Suspension Period Cannot Be Treated 'Wholly Unjustified' In Case Of Partial Exoneration: Gujarat High Court

"Only when an employee is partially exonerated, would the authority need to decide the question of whether the suspension can be treated to be wholly unjustified and whether he should therefore be given such proportion of pay and allowance as the competent authority would prescribe by a specific order...Here is a case where on a charge-sheet being issued, the order of penalty was passed. Obviously therefore not exonerating the petitioner from the charge. It was therefore, within the right of the employer to treat the period of suspension as such reinstating the petitioner in service with a condition that orders of regularization of suspension is kept in abeyance."

The High Court also ventured forth to observe that the Petitioner had filed the Second Appeal 15 years after the order of rejection of the First Appeal and therefore, the petition ought not be entertained.

The Petitioner herein was working with the Respondents as a driver. Subsequently, a charge-sheet was issued against him in 2003 and resultantly, he was suspended from service. A departmental inquiry of 2003 also held the Petitioner guilty of charge. A show cause notice was issued to the Petitioner in 2004 asking why a penalty of stoppage of three increments should not be imposed for misconduct. The Petitioner responded to the notice and subsequently, a penalty of stoppage of two increments was imposed. The Petitioner's First Appeal in 2005 was rejected. However, in the interregnum, the authority revoked the order of suspension and reinstated the Petitioner in 2003.

The Petitioner filed the Second Appeal against the order of the First Appeal in 2018, seeking regularization of period of suspension and consequential pay and allowances, which was rejected.

The Petitioner primarily contested that he was reinstated in 2003 and therefore, the employer ought to pass an order regularising the period of suspension and consequential pay and allowances that could have an effect on his terminal benefits. Reliance was placed on Chimanlal Virjibhai Bhalani v. Paschim Gujarat Vij Company Limited and other cases to insist on regularisation.

The Respondent-Company averred that the order of penalty was passed in 2004 while the Second Appeal was filed after 15 years and therefore, the petition ought not be entertained. Attention was drawn to the aspect of delay by placing reliance on C. Jacob v. Director of Geology and Mining 2008(10) SCC 115. It was also argued that Regulation 241 of the Service Regulations provided that the benefits of full pay and allowances would only be provided if the employee was fully exonerated.

Two issues were identified by Justice Vaishnav for consideration- first, whether the order rejecting the impugned order of 2018 was just and proper and second, whether the instant application could be considered on the ground of delay.

To the first question, Justice Vaishnav confirmed that a penalty of stoppage of two increments was passed and yet, the Petitioner did not challenge the order until after 13 years. Therefore, basis the C Jacob judgement, such an application ought to be rejected. Otherwise too, the Bench concluded that basis Regulation 241, the question of treating the period of suspension and awarding the benefits of full pay and allowance can only be considered if an employee is fully exonerated.

The Bench held,

"Here is a case where the petitioner was imposed a penalty which was commensurate with the conduct on the charge being proved and the suspension therefore could not have been treated as wholly unjustified when read in light of the Regulation 241."

The Court further held that Chimanlal (supra) would not be of any assistance to the petitioner inasmuch as it was a case where an order of dismissal was set aside by the employer on it being harsh. The penalty was modified by the Appellate Authority. It was in these circumstances, that a direction was issued to the authorities to consider the case of the petitioner in light of the regulation. No positive finding with regard to the period being treated as regular was a question that was decided.

Accordingly, the application was dismissed.

Case Title: NARENDRASINH DOSABHAI GOHIL v/s MANAGING DIRECTOR & 2 other(s)