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Judgment
Biren Vaishnav, J
In this petition, under Articles 226 and 227 of the Constitution of India, the prayer of the petitioner reads as under:
"(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to revise the pension from the year 2009 and as per the order passed by the Hon'ble Court in Special Civil Application No.11467/2000 and to pay up the arrears of suspension allowance from the 1999 till the date of retirement, and till the outcome of this petition with 18% interest, in the interest of justice;"
It is the case of the petitioner that since the suspension was revoked on 20.3.1999, the period during which he was under suspension from 3.6.1988 to 19.3.1998 should be considered for the purposes of grant of pension.
Mr.B.K. Oza, learned counsel for the petitioner places reliance on a decision of this Court rendered in Special Civil Application No.12261 of 2004 in which reliance is placed on GR dated 31.03.1971, wherein, this Court directed that the period of suspension be treated as on duty and consequential benefits be accordingly extended. Claiming parity, Mr. Oza would contend that in the case on hand too, the petitioner should be given the benefit of the regularization of such period and the pension be re-fixed accordingly.
Ms.Sejal K. Mandavia, learned counsel for respondent No.3 has relied on a decision of this Court in the case of the petitioner in Special Civil Application No.11467 of 2000 and contended that the benefit cannot be given as the suspension period was not regularized particularly, when the request for regularization of such period was rejected.
Having considered the submissions of learned counsels for the respective parties and having perused the order passed by this Court in the case of the petitioner himself in Special Civil Application No.11467 of 2000, facts would indicate that on account of certain criminal proceedings having been initiated against the petitioner, the petitioner was suspended by an order dated 3.9.1988. The Departmental Inquiry was also initiated by issuing a chargesheet. A report was submitted by the Inquiry Officer on 25.5.1992 and of the five charges, 3 were held to be proved. Though an order of suspension was revoked on 20.3.1999, by an order dated 24.6.1999, the period of suspension was treated as break in service. The challenge to the order failed as is evident from the order passed by this Court on 22.1.2009. It is relevant to reproduce paragraph Nos.8 to 10 of such order which read as under:
"8. Heard learned counsel for the respective parties and perused the documents on record. The main contention of the petitioner is that since he has been acquitted by the criminal Court, the period of his suspension from service is required to be regularized, as non-regularization thereof would amount to double jeopardy, inasmuch by an earlier order dated 17.05.1999, the petitioner has already been imposed the penalty of placing him in the minimum pay-scale.
Even if the say of the petitioner is accepted, the fact remains that the petitioner was facing criminal prosecution and that in the said criminal proceedings, he has not been given a clear acquittal but, has been given the benefit of doubt. In such circumstances, I do not find any illegality or impropriety with the action of the respondents. Both the proceedings, viz. the criminal proceedings and the departmental proceedings, are independent of each other. The order regarding break in service was a consequence of the departmental proceedings, which, in my opinion, shall not be affected by the fact that the petitioner was acquitted in the criminal proceedings. Hence, I find no reasons to interfere in this petition in exercise of the discretionary powers under Article 226 of the Constitution of India.
For the foregoing reasons, the petition is dismissed. Rule is discharged. It is, however, made clear that the petitioner, who has been paid provisional pension so far on account of the pendency of this petition, will be paid regular pension and the respondent - authorities are directed to finalize the same within a period of four months from the date of receipt of writ of this order. With the above direction, the petition stands disposed of."
Reliance placed on the Judgment at page No.62 is misconceived as in the facts of that case, there was clear acquittal and the suspension period was regularized by treating the period as spent on duty. It was under such circumstances that the Court relying on the Circular dated 31.03.1971, directed the authorities to regularize the period.
Evidently, the facts of that case are not applicable to the petitioner's case in view of a categorical dismissal of the petition, wherein, the petitioner had prayed for regularizing of the suspension period which was not accepted by this Court. Only on this short ground, the petition is dismissed with no order as to costs. Notice is discharged.