JUDGMENT : K.M. THAKER, J. 1. Heard learned advocate for the petitioner and Mr. Jani, learned AGP for the respondent. 2. In present petition the petitioner has prayed, inter alia, that: “18 (A) Quashing and setting aside the order dt. 2.7.2005 and directing the respondents to pay the subsistence allowance to the petitioner fro the period from 30.11.1993 to 30.6.1995 with 12% interest from the due and payable date till payment.” 3. From the relief prayed for by the petitioner and also in light of the details mentioned in the petition it comes out that the petitioner was placed under suspension pending inquiry which was initiated on the ground that the petitioner indulged in and committed misconduct. The petitioner has claimed that during period he remained under suspension the authority/department did not pay subsistence allowance. 3.1 Therefore the petitioner has taken out this petition and prayed that subsistence allowance for the period from 30.11.1983 to 30.6.1995 i.e. for 12 years be paid with 12% interest. 3.2 The subject matter of the petition also becomes clear from the statement in the petition to the effect that “By this petition, the petitioner challenges action of the respondents in not paying subsistence allowance for the period of suspension.........” 4. At first blush it would appear that the action of the respondents of not paying subsistence allowance during period of suspension pending inquiry cannot be considered legal or justified. However, the fact of the case brings out and presents different picture. 5. So as to consider and decide as to whether the petitioner's grievance ventilated in the petition and his demand are justified or not, it is necessary to take into account the factual background. 5.1 It is not in dispute that at the relevant time the petitioner was working as District Inspector of Land Records. 5.2 While he was in service with the respondent government certain allegations constituting misconduct were levelled against him. It was alleged that while he was in service with respondent and while the marriage with his lawfully wedded wife subsisted and was alive and in existence, the petitioner, without getting divorce from his lawfully wedded wife, indulged in illicit relation with another lady and out of said illicit relation begot a daughter, which is unbecoming of public servant and amounts to misconduct. 5.3 In that view of the matter it was alleged that it was an act unbecoming of government employee. It was also reported that while the petitioner was in service, the proceedings under Section 125 of Criminal Procedure Code were initiated against him by his wife however the petitioner did not inform the said fact to the authority. 5.4 It was also reported against the petitioner that in said proceedings under Section 125 of the Criminal Procedure Code the Court passed direction to deposit the amount of maintenance that the petitioner did not deposit the amount as ordered by the Court and he did not obey and comply the decree. Thus the petitioner was debtor however the said fact was also not informed to the authority. 5.5 It was also alleged that despite the direction by the Settlement Commissioner to produce order of the Court, the said direction was not complied and that the direction to pay the amount of maintenance awarded by order under Section 125 of Cr.P.C. was also not complied. 5.6 In view of such allegations against the petitioner domestic inquiry was initiated. Upon conclusion of the inquiry second show case notice was issued and subsequently the authority passed order dated 30.11.1983 whereby the competent authority removed the petitioner from service. 6. According to the case now put by the petitioner, the said order dated 30.11.1983 was challenged by the petitioner in Special Civil Application No. 5876 of 1983. 6.1 The said order came to be set aside by this Court vide judgment dated 11.12.1996 in Special Civil Application No. 5876 of 1983 on the ground that the inquiry was vitiated on account of violation of principles of natural justice. 6.2 Thus by order dated 11.12.1996 the matter was remanded to the competent authority for fresh hearing and order. 6.3 The petitioner has also claimed that after the order dated 11.12.1996 fresh proceedings was conducted and upon conclusion of the proceedings, the competent authority passed order dated 19.8.2000. 6.4 Since in the interregnum the petitioner retired from service on superannuation, the competent authority, after considering relevant material imposed, vide order dated 19.08.2000 penalty of cut in pension at rate of Rs.200/- per month for 5 years. 6.5 The petitioner challenged said Order dated 19.08.2000 in Special Civil Application No. 11904 of 2000. 6.4 Since in the interregnum the petitioner retired from service on superannuation, the competent authority, after considering relevant material imposed, vide order dated 19.08.2000 penalty of cut in pension at rate of Rs.200/- per month for 5 years. 6.5 The petitioner challenged said Order dated 19.08.2000 in Special Civil Application No. 11904 of 2000. The said Special Civil Application No. 11904 of 2000 came to be dismissed vide judgment dated 06.03.2003. 6.6 Against the said judgment dated 6.3.2003 in Special Civil Application No. 11904 of 2000, the petitioner filed an Appeal which was registered as Letters Patent Appeal No. 1142 of 2003. The said Letters Patent Appeal No. 1142 of 2003 came to be disposed of vide order dated 18.10.2011. 7. In this background, the petitioner filed present petition and claimed that he is entitled for subsistence allowance for the period from 30.11.1983 i.e. the date from which he was removed from service until 30.06.1995 (i.e. date on which the petitioner attained the age of superannuation). 7.1 According to the petitioner, the period from 30.11.1983 onwards until the age of superannuation should be considered period of suspension/deemed suspension because vide judgment dated 11.12.1996, the order of removal from service (i.e. order dated 30.11.1983) was set aside by the Court and the case was remanded for fresh proceedings ( of domestic enquiry) and for fresh order and such fresh order came to be passed on 19.08.2000, however, since he attained the age of superannuation before the fresh order (in domestic enquiry) came to be passed on 19.08.2000, the period until the date of his retirement should be considered as period of deemed suspension. On the said ground, the petitioner claims subsistence allowance. 8. At this stage, it is pertinent to note that the Order dated 30.11.1983 was set aside by the Court vide judgment dated 11.12.1996. 8.1 However, until 2003 the petitioner never demanded subsistence allowance. 9. In 2003, the petitioner submitted an application seeking subsistence allowance. The said application was accompanied by affidavit dated 6.12.2003. 9.1 Thus, though the application reflects that it was preferred in March, 2003, actually the application seems to have been submitted in September, 2003. 9.2 Be that as it may, undisputedly the demand for subsistence allowance was raised, for the first time, in 2003. 9.3 The said Application reads thus: “To, 1. The Secretary, Revenue Department, Sachivalaya, Gandhinagar. 2. 9.1 Thus, though the application reflects that it was preferred in March, 2003, actually the application seems to have been submitted in September, 2003. 9.2 Be that as it may, undisputedly the demand for subsistence allowance was raised, for the first time, in 2003. 9.3 The said Application reads thus: “To, 1. The Secretary, Revenue Department, Sachivalaya, Gandhinagar. 2. Settlement Commissioner and Director of Land Revenue Records, Multistoreyed Building, Lal Darwaja, Ahmedabad. Sirs, 1. On going through the Affidavit-in-reply filed by Shri J.C. Pandit, Deputy Secretary, Revenue Department, in February 2003, in Civil Application No. 565 of 2003, I have come to know that I have not been paid the subsistence allowance because I have not given “certificate/affidavit to the effect that he had not worked at any where during the suspension period.” Accordingly I give the required certificate as under. 2. I say that “I had not worked at anywhere during the suspension period. 3. Since the period of suspension is not regularised my final pension and gratuity should be fixed and paid to me at an early date. 4. I should also be paid the amount of subsistence allowance immediately since I have given the required certificate.” 10. On the other hand, the department/Respondent issued and served show-cause notice dated 15.6.2005 whereby the petitioner was called upon to explain as to how he is entitled for subsistence allowance. 11. It appears that the petitioner submitted his reply on or around 23.6.2005 and the competent authority subsequently passed order dated 2.7.2005 holding, inter alia, that in view of the fact of the case, more particularly in light of the fact that during the period in question petitioner was holding Sanad and was engaged in profession as an Advocate, he cannot be considered eligible for subsistence allowance. 12. The said order dated 2.7.2005 is placed under challenge in this petition. 13. To support his submission learned advocate for petitioner reiterated the facts which have been recapitulated hereinabove. Besides this, learned advocate for petitioner placed reliance on Rule 151 (1) of BCSR and he prayed and reiterated the submission in Paras8, 9 and 10 of the petition. The said Paragraphs 8, 9 and 10 read thus: “8. As per Rule 151(1) of the Bombay Civil Services Rules, the petitioner is entitled to the payment of subsistence allowance for the period of suspension and there is no reason to deny the same. The said Paragraphs 8, 9 and 10 read thus: “8. As per Rule 151(1) of the Bombay Civil Services Rules, the petitioner is entitled to the payment of subsistence allowance for the period of suspension and there is no reason to deny the same. Hereto annexed and marked Annexure E is a copy of relevant portion of Rule 151(1). It is stated in the impugned order that such a payment can be denied under instructions under Rule 151(1) (2) which is quoted in the order. However, under this Rule also the payment of subsistence allowance cannot be denied firstly because this Rule would apply in a case of factual suspension and not deemed suspension, secondly a false certificate can be construed as an act of misconduct but not to deny the subsistence allowance, thirdly such a certificate regarding “any private employment or engaged myself in any trade or business during the period in question” was require to be given every month and not at a time for about 13 years. As stated by the petitioner he had taken up a sanad for practicing law but he hardly could practice the same. Assuming for the sake of argument, without admitting, that the petitioner did earn something on account of practice, still his entitlement under Rule 151 cannot be denied and that too obtaining a sanad is not “accepting private employment or engaging in trade or business”. Thus the petitioner cannot be denied subsistence allowance as per Rules. 9. In this petition the petitioner is claiming only subsistence allowance. As per law he would be entitled to full pay and allowance for the period of removal from service. As stated above the order of removal dt. 30.11.83 was quashed and set aside by this Hon'ble Court by the judgment dt. 11.12.96. Though the petitioner had attained the age of superannuation on 30.09.95, he is deemed to have been reinstated in service since he is paid retiral benefits on that footing. As per the Circular dt.13.4.70 issued by the State Government where an order or removal is set aside by the Court of law on any ground then entire period form the date of removal to the date of reinstatement is to be treated as on duty for all purposes. Hereto annexed and marked Annexure F is a copy of the Circular dt. 13.4.70. However, the petitioner is claiming only the subsistence allowance. Hereto annexed and marked Annexure F is a copy of the Circular dt. 13.4.70. However, the petitioner is claiming only the subsistence allowance. 10. The petitioner had remained under deemed suspension from 30.11.1983 to 30.06.1995. By the Memo dated 29.8.2001, the State Government called upon the petitioner to make his representation as to why the period of suspension from 30.11.1983 to 30.06.1995 should not be treated as spent under suspension. The petitioner made his representation dated 11.9.2001. Thereafter, by the order dated 21.2.2002 the State Government decided that the above period should be treated as spent under suspension. Even though the period is treated as under suspension the petitioner has not been paid the subsistence allowance so far.” Any other submission is not made. 14. Mr. Jani, the learned AGP, opposed the submissions and the claim of the petitioner. The learned AGP placed reliance on the affidavit filed by the respondents in another petition i.e. Special Civil Application No. 7135 of 2005, which was filed by the petitioner but subsequently the said petition was withdrawn. In the said Special Civil Application No. 7135 of 2005, the petitioner had prayed, inter alia, that: “13. The petitioner, therefore, prays that: This Hon’ble Court may be pleased to issue writ of Mandamus or any other writ or direction or order directing the respondents to pay subsistence allowance to the petitioner for the period from 30.11.1983 to 30.06.1995 with 12% interest on the due and payable date till payment.” 14.1 The said petition came to be disposed of as withdrawn vide order dated 29.09.2005 which reads thus: R.M. Doshit, J. ORDER : Date 29.9.2005 Heard the learned Advocates. Mr. Supehia states that the pending this petition, the State Government has made order dated 2nd July 2004 (sic) refusing to regularise the period of suspension and to pay the subsistence allowance for the period in question. He states that the petitioner shall challenge the said order dated 2nd July 2005 in a substantive proceeding. He, therefore, seeks leave to withdraw this petition with a liberty to file a fresh proceeding in the said matter. Leave is granted. Petition is disposed of as withdrawn. Notice is discharged. The petitioner shall be at liberty to challenge the order dated 2nd July 2004 (sic) in a substantive proceeding.” 14.2 It is pursuant to the said order dated 29.09.2005, the petitioner filed present petition. 15. Leave is granted. Petition is disposed of as withdrawn. Notice is discharged. The petitioner shall be at liberty to challenge the order dated 2nd July 2004 (sic) in a substantive proceeding.” 14.2 It is pursuant to the said order dated 29.09.2005, the petitioner filed present petition. 15. From the relief prayed for in the Special Civil Application No. 7135 of 2005 it becomes clear that in present petition also the petitioner has prayed for the same relief which was prayed in Special Civil Application No. 7135 of 2005 and the only modification/change is to the effect that now the petitioner has challenged the order dated 2.7.2005 whereby the authority rejected his demand for subsistence allowance. 15.1 Under the circumstances, it would not be irrelevant or out of place to take into account the affidavit filed by the Under Secretary, Revenue Department in Special Civil Application No. 7135 of 2005. In the said affidavit dated 5.7.2005, the deponent averred and stated that: “5. It is respectfully submitted that the petitioner was serving as District Inspector of Land Records and he retired on 30.06.1995 on superannuation. I say and submit that an earlier occasion by way of disciplinary proceeding petitioner was removed from service by an order dated 30.11.1983. Being aggrieved by the said order the petitioner preferred petition before this Hon'ble Court and the Hon'ble Court was pleased to quash and set aside the said order dated 30.11.1983 by its judgment and order dated 11.12.1996 and the matter was remanded back for a fresh decision. After hearing the petitioner, by an order dated 19.8.2000 a penalty of monthly cut in pension of Rs.200/for five years was imposed which was challenged before the Hon'ble Court but the same was dismissed. Being aggrieved by the said order petitioner preferred an appeal, which has been admitted. The period of suspension from 30.11.1983 to 30.6.1995 was ordered to be treated as spent under suspension by the Govt. by order dated 21.2.2002. 6. The petitioner had submitted necessary certificate and affidavit to the effect that he had not worked during the period of suspension. It is respectfully submitted that while making inquiry with regard to the certificate and affidavit filed by the petitioner, it was found that the petitioner had worked as an advocate during his suspension period details of the same are as under: 1. It is respectfully submitted that while making inquiry with regard to the certificate and affidavit filed by the petitioner, it was found that the petitioner had worked as an advocate during his suspension period details of the same are as under: 1. The petitioner has applied for Sanad before the Registrar, District Court, KutchBhuj, vide letter bearing No. B-10-2004 dated 1.1.2004 which was registered as Pleader Register at Sr. No. 84 dated 5.7.1984 of District Court, KutchBhuj and obtained Sanad vide registration No. G338/1984. 2. As per the letter of Secretary, Bhuj Bar Association dated 30.12.2003 the petitioner had enrolled as an advocate and obtained Sanad No.3380 of 1984 and he worked as advocate. 3. The petitioner had submitted before Court of Mundra in a Civil Case No. 24 of 81 on 22.9.1989 that he is working as an advocate and he was appearing as a witness in the said case. 7. I say and submit that as the authority had reasons to doubt the certificate given by the petitioner, a show cause notice dt. 15.6.05 was issued by the Deputy Secretary, Revenue Department, Sachivalaya, Gandhinagar seeking explanation from the petitioner. Annexed hereto and marked AnnexureI is a copy of the show cause notice dated 15.06.2005. Pursuant to the said show cause notice, petitioner submitted a written reply dated 23.06.2005. I say and submit that the Deputy Secretary after taking into consideration the explanation submitted by the petitioner, pass an order dt. 2.07.2005 rejecting the claim of subsistence allowance for the period of suspension, in accordance with the Rule 151 of B.C.S.R. Annexed hereto and marked Annexure-II is a copy of the order dt. 2.7.2005. 15.2 From the details mentioned in the said affidavit, it has emerged that the petitioner was enrolled as Advocate and he obtained Sanad somewhere in 1984. 15.3 On the other hand, from the order dated 2.7.2005, which is challenged in present petition, it has emerged that before the competent authority the petitioner did not disclose the fact that he had obtained Sanad and that he engaged himself as practicing advocate. When confronted with the said fact he claimed that he did not earn any income from profession. 16. When confronted with the said fact he claimed that he did not earn any income from profession. 16. At this stage, it is relevant to recall that in the Application which the petitioner submitted in 2003, he claimed that it was through the affidavit filed in Civil Application No. 565 of 2003 that he came to know that subsistence allowance was not paid because he had not submitted certificate/affidavit declaring that he had not worked anywhere during the period of suspension. It was as late as in 2003 that the petitioner tendered application for subsistence allowance and until then the petitioner has not raised any demand for subsistence allowance. 17. The petitioner claims that for the period in question (30.11.1983 to 30.06.1995) he should be deemed to be under suspension and he should be paid subsistence allowance in accordance with Rule 151 of BCSR. 18. At this stage, it will be appropriate to take into account Rule 151 of BCSR on which the petitioner has placed reliance: “151.(1) A Government servant under suspension is entitled to the following payments: (I) …...... (II) …...... (a) 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 or on half pay and in addition dearness allowance based on such leave salary; Provided that where the period of suspension exceeds six months the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows: (i) …..... (ii) …..... (iii)..... xxx xxx xxx Instruction: No payment under sub-rule (1) shall be made unless the government servant furnishes certificate to the following effect before payment is made every month: “I certify that I did not accept any private employment or engage myself into trade or business during the period in question.” If the authority has any reasons to doubt this certificate, it may ask the police to verify the certificate and if the government servant is found to have given false certificate, that should be construed as an act of misconduct and make an additional charge against him. In the case of gazetted officers under suspension they should furnish the certificate themselves to the Treasury Officer/Audit Officer, who should see that the certificate is furnished before the claim for payment is admitted. In case of doubt regarding the certificate, the case should be referred to the Head of Department who will ask police to verify the same.” (emphasis supplied) 18.1 In light of the said provision, the petitioner would contend that he was not engaged in any private employment or trade or business but he was pursuing profession as advocate and that since the profession as advocate is not covered under the instruction/proviso of Rule 151 and since profession cannot be considered business or trade or private employment, subsistence allowance should not be denied. 18.2 Learned AGP submitted and contended that the decision of competent authority refusing the claim for subsistence allowance is correct and justified and is in consonance with Rule 151. He claimed that the petitioner was engaged in profession as advocate and that therefore he would not be entitled to subsistence allowance during the period in question. Learned AGP also submitted that the petitioner admitted that he held Sanad and was engaged in profession as advocate and that therefore the decision of the competent authority cannot be said incorrect of unjustified or arbitrary. 19. I have considered rival submissions and material available on record. 19.1 Before proceedings further, it is appropriate to take into account certain observations by the Court in the decision dated 6.3.2003 in Special Civil Application No. 11904 of 2000 wherein the petitioner challenged the order dated 19.8.2000 passed by the competent authority (whereby the competent authority imposed penalty of cutting pension at Rs.200/- per month). In the judgment dated 6.3.2003, the Court observed and recorded that : “The said order of the disciplinary authority dated 19.8.2000 is challenged in SCA No.11904 of 2000 by the present petitioner. 4. Special Civil Application No.3534/02 has been preferred by the petitioner challenging the order, dated 21.2.2002 passed by the respondents for treating the period from 30.11.1983 to 30.6.1995 as under suspension. 5. Special Civil Application No.7034/01 is preferred by the petitioner for promotion to the higher grade and is also for challenging the order of the respondents for not allowing the petitioner to cross E.B. 6. I have heard Mr.Supehia for the petitioner and Mr. Mehta, Ld. AGP for respondents. Mr. Supehia, Ld. 5. Special Civil Application No.7034/01 is preferred by the petitioner for promotion to the higher grade and is also for challenging the order of the respondents for not allowing the petitioner to cross E.B. 6. I have heard Mr.Supehia for the petitioner and Mr. Mehta, Ld. AGP for respondents. Mr. Supehia, Ld. advocate on behalf of the petitioner has mainly raised the contention so far as Spl.C.A.No.11904 of 2000 is that after order passed by this court and after supplying certain documents no witness was examined before the inquiry officer. Therefore, he submitted that the evidence can not be said to be the legal evidence against the petitioner. Mr. Supehia alternatively submitted that even if the order of the disciplinary authority is taken on its face value of staying with another lady can not be said to be misconduct amounting to unbecoming of a public servant and therefore he submitted that even if the charges are deemed as proved of having illicit relation with lady Nalini and a daughter child born out of said illicit relation, it can be said to be misconduct in the eye of law which would call for the punishment imposed by the disciplinary authority. 7. Before I consider the submissions of Supehia on the question of examination of witness it is necessary to consider the alternative submission because Mr. Supehia has made strong efforts on the point that such an action can not amount to misconduct. It is true various conducts or norms which the public servant is required to observe while on duty may not be prescribed, but in my view for treating the action as unbecoming of a public servant the test would be whether it lowers down the image of a public servant in the society? If the charges are deemed as proved, the net effect is that the petitioner is having illicit relation with lady Nalini and a daughter child is born out of such relation. In my view, when it is admitted position that the petitioner is a Hindu, the law expects a Hindu male member to maintain marital relation with lawfully wedded wife. So far as the society at large is concerned having relation or keeping relation as kept or having sexual relation with another lady is treated as illicit relation in the society. In my view, when it is admitted position that the petitioner is a Hindu, the law expects a Hindu male member to maintain marital relation with lawfully wedded wife. So far as the society at large is concerned having relation or keeping relation as kept or having sexual relation with another lady is treated as illicit relation in the society. Had it been the case of staying together without their being any allegation of illicit relation or without their being any allegation of birth to a child matter would have been different. In the present case, the allegation is of illicit relation with a lady during the life time of a lawfully wedded wife, further with the allegation that a child is born out of that relation. In any view, the fact that the child is borne out of the relation of the petitioner with the ladyNalini itself is sufficient to presume sexual relation and therefore the same is also sufficient to come to conclusion that the petitioner is having illicit relation with lady Nalini. In any event holding of a post as a public servant in a society would stand on a higher pedestal than that of a common man. When such action indulged by the common man is known as immorality in society, it would reduce the value or image with some disgrace so far as the public servant is concerned. Therefore, in my view, the contention of Mr. Supehia that even if the charges are deemed as proved, it can not be said to be a misconduct can not be accepted and hence rejected. 11. In view of the aforesaid discussion, I find that there is no substance in the challenge made by the petitioner to the order passed by the disciplinary authority for imposing the punishment on the ground of misconduct. 13. The contention raised on behalf of the petitioner that since the High Court quashed the order of removal the petitioner would be entitled to back-wages for the period from 30.11.1985 until the date on which the petitioner would have retired, i.e. June, 1995 appears to be attractive, but on the close scrutiny it appears that the High Court while passing final judgment in SCA No.5876/83 has not granted the said relief of consequential benefits. Further, it is not a matter where the order is set aside for all purposes on merits, but it is a matter whether on account of non-supply of documents the order is set aside with further direction to supply the documents and to consider the matter afresh. In my view, when this court while giving adequate relief in SCA No.5876/83 has not granted the relief of payment of full back-wages from 30.11.1983 to 30.6.95, it would not be open to the petitioner to seek deemed reinstatement with back-wages for the said period. It is well settled that all the contentions which ought to have been raised and if they are not raised they are deemed to have been concluded by the decision made by the court on the basis of principles of constructive resjudicata. Once the petitioner accepted the judgment of this court dated 11.12.1996 in SCA 5876/83, in my view, it is now not open to the petitioner to pray for conferment of benefits which are not granted in the earlier litigation. In fact, on true construction of the judgment of this Court dated 11.12.1996 it is clear that this court wanted the authority proceed with the inquiry after supply of documents and therefore the proceedings of inquiry are not quashed but for the purpose of considering the matter afresh and with a view to see that sufficient opportunity is given to the petitioner the authorities were directed to consider the matter afresh. Therefore, the interpretation as canvassed by Mr.Supehia of the judgment of the High Court dated 11.12.1996 in SCA No.5876/83 can not be accepted. The inquiry has proceeded further and ultimately the disciplinary authority has imposed the imposed the penalty. Once the penalty is imposed upon the employee it is within the power of the authority to pass appropriate orders for regularisation of the period during which the inquiry was subsisting and therefore I can not accept the contention of Mr.Supehia that on account of judgment of this court, dated 11.12.1996 in SCA No.5876/83 the petitioner would be entitled to full back-wages for the period from 30.11.1983 to 30.6.95. 17. In view of the aforesaid discussion, I find that all the Special Civil Applications have no merit and the same deserve dismissed. 18. Mr. Supehia for the petitioner submits that in fact on account of present judgment the order passed by the disciplinary authority would remain. 17. In view of the aforesaid discussion, I find that all the Special Civil Applications have no merit and the same deserve dismissed. 18. Mr. Supehia for the petitioner submits that in fact on account of present judgment the order passed by the disciplinary authority would remain. Therefore, the authorities may be directed to finalise the pension and gratuity of the petitioner in accordance with law. Mr. Dabhi, Ld. AGP has no objection if such direction is given to the authority. Therefore it is directed that the respondent-authorities shall consider the matter for finalising the pension and gratuity of the petitioner in accordance with law and shall take decision preferably within a period of three months from the date of receipt of writ of this court.” 19.2 From above quoted observation it becomes clear that the Court dismissed the petition against the order dated 19.8.2000 whereby the penalty came to be imposed by the competent authority. 19.3 What is more important is the fact that while prosecuting the said petition i.e. Special Civil Application No. 11904 of 2000 when the Court passed the decision, the petitioner had pressed in service the demand for full back-wages for the period from 30.11.1983 to 30.06.1995 i.e the period for which the petitioner has now come forward with the claim for subsistence allowance. The demand for full back-wages for period from 30.11.1983 to 30.06.1995 was considered by the Court and the Court, after considering the rival submissions and facts of the case, observed that: “Therefore I cannot accept the contention of Mr. Supehia that on account of the judgment of the Court dated 11.12.1996 in Special Civil Application No. 5876 of 2003, the petitioner would have been entitled for full back-wages for the period from 30.11.1983 to 30.06.1995.” 19.4 The said order dated 6.3.2003 in Special Civil Application No. 11904 of 2000 was carried in appeal by way of Letters Patent Appeal No. 1142 of 2003. The said Letters Patent Appeal No.1142 of 2003 came to be disposed of by the Division Bench vide judgment dated 18.10.2011. The observation and decision by Division Bench is relevant in present case also. Therefore, the observation and decision in the said Letters Patent Appeal No. 1142 of 2003 are quoted below: “2. We have heard learned counsel for the parties. The observation and decision by Division Bench is relevant in present case also. Therefore, the observation and decision in the said Letters Patent Appeal No. 1142 of 2003 are quoted below: “2. We have heard learned counsel for the parties. The learned Single Judge observed in its order that the appellant was having illicit relationship with a lady during the lifetime of a lawfully wedded wife and that out of such relationship, a girl child was also born. Before the learned Single Judge, the appellant had not denied the fact that he had illicit relationship with a lady and that out of such relationship, a girl child was also born. The learned Single Judge relied upon the government records and came to the conclusion that the act of the appellant amounted to a misconduct by a public servant. Considering the facts of the case, we are of the view that the learned Single Judge was completely justified in dismissing writ petition filed by the appellant. We are in complete agreement with the order passed by the learned Single Judge. 3. Even otherwise, the original petitioner has expired and the legal heirs are before this Court. Therefore, the appeal has now become academic. 4. In view of the above, the appeal stands disposed of as rejected. 20. Before proceeding further it is relevant to note that under Rule 151 the Competent authority is authorised to exercise his discretion while accepting/considering the Certificate submitted by the employee and he may not mechanically accept the declaration but he may get it verified by following the procedure prescribed under said proviso of Rule 151. In present case the name of the petitioner was entered into Pleader Register at Sr. No.84 in July, 1984 and the petitioner held Sanad bearing Registration No. G338/1984. The said information was made available to the competent authority vide communication addressed by Secretary, Bhuj Bar Association. 21. It is pertinent that the said fact was not disputed by the petitioner and even while contesting the petition also, the said fact is not disputed. Therefore, further verification of the said fact by following procedure as contemplated by proviso to Rule 151 was not necessary. 22. 21. It is pertinent that the said fact was not disputed by the petitioner and even while contesting the petition also, the said fact is not disputed. Therefore, further verification of the said fact by following procedure as contemplated by proviso to Rule 151 was not necessary. 22. The petitioner would, however, in this context contend that even after taking into account the said fact, his case or his claim could not be denied or rejected on strength of the instruction/note or proviso to Rule 151 because his case would not fall within purview of the said proviso. The petitioner would also claim that before the concerned authority he had stated that he did not earn any income as an advocate. 23. So far as the petitioner's submission with regard to income is concerned, it would not be out of place to take into account observation by Hon'ble Apex Court, in the decision in case of Metropolitan Transport Corporation v. V. Venkatesan, [ (2009) 9 SCC 601 ] wherein Hon'ble Apex Court while examining the case in light of the concept of gainful employment for the purpose of deciding eligibility or entitlement for back-wages (upon being reinstated on service after termination from employment), considered the said issue in light of the fact that the concerned employee was enrolled as advocate during the period while he was terminated from service. In the said decision, the Hon'ble Apex Court observed that: “21.Secondly, and more importantly, in view of the fact that respondent was enrolled as an advocate on 12-12-2000 and continued to toe so until the date of his reinstatement (June 15, 2004), in our thoughtful consideration, he cannot be held to be entitled to full back wages. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In the case of North East Karnataka RTC v. M. Nagangouda, 2007 (10) SCC 765 this Court held, that "gainful employment" would also include self-employment. We respectfully agree. 22. It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. We respectfully agree. 22. It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 23 years of reinstatement and reengaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on 12-12-2000 until 15-6-2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties. 23. In this view of the matter, reasonable deduction needs to be made while determining the back wages to which respondent may be entitled. Taking overall facts and circumstances of the case and all other aspects including the aspect that he was enrolled as an advocate from 12-12-2000 to 15-6-2004, in our considered view, demand of justice would be met if the respondent is awarded back wages in the sum of Rs. 4 lakhs instead of Rs. 6,54,766/-.” 24. In present case, the petitioner claims that after 30.11.1983 subsistence allowance was not paid to him and he has claimed subsistence allowance for long span from November 1983 to June, 1995. The petitioner's demand for subsistence allowance coupled with his claim that during said period he was practicing profession as advocate but he did not earn any income during said period brings out unpalatable stand or assertion that for such long period he survived without income. The fact that for 12 years he continued to hold Sanad and he had not surrendered the Sanad (even for temporary suspension) militates against his assertion and does not support his claim that for 12 years he did not earn any income from the profession. In this context, it is pertinent that in above quoted decision Apex Court has observed that pursuing legal profession amounts to “gainful employment”. 24.1 Further, the petitioner's claim that during the period in question he should be deemed to be under suspension translates into the submission or presupposes that during said period he was in employment with the respondent and it would also mean that the jural relation of employer and employee subsisted during said period/should be deemed to have subsisted during said period. In that event i.e. while continuing in service-employment with the respondent he could not have been member of legal profession he could not have been an advocate. The said two things cannot run together and cannot coexist. Having regard to fact that since 1984 the petitioner was engaged in the profession as advocate and he continued in the profession for long period, the submission that he did not earn any income as an advocate is not tenable and does not deserve to be accepted. Thus, the decision of the competent authority on this count, cannot be faulted. 25. In this view of the matter, the petitioner would rely upon and would emphasise his contention that he was not engaged in “trade” or “business” and therefore his plea and his claim cannot be rejected on strength of the instruction/note or proviso to Rule 151. The petitioner would claim that he was practicing and pursuing “profession” and therefore it cannot be said that he was engaged in trade or business. 26. Having regard to the object of said proviso and in light of service condition applicable to government employees, such restricted literal and narrow construction of the said proviso and the words viz. “trade and business” cannot be admitted and accepted. In this context, it is relevant to consider Rule 34 of GCSR, which read thus: “34. Whole time of a Government employee to be at the disposal of Government: Unless in any case it be otherwise distinctly provided, the whole time of a Government employee is at the disposal of Government and he may be employed in any manner required by the proper authority, without a claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from the Consolidated Fund of India or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government.” 26.1 The said provision contemplate that the service of the Government employee shall be available to the government for 24 hours and that while in employment with government, a government employee cannot engage himself in any other employment/gainful activity. Besides this, when a Government employee is placed under suspension by virtue of order passed by competent authority or where a Government employee is deemed to be under suspension, the jural relationship of employer and employee does not come to end and during that period he does not cease to be government employee. The relationship would subsist but the employee would be temporarily suspended from reporting for duty. Consequently, a Government employee cannot engage himself in any other employment or in any gainful activity. 27. If the contention put forward by the petitioner is accepted then in the first instance the purpose and object of payment of “subsistence allowance” would not only be frustrated but the real object for payment of subsistence allowance would be destroyed. Therefore, the words/expression prescribed in the format Certificate (to be furnished by delinquent employee) i.e the words “trade or business” cannot be given narrow interpretation and the said words have to be construed by keeping in focus the reason/purpose for demanding such Certificate from delinquent employee. 28. A Government employee is considered eligible and entitled for subsistence allowance during period of suspension essentially and mainly for mitigating hardship of the employee during period of suspension and it ensures that the employee is not forced to survive without any payment (wages) during period of suspension and he may not be placed in situation similar to non-employment. The said arrangement-provision (for subsistence allowance) find both, the employer and employee, to the Rules and oblige them to comply all service conditions. The said allowance is paid to the employee to also enable him to effectively defend himself in any departmental proceedings without undergoing the pressure in absence of salary during period of suspension. Subsistence allowance also enables the employer to restrain an employee from place of duty for some period without snapping-discontinuing employer and employee relation. The payment of subsistence allowance also recognises the fact that though the employer has temporarily restrained the employee from discharging his duties, jural relationship of employer and employee subsists otherwise there would not be any need or obligation to pay said allowance. 29. The payment of subsistence allowance also recognises the fact that though the employer has temporarily restrained the employee from discharging his duties, jural relationship of employer and employee subsists otherwise there would not be any need or obligation to pay said allowance. 29. In this view of the matter, if the Government employee who is placed under suspension or who is deemed to be under suspension engages himself in “any gainful activity” then such employee would, on one hand breach requirement prescribed by Rule 34 and he, on the other hand, would frustrate and destroy the object of payment of subsistence allowance. Further, such construction of the provision would lead to abuse of the provision which enable the employer to place employee under suspension and simultaneously cast obligation on the employer to pay subsistence allowance. 30. The provision which cast obligation to pay subsistence allowance as well as the provision which requires the employee to declare that he is not engaged in private employment or trade or business, must be read to achieve real purpose of the provision and it must be read in such manner which would advance and achieve real purpose of the provision and not in a manner which would frustrate and destroy the object. In this view of the matter, it deserves to be noted that while the expression “private employment” has very specific and restricted connotation, whereas the expression “trade and business”, in the said provision, are used with all grammatical variation and linguistic with wide connotation and said expression takes in its fold “any gainful activity” or any activity which is source of income for an employee during period of suspension and /or any activity which, in ordinary course, would amount to or can be construed as “gainful activity”. The said provision and/or the expression “private employment” and “trade or business” cannot read to mean that an employee who is placed under suspension/who is deemed to be under suspension can engage himself in nay “gainful activity” (during period of suspension) except said 3 activity. The said expression are not exhaustive they are merely illustrative. The purpose of the provision is to restrain employee from engaging himself (during period of suspension) in any “gainful activity” including the employment, trade or business and to provide for monetary assistance by way of or in form of subsistence allowance. The said expression are not exhaustive they are merely illustrative. The purpose of the provision is to restrain employee from engaging himself (during period of suspension) in any “gainful activity” including the employment, trade or business and to provide for monetary assistance by way of or in form of subsistence allowance. It cannot be accepted or digested that an employee can be engaged in any gainful activity (except three activities illustratively mentioned in the proviso) and earn income and simultaneously demand subsistence allowance. The delinquent employee, who is placed under suspension cannot have/cannot claim right to subsistence allowance and also engage himself in “gainful activity”. 31. In this view of the matter, the expression/words “trade or business” has to be given wider meaning and scope so as to include “gainful employment or engagement” within the purview of Rule 151 i.e. the instruction/proviso to Rule 151 and the term “trade, business” should be read to mean “any gainful activity” which would include profession, vocation etc. and the same cannot be restricted to keep out “gainful engagement” or “gainful activity” undertaken by employee wherefrom he earns/generates income. 32. The fact that the employee is obliged to furnish such Certificate every month emphasises that actual requirement is that the employee should refrain from engaging himself in “any gainful activity” and not merely trade or business in its strict and traditional sense. 33. In this view of the matter, the said contention by the petitioner cannot be accepted and the decision by the competent authority refusing subsistence allowance to the petitioner, does not deserve to be disturbed. 34. An employee who demands, as a matter of right, payment of subsistence allowance in accordance with Rules, cannot be heard to say and claim that he may engage himself in any gainful activity other than private employment and despite his engagement in gainful activity he should be paid subsistence allowance. 35. From plain reading of Rule 151, along with proviso/instruction thereunder, it becomes clear that since during the period of suspension Jural relationship of employer and employee subsist, the employee would not be at liberty to engage himself in any gainful activity and simultaneously claim subsistence allowance. 36. 35. From plain reading of Rule 151, along with proviso/instruction thereunder, it becomes clear that since during the period of suspension Jural relationship of employer and employee subsist, the employee would not be at liberty to engage himself in any gainful activity and simultaneously claim subsistence allowance. 36. In present case, it has emerged that the petitioner was enrolled as Advocate and was registered in Pleader Register at Serial No. 84 dated 5.7.1984 and the Secretary of the Bhuj Bar Association had informed the respondent vide communication dated 30.12.2003, that the name of the petitioner was enrolled as advocate and he obtained Sanad No.338-1984. 37. Thus, the petitioner engaged himself in profession as advocate in 1984 i.e. immediately after he was removed from service under order dated 30.11.1983. 38. From the record it has also emerged that right from 1984 until 2003 when he submitted the application, the petitioner had not surrendered the Sanad and/or had not submitted the Sanad with request to suspend it. Thus, during the entire period of 12 years i.e. from November, 1983 to June, 1995, the petitioner was actively engaged in profession as an Advocate. In light of such fact and said provision the Authority has not accepted the petitioner’s claim that as an Advocate he did not earn any income. 39. In light of foregoing discussion and for reasons mentioned above, the decision of the authority does not warrant interference. 40. However, having regard to the fact that the petitioner died on 14.8.2006 and also having regard to the fact that the petitioner was registered as advocate in the register on 5.7.1984 i.e. about 9 months after 30.11.1983, the Court is of the view that there is room and reason as well as need to allow some grace period after which the petitioner would start earning income as advocate. Having regard to the aspects discussed above it appears appropriate and just and equitable that the respondent should pay ex-gratia amount (equivalent to the subsistence allowance) from 1.12.1983 to 30.06.1985. 41. It is clarified that the above directions is passed only in view of the fact that the petitioner died during the pendency of the proceedings and that therefore the heirs of the respondent may get some amount and also having regard to the fact that the petitioner was not engaged in any activity, even in the profession as advocate, until June, 1984. 42. 42. With the aforesaid direction, the petition is disposed of. Rule is discharged. Order accordingly.