Gujarat High Court
R.R. Jain (Retired Principal Judge City ... vs State Of Gujarat on 6 July, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15473 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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R.R. JAIN (RETIRED PRINCIPAL JUDGE CITY CIVIL & SESSIONS
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1.1,1.2
MR MB GANDHI(326) for the Petitioner(s) No. 1.1,1.2
MS DHWANI TRIPATHI & MR SHIVAM DIXIT AGPs for the Respondent(s)
No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2,3
MS TRUSHA K PATEL (2434) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/07/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) Page 1 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022
1. Present petition is preferred raising serious grievances for not treating period of suspension on duty as also for denying giving of effect to the recommendations of Shetty Pay Commission while calculating the pension of the petitioner and refusal to pay revised pension urging the same to be held as illegal.
2. Facts shorn of the details leading to the present petition are as follow;
2.1 The petitioner was appointed as a Direct Recruit on the post of Judge, City Civil and Sessions Court, Ahmedabad from where he was elevated to the post of Judge, High Court of Gujarat in the year 1995. However, before being made permanent, because of some criminal complaints against the petitioner, he was again reappointed as Principal Judge of City Civil and Sessions Court and was eventually permitted to retire on 31.7.2008, without holding any departmental proceedings. Obsolete Page 2 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 2.2 The petitioner preferred Special Civil Application No. 448 of 2010, where he prayed for a writ of mandamus for direction for holding and declaring that the departmental inquiry is obsolete and the same is to be quashed and set aside and the writ was sought for refusing the gratuity amount with interest etc. The said SCA was disposed of by the Division Bench (Coram: Hon'ble The Chief Justice and Hon'ble Mr. Justice Akhil Kureshi) on 23.4.2010. Thereafter, the petitioner received the full amount of gratuity with interest and no other claim of retirement is pending. 2.3 The Shetty Pay Commission for the Judicial Officers was appointed and its recommendations have been given effect to. It is the say of the present petitioner that he was suspended while he was holding the post of Principal Judge, City Civil and Sessions Court an order dated 20.4.2000 and continued to remain suspended till the age of superannuation on 31.7.2008. However, after the said suspension, according to him no departmental inquiry was initiated nor any administrative proceedings had taken place to hold him guilty for any misconduct resulting into Page 3 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 denying him any of his retiral benefits.
2.4 A certificate in form No.22 under Rule 147 bearing certificate No. A.1238/2010 dated 23.6.2010 has been issued by the High Court, which is indicative that there was no departmental inquiry even initiated nor any judicial proceedings had taken place. According to the petitioner, therefore, previous petition was filed declaring that let there be no departmental inquiry or that since it is belated, let the same be withdrawn.
2.5 The petitioner was not granted the pensionary benefits by giving effect of Shetty Pay Commission. He therefore made a representation on 12.9.2011 to the Apex Court. A letter had been received by the petitioner stating that as per Article 235 of the Constitution of India, the control over the subordinate judiciary is that of the High Court. Therefore, it is for the High Court to take necessary steps for any grievance of the petitioner .
2.6 Pursuant to the said letter, representation has been Page 4 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 made to the Registrar General High Court of Gujarat on 15.7.2011, and the same has been replied to by the High Court on 24.8.2011 wherein the Registrar General has communicated that Shetty Pay Commission effect is given from 1.1.2006 for the payment of arrears, leave salary and fixation of pension. However, because of the applicability of Rule 6 (2) of the Gujarat Subordinate Judicial Services (Revision of Pay Rule) 2009 as the petitioner was under
suspension, he was not entitled to the revised pay scale, as per the recommendation of the Shetty Pay Commission w.e.f. 1.1.2006.
2.7 It is also averred that when petitioner retired on 31.7.208, a letter was addressed by the High Court to the Principal Judge, City Civil Court and pursuant to such communication, certificate reliving him from the post of Principal Judge, City Civil Court had been issued.
2.8 According to the petitioner, Rule 6 (2) of 2009 of Revision of Pay Rules, 2009 would be applicable only when the Judicial Officer is under suspension and not otherwise.Page 5 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022
C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 No inquiry had ever been initiated after his suspension and suspension would come to an end when a government officer is permitted to retire. According to him, the government servant is under suspension and if no departmental inquiry is initiated, the suspension would end and even if the investigation has taken place in relation to the criminal charges unless the chargesheet is filed, the investigation cannot be said to have been completed. It is therefore, urged that the petitioner was permitted to retire on 31.7.2008, hence there is no suspension w.e.f. 1.8.2008. He has been given all other benefits and therefore, the Shetty Pay Commission's effect from 1.1.2006 needs to be given to him in his pension amount. By rough calculation, according to the petitioner, amount due is of Rs.4,00,000/- and payable by the department. The refusal on part of the High Court by noting sub rule-2 of Rule 6 of the Gujarat Subordinate Judicial Services (Revision of pay) Rules 2009 is alleged to be wrong.
2.9 On 22.12.2009, the petitioner had communicated with the Principal Judge, City Civil Court for fixing the revised Page 6 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 pay scale, according to the First National Judicial Pay Commission as well as for payment of arrears according to the revised pay scale, as also the pension as per the said new pay scale. The reply of 22.12.2009 indicates that the Legal Department notification dated 26.6.2009 has been sent to the petitioner which conveys that on the ground that he was under suspension, the question of revision of pay would not arise. The effect of recommendation of the Shetty Pay Commission has been given from 1.1.1996 and not from 1.1.2006 and hence, he is required to be given effect accordingly. It is also mentioned that couple of communications which have been made thereafter, have met the same fate and therefore, the petitioner has approached this Court with a prayer to direct the respondent to give effect of Shetty Pay Commission from 1.1.1996 with the following prayers:-
"23 (a) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the respondents herein to give effect of Shetty Pay Commission from 01.01.1996 and the pension of the present petitioner be revised with effect from 1st August, 2008.
(b) By appropriate writ order or direction this Hon'ble Court be pleased to direct the respondents that from 01.10.2011 onwards the pension of the petitioner be paid according to the re-fixation of pay.Page 7 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022
C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022
(c) By appropriate writ order or direction, this Hon'ble Court be pleased to direct the respondents herein to pay to the petitioner forthwith the arrears, which arises because of re- fixation of pay together with interest @ 15% per annum.
(d) By appropriate writ, order or direction this Hon'ble Court be pleased to hold and declare that the suspension no more continues and therefore, the present petitioner cannot be denied the re-fixation of pay and the order in turn passed by the High Court as per Annexure-G be quashed and set aside.
(e) By appropriate writ, order or direction this Hon'ble Court be pleased to hold and declare that the order Anneuxre-M is wrong, illegal and contrary to law and therefore, the same be quashed and set-aside and this Hon'ble Court be pleased to hold and declare that the High Court has wrongly decided to treat the petitioner on suspension in the absence of any inquiry and therefore, appropriate directions be issued to treat the petitioner as on duty and salary be ordered to be paid accordingly.
(f) By appropriate writ, order or direction, this Hon'ble Court be pleased to hold and declare that the order of the Hon'ble High Court (Annexure-O) dated 24.08.2011 whereby the petitioner has been denied the benefit of the revised pay- scale as per Shetty Pay Commission on the basis of the Revised Pay Rules, 2009 and more particularly Rule-6 Note- 2, as illegal and void and the same be quashed and set- aside and this Hon'ble Court be pleased to hold and declare that Rule-6 Note-2 is not applicable as the petitioner is no more under suspension.
(g) Pending admission, hearing and / or final disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the orders Annexure-G, M and O and be further pleased to direct the respondents herein to re-fix the pension as per the Shetty Pay Commission recommendations and to calculate the difference upto 30.09.2011 and to start paying the pension according the newly fixed pay with effect from 01.10.2011.
(h) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be granted in favour of the petitioner.
(i) Costs of this petition be provided for to the petitioner." Page 8 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022
3. We have heard the learned Senior Advocate Mr. M.B. Gandhi, assisted by learned advocate Mr. Chinmay Gandhi for the petitioner, learned AGPs Ms. Dhwani Tripathi and Mr. Shivam Dixit, for the respondent No.1 and learned Standing Counsel, Ms. Trusha K. Patel, for the High Court of Gujarat.
4. This Court issued rule on 18.4.2012 and the petition was directed to be listed for final hearing in the first week of July 2012. The matter could not be taken up as scheduled, lastly the written submissions have been tendered by both the sides with substantiating authorities on 13.6.2022. According to the petitioner, the claim of the petitioner is refixation of the pension from 1.10.2011. He also claimed interest over the same. The relief is to give effect of Shetty Pay Commission from 1.1.1996 and to revise the pension from 1.8.2008. His suspension has not continued any longer and therefore, refixation cannot not be denied.
5. Learned advocate Mr. Gandhi for the petitioner relied upon the following decisions:-
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C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 (1) B.S.N.L. and Ors vs. Rajesh Kumar Saxena reported in AIR 2008 SC 2952 (2) Chandubhai Maganbhai Sharma vs. Secretary, Government of Gujarat, Water Resources Department and others reported in 1992 (2) G.L.H. 289. (3) V.C. Dave vs. Gujarat Water Supply and Sewerage Board reported in 2011 (0) GLHEL-HC 225049 (4) A.A. Bhoira vs. State of Gujarat reported in 2003 (0) GLHEL-HC 200003 (5) A.S. Chandekar vs. State of Gujarat reported in 2004 (3) G.L.H. 421 (6) Suleman D. Khristi vs. State of Gujarat reported in 2006(0) GLHEL-HC 217038
6. For and on behalf of the respondent, Ms. Trusha Patel, learned Standing Counsel of the High Court has given the written submissions. She has also urged before this Court that in SCA No.448 of 2010, the cause of action for refixation of the pay had arisen however, no such relief has sought and hence, it is deemed to have been waived. Principles analogous to Order 2 Rule 2 and Section 11 Explanation 4 of the CPC would apply even in the writ proceedings. SCA No. 448 of 2010 was allowed to be withdrawn with limited liberty to get terminal benefits. Hence, no relief beyond the liberty reserved could be claimed. It is further urged that on 28.4.2000, the petitioner was suspended, the suspension has not been regularized, Page 10 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 on administrative side, the High Court has clarified that the period of order of suspension would not be considered as on duty, as issuance of the order of suspension fully justified in the facts and circumstances of the case. It was also clarified that the petitioner would not get any further amount for the period of suspension except the subsistence allowance already paid to him. Dropping of criminal prosecution because of the death of the petitioner cannot come to the rescue of his heirs. The orders dated 12.8.2010 and 28.1.2011 cannot be quashed on account of subsequent event of dropping of the disciplinary proceedings or abatement of criminal proceedings.
6.1 When those orders were passed they were completely justifiable. He was never reinstated nor exonerated and hence, the suspension was not revoked before his retirement. Even if his suspension came to an end of superannuation, order dated 12.8.2010 cannot be upset by the said orders. It is further contended that the order of suspension since was justified, petitioner was not entitled to any further amount except subsistence allowance already Page 11 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 paid to him. Thus, the superannuation has no bearing on validity of the said order. It is also the say of the respondent that the Director of Pension and Provident Fund has already revised the pension on the basis of recommendations of Shetty Pay Commission till 28.4.2000 i.e the date of his suspension. However, for the period after suspension till his retirement such benefit cannot be granted, as he has not served at all. According to the respondent, there is a law laid down by the Apex Court that for the period spent under suspension, when the employee has not actually worked, financial benefits like increment etc. cannot be granted. 6.2 Learned Standing Counsel for the High Court of Gujarat, Ms. Trusha Patel, relied upon the following decision:-
State Bank of India vs. The Presiding Officer, Central Government, Labour Court, Dhanbad and another reported in (1972) 3 SCC 595 6.3 She has also attempted to distinguish the decisions sought to be relied upon by the other side. She has also Page 12 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 relied on the decision of this Court in Special Criminal Application 1079 of 1998 with Special Criminal Application No. 680 of 1999.
7. Thus, on hearing both the sides extensively, before adjudicating the issue raised, chronological details shall need to be recapitulated.
7.1 The petitioner was appointed on 26.3.1987 as a Judge, City Civil and Sessions Court. His appointment as the Judge, Gujarat High Court came on 18.9.1995. The criminal complaint being CR No. 216 of 1996 and 403 of 1996 had been filed against the petitioner in wake of which, he was reappointed as the Judge City Civil Court.
7.2 Special Criminal Application No. 1079 of 1998 was filed seeking to hand over the investigation of FIR to the Central Bureau of Investigation (C.B.I.) and seeking re-investigation qua CR. No. 403 of 1996. Petitioner also sought stay qua CR No. 216 of 1996 and 403 of 1996 in the year 1998. He, however, did not inform appointing authority about the Page 13 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 criminal complaints lodged against him. Therefore, on 29.12.1999, the Standing Committee decided to initiate departmental inquiry for imposing minor penalty against the petitioner for not following the provision of Rule 18 (a) and 20 (2) of the GCS (Conduct) Rules 1971. The petitioner was suspended under Rule 5(1)(b) of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 w.e.f. 20.4.2000. 7.3 Petitioner filed quashing petition. On 1.5.2000, Special Leave to Appeal No. 1327 of 2000 was preferred where the Apex Court directed the petitioner to appear before the Court which issued the process. On 5.9.2000, the departmental inquiry was initiated wherein show cause notice came to be issued. This was replied to on 29.1.2001 by the petitioner. On 30.12.2005 inquiry officer submitted the report, where the charge of not informing the High Court about the pendency of the criminal proceedings as required under Rule 18(a) was held to have been proved, however, another charge of vindicating his private grudge was treated as not been proved. On 31.7.2008 the petitioner retired on superannuation and on 22.12.2009, he made Page 14 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 representation to the City Civil Court.
8. Vide notification dated 26.6.2009 issued by the Government of Gujarat wherein it is held that revised pay has to be paid to every judicial officer according to the First Nation Judicial Pay Commission.
9. The petitioner also sought fixation of pension and payment of arrears. These representations came to be rejected by City Civil Court on 25.1.2010, on the ground that unless and until the final order regarding the disposal of the disciplinary proceedings pending against him is received, the revised pay scale need not be fixed. 9.1 SCA No. 448 of 2010 was preferred by the petitioner seeking the relief of declaration that the departmental inquiry initiated by serving notice on 5.9.2000 against the petitioner was obsolete, as the petitioner already retired from service. He also urged for grant of gratuity with 15% and to initiate the contempt proceedings against respondents.
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10. It appear that on 6.4.2010 in departmental inquiry 1 of 2000, the decision was taken in the Chamber Meeting that no further action is required to be taken pursuant to the departmental inquiry, as he has already retired. The intimation was sent to the petitioner on 27.4.2010 and SCA 448 of 2010 came to be withdrawn without any liberty to file the fresh petition. Only clarification made was that the said order will not come in the way of the petitioner to get the terminal benefits.
11. From 27.4.2010 onwards, the petitioner made number of representations. Learned Principal Judge, City Civil Court requested the Registrar High Court to place the matter before the administrative side of the High Court and it was decided on 9.8.2010 that the period of suspension was justifiable and hence, he will not be entitled to get any further amount for period of suspension except the subsistence allowance already received. On 12.8.2010, Registrar High Court informed the Principal Judge, City Civil Court that on administrative side, it has been decided Page 16 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 not to treat the period of order of suspension as on duty, as issuance of order of suspension is fully justified, in the facts and circumstances of the case.
12. The petitioner's pay has been revised from 1.1.1996 to 20.4.2000 till the date of suspension. However, for the period beyond 20.4.2000, it is held that he is not entitled to any difference in pay and allowance as per the High Court's letter dated 12.8.2010.
13. In this backdrop of facts, this Court needs to consider whether denial of Shetty Pay Commission to the petitioner at the end of respondent, is justifiable or not?
14. Adverting to the law on subject, reference is need of case of B.S.N.L. and others vs. Rajesh Kumar Saxena reported in AIR 2008 SC 2952, where the government employee had attained the age of superannuation during his suspension and was retired provisionally. The suspension was under sub-rule(1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 on Page 17 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 the allegation that while working as an Officiating Chief Accounts Officer, he had failed to maintain absolute integrity and shown lack of devotion to duty. The employee had attained the age of superannuation during his suspension and was retired provisionally on 31st July, 2004 with the stipulation that as per the Central Civil Services Rules (Pension Rules) 1972, the payments due to him would be made on finalization of the disciplinary proceedings. This order was challenged before the Allahabad High Court by way of a Writ Petition. The Division Bench of the High Court held that as the charge sheet had been served on the appellant more than one year after his retirement and the proceedings against him were nonest and his suspension itself was not a punishment and that in any case, it would 'evaporate' on his superannuation, therefore, there was no justification in withholding the retirement benefits, such as pension, provident fund, leave salary, group insurance, CDS amount etc. and the direction had been issued to make all payments within a period of two months from the date of communication of the order. In this circumstances, the appeal was preferred by way special leave at the instance of Page 18 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 the department before the Apex Court. The question was as to whether initiation of proceedings could or could not be made after the retirement of the respondent employee and whether the chargesheet had been served within the requisite period, the Apex Court chose not to enter into the merits of the matter on the ground that this may have an effect of damaging the cause of other side however, it held that as per the rules the employee would be entitled to the payment of provisional pension and to the release of his provident fund alone and he would need to await the decision on the enquiry before the release of other retiral benefits. On basic legal issues raised before the Apex Court, the Court permitted both the sides to raise the same, at any subsequent stage, effect on that may arises. It needs to borne in mind that the matter before the Apex Court in case of Rajesh Kumar Saxena (supra) the employee was already served with the chargesheet a year prior to his retirement and therefore, the Court had upheld the stand of the appellant union of releasing his provident fund and making a payment by way of provisional pension only. Page 19 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022
15. In case of Chandubhai Maganbhai Sharma vs. Secretary, Government of Gujarat, Water Resources Department and others reported in 1992 (2) GLH 289, the Gujarat Water Resources Development Corporation had suspended the petitioner under the rules pending criminal proceedings against him and such order of suspension had continued for more than eight years without any review or modification by the authorities. The criminal proceedings also was pending since 1984 and no progress was made therein. In the meantime, on 31.12.1992 while under suspension, the petitioner reached the age of superannuation and retired. When the challenge was made before this Court, it held that nonexercise of powers of review of order of suspension and not revoking the same for unreasonably long period, resulted into deprivation of the petitioner of his right to serve and to get his full salary suspension which was unjustifiable and the court therefore quashed an set aside the order of suspension. The Court also held that the petitioner would be entitled to full salary from the date of his suspension till the date of retirement, the suspension has to be treated as lapsed as the Page 20 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 respondent authority permitted the petitioner to retire, the retirement served the ties of the master and servant and having permitted such retirement, the authorities cannot treat period of his suspension with reference to the future event of his conviction and criminal prosecution and cannot claim any right to deny fully salary and retire benefit to the petitioner. While so holding the Court had relied on the decision of the Division Bench Karnataka High Court in the case of State of Karnataka vs. R.S. Naik reported in 1983 (3) Service Law Reporter 285, wherein the Court held as under:-
"4....... As a matter of fact the respondent-corporation has permitted the petitioner to retire and therefore, the earlier order of suspension pending criminal prosecution is necessarily to be treated as having lapsed and it is no longer available for being regulated by the disciplinary authority or the respondent-corporation. Since the respondent-corporation has not continued any control as it has severed the relationship of master and servant while permitting the petitioner to superannuate, there is no other alternative left with the corporation but to treat the period of suspension of the petitioner as on duty only. The respondent- corporation therefore, shall have to pay to the petitioner full salary for the aforesaid period. In identical fact situation the Division Bench of Karnataka High Court in case of State of Karnataka vs. R.S. Naik, reported in 1983 (3) Service Law Reporter, page 285, directed the government to treat the period of suspension of the employee as on duty inasmuch as despite tendency of criminal prosecution the government has permitted the said employee to retire. In my opinion the principle laid down by the Division Bench of Karnataka High Court squarely applies to the aforesaid facts situation. It may be noted that this is a peculiar case Page 21 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 when the employee is permitted to retire while under suspension and while the criminal prosecution is pending against him. Once the the said relationship comes to an end he not only becomes entitle to all retiral benefits but he also becomes entitled to his full salary from the date he is suspended till the date of his retirement. The period of his suspension cannot now be treated by the respondent -
corporation by reference to the future event of his conviction in criminal prosecution. On the date of his retirement it is required to be determined as to how the period of suspension should be treated. The Corporation cannot claim right in itself, having permitted the petitioner to retire, to decide the period of the the suspension of the petitioner by reference to the outcome of criminal prosecution. In fact the corporation is not not at all concerned with the outcome of criminal prosecution. The crucial date is the date of retirement on that day here was nothing against the employee nor was he convicted by criminal Court. In that view of the matter, I am of the opinion that the corporation shall have also to pay full salary to the petitioner from the date of his suspension till the date of his retirement."
16. This decision makes it very clear that the order of suspension when continued for a very long time and in the meantime the employee had reached to the age of superannuation and had retired even when the criminal proceedings had been pending against the person, the court did not allow the authorities to wait for his claim to be fructified for full salary and the retiral benefit. It also did not allow the authorities to treat the period of suspension with reference to the future event of conviction in criminal proceedings. As the employee was permitted to retire, directed the entire Page 22 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 amount during the suspension and all benefits to be given to the employee. In yet another decision of V.C. Dave vs. Gujarat Water Supply and Sewerage Board reported in 2011JX (Guj) 557, the appellant was working as Deputy Executive Engineer and he was placed under suspension for the period from the year 2000 to 2004. He was served with the chargesheet in the year 2001 for irregularities in maintaining the stores register and the deficit therein on the ground of negligence of duty. The departmental proceedings was completed and the inquiry report submitted by the inquiry officer noted that the charge no. 2 alone was partly proved, where he was found to be guilty of lack of supervision. The punishment was imposed of stoppage of one increment without future effect and treating the period of suspension of four years as suspension meaning thereby that the period of suspension was not treated as period spent on duty. The appellant had argued before the Court that if such period was to be treated as suspension and not on duty, the authority were required to serve a show cause notice to the appellant and after hearing him on the question of punishment, the punishment could have been Page 23 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 imposed. Thus on the ground of breach of principle of natural justice, the challenge was made.
17. On other side, it was argued that after receipt of the inquiry report, the punishing authority had given show cause notice to the appellant and that was sufficient and no further notice was required to be served. In this backdrop, the Court held that the appellant was entitled to show cause notice before imposing the punishment of treating the period of suspension of four years, as suspension and not on duty. For the charge of supervisory negligence the punishment of stoppage of one increment without future effect was held to be a sufficient punishment. The order treating the period of suspension of four years as suspension held to be amounting to ruining the entire service carrier of the appellant being in violation of principles of natural justice and therefore the same was set aside. The following paragraphs profitably are required to be reproduced:-
"5. It is not disputed by the l earned counsel for the parties that Rule 70 of the Gujarat Civil Services (Joining Time, Foreign Service, etc.) Rules, 2002 (for short, 'the Rules') is applicable to this case. Rule 70 is extracted below:
"Regularisation of pay and allowances and the period of Page 24 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review and such Government employee is re-instated:
(1) When a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make order of reinstatement shall consider and make a specific order:-
(a) regarding the pay and allowances to be paid to the Government employee 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 sub-rule (1) is of opinion that the Government employee has been fully exonerated or in the case of suspension that it was wholly unjustified; the Government employee 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. (3) In other case, the Government employee shall be given proportion of such pay and allowances as the competent authority may prescribe: Provided that the payment of allowances under sub rule (2) or (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In case falling under sub-rule (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In case falling under sub-rule (3) the period of absence from duty shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose; Instruction: Payment of pay and/or allowances under this rule should be withheld for any period during which the Government employee has accepted private employment or engaged in trade or business certificate as prescribed in sub-rule (4) of rule-69 shall be obtained from him before payment is made.
(6) In deciding whether any pay and allowance should be granted under this rule to Government employees in temporary employment, the period for which the temporary appointment has been sanctioned shall be taken into consideration.
(7) When an appointment made in consequence of a Page 25 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 vacancy caused due to the removal or dismissal of a government employee is cancelled in order to provide for the reinstatement of the removed or dismissed Government employee, the cancellation shall not affect retrospectively to the said appointment, and for all purposes, the cancelled appointment shall be held to have been in force upto the date of its cancellation."
6. Sub-Rule (5) of Rule 70 of the Rules is relevant for this case. It requires the competent authority to specifically pass an order that the period of absence from duty while the appellant was under suspension shall be treated as period spent on duty. The import of the Rule is that if no specific order is passed the period of suspension cannot be treated as period spent on duty. But if the competent authority passes an order that period of suspension be treated as suspension or the period of absence from duty shall not be treated as a period spent on duty then in our opinion, the competent authority has to afford an opportunity of hearing to the appellant. The contention of the learned counsel for the respondent that after the receipt of the inquiry report, the punishing authority has given show cause notice as to why the appellant be not punished as charge No.2 has been found to be partly proved. This notice cannot be treated to be a notice for the purpose of sub-rule (5) of Rule 70 of the Rules. The employee must know that the competent authority/punishing authority is intending to pass an order treating his suspension period to be a period not spent on duty and unless an opportunity of hearing is afforded to the appellant till then such an order cannot be passed behind the back of the appellant without providing him an opportunity to defend his case. If suspension period of four years is not treated to be spent on duty then it may amount to break in service and will affect the pensionary rights and other rights of the appellant though the charge was partly proved that the appellant was guilty of supervisory negligence. It was not a case where the appellant was found guilty of serious misconduct and that is why the punishing authority has imposed a minor punishment of stoppage of one increment without any future effect. In our opinion the charge of supervisory negligence was not such a serious misconduct which warranted passing of an order to the effect that the period of four years during which the appellant was under suspension should be treated as period not spent on duty. The law laid down by the Apex Page 26 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 Court in Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda v. V. Venkateswarulu and another AIR 1995 SC 258 is extracted below:
"In other words it is open to the competent authority to withhold payment of full salary for the suspension period on justifiable grounds. The employee concerned has to be given a show cause notice in respect of the proposed action and his reply taken into consideration before passing the final order." The appellant was entitled to show cause notice before imposing punishment of treating the period of suspension of four years as suspension. We are of the considered opinion that for the charge of supervisory negligence punishment of stoppage of one increment without future effect was sufficient punishment. The order treating period of suspension of four years as suspension amounts to ruining the entire service career of the appellant being in violation of principles of natural justice deserves to be set aside."
18. It has been made quite clear by the Division Bench that Rule 70 of the Gujarat Civil Services Rules, 2002 which has provided for the "Regularisation of pay and allowances, the period of absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review and the government employee is reinstated. The period of absence from duty if is to be treated of period under suspension, the import of the Rule 70 was that if no specific order is passed the period of suspension cannot be treated as period spent on duty, but, if the competent authority passes an order that the period of suspension be treated as Page 27 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 suspension or the period of absence from duty, it shall not be treated so without affording the opportunity of hearing to the employee concerned. Even second show-cause-notice which had been given is not treated as a due compliance to the provisions of principles of natural justice. In another decision in case of A.A. Bhoira vs. State of Gujarat, the disciplinary authority has treated the suspension period as suspension by holding that the petitioner before this Court was not entitled to any benefit. The reply of the employee had not been considered and it was an unreasoned order. The Court held the unreasoned order is amounting to non- application of mind by the authority. It also held that the suspension is not punishment but interim measure. There shall need to be a reasoned order to be passed and in absence thereof, the period of suspension was treated as a period spent on duty. While so doing, it has referred to the decision of the Apex Court in State of Orissa vs. Bimal Kumar Mohandy reported in AIR 1994 SC 2296 and the relevant findings and observations that the order of suspension would be ordinarily passed after taking into consideration the gravity of misconduct sought to be Page 28 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 inquired into or investigated and the nature of the evidence before the appointing authority. The appointing authority or disciplinary authority decides whether it is expedient to keep an employee under suspension pending of such action. It is the gravity of the alleged misconduct or the nature of allegations imputed to the delinquent employee which decides and determines the action of suspension pending such action and it is not an administrative routine. Thus, the suspension is step in aid to the ultimate result of the investigation or enquiry, where authority keeps in mind the public interest of the impact of the delinquent's continuance in office while facing the departmental enquiry or trial in a criminal charge.
19. In the said decision, the Court has extensively considered the import of the order of suspension of a government servant, the exercise of right to suspend the employee and the right of the employee to be treated on duty, once the event of suspension is over. The relevant paragraphs of the decision reads as under:-
"10. Now under Rule 152 if the authority require to pass Page 29 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 any order for regularising the suspension order, an opportunity must have to be given to the concerned employee. This aspect has been examined by the Division Bench of this Court in the case of RAMSUNDER SHAMLAL V. Y.B.JHALA OR HIS SUCCESSOR, COMMISSIONER OF POLICE, AHMEDABAD AND OTHERS, 1999 (1) GLH 150 wherein this Court has observed that order under Rule 152 of Bombay Civil Service Rules is not passed as a part of punishment and as no such punishment is envisaged under Bombay Police Punishment Rules. As this order may sometimes have far reaching financial consequences as far as the employee is concerned; it is just and equitable that he be given reasonable opportunity of being heard and that alone would be perfectly in accordance with the principles of natural justice. The said observation made by this Court in para 6 is quoted as under:
"Though the instant case stands on a different footing, the principles laid down in the above two cases can be followed while passing an order under Section 152 of the BCSR. The order under Rule 152 BCSR is not passed as part of the punishment and as no such punishment is envisaged under Bombay Police Punishment Rules. As this order may sometimes have far reaching financial consequences as far as the employee is concerned; it is just and equitable that he be given reasonable opportunity of being heard and that alone would be perfectly in accord with the principles of natural justice. Therefore, we set aside Annexure'H' order, which is confirmed by Annexure'J' order, so far as it relates to the stand taken that the period of suspension be treated as such, and direct that the Competent Authority may issue fresh notice to the appellant under Rule 152 of the BCSR and the appellant be heard before any decision is taken under Rule 152. The Authorities may take a decision having regard to the provisions contained in Rule 152."
11. What would be the effect of suspension when it has been passed in mechanical manner without application of mind, this aspect has been considered by this Court in the case of ARUNBHAI MADHUBHAI PATEL V. STATE OF GUJARAT AND ANOTHER, 2003 (3) GLR 1952. The relevant observation made by this Court in para 8 is quoted as Page 30 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 under:
"Normally the procedure which requires to be followed by the employer in case when any misconduct committed by an employee during the course of employment, then, firstly he should have to follow the guidelines that in light of the allegations made against the employee, whether it is necessary to suspend the employee or not. There are relevant establishment factors that ordinarily suspension order should not have been passed unless when the circumstances are found to justify it and discretion should be exercised with care and caution. It is also established and settled position of law that unless the allegations made against the employee are of serious nature and on the basis of evidence available, prima facie case attributes major penalty and his active service is likely to cause embarrassment or to hamper the investigation of the case or prejudice investigation, inquiry, trial, sub serve discipline or to cause public scandal. In other words, a moment misconduct has been committed, the competent authority should have to apply its mind considering the gravity of charge and the circumstances, whether suspension is justified or not. In each case of misconduct committed by the employee, suspension order is not a routine matter and / or course which can be adopted against the employee irrespective of the fact whether misconduct is in serious nature or not and whether it would result into major punishment finally. The effect of suspension against the employee which ultimately suspends the life of the employee in all respects. It is not merely a stigma against an employee alone but it is a stigma against the family as a whole and it amounts to social stigma against the employee and his family members. A moment employee is suspended, the society will ask the question to each of the family members why the husband and / or father, is suspended. Not only that, this creates some doubt as to general conduct of the employee in the society. It demoralize the employee who has been suspended without any justification. Merely an employee joining services, the employee does not mortgage or barter away his basic rights as human being including his fundamental rights in favour of the employer. Merely, having powers to Page 31 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 suspend the employee, it cannot be casually exercised in any case of misconduct. The suspension itself is an inhuman act which is an unpropitious effect on the life of an employee. Therefore, the question is that an employee who has been suspended either at the stage of preliminary inquiry or at the stage of chargesheet, the employee remained under suspension till conclusion of the inquiry or till the order of punishment. After the punishment imposed against the employee in result of inquiry, the question would require to be examined again independently by the competent authority, whether suspension period can be treated as spent on duty or not. At that occasion, it is the duty of the competent authority to consider independently while keeping in mind and considering the punishment imposed against the employee, whether in view of the facts of the case, suspension is justified or not? If at the end of inquiry and at the occasion of issuing punishment order, this aspect shall have to be examined by the competent authority without being influenced by the finding given by the inquiry officer. Merely, punishment has been imposed on the employee, is not enough to say that the employee is not entitled to be treated as suspension period spent on duty. This attitude, conduct and approach of the employer is giving another punishment by exercising the discretionary powers in an arbitrary manner to the employee because at the time of considering the case of the employee, whether suspension period is required to be considered spent on duty or not, as such, no independent and objective standard has been observed by the employer. Normally, without application of mind and only bearing in mind the result of the inquiry report, suspension period has been treated as suspension. Therefore, according to my opinion, such approach of the employer is giving another punishment to the employee over and above the punishment order issued against the employee in respect of the misconduct committed by the employee. In light of the procedure, which normally should have to be undertaken by the employer. But unfortunately, in most of the cases, the employees are sufferer because of non objective attitude and look in the matter of order passed by the employer while considering whether suspension Page 32 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 period can be treated as spent on duty or not. Therefore, considering the facts of the present case, it clearly transpires that no reason is disclosed in suspension order dated 5th March, 2001, and as such, there is no justification mentioned while suspending the employee. Similarly, even there is not justification in revocation of suspension period. It is also necessary to note that suspension order has been revoked during pendency of inquiry, then what is the purpose to suspend the employee during pendency of inquiry, meaning thereby, the order of suspension was absolutely not justified when it was passed against the petitioner. This aspect has not been taken into account by the competent authority and at the time of passing the punishment order, period of suspension has been treated as suspension being the other punishment imposed by the competent authority as punishment of censure is not enough. Thus, these two types of approach not to apply the mind independently and objectively to consider whether suspension was at all justified or not. This is very requirement under Regulation 86[2] of the Service Regulations of the respondent Corporation. In light of this background and considering the facts of the present case, the view taken by the Apex Court in case of M.PAUL ANTHONY CAPT. V. BHARAT GOLD MINES LTD. reported in 1999 SC 1416 : 1999 LAB I.C. 1565. The relevant observations made by the Apex Court in para-29 are referred as under:-
"29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare whether officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non payment of Subsistence Allowance is an inhuman act which has an unpropititous effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of "Subsistence Allowance", Page 33 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 so that the employee may sustain himself. This Court in O.P.Gupta v. Union of India, [1987] 4 SCC 328 : AIR 1987 SC 2257 made by the following observations with regard to Subsistence Allowance [para 15 of AIR]:
"An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India [ AIR 1958 SC 300 ] is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression "subsistence allowance" has an undeniable penal significance. The dictionary meaning of the word "subsist" as given in Shorter Oxford English Dictionary Vol.II at p.2171 is "to remain alive as on food : to continue to exist", "Subsistence" means - means of supporting life, especially a minimum livelihood."
12. In light of the law which has been examined by the Apex Court as well as Division Bench of this Court and as a single Judge the principle is very clear that before passing the orders under Rule 152 of Bombay Civil Civil Service Rules a reasonable opportunity of hearing must have to be given to the concerned employee calling the explanation from such employee. Therefore, the relevancy that whatever the answer is given by the employee while receiving the show cause notice from the authority is required to be considered by the respondent. The authority should have to apply its mind and discuss the defence or explanation of the employee and why the authority is not believing or accepting the explanation, for that authority should have to disclose the reason or it should have to discuss the reason in the ultimate order. Looking to the facts of this case, the reply given by the employee on 25.8.1998 and pointed out to the Page 34 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 authority that ultimately one increment has been stopped without cumulative effect comes to loss to Rs.1,280.00 and on that ground the suspension period is more than five years and four months, therefore, same may be treated as spent on duty. In final order it is noted by the authority that reply was received from the petitioner but what was the reply or explanation, no discussion. Why reply was not accepted, no discussion. Meaning thereby, that no reasons have been given by the authority while passing the final order on 10.11.1998. This being an unreasoned order and whatever the opportunity was given to the employee is merely become futile exercise and no effect or impact upon the authority. Therefore, this order dated 10.11.1998 is unreasoned order which amounts to non-application of mind by the authority. Another aspect is required to be taken into account is that petitioner was suspended on 1.10.1973 and remained under suspension up to 24.1.1979. Not to treat the said period on duty if the real loss is calculated, according to my opinion it comes to more than Rs.1 lakh and other benefits. It has been denied to the petitioner only on the ground that a minor penalty has been imposed and petitioner was held liable for that and therefore the entire period has been treated as suspension. Even Rule 152 sub Rule (3) also not taken into consideration by the respondent authority. Therefore, the order dated 10.11.1998 is contrary to the principles of natural justice, it being arbitrary order passed by the authority without application of mind. The real impact of the said order is that the petitioner will lose the increments of this interim period and also the promotion in between and fixation of salary which ultimately at this stage affect the right of pension and gratuity which will be received by the employee at the time of retirement. Therefore, before passing orders under Rule 152, it is the duty of the respondent authority to consider whether initial order of suspension which was passed by the authority whether it has been justified in any angle looking to the gravity of misconduct or even looking to the punishment imposed by the authority, that aspect has not been examined and even considered by the respondent authority. Looking to the facts of this case, the suspension order dated 1.10.1973 is nothing but a routine order issued by the authority without application of mind at all. In the suspension order no reference is incorporated to the alleged misconduct by the respondent authority. According to my opinion a moment dismissal order is set aside on the basis Page 35 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 of the letter of Deputy Secretary (R&B) department and in result thereto, direction has been issued by this Court on 24.12.1981 in Special Civil Application No. 2633 of 1979 to reinstate the petitioner in service with all consequential benefits including continuity of service etc. and rule was made absolute, is enough to set aside the order dated 10.11.1998 which has been passed by the authority against the petitioner treating the period of suspension as it is. But this aspect has been lost sight of the respondent while concluding the matter under Rule 152 of the Bombay Civil Service Rules by order dated 10.11.1998. Therefore, according to my opinion, considering the above aspect, the order which has been passed by the authority dated 10.11.1998 is required to be quashed and set aside."
20. In case of A.S. Chandekar vs. State of Gujarat reported in 2004 (3) GLH 421, in a petition under Article 226 of the Constitution the Court considered the issue of non-issuance of the notice before denying the petitioner employee the full wages and allowances for the period of suspension. Rule 152(2) of the Bombay Civil Services Rules was considered by the Court to hold that the conjoint reading and the scheme of sub-rules (1), (2) and (4) of Rule 152 indicates that while it is incumbent upon the authority to consider and make specific order regarding pay and allowances to be paid to the government servant for the period of his absence, in cases of full exoneration after dismissal or removal, or in case of suspension being found to be wholly unjustified, full pay and allowances have to be paid to the government servant Page 36 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 and in such cases, the period of absence from duty has to be treated as the period spent on duty for all purposes. The relevant paragraphs of the decision in case of A.S. Chandekar (supra) are as under:-
"1. Pressing this petition under Article 226 of the Constitution only on the ground that no notice was issued to the petitioner before denying him full wages and allowances for the period of suspension, the learned counsel Mr. Rana submitted that the respondent was required to form an opinion in terms of Rule 152(2) of the Bombay Civil Services Rules and such formation of opinion was required to be expressed in the show cause notice so as to afford an opportunity to the petitioner to explain as to why suspension should have been treated as wholly unjustified.
2. Relevant facts of the case are simple and to the effect that the petitioner was suspended on 24.8.94 and reinstated on 11.9.97 after conclusion of the inquiry, resulting into an order that the charges levelled against the petitioner were not proved. The learned counsel initially denied issuance and receipt of the show cause notice under Rule 152. It was subsequently conceded that a specific notice dated 8.8.97 was, in fact, issued to and received by the petitioner. After narrating the fact that the High Court had come to a conclusion that the charges against the petitioner were not proved and he was exonerated and it was decided to issue show cause notice under Rule 152, the petitioner was specifically called upon to show cause as to why the proposed action of treating the period of suspension as the period not spent on duty should not be taken. It appears from the record that the petitioner had submitted his reply to the show cause notice by letter dated 1.9.97 and after considering the same, the impugned order holding that the action of suspending the petitioner was not wholly unjustified, was made. It was held in the impugned order that the contention of the petitioner that he was fully exonerated was not relevant. In fact, the real question was, whether on the basis of the statements given by responsible advocates and others before the Special Officer (Vigilance) of Gujarat High Court, pursuant to which a regular Page 37 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 departmental inquiry was held, the action of suspending the petitioner was wholly unjustified. After considering the material on record, it was concluded that in the opinion of the High Court (on its administrative side), by no stretch of imagination, action of suspending the petitioner was wholly unjustified. On the contrary, it was completely and wholly justified. This finding and conclusion is not challenged.
3. The learned counsel for the petitioner harped upon the contention that the provisions of sub-rules (1) and (2) of Rule 152 of the Bombay Civil Services Rules were independent and not inter-connected. Therefore, a show cause notice clearly indicating the formation of an opinion regarding grant or denial of full pay and allowances for the period of suspension, was required to be given. The learned counsel relied upon the judgment of the Supreme Court in B.D. Gupta Vs. State of Haryana, reported in 1972 AIR SC 2472 and emphasized the observation therein that it was essential for a show cause notice to indicate the precise scope of the notice and also to indicate points on which officer concerned is expected to give a reply. These observations were made in the context of the show cause notice on the basis of which the delinquent was censured in the facts of that case.
4. The argument of the learned counsel appears to be based on a complete misreading of the provisions of Rule 152 which provides for making of specific order regarding pay and allowances to be paid to the government servant in case of his reinstatement after dismissal, removal or suspension. A conjoint reading and the scheme of sub-rules (1), (2) and (4) of Rule 152 clearly indicate that while it is incumbent upon the authority to consider and make specific order regarding pay and allowances to be paid to the government servant for the period of his absence, in cases of full exoneration after dismissal or removal, or in case of suspension being found to be wholly unjustified, full pay and allowances have to be paid to the government servant and in such cases, the period of absence from duty has to be treated as the period spent on duty for all purposes.
Therefore, when the authority comes to a conclusion that the delinquent was fully exonerated or that his suspension was wholly unjustified, no question of any deduction from any payment arises and consequently, no question of issuing any show cause notice arises. It is only in a case where it is Page 38 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 proposed to deny any part of full pay and allowance that the question of issuing a show cause notice under Rule 152 arises."
21. In case of Suleman D. Krishti vs. State of Gujarat reported in 2006 (3) GLR 1955, the Court was required to consider the regularization of period of suspension which was rejected on the ground that the deemed suspension could not be treated as period spent on duty. The petitioner was convicted by the Trial Court for serious criminal offence and was acquitted by the Apex Court. On his arrest the order of suspension was passed. The Court held that it could not be said that the Government was wholly unjustified in suspending the petitioner. The petitioner was held not to have any right to receive any pay or allowance for period of his absence from duty or for treatment of the period of his absence from duty as a period spent on duty. The relevant paragraphs of the judgment are as under:-
"5.1 The critical point of time at which the Government has to take a decision as to whether an employee should be suspended is the point of reference for the purpose of application of the provisions of Rule 70 because, obviously, no authority can presume in advance that an employee who was arrested pursuant to a serious offence was most likely to be acquitted and decide not to suspend him on that basis. In the nature of things, a person who is arrested cannot Page 39 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 attend his duties and, therefore, the statutory provisions for deemed suspension are made in the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, 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, or
(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) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding fortyeight-hours.
(b) with effect from the date of his conviction if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent upon such conviction.
Explanation:- The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed for the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force with effect on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
Page 40 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the Disciplinary Authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority, from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5)(a)An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(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 disciplinary proceeding is commenced against him during the continuance of such suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made it or by any authority to which that authority is subordinate."
Therefore, even the discretion to decide whether suspension was justified or unjustified at the point of time when a government servant is detained in custody is taken away by law and, in such cases, there is no alternative but to hold that the suspension of the petitioner was not wholly unjustified when, by operation of law and in view of the factual reality of the petitioner being in jail and convicted thereafter, he had to be treated as suspended."
6. Learned counsel Mr.Nanavati relied upon a judgment of this Court in M.V.CHAUHAN v. STATE OF GUJARAT [2000 Page 41 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 (1) GLR 909], where the issue was altogether different and, to quote from that judgment: "Truly speaking, it is not a case of inviting application of Rule 152 at all". Another judgment of this Court in A.A.BOHRA v. STATE OF GUJARAT [2003 (3) GLR 2756] was relied upon to submit that suspension is not a punishment but an interim measure and while denying the benefit of Rule 152 of the Bombay Civil Services Rules, the authorities were required to give an opportunity of being heard and make a reasoned order. The ratio of that judgment does not apply in the facts of the present case on account of the fact that the authority had, by the impugned order, decided the application and representation of the petitioner wherein a specific plea for hearing was not made. It was after the original order dated 27.4.2004 ordering reinstatement of the petitioner after acquittal and refusing regularisation of the period from 8.6.1998 that the representation was made. If the petitioner had a grievance against the relevant part of that order, he could have immediately or within a reasonable period challenged that part of the order. That having not been done, the present petition clearly appears to be an after-thought and a belated attempt at capitalizing on the order of acquittal stated to have been recorded by the Supreme Court. Therefore, there being no legal basis for the prayers and claims made in the petition, it is dismissed in limine."
22. So far as the present petition is concerned, we notice from the material which has been placed before this court that the relation between the employee and the employer came to be severed when the petitioner was allowed to retire on 31.7.2008. The Court needs to also bear in mind that the suspension had come on account of the fact that he did not intimate the respondent of his having been involved in a criminal matter.
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23. Taking into consideration the provision of Rule 5(1)
(b) of the Gujarat Civil Services (Discipline and Appeal) Rules 1971, the order was passed and all other benefits have been denied. Although, on superannuation, he was permitted to be retired and no disciplinary proceedings from the year 2000 to 2008 had been initiated. While also treating the suspension as a period of suspension and not on duty, there does not appear to be any notice issued for availing an opportunity of hearing to the petitioner.
24. As discussed herein above, that also is in clear breach of principles of natural justice and settled position of law as discussed above. Even otherwise, the investigation in criminal matter was undergoing and which had been stayed by the directions of the Apex Court. On the demise of the employee, the case qua him had abated and therefore, the investigation had not reached to the penultimate stage. Suspension not being a punishment but interim measure to debar the employee to work. Unless there is a specific order of not treating this period as period spent on duty, on availing opportunity of hearing by the employer, denial of prayer is unjustifiable. It is undoubtful the right of employer Page 43 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022 C/SCA/15473/2011 JUDGMENT DATED: 06/07/2022 to withhold payment of service benefits for suspension period on justifiable grounds. However, the employee concerned if has not been given any notice on opportunity of hearing, as in the present sheer denial cannot be sustained.
25. In wake of this, there is nothing on the record to indicate that the respondent can withhold any of the retiral benefits, as has been done in the case and therefore, the challenge needs to succeed.
26. In view of the facts and circumstances of the case, we are of the view the benefits should be given to the petitioner.
27. Hence, the respondent is hereby directed to give all benefits to the petitioner within a period of twelve weeks from the date of receipt of certified copy of present order.
28. For the foregoing reasons, present petition is hereby allowed. Rule is made absolute to the aforesaid extent.
Sd/-
(SONIA GOKANI, J) Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 44 of 44 Downloaded on : Sat Dec 24 20:29:29 IST 2022