Gujarat High Court
Bharatbhai Durlabhjibhai Gondaliya vs State Of Gujarat on 29 November, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/16604/2022 ORDER DATED: 29/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16604 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16604 of 2022
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BHARATBHAI DURLABHJIBHAI GONDALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR RV DESHMUKH(300) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for Respondent State
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 29/11/2023
ORAL ORDER
1. Heard learned Advocate Mr.R. V. Deshmukh for the petitioner and learned AGP Mr.Sahil Trivedi for the respondent State.
2. Issue Rule returnable forthwith. Learned AGP Mr.Trivedi waives service of Rule for respondent State. With the consent of the parties, the present petition is taken up for final hearing.
3. By way of this petition, the petitioner inter alia challenges the decision of the respondent Authority in not interfering with an order of compulsory retirement by way of punishment, imposed upon the petitioner vide an order dated 3.3.2015 pursuant to a departmental proceeding, more particularly on account of the present petitioner being honourably acquitted by a competent Criminal Court for the same Page 1 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined charges, which were levelled against the petitioner in the departmental proceeding.
4. Facts leading to filing of the present petition being that the petitioner, at the relevant point of time, was working as Head Clerk in the Prohibition and Excise Department of the State Government and whereas on basis of a complaint with the Anti Corruption Bureau dated 31.8.2007, a trap had been laid and whereas based upon such proceeding the petitioner has been suspended in the month of September 2007 and whereas the Investigating Agency had submitted its charge-sheet before the learned Trial Court on 29.4.2008. It appears that for the very selfsame charges, the petitioner had been issued with a charge-sheet by the disciplinary authority vide an order dated 8.6.2011. It appears that the departmental inquiry had proceeded during the pendency of the criminal trial and whereas after the inquiry officer had submitted his report, a second show-cause notice had been issued to the petitioner on 10.7.2013. The petitioner appears to have replied to the second show-cause notice vide his reply dated 6.8.2013 and whereas vide the impugned order dated 3.3.2015 the respondent authority had imposed penalty of compulsory retirement from service upon the present petitioner.
4.1. It appears that the petitioner had challenged the order of compulsory retirement before the learned Gujarat Civil Services Tribunal by preferring an appeal being Appeal No.91/2015 and whereas vide an order dated 5.2.2018, the learned Civil Services Tribunal, Gandhinagar had been pleased to reject the appeal preferred by the present petitioner.
4.2. On the other hand, vide judgement and order dated 2.6.2018, learned Trial Court in the criminal prosecution against the present Page 2 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined petitioner, had honourably acquitted the present petitioner. It appears that on the strength of the order of honourable acquittal, the present petitioner had approached the respondent Department vide representations dated 8.6.2018 and 11.9.2018 inter alia requesting the respondents to reconsider the order of compulsory retirement and whereas such representations did not meet with any success. In the interregnum, the petitioner had reached the age of superannuation on 30.9.2018.
4.3. It appears that the petitioner had once again approached the learned Gujarat Civil Services Tribunal by filing an appeal being Appeal No.62 of 2019 inter alia challenging the order of compulsory retirement and whereas the said appeal appears to have been dismissed vide judgement and order dated 12.8.2021 on the ground of res judicata.
4.4. The petitioner, therefore, being aggrieved by the decision of the respondents in not revoking the order of compulsory retirement dated 3.3.2015 has preferred the present petition questioning the same.
5. Learned Advocate Mr.Deshmukh for the petitioner would contend that there being no difference between the charges levelled against the present petitioner in the criminal prosecution and the departmental inquiry and whereas the witnesses being the same, more particularly since the allegation was with regard to the very selfsame incident, therefore, petitioner upon being honourably acquitted was entitled to seek for setting aside of the order of punishment of compulsory retirement and whereas since the respondents did not act accordingly, this Court may quash and set aside the impugned order and grant consequential benefits to the present petitioner.
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6. At this stage, it would be relevant to mention that while learned Advocate Mr.Deshmukh for the petitioner has attempted to question the impugned decision of compulsory retirement on its merits, yet considering that this Court is inclined to interfere on the primary submission of honourable acquittal, this Court deems it appropriate not to delve into the merits of the case, more particularly since it appears that the orders of the learned Tribunal are not under challenge in the present petition.
7. This petition is vehemently opposed by the learned AGP Mr.Sahil Trivedi for the State, who would submit that the impugned order of dismissal having preceded the judgement and order of honourable acquittal, the honourable acquittal would not have any bearing whatsoever on the order of compulsory retirement. Learned AGP Mr.Trivedi would further submit that the petitioner having challenged the order of compulsory retirement before the learned Civil Services Tribunal and having not met with any success and whereas, there does not appear to be any fault in the decision of the learned Tribunal, this Court may not interfere.
8. Heard learned Advocates for the respective parties and perused the documents on record.
9. In the considered opinion of this Court, the issue raised in the present petition does not appear to be res integra any more. It appears that the Hon'ble Apex Court in case of S. Bhaskar Reddy Vs. Superintendent of Police and Another, reported in (2015) 2 SCC 365 has reiterated the law with regard the effect of honourable acquittal upon an order of punishment pursuant to departmental inquiry, more particularly when the facts and evidence in both the set of proceedings are one and the Page 4 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined same. Relevant observations of the Hon'ble Apex Court starting from paragraph No.20 to paragraph No.25 are reproduced herein below for benefits :-
"20. Now, we have to examine the alternative plea urged on behalf of the appellants that the orders of dismissal passed against them are liable to be set aside in view of the judgment and order passed by the Criminal Court after the trial in which proceeding the appellants were honourably acquitted, when the charges in both the proceedings are almost similar. The decisions of this Court referred to supra, upon which strong reliance is placed by the learned counsel for the appellants are aptly applicable to the case on hand.
21. It is an undisputed fact that the charges in the criminal case and the Disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPCand SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges.
22. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram[3], the relevant para from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, Page 5 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted." (Emphasis laid by this Court) After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors.
23. Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has held as under:-
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." (emphasis supplied) Page 6 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined
24. Further, in the case of G.M. Tank v. State of Gujarat and Ors. (supra) this Court held as under:-
"20..........Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law.........It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of [pic]difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken Page 7 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." (emphasis supplied)
25. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings."
10. Considering the law laid down by the Hon'ble Apex Court, it would appear that in case of an honourable acquittal, more particularly when it is contended that the delinquent in the departmental inquiry, though visited with a punishment pursuant to the departmental inquiry, whereas on the very same set of facts and evidence, if the employee is honourably acquitted by a competent Criminal Court, then the order of punishment would be required to be interfered with. It would be pertinent to note here that in the instant case, the entire set of facts and evidence were based upon the very selfsame incident i.e. the alleged incident of the present petitioner seeking illegal gratification, which has resulted in an FIR being filed against the present petitioner in the month of August 2007. It would appear that the witnesses in the departmental inquiry as well as in the criminal trial are one and the same. Thus, it would appear that when in the criminal case based upon the same set of evidence and after examining the same set of witnesses, if the competent Court had come to a conclusion that the case against the petitioner does not deserve to stand and whereas the petitioner being honourably acquitted, then as noted by the Hon'ble Apex Court, it would be unjust, unfair and oppressive to allow the finding recorded in the departmental inquiry resulting in imposition of punishment of compulsory retirement upon the petitioner to stand.
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11. At this stage, it would be relevant to mention that the cause of action for the petitioner to claim interference with the order of compulsory retirement dated 3.3.2015 arose vide judgement and order dated 2.6.2018 passed by the competent Criminal Court. It would also be relevant to note that the petitioner had immediately thereafter i.e. on 30.9.2018 attained the age of superannuation. Under such circumstances, while this Court would interfere with the order of punishment, the aspect with regard to consequential benefits would be according modified.
12. In view of the above discussion, reasoning and conclusion arrived at, this Court passes the following orders :-
12.1. The impugned order dated 3.3.2015 passed by the Director, Prohibition and Excise Department, Gujarat State issuing punishment of compulsory retirement upon the present petitioner is hereby quashed and set aside;
12.2. The petitioner shall be entitled to be treated as having worked till 30.9.2018 i.e. the date of actual superannuation;
12.3. While the petitioner would not be entitled for any back-wages/arrears of wages, the petitioner would be entitled to all retiral benefits as if the petitioner had actually worked till 30.9.2018;
12.4. The respondents shall ensure appropriate action being taken upon the above directions and disburse arrears of retiral dues, including arrears of pension within a period of six weeks from the date of receipt of this order.
13. With the above observations and directions, the present petition Page 9 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023 NEUTRAL CITATION C/SCA/16604/2022 ORDER DATED: 29/11/2023 undefined stands disposed of as allowed.
14. Consequentially, the Civil Application would not survive and stands disposed of accordingly.
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 10 of 10 Downloaded on : Thu Nov 30 20:43:14 IST 2023