IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9866 of 1999 For Approval and Signature:
HONOURABLE MR.JUSTICE G.B.SHAH sd/-
========================================= ========================================= SHANKARBHAI VIRABHAI RATHOD - Petitioner(s) Versus ADDITIONAL DEVELOPMENT COMMISSIONER & 2 -
Respondent(s) ========================================= Appearance :
MR BR GUPTA for Petitioner(s) : 1,MR VIVEK B GUPTA for Petitioner(s) : 1, Mr L R Pujari, Asstt.GOVERNMENT PLEADER for Respondent(s) : 1&2 NOTICE SERVED for Respondent(s) : 2, MR P B Jadeja for Mr DC DAVE for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE G.B.SHAH Date : 22/06/2012
C.A.V. JUDGMENT
1. Being aggrieved by the order dated 4.4.1998 at Annexure 'F' passed by the respondent No.1, the present petition is filed by the petitioner praying that 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 period of suspension treating the said period as period spent on duty and also the decision of the respondent no. 3 to reduce subsistence allowance of the petitioner by 50% from the date of conviction by the District Court dated 5.7.1986 till he was reinstated on revocation of suspension dated 22.6.1995.
2. The facts of the case in brief are that the petitioner was employed on 27.2.1978 by the respondent Valsad District Panchayat as an Extension Officer (Agriculture) which is a Class III post. On 26.4.1985 a complaint was lodged against the petitioner at Valsad Police Station bearing CR No.4/85 for offences punishable under section 161 of Indian Penal Code with sections 5 (1)(c), 5 (1) (d) and 5 (2) of the Prevention of Corruption Act. The allegation against the petitioner was of taking Rs. 200/- as illegal gratification. The complainant- Mavjibhai did not want to oblige the accused by giving bribe and therefore, on 28.4.1985 he had gone to the ACB office at Valsad and lodged FIR being CR No.4/85 for the offences as aforesaid. On 21.9.1985 the petitioner was suspended by the respondent No.3 with effect from 24.9.1985 on account of pendency of Criminal Complaint of corruption against him. On 5.7.1986 the District Court at Valsad being a Special Court hearing corruption matters concluded against the petitioner holding him guilty for commission of offences alleged against him in Special Case No.2/86.The appeal filed before the High Court was admitted and the petitioner was enlarged on bail. The respondents passed an order reducing the amount of subsistence allowance being paid to the petitioner by 50%. By order dated 22.9.1994, the High Court acquitted the petitioner of the charges levelled against him. Against this order no appeal was preferred by the other side. The petitioner made an application along with the order of acquittal for reinstatement with immediate effect and payment of remaining amount of pay and allowances. He was reinstated by the respondents after affording an opportunity of hearing. The respondent No.3 passed an order treating the period of suspension not on duty while justifying the order of suspension and also passed an order refusing to pay any pay and allowances for the period of suspension. On 16.6.1997 the respondent Commissioner in an appeal passed an order partially allowing the appeal of the petitioner preferred against the order passed by the respondent No.3 and remanded the matter back for fresh consideration on merit. On 2.12.1997, the respondent No.3, after hearing the petitioner passed order that the suspension of the petitioner as on date and time was not wholly unjustified and treating the period of suspension not on duty and also refused to pay any allowances for the said period. On 4.4.1998 the respondent No.1 Commissioner passed an order in appeal filed by the petitioner against the order of respondent No.3 and by the same the respondent No.3-Commissioner rejected the appeal and confirmed the order of respondent No.3. Hence this petition.
3. Heard the learned Advocate Mr B R Gupta, for the petitioner, Mr L R Pujari, learned AGP for respondent No.1 and 2 and Mr P B Jadeja appearing for Mr D C Dave, learned Advocate for respondent No.3.
4. Learned Advocate for the petitioner submitted that once the petitioner has been acquitted in appeal, the decision of the lower court loses its independent existence. He submitted that after acquittal the seriousness of charge of offence available in the charge sheet becomes irrelevant. Therefore, the decision of the respondents justifying its suspension order in light of section 152 of the Bombay Civil Services Rules, 1959 is arbitrary, irrational and suffers from non-application of mind. Rule 152 of the above Rules has been wrongly applied giving misinterpretation to the facts and circumstances of the case. He further submitted that the prosecution has to establish its case against the accused beyond reasonable doubt. He submitted that when the High Court has set aside the judgment of the District Court and the petitioner was acquitted makes it clear that the acquittal of the petitioner was honourable. According to him there is nothing like honourable acquittal or acquittal otherwise. Therefore, the distinction arrived at by the respondents is without any foundation. He further submitted that it is established beyond reasonable doubt that the petitioner was acquitted not on technical or procedural defect but on merits. He submitted that the respondent No.3 has wrongly applied Rule 151 of the Bombay Civil Services Rules, 1959 to the facts of the case of the petitioner. Prolongation of suspension cannot be attributed in any manner whatsoever to the petitioner or for that matter to anyone and, therefore, the decision of respondent No. 3 to reduce subsistence allowance by 50% was based on incorrect application of rule. He finally submitted that he remained under suspension for almost 10 years and if the said period of suspension is not treated as on duty, it will have serious economic repercussions on his retirement benefits and other terminal benefits and therefore, the decision of the respondent No.3 is clear violation of Article 21 of the Constitution of India. He, therefore, prays that this petition be allowed and the relief prayed for be granted. In support of his submission, learned Advocate for the petitioner has placed reliance on a decision in Brahma Chandra Gupta v. Union of India [AIR 1984 SC 380] and submitted that the issue referred above involved in this petition is squarely covered by the decision of the Hon'ble Apex Court referred above.
5. Learned AGP Mr L R Pujari for respondents No. 1 and 2 has drawn my attention to the memo of the petition and submitted that most of the places the petitioner has specifically averred that the Hon'ble High Court of Gujarat had heard the appeal finally and while setting aside the judgment and order of conviction and sentence of imprisonment together with fine, honourably acquitted the petitioner on 22.9.1994. The said judgment and order passed by the Hon'ble High Court of Gujarat in Criminal Appeal No.966 of 1986 preferred by the petitioner dated 22.9.1994 is at Annexure 'B'. While acquitting the petitioner the Hon'ble High Court of Gujarat has specifically given its finding in the last para at page No.51 that “...The accused must get the benefit of these doubts created in the case of the prosecution....”. Considering the same, it is clear that the petitioner has not come with clean hands and he had knowingly and deliberately averred wrongly that he had been honourably acquitted by the High Court of Gujarat and so this petition may be dismissed only on that ground. Moreover, he has placed reliance on the decision delivered by a three Judge Bench of the Hon'ble Apex Court in the case of Reserve Bank of India v. Bhopal Singh Panchal (1994)1 SCC 541.
6. Learned Advocate Mr P B Jadeja appearing for Mr D C Dave for respondent No.3 has placed reliance on a decision of the Division Bench of this Court in K.D. Desai v. High Court of Gujarat [2009 (3) GLH 631] and submitted that the concluding paragraphs No.18 and 19 are very important to decide the case on hand.
7. I have considered the rival submissions made by the learned Advocates for the parties in light of the document forthcoming on the record. Drawing my attention to Annexure 'B' – the judgment and order dated 22.9.1994 passed by this Court in Criminal Appeal No.966 of 1986 preferred by the learned Advocate for the petitioner, learned Advocate for the petitioner has mainly argued that while acquitting the petitioner, the Hon'ble High Court was pleased to observe that the prosecution case is weak, feeble and doubtful and supported by evidence suffering from patent and fatal weakness. The Court has further observed that the court below was therefore, definitely at an error in coming to the conclusion that the case of the prosecution was established despite the above said infirmities. The accused, therefore, must get benefit of these doubts created in the case of the prosecution. Learned Advocate for the petitioner has then vehemently argued that looking to the above observations it is established beyond reasonable doubts that the petitioner had been acquitted by the Hon'ble High Court not on 'benefit of doubt' but on account of the failure on the part of the prosecution to establish the case against the petitioner beyond reasonable doubts. He has then submitted that thus a plain and simple reading of the judgment and order passed by the High Court referred above makes it clear that the acquittal of the petitioner was 'honourable' one. According to the submissions of the learned Advocate for the petitioner, the petitioner was not acquitted on being given benefit of doubt nor was acquitted on technical or procedural doubt or any such grounds as the acquittal of the petitioner was fully and wholly on merit and it being 'merited acquittal', the present Special Civil Application should be allowed as prayed for.
8. The final conclusion and findings of the learned Single Judge in Criminal Appeal No.966 of 1986 dated 22.9.1994 reads as under:
“The three above said circumstances therefore makes the case of the prosecution week, feeble and doubtful, which could not have been accepted by the court below. The conviction of the accused could not have been based upon this evidence which demonstrates the patent weakness. The court below was therefore definitely at an error in coming to the conclusion that the case of the prosecution was established despite the above said infirmities. The accused must get the benefit of these doubts created in the case of the prosecution. The appeal therefore requires to be allowed and the same is hereby accordingly allowed. The judgment of conviction and sentence pronounced by the court below is hereby set aside and the appellant accused is hereby acquitted of the offence for which he has been found guilty by the court below. The fine if any paid shall be refunded to the appellant accused. His bail bonds shall stand cancelled.
(sic)
9. Drawing my attention to the above referred judgment, learned AGP for the respondents No.1 and 2 and the learned Advocate for respondent No.3 have argued that a plain and simple reading of the findings as referred above, it is clear that because of the infirmities forthcoming on the record, the prosecution has failed to prove its case and so the High Court has specifically observed that the accused must get benefit of these doubts created in the case of the prosecution. This finding in no way can be said to be 'honourable acquittal' as has been argued by the learned Advocate for the petitioner is the submission made by the learned Advocates for the respondents. There is no doubt that the acquittal of the petitioner is fully and wholly on merit. But on the evidence which were forthcoming on the record, it is obvious and quite natural that every acquittal or conviction must be delivered fully and wholly on merit which is the pious duty of the Judge concerned. Thus in my view when the High Court has specifically observed and given its findings that “...The accused must get benefit of these doubts created in the case of the prosecution...”, it cannot be said that it is a merited acquittal on substantial grounds. The simple meaning of the above is that the petitioner was acquitted on being given 'benefit of doubt' and nothing else. It is also important to note that if while delivering the judgment if one finds technical or procedural difficulties then generally one can remand the case for removal of such irregularities and can pass necessary orders but it has nothing to do with the observations and findings made by the High Court in the above mentioned order. It is also important to note that the order dated 22.9.1994 passed in Criminal Appeal No.966 of 1986 was passed by the High Court and admittedly no review or appeal challenging the said order had been preferred by the present petitioner challenging those findings and observations made by the High Court. So in my view, it has attained its finality. Moreover, this court is also has same jurisdiction and it cannot sit on appeal against the judgment and order passed by the learned Single Judge of this Court dated 22.9.1994 in Criminal Appeal No. 966 of 1986. Thus whatever the findings and conclusions arrived at and the observations made by the High Court is binding to the petitioner and in my view, a Coordinate Bench cannot interpret the same as has been argued by the learned Advocate for the petitioner.
10. So far as the case of Brahma Chandra Gupta v.
Union of India (AIR 1984 SC 380) is concerned, according to the learned Advocate for the petitioner, the issue involved in the present petition is squarely covered by the aforesaid decision delivered by the Three Judge Bench of the Hon'ble Apex Court. I have carefully perused the same. In the above referred decision the concerned authority was of the opinion that the appellant could not be said to be fully exonerated and so ¼th of his salary was not paid to the appellant therein. The appellant filed Suit No.210/68 in the court of 2nd Civil Judge, Kanpur against Union of India contending that as he was never hauled up for departmental inquiry and he was suspended only on the ground that a criminal charge was laid against him and pending the trial of the offence and therefore, Article 193 would not be attracted and accordingly it was not open to the authority concerned to deny him full salary for the period of suspension. Alternatively it was contended that in the circumstances of the case he was deemed to have been fully exonerated and therefore also the order withholding ¼th of the salary was not sustainable. Looking to the above prayer and on going through the entire judgment it was not clear whether the appellant therein was acquitted by way of honourable acquittal or benefit of doubt was given to him. The alternative prayer sought for is “...in the circumstances of the case he was deemed to have been fully exonerated...” indicates that the acquittal of the appellant therein was concerned, it was not clear whether the said acquittal was honourable acquittal or not. Moreover, after trial, the learned trial Judge accepted the case of the plaintiff-appellant and decreed the suit with costs. In the present case, benefit of doubt was given by the High Court while passing the judgment and order dated 22.9.1994 passed in Criminal Appeal No.966/86. Hence in my view, the ratio laid down in the said decision referred above is not applicable to the present case on hand.
11. Learned Advocates for the respondents have drawn my attention to the decision reported in the case of Management of Reserve Bank of India (supra) in which in para 15, a different view is taken by the three Judge Bench of the Apex Court which is reproduced as under:
“...The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period...”
12. The Division Bench of this Court has also decided the above issue in the case of K.D. Desai (supra). Paras 18 and 19 of the said decision is reproduced as under:
“18. The above decisions, therefore, clearly support the stand of the respondents that even where the charges are not proved in the departmental inquiry or in a criminal trial, the competent authority has to consider whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent.
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.”
In my view, the ratio laid down in the above referred two decisions is squarely applicable to the case on hand.
13. It is not in dispute that respondent No.3 has passed order dated 22.3.1996 in light of Rule 152 of the Bombay Civil Services Rules, 1959 giving the petitioner necessary opportunity of being heard. Respondent No.3 has passed an order treating the period of suspension as such and also passed order not to pay the petitioner any additional pay or allowances than the subsistence allowance together with other identical allowances paid to the petitioner during the time he was under suspension. Respondent No.3 has also passed order that as the petitioner was acquitted on being given benefit of doubt and as the same was not the honourable acquittal, the petitioner was not entitled to full pay and allowances for the period of suspension. The petitioner has preferred an appeal before respondent No.1. Respondent No.1 has directed respondent No.3 to hear the petitioner once again and pass order on merit.
14. Thereafter the petitioner made application dated 28.7.1997 to respondent No.3 making out his case that -
[a] The period of suspension should be treated as on duty,
[b] His suspension was wholly unjustified as on the date and time and
[c] He is entitled to full pay and allowance for the period of his suspension.
15. On 2.12.1997, respondent No.3 passed an order during the period of suspension, disentitling the petitioner of any additional pay and allowance while coming to the conclusion that suspension of the petitioner as on the date and time was not wholly unjustified. A true copy of the said order is at Annexure 'E' to the petition. The petitioner has preferred appeal against the said order of respondent No.3 to respondent No.1. On 4.4.1998 respondent No.1 was pleased to decide against the petitioner while confirming the order passed by respondent No.3, true copy of which is marked as Annexure 'F'. I have carefully gone through the same. Learned Advocate for the petitioner has much argued on the point of observations made by the respondents that suspension of the petitioner was continued and prolonged on account of criminal appeal preferred by the petitioner and, therefore, prolongation of suspension is attributable to the petitioner. Except the above observation which appeared to have been made in a very casual manner, rest of the observations made in the said order are just and proper and I find myself in agreement with the same.
16. 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.
17. In the result, this petition is dismissed. The order dated 4.4.1998 at Annexure 'F' passed by the respondent No.1 and the order dated 2.12.1997 at Annexure 'E' passed by respondent No.3 are confirmed. No order as to costs.
[G B SHAH, J.]
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