Gujarat High Court
Kantibhai Becherbhai Patel vs Chief Officer - Kapadvanj Nagarpalika on 19 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/18086/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18086 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
KANTIBHAI BECHERBHAI PATEL
Versus
CHIEF OFFICER - KAPADVANJ NAGARPALIKA
Appearance:
MR KUNJAL D PANDYA(2259) for the PETITIONER(s) No. 1
MR DM DEVNANI AGP for the RESPONDENT(s) No. 4
MR RAVINDRA SHAH(1299) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 19/03/2018
ORAL JUDGMENT
Heard learned advocate for the petitioner and learned AGP for the respondent - State.
2. In present petition, the petitioner has prayed, inter alia, that:-
"14(A) Your Lordships may kindly be pleased to issue writ of Mandamus or any other writ, order or direction may kindly be issued directing respondent authorities to Page 1 C/SCA/18086/2015 JUDGMENT consider the case of the petitioners and to reinstate the petitioner on his original post with all the benefits."
3. So far as factual backdrop is concerned, it has emerged from the record that present petitioner joined the service with respondent Nagarpalika as Driver in May 1992.
3.1 It appears that somewhere in 2008, the respondent Nagarpalika got information that the petitioner was arrested in connection with certain criminal case filed against him. It appears that, on further inquiry, the Nagarpalika learnt that criminal case No.38 of 2009 was registered against the petitioner with allegation that the petitioner committed offence punishable under Sections 47, 148, 149, 307, 323, 395 and 114 of Indian Penal Code and Section 25(1)(C) of Arms Act.
3.2 In that view of the matter, the respondent Nagarpalika placed the petitioner under suspension on the ground that he was arrested for alleged commission of offence. The order placing the petitioner under suspension came to be issued on 20.9.2008.
3.3 The said order dated 20.9.2008 discloses that the only ground on which the petitioner came to be placed under suspension was his arrest for Page 2 C/SCA/18086/2015 JUDGMENT alleged commission of offence and that he was detained in police custody for more than 48 hours.
3.4 The trial in connection with criminal case No.38 of 2009 wherein present petitioner was one of the accused persons commenced before learned Sessions Court and the said trial resulted into acquittal of present petitioner vide judgment and order dated 26.7.2012. According to the judgment dated 26.7.2012, the learned trial Court acquitted the petitioner by giving benefit of doubt.
3.5 Though the petitioner came to be acquitted by learned trial Court, the respondent Nagarpalika did not revoke order of suspension and continued the petitioner under suspension even after his acquittal vide judgment and order dated 26.7.2012 in criminal case No.38 of 2009.
3.6 According to the petitioner, immediately after his acquittal, he submitted a
representation dated 3.8.2012 and requested the respondent Nagarpalika to withdraw the order of suspension. Therefore, the petitioner, through his advocate, served a notice dated 30.11.2012 and demanded that the suspension should be revoked and he should be allowed to resume duty.
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3.7 Even after said notice, the respondent
Nagarpalika did not take any action.
3.8 In January 2015, the petitioner submitted
another representation which also did not yield any result.
3.9 According to the petitioner, even the Collector i.e. respondent No.3, vide his communication dated 29.1.2015 instructed Nagarpalika to take action in light of judgment dated 26.7.2012 by learned trial Court.
3.10 According to the petitioner, even after the said instruction dated 29.1.2015 by the Collector, the respondent Nagarpalika did not take any action.
3.11 Ultimately, upon being exhausted and frustrated by the respondent's inaction with regard to his request, the petitioner filed present petition.
3.12 It appears that from September 2008, the petitioner is still continued under suspension.
4. In this case, the factual backdrop is not in dispute.
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4.1 On reading the order dated 20.9.2008, it
clearly emerges that the only ground on account of which the petitioner came to be placed under suspension is institution of criminal case against the petitioner and his arrest for the said criminal case.
4.2 It is pertinent to note that the respondent Nagarpalika has, either prior to or after the petitioner's arrest and institution of criminal proceedings, not taken any disciplinary action against the petitioner.
4.3 It is not the case of the respondent that independent of the criminal proceedings, the respondent Nagarpalika has taken steps in accordance with applicable rules against the petitioner by way of disciplinary action by treating his alleged involvement in criminal case as misconduct.
4.4 It is also not the case of the respondent Nagarpalika that for any other misconduct, the petitioner has been placed under suspension.
5. It is also pertinent to note that though the petition is pending since last 3 years and despite the fact that this Court vide order dated Page 5 C/SCA/18086/2015 JUDGMENT 29.10.2015 called upon the respondent Nagarpalika to answer the petition, until now, the respondent Nagarpalika has not filed any reply.
5.1 Taking note of the said aspect, this Court passed below quoted order on 13.3.2018 and granted time to the respondent Nagarpalika to take appropriate action or to file reply. The order dated 13.3.2018 reads thus:-
"1. Mr. Shah,learned advocate for the respondent seeks time.
2. The petitioner came to be placed under suspension on singular and solitary ground namely pendency of criminal proceeding.
3. However, the record gives out that vide judgment dated 26.7.2012 the learned Trial Court decided the Criminal Case No.38 of 2009 thereby the petitioner came to be acquitted. Almost 6 years have passed since the petitioner came to be acquitted. Despite such fact, the respondent has not reinstated the petitioner and the petitioner is deprived of service as well as salary.
4. In this view of the matter, the Court is completely reluctant to accept the request of the learned advocate for the respondent. However, as a last opportunity, a day's accommodation is granted so as to enable the learned advocate for respondent to take instruction about the present status and with the clarification that sick note or leave note will not be considered on the next date of hearing. If the learned advocate for petitioner and/ or learned advocate for respondent are not present, the Court will pass appropriate order on the basis of material available on record.
5. Mr. Shah, learned advocate for respondent at this stage submitted that according to his information the State has filed Appeal against the judgment dated 26.7.2012 in Criminal Case No.38/2009. He further submitted that even the victim has filed Criminal Appeal against the same judgment. He also submitted that according to his information, the Appeals are admitted.
6. S.O. to 14.3.2018."
5.2 On 13.3.2018, the only submission which came Page 6 C/SCA/18086/2015 JUDGMENT to be urged by learned advocate for the respondent Nagarpalika is that the State as well as the victim have filed appeals against the judgment dated 26.7.2012 in criminal case No.38 of 2009.
5.3 Learned advocate for the respondent Nagarpalika could not give details about the appeals i.e. number of criminal appeals said to have been filed by the State and the victim. Learned advocate for the respondent Nagarpalika could not clarify as to whether the appeals are admitted and pending or the appeals are disposed of.
5.4 It is necessary to mention aforesaid aspect because learned advocate for the petitioner submits that until now, the petitioner has not received any process/summons issued by the Court in the appeals said to have been filed by the State or the victim.
6. Be that as it may, even if this Court proceeds on the premise that against the judgment by learned Sessions Court acquitting the petitioner herein any appeal is filed either by the State or by the victim or both, then also, in case, where the acquittal appeal is filed, there would not be any justification on the part of the Page 7 C/SCA/18086/2015 JUDGMENT employer to continue the employee under suspension, more particularly after the employee is acquitted in criminal proceedings.
7. The matter may stand on different footing if in this case, the respondent Nagarpalika had, departmentally, taken any disciplinary action against the petitioner.
7.1 It could be that under applicable rules (Conduct and Appeals Rules) of the Nagarpalika (employer) the act/conduct of an employee which is an offence may independently constitute a misconduct also.
7.2 In such cases, the employer will be entitled to proceed departmentally against the employee by treating such act/conduct as misconduct, even if it constitutes offence and any criminal case is also instituted in respect of the misconduct.
7.3 For such purpose, the employer may place an employee under suspension.
7.4 Even after acquittal in criminal case, the employer may, in given case and having regard to gravity of the misconduct, more particularly if such misconduct affects the discipline of the organization and is connected with the discipline Page 8 C/SCA/18086/2015 JUDGMENT and moral as well as industrial piece of the organization, may prefer to and continue to proceed departmentally, in accordance with applicable rules for disciplinary action, in connection with such conduct.
7.5 However, in present case, it has emerged that since 2008, i.e. for almost 10 years, during which the petitioner is continued under suspension, the employer has not initiated any departmental action/proceedings.
7.6 The conduct / action of the petitioner which constituted offence and in respect of which the petitioner came to be tried by learned Sessions Court in criminal case No.38 of 2009 is not treated as misconduct by the employer and any departmental action by way of disciplinary proceedings, is not taken against the petitioner.
8. In this view of the matter, there is no base or justification for the respondent Nagarpalika to continue the petitioner under suspension even after his acquittal in criminal case.
8.1 The employer i.e. the respondent Nagarpalika cannot take shelter under the umbrella of pendency of appeal filed by the State or the victim against the judgment whereby the Page 9 C/SCA/18086/2015 JUDGMENT petitioner (one of the accused persons) came to be acquitted.
8.2 Pendency of acquittal appeal is no ground to continue the petitioner under suspension, more particularly when the petitioner is placed under suspension only on ground of arrest upon institution of criminal case and the employee is acquitted from such criminal case and any departmental/disciplinary proceedings are not pending.
9. After acquittal in criminal case, the employer is obliged to review the suspension order and take action in light of the judgment acquitting the employee.
10. In present case, the respondent Nagarpalika has failed to take action in light of the judgment dated 26.7.2012 by learned Sessions Court in criminal case No.38 of 2009.
10.1 In this context, reference can be had to the decision by this Court in Special Civil Application No. 14045 of 2007 dated 12.12.2007 wherein the Court observed, inter alia, that:-
"6. It appears that the order of the disciplinary authority is only based on conviction by the Sessions Court in Criminal Case No. 141/98. In the impugned order of the disciplinary authority, there is reference to the resolution of the Government dated 05.08.2003, wherein it has been stated that even if the appeal against the conviction is pending the further action may be taken in the disciplinary proceedings.
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However, it appears that the position of law as laid down by the Hon'ble Supreme Court in case of Ravikant S. Patil v. Sarvabhouma S. Bagali reported at 2007(1) SCC 673 read with another decision of the Apex Court in case of Navjot Singh Sidhu v. State of Punjab and another reported at 2007(2) SCC 574 is not considered. It may also be recorded that in the said decision, the view expressed by the Apex Court is that after conviction, if the appeal is preferred and conviction is suspended, the effect of conviction can be said as not in operation. Therefore, it would be incorrect to state that if the conviction is by the criminal Court and appeal is pending and the conviction is stayed, the disciplinary authority can ignore the factum of pendency of the appeal and the suspension of conviction by the appellate Court in the said appeal against conviction. At the same time it will be for the respondent authority to consider the matter regarding the gravity of the criminal offence, in which there was conviction, and as to whether such conviction against which the appeal is pending has any nexus with the discharged of the duty by the employee concerned or not. If the nexus is direct to the discharge of the duty, keeping in view the larger interest of the administration, the disciplinary authority may take decision to keep such person away from actual discharge of the duty, but in such circumstances, the position as prevailing prior to conviction may be maintained, like that of suspension or otherwise. However, in cases where the gravity of the offence in which the conviction has taken place and for which the appeal is pending has no direct nexus to the actual discharge of duty by the employee concerned, the authority may take different view. Further, it may also be depends upon the quantum of the subsistence allowance, even if the position is restored prior to the conviction. To say in other word if the subsistence allowance is like payment equivalent to the full salary, and the gravity of the offence in which the conviction has taken place has no direct nexus to the discharge of the actual duty, the authority may take decision to permit employee to discharge the duty actually and to pay full salary inspite of paying salary by way of subsistence allowance without taking any work. Such circumstances and other relevant circumstances, which may be germane to the exercise of the power, keeping in view largest interest of the administration are to be examined and the appropriate decision is to be taken by the authority concerned. At this stage it may be profitable to extract certain observations of this Court in case of Kanjibhai Godadbhai Chaudhary v. The State of Gujarat & 2 in SCA No. 12682 of 2006 and others decided on 26.11.2007. The said case was of a conviction by the trial Court for the offences of irregularity and misappropriation, and appellate Court allowed the appeal and conviction was set aside. At that stage the petitioner had approached this Court for reinstatement in service on account of setting aside the conviction by the Sessions Court. However, in that case, the disciplinary proceedings were simultaneously conducted, and the charges were proved, but the disciplinary proceedings were not concluded by the disciplinary authority. In the said decision this Court observed at para 9,10,11,12 and 13 as under:
"9. It is by now well settled that even if the criminal proceedings are initiated in connection with any offence concerning to the discharge of duty by a Government Employee, it is open to the Department to initiate Page 11 C/SCA/18086/2015 JUDGMENT disciplinary proceedings and the same was undertaken in the present case. It is also well settled that if the requirement of Rule 5(2) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971 (hereinafter referred to as ?the Rules?) are satisfied due to the arrest of such Government Employee in connection with the criminal offence and he is in police custody, he can be suspended from service. It is also well settled that considering the gravity of the charges in the disciplinary proceedings, the competent authority may exercise discretion to suspend the employee concerned, either pending the contemplated inquiry or pending the inquiry.
10. In the present case, the petitioner came to be placed under suspension vide order dated 2.5.1994 read with order dated 9.9.1994, not because of contemplated disciplinary proceedings, but because of his arrest and he being in police custody. It is true that pending criminal proceedings before the Criminal Court, the disciplinary proceedings are also initiated namely; that he has been charge-sheeted; Inquiry Officer has been appointed; and the proceedings have been conducted by the Inquiry Officer; and the Inquiry Officer has submitted his report, wherein the charges against the petitioner are proved and the disciplinary authority has further concurred with the view of the Inquiry Officer and has called for the reply. But no order of dismissal was passed in such disciplinary proceedings and the order of dismissal dated 18.3.2004 was passed based on the order of conviction dated 31.12.2003 passed by the Criminal Court in Criminal Case No.13 of 2002. The said order of conviction is set aside by the Sessions Court and, therefore, the basis of the order of dismissal is not in existence as per the order of the Sessions Court, subject to the rider that the appeal against the acquittal is preferred by the State and the appeal has been admitted. Where either the Criminal Court has acquitted the Government Employee or the appeal is admitted and the warrant has been issued against the employee concerned may be a justifiable ground for the concerned employee to seek reinstatement in service, in normal circumstances, if the order of dismissal is only based on the order of conviction. However, such principle is not a sine qua non. It may vary from facts to facts and the gravity of the criminal case, which is being faced by such employee. To say in other words, if the gravity of the charges in the criminal case is so serious and has direct nexus with the discharge of duty by the concerned employee, the authority may exercise discretion of not to permit such employee to discharge duty to his original post, but in such circumstances, order of dismissal shall be required to be revoked and the employee concerned may be placed under suspension. However, if the charges in the criminal case against the concerned employee are not so serious, which may have direct nexus to the discharge of duty, the competent authority may exercise the discretion of permitting the employee to discharge duty by reinstatement in service. However, it can not be concluded that the criminal proceedings have ended, in a case where the appeal against the acquittal has been admitted by the Court and the warrant has been issued in Page 12 C/SCA/18086/2015 JUDGMENT such criminal appeal.
11. At the same time, pending the aforesaid, if the disciplinary proceedings have commenced and have proceeded further, it is open to the disciplinary authority to proceed, in accordance with law, and to pass final order by concluding the disciplinary proceedings.
12. It appears from the order dated 9.1.2007 passed by the Commissioner, Health, Medical Services that neither the question of reinstatement, nor permitting the petitioner to discharge duty in service; nor the reinstatement and the question of suspension pending the proceedings before the Criminal Court and/or pending the proceedings of appeal before this Court and/or further continuation with the disciplinary proceedings and conclusion thereof is considered, but the reinstatement is denied, without examining the aspect of charges being faced by such employee in the criminal case and that the disciplinary proceedings have not concluded into the order of dismissal or otherwise. Even if it is considered that in the report of the Inquiry officer, the charges are proved, it would be required for the disciplinary authority to follow the procedure in accordance with law from that stage for concluding the matter in the disciplinary proceedings. But until the final order is passed in the disciplinary proceedings in either way or until the criminal appeal is finally decided by this Court, the status of the petitioner as then in existence prior to the order of conviction by the Criminal Court, in any case, is required to be restored and maintained.
13. As observed earlier, after reinstatement in view of the seriousness of the charges or on account of the disciplinary proceedings, the competent authority may exercise discretion to place the employee concerned under suspension or may permit him to discharge duty to his original post. Such decision is required to be taken objectively, keeping in view the gravity of the charges, the status of the disciplinary proceedings as well as the nature of duty to be discharged by such employee if reinstated and permitted to discharge duty."
7. Therefore, it appears that the authority has not considered the aforesaid aspect and has neither given proper weitage to the factum of admission of appeal by the criminal Court and suspension of the conviction nor has examined the aspect as to whether the conviction having been stayed by the appellate Court has nexus to the discharge of the duty and that keeping in view the gravity of the charges whether the petitioner should be allowed to resume the duty or to be placed under suspension. It is also not examined as to whether it would be just and proper to pay full salary by way of subsistence allowance during the period of suspension, or it would be proper to take work from the petitioner by permitting her to actually discharge the duty and to pay full salary. The other aspect as referred to hereinabove was also be required to be considered before taking appropriate decision.
8. As the aforesaid aspects are not considered which were germane to the exercise of the power, the impugned order passed Page 13 C/SCA/18086/2015 JUDGMENT by the authority and its confirmation thereof by the tribunal cannot be sustained in the eye of law. Hence, they deserve to be quashed and set aside.
9. In view of the above, the impugned order passed by the disciplinary authority and its confirmation thereof by the tribunal for imposition of the punishment of the dismissal are quashed and set aside with the further direction to reconsider the matter afresh in light of the above referred observations made by this Court in the present judgement, and to pass the decision as early as possible, in any case within a period of four months from the receipt of the order of this Court."
11. In light of facts of present case and in light of above quoted observations by this Court, the request by the petitioner is justified and the inaction of the respondent Nagarpalika is not sustainable.
11.1 The respondent Nagarpalika has, without any justification, not only continued the petitioner under suspension even after his acquittal by learned Sessions Court, but the respondent Nagarpalika has not even cared to give any reply to the petitioner in response to his multiple representations as well as notice through an advocate. The respondent Nagarpalika appears to have acted arbitrarily.
12. In light of foregoing discussion and for the reasons mentioned above, the petition deserves to be allowed. Therefore, following order is passed:-
[a] This petition is allowed and the respondent Nagarpalika is directed to take-up the case of Page 14 C/SCA/18086/2015 JUDGMENT the petitioner, in light of representation submitted by him, after the rendition of the judgment by learned trial Court, and pass appropriate order having regard to the discussion in present order in respect of the petitioner's demand for recall/withdrawal of the suspension, his reinstatement and consequential benefits which he would be eligible in accordance with Rules, on or before 26.7.2012.
[b] Appropriate order shall be passed by the respondent Nagarpalika within period of one week from receipt of the certified copy of this order.
With aforesaid clarifications and direction, present petition is allowed. Orders accordingly.
Sd/-
(K.M.THAKER, J) KDC Page 15