JUDGMENT
Gyan Sudha Misra, J.
1. The question for consideration in this writ petition is, whether the period of suspension suffered by the petitioner, which has been ordered to be treated as earned leave is a justified order, or whether the same requires interference so as to quash it as illegal.
2. The circumstances under which the aforesaid question requires to be decided are enumerated in its essential details as follows. The petitioner while working as Senior Assistant in the Rajasthan Secondary Education Board was also elected and functioning as President of the Rajasthan Secondary Education Board Employees Sangh, which is registered under the Indian Trade Union Act, 1926. The sangh gave a call for implementation of certain agreement concluded between the management and the staff, to which the Management resisted as a result of which there was a tiff between the management and the petitioner along with his associates consequently, the petitioner and seven others were alleged of some over-act in respect of which a criminal case was lodged. The petitioner and seven other members of the Sangh were arrested by the police and were kept under police custody for more than 48 hours. They were, however, later on released on bail after the judicial custody for the period ranging between 45 to 70 days, A criminal case was instituted also against the associates of the petitioner. This, perhaps, provoked the other staff members to go on strike immediately on arrest of the petitioner and others. The strike was later on called off after an agreement between the management and the Sangh. However, the management under its power under Regulation 19(2) of the Employees Service Regulations, 1972 placed all the 8 employees including the petitioner under suspension vide order dated 8.5.1989 with the stipulation that the employees should report to the Establishment Section of the Board daily during the period of suspension. The order of suspension, however, was subsequently revoked and the order of reinstatement of the suspended employees was passed on 20.7.1984 with the condition that all matters related to the treatment of the suspension of the employees would be decided on receipt of the court’s verdict in the criminal case.
3. The petitioner thereafter failed to report to the Establishment Branch of the Board’s office for daily attendance due to which by letter dated 5.8.1989, the petitioner was asked to explain his absence. He was also required to furnish a certificate of his non-employment during the period of suspension within three days of the receipt of the letter. The petitioner replied to the same and offered explanation and also submitted the required certificate of non-employment.
4. In so far as the criminal case against the petitioner and seven others is concerned, the same was withdrawn as per the decision of the State Government conveyed to the District Magistrate vide letter dated 31.7.1990 and in compliance with the direction, the criminal case was withdrawn and the petitioner was accordingly discharged.
5. On being discharged, the petitioner submitted an application to the respondent requesting to regularise the period of suspension from 8.5.1989 to 20.7.1989 i.e. a little more than a period of two months and to grant him the benefit for the said period. The respondent, however did not accede to the request of the petitioner to that extent but passed an office order on 1.12.1990 to treat the period of suspension of the petitioner which was spent on strike as earned leave i.e. from 8.5.1989 to 18.7.1989 and 19.7.1989 to be sanctioned as earned leave on submission of leave application for period the petitioner did not report for duty.
6. This writ petition challenges the aforesaid order on the averment that in view of the discharge of the petitioner from the criminal case, his suspension ultimately should be held unjustified and the entire period of suspension should be treated as period spent on duty. Reliance in this context has been placed on Regulation 2 of the Service Regulations, 1972 which lays down that if the employee is exonerated or the period of suspension is held to be illegal, he would be entitled for the entire pay for the period of suspension and the said suspension period will also be treated as on duty.
7. The plea of the petitioner has been countered by the respondent Board by giving out the factual details regarding the correctness or otherwise of the strike period, but it is wholly in essential to enter into those details. However, learned Counsel for the respondent was relied upon two decisions of the Supreme Court reported in 1994 (1) SLR 9, Management of Reserve Bank of India v. B.S. Panchal and 1994 Suppl (2) SCC 191, Depot Manager, APSRTC v. V. Venkateswarulu and Ors. which I consider relevant for the purpose of disposal of this writ petition. In the case of Management of Reserve Bank of India (supra) an employee of the Reserve Bank of India (supra) an employee of the Reserve Bank of India was put under suspension on registration of a criminal case who was also convicted by the trial Court after the employee was dismissed. The appellate Court, however, acquitted the employee by giving him the benefit of doubt, as a consequence of which he was reinstated in service after acquittal. But in so far as the question of payment of salary is concerned, it was held by their Lordships that the employee does not automatically get entitled to full pay and allowances for the period of absence from duty, and his absence from duty throughout such period was ordered to be treated as period spent on extra-ordinary leave when the absence is not followed by discharge, termination of service of dismissal. An exception, however, was made only in regard to the fact that the competent authority in each case had to pass an order taking into consideration all the circumstances to treat the period of absence as a period on duty before full pay and allowances became admissible to the employees. This was however, directed in view of the regulation of the Bank in this regard. In the matter of (supra) also a similar question arose as to whether an employee on acquittal from a criminal case is entitled to full salary for the period of suspension or not, and it was held therein that the right to salary has to be determined under Regulation 20(1) and 20(2) by the competent authority who can pass reasoned order after affording opportunity and the authority can also deny full salary on justifiable grounds.
8. In the case at hand, the regulation that has been brought to the notice of the Court is that an employee becomes entitled to his entire salary for the period of suspension provided his suspension is held to be bad for any reason. It would be relevant to bear in mind that in this case, the question is not for payment of wages for the period of suspension but what has been demanded is that the period of petitioner’s suspension should not be treated as earned leave. No rule has been brought to the notice of this Court that the period of suspension ought to be treated as period spent on duty under all circumstances if the same is withdrawn in this case, the petitioner had been directed to report at Board’s office during the period of his suspension after he was granted bail in the criminal case, but the petitioner failed to comply with the said direction on the plea that he was on strike. Even if it is assumed that the strike was legal, there is no provision under the service regulation of the Board that the same shall be treated as on duty even though the employee delied the order of the authority. Hence, the activity of the petitioner or his striking down the work during the strike period cannot be construed as period spent on duty. If the learned Judges of the. Supreme Court have taken the view that even if the exoneration of an employee from a criminal court for certain charges would not automatically hold him entitled for salary for the period under suspension and his absence from duty was directed to be treated as extra-ordinary leave, it is difficult for this Court to hold that the period during which an employee was in judicial custody ought to be treated as period spent on duty. Whether ah employee is entitled for salary for the period of suspension may be a debatable point under the facts and circumstances of a particular case, but in so far as the instant case is concerned the fact remains that the petitioner did not report to the Establishment Branch in spite of such direction. Hence, his absence cannot be treated as a period spent on duty. The respondent authority in its wisdom rightly thought a way out and directed for treating the period of suspension to be treated as earned leave, which is wholly in consonance with the order of the Supreme Court given in the case of management of Reserve Bank of India (supra) and hence cannot be considered unreasonable under the circumstances as arbitrary by any yardstick. Even otherwise, it would be prepostrous, in my opinion, to hold that if an employee is on strike as a trade union leader, the employer should treat that period as period spent on duty. This may lie in the domain of an understanding between the management and its employees, but certainly not in a court of law which is expected to proceed within the legal ambit. Neither service regulation nor legal prudence justify such a contention in this case raised by the petitioner employee.
9. The fall-out of the aforesaid discussion, therefore, is that the impugned order dated 1.12.1990 does not require any interference by this Court. Accordingly, this writ petition is dismissed without any order as to costs.