RAMANBHAI PARSHOTTAMBHAI HARIJAN Vs. DISTRICT DEVELOPMENT OFFICER

JUDGEMENT

(1.) The petitioner was appointed as a Talati-cum-Mantri in the year 1971. In 1988, the petitioner was suspended on the ground that the petitioner had committed misappropriation of a sum of Rs.2175.00. A criminal case was filed against the petitioner and the petitioner was charge sheeted in Criminal Case No. 622 of 1989. However, by judgment dated 23.4.1992, the petitioner was acquitted. While the petitioner came to be reinstated in service in view of the aforesaid order of acquittal, the Deputy District Development Officer, Surat i.e. the disciplinary authority held departmental inquiry and passed order dated 3.3.1993 under Rule 5(4) of the Gujarat Panchayat (Disciplinary & Appeal) Rules, 1964 imposing the penalty of stoppage of two increments with future effect. The Deputy District Development Officer also passed order dated 30.6.1993 regularizing the period of suspension from 12.5.1988 to 7.4.1993 as period of leave under Rule 152 of the BCSR. Thereafter, the Taluka Development Officer, Valsad passed consequential order dated 29.6.1995 (Annexure "B") regularizing the period of suspension as leave without pay between 27.3.1989 to 7.4.1993 after adjusting the period from 12.5.1988 to 26.3.1989 against leave with pay and leave with half pay. The Taluka Development Officer by the same order also directed recovery of the amounts paid to the petitioner as subsistence allowance during the period of suspension from 27.3.1989 to 7.4.1993. It is the said order dated 29.6.1995 (Annexure "B") which came to be challenged before the District Development Officer, Surat who dismissed the appeal on 22.1.1998 (Annexure "C"). The petitioner carried the matter in further appeal being Appeal No. 197 of 1999 before the Gujarat Civil Services Tribunal. The Tribunal also dismissed the appeal by judgment dated 25.8.2003 (Annexure "D") which is challenged in this petition, purporting to be one under Articles 226 and 227 of the Constitution, but which is in substance a petition under Article 227 of the Constitution.

(2.) Rule 151(1) of the BCSR provides that a Government servant under suspension is entitled to a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay; with a proviso that where the period of suspension exceeds six months the authority may vary the amount of subsistence allowance by increasing it upto 50% of the subsistence allowance admissible during the period of the first six months. The instructions below Rule 151 specifically provide that subsistence allowance shall not paid unless the Government servant furnishes a certificate that he did not accept any private employment or engage himself in trade or business during the period in question and in case of doubt, the authority may get such certificate verified and in case the certificate is found to be a false one that itself would amount to an act of misconduct and made an additional charge against him. Rule 152 of the BCSR reads as under :-

(3.) The short question arising for consideration in this petition is whether the disciplinary authority has the power to recover the amount/s of subsistence paid to an employee during the period of suspension under Rule 151 BCSR, while passing orders for regularizing the period of suspension under Rule 152 BCSR.