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SCA/2414/1998 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2414 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHIVNARAYAN
CHHEDILAL GUPTA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PH PATHAK for
Petitioner(s) : 1,
MS KRINA CALLA AGP for Respondent(s) : 1 -
2.
RULE SERVED BY DS for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 26/03/2010
ORAL
JUDGMENT
1.0 By
way of present petition, the petitioner has prayed for a direction to
the respondent authorities to pay the arrears of full salary and
admissible allowances for the period of his suspension, i.e from
23.04.1982 to 20.10.1985 with interest @ 18 % per annum.
2.0
It is the case of the petitioner that he was appointed as Clerk in
the Legal Department of respondent- State and was promoted as
Assistant in the year 1977. During the tenure of his service, he was
served with charge-sheet dated 23.04.1982 and criminal case was filed
against him. He was acquitted from the charges levelled against him
by the Criminal Court. Thereafter departmental inquiry was conducted
against the petitioner pursuant to which, he was suspended from
23.04.1982 to 23.10.1985 and, therefore, his suspension period was
not regularized. Being aggrieved by the said order, the petitioner
approached this Court by way of Special Civil Application No. 805 of
1986 which was partly allowed. The petitioner has made representation
which was rejected vide order 12.12.1997. Hence, this petition.
3.0 Learned
advocate for the petitioner has submitted that the impugned order
dated 12.12.1997 passed by the respondent authority is not legal as
the reasonings given for suspension are not just and proper.
3.1 Learned
advocate for the petitioner further contended that in departmental
inquiry, the petitioner had been exonerated. In support of his
submissions, he relied on the decision of the Apex Court in case of
Brahma Chandra Gupta versus Union of India
reported
in AIR 1984 Supreme Court 380,
wherein in paragraph 6, it is held as under:
6.
Mr. R.K. Garg, learned counsel for the appellant wanted us to examine
the score and ambit of Article 193 and Mr. Gujral learned counsel for
the Union of India was equally keen on the other side to do the same
thing. We steer clear of both. The appellant was a permanent UDC who
has already retired on superannuation and must receive a measure of
socio-economic justice. Keeping in view the facts of the case that
the appellant was never hauled up for departmental enquiry, that he
was prosecuted and has been ultimately acquitted and on being
acquitted he was reinstated and was paid full salary for the period
commencing from his acquittal and further that even for the period in
question the concerned authority has not held that the suspension was
wholly justified because 3/4th of the salary is ordered
to be paid, we are of the opinion that the approach of the trial
Court was correct and unassailable. The learned trial Judge on
appreciation of facts found that this is a case in which full amount
of salary should have been paid to the appellant on his reinstatement
for the entire period. We accept that as the correct approach. We
accordingly, allow this appeal, set aside the judgement of first
appellate Court as well of the High Court and restore the one of
trial Court with this modification that the amount decreed shall be
paid with 9 % interest p.a. from the date of suit till realization
with costs throughout.
3.2 Learned
advocate for the petitioner submitted that an order adjusting the
suspension period from 23.04.1982 to 20.10.1985 against the leave
available could not have been passed as the same would tantamount to
punishment. In the departmental inquiry, the petitioner has been
exonerated. Therefore, under the B.C.S. R Rules, 1959, the petitioner
should be paid full salary and allowances during the period of his
suspension from 23.04.1982 to 20.10.1985. Hence, in the above Rule,
it clearly lays down that if a Government Servant who is placed under
suspension pending departmental proceedings his suspension period
must be treated as the duty and he must be paid full pay and
allowances to which, he would have been entitled. The petitioner was
reinstated in 17.10.1985. The competent authority pay the full salary
and allowances to which, it would have been entitled during
23.04.1982 to 20.10.1985. Learned advocate for the petitioner has
further relied on the decision in case of Ramsinhji
Viraji Rathod, Parmanand Society versus the State of Gujarat 1971
LAB I.C 923 (v 4 C 219)
wherein in paragraph 4 held as under:
4.
Rule 152 of the B.C.S. Rules provides as follows:-
152.
(1) When a Government servant who has been dismissed, removed or
suspended is reinstated, the authority competent to order the
reinstatement 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; and
(b) whether
or not the said period shall be treated as a period spent on duty.
(2)
Where the authority mentioned in clause (I) is of opinion 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 and allowances to which he would have
been entitled had he not been dismissed, removed or suspended, as
the case may be.
Though
the show cause notice, dated February 18, 1967, Annexure J to the
petition uses the words hounourable acquittal in substance what
appears to have been in the mind of the authorities concerned is the
concept of full exoneration set out in sub-rule (2) of Rule 152 of
the Bombay Civil Services Rules.
3.3 Learned
advocate for the petitioner further relied on the the decision in
case of Kantaben Fulabhai Khant, w/d of deceased Fulabhai
versus District Development Officer and Anr- 2008(2) G.L.H (UJ) 9
i.e in Special Civil Application No. 1476 of 1988.
4.0 Pursuant
to the departmental inquiry and order which was passed, the learned
advocate for the petitioner strongly relied on the decision rendered
in case of K.D. Desai versus High Court of
Gujarat reported in
2009 (3) G.L.H 631 wherein Division Bench of this Court has
held in Paragraph 15 as under:
15.
Now we deal with the authorities cited by Mr. Girish Patel, learned
Counsel for the petitioner.
In
Girjaprasad Nagardas Dave v. The State of Gujarat, 1971 Labour
and Industrial Cases 921, a Division Bench of this Court
considered the same Rule 152 and held as under:
It
is, therefore, essential that the Competent Authority making a
specific order under Rule 152 must, in cases of suspension, apply
the mind also to the question whether or not suspension was wholly
unjustified, even if it comes to the conclusion that the concerned
Government servant has not been dully exonerated and form an opinion
with regard to the same and make an appropriate order under the said
rule in conformity with the said opinion. An order made without due
compliance with the aforesaid requirements must fail on the
ground that it suffers from the vice of non-application of mind
to one of the relevant factors which must enter into account before
making a specific order under the said rule.
In
the facts of that case, the Court held that before making the
impugned order, the Competent Authority has not at all applied its
mind to the above aspects of the matter. The Court, therefore,
quashed the order as suffering from vice of non-application of mind.
The Court also left it open to the Competent Authority to take
such proceedings afresh in the matter as it thinks proper after
issuing a notice to the petitioner and make a specific order under
Rule 152 in accordance with law and in light of the observations
made in the judgmment. The decision, therefore, does not support the
case of the petitioners but only reiterates what has been held in the
decisions already considered hereinabove.
5.0 Mrs.
Calla, learned Assistant Government Pleader has raised contention
that the authority after considering the remand pursuant to the order
of this Court dated 12.08.1997 passed in Special Civil Application
No. 805 of 1986 has reconsidered the argument for reinstatement of
the petitioner. There is no justification to consider the
suspension period as on duty and same was treated as leave since the
same was not suspension is not justified.
6.0 As
a result of hearing and perusal of the documents on record, the
suspension order of the petitioner dated 23.04.1982 shows that the
petitioner was required to be placed under suspension on account of a
criminal case lodged against him and in view of breach of Rule 3(i)
(ii) and (iii) of the Gujarat Civil Services (Conduct) Rules, 1971.
The petitioner was acquitted and in view of the order passed by this
Court dated 12.08.1997 passed in Special Civil Application No. 805
of 1986, the argument for reinstatement of the petitioner has been
reconsidered. The case of the petitioner is that serious allegations
were made against the petitioner. The petitioner misbehaved with the
Superior Officer which is serious misconduct on the part of the
petitioner. The order of suspension of the petitioner is just and
proper. It may be ultimately because of lack of non-availability of
the witness, he must have been acquitted. The investigation officer
has not produced the evidence as observed by the trial Court in the
criminal case but it is entirely at the discretion of the employer to
consider the question regarding the period of suspension. The view
taken by the authority regarding the suspension period as on leave is
just and proper.
7.0 The
petition is devoid of merits and the same is dismissed. Rule is
discharged with no order as to costs. Interim relief, if any, stands
vacated.
(K.S.JHAVERI,
J.)
niru*
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