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2015 Supreme(Guj) 179
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. Thaker, J.
Rakesh R. Gandhi – Appellant
Vs.
State of Gujarat – Respondent
Special Civil Application No. 1042 of 2014 and Civil Application No. 13061 of 2014 in
Decided On: 01.04.2015
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Yatin Oza, Senior Counsel and H.J. Dholakia, Advocate
For Respondents/Defendant: Swapneshwar Goutam, A.G.P.
Headnote:
Suspension - Deemed suspension - Petitioner was placed under suspension with immediate effect on the ground that if at all service of the petitioner is to be continued then petitioner may temper with the evidences and may win over the witnesses and therefore in light of Rule 5 (2) (a) of Gujarat State Service (Discipline & Appeal) Rules, 1971, if any person who is detained for more than 48 hours then the period of suspension will be considered as deemed suspension from the date of his arrest. Petitioner challenged the order of suspension on the ground that the impugned order is contrary to the relevant provision i.e. Rule 5(2)(a) of the said Rules. Held, the order of suspension does not loose its efficacy and is not automatically terminated the moment the detention comes to an end. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be re-instated to service.
Fact of the Case:
Petitioner was placed under suspension with immediate effect on the ground that if at all service of the petitioner is to be continued then petitioner may temper with the evidences and may win over the witnesses and therefore in light of Rule 5 (2) (a) of Gujarat State Service (Discipline & Appeal) Rules, 1971, if any person who is detained for more than 48 hours then the period of suspension will be considered as deemed suspension from the date of his arrest. Petitioner challenged the order of suspension on the ground that the impugned order is contrary to the relevant provision i.e. Rule 5(2)(a) of the said Rules.
Finding of the Court:
The order of suspension does not loose its efficacy and is not automatically terminated the moment the detention comes to an end. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be re-instated to service.
Issues: Whether the order of suspension is contrary to the relevant provision i.e. Rule 5(2)(a) of the said Rules.
Ratio Decidendi: The said sub-rule (2)(a) of Rule 5 creates legal fiction inasmuch as by virtue of the said provision order of suspension shall be deemed to have been passed by operation of legal fiction and the government employee (who is detained in custody for period exceeding 48 hours) shall be deemed to have been placed under suspension.
Final Decision: Petition dismissed.
K.M. Thaker, J.
1. In present petition under Article 226, 14, 16 and 21 of Constitution of India the petitioner has prayed, inter alia, that:--
"17. (B) Your Lordships may be pleased to issue a writ of Certiorari or any other appropriate writ, order and/or direction by quashing and setting aside the impugned order of suspension dated 19.12.2013 passed by the respondent and further be pleased to direct the respondent to reinstate the petitioner with all consequential benefits, monitory and non-monitory, inclusive of the full back wages as if no order of suspension has ever been passed.
(C) Your Lordships may be pleased to hold and declare Rules 5(2)(a) of Gujarat State Service Rules, 1971 as ultra virus to the constitution.
(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order of suspension dated 19.12.2013 passed by the respondent authority."
1.1 Before proceeding further it is relevant to mention that Civil Application No. 13061 of 2014 was listed in the daily cause list dated 9.1.2015. During the hearing it was jointly submitted by learned advocates for the concerned parties that the said Civil Application No. 13061 of 2014 and the main petition involve and raise similar issues and even for considering the relief prayed for in the Civil Application very same issues, as are raised in the petition, will have to be considered and decided and that therefore both the matters may be heard together and appropriate order may be passed in the Civil Application as well as main petition. Therefore, following order was passed in Civil Application on 9.1.2015:--
"Today, learned AGP has tendered further affidavit dated 9.1.2015, copy whereof is served to learned advocate for the petitioner. Learned advocate for the petitioner has received copy of the affidavit. Therefore, affidavit is taken on record.
2. Mr. Oza, learned Senior Counsel for the petitioner, and Mr. Gautam, learned AGP, have argued the main matter finally and learned advocates have been heard with regard to the merits of the main matter. The submissions have been made with understanding that the matter is argued finally.
In that view of the matter, order on present application is not passed at this stage and appropriate orders will be passed along with the order in the main petition. Kept for orders."
1.2 Accordingly, in view of the aforesaid request and stipulation by learned advocates and in light of the said order both the matters i.e. the Civil Application and main petitioner have been heard together (i.e. main petition is also heard with this application) and learned advocates for petitioner and respondents have made appropriate submissions with clarity, and understanding that both the matters are to be heard and decided finally by this common judgment. Therefore both the matters are heard finally in view of the above mentioned submission and request by learned advocates.
2. So far as the relief prayed for in paragraph No. 17(C) i.e. prayer that Rule 5(2)(a) of Gujarat State Service Rules, 1971 be declared as ultra virus is concerned, it is necessary to take into account the order dated 4.2.2014 passed by Division Bench wherein it is recorded that:--
"At the very outset, Mr. Yatin Oza, the learned Sr. Advocate appearing on behalf of the petitioner submits that at this stage, he does not press the prayer of declaration of Rule 5[2][A] of the Gujarat State Service Rules, 1971 as ultra vires the Constitution of India and instead of that, he wants to press the prayer 17[B] of the application.
In such circumstances, let this application be placed tomorrow before the learned Single Judge having determination over the prayer 17[B] of the application.
It is needless to mention that we have not gone into the merit of prayer 17[C] of this application."
2.1 In view of the said order the only relief which requires to be considered is the relief prayed for in paragraph N
