Narendrasinh Dosabhai Gohil vs Managing Director
2022 Latest Caselaw 5884 Guj

     C/SCA/1027/2019                              JUDGMENT DATED: 04/07/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1027 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================

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 ?

==========================================================
                       NARENDRASINH DOSABHAI GOHIL
                                  Versus
                       MANAGING DIRECTOR & 2 other(s)
==========================================================
Appearance:
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2,3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 04/07/2022

                              ORAL JUDGMENT

1. Heard Mr.Rajesh Mankad learned advocate for the

petitioner and Mr.Dipak Dave learned advocate for

the respondent.

2. The prayer in the petition by the petitioner is to

declare that the order passed by the respondent-

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

company rejecting his Second Appeal on the ground

that the statutory rule for preferring such an appeal

was effective from 16.09.2016, is bad.

3. Based on this prayer, what is also prayed is that the

petitioner is entitled to have his period of suspension

from 18.01.2003 to 23.10.2003 counted as regular

for all purposes and the action of the respondents in

treating such period as such, is bad.

4. Facts in brief would indicate that the petitioner was

working as a driver with the respondents. He was

issued a charge-sheet on 18.01.2003 and also by the

same order suspended from service. On a response

filed by the petitioner to the charge-sheet on

17.02.2003, the respondents conducted a

departmental proceedings and an inquiry report was

submitted on 29.05.2003 holding the petitioner

guilty of the charge. A show cause notice was given

to the petitioner on 25.08.2004 asking the petitioner

to show cause as to why a penalty of stoppage of

three increments with future effect be not imposed

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

upon the petitioner for the misconduct in question.

The petitioner responded to such notice by filing a

detailed reply and by an order of 29.09.2004, a

penalty of stoppage of two increments with future

effect was imposed upon the petitioner. On a First

Appeal being preferred, the appeal was rejected by

an order dated 24.03.2005. Be it noted that in the

interregnum, the authority thought it fit to revoke

the order of suspension and reinstate the petitioner

by an order dated 23.10.2003. Against the order of

rejection of the First Appeal on 24.03.2005, the

petitioner preferred a Second Appeal on 28.03.2018

which was rejected on 02.05.2018.

5. Mr.Mankad learned counsel for the petitioner would

submit that after the departmental proceedings, a

show cause notice was issued as to why a penalty of

stoppage of three increments with future effect be

not imposed. On the authority being satisfied with

the response, the penalty that was imposed was a

lower one to that of stoppage of two increments with

future effect. Moreover, no order was passed

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

denying the petitioner any benefits for the period of

suspension of 10 months. He also would submit that

when the petitioner was reinstated on revocation of

the order of suspension on 23.08.2003, the

reinstatement was only till the departmental inquiry

is finally disposed of. This has made it mandatory

for the employer to pass an order regularizing the

period of suspension and pay consequential pay and

allowances that could have an effect on his terminal

benefits of he having attained the age of

superannuation in the year 2018. He made

representations in the year 2018 and also addressed

a notice through the advocate on 03.10.2018. In

support of his submissions that the period of

suspension ought to be regularized, he relied on

several decisions.

(i) Reliance was placed on the decision in case of

Chimanlal Virjibhai Bhalani v. Paschim Gujarat

Vij Company Limited reported in 2020 JX (Guj)

410. to submit that in a similar case, though the

penalty was imposed, a direction was issued to the

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

Vij Company to consider the case for regularization.

(ii) Reliance was also placed on a decision in case

of Brahma Chandra Gupta v. Union of India

reported in 1984 (2) SCC 433, to submit that when

the suspension was held wholly unjustified, natural

consequences of treating the period for the purposes

of full salary should be awarded. Also reliance was

placed on the decision in case of State of U.P. v.

Ram Avtar Sharma reported in 2004 (13) SCC

755.

6. Mr.Mankad would submit that the imputation of

charges contained five charges, of which, three were

held not to be proved against the petitioner and

therefore when the penalty order was passed in light

of the fact that three charges of the petitioner were

not proved, a decision with regard to the suspension

being treated as regular for pay and allowance ought

to have been considered.

7. Mr.Dipak Dave learned counsel appearing for the

company would submit that the order of penalty was

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

passed in the year 2004 to which an appeal was filed

and rejected on 24.03.2005. Second Appeal was

preferred 15 years after the order of rejection of the

First Appeal and therefore only on the ground of

delay of 13 years, the petition challenging the order

should not be entertained.

8. That apart, inviting the attention of the Court to the

prayers made in the petition, he would submit that

having accepted the order of penalty and thereafter

even in the year 2003 when the order of suspension

was revoked and order of reinstatement was passed,

the petitioner did not think it fit to approach this

Court and did so post his superannuation in the year

2013. For this submission on the aspect of delay,

Mr.Dave would rely on the decision in case of C.

Jacob v. Director of Geology and Mining

reported in 2008 (10) SCC 115. Para 6 of the

decision was pressed into service.

9. He would also invite the Court's attention to

Regulation 241 of the service regulations and submit

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

that the question of treating the period of

suspension and awarding the benefits of full pay and

allowance can only be considered if an employee is

fully exonerated. He would invite the Court's

attention to provisions of sub-clauses (3) and (5) of

the regulation.

10. Considering the submissions made by the learned

counsel for the respective parties, the first issue

deserves attention of the Court is whether the order

rejecting the appeal by the impugned

communication dated 02.05.2018 is just and proper.

Without getting into the question as to whether a

statutory appeal can be entertained in the present

case, a Second Appeal when at the point when the

order of penalty was passed, such a provision was

available or not. Even on the ground of delay, the

order deserves no interference.

11. Facts on hand would indicate that on an order of

penalty being passed against the petitioner that of

stoppage of two increments with future effect on

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

29.09.2004, which was confirmed in the First Appeal

on 24.03.2005, the petitioner did not approach the

authorities and the appeals were only filed after 13

years i.e. in the year 2018. Para 6 of the decision in

case of C. Jacob (supra) reads as under:

"6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court).

Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/ petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."

12. On that count alone, this Court would have ousted

the petition.

13. There are sufficient reasons other than the aspect of

delay which should make the case of the petitioner a

case not deserving consideration. Regulation 241 of

the service regulations reads as under:

"(1) When an employee of the Board who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and made a specific order. a) Regarding pay and allowances to be paid to the employees for the period of his absence from duty.

b) Whether or not the said period shall be treated

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

as period spent on duty.

(2) Where the authority mentioned in sub Rule (1) is of opinion that the employee has been fully exonerated or in the case suspension that it was wholly unjustified the employee shall be given the full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended as the case may be.

(3) In other case i.e. when the suspension is not wholly unjustified or the employee has been partially exonerated, he shall be given such proportion of pay and allowance as the competent authority prescribed by a specific order.

(4) In case failing under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purpose.

(5) In case failing under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specific purpose provided if the employee so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the employee.

(6) If the employee is found to be guilty or partially guilty he shall be liable to be punished according to the gravity of charge against him."

14. Reading of the resolution makes it apparent that

only when an employee is partially exonerated,

would the authority need to decide the question of

whether the suspension can be treated to be wholly

unjustified and whether he should therefore be given

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

such proportion of pay and allowance as the

competent authority would prescribe by a specific

order. Only then Clause-5 shall come into play. In

the facts of the present case, what is evident is that

though Mr.Mankad would submit that in light of the

revocation of the order of suspension by the order of

23.10.2003 and of passing a penalty lower than the

one which was contemplated in the show cause

notice would justify his case for pay and allowances,

that does not seem to be the case when the

regulation is read. Here is a case where on a

charge-sheet being issued, the order of penalty was

passed. Obviously therefore not exonerating the

petitioner from the charge. It was therefore, within

the right of the employer to treat the period of

suspension as such reinstating the petitioner in

service with a condition that orders of regularization

of suspension is kept in abeyance till the inquiry is

finally disposed of, can only mean that the same has

to be done in accordance with the provisions of the

regulation and not otherwise.

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

15. The decision of this Court in case of Chimanlal

(supra) would not be of any assistance to the learned

counsel for the petitioner inasmuch as it was a case

where an order of dismissal was set aside by the

employer on it being harsh. The penalty was

modified by the Appellate Authority. It was in these

circumstances, that a direction was issued to the

authorities to consider the case of the petitioner in

light of the regulation. No positive finding with

regard to the period being treated as regular was a

question that was decided.

16. The decision in case of Bramhachandra Gupta

(supra) is a case where the delinquent was

suspended and thereafter removed from service on

he effected in a criminal case. When the delinquent

on an appeal to the higher Court was awarded an

acquittal, he was reinstated in service. It was on

this count that the employer was bound to treat the

pension of suspension as justified as the suspension

was solely on the ground of pendency of a criminal

case. Facts before the Supreme Court would

C/SCA/1027/2019 JUDGMENT DATED: 04/07/2022

indicate that the employer had not initiated any

departmental proceedings and the suspension was

only on the ground that the criminal charge was laid

against him and pending the trial of the offense. It

was a case where it can be safely inferred that there

was a complete exoneration on acquittal and

therefore even this case decided by the Supreme

Court would not help the cause of the petitioner.

17. In the case cited that of Ram Avtar (supra) was

again on facts whether the Tribunal on a challenge

to the order of dismissal had moved the same to that

of withdrawal of all actual increments.

18. Here is a case where the petitioner was imposed a

penalty which was commensurate with the conduct

on the charge being proved and the suspension

therefore could not have been treated as wholly

unjustified when read in light of the Regulation 241.

19. No case is made out and therefore the petition is

accordingly dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH