Gujarat High Court
Anand Agriculture Univercity vs Ashokbhai Ishwarbhai Chauhan on 4 July, 2018
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/1180/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1180 of 2015
In SPECIAL CIVIL APPLICATION NO. 14823 of 2010
With
R/LETTERS PATENT APPEAL NO. 1182 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2318 of 2011
With
R/LETTERS PATENT APPEAL NO. 1183 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2319 of 2011
with
R/LETTERS PATENT APPEAL NO. 1184 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2320 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
================================================================
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 ?
================================================================
ANAND AGRICULTURE UNIVERCITY
Versus
ASHOKBHAI ISHWARBHAI CHAUHAN
Page 1 of 12
C/LPA/1180/2015 JUDGMENT
================================================================
Appearance:
MR DG CHAUHAN(218) for the APPELLANTS
RONAK D CHAUHAN(7709) for the APPELLANTS
MR SAMIR GOHIL, ADVOCATE with MR GUNVANT B SHAH(3859) for the
RESPONDENT(s) No. 1,2,3,4,5
================================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 04/07/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present appeals emanate from the CAV judgment 9.7.2015 passed by the learned Single Judge in Special Civil Application No.14823 of 2010 and allied matters, whereby the writ petitioners were held to be entitled to subsistence allowance at the rate of 100%.
2. At the outset, Mr. D.G. Chauhan, learned advocate appearing on behalf of the appellants has submitted that the respondents were reinstated in service and presently, all of them have retired. He has invited the attention of this court to the statement produced in the memorandum of the appeal, wherein details of arrest of the respondents as well as their release on bail and the time spent in jail have been incorporated. The learned advocate has further submitted that the respondents herein are not entitled to the subsistence allowance at the rate of 100% in view of rule 5 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as "the Rules"). It was submitted that the learned Single Judge has erred in granting full subsistence allowance to the present respondents for the reason that the suspension Page 2 of 12 C/LPA/1180/2015 JUDGMENT order was not revoked within a period of 90 days and hence, the same would lapse. Reference was made to the proviso to sub-rule (2A) of rule 5 of the rules in support of his contention that 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 and 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. The learned advocate submitted that in cases of deemed suspension, there is no need of reviewing the suspension order. It is urged that the present respondents were detained in connection with the criminal offence and they were put under deemed suspension as per the provision of rule 5 of the Rules. It was submitted that sub-rule (2) of rule 5 of the Rules provides for such deemed suspension if an employee remains in custody for a period exceeding forty eight hours. The learned advocate submitted that in fact, the suspension envisaged under rule 5 of the Rules would apply in case of the respondents and the period of ninety days mentioned therein will not be applicable in the case of deemed suspension since they were suspended in view of their detention.
2.1 The learned advocate has further submitted that the learned Single Judge has exceeded his jurisdiction as there was no prayer made by the present respondents in the writ petitions for grant of subsistence allowance at the rate of 100%. In support of his contention, the learned advocate placed reliance upon the decision of the Apex Court in the case of Pyare Mohan Lal v. State of Jharkhand and others, Page 3 of 12 C/LPA/1180/2015 JUDGMENT (2010) 10 SCC 693. It was submitted that as observed by the Apex Court, if a relief is not specifically sought, then the same cannot be granted by the court. He also placed reliance upon the decision of the Apex Court in the case of Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148. The learned counsel, accordingly, urged that the impugned judgment and order of the learned Single Judge requires interference and the same deserves to be quashed and set aside.
3. Mr. Samir Gohil, learned advocate appearing on behalf of the respondents submitted that the proviso to rule 5 of the 1971 Rules relied upon by Mr. Chauhan, learned advocate for the appellants, will not apply in the facts of the present case, because, the same are subsequent and have been inserted vide notification dated 6th August, 2008, wherein it provides powers of the State Government to continue the suspension period in case of deemed suspension till the suspension order is modified or revoked by the authority competent to do so. The learned advocate has placed reliance on the notification dated 4th July, 2007, whereby sub-rule (2A) to rule 5 of the Rules has been inserted which provides for review of suspension period before the expiry of ninety days from the date of order of suspension. It was submitted that since no review was done by the appellants herein, the suspension got revoked after the expiry of ninety days and hence, the respondents are entitled to the subsistence allowance at the rate of 100%.
3.1 As regards the contention raised by the learned advocate for the appellants that the learned Single Judge has exceeded Page 4 of 12 C/LPA/1180/2015 JUDGMENT his jurisdiction in granting the prayer of 100% subsistence allowance over and above which is prayed for in the writ petitions, it was submitted that subsequently, by way of a draft amendment, the impugned suspension order was also challenged and a prayer was sought for that the same may be declared as invalid after a period of ninety days and hence, the learned Single Judge was justified in granting 100% subsistence allowance to the respondents herein.
4. Undisputed facts of the present appeals are that the petitioners were put under deemed suspension in view of their involvement in the criminal case. It is also not disputed that their suspension period was not reviewed within a period of ninety days.
5. Rule 5 of the 1971 Rules 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 Page 5 of 12 C/LPA/1180/2015 JUDGMENT said period of ninety days and after considering the 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.
*[Substituted vide GN /GAD NO:GS2004(45) CDR1020032225INQ CELL.dt:2092004]
(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 forty eight 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.
#(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 Page 6 of 12 C/LPA/1180/2015 JUDGMENT effective date of suspension After such review, the competent authority may pass an order either 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 subrule (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.
# [inserted vide GN/ GAD NO GS2007(19) CVO1220051077Inq. Cell .Dated 4-7-2007.] @ [ '..' substituted vide GN / GAD NO GS2008(10) CVO1220051077Inq.
Cell .Dated 6-8-2008.
*[The words (Notwithstanding any thing contained in this rule) deleted vide GN / GAD NO GS2008(10) CVO1220051077Inq. Cell .Dated 6-8-2008.] +[inserted vide GN/GAD NO GS2008(10) CVO1220051077Inq. Cell .Dated 6-8-2008.] (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 enquiry 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 Page 7 of 12 C/LPA/1180/2015 JUDGMENT further orders.
(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) Subject to the provisions contained in subrule (2A),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.
@ [substituted vide GN / GAD NO GS2008(10) CVO1220051077Inq. Cell .Dated 6-8-2008.]
(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 be 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."
6. It is also not in dispute that by the notification dated 6th Page 8 of 12 C/LPA/1180/2015 JUDGMENT August, 2008, the aforesaid rule 5 was amended and sub- clause 2A(b) was introduced in the aforesaid rules by the State Government, which provided that 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. It would be apposite to reproduce the entire amended rule, which reads thus:
"In the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 in rule 5,
(a) In sub-rule (2A)
(i) For the words "the date of order of suspension", the words "the effective date of suspension" shall be substituted.
(ii) the words "Notwithstanding anything contained in this rule" shall be deleted.
(iii) at the end, the following proviso shall be added, namely:-
"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 completion of ninety days 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."
(b) In sub-rule (5), for clause (a), the following clause shall be substituted, namely:-
"(a) Subject to the provisions contained in sub-rule (2A), 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."Page 9 of 12
C/LPA/1180/2015 JUDGMENT
7. Thus, the powers of the competent authority to continue the suspension period in cases of deemed suspension without there being any modification or revocation of the same was inserted for the first time vide notification dated 6th August, 2008. Undisputedly, the present respondents were put under deemed suspension prior to the issuance of the aforesaid notification dated 6th August, 2008. Thus, the suspension of the present respondents will be governed by the un-amended rule 5 of the 1971 Rules, which mandate the competent authority to review the suspension order before expiry of ninety days from the effective date of suspension. It also incorporates that after such review, the competent authority may pass such order of either extending or revoking the suspension.
8. In the facts of the present case, as fairly admitted by Mr. Chauhan, learned advocate for the appellants, no such exercise of review was carried out by the appellants in respect of the respondents herein. Thus, the suspension became invalid after expiry of 90 days. We have carefully perused the judgment passed by the learned Single Judge threadbare. We have also perused the relevant provisions of suspension and grant of subsistence allowance to such employees who have been detained in the custody and remained in detention for a period exceeding forty eight hours. In our considered opinion and analyses, the learned single judge after examining the relevant rules and considering the law enunciated by the Supreme Court in case of Union of India vs Dipak Mali, 2010(2)SCC 222, has precisely allowed the writ petition.
9. The contention raised by the learned advocate for the Page 10 of 12 C/LPA/1180/2015 JUDGMENT appellants that the learned Single Judge has granted the relief beyond the pleadings, does not merit acceptance since by way of draft amendment, the original writ petitioners had prayed for quashing and setting aside the entire suspension order. The said draft amendment was ordered to be considered at the time of final hearing of the writ petitions. Further, since the learned Single Judge has heard the appellants as well as respondents on the issue raised in the draft amendment and therefore, it was always open for the learned Single Judge to grant the relief of payment of full salary. Even considering the fact that the original respondents - employees are entitled to salary as per law, merely because such pleadings do not find place in the writ petition as regards the claim of full salary and instead relief for 75% subsistence allowance is prayed, in our considered opinion, the same would not defeat their legal and rightful claim in wake of the fact that the appellants have not followed the statutory rules. Once it is held that the suspension was neither reviewed nor revoked, the same had become invalid, hence, the respondents will be entitled to full salary. The judgments cited at the bar will not come to the rescue to the appellant in light of the afore-noted facts.
10. In our considered opinion, there is no infirmity or illegality in the impugned judgment passed by the learned Single Judge. The appeals, therefore, fail and are, accordingly, dismissed.
11. Mr. Gohil, learned advocate for the respondents invited the attention of the court to the order dated 5.11.2015 passed by a coordinate bench, wherein it is observed thus:
"2. Considering the facts and circumstances, we find that the interim relief granted earlier deserves to be Page 11 of 12 C/LPA/1180/2015 JUDGMENT continued, but with the further observations that in the event the appeals are dismissed and the monetary benefits are to be paid by the appellant university to the respondents-original petitioners, the same will be paid with interest at the rate of 9% p.a.. The interim relief granted earlier shall stand modified. Accordingly, all applications are disposed of."
12. Since the letters patent appeals are dismissed, the appellants shall abide by the order dated 5.11.2015 and pay the consequential benefits to the respondents, as observed in the said order, within a period of three weeks from the date of receipt of this order.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 12 of 12