NEUTRAL CITATION
C/SCA/6374/2021 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6374 of 2021
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DANUBHAI BHANKUBHAI BORICHA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR KARAN SHAH(12750) for the Petitioner(s) No. 1
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1
MS NIRALI SARDA, AGP for Respondent State
for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 04/09/2023
ORAL ORDER
1. Heard learned Advocate Mr.Jit Patel for the petitioner, learned AGP Ms.Nirali Sarda for respondent State and learned Advocate H. S. Munshaw for respondent No.2.
2. By way of this petition, the petitioner has sought for the following prayers:-
"13(A) Your Lordships may be pleased to admit, allow this petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the termination orders at Annexure A and reinstate him with all consequential benefits and salary from his date of appointment i.e. 29.9.2012.
Page 1 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023 NEUTRAL CITATION C/SCA/6374/2021 ORDER DATED: 04/09/2023 undefined (C) During the pendency of this petition for admission and
final hearing, through an Ex-parte Ad interim relief, Your Lordships may be pleased to stay the termination orders at Annexure A and order his reinstatement.
(D) Your Lordships may be pleased to allow this petition and order the respondents to pay all his salary since the date of his termination i.e. 29.9.2012 until reinstatement."
3. Facts in brief being that the petitioner, who had been originally appointed as a Gram Sevak [Sahayak] (Class-III) under Khetiwadi Gram Sevak Talim and Mulakat (Training and Visit) Scheme on 29.9.2012 had been terminated from service vide order dated 18.12.2014 on account of an FIR being filed against him. It would appear that while the petitioner had not challenged the termination order at the relevant point of time and whereas the petitioner has preferred the present petition inter alia praying for setting aside the order of termination, yet it would appear that in the interregnum the learned Trial Court, where the trial with regard to the FIR was conducted, vide judgement dated 10.4.2023 had acquitted the present petitioner.
4. Learned Advocate Mr.Jit Patel, relying upon the decision of the learned Coordinate Bench of this Court in Special Civil Application No.3084 of 2021, would submit that since the basis of termination was the FIR filed against the present petitioner, upon acquittal of the petitioner in the said proceedings, reinstatement with all consequential benefits should be directed.
5. The submissions of the learned Advocate Mr.Patel for the petitioner have been vehemently opposed by learned Advocate Mr.H. S. Munshaw, who relying upon the very same decision relied upon by the learned Advocate for the petitioner would submit that while directing reinstatement of the petitioner, learned Coordinate Bench had permitted Page 2 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023 NEUTRAL CITATION C/SCA/6374/2021 ORDER DATED: 04/09/2023 undefined respondents therein to hold a departmental inquiry and whereas learned Coordinate Bench had further observed that grant of all consequential benefits would be subject to result of orders passed by the respondent authorities. Learned Advocate Mr.Munshaw would further submit that as such the respondents therein had challenged the decision passed by the learned Coordinate Bench by preferring Letters Patent Appeal No.879 of 2023 and whereas Hon'ble Division Bench of this Court vide order dated 14.7.2023 had not interfered with the decision by the learned Coordinate Bench.
6. Considering the submissions made by the learned Advocates for the parties, more particularly since there is no dispute on the fact that the facts of the case before the learned Coordinate Bench and the facts of the present case are also similar, in the considered opinion of this Court, the present petition also could be disposed of on the same lines as decided by the learned Coordinate Bench.
7. At this stage, this Court deems it appropriate to reproduce the observations of learned Coordinate Bench while allowing the said petition. Paragraphs No.6, 7, and 8 of the said decision being relevant for the present purpose are reproduced herein below for benefits :-
"6. I have heard the learned advocates appearing for the respective parties. The facts narrated hereinabove are not in dispute. The petitioner was appointed as Talati-cum-Mantri and he was terminated from service in view of the registration of FIR under the Corruption Act on 26.02.2009. A bare perusal of the impugned order dated 05.03.2009 reflects that only on the registration of the FIR, the authority has terminated him from service. Thus, the respondents have chosen not to initiate any departmental inquiry and only because of his involvement in the criminal offence, he has been terminated from service. At this stage, it would be appropriate to refer to the decision of the Supreme Court in the case of State Bank of India and another Vs. Page 3 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023 NEUTRAL CITATION C/SCA/6374/2021 ORDER DATED: 04/09/2023 undefined Mohammed Abdul Rahim reported in (2013) 11 SCC 67, wherein the Supreme Court has observed thus, particularly in Paragraph No.8, which reads as under:-
"8. Before delving into the contentious issues arising from the arguments advanced, the issue with regard to the applicability of the provisions of the Sastry Award may be dealt with in the first instance. According to us, the said provisions do not have any special significance inasmuch as there can be no doubt on the proposition that on the very same facts that give rise to a criminal offence it is always open to the employer to initiate a departmental proceeding which option the employer may or may not exercise. In the event the employer chooses to initiate a departmental proceeding, it would be open for such an employer to take disciplinary action against the erring employee if the charged levelled are found to be substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that standard of proof in a criminal case and a departmental proceeding is different. However, in a case where the employer chooses not to initiate a departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same, i.e., in case of a reversal. The provisions of the Sastry Award, relied upon on behalf of the respondent, therefore, do not in any manner alter the basic principles surrounding the initiation of a criminal action and a departmental enquiry on the same set of facts and he consequences thereof."
7. Thus, the Supreme Court has observed that in the case, where the employer chooses not to initiate departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same, i.e., in case of a reversal.
8. In the present case, it is also not in dispute that the acquittal of the petitioner vide judgment and order dated 19.11.2019 passed in Special (ACB) Case No. 2 of 2009 is the subject matter of challenge before the Division Bench in Criminal Appeal No. 13411 of 2021. It is well settled proposition of law, that the employer may choose to hold the departmental inquiry after the Page 4 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023 NEUTRAL CITATION C/SCA/6374/2021 ORDER DATED: 04/09/2023 undefined acquittal or the employer may also choose to reinstate by examining the nature of the offence. Mere pendency of criminal appeal cannot be the ground of reinstating the petitioner."
8. Considering the law laid down by the learned Coordinate Bench, more particularly relying upon the decision of the Hon'ble Supreme Court, whereby it is inter alia observed that when the employer chooses not to initiate a departmental proceeding and acts only on the basis of the registration of an FIR or initiation of a criminal proceeding, then the employer would be bound by the final verdict in the same case, in case of a reversal, would also be applicable in the facts of this case on all force.
9. Having regard to the same, more particularly since it clearly appears that the Division Bench of this Court has also not interfered with the decision of the learned Coordinate Bench, the impugned decision dated 18.12.2014 by the respondent No.2 herein, terminating the services of the present petitioner is hereby quashed and set aside. It is clarified that it would be open for the respondents to examine the nature of acquittal and acquittal as to whether the same was on the basis of benefit of doubt or it was a clean acquittal. It is clarified that it would be open for the respondents to hold departmental inquiry, if deemed appropriate and whereas it is clarified that such holding of departmental inquiry and completion thereof, more particularly subject to the cooperation of the petitioner would be within a period of six months from the date of receipt of the order of this Court. It is further clarified that grant of consequential benefits upon setting aside the order of termination would be subject to final decision of the departmental proceedings, which may be held against the petitioner. In case the respondents decide not to hold any disciplinary/departmental proceedings against the petitioner, then it would be open for the respondents to take appropriate decision as Page 5 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023 NEUTRAL CITATION C/SCA/6374/2021 ORDER DATED: 04/09/2023 undefined regards payment of backwages and other consequential benefits in accordance with law, albeit after giving an appropriate opportunity of hearing to the petitioner. It is further clarified that reinstatemnet of the petitioner shall be on such position where the petitioner would have been entitled to, if the termination order had not been passed.
10. With the above observations and directions, the present petition is disposed of as allowed.
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 6 of 6 Downloaded on : Sat Sep 16 15:57:08 IST 2023