The period of suspension should be treated as on duty or on leave as per the order passed by the disciplinary authority in the final order. If the final order does not specify the treatment of the suspension period, the employee is entitled to the difference of pay and suspension allowance for the period of suspension.

( 1 ) THE petitioner was suspended in contemplation of an enquiry. However, he was reinstated with effect from 9. 5. 1985. Ultimately in the enquiry, the petitioner was found not guilty of the charges and he was reinstated with effect from the date of suspension. The respondents by order dated 28. 7. 1994 sought to recover certain amount from the gratuity payable to the petitioner on the ground that the petitioner during the period of suspension did not remain present at the station, therefore, the said period having been treated as leave without pay, the amount paid on account of subsistence allowance was sought to be deducted on the amount payable on account of gratuity. By another order dated 4. 7. 1995, the said amount was sought to be deducted from the gratuity payable to the petitioner. These two orders have been challenged in this writ petition.

( 2 ) MR. Ashok Bhushan, learned counsel for the petitioner contends that once the petitioner has been reinstated after he was found not guilty of the charges in the enquiry, there is no scope for the respondents to deduct any amount from the gratuity payable to the petitioner.

( 3 ) MR. O. P. Singh, learned counsel for respondents had relied on the statements made in paragraphs 6, 8, 14 and 16 of the counter-affidavit and contended that the amount was rightly adjusted against the gratuity payable to the petitioner. According to him, the petitioner was bound to remain present in the station during the period of suspension but he had absented from the place of his attachment for a total period of 1412 days. Therefore, he was treated as on leave without pay during the said period. By order dated 16. 3. 1992 the petitioner was required to submit either medical certificate or apply for sanction of leave. Since the petitioner could not fulfil the same, therefore, this period was treated as leave without pay by order dated 16. 3. 1992 which is Annexure CA-1 to the counter-affidavit. Mr. O. P. Singh learned counsel for respondents submits that the order contained in Annexure CA-1 to the counter-affidavit having not been challenged, the petitioner cannot claim any relief in this writ petition. According to him. the suspended employee is supposed to remain at the attached station and if he is absent in that event the same shall be treated as spent on leave and as such it is to be so decided. On these grounds, the writ petition should be dismissed.

( 4 ) MR. Ashok Bhushan, learned counsel for the petitioner, on the other hand, draws my attention to Regulation 19 of the U. P. State Warehousing Staff Regulations, 1961 and points out that while passing the order on the disciplinary proceeding, the period of suspension should be treated either as on duty or on leave according to the order incorporated in the final order. In the final order, the period was never treated to be on leave. He also denied in the rejoinder-affidavit about the statements made in paragraph Nos. 6. 8, 15, 16 and 18 of the counter-affidavit. He had pointed out that whenever the petitioner had to leave the Headquarters, he had sent intimation to the Managing Director through the Local Office, copies whereof are annexed as Annexures to the rejoinder-affidavit. He had also alleged that on occasions the suspension allowance was not paid for which he was unable to maintain his family at Bareilly. It was also intimated to the authority concerned by his wife that the petitioner was suffering from heart ailment. He further contends that the order contained in Annexure-CA-1 to the counter-affidavit was passed without giving any opportunity to the petitioner. Therefore, the writ petition should be allowed since there was no justification for treating the period as on leave.

( 5 ) I have heard learned counsel for the parties at length.

( 6 ) IT seems that the whole period of suspension has been treated to be on leave after the enquiry proceeding ended in favour of the petitioner which had directed reinstatement of t