Gujarat High Court
Yogeshsinh Harishsinhji Chauhan vs Principal District Judge on 24 October, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9425 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
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 or any order made thereunder ?
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YOGESHSINH HARISHSINHJI CHAUHAN
Versus
PRINCIPAL DISTRICT JUDGE
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Appearance:
MR HK THAKOR(6182) for the Petitioner(s) No. 1
MR PUNIT B JUNEJA(3972) for the Petitioner(s) No. 1
IG JOSHI(8726) for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/10/2024
ORAL JUDGMENT
1. Heard Mr.H.K. Thakor, learned advocate appearing for the petitioner and Mr.I.G. Joshi, learned advocate appearing for the respondent no.1.
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NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined
2. By way of the present petition, the petitioner has prayed for the following reliefs:-
"a. This Hon'ble court be pleased to admit and allow this petition;
b. This Hon'ble court be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the order of suspension Dated 07/02/2020 issued by the respondent authority and direct the respondent authority to reinstate the petitioner in service within stipulated time period;
c. Pending admission and final hearing of this petition this Hon'ble court be pleased to issue appropriate writ, order or direction directing the respondent authority to revoke the suspension order of the petitioner and direct the respondent authority to reinstate the petitioner;
d. Ad interim relief in terms of para b. herein above may be passed in the interest of justice.
e. Any other and further relief that may be deemed fit in the interest of justice may please be passed."
3. Briefly stated, the petitioner was appointed on 28.03.2003 as junior clerk in the establishment of the District Court, Rajkot and subsequently, Rajkot district was bifurcated and new Morbi district was created and since 2012, the petitioner was rendering services in the judicial establishment of Morbi district till the date of his Page 2 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined suspension. An F.I.R. came to be lodged against the petitioner being C.R.No.45 of 2020 at Maliya Miyana police station, District: Morbi for the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code. The petitioner was under arrest and consequently in judicial custody since 31.01.2020 and in view thereof, in exercise of powers under Rules 5(1)(a) and 5(2)(a) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short, the "Rules of 1971"), the petitioner came to be suspended by the office order dated 07.02.2020 bearing no.B.16/02/2020 with effect from 01.02.2020. The said suspension order was served to the petitioner through Jailer, sub-jail, Morbi, where, he was in judicial custody.
3.1. It is the case of the petitioner that on the same day, by another order no.B/4(2)/05/2020, pending inquiry, the petitioner was transferred with immediate effect to the vacant post in the Court of the learned Principal Senior Civil Judge, Halvad. The respondent - authority once again filed an F.I.R. against the petitioner on 15.02.2020 being C.R.No.I-71 of 2020 under the provisions of Sections 406, 409 and 420 of the Indian Penal Code. 3.2. The petitioner has filed Special Civil Application No.12165 of 2020 to stay the departmental proceedings till the criminal trial was pending however, the said petition is pending. The petitioner herein Page 3 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined made a representation against the suspension order dated 07.02.2020 bearing no.B.16/02/2020 and sought to revoke the order as well as reinstate the petitioner on the post last held. It is the case of the petitioner that the aforesaid is also not considered as on today.
4. Mr.Thakor, learned advocate appearing for the petitioner relied upon Rule 5 of the Rules of 1971 and submitted that after suspension order suspending the petitioner within the stipulated time, no departmental inquiry was initiated and no chargesheet with regard to the departmental inquiry was served to the petitioner. It is submitted that the petitioner was suspended from the service by order dated 07.02.2020 with effect from 01.02.2020 and the chargesheet and relevant papers were served to the petitioner on 31.07.2020. Accordingly, after suspension order, chargesheet was not served within 90 days as stipulated under the aforesaid provision. The suspension order dated 07.02.2020 continued till today without any order extending or reviewing the suspension as per the Rules of 1971. It is submitted that Rule 5(1) provides that non-extension of suspension by a reasoned order, the suspension for the said period is required to be revoked beyond the period of 90 days.
4.1. Reliance is placed on the ratio laid down by the Hon'ble Apex Page 4 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined Court in the case of Ajay Kumar Chaudhary vs. Union of India reported in (2015)7 SCC 291 as also the orders passed from time to time, produced from page 88 at Annexure-H. Reliance is also placed on the order dated 23.07.2021 passed in Special Civil Application No.18175 of 2017. Placing reliance on the aforesaid, it is submitted that in absence of any order, extending the order of suspension upon 90 days, the same would stand revoked. 4.2. Mr.Thakor, learned advocate also relied upon the documents on record wherein, the first order of suspension was passed on 07.02.2020 bearing no.B.16/02/2020 with effect from 01.02.2020, which is duly produced at page 24. It is submitted that in between, there were no orders, extending the period of suspension however, the second order of suspension being no.B.16/27/2021 came to be passed on 09.09.2021. It is submitted that in absence of any orders extending the period of suspension, Rule 5(2)(a) of the Rules of 1971 come into force and in view thereof, the prayers, as prayed for, in the present petition are required to be allowed.
5. Mr.I.G. Joshi, learned advocate appearing for the respondent - authority relied on the affidavit-in-reply filed by the respondent herein and submitted that no interference is called for in the impugned order passed by the respondent - authority, the order of suspension having been passed on 09.09.2021 being Page 5 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined no.B.16/27/2021 for the next 90 days under Rule 5(2)(a) of the Rules of 1971. Reliance is placed on the relevant dates, which are mentioned in paragraph 4 of the reply at page 151 and it is submitted that the petitioner was suspended by the order dated 07.02.2020 with effect from 01.02.2020. Subsequently, upon inquiry on 06.03.2020, it came to the notice of the respondent - authority that the petitioner is released on bail qua the first complaint however, in absence of any intimation by the petitioner herein, no orders could have been passed. It is submitted that on 03.04.2020, the petitioner filed representation against the suspension order dated 07.02.2020 and prayed to revoke the same. In the said representation also, it was never intimated that the petitioner was released on bail. On 01.05.2020, the petitioner filed application, seeking permission to leave the Head Quarter, which was also acceded to. In the said application, a reference was made about the petitioner's release on bail. It is submitted that on 29.06.2020, the petitioner again sought permission to leave the Head Quarter however, till 30.07.2020, the same was acceded to. Thus, the petitioner was not at the Head Quarter till 30.07.2020. On 01.07.2020, the chargesheet was issued which was sent at Halvad. Since the petitioner was on Head Quarter leave from 29.06.2020 till 30.07.2020, the chargesheet could not be served to the petitioner till his return to the Head Quarter. It is submitted that the petitioner was served with the chargesheet on 31.07.2020 accordingly. It is Page 6 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined submitted that on 14.08.2020, the petitioner made a representation to stay the departmental proceedings since the criminal cases were pending against the petitioner. The respondent - authority declined to stay the departmental proceedings however, time for 15 days was granted to file the reply. The petitioner prayed for adjournment from time to time. On 15.09.2020, the petitioner once again filed an application, seeking an adjournment and filed the reply on the even date. It is submitted that the petitioner has also filed Special Civil Application No.12165 of 2020 whereby, it was prayed to stay the departmental proceedings however, the said petition is pending. It is submitted that on 03.04.2021, the application was filed by the petitioner for revocation of the suspension order and at the said stage also, it was not intimated to the appointing authority about the petitioner's release. On 09.09.2021, the order came to be passed, extending further period of 90 days. It is submitted that in light of the aforesaid facts, no interference is called for in the impugned orders.
6. Rejoining to the aforesaid, Mr.Thakor, learned advocate submitted that the order dated 09.09.2021 being no.B.16/27/2021 was purportedly reviewing the suspension order and extending the same for 90 days came to be passed after the petitioner filed Special Civil Application No.12165 of 2020. It is submitted that the said order was not served to the petitioner and for the first time, it Page 7 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined has come to the knowledge of the petitioner, which is placed on record at Annexure-R5 to the present petition. It is submitted that upon being released on bail on 17.03.2020, the petitioner brought to the notice of the learned Principal District Judge, Morbi. It is submitted that from the aforesaid, the respondent - authority was intimated with respect to the release of the petitioner on bail as back as on 17.03.2020.
6.1. The communication dated 18.03.2020 is also relied upon, intimating that since the petitioner was transferred to the Court of the learned Principal Senior Civil Judge, Halvad, the petitioner had on 18.03.2020, reported his presence as per the order dated 07.02.2020 passed by the respondent - authority, transferring the petitioner to Halvad. It is submitted that in view thereof, it is not open for the respondent - authority to take a stand that the respondent - authority was not aware about the fact that the petitioner was released on bail whereas, the petitioner had presented himself at the said center in accordance with the transfer order.
7. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein was appointed on 28.03.2003 as junior clerk in the establishment of the District Court, Rajkot. An F.I.R. has been filed against the petitioner Page 8 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined being C.R.No.45 of 2020 at Maliya Miyana police station, District:
Morbi for the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code, the petitioner was arrested and subsequently, in judicial custody since 31.01.2020. The respondent -
authority in exercise of powers under Rules 5(1)(a) and 5(2)(a) of the Rules of 1971, suspended the petitioner by the office order dated 07.02.2020 bearing no.B.16/02/2020 with effect from 01.02.2020. It appears that after the said order, no further orders extending the suspension period were passed by the respondent -
authority.
8. Upon perusal of the record, it emerges that the order of suspension has been passed on 09.09.2021, which is duly produced at page 171, which reads as under:-
"Annexure-R5 A.D. Oza Phone No. Office: 02822-242376 Principal District Judge Direct: 02822-240123 District Court, Morbi Fax: 02822-241277 Morbi-363642 e-Mail: [email protected] Read: 1) Letter No.B-1426/XI/65 dated 07/09/2021 of the Hon'ble High Court of Gujarat;
2) Amendment made in Sub-rule (2) of Rule-5 in the Gujarat Civil Service (Discipline & Appeal) Rules, 1971 vide Notification No. GS-2007-(19) CVO -Page 9 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024
NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined 122005 - 1077 - TA dated 04/07/2007 of the General Administration Department, Government of Gujarat;
3) Office Order No.B.16/02/2020 dated 07/02/2020 of this office pertaining to the suspension of Mr. Y.H. Chauhan, Bench Clerk Grade-III;
4) Departmental Inquiry No.01/2022
dated 01/07/2020;
5) Criminal Case No.3969/2020 dated
28/09/2020 of the Chief Judicial
Magistrate Court, Morbi;
6) Criminal Case No. 175/2020 dated
27/10/2020 of the Principal Civil
Court, Maliya (Mi).
No.B/16/27/2021
Date: 09/09/2021
|| OFFICE ORDER ||
Reviewing Office Order No.B.16/02/2020 dated 07/02/2020 of this office pertaining to suspension of Mr. Y.H. Chauhan, Bench Clerk Grade-III (Under Suspension), the Principal District Judge, Morbi hereby pass the following order in the public interest as well as for the administrative exigencies that, Upon perusal and review of the Office Order Page 10 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined No.B.16/02/2020 dated 07/02/2020 of this office pertaining to suspension of Mr. Y.H. Chauhan, Bench Clerk Grade-III, it transpires that the departmental inquiry referred at Sr. No.(4) above is pending against the said employee and criminal cases referred at Sr. Nos.(5) and (6) above are also pending. Moreover, the said cases are pertaining to the grave offenses of financial misappropriations.
Therefore, if the said employee is reinstated after canceling the order of suspension, there are possibilities that the charges leveled against him might be repeated and it might adversely affect on the record of the departmental inquiry, witnesses and criminal cases pending against him. Therefore, reviewing his order of suspension, as per the provision of Rule-5 (2-A) of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971, it does not appear to be prudent / appropriate to reinstate him and therefore, the Office Order No.B.16/02/2020 dated 07/02/2020 of this office pertaining to suspension of Mr. Y.H. Chauhan, Bench Clerk Grade-III (Under Suspension) is hereby extended in the larger interest of justice and it is hereby ordered that his suspension be extended for further 90 (Ninety) days.
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NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined A.D. Oza District Court, Morbi Principal District Judge Date: 09/09/2021 Morbi Copy forwarded for information:
1) Hon'ble High Court of Gujarat, Ahmedabad
2) The Principal Senior Civil Court, Halvad"
9. Considering the undisputed facts, as referred above, it is apposite to refer to Rule 5 of the Rules of 1971, which reads as under:-
"5. Suspension :-
(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered by Government in that behalf may place a Government servant under suspension:
(a) Where a disciplinary proceeding against him is contemplated or is pending, Provided that, where a Government Servant against whom disciplinary proceeding is contemplated is suspended, such suspension shall not be valid unless before the expiry of a period of ninety days from which the Government servant was suspended, disciplinary proceedings is initiated against him, Provided further that the Government or any other authority empowered by the government by special or general order may at any time before the expiry of the said period of ninety days and after considering the Page 12 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined special circumstances for not initiating disciplinary proceedings, to be recorded in writing extend the period of suspension beyond the period of ninety days without disciplinary proceeding being initiated:
Provided also that such extension of suspension shall not be for a period of ninety days at a time.
(b) Where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial :
Provided that where the order of suspension is made by an authority subordinate to or lower in rank than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) ... ... ...
(b) ... ... ...
Explanation:- ... ... ...
(2A) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from @ the effective date of suspension After such review, the competent authority may pass an order either Page 13 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined extending or revoking the suspension. The subsequent reviews shall be made before expiry of the extended period of suspension. The extension of suspension shall not be for a period exceeding one hundred and eighty days, at a time.
An order of suspension made or deemed to have been made under subrule (1) or (2) of this rule, shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2),if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority ,whichever is later.
(3) Where a penalty of dismissal, removal or ... ... ... (4) Where a penalty of dismissal, removal or ... ... ... (5) Subject to the provisions contained in sub-rule (2A),an order of suspension made or deemed to ... ... ... Page 14 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024
NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined
(b) Where a Government servant is suspended or is deemed to have been suspended, in connection with any disciplinary proceeding or otherwise and any other .........
(c) An order of suspension made or deemed to have been made under this rule may be at any time be modified ... ... ..."
9.1. Rule 5 of the Rules of 1971 provides that the appointing authority or an authority subordinate to the disciplinary authority is empowered to place a government servant under suspension where a disciplinary inquiry is contemplated or is pending. Sub-rule (1) to Rule 5 provides that such suspension shall not be valid before expiry of ninety days from the date of suspension, unless disciplinary proceedings are initiated against the government servant. Initiation of the disciplinary proceedings after expiry of the aforesaid period of 90 days would require reasons to be recorded in writing and to be on the conditions mentioned in the subsequent clauses of the Rules. 9.2. Sub-rule (2) of Rule 5 provides that in the event of detention, conviction etc., the government servant shall be deemed to have been suspended. Sub-rule (2A) provides that suspension made or deemed to have been made under Rule 5 shall be reviewed by the competent authority upon expiry of ninety days. Further extension can be passed on or after reviewing the same. It further provides Page 15 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined that all subsequent review shall be undertaken before expiry of the extended period. It is also provided that an order of suspension made or deemed to have been made under sub-rule (1) or sub-rule (2) shall not be valid after a period of ninety days unless the same is extended after review, and the review was undertaken before the expiry of ninety days.
10. It is apposite to refer to the ratio laid down by the Hon'ble Apex Court in the case of Ajay Kumar Chaudhary vs. Union of India reported in (2015)7 SCC 291. Paragraph 21 thereof, reads as under:-
"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We Page 16 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined recognize that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
11. It is also apposite to refer to the ratio laid down by this Court in Special Civil Application No.18175 of 2017 vide order dated 23.07.2021. Paragraphs 7,8,9,10,11,12 and 13 thereof, read as under:-
"7. On perusal of the above Rules, it is clear that the order of suspension passed under Rule 5(1) (b) shall not be valid after a period of 90 days unless it is extended after review, for a further period before the expiry of 90 days. Proviso to sub-rule (2A) stipulates that the period of 90 days shall be counted from the date the Government servant detained in custody is released from the detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later. In the facts of the case, the petitioner informed respondent no.2 who is the appointing authority of the petitioner about his release from detention on 7.8.2015. Therefore, on or before 7.11.2015, the suspension order ought to have been reviewed but the same was not done by the respondent no.2 or his office and the extension order Page 17 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined was passed on 3.3.2018 with retrospective effect which is contrary to subrule (2A) of Rule 5 of the Rules, 1971.
8. On perusal of the above Rules, the suspension of the petitioner from service is required to be reviewed within a period of 90 days from the date of the suspension. However, the suspension order passed by the respondents is not reviewed within a period of 90 days and extension order was passed with retrospective effect contrary to the Rules and therefore, the suspension order stands vitiated.
9. In view of the amendment of the Rules in the year 2007 by insertion of Sub-Rule(2A) in Rule 5 vide Government notification dated 4.7.2007, the order of suspension is required to be reviewed by the authority competent to modify or revoke the suspension before expiry of 90 days and after review, the same can be extended and subsequent reviews can be made before the expiry of the extended period of suspension. But over all period of suspension cannot be more than 180 days at a time. In the facts of the case as no review was made by the authority competent to modify or revoke the suspension before the expiry of 90 days, the action of the respondent authorities to give retrospective extension of the suspension order of the petitioner is contrary to the Rules and therefore, the same cannot be sustained.
10. It is also pertinent to note that the petitioner has not been paid the subsistence allowance. Even the quantum of subsistence allowance was required to be reviewed as per the provisions of Rule 68 contained in the Gujarat Civil Services (Joining Time, Foreign Page 18 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined Services, Deputation out of India, Payment during Suspension, Dismissal and Removal) Rules 2002 but the respondent authority has not reviewed the quantum of subsistence allowance at any point of time. Similarly, the order of the respondent authority directing the petitioner to remain present at headquarter was also without authority of law and passed only with a view to harass the petitioner as the suspended employee is not required to attend the office daily and his presence at headquarter was not required and therefore, the action of the respondent authorities insisting the presence of the petitioner at headquarter was nothing but a harassment of the petitioner.
11. Considering the applicable Rules as well as the Government Resolution, it is apparent that respondent no.2 has remained negligent and as a result thereof, the respondents would be liable to pay the arrears to the petitioner as a consequence of revocation of the suspension order from November 2015 as the petitioner would have to be considered on duty.
12. In view of the above facts emerging from the record, respondent no.2 is hereby directed to initiate the necessary proceedings including the departmental inquiry against the concerned persons who have remained negligent during the period from 2015 till March 2018 in not reviewing the suspension order as per Sub-Rule (2A) of Rule 5 of the Rules 1971.
13. In view of the foregoing reasons, the petition succeeds and is accordingly allowed and the suspension order at Annexure-A (page-14 of the Page 19 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined petition) is hereby quashed and set aside in view of operation of Sub-Rule (2A) of the Rule 5 of the Rules 1971. As a consequence of revocation of the suspension order, the respondents are directed to pay the arrears of regular pay to the petitioner from November 2015 onwards after deducting the subsistence allowance, if any, paid to the petitioner within a period of 15 weeks from the date of receipt of this order."
12. In the facts of the present case and the position of law, as referred above, considering Rule 5(2A) of the Rules, 1971 as referred above in absence of the order of extension of suspension, either extending the order of suspension or reviewing the order, the validity of the first order would come to an end upon completion of 90 days. Admittedly, in the facts of the present case, the first order of suspension came to be passed on 07.02.2020 pursuant to the two FIRs being C.R.No.45 of 2020 and C.R.No.I-71 of 2020. Thereafter, no further orders are passed, except the order dated 09.09.2021 as reproduced hereinabove in paragraph 8, duly produced at page 171 by the respondent - authority. It is also not in dispute that the petitioner herein appeared at the place of transfer on 18.03.2020 and in view thereof, it is not open for the respondent - authority to take stance that the respondent - authority was not aware about the fact that the petitioner was released on bail.
13. For the foregoing reasons, in exercise of the powers under Page 20 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024 NEUTRAL CITATION C/SCA/9425/2021 JUDGMENT DATED: 24/10/2024 undefined Article 226 of the Constitution of India, the present petition succeeds and the same is allowed. The respondent - authority is directed to revoke the orders of suspension of the petitioner dated 07.02.2020 and 16.02.2020 and reinstate the petitioner. The aforesaid exercise be undertaken within a period of four weeks from the date of receipt of copy of this order.
14. The aforesaid findings are with regard to the challenge qua the impugned orders of suspension dated 07.02.2020 and 16.02.2020. This Court has otherwise not opined with respect to the departmental proceedings pending against the petitioner herein and the same be undertaken in accordance with law.
15. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Hitesh Page 21 of 21 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Thu Nov 14 2024 Downloaded on : Fri Nov 15 21:53:34 IST 2024