Gujarat High Court
Tapankumar Sureshbhai Joshi vs Gujarat Energy Transmission ... on 28 November, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/19993/2023 ORDER DATED: 28/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19993 of 2023
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TAPANKUMAR SURESHBHAI JOSHI
Versus
GUJARAT ENERGY TRANSMISSION CORPORATION LTD.
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 28/11/2023
ORAL ORDER
1. Heard learned advocate Mr.Shivam Majmudar on behalf of the petitioner, who by way of this petition, challenges an order of suspension issued by the respondent.
2. Learned advocate Mr.Majmudar at the outset would draw the attention of this Court to Chapter 8 of the Board's Employees' Conduct, Discipline and Appeal Procedure more particularly to Rule 6 thereof which states regarding the procedure for dealing with acts of misconduct. Learned advocate would emphasize on a Note to Rule 6(a) which, according to learned advocate Mr.Majmudar, inter alia states that inquiry has to be completed and decision given within eight days from the date of suspension.
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NEUTRAL CITATION C/SCA/19993/2023 ORDER DATED: 28/11/2023 undefined 2.1. Learned advocate Mr.Majmudar would also try and challenge the order of suspension by submitting that the petitioner, though suspended vide order dated 03.03.2023, yet, the respondents have not yet issued any charge-sheet. Learned advocate Mr.Majmudar would also submit that the order of suspension was not required to be passed at all more particularly, according to learned advocate, no misconduct whatsoever had been committed by the petitioner. 2.2. Learned advocate Mr.Majmudar would also question the order of suspension by relying upon the decision of the Hon'ble Apex Court in case of Union of India vs. K.V.Jankiraman, reported in 1991 (4) SCC 109. Thus submitting, learned advocate would request this Court to quash and set aside the order of suspension and direct the respondents to reinstate the present petitioner.
3. In the considered opinion of this Court, no case for interference whatsoever is made out for the following reasons:-
3.1. It requires to be noted at the outset that the petitioner came to be suspended vide order dated 03.03.2023 more Page 2 of 6 Downloaded on : Wed Nov 29 20:43:03 IST 2023 NEUTRAL CITATION C/SCA/19993/2023 ORDER DATED: 28/11/2023 undefined particularly by observing that the departmental proceedings shall follow as per the rules. It would be relevant to note at this stage that Rule 6(a) relied upon by learned advocate for the petitioner states with regard to the power of the respondents to suspend an employee charged with an act of misconduct. The Note which is strongly relied upon by the learned advocate for the petitioner inter alia states that since the suspensions are followed by long drawn inquiry proceedings which entail unnecessary cost to the organization, therefore, suspension should be resorted to only when it is inevitable in a particular case and whereas normally it should be avoided and whereas, even if suspension is resorted to, then the inquiry is completed and the decision given within eight days from the date of suspension. 3.2. In the considered opinion of this Court, the Note is an instruction to the employer specifying that the suspension should not be resorted to as a matter of course and whereas, the employer is required to complete the inquiry proceedings within a short period of time to ensure that suspension is not prolonged resulting into unnecessary cost to the organization.
In the considered opinion of this Court neither does the Rule Page 3 of 6 Downloaded on : Wed Nov 29 20:43:03 IST 2023 NEUTRAL CITATION C/SCA/19993/2023 ORDER DATED: 28/11/2023 undefined nor does the Note lay down any negative covenant whereby upon non-fulfillment of any prescribed procedure, the suspension would stand vitiated. Moreover, it also requires to be noted here that the instructions are to ensure that the employer resorts to the power of suspension sparingly and whereas neither the Note appears to be mandatory and nor does it appear even to be directory. In the considered opinion of this Court, the Note is merely an explanation of the procedure which ought to be followed while resorting to suspension of an employee and whereas the note cannot be read as a provision to the Rule, whereby certain requirements have to be followed for validating an order of suspension. 3.3. Insofar as the submission that suspension was not required to be resorted to, in the considered opinion of this Court, the same would not be for this Court to decide in a petition under Article 226 of the Constitution of India. By now, it is a well settled proposition of law that suspension is not a punishment and whereas the employer is empowered to suspend an employee to facilitate a departmental proceedings more particularly to ensure that the employee does not tamper with the evidence or does not in any way try to Page 4 of 6 Downloaded on : Wed Nov 29 20:43:03 IST 2023 NEUTRAL CITATION C/SCA/19993/2023 ORDER DATED: 28/11/2023 undefined influence the witnesses. Whether suspension was justified or not, would not be an issue which this Court would go into at this stage more particularly in absence of any allegations of malafide made by the present petitioner more particularly the said proposition being a sine-qua-non in challenging an order of suspension on its merits.
3.4. Insofar as decision of the Hon'ble Apex Court in case of K.V.Jankiraman (supra), in the considered opinion of this Court, the proposition laid down by the Hon'ble Apex Court being that a disciplinary proceedings is stated to be initiated or commenced upon issuance of a charge-sheet, would not in any manner whatsoever advance the cause of the present petitioner more particularly since the case of the petitioner is not co-relatable with the proposition as propounded in the said judgment.
3.5. Insofar as the issue with regard to non-initiation of the departmental proceedings is concerned, this Court deems it appropriate to direct the respondents to initiate departmental proceedings at the earliest and complete the same so as to ensure that the petitioner is neither prejudiced nor the Page 5 of 6 Downloaded on : Wed Nov 29 20:43:03 IST 2023 NEUTRAL CITATION C/SCA/19993/2023 ORDER DATED: 28/11/2023 undefined department is unnecessarily required to pay subsistence allowance to the petitioner.
3.5.1. In any case, as noted hereinabove, since this Court has already noted that the suspension order itself records that departmental process shall follow as per the Rules and whereas since this Court has directed the respondents to resort to disciplinary proceedings, if deemed appropriate, as expeditiously as possible and to conclude the same also as expeditiously as possible, therefore, no further observations are required on that count.
4. In the conclusion, for the reasons recorded hereinabove, the present petition fails. The same stands disposed of as rejected in limini. The respondents shall comply with the observations/directions as hereinabove.
(NIKHIL S. KARIEL,J) Bhoomi Page 6 of 6 Downloaded on : Wed Nov 29 20:43:03 IST 2023