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Gujarat High Court
Judgename :H.K.RATHOD
ARUNBHAI MADHUBHAI PATEL - Appellant
Versus
STATE - Respondent
S.C.A. 10067 of 2002
Decided On : 07/30/2003
Suspension should be ordered only when the circumstances are found to justify it and the discretion should be exercised with care. The general principle would be that ordinarily suspension should not be ordered unless the allegation made against an employee are of a serious nature and on the basis of evidence available or there is a prima facie case for his compulsory retirement, removal and dismissal or there is a reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case or prejudice investigation, trial or any enquiry or subserve discipline or to cause public scandal or any other reason deemed fit by the concerned disciplinary authority competent to impose major penalty.
(b) Service & Employment - Suspension - Treating the suspension period leave without pay - In absence of any justification as per requirement in Regulation 78, Sub-clause (1) and without giving reason on facts order of competent authority treating the suspension period leave without pay is not sustainable - It is contrary to the settled principle of law.
The principle which has to be considered by the competent authority while suspending the employee under Regulation 78 Sub-clause (1) has not been fulfilled by the respondent authority at the time of passing the order of suspension. Meaning thereby, that merely charge has been established against the petitioner or any other employee that itself does not permit to hold that employee is not entitled to full wages of suspension period. For that a specific reason required to be given by the respondent authority. Merely charge is proved against the petitioner that itself is not enough to consider the period of suspension as leave without pay. A specific observation has been made by the competent authority in order of punishment that because the charge has been found to be proved against the petitioner, therefore, the period of suspension has been treated as leave without pay. This observation is absolutely without jurisdiction and contrary to the Regulation 78, Sub-clause (1). The competent authority cannot justify the suspension on the basis of the result of inquiry. They have to justify the suspension as per requirement mentioned in Regulation 78, Sub-clause (1) and no such reason has been given and, therefore, considering the entire facts which are on record, according to my opinion the decision which has been given by the competent authority treating the suspension period leave without pay is contrary to the Regulation 78, Sub-clause (1) and also it is contrary to the settled principle of law. Therefore, that part of the order or treating the suspension period leave without pay is required to be quashed and set aside.
(c) Service & Employment - Suspension - Nature and effect of - Indicated.
The effect of suspension against the employee which ultimately suspends the life of the employee in all respects. It is not merely a stigma against an employee alone but it is a stigma against the family as a whole and it amounts to social stigma against the employee and his family members. A moment employee is suspended, the society will ask the question to each of the family members why the husband and/or father, is suspended. Not only that, this creates some doubt as to general conduct of the employee in the society. It demoralizes the employee who has been suspended without any justification. Merely an employee joining services, the employees does not mortgage or barter away his basic rights as human being including his fundamental rights in favour of the employer. Merely, having powers to suspend the employee, it cannot be casually exercised in any case of misconduct. The suspension itself is an inhuman act which is an unpropitious effect on the life of an employee. Therefore, the question is that an employee who has been suspended either at the stage of preliminary inquiry or at the stage of charge-sheet, the employee remained under suspension till conclusion of the inquiry or till the order of punishment.
(d) Constitution of India, 1950 - Arts. 226 & 227 - Service Regulation of Respondent Corporation - Regulations 78 & 86(1) & (2) - Service & Employment - Order treating the suspension period without pay - Competent authority has neither disclosed reasons for suspension in suspension order nor any justification given in revocation of suspension period - Revocation of suspension during pendency of inquiry indicates that order of suspension was absolutely not justified - Approach to the matter as required under Regulation 86(2) is missing - Therefore, Court quashed the order of treating suspension period as leave without pay.
It clearly transpires that no reason is disclosed in suspension order dated 5th March, 2001, and as such, there is no justification mentioned while suspending the employee. Similarly, even there is no justification in revocation of suspension period. It is also necessary to note that suspension order has been revoked during pendency of inquiry, then what is the purpose to suspend the employee during pendency of inquiry, meaning thereby, the order of suspension was absolutely not justified when it was passed against the petitioner. This aspect has not been taken into account by the competent authority and at the time of passing the punishment order, period of suspension has been treated as suspension being the other punishment imposed by the competent authority as punishment of censure is not enough. Thus, these two types of approach not to apply the mind independently and objectively to consider whether suspension was at all justified or not. This is very requirement under Regulation 86(2) of the Service Regulations of the respondent Corporation.
Therefor, according to Courts opinion even Regulation 86, Sub-clauses (1) and (2) and other Regulation 78 also are not rightly appreciated and followed by the respondent Corporation. Therefore, the present petition is required to be partly allowed.
( 1 ) HEARD the learned Advocate Mr. V. H. Thakore for the petitioner and learned Advocate Mr. Kanabar for respondent No. 2 and learned Assistant Government Pleader Mr. Desai appearing on behalf of respondent No. 1.
( 2 ) THIS Court has issued notice on 8th October, 2002, after considering the relevant regulation of the respondent No. 2 and this Court has made it clear that notice has been issued for final disposal returnable on 28th October, 2002.
( 3 ) IN the present petition, the petitioner has challenged the punishment order dated 19th April, 2002 wherein the disciplinary authority has imposed punishment of censure and suspension period from 5th March, 2001 to 30th July, 2001 is treated as suspension period and the same has been directed to be considered as a leave without pay. It is necessary to note here that there is no reply filed by the respondents. The Appeal filed by the petitioner against said punishment is also rejected by the Appellate Authority.
( 4 ) INITIALLY, the suspension order has been challenged by the petitioner before this Court in Special Civil Application No. 2507 of 2001 and this Court by order dated 11th December, 2001 directed to the respondent to consider the suspension period whether on duty or not after the result of departmental inquiry. It is also necessary to note that suspension order is dated 5th March, 2001 and the same has been revoked by order dated 30th July, 2001. In light of this, whether at the time when the suspension order has been passed by the respondent-authority, the relevant regulation of the Corporation incorporated in Sec. III was considered or not. The relevant Regulation 77 and 78 are quoted as under :"77. Power to suspend :- Without prejudice to these Regulations, an employee may be placed under suspension by the concerned disciplinary authority competent to impose major penalties provided that in the case of Class-I Officer, the Managing Director may exercise the power to suspend but he shall immediately afterwards report all the facts of the case known to him to the Chairman and to the Board/executive Committee at its first meeting after issue of the order of suspension for consideration and approval. 78. When an employee may be suspended :- (1) Suspension should be ordered only when the circumstances are found to justify it and the discretion should be exercised with care. The general principle would be that ordinarily suspension should not be ordered unless the allegation made against an employee are of a serious nature and on the basis of evidence available or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case or prejudice investigation, trial or any enquiry or subserve discipline or to cause public scandal or any other reason deemed fit by the concerned disciplinary authority competent to impose major penalty. (2) An employee may be suspended as allegations are made even before investigation or during investigation or preliminary enquiry or at any time before, during or after the departmental enquiry. (3) In the cases other than those mentioned in sub-regulation (1) it will suffice if steps are taken to transfer the employee concerned to another place, to ensure that he has no opportunity to interfere with the witnesses or to hamper with the evidence against him. (4) Where the penalty of dismissal, removal or compulsory retirement from service imposed upon an employee under suspension is set aside in appeal or on review under these regulations and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force until further orders. (5) Where a penalty of dismissal, removal or compulsory retirement from service is imposed upon an employee is set aside or declared or rendered void in consequence of, or by, a decision of a Court of law; and the disciplinary authority, on a con
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