension period as on duty w.e.f. 1.10.1973 to 24.1.1979 for all purposes and whatever benefits including pay fixation, increments and salary as well as other allowance including revised pension and gratuity which are available under the service rules, the arrears and difference of all the said service benefits are required to be paid by the respondent authority as if the petitioner was never suspended during this interim period and the said total amount is to be paid by the respondent within a period of three months from the date of receipt of this order. Rule is made absolute. No order as to costs.