JUDGMENT D. P; Kundu, J. By virtue of an order of suspension dated 4.12.1980 the petitioner who is an employee of respondent no. 1, which is a Government of India undertaking was placed under suspension' on the ground that a disciplinary proceeding against him was contemplated. The petitioner is still under suspension though during these long sixteen years no disciplinary proceeding has been initiated against him by issuing charge sheet. Question for decision is whether suspension of the petitioner can still continue on the ground that a criminal case is pending against him though that was not the ground for placing the petitioner under suspension. 2. Admittedly the service conditions of the petitioner are guided by IDPL Conduct, Discipline and Appeal Rules, 1978 (hereinafter referred to as Discipline and Appeal Rules). Rule 20 (1) of the Discipline and Appeal Rules confers power upon the authorities to place an employee under suspension. The said Rule 20 (1) reads as follows : "Rule No. 20. Suspension. 1. The appointing authority or any authority to which it is subordinate or the disciplinary authority empowered in that behalf by the Management by general or special order may place an employee under suspension- (a) where a disciplinary proceedings against him is contemplated or is pending; or . (b) where a case against him in respect of any criminal offence 'is under investigation or trial." 3. The relevant lines of the order of suspension dated 4.12.1980 read as follows: "Whereas a disciplinary proceeding against Shri Samir K. Roychowdhury, Store Clerk, Regional Sales Manager's Office, Calcutta, is contemplated. Now, therefore, the undersigned in exercise of the powers conferred under Rule 20.1 of IDPL-Conduct, Discipline & Appeal Rules, 1978 hereby places the said Shri Samir K. Roychowdhury under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force the headquarters of Shri Samir K. Roychowdhury shall be at Calcutta and the said Shri Samir K. Roychowdhury shall not leave the headquarters without obtaining the previous permission of the undersigned." 4. Admittedly no disciplinary proceeding has yet been initiated against the petitioner by the issuing a charge-sheet. It is a fact that a criminal case is pending against the petitioner. 5. The ld. Admittedly no disciplinary proceeding has yet been initiated against the petitioner by the issuing a charge-sheet. It is a fact that a criminal case is pending against the petitioner. 5. The ld. Advocate for the petitioner argued that when the petitioner was placed under suspension on the ground of contemplated disciplinary proceeding then continuation of such suspension for a long period of sixteen years without actually initiating any disciplinary proceeding against the petitioner by issuing charge-sheet makes the continuation of suspension illegal and arbitrary. The ld. Advocate for the petitioner argued that such continuation of suspension also violates Arts. 14 & 21 of the Constitution of India. It was also contented on behalf of the petitioner that exercise of power by putting an employee under suspension on the ground of contemplated disciplinary proceeding without being followed by initiation of a departmental proceeding is bad in law. . 6. In the affidavit-in-opposition filed on behalf of the respondents no. 1, 2,3 & 4, affirmed by Shri Anil Kapoor, Regional Manager of the respondent no.1 on 11.7.1991 the respondents stated that the writ petitioner had been a party to a fraud whereby he appeared to have fraudulently and dishonestly misappropriated medicines as well as funds of the respondent no.1 by falsifying and forging the records of the Regional Sales Office of the respondent no.1 at Calcutta and by abusing his official position and thereby defrauding the respondent no. 1 to the tune of lacs of rupees. It was further stated that the Central Bureau of Investigation (for short CBI) after thorough investigation of the matter filed a charge-sheet against the petitioner in the 5th Additional Special Court at Calcutta under s. 120B read with Ss. 409, 467, 471, 477A of the Indian Penal Code, 1860 and also under s. 5(2) read with s. 5(1)(c) and (d) of the Prevention of Corruption Act, 1947 which is pending disposal. It was further stated that during the course of such investigation by CBI large number of documents pertaining to the matter were seized by the said authority and the respondent thought fit not to proceed against the petitioner departmentally during the pendency of the criminal investigation and the proceedings against the petitioner. The respondents further stated that the criminal proceedings filed by CBI against the petitioner is pending disposal and its outcome is awaited by the respondent no.1. The respondents further stated that the criminal proceedings filed by CBI against the petitioner is pending disposal and its outcome is awaited by the respondent no.1. The respondents further stated that during the period of his suspension, the petitioner is being paid subsistence allowance as is admissible under the Conduct, Discipline & Appeal Rules, 1978 of the respondent no. 1. The respondent further stated that the continuance of the suspension order passed against the petitioner is justified in the facts and circumstances of the case. 7. In paragraph 8 of the affidavit-in-opposition the respondents, inter alia, stated as follows : "I say that the petitioner has been kept under suspension in the facts and circumstances stated hereinabove, namely, the pendency of the criminal proceedings against him. During the pendency of the criminal investigation by CBI and/or pendency of criminal proceedings against the petitioner, it was thought fit by the management of the respondent no. 1 not to initiate parallel proceedings against the petitioner departmentally." (Emphasis added) 8. In paragraph 10 of the affidavit-in-opposition the respondents, inter alia, stated as follows : "During the pendency of such criminal proceedings against the petitioner it has been thought fit by the management of the respondent no.1 not to proceed against the petitioner departmentally." (Emphasis added) 9. It was argued by the ld. Advocate of the respondent that it is desirable not to initiate, against an employee, any disciplinary proceeding in connection with an incident for which a criminal case is pending against him. In support of his contention the ld. Advocate relied on (1) Tata Oil Mills Co. Ltd. vs. Workmen, reported in AIR 1965 SC 155 , (2) Amarendranath Pan vs. Union of India, reported in Cal LT. 1989(1) HC. 80. In Tata Oil Mills Co. Ltd.'s case ( AIR 1965 SC 155 ) Hon'ble Supreme Court, inter alia, observed as follows : "It is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a Criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. Ltd.'s case ( AIR 1965 SC 155 ) Hon'ble Supreme Court, inter alia, observed as follows : "It is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a Criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel a workman to disclose the defence which he may take before the Criminal Court." In Amarendra Nath Pan's case [Cal LT 1989(1) HC 80], the ld. Court held that in the event the writ petitioner is convicted in the special Court, he would be automatically dismissed and or removed from the service without taking recourse to formalities in the departmental proceedings and, in the alternative, if the criminal case fails for want of evidence then disciplinary authority would be entitled to proceed with the departmental enquiry. The ld. Court held that the respondent/Bank Authorities would be getting opportunity to start the disciplinary proceeding in the event the criminal proceeding ends with an order of discharge. The ld. Court was of the view that it would not be expedient for both the parties to proceed with the departmental enquiry and thereby, squander money of a public sector bank as the investigation and trial has already commenced at the instance of CEL It may be noted that in Amarendra Nath Pan's case (supra) a disciplinary proceeding was initiated by issuing charge-sheet. The ld. Court did not say that no charge-sheet was required to be issued. 10. No decision of any Hon'ble High Court or of Hon'ble Supreme Court has been brought to the notice to this Court wherein it was held or observed that it is desirable not to issue charge-sheet against an erring employee in connection with the disciplinary proceeding on the ground that on the selfsame fact a criminal proceeding is pending in a criminal Court. It is one thing to say that a charge-sheet has been issued initiating disciplinary proceeding but the departmental enquiry into those charges has been stayed due to the pendency of a criminal proceeding on the self-same fact but it is a quite different proposition if no charge-sheet is issued initiating a disciplinary proceeding on the ground that on the self-same fact a criminal proceeding is pending. In the second proposition there is no existence of any disciplinary proceeding. If an order is passed taking an action against a person on the ground that a definite course of proceeding against him is under contemplation and if such course of proceeding is not taken recourse to within a reasonable time then the continuation of the effect of the order beyond the reasonable time would become unreasonable and arbitrary. Reasonable time would depend on the facts and circumstances of each particular case. If an employee is placed under suspension on the ground of contemplated disciplinary proceeding then in the cases covered by first proposition suspension can continue even if the enquiry in connection with the disciplinary proceeding is stayed but such suspension cannot continue in the cases covered by second proposition. Hon'ble Supreme Court did not observe that a disciplinary proceeding should not be initiated, it observed that in a given case enquiry into the charges in a disciplinary proceeding may be stayed. 11. The ld. Advocate for the respondents argued that where power or jurisdiction is there then mere reference to a wrong section would not vitiate the exercise of power. He argued that the management of the respondent no.1 had/has authority and jurisdiction to place the petitioner under suspension where a case against him in respect of any criminal offence is under investigation or trial. He argued that only because the respondents in the order of suspension stated that the petitioner had been placed under suspension on the ground of contemplated disciplinary proceeding would not vitiate the order of suspension because in fact a criminal proceeding is pending against the petitioner. The ld. Advocate for the respondent referred to and relied upon NE. Sanjana vs. E.S. & W Mills reported in AIR 1971 SC 2039 . In NE. The ld. Advocate for the respondent referred to and relied upon NE. Sanjana vs. E.S. & W Mills reported in AIR 1971 SC 2039 . In NE. Sanjana's case Hon'ble Supreme Court reiterated the principle that if the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. 12. In the instant case the appropriate authority had the power to place the petitioner under suspension (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial. The first category is connected with disciplinary proceedings and the second category is connected with a case in respect of any criminal offence. The appropriate authority placed the petitioner under suspension in power under first category and not in power under a second category. But after placing the petitioner under suspension on the ground of contemplated disciplinary proceeding respondents chose not to initiate disciplinary proceeding by issuing charge-sheet on the ground that a criminal trial is pending against the petitioner. Therefore, till today no disciplinary proceeding is in existence against the petitioner. Thus the petitioner has been kept under suspension for these long sixteen years without there being any disciplinary proceeding against him. This is not a case of wrong reference to a section as contended by the ld. Advocate for the respondents. This Court is of the view that NE. Sanjana's case ( AIR 1971 SC 2039 ) has no manner of application in the facts and circumstances of the present case. Having chosen to place the petitioner under suspension for a specific ground now the respondents cannot say that continuation of such suspension is justified on a different ground which was- not chosen by the respondents at the time of placing the petitioner under suspension. 13. The ld. Advocate for the respondents argued that this long delay of framing charges against the petitioner in the departmental proceeding cannot be a good ground for interfering with the suspension of the petitioner. The ld. Advocate for the respondents referred to and relied upon Registrar, Cooperative Societies vs. F.X. Fernando reported in (1994) 2 SCC 746 . The ld. The ld. Advocate for the respondents argued that this long delay of framing charges against the petitioner in the departmental proceeding cannot be a good ground for interfering with the suspension of the petitioner. The ld. Advocate for the respondents referred to and relied upon Registrar, Cooperative Societies vs. F.X. Fernando reported in (1994) 2 SCC 746 . The ld. Advocate referred to paragraph 17 of the Reported decision which reads as follows: "Then again the finding that there is long delay in initiating of departmental proceedings cannot be supported because in this case the Directorate of Vigilance and Anti-Corruption had not been prompt. Therefore, the appellant cannot be faulted. Accordingly, we set aside the order of the Tribunal and direct that the matter be proceeded with from the stage at which it was left. It is a settled principle of law that justice must not only be done but must be seen to be done. Therefore, we would direct that another Enquiry Officer be appointed in order to remove any apprehension of bias on the part of respondent. The civil appeal will stand allowed with no cost." This decision has no manner of application in the facts and circumstances of the instant case because no material has been produced before this Court to suggest that CBI had not been prompt and for that reason the charges could not be framed against the petitioner in connection with the departmental proceeding. In the affidavit-in-opposition also no such stand has been taken by the respondents. 14. The ld. Advocate of the respondents referred to and relied upon Bhoop Singh vs. Union of India reported in AIR 1992 SC 1414 and argued that the petitioner approached the Court in 1990 while he was placed under suspension in December, 1980. The ld. Advocate argued that the petitioner is guilty of delay and laches and for that reason the writ petitioner is not entitled to any relief. In Bhoop Singh's case (supra) the petitioner challenged his order of termination after 22 years and no explanation was offered for this delay and it was held that lapse of such a long unexplained period of several years in challenging the termination in the case of the petitioner would disentitle the petitioner to any relief. But that is not the position in the instant case. But that is not the position in the instant case. In the instant case the petitioner has called in question the continuation of the order of suspension for this long period on the ground that though he was placed under suspension for contemplated disciplinary proceeding but in reality 'no disciplinary proceeding has ever been initiated against him during this long period of sixteen years and that the same has made the continuation of suspension illegal and arbitrary. Under these circumstances Bhoop Singh's case (supra) has no manner of application in the facts and circumstances of the instant case. 15. The ld. Advocate for the respondents referred to U.P. Rajya Krishi Utpadan Mandi Parishad vs. Sanjiv Rajan reported in 1993 Supp (3) SCC 483. The ld. Advocate referred to paragraph 5 of the Reported decision. The relevant lines of the said paragraph 5 read as follows: "Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. It is possible that in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory, to direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the ~ present case, the charge-sheet was filed after almost a year of the order of suspension. However, the facts pleaded by the appellants show that the defalcations were over a long period from 1986 to 1991 and they involved some lakhs of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. However, the facts pleaded by the appellants show that the defalcations were over a long period from 1986 to 1991 and they involved some lakhs of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was bound to take some time. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not." In the instant case since no charge-sheet has been issued against the petitioner there cannot be any departmental enquiry. Since there is no disciplinary proceeding against the petitioner question of allowing disciplinary proceeding to continue unhindered does not arise. In "absence of any disciplinary proceeding the Court cannot also direct the authorities to complete the departmental enquiry within stipulated period. 16. Hon'ble Supreme Court in State of Orissa vs. Bimal Kumar Mahanty reported in (994) 4 SCC 126 considered R.P. Kapur vs. Union of India ( AIR 1964 SC 787 ); V.P. Gidroniya vs. State of Maharashtra, (1970) 1 SCC 362 ; U.P. Rajya Krishi Utpadan Mandi Parishad vs. Sanjiu Rajan (supra) and in paragraph 13 of the Reported decision observed as follows: "It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into gravel charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge/the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge." The petitioner for long sixteen years is under suspension without a disciplinary proceeding having been initiated against him. Such a long period of suspension is likely to remove the impression among the members of service that dereliction of duty would pay fruits and that the offending employee could get away even pending inquiry without any impediment. Since no disciplinary proceeding is in existence against the petitioner question of preventing an opportunity to the petitioner to scuttle the departmental enquiry does not arise. A criminal case is already pending against the petitioner. Such criminal proceeding has been initiated after thorough investigation by CBI. Since no disciplinary proceeding is in existence against the petitioner question of preventing an opportunity to the petitioner to scuttle the departmental enquiry does not arise. A criminal case is already pending against the petitioner. Such criminal proceeding has been initiated after thorough investigation by CBI. In paragraph 7 of affidavit-in-opposition the respondents have stated that during the course of such investigation by CBI large number of documents pertaining to the matter were seized and, therefore, at present question of having opportunity to impede the progress of the investigation does not arise. 17. The Id. Advocate for the respondents referred to Secretary to Government, Prohibition & Excise Department vs. L. Srinivasan reported in (1996) 3 SCC 157 . Paragraph 3 of the Reported decision reads as follows:- "Order dated 12.11.1993 in OAs. Nos. 1702 of 1993 and 2206 of 1993 of the Tamil Nadu Administrative Tribunal, Madras is in question before us. The respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension. Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied." In the instant case no disciplinary proceeding has been initiated by issuing charge-sheet during this long period of sixteen years. Facts and circumstances of the instant case are different from those of L. Srinivasan's case (supra). L. Srinivasan's case does not help the respondents. 18. The ld. Advocate of the respondents referred to and relied upon P.L. Shah vs. Union of India reported in (1989) 1 SCC 546 . The ld. Advocate referred to and relied upon paragraph 6 of the Reported decision. The relevant lines from said paragraph 6 are quoted below: "An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found quality to ensure smooth disposal of the proceedings initiated against him. Such proceedings should be completed expeditiously in the public interest and also in the interest of the government servant concerned. The subsistence allowance is paid by the government so that the government servant against whom an order of suspension is passed on account of the pendency of any disciplinary proceeding or a criminal case instituted against him could maintain himself and his dependants until the departmental proceeding or the criminal case as the case may be comes to an end and appropriate orders are passed against the government servant by the government regarding his right to continue in service etc. depending upon the final outcome of the proceedings instituted against him. depending upon the final outcome of the proceedings instituted against him. The very nomenclature of the allowance makes it clear that the amount paid to such a government servant should be sufficient for bare subsistence in this world in which the prices of the necessaries of life are increasing every day on account of the conditions of inflation obtaining in the country. It is further to be noted that a government servant cannot engage himself in any other activity during the period of suspension. The amount of subsistence allowance payable to the government servant concerned should, therefore, be reviewed from time to time where the proceedings drag on for a long time, even though there may be no express rule insisting on such review. In doing so the authority concerned no doubt has to take into account whether the government servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. If the government servant is not responsible for such delay or even if he is responsible for such delay to some extent but is not primarily responsible for it, it is for the government to reconsider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not. The decision on the said question no doubt depends upon several factors relevant to the case." For the reasons stated in the preceding paragraphs this Court is of the view that P.L. Shah's case (supra) does not help the respondents. 19. In paragraph 12 of the affidavit-in-opposition the respondents stated, inter alia, as follows : "The reason for continuance of the suspension order against the petitioner and the reason for not proceeding against the petitioner departmentally has been stated hereinabove which I repeat and reiterate. Having regard to the deep involvement of the petitioner in the matter of misappropriation of funds and goods of the respondent no.1 as also having regard to the pendency of the criminal proceedings against him, the continued suspension of the petitioner is justified in the facts and circumstnces of the case and is also in public interest." 20. From the order of suspension it is apparent that the petitioner was placed under suspension on the ground of contemplated disciplinary proceeding but no departmental proceeding has ever been initiated against the petitioner by issuing charge-sheet against him. From the order of suspension it is apparent that the petitioner was placed under suspension on the ground of contemplated disciplinary proceeding but no departmental proceeding has ever been initiated against the petitioner by issuing charge-sheet against him. This Court is of the view that having chosen to place the petitioner under suspension for a specific ground now the respondents can not say that continuation of such suspension is justified on a different ground which was not chosen by them at the time of placing the petitioner under suspension. At the time of placing the petitioner under suspension respondents chose to invoke the clause relating to disciplinary proceeding. Now they can not justify continuation of such suspension relying upon the clause relating to criminal offence. This Court is of the view that in the facts and circumstances of the case discussed hereinabove continuation of suspension has now become arbitrary and unreasonable. Since on this point the petitioner has succeeded the other points argued by the ld. Advocate for the petitioner have not been considered by this Court. 21. In view of the discussion made hereinabove the respondents are directed to allow the petitioner to resume his duty within four weeks from the date of this judgment and to pay him his salaries in accordance with the provisions of law month by month from the date of resumption of his duties. 22. Immediately after the delivery of this judgment learned Advocate for the respondents prayed for stay of the operation of this judgment for six weeks. The prayer is considered and rejected. 23. Respondents are directed to take a decision within eight weeks from to-day in respect of payment of salary for the period spent under suspension. Such decision should be taken after affording a opportunity to the writ petitioner and after giving a personal hearing to him. A reasoned order should be passed by the respondents and the same should be communicated to the writ petitioner within a week from the date of making such order. 24. If xerox certified copy is applied for the same should be given to the parties as expeditiously as possible. Application allowed.