Gujarat High Court
Govind Bherabhai Patel vs State Of Gujarat on 13 October, 2021
Bench: A.S. Supehia
C/SCA/17083/2019 ORDER DATED: 13/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17083 of 2019
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GOVIND BHERABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
YAGNESHKUMAR S JOSHI(8074) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 13/10/2021
ORAL ORDER
1. Rule. Mr. H.S. Munshaw, learned advocate appearing for
respondent No.2- contesting respondent as well as Mr. Rohan
Shah, learned Assistant Government Pleader waive service of
rule on behalf of respondent No.1 -State respectively.
2. In the present writ petition, the petitioner has challenged
the order dated 12.12.2008 passed by the respondent No.2 -
Deputy District Development Officer, Banaskanatha as well as
the communication dated 11.08.2017. By the order dated
12.12.2008, the petitioner has been terminated from the
services in view of a criminal complaint filed against him under
the provisions of the Prevention of Corruption Act, 1988 (for
short Corruption Act).
3. The petitioner was serving as Talati cum Mantri and was
appointed on 27.02.2004. An F.I.R. being CR No. I- 07 of 2008
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was registered with the Palanpur ACB Police Station,
Banaskantha for the offences under Sections 7, 13(1)(d) and
13 (2) of the Corruption Act, inter-alia alleging that the
petitioner has accepted bribe of Rs.1250/-. By the order dated
12.12.2008, without holding any departmental inquiry, the
petitioner was terminated from service. Thereafter, by the
judgment and order dated 30.08.2016 passed by the Court of
Additional Sessions Judge, Banaskantha in Special (ACB) Case
No. 2 of 2016, the petitioner is acquitted from the aforesaid
offences.
4. Learned advocate Mr. P. P. Majmudar appearing for the
petitioner has submitted that no departmental inquiry was held
against the petitioner and only on the basis of registration of
the FIR, he was terminated from service. He has also
submitted that after the acquittal, the petitioner made a
representation to the respondent authorities to reinstate him in
service, however no order is passed. It is submitted that the
only reason for terminating the petitioner from service was
involvement of the petitioner in a criminal offence and once
the petitioner is acquitted, the respondents have to reinstate
the petitioner in service.
5. In response to the aforesaid submission, learned
advocate Mr. Munshaw appearing for the contesting
respondent has submitted that merely because the petitioner
has been acquitted from the criminal case, he would not be
entitled for the reinstatement, since Criminal Appeal No. 1571
of 2016 is pending before this Court, which is preferred against
the aforesaid acquittal. It is submitted that considering the
serious offence of corruption, it would not be admissible for the
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department to reinstate the petitioner in service and only in
case of satisfactory service, the petitioner has to be placed in
the regular pay scale. He has submitted that the writ petition
may not be entertained.
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 10.09.2008. A bare perusal of
the impugned order dated 12.12.2008 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. 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
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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
30.08.2016 passed in Special (ACB) Case No. 2 of 2016 is the
subject matter of challenge before the Division Bench in
Criminal Appeal No. 1571 of 2016. It is well settled proposition
of law, that the employer may choose to hold the departmental
inquiry after the 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.
9. Under these circumstances, the impugned order
12.12.2008 passed by the respondent No.2 - Deputy District
Development Officer, Banaskanatha, is hereby quashed and
set aside. The respondents are directed to reinstate the
petitioner in service. It will be open for the respondent
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authorities to examine the nature of acquittal of the petitioner,
whether it is premised on benefit of doubt or is an acquittal on
merits. It will also be open for the respondents to hold the
departmental inquiry, if necessary. It is clarified that the grant
of consequential benefits shall be subject to the result of the
orders passed by the respondents authorities. The entire
exercise shall be completed within a period of three months.
10. With the aforesaid directions and observations, this
petition is allowed. Rule is made absolute.
(A. S. SUPEHIA, J)
SALIM/
