APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
This is an appeal from the trial court's ruling in a mandamus action seeking recovery of back pay.
The issue before this court is whether a probation officer illegally suspended from his position can recover back pay although he waited nearly 3 1/2 years to seek reinstatement. We affirm the trial court's award of back pay from the date reinstatement was sought through the date he was legally discharged. We reverse the trial court's denial of back pay for the period before the demand for reinstatement and remand for an evidentiary hearing on the issue of laches.
The original complaint, filed in June 1977, is not in the record on appeal. The amended complaint alleges that as of October 5, 1973, the plaintiff was employed as a probation officer of the circuit court of Cook County; that on the above date he was arrested and accused of bribery; that he was indefinitely suspended from his position as of that date; that he was acquitted of the charges on March 17, 1977; that he subsequently (March 24, 1977) demanded his reinstatement, but such demand was either ignored or rejected; and that he is entitled to the salary, increases and other emoluments withheld from him subsequent to October 5, 1973. The defendants in their answer admit that the plaintiff was suspended from his position (but on October 4, 1973) without pay; deny that the filing of criminal charges caused the suspension; admit the receipt of the letter demanding reinstatement but deny that it was either ignored or rejected; and state that proceedings to have plaintiff discharged as a probation officer were instituted on December 15, 1977; as affirmative defenses, they contend that the action is barred by the six-month time limitation placed on mandamus actions; that plaintiff was guilty of laches in that he failed to seek reinstatement until March 24, 1977; that the plaintiff is estopped by this delay; that the plaintiff had a duty to mitigate damages; and that the defendants are entitled to deduct payment to the replacement probation officer assigned to handle plaintiff's caseload and job responsibilities; they further contend that as plaintiff was never informed that he would be paid during his suspension and the statute does not provide for payment of salary during a suspension, plaintiff is not entitled to back pay.
Plaintiff then moved to strike the affirmative defenses and for a judgment on the pleadings. Defendants answered this motion and in turn moved for partial judgment on the pleadings on the issue of liability, on the grounds that (1) the complaint fails to show a clear legal right to reinstatement and (2) the 3 1/2-year delay clearly shows plaintiff was guilty of laches. The court on March 2, 1978, after hearing arguments, ruled that the petitioner was entitled to his salary as adult probation officer from March 24, 1977, to, through and including that day when final action disposing of petitioner's case is taken by the committee of judges of the adult probation department of Cook County. The court further ruled that the defendants were entitled to set off all sums received by the plaintiff as income from employment during that same period.
Both the plaintiff and the defendants moved to have the court reconsider the issues. The defendants' motion was based on the contention (1) that the plaintiff had not shown a clear, legal right to reinstatement, (2) that the plaintiff by delaying until March 24, 1977, is guilty of laches; and (3) that a question of fact remains as to the amount of any set-off of outside earnings, mitigation of damages, and deduction of payments made to a de facto employee. Both motions were denied and both sides appealed.
The record also discloses that on December 15, 1977, the Probation Department brought action against Chriswell seeking his discharge and alleging:
1. On October 4, 1973, he was arrested and charged with violation of certain criminal laws of the State of Illinois;
2. that on that date he was suspended from his position because of his arrest and the charges made against him (this is, of course, in direct contradiction to the sworn statement of the defendants that he was not suspended because of the charges);
3. that he did not make any demand that he be rehired during the time the charges were pending;
4. that he was found not guilty on March 17, 1977;
5. that these facts constitute an adequate basis for his discharge.
While it is not in the record, the defendants in their brief state that the plaintiff was discharged on an order of Chief Judge Fitzgerald on July 14, 1978.
Section 13 of the "An Act Providing for a system of probation * * *" (Ill. Rev. Stat. 1973, ch. ...