JUDGMENT : A. Pasayat, J. - Order of the Orissa Administrative Tribunal (in short, the 'Tribunal') directing petitioner to avail appellate forum purportedly available under Rule 23 (1) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (in short, 'Rules') is under challenge in this writ application. 2. There is practicably no dispute on the factual aspect, and a brief reference thereto would suffice. Petitioner was proceeded against in a departmental proceeding and on conclusion thereof, he was exonerated from the charges. However, period of suspension was treated as such considering alleged gravity of charges. Said order was challenged before the Tribunal. Petitioner took the stand that since he has not been held guilty of the charges, it cannot all be conceived that period of suspension was to be treated as a measure of penalty. Tribunal held that all the same, order varied of his disadvantage of service benefits, and was to be assailed in an appeal under Rule 23 (1) of the Rules. Since remedy was not exhausted, Original Application was not entertained. Direction was given that paper book filed by Tribunal was to be sent to the Special Secretary, G.A.Department to treat the same as an appeal under Rule 23 (1) of the Rules and obtain Government orders on the same and communicate them to the applicant within three months from the date of receipt of a copy of the order. It was further directed that while processing the appeal, provisions of Rule 91 (2) of the Orissa Service Code (in short. 'Code') were to be kept in view. 3. According to petitioner, direction was not proper as Rule 23 (1) of the Rules had no application to the facts of the case and in any event, when petitioner was fully exonerated of the charges, there was no question of considering the period of suspension as such. Learned counsel for State with reference to Rule 12 (6) of the Rules submitted that such a course is permissible. 4. To appreciate the rival submissions, it is necessary to take note of a few provisions. Rule 91 of Code so far as relevant reads as follows: Rule 91 of the Code. "91 (1). Learned counsel for State with reference to Rule 12 (6) of the Rules submitted that such a course is permissible. 4. To appreciate the rival submissions, it is necessary to take note of a few provisions. Rule 91 of Code so far as relevant reads as follows: Rule 91 of the Code. "91 (1). When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension the authority competent to order the re-instatement shall consider and make a specific order : (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be. and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt prior to his dismissal, removal or suspension. (3) xxx xxx xxx (4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) xxx xxx xxx" Rule 12 (6) of the Rules. "12. xxx xxx xxx (6) The disciplinary authority while passing the final order of punishment or of release in the disciplinary proceedings against the Government servant, shall give directions about the treatment of the period of suspension, which is passed not as a measure of substantive punishment but as suspension pending inquiry, and indicate whether the suspension would be a punishment or not." A bare reading of Rule 91 of the Code makes it clear that in a case covered under Clause (2) which deals with total exoneration in period of absence from duty shall be treated as a period spent on duty for all purposes. As a bare reading of Rule 12 (6) of the Rules shows there is a marked distinction between suspension as penalty, and suspension during pendency of enquiry. It has to be clearly indicated by the disciplinary authority whether suspension would be a punishment or not. Therefore, to that extent also order passed by the disciplinary authority is vulnerable. Penalties imposable are indicated in Rule 13 of Part-V. Under the heading 'discipline' suspension is one of the penalties, and that is why disciplinary authority is required to indicate whether suspension would be a punishment or not. In a case of full exoneration, as provided in Rule 91 of the Code, period of absence from duty shall be treated as a period spent on duty. It is.not spelt out in the final order (Annexure-5) passed by the disciplinary authority, that period of suspension was directed to be treated as such as a measure of penalty. Obviously, Rule 91 (4) of the Code would apply to the petitioner's case. In that view of the matter, direction contained in the order that suspension would be treated as such even though there is a complete exoneration cannot be maintained, whatever be the gravity of charges. If charges were not established and there was exoneration as charges were not proved, question of any penalty would not arise. It would however depend upon the Statute holding the field whether such a stipulation can be made. In the instant case, there is no exception to the position as indicated above. 5. Learned counsel for State strenuously urged that direction of the Tribunal was to avail statutory remedy and the writ application is not to be entertained. It is noticed that Tribunals while refusing to entertain the Original Application, directed that paper book was to be sent to Special Secretary, G.A.Department who was to treat the same as an appeal under Rule 23 (1) of the Rules and to obtain Government order and communicate the same to the applicant within three months from the date of receipt of copy of order. Learned counsel for petitioner stated that till now there has been no communication. In that view of the matter, we have entertained the writ application. In conclusion, direction to treat the period of suspension (vide Annexure-5) as such is vacated. The writ application is allowed to the extent indicated above. No costs. Pradipta Ray, J. 6. I agree. Learned counsel for petitioner stated that till now there has been no communication. In that view of the matter, we have entertained the writ application. In conclusion, direction to treat the period of suspension (vide Annexure-5) as such is vacated. The writ application is allowed to the extent indicated above. No costs. Pradipta Ray, J. 6. I agree. Final Result : Allowed