Gujarat High Court
Nilesh Muljibhai Patel vs State Of Gujarat on 19 January, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
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C/LPA/847/2020 ORDER DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 847 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22617 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 847 of 2020
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NILESH MULJIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 19/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. N.K. Majmudar for
the appellant and learned Assistant Government Pleader Ms.
Shruti Dhruve for the respondent.
2. What is sought to be called in question by the
appellant-original petitioner in this Letters Patent Appeal, is
judgment and order dated 28.9.2020 of learned Single Judge.
By issuing certain directions, learned Single Judge disposed of
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the petition.
2.1. The directions issued by learned Single Judge,
extracting from paragraph 6 of the order, reads as under:
"6. xxxxx Upon the petitioner being repatriated to the
parent department, the suspension order would also come up
for consideration of the parent department which has to
then take independent decision in view of the proposal and
the law applicable particularly provisions of Rules. The
Court also finds that in view of the powers under Rule 16
of the Rules, order passed by the respondent No.3
suspending the petitioner is not without jurisdiction.
However, so far as the grievance of the petitioner regarding
subsistence allowance during the suspension period, the
respondent Nos.3 and 4 will have to take exercise jointly to
calculate the period of suspension and grant all subsistence
allowances for the respective period during which the
petitioner was under suspension. From the date of
suspension till repatriation, it will be the liability of
respondent No.3- Consumer Disputes Redressal Commission
and thereafter, being repatriated to the parent department,
till the petitioner continued to be under suspension, to be
the liability of the parent department. The exercise of
paying the subsistence allowances in accordance with law to
be undertaken within a period of three months from the
date of receipt of copy of this order."
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3. The petitioner was Clerk working under the
District Panchayat, Vadodara, who was sent on deputation on
3.9.2015 and his services fell upon deputation, under the
State Consumer Disputes Redressal Forum-respondent No.3
herein. It appears that the petitioner came to be suspended
in February, 2019. He remained under suspension till
25.8.2021. It was on and from 25.8.2021 that the petitioner
somehow joined back the services of Panchayat. On such bare
minimum facts, Special Civil Application was instituted.
3.1. The principal prayer made by the petitioner was
for setting aside the order dated 14.2.2019 suspending him. It
was alternatively prayed to hold that the respondent
authorities did not review the suspension order after a period
of ninety days from 14.2.2019, that is the date of passing of
order of suspension, rendering thereby the continued
suspension to be illegal.
3.2. Rule 5 of the Gujarat Civil Services (Discipline &
Appeal) Rules, 1971 dealing with the suspension, in its
relevant part, reads as under:
"5. Suspension :
(1) The appointing authority or any authority to which it is
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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 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.
(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
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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) ... ... ...
(b) ... ... ...
Explanation: ... ... ...
(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
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 sub-
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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 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.
(3) Where a penalty of dismissal, removal or ... ... ...
(4) Where a penalty of dismissal, removal or ... ... ...
(5) Subject to the provisions contained in sub -
rule (2A),an order of suspension made or deemed to ... ...
...
(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 ... ... ...
(c) An order of suspension made or deemed to have been
made under this rule may be at any time be modified ...
..."
4. On the basis of the aforesaid rules, learned
advocate for the appellant submitted that as per the
provisions of the aforesaid rules, while the competent
Disciplinary Authority is empowered under Rule 5(1) to place
the government servant under suspension where the
disciplinary proceedings are contemplated or pending, sub-
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rule(1) of Rule 5 provides also that such suspension shall not
be valid unless before expiry of period of ninety days from
the date of passing of the order of suspension, the
disciplinary proceedings are initiated against the government
servant. Rule 5(2) is about deemed suspension and an order
of suspension, it was submitted, made or deemed to have
been made under sub-rule(1) or sub-rule(2) of Rule 5 shall
not be valid after a period of ninety days.
4.1 It was submitted that if the period of suspension
is to be extended, it shall have to be reviewed before the
expiry of ninety days. Stressing the aforesaid point, learned
advocate for the appellant submitted that though the
direction is given by the learned Single Judge about payment
of subsistence allowance, the core issue of validity of
suspension continued after ninety days has not been
addressed at all by learned single Judge. It would be
submitted that the entire petition was founded on the prayer
about treating the suspension to be invalid for want of
review within ninety days.
4.2 When confronted with the aforesaid aspect, learned
Assistant Government Pleader was entirely at her receiving
end to be unable to point out from the order of learned
single Judge wherefrom it could be gathered that this aspect
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was dealt with and addressed by learned single Judge. She,
however, pointed out paragraph 6.2 of the order of learned
single Judge, in which the reference is made to Rule 5 of
the aforesaid Rules.
4.3 It could be immediately gathered that no final
finding is recorded by the learned single Judge about the
application of the aforesaid Rules to consider the contention
about treating the suspension period invalid or otherwise.
5. When the entire controversy in the petition was
related to said aspect and the principal prayer in that regard
was specifically made. The petition was founded on the said
aspect only, it was incumbent on part of learned Single
Judge to address and decide the said aspect.
6. In the aforesaid view, without expressing any
opinion on the merits of the said aspect which is the
essential part of the controversy between the parties, the
judgment and order of learned single Judge insofar as the
directions issued with regard to the payment of subsistence
allowance as contained in paragraph 6 are concerned, the
order is set aside to that extent, maintaining rest of the
order and directions.
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6.1 Learned Single Judge shall address the issue
regarding validity of the continued suspension in light of the
applicability and operation of Rule 5 of the aforesaid Rules
and render his decision confined to the said aspect.
6.2 The decision of learned Single Judge which may
be taken expeditiously in the above regard shall guide the
right of the parties in respect of the issue of payment of
subsistence allowance.
7. The appeal is accordingly allowed in part and
disposed of.
Civil Application will not survive in view of the
disposal of the main appeal.
(N.V.ANJARIA, J)
(SANDEEP N. BHATT,J)
SRILATHA
