2006 Supreme(Guj) 273

2006 (2) GCD 1610 (Guj)
Hon’ble Mr. Justice D.H. Waghela
Suleman D. Khristi
Versus
State of Gujarat & Ors.
Special Civil Application No. 8696 of 2006
Decided on 26/04/2006

Point in Issue :
Suspension — Benefit occurring during period of — Claim for on reinstatement — Admissibility.

Headnote:Head Note :

       Bombay Civil Services Rules, 1959 — Rule 152 — Gujarat Civil Services (Joining Time, Foreign Service, Deputation out of India, Payment during suspension, Dismissal and removal) Rules 2002 — Rule 70 — Gujarat Civil Services (Discipline and Appeal) Rules 1971 — Rule 5 — Suspension — Benefits occurring during period of — Claim for on reinstatement — Admissibility — Finding as to — In view of the provisions under Rules 2002 a suspended employee would be entitled to full pay and allowances to which he would have been if he had not been suspended on reinstatement but only in case his suspension was wholly unjustified — In the case when petitioner was detained in custody there was no alternative but to hold that the suspension was not wholly unjustified — When by operation of law and in view of the factual reality of the petitioner being in Jail and convicted thereafter for murder he had to be treated as suspended and quite justifiably — That apart after the original order of reinstatement of petitioner and refusing regularisation of the period of suspension he could have immediately challenged that part of order — That having not been done the present petition clearly appears to be an afterthought and a belated attempt at capitalization on the order of acquittal recorded by Supreme Court — Therefore, there is no legal basis for the claim made by petitioner.

       Held :

       It is absolutely clear from bare reading of the provisions under Rule 70 of Rules, 2002, which are admittedly applicable in the facts of the present case, that a suspended employee has to be given full pay and allowances to which he would have been entitled as if he had not been suspended only in case the suspension was wholly unjustified. In the facts of the present case, not only that the petitioners was involved in a serious criminal offence, but he was arrested and even convicted initially by the trial Court. Therefore, by no stretch could it be said that the Government was wholly unjustified in suspending the petitioner. In that view of the matter, the petitioner had no right to receive any pay or allowance for the period of his absence from duty, or for treatment of the period of his absence from duty as a period spent on duty. [Para 4]

       Therefore, even the discretion to decide whether suspension was justified or unjustified at the point of time when a Government servant is detained in custody is taken away by law and, in such cases, there is no alternative but to hold that the suspension of the petitioner was not wholly unjustified when, by operation of law and in view of the factual reality of the petitioner being in jail and convicted, thereafter, he had to be treated as suspended.

        [Para 5.1]

       It was after the original order dated 27.04.2004 ordering reinstatement of the petitioner after acquittal and refusing regularisation of the period from 08.06.1998 that the representation was made. If the petitioner had a grievance against the relevant part of that order, he could have immediately or within a reasonable period challenged that part of the order. That having not been done, the present petition clearly appears to be an after thought and a belated attempt at capitalizing on the order of acquittal stated to have been recorded by the Supreme Court. Therefore, there being no legal basis for the prayers and claims made in the petition, it is dismissed in limine. [Para 6]

       Law Laid Down :

       When Government servant is detained in custody then there is no alternative but to hold that the suspension of petitioner was not wholly unjustified.

       Case Law Analysis :

       M.V. Chauhan vs. State of Gujarat, 2000 (1) GLR 909;; A.A. Bohra vs. State of Gujarat, 2003 (3) GLR 2756.—Distinguished

       Appearance :

       Mr. Dhaval G. Nanavati, for the Petitioner(s) No. 1.

       Mr. K.P. Rawal, Assistant Government Pleader, for the Respondent(s) No. 1.

       None, for the Respondent(s) No. 2-4.

       Conclusion :

       Suspension of petitioner on account of detention in custody was not wholly unjustified, therefore, he was not entitled to claim made by him in petition.

       Decided in Favour of :

       Respondent

       Petition Dismissed