Gujarat High Court
Kanubhai Shamalbhai Patel vs State Of Gujarat on 15 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4714 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting No Yes
✔
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KANUBHAI SHAMALBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. BHUVNESH GAHLOT, learned advocate for MR NK
MAJMUDAR(430) for the Petitioner(s) No. 1
MR. AAKASH GUPTA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 15/04/2025
ORAL JUDGMENT
1. Heard Mr. Bhuvnesh Gahlot, learned advocate for Mr. N.K. Majmudar, learned advocate appearing for the petitioner, Mr. Aakash Gupta, learned Assistant Government Pleader appearing for the respondent No.1 - State and Mr. H.S. Munshaw, learned advocate appearing for the respondent nos. 2 Page 1 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined and 3.
2. By way of the present petition, petitioner herein has prayed for the following reliefs:
"15. In the aforesaid facts and circumstances of the case, the petitioner most respectfully prays before this Hon'ble Court that:
(A) Be pleased to admit this petition.
(B) Be pleased to issue an appropriate writ, order or
direction, directing the respondents Authorities to pass an appropriate order under Rule 152 of BCSR, 1959 and Rule 70 of Gujarat Civil Service (Joining Time), 2002 after giving reasonable opportunity of hearing to the petitioner and the respondents may kindly be directed to pass an appropriate order treating the period between 24.11.1993 to 30.4.1999 as period spent on duty and further be pleased to direct the respondents to grant consequential benefits with 12% interest thereon, to the petitioner;
(E) Be pleased to grant interim relief and be pleased to direct the respondents Authorities to pass an appropriate order treating the period between 24.11.1993 to 30.4.1999 as period the petitioner spent on duty;
(F) Any other and further reliefs may be granted in favour of petitioners as this Hon'ble Court may deem fit and proper under the circumstances of the case with cost."
3.1. Briefly stated that, the petitioner came to be appointed as Gramsevak by order dated 02.07.1988. The name of the petitioner was shown at serial no.7 in the said order. The petitioner was placed under suspension by order dated 11.11.1993, on the basis of the Criminal Case being Special Case No. 2 of 1994 under the provision of the Prevention of Page 2 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined Corruption Act. The petitioner was acquitted by the concerned Court vide judgment and order dated 29.01.1998. The said order has attained finality. Upon acquittal by the said judgment and order, the petitioner was reinstated in service by order dated 02.02.1999 and suspension was reviewed.
3.2. As per the relevant Rules, which remained in force at the relevant point of time, i.e. Rule-152 of the Bombay Civil Service Rules, 1959, the decision for regularizing the period of suspension was required to be taken, at the time of revocation of the order of suspension, i.e. the order of reinstatement of the petitioner. However, the order dated 02.02.1999, provides that the reinstatement of the petitioner would be subject to the disciplinary proceedings and further provided that the period of suspension would not be regularized, till the disciplinary proceedings / Criminal Case is pending. The petitioner came to be acquitted in the Criminal Case and no disciplinary proceedings were initiated, when the order dated 02.02.1999 came to be passed. In view of the aforesaid, the period of suspension was to be regularized, at that juncture and it was required to be treated Page 3 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined as period spent on duty, as the petitioner came to be acquitted from the Criminal Case.
3.3. The State challenged the said order of acquittal, by preferring Criminal Appeal No. 227 of 1998, wherein, by judgment and order dated 27.06.2012, which is duly produced at Annexure-D (pg.46), the said Appeal preferred by the State came to be dismissed, wherein, it is recorded in para-10 that, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt and that the State has failed to point out how any material evidence was ignored by the competent Court and in view thereof, it was held that the competent Court was justified in acquitting the petitioner from the charges levelled against the petitioner. 4.1. Mr. Bhuvnesh Gahlot, learned advocate for Mr. N.K. Majmudar, learned advocate appearing for the petitioner submits that the order dated 17.03.2012, wherein, the period of suspension between 24.11.1993 to 30.04.1999 which is 5 years, 5 months and 7 days is erroneously held not to be regularized, wherein, the petitioner herein is acquitted by competent Court by Page 4 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined judgment and order dated 29.01.1998 and the Appeal filed by the State being Criminal Appeal No. 227 of 1998 has also been dismissed by order dated 27.06.2012.
4.2. It is also submitted that, no disciplinary proceedings, worth the name is held against the petitioner. It is submitted that the petitioner is also regularized in service by order dated 02.02.1999 and while regularizing the services of the petitioner, the period of suspension was not regularized. Reliance is placed on pg-18 of the said order.
4.3. It is submitted that, after 02.02.1999, no disciplinary proceedings are initiated against the petitioner herein, which is also not in dispute. In light of the aforesaid, before declining to regularize the period of suspension, the petitioner was required to be granted an opportunity of hearing and only then the impugned order can be passed, wherein, the said period is declined to be regularized.
4.4. Reliance is placed on Rule-152 of the BCSR, 1959 and it is submitted that, the said Rule is analogous to Rule-70 of the Gujarat Civil Services (Joining Time) Rules, 2002 and that the Page 5 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined respondent authorities be directed to regularize the period of suspension, upon granting an opportunity of hearing to the petitioner.
5.1. Mr. H.S. Munshaw, learned advocate appearing for the respondent nos. 2 and 3 authorities relied upon the Affidavit in Reply, duly produced at Page-62 and submitted that the petitioner herein is acquitted upon benefit of doubt and in view thereof, the discretion lies with the authorities, as to whether the period of suspension shall be regularized or not? The aforesaid being undisputed, the question of regularization of the said period does not arise. It is submitted that, the petitioner attained the age of superannuation on 31.03.2013 and continued to make representations but the same was turned down by the respondent authorities, upon examining the merits of the case. 5.2. Mr. Munshaw, learned advocate relied on the CAV judgment passed by the Hon'ble Division Bench in Letters Patent Appeal No. 2783 of 2010 dated 10.06.2016 and submitted that the discretion lies with the authorities as to whether the period of suspension shall be regularized or not, more particularly, when Page 6 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined the acquittal was upon benefit of doubt.
6. Mr. Bhuvnesh Gahlot, learned advocate reiterated the submissions made earlier and submitted that, it is well settled position of law that, if the respondent authority thought it fit not to regularize the period of suspension, petitioner was required to be put to the notice and the same could have been passed upon following the cardinal principles of natural justice, which in the facts of the present case, is absent.
ANALYSIS:
7.1. Having heard the learned advocates appearing for the respective parties, the dispute in question is narrowed down to the regularization of the period of suspension of the petitioner, wherein, the petitioner was suspended for the period from 24.11.1993 to 30.04.1999. It is an admitted fact that no disciplinary proceedings have been undertaken against the petitioner herein. The petitioner has been acquitted by the competent Court, upon benefit of doubt, by judgment dated 29.01.1998 in Special Case No. 2 of 1994 under the provision of the Prevention of Corruption Act, which is duly produced at Page 7 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined Annexure-C. The respondent- State challenged the said judgment and order, by preferring Criminal Appeal No. 227 of 1998, wherein, the Appeal came to be dismissed by judgment dated 27.06.2012 by observing in para-10 as referred above that in absence of any evidence, the competent Court rightly ordered the acquittal qua the petitioner herein.
7.2. This Court has perused the communication dated 02.02.1999, which is duly produced at Annexure-B, wherein, by the said communication, the services of the petitioner came to be reinstated, excluding the period of suspension. The petitioner came to be reinstated in service, however, suspension period for the period from 24.11.1993 to 30.04.1999 was not regularized. The respondent authority declined to regularize the suspension period by communication dated 17.03.2012. Placing reliance on the judgment and order rendered by the competent Court, the aforesaid is not in dispute that the petitioner has been acquitted, upon benefit of doubt, wherein, the discretion lies with the respondent authorities as to whether or not regularize the period of suspension, in light of Rule-152 of the BCSR, 1959, which is Page 8 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined analogous to Rule-70 of the Gujarat Civil Services (Joining Time) Rules, 2002.
7.3. In the opinion of this Court, before declining to consider the case of the petitioner for regularization of suspension, the respondent authorities were required to put the notice to the petitioner herein. The said order declining to regularize the services of the petitioner is being contrary to the well settled principles of natural justice. In the opinion of this Court, the said issue is also not res-integra, wherein, in an identical issue, which was dealt with by the Hon'ble Division Bench in the case of R.R. Jain, Retired Principal Judge City Civil and Sessions v/s. State of Gujarat reported in AIR ONLINE 2022 GUJ 3211, wherein, in para-24 it was held that if the employee concerned is not given notice or opportunity of hearing, such order is unsustainable. Para-24 of the said decision reads thus:
"24. As discussed herein above, that also is in clear breach of principles of natural justice and settled position of law as discussed above. Even otherwise, the investigation in criminal matter was undergoing and which had been stayed by the directions of the Apex Court. On the demise of the employee, the case qua him had abated and therefore, the investigation had not reached to the penultimate stage. Suspension not being a punishment but interim measure to debar the employee to work. Unless there is a specific order of not treating this period as Page 9 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined period spent on duty, on availing opportunity of hearing by the employer, denial of prayer is unjustifiable. It is undoubtful the right of employer to withhold payment of service benefits for suspension period on justifiable grounds. However, the employee concerned if has not been given any notice on opportunity of hearing, as in the present sheer denial cannot be sustained."
7.3.1. In the facts of the present case also, the petitioner herein is not granted an opportunity of hearing, before passing the order dated 17.03.2012 (Annexure-E, pg.51). 7.4. It is also not in dispute that the petitioner herein has made several representations subsequently and prayed that the suspension period of the petitioner be regularized. The said representations dated 10.04.2014, 03.02.2014, etc. filed by the petitioner are duly produced on record. Though, petitioner made representations which are declined by the competent authorities, the same are without granting opportunity of hearing to the petitioner.
8. In view of above, the action of the respondent authorities of not regularizing the period of suspension from 24.11.1993 to 30.04.1999 on duty, is quashed and set aside. The liberty is reserved in favour of the respondent authority to take appropriate steps in accordance with law, in light of the ratio Page 10 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025 NEUTRAL CITATION C/SCA/4714/2016 JUDGMENT DATED: 15/04/2025 undefined laid down by the Hon'ble Division Bench in the case of R.R. Jain, Retired Principal Judge City Civil and Sessions v/s. State of Gujarat reported in AIR ONLINE 2022 GUJ 3211. Mr. Munshaw, learned advocate placed reliance on the judgment dated 10.06.2016 passed in Letters Patent Appeal No. 2783 of 2010, wherein, it is not in dispute that it is always permissible for the respondent authorities to decide as to whether or not regularize the period of suspension under Rule-152 of the BCSR, however, it is incumbent for the respondent authorities to issue notice and grant opportunity of hearing to the employees, which has been given a go-by, by the respondent authorities.
9. For the foregoing reasons, the present Petition stands ALLOWED to the aforesaid extent. The aforesaid exercise be undertaken by the respondent authorities within a period of 8 (eight) weeks from the receipt of the order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 11 of 11 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu Apr 17 2025 Downloaded on : Thu Apr 17 22:31:37 IST 2025