1. By way of this petition, the petitioner has prayed for the following reliefs :-
"[a] Your Lordships be pleased to admit this petition.
[b] Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding that the inaction on the part of the respondents to pay the petitioner his legitimate dues for the service is bad in law.
[c] Your Lordships be pleased to issue writ of mandamus or any other writ, direction or order directing the respondents to pay the petitioner his dues for the period of suspension, the increment for and from that period, the next higher pay-scale from 2005, the deemed date of promotion and other legal dues at the earlier in some time bound schedule.
[d] Your Lordships be pleased to grant any other relief/s as may be deeded fit in the facts and circumstances of the case."
2. The facts in brief that are emerging from the record are that while serving as a Junior Clerk in respondent no. 3 Hospital, the Anti Corruption Bureau conducted a raid on 22.05.1993 at respondent no. 3 Hospital. In the said operation it was found that the petitioner was allegedly involved in a case of illegal gratification. Therefore, criminal proceeding was initiated against the petitioner. However, the petitioner was acquitted from the said criminal proceedings by judgment and order dated 05.12.2008 passed by the District Court, Bhuj. The said order of acquittal was confirmed in appeal by this Court by judgment and order dated 13.05.2009 passed in Criminal Appeal No. 421 of 2009. In pursuance of the criminal proceedings against the petitioner, he was placed under suspension with effect from 21.12.1993. However, subsequently, he was reappointed on the post of Junior Clerk with effect from 08.06.1998. After joining the services, the petitioner made an application requesting the respondents to regularize the period of suspension and to pay all the consequential dues. However the same was not granted. Being aggrieved by the aforesaid action of the respondent, the petitioner has preferred the present petition.
3. Mr.
Dave, learned counsel for the petitioner submitted that the petitioner was acquitted in the criminal case lodged against him. He submitted that the fact that he was acquitted by the concerned District Court which was confirmed by this Court in appeal shows that the petitioner had been falsely implicated in the alleged offence. He further submitted that in view of Rule 70(2) of the Gujarat Civil Services (Joining Time, Foreign Services, Deputation out of India, Payment during Suspension, dismissal and Removal) Rules, 2002, the petitioner is entitled for full pay and all allowances. Hence, appropriate directions deserves to be issued to the respondents in that regard.
4. On the other hand, Mr. Shah learned AGP submitted that the competent Court is vested with the discretionary powers in the matters pertaining to regularization of the suspension period. He submitted that even where the charges are not proved the competent authority would be justified in considering whether the charges were not proved on account on account of insufficiency of evidence or benefit of doubt has been given to the delinquent concerned. He, therefore, submitted that the petitioner cannot claim the benefits in question as a matter of right. In support of his submission, he has placed reliance on the decision of this Court in the case of K.D. Desai v. High Court of Gujarat 2009 (3) GLH 631, wherein it has been held as under :-
"7. Having heard the learned counsel for the parties, we find some substance in the submission made by Mr Girish Patel for the petitioner that on a correct interpretation on sub-rule (2) of Rule 152, the question whether the delinquent has been fully exonerated is required to be considered in all the three categories :-
(a) where the delinquent has been dismissed from service and is thereafter reinstated,
(b) where the delinquent is removed from service and is thereafter reinstated, or
(c) where the delinquent is suspended during pendency of the departmental inquiry and upon being exonerated in departmental inquiry is reinstated in service.
The further question whether the suspension of the delinquent was wholly unjustified would obviously arise only in case of suspension and therefore, in a case where the delinquent is suspended from service during pendency of the departmental inquiry and at the conclusion of the inquiry, the delinquent is reinstated in service, obviously in such cases, the competent authority will be required to consider both the questions i.e. whether the delinquent has been fully exonerated in the departmental inquiry and also the question whether the suspension of the delinquent was wholly unjustified. Merely because in cases of such suspension, the competent authority is required to consider the additional question whether the suspension was wholly unjustified, it does not follow that the question whether the delinquent has been fully exonerated is not required to be considered."
5. Heard learned counsel for the respective parties. It is true that in the criminal proceedings initiated against the petitioner, the petitioner came to be acquitted of all the charges levelled against him. The said order of acquittal passed by the concerned trial Court was also confirmed by this Court. However, on perusal of the impugned judgment and order of acquittal passed by the learned Special Judge, Fast Track Court, Bhuj - Kutch goes to show that the petitioner had been granted acquittal by granting him 'benefit of doubt'. The criminal Court concerned has not discharged the petitioner of all the charges levelled against him, but has acquitted the petitioner on account of insufficiency of evidence against him. In other words, by granting him the 'benefit of doubt', the judgment passed in criminal case cannot be made the basis for appointment in service. It is required to be examined as to on what basis the Court concerned has passed the order of acquittal. In the present case, evidently, the petitioner has been acquitted of all the charges on account of insufficiency of evidence or by granting him 'benefit of doubt'. The petitioner has not been discharged of all the charges. Hence, mere acquittal in criminal case will not give a person the right to claim regularization in service. In such circumstances, the disciplinary authority is vested with the powers to consider whether the delinquent concerned has been granted clear acquittal or has been acquitted for insufficiency of evidence or by granting benefit of doubt. After examining such aspect, the disciplinary authority is vested with the power to impose appropriate punishment which he deems fit under the facts and circumstances of the case.
6. In the present case, the disciplinary authority found it appropriate not to regularize the suspension period and to grant him the consequential benefit. In my opinion, the conclusion arrived at by the authority concerned is appropriate, just and legal and I find no reasons to disturb the same.
7. In view of the above, the petition is dismissed summarily.
[K.S.
JHAVERI, J.] /phalguni/ Top