1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5447 OF 2010 Subhash Vithalrao Jikre Age : 59 years, Occ : Service as Parichar, Veternary Aid Centre, Mandava, Tq.Washi, Dist.Osmanabad. ..PETITIONER VERSUS- 1. The State of Maharashtra Through Secretary, Urban & Rural Development Department, Mantralaya, Mumbai. (Copy to be served on Government Pleader, High Court Aurangabad). 2. Additional Divisional Commissioner, Aurangabad. 3. Chief Executive Officer, Zilla Parishad, Osmanabad. ..RESPONDENTS ......... Mrs.M.A. Kulkarni, advocate for petitioner. Mr.S.V. Kurundkar, Addl. G.P. for respondent nos.1 and 2. Mr.S.B. Ghute, advocate for respondent no.3. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 21 st July, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. Petitioner-Zikre Subhash Vithalrao was allegedly 2 found to have committed certain acts of misconduct and dereliction in the duty. He was avoiding work assigned to him. He used to remain absent without grant of leave. At a times, he was found attending duty under influence of alcoholic preparation. Therefore, the Chief Executive Officer of Zilla Parishad initiated departmental proceedings against him for imposing minor penalty. The petitioner was suspended for period of about four months w.e.f. 8th May, 2005. The Chief Executive Officer held that the suspension period shall not be treated as qualified service period and moreover, one annual increment shall be withheld permanently which affect with further increments. This order of penalty was challenged by the petitioner by filing appeal. The learned Divisional Commissioner, Aurangabad dismissed the appeal. The petitioner thereafter preferred Revision Application. The Revision Application is dismissed on the ground that it is not maintainable in view of the nature of penalty imposed on petitioner. 3. Heard learned counsel for the parties and learned A.G.P. 4. It is not necessary to elaborately deal with the merits of the impugned order as regards the penalty awarded to the petitioner in respect of stoppage of one increment forever. The 3 learned counsel for petitioner would submit that the petitioner does not want to challenge the said order pertaining to minor penalty of stopping of one increment permanently which affect on future increment. The learned counsel for petitioner, however, would submit that the order of treating suspension period as service inadmissible for any purpose, including future purpose of counting qualifying service, is bad in law. She would submit that Revision could be entertained by the State Government under Rule 15 of the Maharashtra Zilla Parishad and District Services (Discipline and Appeal) Rules, 1964. Whether, the Revision Application could be entertained or not may not be considered as significant issue for the purpose of deciding the present Petition. 5. Rule 3(b) of Maharashtra Zilla Parishad and District Services (Discipline and Appeal) Rules, 1964 empowers the appointing authority to place the employee under suspension in contemplation of disciplinary enquiry. It is necessary, therefore, to consider scope of the powers available under Rule 3(1). Ordinarily, the employee can be placed under suspension in contemplation of disciplinary proceedings, if it is proposed that the action for awarding major penalty is necessary. The suspension can be also ordered when the criminal offence is registered against the employee and same under investigation. Neither of the criteria 4 could be applied in the present case. It is nobody's case that the petitioner was facing any criminal action. It has come on record that the blood test of the petitioner was not carried out in order to ascertain whether he had consumed alcoholic preparation. It is for such a reason that minor penalty was imposed without considering the misconduct for imposing of major penalty. Nobody, will justify attending duty in the state of intoxication. It is important to note that under Rule 4, the suspension can not be treated as penalty. What appears from the impugned order rendered by the Chief Executive Officer is that while treating the suspension period as inadmissible for any future purposes, including for counting of qualifying service, no substantial reasons are given. Infact, such order tantamounts to break in service. The petitioner could not be deprived of continuity of service for counting of the period as qualified service though he was not entitled to claim pay for the relevant period. Needless to say for the same act of misconduct double punishment is awarded to him. Firstly, the suspension period is treated as break in service, and secondly, one increment is permanently withheld with impact on eligibility to earn future increments. In this view of the matter, the petitioner was entitled to make representation or to file appropriate revision application seeking modification of the impugned order. 5 6. Considering the aforegoing reasons, the Petition is partly allowed. The impugned order to the extent of disregarding the service during the suspension period as a qualified service for future purpose is set aside. The remaining part of the impugned order, however, is maintained. Rule made absolute accordingly. The petition is disposed of. (V.R.KINGAONKAR) JUDGE gas/wp5447.10