SCA/4152/1990 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4152 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DILIPBHAI MANGALBHAI MACHHI – Petitioner. Versus BARODA MUNICIPAL CORPORATION & 1 - Respondents ========================================================= Appearance : MR MUKESH H RATHOD for Petitioner. MR PRANAV G DESAI for Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE Date : 21/02/2008 ORAL JUDGMENT The petitioner has preferred this petition claiming the following reliefs :- “(A) to quash and set aside the direction and decision of SCA/4152/1990 2/5 JUDGMENT Respondent No.2 for treating the suspension period as leave without pay vide office-order dated 24.12.87, by way of issuing writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court deems fit and proper in the interest of justice; (B) to direct the Respondent No.2 to pay the full salary for the total suspension period treating the petitioner as spent on duty for all the purposes and whatever amounts are required to give to the petitioner, kindly direct the Respondent No.2 to pay with interest at the rate of 12% p.a. with retrospective by way of issuing writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court deems just and proper in the interest of justice; (C) Kindly grant interim relief as per prayer (B) by way of ad-interim relief in the interest of justice; (D) The petitioner may be awarded the costs. (E) Any other relief that the Honourable Court deems just and proper may be passed.” 2. The petitioner joined the respondent-Municipal Corporation as a Sypoy w.e.f. 23.12.1979. He was charged to have accepted a bribe of Rs.1/- somewhere in October, 1981 from the driver of Truck No. GTF-2419, and on the basis of that charge, prosecution was launched against him and one Kanubhai Babarbhai Patel. The petitioner came to be suspended by order dated 6.11.1981 pending the criminal proceedings. During the suspension period, he was ordered to SCA/4152/1990 3/5 JUDGMENT be paid subsistence allowance as per the Rules. The petitioner faced the prosecution along with Kanubhai Babarbhai Patel and came to be acquitted by judgment of the learned Special Judge, Baroda in Special Case No. 1 of 1983, dated May 30, 1983. Against the said acquittal, an appeal bearing Criminal Appeal No.908/83 was preferred before this Court. The petitioner was continued under suspension during the pendency of the appeal. This Court by judgment dated 28th July, 1987 dismissed the said appeal, confirming the order of acquittal of the learned Special Judge. The petitioner, therefore, moved for revocation of his suspension and pay for the period of suspension, which has been denied to the petitioner. Hence, this petition. 3. It is not in dispute that co.employee and co.accused of the petitioner i.e. Mr.Kanubhai Babarbhai Patel also underwent the same ordeal, and like the petitioner, he also preferred a writ petition before this Court bearing Special Civil Application No. 4136/1990, which came to be disposed of by judgment and order dated 4.8.2004 by the coordinate Bench of this Court. It is also not in dispute that the said judgment has attained finality the Corporation having chosen not to challenge the said order before any higher forum. SCA/4152/1990 4/5 JUDGMENT 4. By the said judgment, the coordinate Bench while quashing and setting aside the order of the respondent-Corporation directed the respondent-Corporation to treat the period of suspension in the case of the said petitioner, upon clear acquittal from the criminal case, as on duty with full salary and continuity of service, without any break. The Court also held that the orders were evidently and unambiguously violative of the principles of provisions of Articles 14 & 16 of the Constitution of India. This petition is founded on identical facts. Therefore, merits to be accepted by issuing identical directions. 5. The petition is allowed. The impugned order of the respondent-Municipal Corporation is hereby quashed and set aside. The respondent-Corporation is directed to treat the period of suspension of the petitioner as on duty, resulting in full payment of salary or wages to the petitioner for the period of suspension, taking into account the subsistence amount paid to the petitioner. This exercise would be undertaken within a period of two months from the date of receipt of copy of this order. Rule is made absolute. No costs. [A.L.DAVE,J.] SCA/4152/1990 5/5 JUDGMENT (patel)