APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by the City of Chicago, defendant, from a judgment in the Circuit Court ordering a writ of mandamus to issue commanding the City to grant to Henry J. Shelton, relator, back salary and attendant rights for a period during which he was suspended from his job as a probationary building inspector.
The record reveals that at the time of his suspension, relator was employed as a code enforcement inspector, grade II, in the Department of Buildings. He had taken and passed civil service examinations for both grade I and grade II and was certified on June 1, 1969, as having successfully completed those tests.
On July 7, 1969, Shelton was indicted on charges of official misconduct and perjury. Relator consulted Mr. Duffy, the Deputy Commissioner and attorney for the Department of Buildings, and was advised that it would be impossible for him to return to work until he had cleared himself of the charges. Shelton requested postponement of the suspension until after his vacation, which was scheduled to begin on July 7, but his request was denied. The suspension notice read as follows:
You are suspended from your position of Code Enforcement Inspector II in the Department of Buildings for a period of Twenty-nine (29) days effective this date [July 7, 1969], pending further investigation."
At the time of the suspension, relator was told that if the charges were favorably disposed of, he could return to work at the Department. Nothing was said about his interim salary rights.
On September 8, 1970, after a trial, Shelton was acquitted of the charges of official misconduct and perjury. He applied for reinstatement as a building inspector and on September 18, 1970, was restored to his position as a grade II code enforcement inspector with probation considered served.
On December 30, 1970, Shelton filed the instant action for a writ of mandamus. After a trial, the court found that Shelton was entitled to back pay for the period from August 5, 1969 (which was 30 days after his suspension), to September 18, 1970, including any salary increases and longevity, seniority and vacation increments. The trial court found that Shelton's lost salary amounted to $11,904.10, and that his outside earnings for the period were $7,034.94, leaving a balance due him of $4,869.16.
On appeal, the defendant City contends (1) that relator's suspension from his employment as a probationary building inspector while he was under indictment was proper and legal, and that he has no right to back pay during this period for work he did not perform; (2) that the mandamus action is barred by relator's failure to make a demand on the City for back salary and attendant rights prior to instituting this action, and (3) that the action is also barred by the relator's laches.
Relator contends (1) that no civil service employee, probationary or otherwise, may be legally suspended without pay in excess of 30 days; (2) that the question of failure to make a demand on the City was not argued in the trial court and cannot be raised for the first time on appeal, and that in any case, a demand would have been futile, and (3) that the action is not barred by laches.
It is undisputed that at the time of the suspension, Shelton was a probationary employee. Such probationary employment in the civil service is provided for by Ill. Rev. Stat. 1969, ch. 24, par. 10-1-14, which states that,
"* * * original appointment shall be on probation for a period not to exceed 6 months * * *."
• 1 It is well established that a probationary employee may be discharged or dismissed without a hearing. (Rose v. Civil Service Com., 14 Ill. App.2d 337, 144 N.E.2d 768.) In Rose, the appellate court quoted ...