Gujarat High Court
State Of Gujarat vs Bhalchandra Lakshmishankar Dave on 20 June, 2018
Equivalent citations: AIRONLINE 2018 GUJ 141
Bench: Harsha Devani, A.S. Supehia
C/LPA/399/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.399 of 2017
In SPECIAL CIVIL APPLICATION NO.15902 of 2015
With
R/LETTERS PATENT APPEAL NO.807 of 2017
In SPECIAL CIVIL APPLICATION NO.15902 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
===================================================
1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or not
? YES
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
===================================================
STATE OF GUJARAT
Versus
BHALCHANDRA LAKSHMISHANKAR DAVE
===================================================
Appearance:
MR SOAHAM JOSHI, AGP for the PETITIONER(s) No. 1,2
MR BP GUPTA(337) for the RESPONDENT(s) No. 1
===================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 20/06/2018
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) Page 1 of 22 C/LPA/399/2017 JUDGMENT (1) Both these appeals being directed against the common judgment passed by learned Single Judge dated 24.08.2016 in Special Civil Application No.15902 of 2015, are heard and decided analogously and are being disposed of by this common judgement.
(2) The facts are incorporated from Letters Patent Appeal No.399 of 2017, which is filed by the appellant - State of Gujarat. In the present Letters Patent Appeal, the State Government has challenged the judgement dated 24.08.2016 passed in Special Civil Application No.15902 of 2015, whereby the learned Single Judge has directed the present appellant State of Gujarat to grant the provisional pension and provisional gratuity as per the Gujarat Civil Services (Pension) Rules, 2002 (hereinafter to be referred to as the "Pension Rules") while placing reliance on Rule 70(3) of the Gujarat Civil Services (Joining Time, Foreign Service, Deputation out of India, Payment During Suspension, Dismissal and Removal) Rules, 2002 (hereinafter to be referred as the "Suspension Rules"). It is also further observed that ultimately if the appeal is Page 2 of 22 C/LPA/399/2017 JUDGMENT dismissed by the Supreme Court, then the writapplicant shall be paid 50% of the salary and other allowances for the period between the date of the order of dismissal and the date of attaining the superannuation including other consequential benefits.
(3) The facts relevant for deciding the present appeals are adumbrated as under:
(4) The respondentemployee/original petitioner was selected in the year 1980 by the Gujarat Public Service Commission (GPSC) ClassII for the appointment to ClassII post in the Labour and Employment Department. He joined as Principal (ClassII) in the Government ITI, Saraspur, Ahmedabad, on 20.08.1982 under the Directorate of Employment and Training. A first information report (F.I.R.) was registered against him in Bharuch ACB being IC.R. No.4/2000 for the offences punishable under sections 7, 13(1)
(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Pursuant to the aforesaid F.I.R., the respondent was placed under suspension vide order dated
02.06.2000. Learned Special Judge, Fast Track Court No.3, Bharuch convicted the Page 3 of 22 C/LPA/399/2017 JUDGMENT present respondent - employee for the offence punishable under the provisions of the Corruption Act and passed an order of conviction and sentenced him to undergo simple imprisonment for a period of three years with fine of Rs.5,000/ vide judgment and order dated 15.01.2003. The respondent employee was dismissed from service vide order dated 14.03.2015 in view of his conviction. The said judgement was further carried in appeal before this court in Criminal Appeal No.92 of 2003. By the judgment and order dated 12.01.2015 the appeal was allowed and the conviction of the respondent - employee was set aside by giving him the benefit of doubt.
(5) In the interregnum period, the respondent-
employee / original petitioner challenged his dismissal order dated 14.03.2005, which was passed pursuant to the conviction of the respondent - employee by the trial court. The same was the subject matter of challenge in Special Civil Application No.12391 of 2005 before this court. By the order dated 06.09.2005, the writ petition challenging the dismissal order dated 14.03.2005 was rejected. The same was carried further by Page 4 of 22 C/LPA/399/2017 JUDGMENT way of Letters Patent Appeal No.330 of 2006. By the order dated 24.03.2006, the Letters Patent Appeal challenging the order dated 06.09.2005 was also dismissed. The respondentemployee again challenged his dismissal order dated 14.03.2005 in Special Civil Application No.8684 of 2013 which was dismissed on 09.05.2013.
(6) Thereafter, on his acquittal the respondent employee, filed a representation dated 10.04.2015 requesting the present appellant authorities to review his case in the light of the acquittal and grant him pension as well as the retirement benefits. A detailed representation was made incorporating the observations made by this court in judgement dated 12.01.2015 as well as placing reliance on various judgments and orders of this court. Since no response was received from the appellant authorities, the present respondent original petitioner approached this court by filing Special Civil Application No.15902 of 2015. As observed in the preceding paragraph, the learned Single Judge by the judgment dated 24.03.2016 directed the present appellant State of Gujarat to grant the provisional pension and Page 5 of 22 C/LPA/399/2017 JUDGMENT provisional gratuity to the respondent- employee, as per Pension Rules.
(7) Learned Assistant Government Pleader Mr.Soaham Joshi appearing on behalf of the appellant authorities has submitted that the aforesaid directions issued by the learned Single Judge are de hors the provisions of the Rules. He has also submitted that the principle of res judicata would apply in the present case since the earlier petitions challenging the very dismissal order were dismissed by this court and the same was confirmed by the Division Bench. He has also submitted that as observed by the learned Single Judge an Special Leave Petition (SLP) challenging the acquittal of the present respondent - employee is still pending in the Apex Court, however, he is unable to give any information whether the same is yet admitted or not. Learned Assistant Government Pleader has also drew the attention of this court to the Rule 70 of the Suspension Rules,2002 as incorporated in the judgement of the learned Single Judge. He has submitted that the aforesaid rule will not apply in the present case since the present respondentemployee was suspended Page 6 of 22 C/LPA/399/2017 JUDGMENT and he has not been reinstated in service. He has submitted that since the learned Single Judge has not set aside the dismissal order, no benefit of pension or provisional gratuity can be conferred to the present respondent employee. In this view of the matter, he has submitted that the present appeal (Letters Patent Appeal No.399 of 2017) deserves to be granted and the order of the learned Single Judge deserves to be dismissed.
(8) Per contra, learned advocate Mr. B.P. Gupta appearing on behalf of the present respondent employee and the appellant of Letters Patent Appeal No.807 has submitted that the directions issued by the learned Single Judge are not yet complied with. He has submitted that the respondent employee has not been granted any benefits either provisional pension or gratuity and only because of the pendency of the SLP, the benefits, as observed by the learned Single Judge, are not paid to him. He has asserted that as per Rule 70 of the Suspension Rules,2002 the State Government is liable to pay proportionate pay and allowance as prescribed by the Government. He has Page 7 of 22 C/LPA/399/2017 JUDGMENT specifically stressed on subrule (3) of Rule 70 of the suspension Rules which mentions grant of proportion of such pay and allowances in other cases as the government may prescribe. In support of his submissions Mr. Gupta has placed reliance on the judgment rendered by the Division Bench of this court in the case of Gujarat Energy Transmission Corporation Ltd. & Ors. Vs. Pravin B. Raval, 2008 (1) G.L.R. 27. He has also placed reliance on the judgment of the Apex Court rendered in the case of Hukmi Chand Vs. Jhabua Cooperative Central Bank Ltd., Jhabua (M.P.) & Anr., (1998) 2 S.C.C.
291. Reliance is also placed upon the judgment rendered by the Kerala High Court in the case of Kunhayammed & Ors. Vs. State of Kerala & Anr., (2000) 6 S.C.C. 359 for the proposition of law that only because of the fact that the SLP is pending, the benefits accruing from the judgment cannot be denied to an employee. He has also further stated that though the respondent - employee vide representation dated 10.04.2015 has drawn the attention of the present appellant State authorities to reconsider his case of dismissal and grant him retiral benefits, no action has been taken on the said representation. He has Page 8 of 22 C/LPA/399/2017 JUDGMENT submitted that for all these years, the respondent - employee has to sit idle at home without any retiral benefits. In view of the aforesaid submissions, he has urged that the State Government may be directed to comply with directions issued by learned Single Judge and further directions may be issued to grant him provisional pension and provisional gratuity forthwith.
(9) Learned advocate Mr.Gupta has assailed the order passed by learned Single Judge on the ground that the learned Single Judge was not justified in not granting the relief to the respondent - employee on the ground that at this stage because the SLP filed by the State of Gujarat is pending before the Apex Court, in the light of the law laid down by the Apex Court in the case of Kunhayammed & Ors. (supra), wherein the Supreme Court has, inter alia, held that in spite of a petition for special leave to appeal having been filed, the judgement, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. It was submitted that despite the fact that period of three years have lapsed since the order Page 9 of 22 C/LPA/399/2017 JUDGMENT of acquittal is passed in favour of the respondent employee, leave to appeal has not yet been granted and hence, the impugned judgement and order of acquittal in favour of the respondent continues to be final, effective and binding. Learned Single Judge therefore, ought to have granted the reliefs on the basis thereof.
(10) Heard the learned advocates appearing on behalf of the respective parties.
(11) The following facts are established in the present case:
a) The respondent - employee was involved in a criminal case, for which he was suspended on 02.06.2000.
b) By the judgement dated 15.01.2003 rendered by the learned Special Judge, Fast Track Court No.3, Bharuch, he was found guilty for the offences punishable under the provisions of the Prevention of Corruption Act.
c) He was dismissed in view of the conviction vide order dated 14.03.2005 without holding Page 10 of 22 C/LPA/399/2017 JUDGMENT a departmental inquiry under Rule 14(1)(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
d) The employee challenged his dismissal order in writ petition being Special Civil Application No.12391 of 2005 which was dismissed vide order dated 06.09.2005.
e) Letters Patent Appeal No.330 of 2006 challenging the aforesaid order was dismissed on 24.03.2006. The Review Application No.1325 of 2006 was also dismissed vide order dated 14.07.2006.
f) The respondentemployee again challenged his dismissal order dated 14.03.2005 in Special Civil Application No.8684 of 2013 which was also dismissed on 09.05.2013.
g) After being unsuccessful in all the aforesaid proceedings, finally the respondentemployee was successful in setting aside his conviction. This court by the judgement dated 12.01.2015 passed in Criminal Appeal No.92 of 2003 acquitted him by giving benefit of doubt.
Page 11 of 22C/LPA/399/2017 JUDGMENT
h) The same is challenged by the Appellant State in Special Leave Petition, the status of which is not known to the learned Assistant Government Pleader.
i) After the acquittal, the respondent -
employee made a detailed representation dated 10.04.2015 to the appellant authority to reconsider his dismissal and grant him retiral benefits. The aforesaid representation remains unanswered till today.
j) Thereafter, the respondentemployee filed Special Civil Application No.15902 of 2015 again challenging his dismissal order dated 24.08.2016. As observed in the preceding paragraphs, the learned single judge vide judgement dated 24.08.2016 has directed the present appellant to grant him provisional pension and gratuity.
k) The employee, i.e the Appellant of Letters Patent Appeal No.807 of 2017 has challenged the aforesaid judgement of the learned single judge as regards refusing the reliefs and granting him 50% of the salary and other allowances for the period between the date Page 12 of 22 C/LPA/399/2017 JUDGMENT of order of dismissal and the date of attaining superannuation i.e. 28.2.2012 in case the appeal is dismissed by the Supreme Court.
(12) We have examined the judgement passed by the learned single judge threadbare. We have also examined the rules incorporated in the judgement. A careful scrutiny of the judgement will clarify that though the learned Single Judge has issued directions to the appellant authorities to grant the provisional pension and gratuity to the respondent, the dismissal order dated 14.03.2015 impugned in the writ petition, has not been set aside. The prayer clause of the writ petition reveals that the respondent employee / original petitioner has challenged the dismissal order dated 14.03.2005. He has also further prayed that it may be declared that he is entitled to all the benefits of reinstatement in service till the date he was due to retire on 28.02.2012. Thus, the fact remains that the dismissal order dated 14.03.2005 remains intact and the same is not set aside by the learned single judge. In the earlier three rounds of litigation, challenging the Page 13 of 22 C/LPA/399/2017 JUDGMENT dismissal order; prior to the acquittal, the respondent has failed to get any relief from this Court. The two writ petitions challenging the dismissal order dated 14.03.2005 have been dismissed by this Court. the letters patent appeal and the review application filed by the respondent were also dismissed. Despite the repeated failure, the respondent again prayed for quashing and setting aside the dismissal order in the captioned writ petition. Having regard to the fact that the dismissal order dated 14.03.2005 was earlier subject matter of challenge before this court and the writ petition challenging the same came to be dismissed and the letters patent appeal challenging the order passed in the writ petition also came to be dismissed, such order has attained finality in the absence of the same having been challenged before the higher forum. Under the circumstances, the respondent is precluded from once again challenging the order dated 14.3.2005 before this court, may be on different grounds, as the same is barred by the principle of res judicata and no relief could have been granted to the respondent in the present writ petition. The learned single judge has not considered this vital aspect while Page 14 of 22 C/LPA/399/2017 JUDGMENT issuing directions to grant provisional pension and gratuity to the respondent.
(13) Apart from the fact that as the petition was barred by res judicata it could not have been entertained, in the considered opinion of this Court, in absence of any directions issued for quashing and setting aside the dismissal order, the relief seeking retiral benefits cannot be granted. Rule 25(i)(e) of Pension Rules, 2002 prohibits the consideration of the service rendered by an employee prior to his resignation, removal and dismissal as qualifying service for the purpose of pension. Thus, till the dismissal order dated 14.03.2005 remains in existence, no relief of granting the pay, pension or retirement benefits can be granted to the respondentemployee. The judgement cited at the bar in the case of Gujarat Energy Transmission Corporation Ltd. & Ors. Vs. Pravin B. Raval (supra) and Hukmi Chand (supra) cannot come to the rescue of the respondent as the same will not apply to the facts of the present case.
(14) Rule 70(3) of the Suspension Rules, 2002 relied upon the by learned single judge will Page 15 of 22 C/LPA/399/2017 JUDGMENT not apply in the present case. Rule 70 of the Rules reads as under:
"70. Regularisation of pay and allowances and the period of absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review and such Government employee is reinstated :
(1) When a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make order of reinstatement shall consider and make a specific order :
(a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub rule (1) is of opinion that the Government employee has been fully exonerated or in the case of suspension that it was wholly unjustified; the Government employee shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be.
(3) In other case, the Government employee shall be given proportion of such pay and allowances as the competent authority may prescribe:
Provided that the payment of allowances under subrule (2) or (3) shall be subject to all other conditions under which such allowances are admissible."Page 16 of 22
C/LPA/399/2017 JUDGMENT The opening recital of aforesaid rule envisages the grant of pay and allowances for the period of absence from duty in case where dismissal, removal or suspension is set aside and such Government employee is reinstated. The quintessential feature of "reinstatement" is absent in the present case. Hence, Rule 70 of the Suspension Rules cannot come to the rescue of respondent employee. Subrule (3) of Rule 70 cannot be read in isolation. The precondition of reinstatement in service is mandatory in case an employee is to be conferred any benefit under subrule (3) of Rule 70. Hence, the submission canvassed by the learned Advocate for the respondentemployee that he is entitled to pay and allowances under the said rule is, therefore, misconceived.
(15) The upshot of the aforesaid discussion is that the judgement dated 24.08.2016 passed by the learned Single Judge directing the appellant authorities to grant provisional pension and gratuity in absence of setting aside the order of dismissal does not stand legal scrutiny and cannot be sustained.Page 17 of 22
C/LPA/399/2017 JUDGMENT (16) However, the glaring aspect of the matter is that the representation dated 10.04.2015 made by the respondent - employee to the appellant authorities drawing their attention to his acquittal as well as praying for pension and retiral benefits still remains to be responded. The respondent - employee has been acquitted by this court vide judgement dated 12.01.2015 passed in Criminal Appeal No.92 of 2003. The same is the subject matter of SLP before the Apex Court. It was expected from the appellant authorities to at least respond to the representation dated 10.04.2015 made by the respondent - employee, who is retired from service after attaining the superannuation age on 28.02.2012. The appellants have not paid heed to the representation only on the ground that the acquittal is the subject matter of challenge before the Apex Court in the SLP filed by the State. Moreover, despite the fact that the SLP was filed way back in the year 2015, there is nothing to show that leave to appeal has been granted. In fact the appellantauthorities are not even aware of the present status of the SLP.Page 18 of 22
C/LPA/399/2017 JUDGMENT (17) At this juncture reference may be made to the decision of the Apex Court in the case of Kunhayammed (supra) wherein it has been held that "In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge."
(18) Thus, in the absence of leave to appeal having been granted the judgment and order of acquittal in favour of the respondent employee continues to be final, effective and binding as between parties.
Consequently, the stand taken by the State authorities of refusing to decide the representation of the respondentemployee due to pendency of the appeal runs contrary to the observation of the Apex Court. The callous attitude of the appellant Page 19 of 22 C/LPA/399/2017 JUDGMENT authorities in not deciding the representation of the respondentemployee for a period of more than three years and thereby depriving him of his retirement benefits cannot be countenanced even for a moment. Accordingly, we deem it fit to direct the appellant authorities to decide the representation dated 10.04.2015 by a reasoned order within a period of two months from the date of receipt of a copy of the present judgement. For the lethargic and remissness approach adopted by the appellant State authorities, we impose cost quantified at Rs.1,00,000/ to be paid to the present respondent - employee within a period of 02 (two) weeks from the receipt of the present order. If the amount is not paid within the stipulated time, the same shall carry interest at the rate of 9% per annum.
(19) If an employee makes any representation claiming retirement benefits, the same should meet an immediate response of either refusing his claim or acknowledging the same. The State Government cannot sit tight on such representations where the retirement benefits of an employee are at stake. This court has been time and again been Page 20 of 22 C/LPA/399/2017 JUDGMENT confronted with such issue where the representations filed by the retired employees remain unanswered for a long time and they have to approach this Court seeking directions only to decide their representations. Henceforth, it is expected that if such representations are made by the employees claiming retirement benefits, the same shall be decided by the State authorities within a period four weeks.
(20) For the foregoing reasons and observations, Letters Patent Appeal No.339 of 2017 of the State Government is allowed. The impugned judgment and order dated 24.08.2016 passed by the learned Single Judge in Special Civil Application No.15902 of 2015 is hereby quashed and set aside. Interim relief granted by this court vide order dated 20.03.2017 in Civil Application No.2 of 2017, which was ordered to be continued vide order dated 26.02.2018 till the final disposal of the main appeal, stands vacated.
Letters Patent Appeal No.807 of 2017 of the respondent - employee (i.e. original petitioner) is hereby partly allowed. The appellant authorities to decide the Page 21 of 22 C/LPA/399/2017 JUDGMENT representation dated 10.04.2015 (Annexure 'W' to the petition) by a reasoned order within a period of 02 (two) months from the date of the receipt of a copy of the present judgement. The appellant State authorities, are directed to pay Rs.1,00,000/ by way of costs to the present respondent - employee within a period of 02 (two) weeks from the receipt of the present order. If the amount is not paid within the stipulated time, the same shall carry interest at the rate of 9% per annum.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 22 of 22