Suspension period can be treated as duty but without pay; appeal dismissed as infructuous.

JUDGMENT Sushrut Arvind Dharmadhikari, J The present intra-court appeal, filed under Section 5 of the Kerala High Court Act , 1958, assails the judgment dated 04.07.2017 passed in W.P.(C) No. 1661 of 2007, whereby the writ petition filed by the appellant was disposed of.

2. The appellant had filed the writ petition seeking the following reliefs:

“i. to issue a writ of Certiorari or other writ or order or direction calling for the records leading upto Ext. P10 and quash Ext.P10.

ii. to issue a declaration that the Asst.Executive Engineer (in-charge) has no jurisdiction to suspend the nor he is empowered to do so on behalf of es petitioner, the Executive Engineer, Electrical Section Kottarakkara who also has no jurisdiction and hence the order Ext.P10 is without jurisdiction.

iii. to issue a writ of mandamus or other writ or order directing the respondents to allow the petitioner to Join duty at Electrical Section Kottarakkara on the basis of Ext. P7 notwithstanding Ext. P10.

iv. to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.

Additional Relief (v):

v. Calling for the records leading up to Ext P12 order dt. 12.5.2007 and quash the same.

Additional Reliefs "vi":

vi. or to issue a writ of certiorari or other writ order calling for the records leading upto Exhibit P15, Exhibit P17 show cause notice and Exhibit P19 order of penalty and Exhibit P22 Appellate Order and quash the same.

Additional Relief " vii":

vii. to issue a declaration that the petitioner is innocent of the charges leveled against him and not liable to be punished and that the suspension period is liable to be treated as duty for all purpose.”

3. The writ petition primarily challenged the order of suspension. It is an admitted position that the suspension was subsequently revoked and that the appellant was reinstated in service on 12.02.2009 after the disciplinary proceedings were concluded. While disposing of the writ petition, the learned Single Judge issued the following directions:

“6. In view of the fact that the delay cannot be attributed against the petitioner, this Court is of the view that the period of suspension ought to have been treated as the period spent on duty, qualified for pensionable service. No pay and allowances can be given to the petitioner for such period. Therefore, the authority is free to exercise the discretion in the matter for treating the period of suspension. Thus, this Court is of the view that the impugned order to the extent directing the petitioner to apply for eligible leave or leave without any allowance without any benefit is modified by ordering that it shall be treated as duty spent on duty without pay and allowances. It appears that the petitioner retired pending the writ petition. Certainly, all benefits based on the above shall be reckoned and released to the petitioner within period of two months from the date of receipt of a copy of this judgment.

The writ petition is disposed of as above.”

4. From a perusal of the above findings of the learned Single Judge, it can safely be concluded that the period of suspension has been treated as a period spent on duty without pay and allowances. In other words, the relief claimed by the appellant has substantially been granted, except for full salary and allowances for the period of suspension.

4.1 On a perusal of the relief clauses, it appears that the writ appeal has been rendered infructuous, inasmuch as the first relief can no longer be granted since the suspension order has already been revoked. So far as the second prayer is concerned, relating to the jurisdiction to suspend the appellant, the same need not be examined at this stage, for the reason that the suspension order has already been revoked and the period of suspension has been r