Gujarat High Court
Parsottambhai Narsinhbhai Vankar vs Deputy District Development Officer on 23 March, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/19404/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19404 of 2016
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PARSOTTAMBHAI NARSINHBHAI VANKAR Versus DEPUTY DISTRICT DEVELOPMENT OFFICER ========================================================== Appearance:
MR PURVISH J MALKAN(3511) for the PETITIONER(s) No. 1 MS.KHUSHBOO V MALKAN(5932) for the PETITIONER(s) No. 1 MS SEJAL K MANDAVIA(436) for the RESPONDENT(s) No. 1,2 MR RASESH RINDANI, AGP for the RESPONDENT(s) No. 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 23/03/2018 CAV ORDER Heard learned advocate Mr.Purvish Malkan for the petitioner, learned advocate Ms.Sejal Mandavia for respondent Nos.1 and 2 and learned Assistant Government Pleader Mr.Rasesh Rindani for respondent No.3 - State.
2. By filing the present petition, the petitioner has prayed for regularisation of period of his suspension. He has further prayed to direct the respondents to release all the bneefits including the pensionary benefits since the petitioner by the time, has retired.
3. The petitioner was Talati-cum-Mantri serving at Village Nevli, Taluka Savli. He was placed under suspension on 22nd August, 1985. The suspension of the petitioner was on the basis of the allegation that he failed to deposit Rs.200/- received by him towards Page 1 of 9 C/SCA/19404/2016 CAV ORDER government revenue and that he used the said amount for personal purpose. Also, he did not deposit Rs.2179.75 retaining with him the said amount at the end of the month. Thus it was a charge of temporary misappropriation which was levelled against the petitioner.
3.1 The suspension of the petitioner was reviewed upon completion of statutory period. By virtue of order dated 13th August, 1996, the petitioner came to be reinstated in service and his suspension was revoked. The petitioner retired with effect from 31st December, 2009 as per order dated 29th December, 2009 passed by the Taluka Development Officer, Dabhoi.
3.2 In respect of charges against the petitioner, F.I.R. was filed and the petitioner was chargesheeted. Criminal Case No.2159 of 1986 registered against the petitioner was in respect of offence punishable under Sections 403, 407, 409, 467, 477A and 114 of the Indian Penal Code. The Criminal Case was decided by learned Judicial Magistrate (First Class) as per his judgment and order dated 28th February, 2011 wherein the petitioner was acquitted of the offences alleged against him. Criminal Appeal No.01 of 2013 before the Sessions Court, Vadodara, preferred by the respondent authorities was came to be dismissed on 28th February, 2014.
3.3 The Taluka Development Officer thereafter
forwarded on 24th June, 2015, the case of the
Page 2 of 9
C/SCA/19404/2016 CAV ORDER
petitioner for regularisation of the period of
suspension to the Deputy District Development
Officer, Vadodara. The petitioner made representation on 21st May, 2016 to the Deputy District Development Officer, Vadodara, requesting him to regularise the suspension period. However, even after passage of one year and nine months, the case of the petitioner and his application for regularisation of suspension period remained undecided. It is thereafter that the petitioner approached this Court by filing the present petition.
3.4 During the pendency of the this petition, order dated 30th January, 2017 came to be passed. Thereby the respondent authority ordered for grant of earned leave to the petitioner from 02nd September, 1985 to 25th November, 1985, that is, for the total period of 85 days. The respondent also granted half- pay-leave for the period from 26th November, 1985 to 04th February, 1986. The subsistence allowance came to be adjusted and paid to the petitioner. The suspension period however was not regularised on the ground that the acquittal of the petitioner in Criminal Case was based on the benefit of doubt.
4. Learned advocate for the petitioner submitted that once the petitioner was acquitted by the criminal court of the charges levelled against and when the suspension was based on the factum of very charges, the period of suspension was liable to be regularised. It was submitted that the order subsequently passed adjusting the suspension period Page 3 of 9 C/SCA/19404/2016 CAV ORDER and to further adjusting subsistence allowance paid to the petitioner were unsustainable in eye of law.
4.1 On the other hand, learned advocate for the authorities submitted that regularisation of suspension period was within the discretionary domain of the authorities. According to her submission, charges against the petitioner was of temporary misappropriation, the gravity thereof could not be viewed with leniency. She further submitted that in any case, the acquittal of the petitioner was rested on benefit of doubt. She relied on decision of the Division Bench of this Court in Shankarbhai Virabhai Rathod v. Additional Development Commissioner being Letters Patent Appeal No.933 of 2012 decided on 03rd March, 2014. She relied on decision of the Supreme Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal [1994 (1) SCC 541].
5. From the suspension order available on record, it was clear that the suspension against the petitioner was ordered in view of the allegations in respect of criminal offences for which he was tried. The alleged offence of misappropriation was the sole basis for placing the petitioner under suspension. This root aspect no more remained valid once the petitioner was acquitted and the appeal of the respondent authority against acquittal came to be dismissed. As far as the reasoning of the authorities that in view of the benefit of doubt granted to the petitioner in the judgment and order of acquittal, suspension period would not be liable to be Page 4 of 9 C/SCA/19404/2016 CAV ORDER regularised, from the judgment acquitting the petitioner which is on record, it could be seen that the acquittal of the petitioner by the competent court had proceeded on the basis of detailed appreciation of evidence. In that view, it was an acquittal on merits. It could not be said that it was an acquittal on technical ground. The benefit of doubt is a yardstick or principle to be applied in the criminal case when the judgment of acquittal was preceded by consideration of evidence on merits and after evaluation of the merits before the Court, merely because the judgment inter alia mentioned that benefit of doubt was given to the petitioner, it would not cease to be the acquittal on merits. Another aspect was that the petitioner was never subjected to any departmental proceedings.
5.1 It is Rule 152 of the Bombay Civil Services Rules which becomes applicable. The Rule reads as under.
"152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant 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 clause (I) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant 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."Page 5 of 9
C/SCA/19404/2016 CAV ORDER 5.2 Sub-rule (2) of the aforesaid Rule states
that where the government is of the opinion that the government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, in such case the government servant shall be given full pay and allowances as if he was not suspended.
6. In Kantaben Fulabhai Khant wd/o deceased Fulabhai v. District Development Officer being Special Civil Application No.1476 of 1998 decided as per judgment dated 28th January,2 008, the authority did not treat the period of suspension of the said petitioner to be the period spent on duty on the ground that the acquittal of the petitioner in the criminal case was essentially on ground of the prosecution witnesses turning hostile and that acquittal was by giving benefit of doubt.
6.1 The Court noticed to highlight that the suspension order against the petitioner was unequivocal to suggest that the suspension was because of the criminal case lodged against him. The Court observed, "6. ... ... ... Now if the petitioner was acquitted, a duty was cast upon the competent authority to reinstate him as there was no contemplation at the relevant time for holding departmental proceedings against him. The competent authority i.e. the District Agricultural Officer as per the Gujarat Panchayats Service(Disciplinary & Appeal) Rule, 1964 accordingly passed an order of reinstating the petitioner with immediate effect. This order was passed after obtaining approval from the District Development Officer. The said order of reinstatement dated 28.11.94 was implemented immediately and the petitioner was permitted to resume his duties.
Page 6 of 9C/SCA/19404/2016 CAV ORDER Thereafter the competent authority i.e. District Agricultural Officer in exercise of its powers under Rule 152 of the BCSR passed an order dated 06.03.95 treating the suspension period of the petitioner as period spent on duty for all purposes."
6.2 About the purport and operation of Rule 152, the Court observed that Rule does not specifically deal with the aspect about the exercise to be undertaken when the employee concerned is acquitted in a criminal case. The Court thereafter observed to state, which shall apply to the facts of this case as well.
"6.1 ... ... ... The suspension period in the case like the present one wherein the petitioner was acquitted will have to be viewed from the point of his acquittal. Had the petitioner been convicted then the suspension would have been said to be justified but in the instant case the petitioner was acquitted and therefore the acquittal for whatever reason has to be considered as acquittal itself and therefore on that basis his reinstatement was warranted which was accordingly granted by the concerned authorities and the petitioner was reinstated also. When the petitioner was reinstated as he was acquitted that acquittal which was considered basis for reinstatement of the petitioner ought to have been considered sufficient in treating the said period of suspension as period spent on duty. The factum of acquittal when was found sufficient for considering the petitioner's fitment or suitability for reinstatement the same could not have been found to be inadequate for treating the period of suspension as period spent on duty as the same would be absolutely arbitrary."
6.3 The above decision in Kantaben Fulabhai Khant (supra) and the principles laid down therein would apply as the facts of the said case stand akin to one on hand. Learned advocate for the respondent, by placing reliance on Management of Reserve Bank of India, New Delhi (supra) and Shankarbhai Virabhai Rathod (supra) tried to contend that it was the discretion of the authorities to regularise the Page 7 of 9 C/SCA/19404/2016 CAV ORDER period of suspension or not. However in those cases, the factual aspects were at variance.
7. Though it is normally true that regularising the period of suspension is within the discretion of the authorities, however this discretion is a discretion in law. It is to be exercised on the basis of relevance of attendant facts and legal principles to become a sound exercise acceptable in law. Recapitulating, therefore, the decisive aspects in the facts of this case, the suspension of the petitioner was solely based on the allegation of criminal offence. The petitioner stood acquitted in the criminal case. At no point of time, the departmental inquiry was contemplated against him or ever initiated. The petitioner, in the meantime, even retired from service. The petitioner remained under suspension from 22nd September, 1985 till he was reinstated in service on 13th August, 1996. During this period, no departmental action was taken. The entire factual backing to the order of suspension was the allegation for the alleged criminal offence which ended with acquittal on merits.
8. In the context of this facts, also noticeable are the observations from the decision of the Supreme Court in Brahma Chandra Gupta v. Union of India [AIR 1984 SC 380], "Mr. R.K. Garg, learned counsel for the appellant wanted us to examine the score and ambit of Article 193 and Mr. Gujral learned counsel for the Union of India was equally keen on the other side to do the same thing. We steer clear of both. The appellant was a permanent UDC who has already retired on Page 8 of 9 C/SCA/19404/2016 CAV ORDER superannuation and must receive a measure of socio- economic justice. Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, that he was prosecuted and has been ultimately acquitted and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial Court was correct and unassailable. The learned trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly, allow this appeal, set aside the judgement of first appellate Court as well of the High Court and restore the one of trial Court with this modification that the amount decreed shall be paid with 9 % interest p.a. from the date of suit till realization with costs throughout." (Para 6)
9. For all the aforesaid reasons, non- regularisation of the period of suspension of the petitioner is rendered arbitrary and the discretion exercised in that regard stood untenable in law. The denial of regularisation of the period of suspension violated the rights of the petitioner under Articles 14 and 16 of the Constitution.
10. As a result of aforesaid discussion, the respondents are directed to regularise the period of suspension of the petitioner. All the amounts payable to the petitioner thereby shall be paid to the petitioner within a period of three months from the date of receipt of copy of this order.
(N.V.ANJARIA, J) Anup Page 9 of 9