Gujarat High Court
Bahadursinh B Jadeja As Deceased His ... vs State Of Gujarat & 2 on 21 April, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1132/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1132 of 2006
In SPECIAL CIVIL APPLICATION NO. 3116 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BAHADURSINH B JADEJA AS DECEASED HIS LEGAL HEIRS &
5....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR JAYRAJ CHAUHAN, ADVOCATE for the Appellant(s) No. 1 - 1.5
MR ROHAN YAGNIK, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 1 - 3
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Page 1 of 6
C/LPA/1132/2006 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 21/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. We have heard learned advocates appearing for the parties.
2. This intra-court Letters Patent Appeal has been filed challenging the judgement and order dated 27.10.2004 passed by the learned Single Judge in Special Civil Application No. 3116 of 1999 whereby the learned Single Judge dismissed the writ petition. The appellant by way of the writ petition had challenged the order by which the Government had directed that the monthly pension of the appellant be reduced by an amount of Rs. 370/- on permanent basis.
3. Mr. Jayraj Chauhan, learned advocate appearing for the appellant submitted that the learned Single Judge ought to have appreciated that the appellant's pension or gratuity could not have been withheld or reduced under Rule 189-A of the BCSR as there was no pecuniary loss caused to the Government. He submitted that the learned Single Judge ought to have appreciated that the complaint in which the appellant had opined to file B-summary was subsequently investigated by CID, Crime wherein CID, Crime had filed charge sheet before the appropriate Court. He submitted that in fact going through the order of the trial court the appellant was justified in not disbelieving the opinion of the then Page 2 of 6 C/LPA/1132/2006 JUDGMENT Assistant Public Prosecutor before the trial court.
4. Mr. Rohan Yagnik, learned AGP appearing for respondent - State supported the impugned order passed by the learned Single Judge. He contended that while passing the punishment order against the appellant, his reply and other documents were completely considered by the Disciplinary Authority and appropriate order of punishment was passed after consultation with Gujarat Public Service Commission. He submitted that so far as the appellant's supervisory role and his endorsement of filing 'B Summary' is considered the same have not been disputed by the appellant.
5. The learned Single Judge while passing the judgement and order dated 27.10.2004 in Special Civil Application No. 3116 of 1999 observed as under:
"6.1 The first contention raised by the petitioner is that admittedly there was no pecuniary loss caused to the Government and that therefore, under Rule 189-A of the BCSR, petitioner's pension or gratuity could not have been withheld or reduced. This issue however, has been concluded by the decision of the Hon'ble Supreme Court in the case of State of Orissa and ors Vs. Kalicharan Mohapatra and anr. reported in AIR 1996 SC 684, wherein while interpreting similar provision in Rule 6 of All India Services (Death-Cum-Retirement Benefits) Rules, 1958, the Hon'ble apex Court found that the Tribunal was in error in holding that unless the charge expressly charges the pensioner with causing pecuniary loss to the Government by his negligence or misconduct during his service, his pension or gratuity cannot be withheld. The first contention of the petitioner therefore fails.
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* * *
9. It was next contended by the learned Counsel for the petitioner that the petitioner had only recommended applying for B-summary. He has submitted that ultimately it was the discretion of the trial Court whether to accept or not to accept the B-summary. Though there cannot be any dispute about this contention, that by itself would not absolve the petitioner from the charges levelled against him. The principal charge against the petitioner was that as a senior officer he recommended filing of B-summary in a case where there was sufficient material to file charge-sheet against the accused persons and the case involved serious offences such as those punishable under Sections 302 and 376 of Indian Penal Code, The petitioner cannot take shelter of the fact that ultimately his recommendation was required to be examined and thereafter accepted or rejected by the trial Court. As a senior Police Officer, it was his bounden duty to take all necessary care and precaution before recommending filing of B-summary in a serious offence like the present one. If the petitioner has recommended filing of B-summary which at the end of enquiry is found to be wholly unjustified and if it is found that there was sufficient material on record to suggest that the accused persons should have been charge-sheeted and proceeded against, the view of the Department that the petitioner committed misconduct by acting in a grossly negligent manner cannot be faulted with.
10. The Counsel for the petitioner thereafter contended that even otherwise the recommendations of the petitioner was justified as he had acted upon the recommendations of the Assistant Public Prosecutor, as also the opinion of the Medical Officer. Counsel for the petitioner has pointed out that the Assistant Public Prosecutor had advised dropping of the charges while the medical officer had opined that no blood of semen were found from the private part of the deceased girl. In the report dated 30.4.1991 however, it clearly stated that he has sent the necessary samples to the Forensic Page 4 of 6 C/LPA/1132/2006 JUDGMENT Science Laboratory for verifying the presence or absence of semen. The said laboratory report was available on 11.7.1991, in which it was clearly indicated that blood and semen were both present. The opinion of the APP was rendered after the FSL report was available.The petitioner ought to have examined this important aspect of the matter. When the Medical Officer had only given his interim report and had sent the samples for further examination to the FSL, the petitioner could not have blindly relied upon the report of the medical officer. He ought to have realised that advice of the APP was based on the report of the medical officer, but without taking into account the FSL report which was available by then. On this ground also, I find that the petitioner is not correct in contending that his opinion was well founded and supported by material on record. This contention of the petitioner also must therefore, fail. "
6. We have gone through the records of the case and the impugned judgement and order passed by the learned Single Judge. The orders passed by the Government as well as the learned Single Judge do not reveal any infirmity. However looking to the fact that the original petitioner - employee had put in a long meritorious service and was also rewarded on a number of occasions coupled with the fact that he has now expired and his wife is getting family pension on his behalf, on the peculiar facts and circumstances of the present case, we are of the opinion that ends of justice shall be met if the penalty of reduction in pension is directed to inure for 15 years from the date of receipt of punishment order by the original petitioner i.e 26.03.1998 (as there is no date of punishment order). Order accordingly.
7. Accordingly, the impugned judgement and order dated Page 5 of 6 C/LPA/1132/2006 JUDGMENT 27.10.2004 passed by the learned Single Judge in Special Civil Application No. 3116 of 1999 is modified and the penalty of reduction of Rs. 370/- in the monthly pension of the original petitioner shall be effective for 15 years from the date of receipt of the punishment order by the original petitioner i.e. 26.03.1998. It is however clarified that the present judgement shall not be treated as a precedent in any other matter as the same has been passed considering the peculiar facts of the present case, more particularly as the widow of the original petitioner should not suffer for the misdeed of the original petitioner. Appeal is partly allowed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 6 of 6