Debangana Ray
Published on July 10, 2022 at 18:33 IST
The Gujarat High Court has dismissed a petition filed by an employee seeking that his period of suspension is treated as regular on the grounds that the petitioner has been charge-sheeted and was only partially exonerated from the charges against him.
Justice Biren Vaishnav observed “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 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.
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 that, “Here is a case where the petitioner was imposed a penalty which was commensurate with the conduct on the charge being proved and the 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.
