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2024 DIGILAW 867 (GUJ)

State Of Gujarat v. Natubhai Motibhai Desai

2024-04-16

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
ORDER : (Biren Vaishnav, J.) 1. Heard Mr.Rohan Shah, learned Assistant Government Pleader appearing for the appellant – State and Mr.Anshin Desai, learned Senior Counsel appearing with Ms.Venu Nanavati, learned counsel for the respondent. We have taken up the Letters Patent Appeal for final hearing in light of the civil application filed for directions in the appeal. 2. Before the learned Single Judge, the respondent had filed a petition for the following prayers: “17(A) Your Lordships may be pleased to admit and allow this petition; (B) Your Lordships may be pleased to quash and set aside the orders of extension of suspension of the Petitioner passed by the Respondent No.1 at Annexure-A-1 to Annexure-A-29 and to hold and declare that the Petitioner’s continued suspension after a period of 90 days is not valid and ineffective and inoperative as per the provisions of Rule 5(2A) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 as amended by Gujarat Civil Services (Discipline and Appeal) (First Amendment) Rules, 2007 and further be pleased to direct the Respondent authorities to reinstate petitioner in active duty at a posting with all consequential benefits in the interest of justice; (C) Your Lordships may be pleased to quash and set aside the impugned order of suspension dtd. 04.05.2011 at Annexure-C and be pleased to hold and declare that the order of suspension is bad in law, null and void in the interest of justice; (D) Pending Admission, Hearing and Final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondents, their agents, officers, servants etc., to restrain from passing any further order of extension of suspension of Petitioner in the interest of justice; (E) Pending Admission, Hearing and Final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondent Authorities to reinstate the Petitioner on active duty in the interest of justice; (F) YOUR LORDSHIPS may be pleased to pass such other order as may be deemed just and proper in the circumstances of the case.” 3. Reiteration of facts will not be necessary for us as the learned Single Judge has extensively considered those facts and it will be therefore fruitful for us to reproduce those relevant paragraphs of the order of the learned Single Judge which reads as under: “3. Reiteration of facts will not be necessary for us as the learned Single Judge has extensively considered those facts and it will be therefore fruitful for us to reproduce those relevant paragraphs of the order of the learned Single Judge which reads as under: “3. The facts are that the petitioner who was appointed on 06th December, 1990 as Planning Assistant, Town Planning & Valuation Department, Rajkot Branch as Class III officer, served at different places such as Bhavnagar, Surat and Bharuch. He was posted between 06th November, 2003 to 01st December, 2006 at the Town Planning & Valuation Department, Bhuj Branch. It appears that in the year 2010 and 2011, the petitioner had to face two F.I.Rs. in respect of the alleged offences under Sections 217, 409, 465, 467, 471 and 120B of the Indian Penal Code. 3.1 Resultantly, on 04th May, 2011 order of suspension came to be passed against the petitioner. He was placed under deemed suspension with effect from 21st February, 2011, which was the date on which the petitioner was arrested. The suspension order was under Rule 5(2A) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. The suspension was based on the allegation that the petitioner while discharging duties as Town Planner, undervalued the land to be allotted to a limited company which resulted into huge financial loss to the government. 3.2 After the first order of suspension, extension order came to be passed on 28th November, 2011. The suspension of the petitioner was thereafter continued by passing the orders as per the following details. Sr.No. Date of Suspension Order Period of Extension (days) 28/11/2011 180 24/05/2012 180 17/11/2012 90 19/02/2013 90 18/05/2013 90 14/08/2013 60 15/10/2013 30 13/11/2013 90 11/02/2014 90 16/06/2014 90 12/09/2014 90 11/12/2014 90 11/03/2015 90 09/06/2015 90 07/09/2015 30 07/10/2015 90 06/01/2016 90 06/04/2016 90 02/07/2016 90 04/10/2016 60 02/02/2017 90 02/05/2017 90 10/08/2017 90 08/11/2017 90 12/02/2018 90 11/05/2018 90 10/08/2018 90 06/11/2018 90 06/02/2019 90 3.3 By order dated 02nd April, 2012, the subsistence allowance was increased to 50% and thereafter to 75%. On 26th November, 2012, Deputy Secretary of Urban Housing Department issued showcause notice against the petitioner as to why the disciplinary action should not be initiated against the petitioner. The petitioner filed reply on 04th January, 2013. On 26th November, 2012, Deputy Secretary of Urban Housing Department issued showcause notice against the petitioner as to why the disciplinary action should not be initiated against the petitioner. The petitioner filed reply on 04th January, 2013. It appears that the petitioner filed as many as 11 representations from 10th August, 2018 onwards seeking the revocation of suspension but none was responded to by the authorities.” 4. In short therefore, before the learned Single Judge, the issue was whether the order of suspension was renewed beyond a period of 90 days from the date of the first order of suspension. 5. The learned Assistant Government Pleader has not been in a position to dispute the fact that the first order of suspension was passed on 04.05.2011, albeit an order of deemed suspension with effect from 21.02.2011, which ought to have been reviewed within a period of 90 days. The first review happened on 28.11.2011 beyond a period of 90 days, and therefore, the learned Single Judge, dealing with the proviso to Rule 5 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, considered it to be an order beyond jurisdiction, inasmuch as, the review happened beyond the period of 90 days. The learned Single Judge, after adverting to the facts therefore, in paragraphs 6 to 6.4, held as under: “6. Adverting to the facts of the present case, the initial suspension was ordered on 04th May, 2011. Under Rule 5(2A) it was required to be reviewed within 90 days. It was not reviewed. It is not in dispute that the next order of continuing the suspension was passed on 28th November, 2011 whereby the original suspension period was extended. In other words, without reviewing the suspension during the statutorily prescribed period, the suspension was sought to be extended. As the suspension was not reviewed within 90 days, it lapsed in law and deemed to have been discontinued. Order dated 28th November, 2011 and the subsequent orders of extension could be said to be without any authority in law. They were rendered manifestly illegal in view of the mandatory provisions the of Rules. The show-cause notice initiating departmental inquiry was issued against the petitioner as late as on 26th November, 2012. Order dated 28th November, 2011 and the subsequent orders of extension could be said to be without any authority in law. They were rendered manifestly illegal in view of the mandatory provisions the of Rules. The show-cause notice initiating departmental inquiry was issued against the petitioner as late as on 26th November, 2012. 6.1 Thus, the infirmity in the continued suspension against the petitioner travelled beyond the unreasonable prolongation thereof, in asmuch as in terms of Rule 5(2A) of the Rules it was incumbent on part of the authorities if they wanted to extend the suspension beyond 90 days, after expiry of 90 days, to review the same. The extension of suspension period was permissible in law only after review thereof but by undertaking the review before the expiry of the 90 days. 6.2 Once the suspension of the petitioner was not renewed before expiry of 90 days and the departmental proceedings were not initiated, suspension could not have been continued. The suspension stood invalidated at that stage itself. Therefor once 90 days' period expired from the initial date of suspension, that is 04th May, 2011, suspension never existed in eye of law. The suspension finally lapsed in view of operation of the statutory Rule. Review of suspension at every interval of 90 days and before interval of such 90 days period as contemplated in the Rule was mandatory requirement to be observed by the authorities. 6.3 As the suspension had lapsed in law for want of extension in compliance of the Rules, the subsequent several orders whereby the suspension was sought to be reviewed in the name of extension, was not to remedy the situation. It could not have any effect of reviewing the suspension which had already lapsed. Suspension could not have been reviewed or extended which had ceased due to operation of the Rules. 6.4 The first order of suspension was passed on 04th May, 2011. Thereafter the next order was passed after span of almost seven months on 28th November, 2011 in total, 28 orders of extension came to be passed thereafter. It was in this way that the suspension was arbitrarily continued for long eight years without review. Even the departmental proceedings were initiated on 26th November, 2012 by issuing show-cause notice by the competent authority. It was in this way that the suspension was arbitrarily continued for long eight years without review. Even the departmental proceedings were initiated on 26th November, 2012 by issuing show-cause notice by the competent authority. The order of suspension which was required to be reviewed within a period of 90 days before passing further extension, was not reviewed. Nor the departmental proceedings were initiated within 90 days. Therefore on both the scores, the infirmity in law tainted the action with illegality in terms of breach of statutory rules.” 6. It is undisputed by the counsels for the respective parties that on facts, therefore, when the appeal was admitted by this Court on 06.03.2023, the order of suspension, considering the proviso to Rule 5 was beyond reproach and the order of the learned Single Judge could not have been disturbed. 7. However, considering the interpretation of Rule 5(2A) read with third proviso, a dispute arose before the Division Bench as to which of the dates should be considered for counting the period of 90 days in the case of deemed suspension. The controversy was whether the period of 90 days would count from the date on which the government servant detained in custody is released from custody or the date on which the fact of his release from the detention is intimated to his appointing authority whichever is later. The Division Bench, therefore, admitted the appeal by its order of 06.03.2023. It will be beneficial for us to reproduce the order dated 06.03.2023. Relevant paragprahs of the order, namely, paragraphs 4 to 6, read as under: “4. We have considered the submissions canvassed by learned advocates for the parties. It is not in dispute that the respondent/ original petitioner was arrested in connection with two different FIRs registered against him on 21.02.2011. It is also not in dispute that the respondent/ original petitioner was in judicial custody during which period, on 04.05.2011, an order of suspension came to be passed against the respondent w.e.f. 21.02.2011 under Order 5(2A) of the Rules of 1971. It is revealed from the record that the present is a case of deemed suspension as the respondent/ original petitioner was in judicial custody. At this stage, this Court would like to refer to the proviso to Rule 5(2A) of the Rules of 1971, which reads as under, “5. Suspension : 1. xxx xxx xxx. 2. It is revealed from the record that the present is a case of deemed suspension as the respondent/ original petitioner was in judicial custody. At this stage, this Court would like to refer to the proviso to Rule 5(2A) of the Rules of 1971, which reads as under, “5. Suspension : 1. xxx xxx xxx. 2. xxx xxx xxx. (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 sub-rule (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-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." 5. From the aforesaid proviso, it can be said that the period of 90 days in case of deemed suspension will count from the date on which the Government servant detained in custody is release from the custody or the date on which the fact of his release from the detention is intimated to his Appointing Authority, whichever is later. 6. From the aforesaid proviso, it can be said that the period of 90 days in case of deemed suspension will count from the date on which the Government servant detained in custody is release from the custody or the date on which the fact of his release from the detention is intimated to his Appointing Authority, whichever is later. 6. In the present case, from the records, it is revealed that after the release of the respondent/ original petitioner, he informed the Chief Town Planner vide communication dated 10.08.2011 about his release and in turn, the Chief Town Planner addressed a letter dated 24.08.2011 to the appellant no.1 i.e. the Appointing Authority, copy of said application was received in the office of the appellant no.1 on 30.08.2011 and, thereafter, an order of extension of suspension came to be passed within a period of 90 days i.e on 28.11.2011. At this stage, it is pertinent to note that when this Court inquired, learned Senior Counsel appearing for the respondent submitted that the respondent/ original petitioner is not having any copy, from which, it can be said that the representation made by him on 10.08.2011 is received by the appellant no.1 or not. Therefore, this Court called for the original files from the office of the appellant no.1 and also verified the inward register. It is revealed that the letter dated 10.08.2011 has not been received by the office of the appellant no.1 herein and the appellant no.1 had received copy of communication dated 24.08.2011 from the Chief Town Planner only on 30.08.2011. Thus in the facts of the present case, this Court is prima facie of the view that as per proviso to Rule 5(2A) of the Rules of 1971, from the date of intimation received by the appellant no.1 i.e. the Appointing Authority, within a period of 90 days, an order of extension of suspension has been passed and, therefore, the appeal filed by the appellant cannot be dismissed at threshold and the issue involved in the present matter requires detailed hearing. Hence, Notice returnable on 13th April, 2023. Learned advocate, Ms. Venu Nanavati waives service of notice for respondent. Till next date of hearing, the impugned order dated 06.12.2019 passed by the learned Single Judge in Special Civil Application No.8581/2019 is hereby stayed.” 8. Hence, Notice returnable on 13th April, 2023. Learned advocate, Ms. Venu Nanavati waives service of notice for respondent. Till next date of hearing, the impugned order dated 06.12.2019 passed by the learned Single Judge in Special Civil Application No.8581/2019 is hereby stayed.” 8. Reading of the aforesaid order would indicate that the controversy before the Division Bench as to which is the relevant date that needs to be considered for counting period of 90 days i.e. whether it is 10.08.2011, the date on which the respondent intimated his release or the date being 24.08.2011 or 30.08.2011, the date on which the appointing authority received the application from the office of the appellant No.1. 9. From the records of the Civil Application No. 1 of 2023 filed by the appellant, the controversy appears to have been set at rest. The proviso to Rule 5(2A) reads as under: “5. Suspension : 1. xxx xxx xxx. 2. xxx xxx xxx. (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 sub-rule (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. An order of suspension made or deemed to have been made under sub-rule (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-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." 9.1 The proviso to rule would indicate that in case of deemed suspension under Sub-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. 9.2 At this stage, few dates would be relevant. (I) The first F.I.R was filed on 25.09.2010. (2) The second FIR pursuant to which the appellant – respondent was placed under deemed suspension was dated 22.02.2011. (3) 22.02.2011 was the date on which the respondent was taken into custody. (4) 04.05.2011 is the date of suspension effective from 21.02.2011. (5) The respondent was released on bail on 05.08.2011. (6) On 10.08.2011, the respondent intimated to his department of his release on bail. 9.3 The question before us is whether is 10.08.2011 the relevant date for counting the period of 90 days or 30.08.2011, i.e. the date on which the appointing authority was informed/intimated. It has come on record through an additional affidavit filed by the respondent in appeal to the Civil Application for Stay by the State. 9.3 The question before us is whether is 10.08.2011 the relevant date for counting the period of 90 days or 30.08.2011, i.e. the date on which the appointing authority was informed/intimated. It has come on record through an additional affidavit filed by the respondent in appeal to the Civil Application for Stay by the State. It will be fruitful for us to reproduce para 8 of the reply, which reads as under: “8 It is most respectfully submitted that the unfortunate defense being taken by the Appellant Authority with regard to the date of intimation to the Appellant – State Authority also does not help the appellant to come out of the purview of the limitation period provided under the rules. Assuming without admitting and as per the knowledge and information of the deponent, even if the defense of the Appellant is looked into, it still does not support the case of the Appellant because if Annexure-I, page 24 is seen, there is an endorsement made on/ as dt. 25.08.2011 (with a marking of OSD) which suggests the said communication has been received by the Urban Development and Housing Department on the said date. After receipt of this document on 25.08.2011, the stamp of 30.08.2011 is affixed by the Registry of the Appellant Authority, which is their internal process and therefore, in such a situation, the present deponent cannot be ousted from getting his legitimate benefit only and only because of the administrative lethargy and delay.” 9.4 The affirmation of the deponent of this reply stands confirmed from the documents produced by the State in response to the civil application of the respondent in seeking directions. The document would indicate that the appointing authority was also intimated in context of the respondent’s application informing his superior on 24.08.2011. That it was received by the Housing Department on 25.08.2011 as deposed by the respondent stands confirmed on perusal of the said document. The fact of the intimation having received by the appointing authority therefore stands confirmed by the endorsement of the OSD of the department. The respondent informed all concerned, including the appointing authority on 10.08.2011 which also was received by the department and forwarded by the Town Planner to the Chief Town Planner on 17.08.2011. The Chief Town Planner forwarded the same to the Department on 24.08.2011 which was received on 25.08.2011 by the Department. The respondent informed all concerned, including the appointing authority on 10.08.2011 which also was received by the department and forwarded by the Town Planner to the Chief Town Planner on 17.08.2011. The Chief Town Planner forwarded the same to the Department on 24.08.2011 which was received on 25.08.2011 by the Department. Either of the two dates i.e. 24th or 25th of August, if considered in light of the renewed order of suspension being of 28.11.2011 would fall beyond a period of 90 days and would make the renewal of suspension bad. 10. We are conscious of the fact that the latter part of the discussion that we have had in context of interpretation of Rule 5(2A) was never even raised by the State before the learned Single Judge, nor it is a ground of challenge in the appeal. It was only raised in the additional affidavit filed by one Shri Haresh Parmar by the State in the civil application for stay. 11. Taking a collective view of the issue therefore, even interpreting the proviso to Rule 5(2A) would indicate that the appointing authority did receive or was intimated either on 24.08.2011 and/or 25.08.2011. Renewal of suspension happened beyond a period of 90 days on 28.11.2011, beyond a period of 90 days from the date of the order of suspension. 12. The learned Single Judge, therefore, in our opinion, considering the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary vs. Union of India & Anr., reported in (2015) 7 SCC 291 , and even for the reasons that we have independently assigned on the question of Rule 5(2A), we do not find any fault with the order of the learned Single Judge. The renewal of suspension even taking into consideration the interpretation of Rule 5(2A) was beyond a period of 90 days and the petition therefore, was in our opinion rightly allowed. 13. For the aforesaid reasons therefore, the present Letters Patent Appeal is dismissed. In view of dismissal of the main appeal, connected civil applications also stands disposed of, accordingly.