B.P.DHARMADHIKARI, J. - (1.)CONSIDERING the nature of controversy, the matter is heard finally at the stage of admission itself by consent of parties. Rule is made returnable forthwith.
(2.)HEARD Advocate Shri V.G. Wankhede for petitioner and Advocate Shri P.B. Patil for respondent No.1. Learned AGP appears for respondent No.2.
Advocate Shri V.G. Wankhede points out that the Departmental Appeal filed by petitioner employee under Rule 14 of the Maharashtra Zilla Parishads (Discipline and Appeal) Rules, 1968 has been allowed by respondent No.2 on 10.10.2002, but though the punishment has been set aside, the period of suspension has still been directed to be treated as period of suspension. He contends that this is without jurisdiction and needs to be quashed and set aside by this court. In support of his contention, he places reliance upon the judgment of learned Single Judge of Rajasthan High Court in the case of Prem Sukh v. State of Rajasthan reported at 1993 (2) CLR 311. Advocate Shri Patil in reply points out that under Rule 15 of the above said Rules, the petitioner has got remedy of filing revision before the State Government. On merits, he states that there is discretion available to respondent No.2 while allowing the appeal and in exercise of that discretion; the appellate authority has passed the said orders. He lastly pointed out that though the impugned order is dated 10.10.2002, the petition has been filed before this court on 27.9.2005 i.e. after more than 3 years. He, therefore, contends that this court should not interfere in the matter in writ jurisdiction. Learned AGP supports the argument advanced, by, Advocate Shri Patil.

(3.)ADVOCATE Shri Wankhede has today filed an affidavit pointing out that as the wife of petitioner was unwell and petitioner has retired on superannuation in September 2003, he could not come to Nagpur and arrange to file petition. After considering the controversy on merits, I am inclined to accept said explanations. The appellate authority has allowed the appeal filed by the petitioner and has, therefore, quashed and set aside the punishment of withholding his two increments imposed by respondent No.1. However, while so doing, it has maintained the order of suspension by observing only that the period of suspension needs to be treated as suspension only. It is apparent that this act is totally without jurisdiction. When, the petitioner has been found to be not guilty for misconduct, there was no question of suspending him and hence, the suspension imposed needs to be regularized as period spent on duty.