1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4065 OF 1994. Vishwanath S/o Narayan Dhole, Age 48 years, Occ. Service, R/o Pathardi, Tal. Pathardi, Dist. Ahmednagar. ... Petitioner. Versus 1. The State of Maharashtra. 2. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 3. The Education Officer (Primary), Zilla Parishad, ... Respondents. Ahmednagar. ... Mr.N.K.Kakade, advocate for the petitioner. Mrs.S.D.Shelke, Asstt.Govt. Pleader for the State. Mr.S.T.Shelke, advocate for the Respondent No.2. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 23.06.2010. 2 ORAL JUDGMENT (Per S.V.Gangapurwala,J.) 1. By the present petition, the petitioner seeks directions against the Respondent Nos.2 and 3 to pay full arrears of pay and allowances with other benefits to the petitioner for the period of suspension. 2. The petitioner is an employee of the Respondent No.2. 3. On 29.9.1987, the petitioner was suspended on account of Criminal case lodged against him. Thereafter, the petitioner was convicted for the offence punishable U/s 325 read with Section 34 of the I.P.C. by the Sessions Judge, Ahmednagar in Sessions Case No.5/1988. The petitioner preferred appeal to the High Court against said conviction. In the meantime, the petitioner was terminated in view of the said conviction. The petitioner challenged the said termination by filing Writ Petition before this Court and this Court set aside the termination and directed that till the decision in appeal and 3 till the time he is reinstated, he be kept under suspension. 4. The High Court allowed the appeal filed by the petitioner and set aside the conviction. Thereafter on 4.12.1992, the petitioner was reinstated. 5. According to the petitioner, during this period i.e. from 29.9.1987 till 4.12.1992, he has been paid 50% of the salary as a subsistence allowance and he should be paid the difference of the amount of the salary due to him for the said period. 6. The provisions of the Maharashtra Civil Services (Joining Time Foreign Service and Payment during Suspension, Dismissal and Removal) Rules, 1981 (hereinafter referred to as the said Rules) are applicable to the present case. The petitioner relies on Rule 70 for the purpose of grant of full salary during suspension period. The said provision is not applicable to the present case but the present case would be 4 governed by Rule 72 of the said Rules. Mr.Kakade, learned counsel for the petitioner contended that even according to the said Rule 72, the petitioner would be entitled for full salary during the said period of suspension. He relied on judgment of this Court in case of "Dattatraya Vasudeo Kulkarni Vs. Director of Agriculture, Maharashtra and others" 1984 BCI 35. In the said judgment, the Division Bench of this Court was concerned with Rule 152 of the Bombay Civil Services Rules. The provisions of the said Rule 152 are not analogous with the present Rule 72 with which we are concerned. Rule 152(A) of the said Bombay Civil Services Rules mandate that in the event the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of law and such Government servant is reinstated without holding any further inquiry, the period of absence of duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to directions if any by the Court, whereas sub-rule (5) of Rule 72 of the present Rules gives 5 discretion to the authority and further puts an embargo on the said discretion, by laying down a condition that the said employee shall not be paid the whole of the amount. Sub-Rule (5) of Rule 72 reads thus : "(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspenses, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice." 6 In pursuance of the said Rule, the authority has exercised his discretion and passed the order impugned in the present petition. 7. Moreover, the suspension was not on account of any act on the part of the Department but the same was the act of the petitioner himself as he was facing Criminal prosecution and he was even convicted. Sub-rule (3) of Rule 72 would come into operation only if the suspension was wholly unjustified. In this case as observed, the suspension was on account of own volition of the petitioner and it can not be said that the suspension was unjustified. 8. Even the Apex Court in case of "Union of India and others Vs. Jaipal Singh" 2003 AIR SCW 6635, has observed that reinstatement of an employee on account of subsequent acquittal, the back wages can not be granted as department can not be found fault with for having kept him out of service. In this case also, he was under suspension when the prosecution was pending against him and subsequently he was convicted. 7 Only in an appeal, the petitioner was acquitted and because of these facts the petitioner was under suspension. As such no fault can not be found with the order impugned by the petitioner. 9. In the result, the Writ Petition being devoid of any merits and is dismissed. Rule discharged. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp406594