( 1 ) 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 that 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 falling 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 all 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 o