Dipendra Keshavlal Mehta Vs. State of Gujarat - Court Judgment

Akil Kureshi, J.

1. RULE. Learned AGP, Mr. Hasurkar, waives service of notice of rule on behalf of respondent No. 1. Mr. Mehul Rathod, learned counsel waives service of notice of rule on behalf of the respondent No. 2. At the joint request of the learned advocates appearing for the parties, this petition was heard for final disposal today itself.

2. In the present petition, the petitioner has challenged the action of the respondents of continuing him under suspension and has also prayed for a direction for issuing a posting order to him and for being paid salary and allowances for the period during which he was placed under suspension without authority of law.

3. Short facts leading to the present petition are that the petitioner, who is employed as a Chief Engineer (Vigilance & Enforcement) by the respondent No. 2-Gujarat Water Supply and Sewage Board (hereinafter to be referred to as 'the Board') was placed under suspension by an order dated 27-8-2003. In the suspension order, it is stated that the petitioner while working as the Chief Engineer (Materials) had caused serious loss to the Board by accepting PVC pipes of inferior quality. He was, therefore, alleged to have failed to discharge his duties with due diligence. On the basis of these allegations, having found a prima facie case against the petitioner, he was ordered to be placed under suspension with immediate effect pending departmental inquiry.

3.1 The petitioner has narrated briefly his defence in the petition and contended that he had not committed any misconduct. With the defence of the petitioner, we are, however, not directly concerned in the present petition.

3.2 The suspension of the petitioner has been resorted to by the Government in exercise of powers under Rule 5 (1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter to be referred to as 'the Rules'). There is no dispute about the fact that the petitioner is governed by the said Rules and his suspension has been resorted to in exercise of powers under Rule 5 (1) of the said Rules. Rule 5 (1) of the said Rules as it stood at the relevant time reads as under :

'5. Suspension :-

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered by Government in that behalf may place a Government servant under suspension :

(a) Where a disciplinary proceeding against him is contemplated or is pending, or

(b) Where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial :Provided that where the order of suspension is made by an authority subordinate to or lower in rank than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.'

3.3 Sub-rule 5 (1) of the said rules was amended by the State Government by issuing a notification dated 20th September, 2004, by framing amendment rules called Gujarat Civil Service (Discipline & Appeal) (1st Amendment) Rules, 2004 (hereinafter to be referred to as 'the amending Rules of 2004'). By the said amending rules, certain amendments were made in Clause (a) of Sub-rule (1) of Rule 5 of the said Rules. The entire amending Rules of 2004 need to be noted at this stage. These rules read as follows :

'1. (1) These rules may be called the Gujarat Civil Services (Discipline and Appeal) (First Amendment) Rules, 2004.

(2) They shall come into force on the expiry of ninety days from the date of their publication in the official Gazette.

2. In the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, in rule 5, in Sub-Rule (1) for clause (a), the following shall be substituted, namely:-

'(a) Where a disciplinary proceeding against him is contemplated or pending :

Provided that, where a Government Servant against whom disciplinary proceeding is contemplated is suspended, such suspension shall not be valid unless before the expiry of a period of ninety days from the date from which the Government servant was suspended, disciplinary proceeding is initiated against him:

Provided further that the Government or any other authority empowered by the Government by special or general order may at any time before the expiry of the said period of ninety days and after considering the special circumstances for not initiating disciplinary proceedings, to be recorded in writing extend the period of suspension beyond the period of ninety days without disciplinary proceedings being initiated :-

Provided also that such extension of suspension shall not be for a period of ninety days at a time.

By order and in the name of Governor of Gujarat.'

3.4 On the basis of the said amendments brought about in Clause (a) of Sub-rule (1) of Rule 5 of the said Rules, by amending Rules of 2004, it is the case of the petitioner that his suspension could not have been continued beyond the period of 90 days from the date of notification of the amending Rules of 2004. It is not in dispute that the amendment Rules were notified in the official gazette on 23rd September, 2004. Here it may be clarified that though the notification is dated 20-9-2004, the same came to be published in the official gazette on 23-9-2004.

3.5 It is also not in dispute that right upto 10th January, 2005, no charge sheet was issued against the petitioner. In fact, it has been narrated by the respondents in the affidavit-in-reply that a charge sheet came to be issued against the petitioner on 10th January, 2005.

3.6 It has also been brought on record by the respondents that the suspension of the petitioner was reviewed by the review committee on 27th October, 2004 and the Committee decided to continue the suspension of the petitioner.

3.7 It is, however, the case of the petitioner that by virtue of the amendments in Rule 5 (1) (a) of the said rules brought about by the amending Rules of 2004, it was not open for the respondents to continue the suspension of the petitioner beyond the period of 90 days from the date of publication of the said rules without issuance of a charge sheet or without extending the period of suspension beyond the period of 90 days by an order in writing. It is, therefore, the case of the petitioner that upon completion of the said period of 90 days from the date of notification of the amending rules of 2004, the suspension of the petitioner had come to an end automatically and he ought to have been reinstated in active service.

3.8 Both the respondents have filed affidavits. The respondent No. 2 contends that a decision to initiate departmental inquiry against the petitioner was communicated on 5th January, 2005, and the Board has issued a charge sheet on 10th January, 2005. It is also contended that the Government vide communication dated 27th December, 2004, extended the period of suspension of the petitioner for a period of three months with effect from 23rd December, 2004.

3.9 The State Government has also filed an affidavit, mainly contending that on 27th October, 2004, the suspension of the petitioner was reviewed by the Committee and it was decided to continue him under suspension. It is further contended that once again a decision was taken on 27th December, 2004, to recommend continuation of the suspension of the petitioner for a further period of 90 days and eventually a charge sheet dated 10th January, 2005, came to be issued against the petitioner involving the charges of huge financial losses to the Board. It is, therefore, contended that the continued suspension of the petitioner is just and proper.

3.10 To complete the narration of events, it may be noted that the respondents have placed on record the order dated 21-3-2005 to continue the petitioner under suspension considering the issuance of the charge sheet against him on 10th January, 2005.

4. In view of the above factual aspects, the short question that calls for consideration in the present petition is whether the respondents were justified in continuing the petitioner under suspension or whether the petitioner is correct in contending that by virtue of the amended provisions of Rule 5 (1) (a) of the said Rules, his suspension automatically came to an end after 90 days of the publication of the amending Rules of 2004 in the official gazette, without there being any charge sheet issued against the petitioner and without the suspension order being extended by the competent authority.

5. In order to answer the said question, one may consider the implication of the provisions of the said Rules and in particular Rule 5 (1) of the said rules as amended by the amending Rules of 2004.

6. Prior to its amendment by the amending Rules of 2004, Rule 5 (1) of the said Rules provided that the appointing authority or any authority to which its subordinate or the disciplinary authority or any other authority empowered by the Government in that behalf may place a Government servant under suspension where a disciplinary proceedings against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial. The only limitation in power to be exercised by the above mentioned authorities in this regard was that, where the order of suspension was made by an authority subordinate to or lower in rank than the appointing authority, such authority was required to report forthwith to the appointing authority, the circumstances in which the suspension order was made.

6.1 By introducing the amendment in the said Rule 5 (1) (a) of the said Rules by the amending Rules of 2004, it is now provided that where the power of suspension has been exercised by the competent authority on account of disciplinary proceedings against the employee being contemplated or pending, such suspension shall not be valid unless before the expiry of period of 90 days from the date from which the Government servant was suspended, disciplinary proceeding is initiated against him. By further proviso it is provided that the Government or any other authority empowered by the Government by special or general order may at any time before the expiry of the said period of 90 days and after considering special circumstances for not initiating disciplinary proceedings, to be recorded in writing, extend the period of suspension beyond the period of 90 days without disciplinary proceedings being initiated. Here also, it is further provided that such extension of suspension shall not be for a period of 90 days at a time.

7. It can, therefore, be clearly seen that prior to the amendments being brought into the said rules by the amending rules of 2004, it was open for the competent authority as specified in Rule 5 (1) of the said Rules to place a Government servant under suspension where a disciplinary proceeding against him is contemplated or is pending without any limitation or restrictions except for the limited safeguard that where suspension order is passed by an authority subordinate to or lower in rank than the appointing authority, such authority was required to report forthwith to the appointing authority the circumstances in which the order was made. By introduction of the amendments in Clause (a) of Sub-rule (1) of Rule-5 of the said Rules, by the amending rules of 2004, what is sought to be introduced by the Government is a further safeguard in favour of the employee that in a case where the suspension order has been passed by the competent authority on the ground of disciplinary proceeding being contemplated against the concerned employee, such suspension shall not be valid unless before the expiry of a period of 90 days from the date from which the Government servant was suspended, disciplinary proceeding is initiated against him. The use of the language 'suspension shall not be valid' leaves no room for doubt that the said rule is mandatory in nature and the only consequence of non-initiation of the disciplinary proceedings within the aforesaid period of 90 days would be to invalidate suspension order of the employee concerned. Here also, however, proviso lays down that the Government or any other authority empowered by the Government by special or general order may at any time before the expiry of the said period of 90 days, after considering the special circumstances for not initiating the disciplinary proceedings, to be recorded in writing, extend the period of suspension beyond the period of 90 days without disciplinary proceedings being initiated. Such an extension, however, shall not be for a period of 90 days at a time.

7.1 The sum total of the amended provisions of Rule 5 (1) (a) of the said Rules so far as it concerns the present case is that,

(I) The authorities empowered under Sub-rule (1) of Rule 5 of the said Rules may place a Government servant under suspension where a disciplinary proceeding against him is contemplated.

(II) In such a case, however, suspension order shall not be valid unless before the expiry of the period of 90 days from the date from which the Government servant was suspended, disciplinary proceeding is initiated against him.

(III) The above eventuality of invalidating the suspension order can be saved provided the suspension has been extended beyond the period of 90 days. Such extension, however, has to be

(a) By the Government or any other authority empowered by the Government by special or general order,

(b) by an order passed at any time before the expiry of such period of 90 days,

(c) passed after considering the special circumstances for not initiating disciplinary proceedings to be recorded in writing

(d) to extend the period of suspension beyond the period of 90 days without initiation of disciplinary proceedings and

(e) such extension of suspension shall not be for a period of 90 days at a time.

8. The State Government has also issued a Government Resolution dated 5th October, 2004, specifying the authorities which can extend the period of suspension of the Government servants beyond the period of 90 days as envisaged in the Amended Rule 5 (1) (a) of the said rules. In the said resolution, it is also stated that in all cases the competent authority should ensure that charge sheet is issued to the Government servant within 90 days of the publication of the notification dated 20th September, 2004, and in special cases where it is not possible to issue such a charge sheet, the reasons thereof should be recorded and it should be ensured that a proper decision is taken by the competent authority with respect to the question of continuation of the suspension of the employee concerned.

8.1 The provisions of the Rules 5 (1) (a) of the said Rules as amended by the amending Rules of 2004, leave no manner of doubt that to keep a Government servant under continued suspension when such suspension has been resorted to on the ground of contemplated disciplinary proceeding, disciplinary proceeding has to be initiated against him within a period of 90 days from the date of suspension or in the alternative his suspension has to be extended by the authority as envisaged under said rules and by passing an order as provided in the Rules. In absence of initiation of departmental proceedings within a period of 90 days from the date of suspension or in absence of an order passed validly extending the suspension of the employee, suspension order shall no longer remain valid. Even the Government in its G.R. dated 5th October, 2004, has specified that charge sheet should be issued within a period of 90 days from publication of the notification and when it is not possible to so issue the charge sheet, appropriate order recording extension of the suspension should be obtained from the competent authority. In fact, the resolution also records that if on account of non-issuance of the charge sheet within a period of 90 days if suspension order is rendered invalid, proceedings shall be initiated against an officer responsible for the same.

9. In view of the above discussion, one has to find out whether within a period of 90 days from the date of suspension as envisaged under the said amended Rules, any disciplinary proceedings were initiated by issuance of a charge sheet against the petitioner or whether his suspension was extended as required under the said Rules.

10. As noted earlier, the petitioner was placed under suspension by an order dated 27th August, 2003. The amending Rules of 2004 were published in the official gazette on 23rd September, 2004. As per Sub-rule 2 of Rule-1 of the amending Rules, they were brought into force on the expiry of period of 90 days from the date of publication in official gazette. On 23rd December, 2004, therefore, the amending rules had come into existence and till 23rd December, 2004, admittedly, no charge sheet was issued against the petitioner. A charge sheet came to be issued only on 10th January, 2004. On the first count, therefore, namely, whether disciplinary proceedings were initiated within a period of 90 days from the date of the suspension of the petitioner as envisaged under the amended Rule 5 (1) (a) of the said rules, the requirement is not satisfied. I am unable to accept the contention of the respondents that one has to recount the period of 90 days from the date when the amendments were brought into effect in Rule 5 (1) (a) of the said rules. In other words, the contention of the respondents is that period of 90 days permitted to the competent authority to initiate department proceedings against the petitioner should be counted from 23rd December, 2004. I am unable to accept this contention for the simple reason that the plain language of the amending rules does not permit any ambiguity. The provisions, as noted earlier, provide that the suspension shall not be valid unless before the expiry of period of 90 days from the date from which the Government servant was suspended, disciplinary proceeding is initiated against him. To permit the administration to tidy over its affairs, the Rules also envisaged that the same shall come into force on expiry of 90 days from the date of its publication in the official gazette. The authority had 90 days of time on hand after the publication of the amending rules in the official gazette, which happened on 23rd September, 2004. In fact, Government resolution dated 5th October, 2004, also takes into account this aspect of the matter and records that in all cases charge sheet should be filed within a period of 90 days of the publication of the notification and when it is not possible to issue such a charge sheet, decision should be taken by the competent authority with respect to the suspension of the employee. It also records that the officer responsible in this regard for quashing of the suspension order due to non-initiation of inquiry within a period of 90 days will be proceeded against. Thus, it is amply clear that the rules were brought into force with immediate effect upon expiry of 90 days from the date of their publication in the official gazette and if by that time disciplinary proceedings were not initiated against the petitioner, he would have the benefit of that amended provision invalidating his suspension unless, of course, the requirements of the proviso which empowered the Government or any other authority to extend the suspension was met with.

10.1 It is, therefore, important to turn to the second limb of argument of the respondents, namely, that in any view of the matter, suspension of the petitioner was reviewed and decided to be continued by the competent authority. To note again, it is the stand of the respondents that on 27th October, 2004, a committee meeting was held in which it was decided to continue the suspension of the petitioner. It is contended that the suspension of the petitioner was reviewed but it was found that the petitioner should continue under suspension. Alternatively, it is being pointed out by the respondents that appropriate authority considered the case of the petitioner on 27th December, 2004, and recommended continuation of his suspension for a further period of 90 days. Once again, thereafter on 21st March, 2005, a formal order has been passed continuing the petitioner under suspension on account of issuance of the charge sheet on 10-1-2005.

11. As noted earlier, proviso to the amended provisions of Rule 5 (1) (a) of the said Rules provide that the Government or any other authority empowered by the Government by special or general order may at any time before the expiry of the period of 90 days from the date of suspension may extend the period of suspension beyond the said period of 90 days without disciplinary proceedings being initiated. This power is, however, available with the safeguards, namely,

(i) that the order has to be passed either by the Government or any other authority empowered by the Government by special or general order,

(ii) that such an order has to be passed at any time before the expiry of the said period of 90 days from the date of suspension,

(iii) that the order has to be passed after considering special circumstances for not initiating disciplinary proceedings,

(iv) the reasons thereof have to be recorded in writing, and,

(v) that such an extension of suspension shall not be for a period beyond 90 days at a time.

12. The crucial question in this regard, therefore, that calls for consideration is whether the above requirements of the proviso to Rule 5 (1) (a) of the said rules were satisfied while deciding to extend the suspension of the petitioner. Again as noted earlier, it is the case of the respondents that on 27th October, 2004, a Review Committee consisting of Member-Secretary as the Chairman of the Committee, Deputy Secretary as the representative, Chief Engineer, Financial Controller of the Board and Chief Administrative Officer of the Board met and decided to continue the petitioner under suspension. However, high powered this committee may have been, it does not satisfy the requirements of the proviso to Rule 5 (1) (a) of the said Rules since nothing has been produced on record to establish that the said committee was empowered by the Government by any special or general order to review the suspension of the petitioner. The review of the suspension order of the petitioner on 27-10-2004, therefore, does not meet with the requirements of the law and in particular proviso to Rule 5 (1) (a) of the said Rules.

12.1 Similarly, the subsequent decision to extend suspension of the petitioner on 27-12-2004 also does not meet with the test of legal requirement under proviso to Rule 5 (1) (a) of the said Rules. It is so because the order of suspension of the petitioner was passed on 27-8-2003. The amending rules were notified in the official gazette on 23rd September, 2004. The provisions thereof were made effective after 90 days from the date of publication of the said rules and as per the said rules, it was required that within 90 days of the date of suspension, if such a suspension is based on contemplated departmental inquiry either the departmental proceedings should be initiated against the employee concerned or by order in writing such suspension should be extended beyond the period of 90 days by Government or an authority empowered by the Government in this regard and unless and until either of these two steps are taken, the suspension shall not be valid. Thus, when the suspension order was passed way back on 27-8-2003, to save the suspension from getting invalidated, it was incumbent upon the respondents either to initiate the disciplinary proceedings before the period of 90 days from the publication in official gazette of the amending rules of 2004, or to have extended the same as provided under the proviso to Rule 5 (1) (a) of the said rules before the said date. The action of the respondents in seeking to extend the suspension by an order dated 27-12-2004, would not save the invalidation of the suspension of the petitioner since on completion of 90 days from the date of publication of the amending rules of 2004 in the official gazette, neither departmental proceedings were initiated nor the suspension of the petitioner was extended and that, therefore, the suspension of the petitioner was rendered invalid. It cannot be gain said that the suspension, which has been rendered invalid by virtue of operation of law cannot be extended by the authorities. In that view of the matter, I do not find that it is possible to uphold the contentions of the respondents. The suspension of the petitioner was rendered invalid on the date of coming into force of the amending provisions in Rule 5 (1) (a) of the said rules, which as noted earlier, were brought into service on completion of 90 days from the date of publication of the amending rules of 2004. I am unable to agree with the contention of the learned AGP that such an interpretation would cause great prejudice to the Government and such a strict interpretation should not be adopted since the Government has already decided to extend the suspension of the petitioner by an order dated 27th December, 2004. I am unable to uphold the said contention for two reasons. Firstly, I find that the language of the amended provisions of Rule 5 (1) (a) of the said rules as amended by the amending Rules of 2004 are clear and unambiguous. When the language used by the legislature is clear and unambiguous, it is not possible to add words in the statute or to interpret the provisions in any manner other than its plain grammatical meaning. In the decision of Union of India v. Rajiv Kumar reported in AIR 2003, SC 2917, the Hon'ble Supreme Court observed that two principles of construction, one relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole- appear to be well settled. It was further observed that a cacus omisus should not be readily inferred and all parts of the section or a statute must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. It was also observed that golden rule for construing wills and statues is that grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instruments, in which case the grammatical and ordinary sense of words may be modified so as to avoid that absurdity and inconsistency but no further.

12.2 In the decision of State of Orissa and Ors. v. Joginder Patjoshi and Anr. reported in AIR 2004 (1st) Suppl. 1039, the Hon'ble Supreme Court observed that it is no doubt true that if on going through plain meaning of the language and statutes, it leads to anomalies, injustice and absurdities, then the Court may look into the purpose for which the statute has been brought and would try to give meaning, which would adhere to the purpose of the statute. It was observed that it is the cardinal principle of construction of statute that when the language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.

12.3 In the present case, as noted above, I find no ambiguity in the plain language used in the legislature in the amended provisions of Rule 5 (1) (a) of the said rules as amended by the amending rules of 2004. It is, therefore, not possible to adopt any other construction then which I have recorded hereinabove.

12.4 Second reason for rejecting the contention of the learned AGP is that though by virtue of the operation of law, continued suspension of the petitioner stands invalidated, nothing has been pointed out to the Court by either side that in a given case, it is not open for the Government to take into consideration the facts of the case and pass a fresh order of suspension, if situation so warrants. In view of the fact, however, that such a situation is not arising in the present case, it is not necessary for me to pass any conclusive observations in this regard.

13. In the result, I find that the petition is required to be allowed and the suspension of the petitioner is required to be declared invalid with effect from 23rd December, 2004. The respondents shall reinstate the petitioner in active service within a period of two weeks from the date of receipt of copy of this order and give him the benefits for the intervening period also.

14. With these directions, this petition is allowed. Rule is made absolute. No order as to costs. Direct service is permitted.