Gujarat High Court
Yogeshbhai Kalidas Pandya vs State Of Gujarat on 19 January, 2024
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C/SCA/12312/2016 JUDGMENT DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12312 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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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YOGESHBHAI KALIDAS PANDYA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS NIRALI SANDA AGP for the Respondent(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 19/01/2024
ORAL JUDGMENT
1. By way of this petition under Articles 14, 16 and 226 of the
Constitution of India, the petitioner has prayed for the following
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reliefs:-
"(A) That Your Lordships be pleased to issue an order,
direction and/or writ in the nature of certiorari and/or any
other appropriate writ, order or direction, quashing and
setting aside the impugned order dated 24-5-2016 together
with Order dated 9-5-2016, being illegal, arbitrary and
against the Rules and against the principles of natural
justice;
(B) That Your Lordships be pleased to direct the
respondents to pay full wages with 12% interest thereon
from the date of suspension;
(C) Pending admission and final disposal of this petition,
Your Lordships be pleased to direct the respondents to pay
full wages from 1-8-2014, the date from which the
petitioner has resumed his duty vide letter dated 1-8-2014;
(D) Any other and such further relief as the Hon'ble Court
deems fit and proper in the interest of justice together with
costs.
2. The short facts of the present petition are that the
petitioner was appointed in the services of respondent no.2 on
01.09.1987 and has been working as Hostel Superintendent
(Gruhpati). That upon criminal complaint filed by one Smt.
Arpitaben d/o. Amritbhai Babubhai Rathod, the petitioner was
suspended from the services. The respondent no.1 has
addressed a letter on 03.09.2005 for approval of the suspension
order and directed for payment of subsistence allowance. That
the respondent has also filed Criminal Case No.3477 of 2005
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before the concerned learned Chief Judicial Magistrate and the
charge-sheet came to be issued and the petitioner filed reply to
the charge-sheet. The Inquiry Officer addressed a letter to the
petitioner and the appointment of the Inquiry Officer which was
objected by the original complainant on the ground that the
matter was pending before the concerned Court and the
complainant made representation to the Inquiry Officer raising
objection about appointment of Inquiry Officer and conducting
inquiry and, thereafter, the Inquiry Officer concluded the inquiry.
So far as the proceedings pending before the concerned Judicial
Magistrate, First Class is concerned, Smt.Arpitaben filed pursis
that there was some misunderstanding and she withdrew the
complaint. The order came to be passed by the learned
Additional Chief Judicial Magistrate on 17.07.2014 and
subsequently, the order was passed on 25.07.2014 in Criminal
Case No.3477 of 2005 exonerated the petitioner from all the
charges. That respondent no.2 addressed a letter to respondent
no.1 for cancellation of suspension order and reinstate the
petitioner and, thereafter, the petitioner was reinstated in
service and he resumed his duty and since then he is working
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and still paid 75% wages. However, the Director of Social Welfare
Department has rejected the same vide letter / order dated
24.05.2016 forwarding therewith a copy of the letter issued by
the Deputy Secretary, Gandhinagar. Against the order dated
24.05.2016, the present petition is filed.
3. The respondent no.1 has filed affidavit-in-reply to the
petition and respondent no.2 has also filed affidavit-in-reply to
the petition.
4. Heard Mr.T. R. Mishra, learned counsel appearing for the
petitioner, Ms.Nirali Sanda, learned Assistant Government
Pleader appearing for respondent no.1 and Mr.Prabhakar
Upadhyay, learned counsel appearing for respondent no.2.
5. Mr.Mishra, learned counsel appearing for the petitioner has
submitted that the petitioner suspended in August, 2005 and
paid only suspension allowance though he is reinstated in service
in August 2014. He has submitted that the petitioner remained
under suspension from 2005 till 01.08.2014 and the impugned
action of the respondent that the petitioner was not paid full
wages is arbitrary and violative of Articles 14 and 16 of the
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Constitution of India. He has submitted that the respondents had
not paid all retiral dues and more particularly the amount of
suspension allowance is paid only 75% to the petitioner from the
date of suspension till regularization of his service by revoking
the order of suspension and he was deprived of full amount of
suspension allowance since he was put under suspension for
more than six years and he was only paid 75% suspension
allowance, however, his retiral benefits is not paid which is due
and payable. He has submitted that the criminal complaint came
to be disposed of that was filed against the petitioner and,
therefore, his suspension order came to be revoked and his
service is regularized. According to Mr.Mishra, learned counsel,
the inquiry proceedings were dropped and he was reinstated in
service but from 2006 to 2014, he was received only 75%
substance allowance. He has submitted that the petitioner had
made representation to the concerned authority but the same
was not decided till date. He has prayed to allow the present
petition and quash and set aside the order dated 24.05.2016
together with order dated 09.05.2016.
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6. Ms.Sanda, learned Assistant Government Pleader
appearing for respondent no.1 has submitted that the petitioner
cannot be given such full wages of his suspension period
because respondent no.2 allowed the petitioner to resume duty
and not intimated to respondent no.1 for the same and
respondent no.2 has not reviewed the matter and straight way
allowed the petitioner to resume his duty. She has submitted
that respondent no.2 has not completed formality as per the
statutory rules and even not intimated respondent no.1 with
regard to dropping of inquiry and respondent no.2 cannot be
fasten liability upon respondent no.1. She has submitted that
since respondent no.2 is in fault and they are responsible for
paying all these benefits which are required to be paid to the
petitioner and respondent no.2 has not completed the formalities
as provided under the statutory rules and, therefore, they are
not liable to pay any amount.
7. Mr.Upadhyay, learned counsel appearing for respondent
no.2 that respondent - school has issued communication to
respondent no.1 whereby it has informed that the petitioner has
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been acquitted in the criminal case and management has
decided to revoke the order of suspension. He has submitted
that respondent no.2 requested respondent no.1 to grant
approval of action for revoking the order of suspension and to
reinstate the petitioner in service. He has submitted that
respondent no.1 passed an order dated 24.05.2016 refusing to
regularize the period of suspension of the petitioner for the
period from 11.08.2005 and 31.07.2014. He has submitted that
there is no fault on the part of respondent no.2 and the
respondent no.2 has completed the formality provided under the
rules and they intimated respondent no.1 with regard to
dropping of any such inquiry. He has also submitted that
respondent no.2 wrote a letter to respondent no.1 and
completed all formalities in accordance with law.
8. This Court has considered the submissions canvassed by
the learned counsel appearing for the parties and perused the
materials on record and the Gujarat Civil Services (Discipline and
Appeal) Rules, 1971 (hereinafter be referred to as "the Rules")
more particular Rule 5(b) and (c), which reads thus:-
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"5(b) by an order passed at any time before the expiry of such
period of 90 days,
(c) pass after considering the special circumstances for not
initiating disciplinary proceedings to be recorded in writing. "
9. Considering the facts and circumstances of the case and
the averments made in the petition, it appears that the petitioner
was working with respondent no.2 as Hostel Superintendent and
he was the permanent employee. Upon criminal complaint being
filed, he was suspended from the service and, thereafter,
respondent has also filed criminal case before the concerned
learned Chief Judicial Magistrate which came to be disposed of
and petitioner was exonerated from the charges. It also appears
that the petitioner has been reinstated in service and he has
resumed his duty and since then he is working and is still paid
75% suspension allowance instead of 100%. Considering the
affidavit filed by respondent no.2, it appears that respondent
no.2 already wrote a letter to respondent no.1 contending that
since criminal case was disposed of, the order of suspension of
the petitioner was revoked and, therefore, the period on which
the petitioner was under suspension was required to be
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regularized. Such intimation was already sent to respondent no.1
by respondent no.2 and such proposal was further forwarded to
the concerned authority, which came to be rejected on the
ground that since respondent no.2 has not completed formality
in accordance with law and resolution. The petitioner is paid only
75% suspension allowance instead of 100% and now 25%
suspension allowance is required to be paid to the petitioner. So
far as non-compliance of Rules by respondent no.2 is concerned
as per the say of respondent no.1, they have already intimated
to respondent - authority. Considering Rule 5(b) and (c) of the
Rules, it appears that it is not necessary to intimate review of
suspension time and again and, therefore, the contention raised
by respondent no.1 is not tenable and the same deserves to be
quashed and set aside.
10. In view of the above, the petition is partly allowed. The
impugned order is hereby quashed and set aside. It is ordered to
pay the petitioner all his retiral dues after re-calculating and
after paying difference of 25% along with the benefit of revision
of pay and calculate pensionary benefit and pass pension order
in accordance with law within a period of three months from the
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date of receipt of the order. The respondents are directed to give
all retiral benefits after calculating difference of wages for the
period the petitioner remained under suspension and whatever
amount is entitled for by the petitioner the same shall be paid
within a period of stipulated time. The gratuity amount shall be
paid to the petitioner along with 6% interest from the date on
which he is entitled for. The respondent no.2 is directed to
complete such formality for preparing the service book etc and
to sent proposal to respondent no.1 within a period of fifteen
days from the date of receipt of this order and on receipt of such
proposal, respondent no.1 shall complete such procedure and
pay all retiral benefits to the petitioner within a period of three
months. Rule is made absolute to the aforesaid extent.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
