In R/SECOND APPEAL NO. 76 of 2011-GUJ HC- Suspension is not penalty under Service Law;  Merely by placing employee under suspension does not give any right to him to challenge such action: Gujarat HC 
Justice A. P. Thaker [16-12-2022]

Read Order : PORBANDAR NAGARPALIKA THROUGH CHIEF OFFICER v. KISHORCHANDRA KRUSHNALAL JOSHI 

Tulip Kanth

Ahmedabad, December 20, 2022: The Gujarat High Court has clarified that when the suspension order itself has been revoked by the department and the department wanted to initiate departmental inquiry as admissible under the service law, then, such departmental inquiry couldnot be banned permanently. 

“An employee cannot insist or demand that no departmental inquiry be held against him. Even the Court cannot grant such relief preventing the department employer from initiating any departmental inquiry as permissible under the service rules and regulations”, Justice A. P. Thaker affirmed.

It was alleged by the plaintiff that before issuance of suspension order, prior show cause notice needed to be issued to him and the defendants had not provided him an opportunity of being heard and with malafide intention they had issued and served the suspension order and show cause notice on the same day.

This second appeal in question had been filed under Section 100 of the Code of Civil Procedure by the original defendant when the Additional District Judge had confirmed the judgment of the Principal Senior Civil Judge whereby the suit was decreed in favour of the plaintiff.

Noticing that mere passing of suspension order does not give any right to a civil servant, the Bench said, “Merely by placing a person under suspension does not give any right to such person to challenge the action of suspension. Suspension is not a penalty under the Service Law.” 

As per the Bench, in the present case, suspension order had been revoked by the authority therefore, when there was no existence of any suspension order there was no any infringement of the right of the plaintiff to challenge such order.  By way of filing the suit and claiming the relief, the plaintiff wanted to curtail the rights of the defendant of initiating any departmental inquiry against him, the Bench further added.

According to the Bench the defendants had rightly contended that the suit was immature as by passing the suspension order, the defendant had not initiated any illegal action and had not dismissed the plaintiff from the service.Thus, it was held that both the Courts below were not justified in deciding the dispute with regard to the challenge of suspension order when the order itself had been revoked by the appellate nagarpalika.

Referring to Order 41 Rule 31 of the CPC, the Bench held that the object of requiring an appellate Court to record in its judgment the particulars mentioned in this Rule is two fold, namely to afford the parties an opportunity of knowing and understanding the grounds of the decision with a view to enable them to exercise, if they see fit and are so advised, the right of Second Appeal conferred by Section 100 of the Code of Civil Procedure and to enable the High Court in Second Appeal to judge whether the lower appellate Court has properly appreciated the case and has decided it after applying its mind to it and considering the evidence. 

The Bench was of the view that the First Appellate Court had raised only one issue, but at the same time, had concurred with the findings of the Trial Court and had also considered the evidence on record. As the First Appellate Court had not referred to the entire evidence in detail but had concurred with the finding of the Trial Court, the Bench observed that the impugned order passed by the Appellate Court was not vitiated on the ground of not having framed points for determination under Order 41 Rule 31 of the Code of Civil Procedure.

The Bench held that  after revocation of the suspension order, if any inquiry is initiated or any action is taken against the plaintiff-employee, then, the plaintiff would have separate cause of action for filing appropriate proceedings against the defendant for redressal under the service rules and regulations applicable to him. 

The Bench thus allowed the appeal while quashing the judgment and decree of both the Courts below.