The authority has discretion under Rule 152 of the Gujarat Civil Services Rules to determine whether a suspension period should be treated as a period spent on duty, especially when acquittal is on benefit of doubt.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. Heard Mr.B.B. Naik, learned Senior Counsel appearing with Mr.Parthiv Bhatt, learned advocate for the petitioner, Ms.Pooja Ashar, learned A.G.P. for the respondent no.1 and Ms.Dimple Thaker, learned advocate for the respondent no.2.

2. By way of the present petition, the petitioner herein has challenged the order dated 25.09.2006 passed by the respondent no.2, which is duly produced at Annexure-D, whereby, the suspension of the petitioner was withdrawn and the petitioner was allowed to resume his duties with the respondent no.2 – board upon five conditions, which are at page 38 i.e. (i) The amount of Rs.157.27 ps. to be recovered from the petitioner. (ii) Since the petitioner was not present at the head-quarters during suspension period, it is not necessary to pay him subsistence allowance. (iii) The period of suspension is to be treated as suspension period. (iv) When the petitioner was suspended, he was in the pay-scale of Rs.950-1500 and, therefore, he is to be allowed to resume duties and to be posted in the same pay-scale and (v) Pending suspension, criminal complaint was filed against the petitioner for misappropriation of the amount at Vav police station and in connection with which, revision application was also filed by respondent No.2 – board against acquittal of the petitioner in the case at Bhachav, no pay and allowance was to be paid to the petitioner for the period of suspension.

3. Upon such order being passed, the petitioner made a representation to the respondent – board to delete the conditions imposed in the impugned order. Thereafter, pursuant to the order dated 25.09.2006, the respondent no.2-board, by letter dated 18/19.10.2006, directed the petitioner to resume the duties within seven days as the contentions raised in the representation could be raised only after resuming the duties The petitioner showed readiness and willingness to resume the duties by representation dated 30.10.2006 however, the petitioner was not permitted to resume the duties by letter dated 02.11.2006. Thereafter, by letter dated 03.11.2006, the District Development Officer, Kutch at Bhuj, directed the Programme Officer, Integrated Child Development Scheme (ICDS), Bhuj to allow the petitioner to resume the duties and accordingly, the petitioner resumed the duties at the office of ICDS Branch, Taluka Panchayat Office, Bhachav.

3.1. By order dated 27.12.2006, the pay of the petitioner was determined at Rs.3125/- and the question of increment was to be decided on 01.11.2007. The petitioner accepted the same with objections by communication dated 02.01.2007. Since the petitioner did not receive any reply from the respondent in response to his representation dated 06.10.2006, notice was issued through the petitioner’s advocate on 22.02.2007. The petitioner chose not to approach the Court because of the pendency of Criminal Misc. Application No.6023 of 2002, which was filed by the petitioner for quashing of the criminal complaint. The said application came to be allowed by judgment dated 13.04.2007. The petitioner thereafter, informed the respondent no.2 – board by letter dated 25.05.2007, requesting to delete the conditions imposed on 25.09.2006 and for extending all the benefits including pay-fixation, increments, promotions etc. to the petitioner. The petitioner also sent the certified copy of the order passed in the said Criminal Misc. Application No.6023 of 2002. By communication dated 31.05.2007, the petitioner was relieved from ICDS office at Bhachav and was repatriated to the Gujarat State Social Welfare Board. The petitioner was once again posted at ICDS Bachav Unit on 07.07.2007 and resumed the duties on deputation. The petitioner resumed his duties on 26.07.2007 at Bhachav and was serving at ICDS, Bhachav.

3.2. On 06.08.2007, the petitioner was informed by the respondent no.2 – board that the application of the petitioner was allowed only on the ground of delay and nothing further was required to