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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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
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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
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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
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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
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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
