The Lucknow Bench of the Allahabad High Court while dismissing a petition stated that non-passing of a formal order of reinstatement after quashing of suspension order does not disentitle the employer from placing the employee under suspension again.
A Single Bench of Justice Abdul Moin passed this order while hearing a petition filed by Dr Gyanvati Dixit.
Under challenge is the order dated 09.11.2024, by which the petitioner has been placed under suspension.
Raising a challenge to the said order, the contention is that earlier the petitioner had been suspended vide order dated 04.10.2024.
A challenge had been raised to the said suspension order by filing Writ. The Court by order dated 05.11.2024, quashed the said suspension order.
Contention of the counsel for the petitioner is that without reinstating the petitioner in pursuance of the order of the Court dated 05.11.2024, the petitioner again has been placed under suspension which could not have been done by the respondents inasmuch as once the petitioner had been placed under suspension by the earlier order dated 04.11.2024, employer-employee relationship stood suspended and without the said relationship being restored by passing of a consequential order in terms of the order of the Court dated 05.11.2024, the petitioner could not again have been placed under suspension.
Counsel for the petitioner further argues that perusal of the impugned suspension order would indicate that the petitioner has been placed under suspension in view of the provisions of Section 16G(5)(b) of the UP Intermediate Education Act, 1921. However, the aforesaid provision will only be attracted and applicable in case his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him, but no enquiry was initiated at the time of passing the suspension order and thus, the suspension order reflects patent non application of mind.
The Court observed that,
From the argument as raised by the counsel for the petitioner and from perusal of the record, it emerges that earlier the petitioner has been suspended vide order dated 04.10.2024. Upon a challenge being raised to the said suspension order the Court by order dated 05.11.2024 had quashed the suspension order and provided that consequences would follow. However, it was left open for the competent authority to pass a fresh order, if required, in accordance with law.
As regards the first ground i.e. the suspension order having been passed without reinstating the petitioner, suffice to state that during the period of suspension employer-employee relationship does not come to an end. The employee is only prohibited from actually offering his services and discharging his duties and further during the suspension pending enquiry the remuneration is payable to the employee concerned.
Once the employer-employee relationship continues thus in terms of Section 16G(5) of the Act, 1921, which pertains to the suspension of the head of institution or teacher and the provision under which the petitioner has been suspended, the same categorically provides that it is the head of the institution or teacher who can be suspended by the management on the grounds as contemplated under the said section.
As the earlier suspension order of the petitioner had already been quashed by the Court order dated 05.11.2024 and even if no formal order has been passed by the respondents reinstating the petitioner, the same would not take away the fact or the suspension order itself having been quashed and consequently the petitioner cannot be said to be a suspended employee on the date of passing of the fresh suspension order, in this case as on 09.11.2024 and thus in case no formal order was passed for the reinstatement of the petitioner the same would not vitiate the suspension order on the ground as urged by the petitioner.
The Court further observed that,
On perusal of the judgment in the case of Debasis Das (supra), it emerges that the Hon’ble Supreme Court has propounded on the aspect of ‘prejudice’ that may be caused to an employee where he/she alleges some violation.
In the case, the violation, as alleged, is non issuance of the formal order of reinstatement. The learned counsel for the petitioner neither in his arguments nor in the petition has indicated anywhere as to the prejudice that may have been caused to him on account of non issuance of the formal order of reinstatement after his suspension order was quashed. In the absence thereto, merely because no formal order was issued prior to placing the petitioner under suspension, the same, in the opinion of the Court, will not vitiate the impugned suspension order as no prejudice has been caused to him.
The reason as to why the said principle may be attracted in the facts of the instant case is that once the petitioner had only been placed under suspension vide order dated 04.10.2024 which suspension order had been quashed by the writ court by order dated 05.11.2024 consequently the petitioner can be deemed to have been reinstated in service. Thus merely because a formal order of his reinstatement was not passed prior to he again being placed under suspension by means of the order impugned the same would clearly fall within the ambit of Useless Formality Theory as per the judgment of the Supreme Court in the case of MC Mehta (supra).
As already indicated above, once the earlier suspension order of the petitioner had been quashed consequently even if the respondents failed to pass a formal order of reinstatement, the same will not and cannot take away the power of the respondents to again place the petitioner under suspension as has clearly been done in the case. Thus, the aforesaid ground does not appeal to the Court and is accordingly rejected.
“Suffice to state that perusal of the suspension order would indicate that the same had been passed both under the provisions of Section 16G(5)(a) and (b). Even if for the sake of the argument, the aforesaid ground as urged by the petitioner is considered to be valid that suspension could not have been ordered without an enquiry been initiated as provided under Section 16G(5)(b) of the Act, 1921 yet a perusal of the suspension order would indicate that the same has also been passed under the provisions of Section 16G(5)(a) of the Act, 1921 also and thus once the charges are serious as such the suspension order would squarely be covered by the provisions of Section 16G(5)(a) of the Act, 1921 and thus the petitioner has correctly been placed under suspension in terms of the aforesaid provisions.
The Court would like to add that it has not expressed any opinion with regard to provisions of Section 16G(5)(b) of the Act, 1921 that without issuance of a charge-sheet the suspension order cannot be passed and the said question is left open to be considered in an appropriate case,” the Court also observed while dismissing the petition.
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