Gujarat High Court
Champakbhai Ishwarbhai Solanki vs State Of Gujarat on 2 August, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18023 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
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 ?
==========================================================
CHAMPAKBHAI ISHWARBHAI SOLANKI & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR CHINTAN DESAI FOR MR BOMI H SETHNA(5864) for the Petitioner(s)
No. 1.1,1.2,1.3,1.4,1.5,1.6
MR VB KUNDAN SINGH(3021) for the Petitioner(s) No. 1
MS POOJA ASHAR AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 02/08/2024
ORAL JUDGMENT
1. Heard Mr.Chintan Desai, learned advocate appearing for the petitioner and Ms.Pooja Ashar, learned A.G.P. appearing for the respondent - State.
Page 1 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined
2. Brief facts leading to filing of the present petition read thus:-
2.1. The petitioner was serving as sweeper (class - IV employee) since 19.10.1991 at Referral Hospital and Community Health Centre, Mahuva, District: Surat. As a part of duty, the petitioner conducted postmortem of the dead body of Narendrabhai Lallubhai Patel, who died in the accident on 08.01.2009 and in view thereof, brother of deceased - Dr.Mahendrabhai Lallubhai Patel registered a complaint with Mahuva police station, District: Surat bearing I-C.R.No.01 of 2009 for the offence punishable under Sections 276 and 304 of the Indian Penal Code and Sections 177, 184 and 134 of the Motor Vehicle Act.
2.2. At a later point of time, the police came to know that brother of deceased - Dr.Mahendrabhai had taken many individual accident policies in his brother's name and after the death of his brother, claimed insured amount and, therefore, chargesheet came to be submitted before the Court of the learned Judicial Magistrate First Class, Mahuva for the offences punishable under Sections 193, 195, 279, 304(A), 406, 418, 420, 468, 471 and 120(B) of the Indian Penal Code and Sections 177, 184 and 134 of the Motor Vehicle Act.
2.3. It is the case of the petitioner that to conceal the irregularities, the petitioner came to be falsely implicated in the said case and was arrested on 25.07.2012 and thereafter, released on bail on 09.08.2012. The petitioner was kept in judicial custody for more than 48 hours and, therefore, was suspended from 25.07.2012 by the officer under the respondent vide order dated 20.08.2012.
2.4. It is the case of the petitioner that for the incident occurred in Page 2 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined the year 2009, the petitioner was suspended after more than three years and if the trial would consume time and continue and if the petitioner would be acquitted and fully exonerated by the respondent - authority, even then, if the petitioner's suspension is not cancelled, as required under the law, the same would create hardship to the petitioner and his family, which could not be compensated in terms of money. Further, the petitioner belongs to Scheduled Caste community and is not having good financial background.
2.5. During the pendency of the present petition, the petitioner has expired on 19.06.2016 and is represented by the legal heirs, brought on record by order dated 27.02.2020.
3. Mr.Chintan Desai, learned advocate appearing for the petitioner submits that the suspension order at Annexure-A is invalid and continuance of suspension by the said order is illegal.
3.1. Reliance is placed on the Government Resolution dated 20.07.2007 bearing No.CVO-122005-1077-Inv.U and it is submitted that the employee suspended to be considered under the order of suspended or suspension during the period of 90 days of the order or in period of extended time by observing if the proper order is not to be issued, then on completion of such time, the order of suspension does not exist.
3.2. Placing reliance on the aforesaid, it is submitted that subsequent to completion of 90 days, the order of suspension is not extended and in view thereof, the petitioner is governed by the said resolution dated 20.07.2007 and the order of suspension for the Page 3 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined aforesaid period is required to be revoked.
3.3. Being aggrieved by the aforesaid, the petitioner has preferred the present petition and prayed for the following reliefs:-
"(A) This Hon'ble Court please to allow this application;
(B) This Hon'ble Court please to issue a writ of Mandamus and/or Certiorari and or any other Writ, order or directions, directing and quashing and setting aside the suspension order dated 20.08.2012 at Annexure-A to this petition and declaring the same as capricious, illegal, violation of principle of natural justice, unconstitutional and bad in law and direct the respondent to reinstate the applicant in service.
(C) Pending admission, final hearing and disposal of this petition this Hon'ble Court please to direct the respondent to allow the applicant to join his service and to pay him full salary.
(D) To direct the respondent to pay the arrears of salary with 18% interest.
(E) To pass any other and further order that may be deemed fit and proper in the interest of justice.
(F) To provide the cost of this petition."
4. Ms.Pooja Ashar, learned A.G.P. appearing for the respondent -
authority placed reliance on the affidavit-in-reply filed by the respondent no.3, duly produced at page 22 and submitted that the petitioner was in jail custody for more than 48 hours as per the Page 4 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined provisions of Sub-Rule 1(a) of Rule 5 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short, the "Rules of 1971") and was under suspension with effect from the date of detention in jail custody i.e. 25.07.2012 vide order dated 20.08.2012.
4.1. It is submitted that the said period of suspension was extended from time to time and the allowance applicable thereto was also extended to the petitioner as per the prevailing Rules. It is submitted that in view of the criminal proceedings, chargesheet came to be filed against the petitioner on 31.10.2012 before the learned Judicial Magistrate First Class, Mahuva. It is submitted that in light of the aforesaid, the order of suspension dated 20.08.2012 at Annexure-A is just and proper.
4.2. When the matter was taken up for hearing, this Court directed the respondent - authority to file an affidavit as to whether, the period of suspension was extended by the written orders by the respondent - authority, to which, the affidavit-in-reply is filed. The respondent - State has filed further affidavit dated 18.07.2024 wherein, it is submitted that the order of suspension came to be extended from time to time, the details of which, are duly placed on record from page 89 (collectively). It is submitted that subsequent thereto, the departmental proceedings came to be initiated against the petitioner herein however, the petitioner having expired, the said departmental proceedings came to be dropped. It is submitted that in view thereof, no error can be said to have been committed by the respondent - authority.
4.3. Reliance is also placed on an undertaking filed by the petitioner on 01.06.2015 in consonance with the Government Resolutions dated 23.03.2005 and 20.07.2007. It is submitted that Page 5 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined the petitioner was issued the chargesheet in the instant disciplinary action on 06.05.2015. It is submitted that vide order dated 01.06.2015, the petitioner was reinstated at the place of suspension on the conditions mentioned therein to which, the petitioner specifically undertook not to raise any claim for regularizing the period of suspension until the disciplinary actions/criminal proceedings against the petitioner are concluded. Upon demise of the petitioner, the legal heirs of the petitioner are extended all the benefits payable thereto i.e. lump-sum compensation, group insurance, leave encashment, GPF final payment and gratuity to the tune of Rs.16,01,818/-. During the pendency of the disciplinary proceedings on 19.06.2016, the petitioner has expired and hence, as per the Rules and the Government Resolution No.CDR-1092- 1590-TAPAS EKAM dated 09.10.1993, the disciplinary proceedings were dropped as the same stood abated.
4.4. In light of the aforesaid, it is submitted that as such, the prayers, as prayed for, by the petitioner in the present petition can be said to be infructuous.
5. Having heard the learned advocates appearing for the respective parties, having perused the record and the impugned order of suspension dated 20.08.2012 at Annexure-A passed by the respondent no.2, it appears that the said order has been extended by written orders, duly placed on record at Annexure-R2 to R12. It is also not in dispute that the disciplinary proceedings came to be initiated against the petitioner on 06.09.2015 and the chargesheet was issued with respect to the same. In light of the Government Resolution dated 20.07.2007, the petitioner came to be reinstated at the place of suspension on the conditions mentioned therein wherein, the petitioner undertook not to raise any claim for Page 6 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined regularizing the period of suspension until the disciplinary actions/criminal proceedings against the petitioner are concluded. This Court has perused the copies of the order of reinstatement and undertaking, which are duly produced at Annexure-R14 (page 89 and 90).
5.1. Upon perusal of the record, it emerges that the petitioner is seeking quashing of the suspension order dated 20.08.2012 and has further prayed for direction against the respondent to release the arrears of salary deducted in pursuance to the said order of suspension. Further, the said order is passed after commission of offence after three years and such suspension stands revoked due to untimely extension of such order which is violative of Sub-Rule 2(a) of Rule 5 of the Rules of 1971.
5.2. In the opinion of this Court, the petitioner was arrested on 25.07.2012 and released on bail on 09.08.2012. Since the petitioner was arrested for more than 48 hours, the suspension order came to be passed on 20.08.2012 against the petitioner. The said suspension order has been extended from time to time and the details of the same are reproduced as under:-
Date Annexure
1 Extension
st
16.10.2012 R2
2nd
Extension 16.01.2013 R3
3rd Extension 12.04.2013 R4
4th Extension 09.07.2013 R5
5th Extension 04.10.2013 R6
6th Extension 01.01.2014 R7
7th Extension 07.04.2014 R8
8th Extension 25.06.2014 R9
9th Extension 29.09.2014 R10
Page 7 of 11
Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024
NEUTRAL CITATION
C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024
undefined
10th Extension 08.01.2015 R11
11th Extension 06.04.2015 R12
5.3. Upon perusal of the aforesaid orders, it appears that the mandate of Sub-Rule (2) of Rule 5 of the Rules of 1971 is duly complied with by the respondent - authority, which provides for deemed suspension with effect from the date of detention. In the facts of the present case, the order of suspension was issued on 20.08.2012 suspending the petitioner from services from 25.07.2012 i.e. the date on which, the petitioner was detained.
5.4. Further, the chargesheet came to be issued to the petitioner initiating disciplinary action on 06.05.2015. The petitioner has expired on 19.06.2016.
5.5. In view of the aforesaid undisputed facts, the petitioner chose not to prefer appeal challenging the orders of suspension as provided under Rule 18, Sub-Rule (1) of the Rules of 1971, subject to the limitation as provided under Rule 19 of the Rules of 1971, which reads thus:-
"18. Orders against which appeal lies :-
(1) Subject to the provisions of rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely :-
(i) an order of suspension made or deemed to have been made under rule 5....."
5.6. Rule 21(1) empowers the appellate authority to revoke or modify the order of suspension if challenged under appeal. Rule Page 8 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined 21(1) of the Rules of 1971 reads thus:-
"21. Consideration of appeals :-
(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly....."
5.7. In view of the aforesaid, the Court deems it fit to refer to the decision of the Apex Court in the case of S.A. Khan vs. State of Haryana and others reported in AIR 1993 SC 1152. Paragraph 28 of the said judgment reads thus:-
"28. From the above quick succession of events, it has been forcibly urged that though the investigation of the corruption case does not writ large on the face of the suspension order, in fact this order is very much connected with the investigation of the corruption case which was under the supervision and incharge of the writ petitioner, Shri Khan and therefore this Court should exercise its extraordinary jurisdiction in revoking this suspension. We are unable to accept the above argument. As we feel that any observation of ours, if made, on the submissions advanced on behalf of the petitioner as regards the alleged mala fide, exercise of fraud, arbitrariness, malice etc. will prejudice or be detrimental to either of the parties in any future adjudication relating to the suspension order, we refrain from expressing our views on this aspect. Further we see no force in the argument that Page 9 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024 NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined there is a gross violation of Article 14 of the Constitution giving rise to the filing of the writ Petition under Article 32 of the Constitution. Above all, we are inclined to dismiss this writ petition since it is only a suspension order and there is a statutory remedy available to the petitioner."
6. In light of the aforesaid undisputed facts, the orders have been passed by the respondent - authority from time to time and the petitioner was reinstated in light of the Government Resolution dated 20.07.2007 and the petitioner also undertook not to raise any grievance until the proceedings were pending.
7. Reliance placed by Mr.Desai, learned advocate appearing for the petitioner on the decision of this Court in the case of Maneesh Khushalchandra Shukla vs. State of Gujarat Thru. The Dy.Secretary reported in 2020(1) GLR 710, in the opinion of this Court, is not applicable, in view of the fact that in the facts of the present case, the suspension orders have been passed by the competent authority, which are in writing and reasoned orders, moreover, departmental proceedings were also initiated against the petitioner however, upon demise of the petitioner, the said proceedings came to be dropped in accordance with the Government Resolution dated 09.10.1993. Further, the legal heirs, who are before the Court, are entitled to the benefits and are extended the same that are available to them upon demise of the petitioner, to the tune of Rs.16,01,818/-.
8. For the foregoing reasons, no interference is called for in the impugned order, exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
Page 10 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024NEUTRAL CITATION C/SCA/18023/2013 JUDGMENT DATED: 02/08/2024 undefined
9. Accordingly, the present petition is dismissed. Rule is discharged.
(VAIBHAVI D. NANAVATI,J) Hitesh Page 11 of 11 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Aug 23 2024 Downloaded on : Fri Aug 23 23:08:44 IST 2024