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2024 DIGILAW 159 (GUJ)

Yogeshbhai Kalidas Pandya v. State of Gujarat

2024-01-19

HEMANT M.PRACHCHHAK

body2024
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 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 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. 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 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 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. 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. 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 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. 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:- “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 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. 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 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.