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Gujarat High Court · body

2020 DIGILAW 645 (GUJ)

B. D. Patel v. State of Gujarat

2020-07-28

ASHUTOSH J.SHASTRI

body2020
JUDGMENT : 1. The present petition under Article 226 of the Constitution of India is filed by the petitioner for raising grievance about the decision dated 22.11.2006 passed by the respondent – authority and consequentially sought direction upon the respondent – authority to grant all increments to the petitioner for the period of suspension commencing from 12.08.1983 to 18.01.1995, except the one which is withheld by way of penalty. Since large relief is sought, the Court deems it proper to quote the relief clause contained in para 20 hereinafter:- “20.(A) Quashing and setting aside the Resolution dated 22.11.2006 (Annexure-“G”) and directing the respondents to grant all the increments to the petitioner for the period of suspension from 12.08.1983 to 18.01.1995 except the one which is withheld by way of penalty. (B) Quashing and setting aside the Memo dated 07.10.2004 (Annexure-“K”) and to direct the respondents to assign seniority to the petitioner in the cadre of clerk from 25.03.1980 instead of 19.01.1995. (C) During the pendency and final disposal of the petition, respondent no. 3 may be directed to fix and pay the petitioner salary on the basis that the petitioner is granted all increments for the period of suspension except the one which is withheld by way of penalty. (D) During the pendency and final disposal of the petition, respondent no. 3 may be directed to count the seniority of the petitioner in the cadre of Clerk from 25.03.1980 for all purposes. (E) To grant such other benefits as may be deemed fit.” 2. This petition was originally heard by the Court on 19.01.2007 and pursuant to the notices having been issued, when in past, the petition came up for consideration, the co-ordinate Bench i.e. the learned Single Judge (Coram: H.K. Rathod, J) was pleased to pass the order listing the matter for final disposal after passing a detailed order, but at this stage it would be appropriate to mention that the learned counsel appearing for the petitioner was pleased to drop the relief with regard to claim of seniority mentioned in para 20(B) with a liberty to file a separate proceedings and as such, the present petition is now centering around the substantial relief as contained in para 20(A) related to release of increments. 3. 3. The case of the petitioner is that he was originally appointed as ‘Punch Operator’ on 25.03.1980 and on account of abolition of post, the petitioner was absorbed as a Clerk under respondent no. 3 where he was serving. On account of alleged misconduct, the petitioner was placed under suspension, vide order dated 12.08.1983, in contemplation of departmental inquiry, but later the departmental inquiry has been held and by virtue of order dated 26.12.1994, wherein three increments with future effect was passed against the petitioner. Feeling aggrieved by the said decision about stoppage of three increments with future effect, the said order dated 26.12.1994 came to be challenged by the petitioner before the Gujarat Civil Services, Tribunal Gandhinagar by way of appeal and the same was registered as Appeal No. 258 of 1995, wherein, the learned Presiding Officer of the Gujarat Civil Services Tribunal was pleased to pass the order in appeal on 08.07.1999, reducing the penalty to the extent of one increment only without future effect. The said decision delivered by the Tribunal came to be challenged by way of Special Civil Application No. 4674 of 2003, which came to be dismissed vide order dated 16.04.2003. The record indicates that against the said decision, Letters Patent Appeal No. 810 of 2003 was filed, which came to be dismissed on 18.08.2003 by the Division Bench of this Court. So the penalty of withholding of one increment without future effect, according to the petitioner became final. 4. It is further the case of the petitioner that on 09.01.1995, he was reinstated in service and in the said order, a decision was taken with regard to regularization of the period of suspension, which was indicated to be taken later on. Then it appears that a specific order came to be passed with regard to the petitioner’s tenure of suspension vide order dated 14.03.1995, in which, the said period was treated to be admissible as leave and extra ordinary leave. After disposal of the above appeal by the Tribunal, it appears that further order came to be passed on 17.02.2000 in which it was observed that no change is required and the appeal came to be disposed of on 10.03.1994. So the determination of suspension period of the petitioner was found as it is. After disposal of the above appeal by the Tribunal, it appears that further order came to be passed on 17.02.2000 in which it was observed that no change is required and the appeal came to be disposed of on 10.03.1994. So the determination of suspension period of the petitioner was found as it is. Later on, after this, as a part of consequential order on 10.09.2003 was passed regularizing the period of suspension from 12.08.1983 to 18.01.1995. Since it appears that the petitioner represented before the authority against this order and the said representations were made on 23.10.2003 and 09.03.2004, it was communicated to the petitioner that it was proposed to treat the period of suspension only for the purpose of pension and the petitioner was asked to reply. After considering the reply of the petitioner dated 02.11.2006, the State Government by virtue of Resolution/Order dated 22.11.2006 decided that the period of suspension as indicated above is regularized only with respect to the payment of pensionary benefits and nothing beyond. In response to the communication dated 13.10.2006, the petitioner submitted representation/reply on 02.11.2006, requesting the authority to treat the period of suspension as on duty and then after considering the reply of the authority on 22.11.2006 it was decided to treat the whole period of suspension only for the pension purpose and the earlier order dated 17.02.2000 came to be amended. Hence, it is this order dated 22.11.2006 is made the subject matter of challenge in the present proceedings. 5. With this background, the petition was taken up for hearing finally with the consent of the learned advocates in which Mr. Vaibhav Vyas, learned advocate has represented the petitioner whereas, Ms. Vrunda Shah, learned Assistant Government Pleader has represented the State – authorities i.e. respondents nos. 1 and 2. 6. Mr. Vyas, learned counsel for the petitioner has vehemently contended that on account of similar charge, the order of penalty was already inflicted upon and the said penalty of stoppage of one increment without any future effect is already exhausted and implemented, as a consequence of the Tribunal’s order dated 08.07.1999 and as such now, it is not open for the respondent authority to impose further penalty, otherwise the same would tantamount to be passing minor penalty as well as for major penalty. Mr. Mr. Vyas, has submitted that here is the case in which if the tenure is considered then there are as many as 12 annual increments are to be released and according to Mr. Vyas, there is no provision under the provisions of Bombay Civil Services Rules (hereinafter referred to as “BCSR”) to impose such penalty. It has been contended before this Court that Rule 151 of the BCSR is relating to payment of subsistence allowance and this rule does not indicate the subsistence allowance is not to be paid by adding in such increments and if the petitioner is deprived of as many as 12 annual increments, then, the same would tantamount to be a minor and major penalty both and as such, the same would run counter to the proposition of law which has been propounded by the Apex Court in the case of Union of India v. S. C. Parashar reported in 2006 AIR SCW 1068. 7. The petitioner has raised multiple grievances in the present proceedings with regard to his claim of subsistence allowance, with regard to his seniority to be treated from the date of the original joining, but in view of the order passed by the co-ordinate Bench on 22.01.2010, except the grievance related to 12 increments, the Court is not called upon to examine as prayer contained in para 20(B) was not pressed and as such with this limited submission, on the issue of increments, Mr. Vyas has submitted that this is fit case for grant of relief as prayed for in the petition. 8. In addition to the relevant rules, Mr. Vyas has pointed out and relied upon two decisions one which is delivered by the Apex Court which is referred to above and another which is delivered by the Rajasthan High Court, Jaipur Bench dated 28.02.1989 and by referring to the observations contained in para 12 of the said judgment, Mr. Vyas has reiterated that the original order passed by the authority is not just and proper, rather impermissible in law. As a result of this, the petition be allowed in the context of prayer which has been made in para 20(A). Mr. Vyas has further contended that placing an employee under suspension, the same would not tantamount not to pay the increments since the suspension is not cessation of service of an employee. As a result of this, the petition be allowed in the context of prayer which has been made in para 20(A). Mr. Vyas has further contended that placing an employee under suspension, the same would not tantamount not to pay the increments since the suspension is not cessation of service of an employee. When that be so, there is hardly any justifiable reason available with the authority to withheld any one or two, but total 12 increments by not considering the period of suspension to be on duty. Be that as it may, however, Mr. Vyas has submitted that this case be considered for grant of relief as prayed for in the petition. 9. To oppose the stand taken by the learned counsel for the petitioner, Ms. Vrunda Shah, learned Assistant Government Pleader appearing on behalf of the State – authority has vehemently contended that this is not a fit case in which any relief can be considered. According to Ms. Shah, learned Assistant Government Pleader, the period of suspension has already been dealt with in past by the authority and as such this relief is not possible to be extended to the petitioner. By referring to the affidavit-in-reply and the contents stated therein, it has been submitted that the period of suspension cannot be treated as period on duty since by way of specific order the said period was regularized only for the purpose of pension and nothing beyond. It was stated that the petitioner was found guilty in departmental inquiry, as a result of which, the authority has rightly not considered the period as on duty since the same was of 11 years and 76 days. Since that specific order has attained finality, there cannot be even any grievance of the petitioner with regard to release of increments and to substantiate this contention, two orders are brought to the notice of this Court one dated 14.03.1995 and another dated 17.01-02.2000 reflecting on page 43 and 44 of the petition compilation. Ms. Shah, learned Assistant Government Pleader has further submitted that here is the case in which undisputedly, the petitioner has not worked at all for even 11 years and more and therefore, by virtue of effect of Rule 152 of the BCSR and the specific orders, the authority is justified in not releasing 12 increments and as such, the question has been raised by Ms. Shah, learned Assistant Government Pleader that since he has not worked at all and there appears to be a specific order, the period of suspension since treated specifically, there is hardly any reason to release 12 increments in favour of the petitioner. When that be so, and in view of the fact that since these orders have been accepted by the petitioner, this claim which has been made is out of place in the peculiar background of this case. Hence, the petition being devoid of merit, the same deserves to be dismissed. 10. Having heard the learned counsel for the respective parties and having gone through the material on record placed before the Court, it appears that the period of suspension is almost about 11 years and 76 days as indicated above and there is a further specific order reflecting that in past in exercise of powers under Rule 7(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 read with Rule 6(2) a minor penalty is imposed upon to stoppage of increments without any future effect and in the said order, it has been specifically mentioned that by virtue of Rule 152(3) (5) of the BCSR, there is no question of any change in the original order dated 14.03.1995. It has further been reflecting on record on page 25 that the authority has passed the order to regularize the period of suspension only to the extent of pension purpose and as such way back in 2006, such order is passed which is made the subject matter of the present proceedings. A conjoint reading of the relevant rules under BCSR precisely Rule 152 of the BCSR, there shall be a specific order to be passed by the authority with regard to the determination of suspension period and so far as Rule 151 of BCSR is concerned, both these rules are suggesting that confer only part of the period of suspension as leave is not permissible. Further perusal of the record indicates that there are two orders which are not possible to be unnoticed by the Court, namely the office order dated 14.03.1995 and 17.01-02.2000 which has clearly indicated about the period of suspension and release of increments reflecting on page 44 of the petition compilation. Further perusal of the record indicates that there are two orders which are not possible to be unnoticed by the Court, namely the office order dated 14.03.1995 and 17.01-02.2000 which has clearly indicated about the period of suspension and release of increments reflecting on page 44 of the petition compilation. So now since the authorities have passed a specific order, there is hardly any case made out by the petitioner to seek release of 12 increments. Rule 151 has clearly stipulated what should be paid to a government servant kept under suspension. The said rule reads as under :- “151.(1) A Government servant under suspension is entitled to the following payments: (I) In the case of a military officer who is liable to revert to military duty the pay and allowances to which he would have been entitled had he been suspended while in military employment. (II) In the case of any other Government servant : (a) A subsistence allowance at an amount equal to the leave salary which the Government Servant would have drawn if he had been on leave on half average pay or on half pay and in addition dearness allowance based on such leave salary; Provided that where the period of suspension exceeds six months the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows: (i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 percent of the subsistence allowance admissible during the period of the first six months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant. (ii) the amount of subsistence allowance may be reduced by a suitable amount not exceeding 50 percent of the subsistence allowance admissible during the period of the first six months if in the opinion of the said authority the period of suspension has been prolonged due to reasons, to be recorded in writing directly attributable to the Government servant. (iii) The rate of dearness allowance will be based on the increased or as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above. (iii) The rate of dearness allowance will be based on the increased or as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above. xx xx xx Instruction : No payment under sub-rule (1) shall be made unless the government servant furnishes certificate to the following effect before payment is made every month.” 11. This Rule referred to above has not clarify as to whether the claim related to release of increments made by the petitioner can be considered and as such, going through the several orders passed by the respondent authority attached to the affidavit-in-reply, this Court is of the view that the claim made by the petitioner may not be considered. A specific stand taken by the State – authority in affidavit-in-reply, the Court would like to refer to and rely upon para 8 and 9, which reads as under :- “8. I say and submit that the petitioner had prayed to the government for regularization of suspension period and prayed for treating the suspension period as on duty but the State Government was pleased to reject the submission/ representation of the petitioner by resolution dated 22.11.2006. It was stated in the resolution dated 22.11.2006 that the petitioner was not proved innocent in the departmental proceedings. Therefore, the period of suspension cannot be treated as period on duty and in resolution dated 22.11.2006 it was stated that the period will be counted only for the purpose of fixing pension but will not entitled to any increment. Therefore, the petition is require to be dismissed. 9. I say and submit that the contention/ demand of the petitioner to treat his suspension period on duty cannot be accepted because the period of suspension was regularized by order dated 17.02.2000 as per the rule 152(3) (5). I say and submit that the petitioner was found guilty in departmental inquiry. Therefore, the petition is require to be dismissed. 9. I say and submit that the contention/ demand of the petitioner to treat his suspension period on duty cannot be accepted because the period of suspension was regularized by order dated 17.02.2000 as per the rule 152(3) (5). I say and submit that the petitioner was found guilty in departmental inquiry. Therefore, the suspension period starting from 12.08.1983 to 18.01.1995 in all for 11 years and 76 days cannot be counted or considered as on duty and in light of the fact that the petitioner was declared guilty in departmental examination and as per the order dated 17.02.2000 the suspension period was regularized for the purpose mentioned in the order and other than the leave entitled by the petitioner the order period/leave was considered as extra ordinary leave and therefore no increment will be available as per the amended order by the State Government (Education Department) for the period of extra ordinary leave and therefore the petitioner is not entitled to the benefit as prayed for.” 12. It appears that Mr. Vyas has strenuously contended that once having exhausted the penalty of stoppage of 12 increments would be nothing but another kind of penalty, which ought not to have been ignored by the authority and as such, by relying upon the decision delivered by the Rajasthan High Court of Jaipur Bench delivered on 28.02.1989 a contention is raised that the order of suspension is not an order of punishment and the same is not the effect of cessation of service or the employee or employer relation and hence stoppage of increments will amount to penalty without any determination of guilt. 13. As against this, one direct decision which cannot be unnoticed is the decision in the case of State of Punjab v. Jaswant Singh Kanwar reported in (2014) 13 SCC 622 , much later in point of time, has clearly stated that the request for release of increments cannot be considered of a period during which an employee has remained under suspension. The said decision has propounded that keeping in view the Rules applicable and the general principle of service law jurisprudence, an employee would not be entitled to any increment during the period of suspension. The observations contained in para 14 to 18 are clinching the issue. Hence, reproduced hereinafter :- “14. The said decision has propounded that keeping in view the Rules applicable and the general principle of service law jurisprudence, an employee would not be entitled to any increment during the period of suspension. The observations contained in para 14 to 18 are clinching the issue. Hence, reproduced hereinafter :- “14. The disciplinary authority by its order has imposed stoppage of two increments with cumulative effect as a major penalty for the offences alleged against the petitioner. The principle of stoppage of increment is laid down in Kulwant Singh Gill v. State of Punjab where penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee were cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the timescale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order by necessary implication is that the appellant employee is reduced in his timescale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years’ increments would not be counted in his timescale of pay as a measure of penalty. The stoppage of increment is only a major penalty which keeps the petitioner away from the benefits that would have accrued to him during the suspension period. IT is not a new penalty imposed for the same offence in respect of the same subject matter. 15. In our view, the High Court has failed to note the very purpose of the stoppage of increment imposed as a major penalty by the disciplinary authority. The grant of increment after the order of suspension by the authority with the concurrent finding of the not period spent on duty and more so when the order of termination is not declared illegal or void ab initio would not only defeat the very purpose of levying penalties but would also jeopardies public interest and administration of justice. 16. The grant of increment after the order of suspension by the authority with the concurrent finding of the not period spent on duty and more so when the order of termination is not declared illegal or void ab initio would not only defeat the very purpose of levying penalties but would also jeopardies public interest and administration of justice. 16. A careful reading of the language employed in Rule 4,9 (a) of the Punjab Civil Services Rules, Volume I, Part I read with Rule 7.3-B(1) would stipulate the conditions on which service counts for increments in a time scale. The aforesaid provision suggests that only the period spent on duty in a post would be counted for the purpose of increments. Rule 7.3-B(1) would further stipulate that upon reinstatement of a suspended employee, the competent authority shall consider and make a special order regarding the pay and allowances to be paid to he government employee for the period of his absence from duty including the period of suspension, preceding his dismissal, removal or compulsory retirement, as the case may be and whether or not the said period shall be treated as a period spent on duty. The competent authority in the present case after a careful consideration, in accordance with the rules had although thought it fit to grant the pay and allowances not exceeding the subsistence allowance already granted to the respondent during the period of suspension but has not granted increments for the period of suspension i.e. the period not sent on duty. 17. It is an admitted fact that the respondent was kept under suspension pending departmental inquiry with effect from 17.02.1988. The disciplinary authority, by its order dated 22.10.1998 has imposed a major penalty on the respondent by way of stoppage of two increments with cumulative effect. But subsequently, the disciplinary authority and the High Court have concurred that the period of suspension was period not spent on duty and, therefore, keeping in view the rules applicable and the general principles of service law jurisprudence, the respondent would not be entitled to any increment during the aforesaid period of suspension. 18. We, therefore, cannot sustain the orders passed by the courts below. Accordingly, while allowing the appeal, we set aside the orders passed by the learned Single Judge as affirmed by the Division Bench of the High Court. No costs. Order accordingly.” 14. 18. We, therefore, cannot sustain the orders passed by the courts below. Accordingly, while allowing the appeal, we set aside the orders passed by the learned Single Judge as affirmed by the Division Bench of the High Court. No costs. Order accordingly.” 14. In view of the aforesaid position prevailing on record and in view of the stand taken by the authority, a conjoint reading of the material on record, is leading to a conclusion that the relief of releasing approximately 12 increments does not deserve to be considered, particularly, when specific orders have been passed by the authority as indicated above. 15. Under the circumstances, the petition being meritless, deserves to be dismissed and the same is hereby dismissed. Rule is discharged with no order as to costs.