The absence of a suspension order renders the order dated 7.2.2006 illegal, while the order dated 6.1.2006 imposing a pension cut is upheld.

Valmiki J. Mehta, J.

1. By this writ petition under Article 226 of the Constitution of India the petitioner impugns two orders passed by the disciplinary authority dated 6.1.2006 and 7.2.2006. By the order dated 6.1.2006 the disciplinary authority has imposed the penalty of a cut in pension by 5 percent for a period of one year upon the petitioner, and which amount roughly works out to only about Rs.7,445/-. The second order dated 7.2.2006 holds that for the period of suspension from 21.6.2000 to 28.2.2002 the petitioner will only be paid subsistence allowance during the period of suspension and not the regular pay though the petitioner will be taken to be on duty for this period. At the outset itself it is stated that by this judgment the second issue of suspension is decided in favour of the petitioner and only the first relief is not granted resulting only in the monetary disadvantage of Rs.7,445/-. The most part of the present judgment however is only because of the first issue of the challenge to the order dated 6.1.2006.

2. There is a chequered history to this case, inasmuch as, on the charge sheet initially issued against the petitioner on 7.12.1993, petitioner was found guilty and imposed the punishment of compulsory retirement. Petitioner however challenged the order of the imposition of compulsory retirement by his W.P. (C) No. 4487/1999. This writ petition was allowed by a learned Single Judge of this Court on 14.3.2000 by setting aside the punishment order imposed against the petitioner by observing that the rules of the employer do not provide for the punishment of compulsory retirement. Petitioner was granted reinstatement with consequential benefits. A second show cause notice was thereafter issued against the petitioner on 15.3.2000 and which resulted in the order of the disciplinary authority dated 20.6.2000 whereby the petitioner was imposed the penalty of removal from services in addition to the penalty that period of suspension of petitioner from 31.7.1999 till the order of removal from service will be treated as not spent on duty i.e. the petitioner will only be granted subsistence allowance. Petitioner challenged this order of the disciplinary authority dated 20.6.2000 in W.P. (C) No. 5431/2000. There were various issues raised in the W.P. (C) No. 5431/2000, and one of the issues was that the disciplinary authority could not impose the punishment upon the petitioner because petitioner was not supplied with certain documents which resulted in the petitioner being held guilty by the disciplinary authority which disagreed with the Enquiry Officer’s Report. Learned Single Judge vide his judgment dated 10.9.2002 set aside the disciplinary order dated 20.6.2000 and directed reinstatement of the petitioner with all consequential benefits.

3. The judgment of learned Single Judge of this Court dated 10.9.2002 in W.P. (C) No. 5431/2000 was challenged by the respondent no. 1/Department by filing LPA No. 975/2002 before a Division Bench of this Court. This LPA was allowed and disposed of by the order dated 6.1.2005 and thereby disciplinary authority was directed to consider the issues afresh. Since the wording of this order dated 6.1.2005 will be relevant in view of one of the arguments urged on behalf of the petitioner, this order dated 6.1.2005 is reproduced as under:-

“1. This appeal is filed against the order made by learned Single Judge, in Civil Writ Petition No. 5431 of 2002 on 10.09.2002. By allowing the petition, learned Single Judge held that the petitioner should be held entitled to all the consequential benefits till date he was superannuated and all the pensionary benefits thereafter.

2. In the instant case, there were departmental proceedings against the petitioner. The report was submitted by the Inquiry Officer holding the delinquent officer not guilty. However, the Disciplinary Authority on considering the material placed before it arrived at a conclusion that the case requires reconsideration a