JUDGMENT :

1. Heard Mr.Rajesh Mankad learned advocate for the petitioner and Mr.Dipak Dave learned advocate for the respondent.

2. The prayer in the petition by the petitioner is to declare that the order passed by the respondent- company rejecting his Second Appeal on the ground that the statutory rule for preferring such an appeal was effective from 16.09.2016, is bad.

3. Based on this prayer, what is also prayed is that the petitioner is entitled to have his period of suspension from 18.01.2003 to 23.10.2003 counted as regular for all purposes and the action of the respondents in treating such period as such, is bad.

4. Facts in brief would indicate that the petitioner was working as a driver with the respondents. He was issued a charge-sheet on 18.01.2003 and also by the same order suspended from service. On a response filed by the petitioner to the charge-sheet on 17.02.2003, the respondents conducted a departmental proceedings and an inquiry report was submitted on 29.05.2003 holding the petitioner guilty of the charge. A show cause notice was given to the petitioner on 25.08.2004 asking the petitioner to show cause as to why a penalty of stoppage of three increments with future effect be not imposed upon the petitioner for the misconduct in question. The petitioner responded to such notice by filing a detailed reply and by an order of 29.09.2004, a penalty of stoppage of two increments with future effect was imposed upon the petitioner. On a First Appeal being preferred, the appeal was rejected by an order dated 24.03.2005. Be it noted that in the interregnum, the authority thought it fit to revoke the order of suspension and reinstate the petitioner by an order dated 23.10.2003. Against the order of rejection of the First Appeal on 24.03.2005, the petitioner preferred a Second Appeal on 28.03.2018 which was rejected on 02.05.2018.

5. Mr.Mankad learned counsel for the petitioner would submit that after the departmental proceedings, a show cause notice was issued as to why a penalty of stoppage of three increments with future effect be not imposed. On the authority being satisfied with the response, the penalty that was imposed was a lower one to that of stoppage of two increments with future effect. Moreover, no order was passed denying the petitioner any benefits for the period of suspension of 10 months. He also would submit that when the petitioner was reinstated on revocation of the order of suspension on 23.08.2003, the reinstatement was only till the departmental inquiry is finally disposed of. This has made it mandatory for the employer to pass an order regularizing the period of suspension and pay consequential pay and allowances that could have an effect on his terminal benefits of he having attained the age of superannuation in the year 2018. He made representations in the year 2018 and also addressed a notice through the advocate on 03.10.2018. In support of his submissions that the period of suspension ought to be regularized, he relied on several decisions.

(i) Reliance was placed on the decision in case of Chimanlal Virjibhai Bhalani v. Paschim Gujarat Vij Company Limited reported in 2020 JX (Guj) 410. to submit that in a similar case, though the penalty was imposed, a direction was issued to the Vij Company to consider the case for regularization.

(ii) Reliance was also placed on a decision in case of Brahma Chandra Gupta v. Union of India reported in 1984 (2) SCC 433, to submit that when the suspension was held wholly unjustified, natural consequences of treating the period for the purposes of full salary should be awarded. Also reliance was placed on the decision in case of State of U.P. v. Ram Avtar Sharma reported in 2004 (13) SCC 755.

6. Mr.Mankad would submit that the imputation of charges contained five charges, of which, three were held not to be proved against the petitioner and therefore when the penalty order was passed in light of the fact that three charges of the petitioner were not proved, a de