JUDGMENT 1. - The petitioner who is an Ex-constable of the police department of the State of Rajasthan and last served in the office of the Superintendent of Police, Rural District, Kota respondent No. 4, has filed this writ petition under Article 226 of the Constitution of India on the grounds inter alia that the petitioner had joined the police service of the State as a constable in District, Kota in 1980 and served in the said capacity in Rural District Kota till 1985. On 10.5.1985 the petitioner after obtaining verbal permission of the Superintendent of Police, Rural District Kota went to attend the marriage of one of his relatives in Madhya Pradesh. On the same day, the petitioner was reported absent from duty by his Head Constable Incharge and his absence was recorded in the Rojnamcha of police lines, Kota (Rural). It has further been contended by the petitioner that while he was returning hoe after attending the marriage alongwith a co-constable Gurmeet Singh on a motor-cycle of one of their acquaintance, all the three of them were arrested by the police Neemuch, Madhya Pradesh on 15.8.1985 on the allegations that the motor-cycle on which he was travelling alongwith others was stolen property. It has further been stated in the writ petition that the petitioner had, in any manner, no concern with the theft of the motor-cycle and has innocently taken the lift on its pillion when he was arrested by the local police alongwith co-constables Rajendra and Gurmeet Singh. 2. Soonafter having been informed of the aforesaid incident, the Superintendent of Police (Rural) Kota placed the petitioner and co-constable Gurmeet Singh under suspension vide order No. 286 dated 15.5.1985 (Annexure 1) in respect of an offence under Section 379 Indian Penal Code. 3. Perusal of the suspension order reveals that the petitioner alongwith Gurmeet Singh were entitled to half of the pay and allowances admissible under the rules and during the suspension period their Headquarters was to be at the police lines (Rural) District Kota and they would not leave the Headquarters without obtaining prior permission of the competent authority. 4. 3. Perusal of the suspension order reveals that the petitioner alongwith Gurmeet Singh were entitled to half of the pay and allowances admissible under the rules and during the suspension period their Headquarters was to be at the police lines (Rural) District Kota and they would not leave the Headquarters without obtaining prior permission of the competent authority. 4. The petitioner was enlarged on bail during the said period by Munsiff & Judicial Magistrate, Neemuch on 11.10.1985 and thereafter he reported on duty at the police lines (Rural) Kota whereupon he was informed that he had already been placed under suspension by the Superintendent of Police (Rural) Kota vide Annexure 1. The petitioner remained in the police lines as per the orders and drew his subsistence allowance every month with effect from the date of suspension, which fact is borne out from the record. Thereafter on 5.7.1986 the petitioner received a memorandum alongwith a charge-sheet containing the allegations that the petitioner had abstained from attending duty ever since 10.5.1985 vide Annexures 2 and 3 respectively. 5. The petitioner pleaded not guilty to the charge and thereafter a regular inquiry was directed to be initiated against the petitioner by the competent authority and an enquiry officer was appointed. Enquiry was conducted and the petitioner appeared before the enquiry officer who after recording his findings submitted the enquiry report to the disciplinary authority. It has further been contended by the petitioner that after serving due notice in accordance with Article 311(2) of the Constitution of India the petitioner was dismissed from service vide order dated 5.6.1987 (Annexure 4) which has been challenged by the petitioner in this writ petition. Thereafter the petitioner preferred an appeal against the order of his dismissal from service to the appellate authority viz. Deputy Inspector General of Police Kota Range (respondent No. 3) which was rejected by the said authority on 24.6.1988 vide Annexure 5. The petitioner preferred a review before H.E. the Governor of Rajasthan against the order of his dismissal from service as well as the order of appellate authority dated 10.3.1989. It has further been contended in the petition that after the lapse of over three years till the date of filing this writ petition. The petitioner preferred a review before H.E. the Governor of Rajasthan against the order of his dismissal from service as well as the order of appellate authority dated 10.3.1989. It has further been contended in the petition that after the lapse of over three years till the date of filing this writ petition. i.e. 17.3.1993 the petitioner has not been communicated the result of his review petition and the petitioner has reasonable grounds of apprehension for believing that his review petition has either been rejected or has been disposed of. It is under the above circumstances that the petitioner has filed the present writ petition before this Court on the grounds inter alia: (A) That under the CCA Rules, the Superintendent of Police, respondent No. 4, was not empowered to impose major penalty of dismissal from service on the petitioner in absence of delegation of powers on the said authority under Rule 15 of the Rules. (B) That under the orders of State Government issued on 17.10.86 respondent No. 4 had only been delegated powers to impose penalty of stoppage of two grade increments without cumulative effect and the major penalty of dismissal from service was not warranted keeping in view the facts and circumstances of the case. (C) That on 10.5.85 the petitioner had gone to attend the marriage of a relative in his family after obtaining necessary permission from the competent authority and since during the said period the petitioner was implicated in a case of theft of a motor-cycle as referred to above alongwith co-accused by local police Neemuch on 14.5.85 and subsequently enlarged on bail, information regarding his arrest had already been received by respondent No. 4 as is evident from Annexure 1 on the basis of which the petitioner was placed under suspension by the competent authority vide order dated 15.5.85 (Annex.5) (D) That it was not within the powers of the petitioner to have resumed his duties during the aforesaid period, since he had been remanded to judicial custody and hence he was prevented from attending his duties on account of circumstances beyond his control. (E) That because the absence during the aforesaid period cannot be treated as wilful absence from duty, since it was not the deliberate act of the petitioner to have remained absent from duty but he was prevented by a sufficient cause from attending the duty, hence the order of suspension dated 15.5.85 levelling charges of his remaining absent from duty till 5.7.86 was void ab initio, illegal and mala fide. (F) That soon after his release on bail on 11.10.85 the petitioner reported back for duty in the police lines, Kota where he continued to remain present as directed and had also been drawing regular subsistence allowance etc. thereafter. (G) That during the period 10.5.85 to 14.5.85 when the petitioner was detained by Neemuch police on the alleged charge of theft alongwith two others was after obtaining permission of the competent authority and hence cannot be construed as wilful absence from duty. (H) That the impugned order of dismissal from service is illegal, ultra vires and against the principles of natural justice, since the petitioner was not afforded any opportunity of personal hearing by the competent authority and the impugned order was passed during the absence of the petitioner. 6. In the reply to the show cause notice the respondents while controverting the contentions as advanced by the petitioner alongwith the grounds as referred to above, have contended inter alia that on 10.5.85 the petitioner was deputed to attend duty as constable in the office of the Superintendent of Police, Kota (Rural), respondent No. 4, and on the same day he was relieved at 12 noon by Jariram, Head Constable No. 143 and the petitioner was directed to report in the office of respondent No. 4 but the petitioner failed to attend the office and absented himself from duty. It has further been contended that since the petitioner had not reported for duty as aforesaid, he was rightly shown absent from duty by his Head Constable In-charge in the Rojnamcha of police lines, Kota. With regard to the theft case registered with Neemuch police under Section 379 Indian Penal Code, it has been contended that the petitioner is still facing trial in a court at Neemuch. With regard to the theft case registered with Neemuch police under Section 379 Indian Penal Code, it has been contended that the petitioner is still facing trial in a court at Neemuch. The respondents have further supported the validity of the suspension order dated 15.5.85 while the respondents have not disputed this fact that the petitioner was enlarged on bail by Munsif-cum-Judicial Magistrate, Neemuch and during the intervening period the petitioner remained absent in the police lines, Kota an account of having remained in judicial custody during the aforesaid period. 7. On merits, the respondents have contended that the writ petition is not maintainable and that the petitioner was rightly dismissed from service vide impugned order, dated 5.6.1987 (Annex 4). Hence the absence of the petitioner from duty even though it was beyond the control of the petitioner due to circumstances as narrated above, has not been accepted as a sufficient and cogent explanation of the petitioner for his absence from duty during the aforesaid period and it has been taken a wilful absence from duty for which both the competent authority as well as the appellate authority have justified the imposition of major penalty of dismissal from service as the penalty which was in consonance with the charge levelled against the petitioner. 8. I have heard learned counsel for the parties at length, examined their rival claims and contentions as well as the legal position on the subject and the Rules pertaining thereto. 9. 8. I have heard learned counsel for the parties at length, examined their rival claims and contentions as well as the legal position on the subject and the Rules pertaining thereto. 9. Prima facie I am of the view that the imposition of major penalty of dismissal from service on the petitioner was neither justified nor warranted keeping in view the facts and circumstances of the case and also the fact that the petitioner had taken leave to attend the marriage of his relative at Neemuch in Madhya Pradesh and the said leave was duly sanctioned by the competent authority, respondent No. 4 as on 10.5.85 to 15.5.85 and it is during the said period that the petitioner happened to be a victim of involvement in the alleged theft case which was registered at P.S. Neemuch since the petitioner happened to take lift on the pillion on the motor-cycle alongwith his colleague, which happened to be stolen and which in any case, should not be treated as petitioner's wilful absence from duty since the petitioner had taken lift on the said motor-cycle innocently not knowing it to be a stolen property alongwith his two colleagues, namely, Rajendra and Gurmeet Singh who too were implicated for the alleged theft of the motor-cycle by Neemuch police. It has not been disputed by the respondents in their reply that the trial of the petitioner and the co-accused in the said theft case in still pending before the competent court at Neemuch and the decision of the said court it still awaited. It has further not been disputed that the petitioner was arrested by Neemuch police in pursuance of FIR lodged with the police Neemuch and was placed under suspension vide order dated 15.5.85 and the petitioner was released from judicial custody on 11.8.86 while charge-sheet was served on the petitioner on 5.7.86 and the order of dismissal from service Annex. 4 was passed against the petitioner on 5.6.87. 10. 4 was passed against the petitioner on 5.6.87. 10. It was contended by the learned counsel for the petitioner that it was not possible for the petitioner to have attended his duty during the period in question, i.e., 10.5.85 to 14.5.85, since during the said period the petitioner had gone to attend the marriage of his relative at Neemuch after applying for leave to the competent authority, respondent No. 4 and the petitioner happened to be implicated in a theft case under Section 379 Indian Penal Code with police station, Neemuch in the circumstances as referred to above and hence it was impossible for the petitioner to have reported for duty on 15.5.85 at the police lines, Kota, since he was in judicial custody pursuant to his arrest on 14.5.85 hence it will be illogical to assume against the petitioner that the had deliberately remained absent from duty. It was further contended that the order of suspension of the petitioner, dated 15.5.85 was passed during the absence of the petitioner and it was directed that the petitioner and the co-accused Gurmeet Singh shall be entitled to subsistence allowance as per Rules and shall remain at the police lines, Kota during the period of suspension. It was contended by the learned counsel in this regard that during the suspension period, an employee cannot be forced to attend duty though the petitioner remained present throughout the period of suspension at the Headquarters as directed. It was further contended by the learned counsel for the petitioner that the respondents have failed to prove violation of any Rule by the petitioner during the suspension period. 11. With regard to the contentions of the learned counsel for the petitioner that the alleged period of wilful absence from duty is not sustainable under any law. I am of the view that the contention of the learned counsel merits consideration by this court in view of the fact that it was in view of the circumstances beyond control of the petitioner that he was unable to report for duty on 15.5.85 since he was on leave duly sanctioned by the competent authority for the period 10.5.85 to 14.5.85 and since the petitioner was arrested on 14.5.85 in a theft case by Neemuch police, it would be illogical to assume that the petitioner could have reported for duty immediately on 15.5.85. 1 am further of the view that during the suspension period an employee cannot be forced to attend duty and it is the duty of the competent authority to initiate enquiry at the earliest against the delinquent employee without any delay and in this case the suspension order was passed against the petitioner on 15.5.85 vide Annex 1, while the charge-sheet was served on the petitioner on 5.7.86 vide Annex. 2 under Rule 16 of the Rules and the order imposing penalty of dismissal from service was passed against the petitioner by the competent authority on 5.6.87 vide Annex. 4 with inordinate delay of over two years reckoned from the date of suspension for which no plausible justification has been furnished on the record by the respondents. In this regard I am of the view the maximum period for which the petitioner could have been placed under suspension should not have exceeded six months and the competent authority should have immediately served the statement of allegations against the delinquent employee during the aforesaid period so that he could have been given reasonable opportunity of preparing his defence to rebut the imputation of charge against him by rendering all relevant evidence in this regard before the enquiry officer. I am further of the view that in this case the enquiry officer was appointed by the competent authority to conduct the enquiry against the petitioner and the co-accused belatedly on 24.9.86 with inordinate delay exceeding one year in gross violation of the principles of natural justice, equity and fair play. 12. With regard to the imposition of major penalty of dismissal from service on the petitioner as per Annex. 4 dated 5.6.87, I am of the view that the imposition of the said penalty is most unwarranted, since the same is not commensurate with the nature of alleged irregularity of reported absence from duty during the disputed period against the petitioner. In this regard I am of the view that maximum penalty which should have been imposed on the petitioner was stoppage of two grade increments with or without cumulative effect under Rule 17 of the Rules keeping in view the nature of alleged irregularity of reported absence from duty rather than imposing the major penalty of dismissal from service in accordance with rule 16 of the rules. Under Rule 17 of the Rules a procedure has been provided for imposing penalty which should have been followed by the respondents in the instant case by giving prior intimation in writing of the proposed action to be taken against the delinquent by affording him adequate opportunity to make any representation in this regard. Even in the case of imposing minor penalty of stoppage of 2 or 3 grade increments without cumulative effect, proper enquiry has to be initiated against the delinquent and the said penalty can be imposed on the delinquent after initiating an inquiry in accordance with the rules and after having given an adequate opportunity of personal hearing to the delinquent by the disciplinary authority. 13. I am fortified in my observations from the following decisions of the Apex Court as well as this court : Ex Naik Sardar Singh Vs. Union of India and others, AIR 1992 Supreme Court 417 , Bhagatram Vs. State of Himachal Pradesh & Ors., AIR 1983 Supreme Court 454 , Chitranjan Ghos Vs. I.G. of Police, West Bengal & Others, 1979 (2) SLR 194 and Asharam Birla Vs. G.M. Rajasthan Cooperative Dairy Federation Ltd., 1983 SLR 687 . In the matter of Bhagatram Vs. State of H.P. & Others (supra) the Apex Court held that while dealing with petition under Article 226 of the Constitution of India, the High Court does not function as a court of appeal over the findings of disciplinary authority, but where the finding is per se perverse or illegal the court can always interfere with the same. The appeal of the delinquent was accordingly allowed by the Apex Court and the impugned order passed by the competent authority dismissing the employee from service was quashed and set aside with the directions that the appellant be reinstated in service and the period between the date of termination of service and 'reinstatement shall be treated as period spent on duty. Likewise in the matter of Union of India Vs. Likewise in the matter of Union of India Vs. H.C. Goyal : AIR 1964 Supreme Court 363, the Apex Court while dealing with similar situation observed as under : "In dealing with writ petitions filed by the public servants who have been dismissed, or otherwise dealt with so as to attract Article 311 (2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order, nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari for instance can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal is based on evidence." Accordingly the Apex Court held in the above case that since the delinquent was not afforded reasonable opportunity to defend himself and consequently the enquiry as well as the order of removal from service were set aside as being vitiated. The Apex Court while dealing with the question as to whether the imposition of major penalty of dismissal from service imposed by the competent authority as well as rigorous imprisonment for three months on an Army Jawan who has been found in possession of 7 extra bottles of Rum within the area under prohibition while going to home town, having valid permit to carry 5 bottles held that the imposition of the major penalty as referred to above was not justified. Hence the order of removal from service was set aside by the Apex Court being severe, arbitrary and violative of Section 72 of the Indian Army Act (46 of 1950) and the case was remanded for re-trial to the court martial. Hence the order of removal from service was set aside by the Apex Court being severe, arbitrary and violative of Section 72 of the Indian Army Act (46 of 1950) and the case was remanded for re-trial to the court martial. It was further held by the Apex Court that having regard to the provisions of law and the nature of offence, the punishment of removal from service and rigorous imprisonment for 3 months imposed on the delinquent by the competent authority, was not justified.In the matter of Chitranjan Ghose Vs. I.G of Police, W.B. & others (supra) the Calcutta High Court while dealing with a proposition arising out of a case involving the interpretation of Section 7(B) of the Bengal Police Regulations, 1943 read with Article 311 of the Constitution of India held that during the period an employee was placed under suspension by the competent authority pending enquiry, the said employee is not liable to render any service or perform any duty if directed by the competent authority since he is prevented from performing duties of the public office on account of his suspension.Likewise in the matter of Asharam Birla Vs. G.M. Rajasthan Cooperative Dairy Federation Ltd. (supra) this court while dealing with a revision petition preferred by an employee of the Federation, held that in absence of a Rule, bye-law or general order, authority suspending an employee cannot direct him to render any service or to perform any duties since he is prevented from performing active duties to the employer on account of his suspension. Employer is not under obligation to make payment of wages during that period while the employee is not under any obligation to work or attend his duties since he is only entitled to the payment of subsistence allowance under the rules. It was further held that suspension of the employee merely suspends the contract of service 'but the same still subsists and is not put to an end. 14. I am of the view that the ratio of the above decisions of the Apex Court as well as of the High Courts as referred to above, are fully applicable to the instant case, since the competent authority, respondent No. 4, was not justified in imposing major penalty of dismissal from service vide Annex. 4 dated 5.6.1987. 14. I am of the view that the ratio of the above decisions of the Apex Court as well as of the High Courts as referred to above, are fully applicable to the instant case, since the competent authority, respondent No. 4, was not justified in imposing major penalty of dismissal from service vide Annex. 4 dated 5.6.1987. Keeping in view the nature of irregularity of reported absence from duty for the disputed period as referred to above, maximum penalty which could have been imposed by the competent authority on the petitioner was the stoppage of one or two grade increments with or without cumulative effect by adopting the procedure as laid down under Rule 17 of the Rules instead of awarding major penalty of dismissal from service under Rule 16 of the Rules. 15. With regard to implication of the petitioner alongwith co-accused in a theft case under Section 379 Indian Penal Code registered with the police station, Neemuch, Madhya Pradesh, final decision of the court on the basis of adjudication in the said case is still awaited and in absence of the decision of the trial court convicting or acquitting the accused it will be totally illogical to arrive at the conclusion that the petitioner has been found guilty of the alleged offence. The respondents have failed to adduce any evidence in this regard before this court during the course of hearing of this writ petition, hence the gravity of the punishment which has been imposed on the petitioner resulting in his dismissal from service by respondent No. 4 is not commensurate with the nature of the charge, i.e., (a) theft of motorcycle under Section 379 Indian Penal Code and (b) the alleged absence from duty the aforesaid period for which the petitioner had given due intimation to the competent authority for sanction of his leave applied for. 16. As a result of the above discussion the writ petition is accordingly partly allowed and the impugned order dated 5.6.1987, Annexure 4, is quashed and set aside. Major penalty of dismissal from service is directed to be substituted by the imposition of minor penalty of stoppage of one grade increment without cumulative effect. The disputed period of absence of the petitioner from duty shall be treated as period spent on duty. Major penalty of dismissal from service is directed to be substituted by the imposition of minor penalty of stoppage of one grade increment without cumulative effect. The disputed period of absence of the petitioner from duty shall be treated as period spent on duty. The respondents are directed to reinstate the petitioner in service with all consequential benefits which may be admissible to him in accordance with rules. There will be no order as to costs.Petition partly allowed. *******