Gujarat High Court
Shankarbhai Virabhai Rathod vs Additional Development Commissioner & ... on 3 March, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/933/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 933 of 2012
In SPECIAL CIVIL APPLICATION NO. 9866 of 1999
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SHANKARBHAI VIRABHAI RATHOD....Appellant(s)
Versus
ADDITIONAL DEVELOPMENT COMMISSIONER & 2....Respondent(s)
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Appearance:
MR. MN MARFATIA, ADVOCATE for the Appellant(s) No. 1
MR. SHAH, AGP, for the Respondent(s) No. 1
MR RUTVIJ M BHATT, ADVOCATE for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 03/03/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal, the appellant has challenged the judgement dated 22.6.2012 passed by learned Single Judge whereby the petition was dismissed wherein the petitioner has prayed for regularisation of his suspension period as on duty.
2. Learned counsel for the appellant has contended that though the appellant - original petitioner was acquitted of the charges by the order of this Court on 22.9.1994 and he was reinstated in service. However, the period from the date of suspension till his reinstatement in service was not regularised.
Page 1 of 5 C/LPA/933/2012 ORDERTherefore, he has preferred the petition in the year 1999 claiming the following reliefs:
"(A) declaring the decision of the respondent No. 1 not to treat the period of the petitioner's suspension as on duty and give full pay and allowances for the said period while deciding that the suspension of the petitioner was not wholly unjustified as violative of Sec. 152 of the Bombay Civil Service Rules, 1959, arbitrary, irrational, suffers from non-application of mind coupled with ignorance of law, unfair, unreasonable and violative of Articles 14, 16 and 21 of the Constitution of India and, therefore, illegal, unconstitutional and null and void and quashing and setting aside the same;
(B) declaring the decision of the respondent No. 3 to reduce 50% of subsistence allowance paid to the petitioner from the date of his conviction by the trial Court on 5.7.86 till he was reinstated on revocation of his suspension dated 22.6.95 attributing prolongation of suspension to the petitioner as violative of Sec.
151 of the Bombay Civil Service Rules, 1959 and irrational, arbitrary, unreasonable, unfair, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India and, therefore, illegal unconstitutional and null and void and quashing and setting aside the same;
(C) directing the respondents particularly respondents No. 1 and 3 to pay to the petitioner full pay and allowances for the period of suspension treating the said period as period spent on duty and be further pleased to direct the respondents to give to the petitioner all the consequential service and monetary benefits."
3. Learned Single Judge while deciding the case of the appellant has considered the case on the point and has not granted regularisation of suspension period as on duty. Learned counsel for the appellant has contended that in view of the acquittal of the appellant, the period of his suspension is required to be regularised.
Page 2 of 5 C/LPA/933/2012 ORDER4. Learned advocate for the respondent Nos. 2 and 3 Mr. R.M. Bhatt and learned AGP Mr. Shah for respondent No. 1 have supported the judgement of learned Single Judge. Learned AGP Mr. Shah has pressed into service a decision of this Court in the case of K.D. DESAI VS. HIGH COURT OF GUJARAT reported in 2009(3) G.L.H. 631, particularly, paragraph Nos. 19 and 20, wherein the Division Bench of this Court after considering all Supreme Court judgements, has concluded the issue. Paragraph Nos. 19 and 20 are reproduced as under:
"para 19 - In the facts and circumstances of the case, we do find that the Inquiry Officer even while holding that charge Nos. 2 and 3 were not proved, suspicion was created against the petitioner about the conduct of the petitioner. On a perusal of the Inquiry Officer's report which was accepted by the Competent Authority, charge Nos. 2 and 3 were not proved on account of lack of sufficient legal evidence. We are, therefore, of the view that in the facts and circumstances of the case, it cannot be said that the suspension of the petitioner was wholly unjustified even on the basis of the material available with the Competent Authority upon conclusion of the Inquiry.
Para 20 - In view of the above discussion, we find that though the respondent did not place correct interpretation on the provision of sub-rule (2) of Rule 152 of BCSE, in the facts and circumstances of the case. It is not possible to hold that suspension of the petitioner during pendency of the Inquiry was wholly unjustified merely because all the four charges levelled against the petitioner were not proved."Page 3 of 5 C/LPA/933/2012 ORDER
5. We have heard learned counsel for the parties. Learned counsel for the appellant has contended that the appellant was honourably acquitted. Learned Single Judge in paragraph No. 16 of the judgement has observed as under:
"As discussed above, I do not find myself in agreement with the submissions made by the learned advocate for the petitioner that the High Court has honourably acquitted the petitioner and the direct consequence and bearing of the same is that the suspension of the petitioner as on the date and time was wholly and absolutely unjustified and the respondent authorities cannot ignore the fact of `honourable acquittal' while deciding justifiability of the suspension. Learned advocate for the petitioner has also argued that once the person is acquitted except on procedural defect, he is declared innocent then there is no law which necessitates the accused to establish his own innocence beyond reasonable doubt. I do not find any substance or merit in the said submission as the said point has been dealt with earlier at length. Therefore, I am of the view that in the facts and circumstances of the case, it cannot be said that suspension of the petitioner was wholly unjustified as the charges were not proved on account of insufficiency of evidence and so the benefit of doubt has been given to the petitioner. Hence I do not find any substance in the petition and it deserves to be dismissed."
6. In view of above, in our view, the appellant was not honourably acquitted but on benefit of doubt, the appellant was acquitted of the charges. Even otherwise, from the date of conviction till the appeal was allowed, the appellant was Page 4 of 5 C/LPA/933/2012 ORDER granted only bail. The judgement was not stayed. In that view of the matter, the period from the date of conviction till the date of allowing the appeal cannot be regularised in view of the Division Bench judgement of this Court in the case of K.D. DESAI (supra). The appeal is devoid of any merit and deserves to be dismissed.
7. In the result, the appeal is dismissed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) (pkn) Page 5 of 5