The employer has the prerogative to decide the period spent during suspension, and the principle of 'No Work No Pay' applies during suspension periods.

ORDER :

Sujoy Paul, J.

1. In this petition, the petitioner has prayed for following reliefs:-

"(1) To set aside the order dated 25.03.2017 (Annexure P/9) and order dated 06.09.2018.

(2) To hold that the principle of "No Work No Pay" is not attracted in the case of the present petitioner.

(3) To direct the Respondent to declare that the petitioner is on duty during the period from 10.07.1996 to 02.02.1998 and from 03.02.2000 to 10.06.2008.

(4) To direct the respondents to pay the salary and arrears of petitioner for the period of suspension from 10.07.1996 to 02.02.1998 and from 03.02.2000 to 10.06.2008.

(5) To direct the respondents to pay the arrears of the Fifth Pay Commission to the petitioner for the period of 01.04.1996 to 03.04.2017."

2. Learned counsel for the petitioner submits that petitioner remained under suspension during two spells - (i) from 10.07.1997 to 02.02.1998. This suspension was arising out of the Crime No. 441/96 for allegedly committing offence under section 323 and 506 of IPC. The petitioner was convicted on 03.04.2001 by the trial court but appellate court gave him benefit of probation. The department committed an error in passing the order dated 06.09.2018 thereby declined to treat the period of suspension as spent on duty and for grant of pay and allowances. (ii) the second suspension period was between 03.02.2000 to 10.06.2008 arising out of Crime No. 161/1999 for allegedly committing offences under section 294, 353 and 506B of IPC. The petitioner stood acquitted on 12.04.2006. He prayed for release of pay and allowances and count that period as spent on duty. This claim is also rejected by taking shelter of conviction arising out of previous Crime No. 441/96 wherein the petitioner was held guilty. This is an extraneous consideration because for second spell of suspension, the relevant Crime number was 161/1999 from which he stood acquitted by the trial court and said judgment was upheld by the Gwalior Bench in Cr.A.No.935/2006. Thus respondents have committed an error in rejecting this application relating to second period of suspension. Lastly, it is submitted that although after revocation of suspension, the respondents granted him benefit of Sixth Pay Commission, no directions were issued to grant him benefit of Fifth Pay Commission. Thus, appropriate orders may be passed.

3. Prayer is opposed by Shri Singh, learned counsel for the State.

4. No other point is pressed by learned counsel for the parties.

5. I have heard the parties at length and perused the record.

6. So far first suspension period is concerned, indisputably, the petitioner was held guilty in Crime No. 441/96 by the trial court and the appellate court has not acquitted the petitioner. Indeed, the petitioner was granted benefit of probation. Thus, no fault can be found in the first order dated 06.09.2018. The Apex Court in Management of RBI Vs. Bhopal Singh Panchal, (1994) 1 SCC 541 opined that it is the prerogative of the employer to take a decision regarding the period spent during suspension and scope of judicial review in a matter of this nature is limited. The relevant portion reads as under:-

"15. We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be tr