Mansukhbhai Bhalabhai Oza vs State Of Gujarat
2021 Latest Caselaw 13950 Guj

    C/SCA/11569/2021                                CAV JUDGMENT DATED: 14/09/2021



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11569 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                             Sd/-
================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

================================================================ MANSUKHBHAI BHALABHAI OZA Versus STATE OF GUJARAT ================================================================ Appearance:

MR. JIT P PATEL(6994) for the Petitioner(s) No. 1

MR SAHIL B. TRIVEDI, AGP(99) for the Respondent(s) No. 1 ================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

Date : 14/09/2021 CAV JUDGMENT

1. The present writ petition has been filed by the petitioner seeking quashing and setting aside the order passed by the respondent No.2 dated 14.06.2019 imposing 100% cut in pension.

2. The petitioner was serving as a Talati-cum- Mantri and he retired on attending superannuation on 30.06.2014. He was convicted for the offences under sections 7, 13(1)(d) of the Prevention of

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Corruption Act, 1988 vide judgemnt and order dated 29.09.2018 passed in Special ACB Case No.1 of 2009, by the Special Judge, Patan. He has preferred Criminal Appeal No.1522 of 2018 before this Court and by the order dated 10.10.2018, this Court has admitted the appeal and has suspended the sentence.

3. A show cause notice dated 15.12.2018 was issued to the petitioner calling upon him to show cause as to why the pension of the petitioner may not be withdrawn. After hearing the petitioner personally, vide impugned order dated 14.06.2019, the respondent-State, while exercising powers under Rules 23 and 24 of the Gujarat Civil Services (Pension) Rules, 2002, has imposed 100% cut in pension.

4. In support of his case, learned Advocate Mr.J.P.Patel appearing for the petitioner has placed reliance on Rule 24 of Gujarat Civil Services (Pension) Rules, 2002 and the judgement dated 09.01.2017 rendered in Special Civil Application No.8452 of 2015 of the Co-ordinate Bench rendered in the case of Amanullakhan Bhrekhan Pathan vs State of Gujarat. He has submitted that the Coordinate Bench has set aside the order imposing cut in pension after threadbare examination of Rule 24 of the Pension Rules, 2002.

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5.     Since,         it     is    the      specific           case         of       the
petitioner            that    his     case         is     covered           by       the

aforementioned judgement, this Court has perused the same. With all humility, in my considered opinion, the view expressed by the Coordinate Bench, while interpreting Rule 24 of the Gujarat Civil Services (Pension) Rules requires re- examination.

6. After incorporating the provisions or Rule 24 of the Pension Rules, 2002, the Coordinate bench has observed thus:

"15 In the opinion of this Court, the above notice appears to be misconceived. The judgment and order referred to in the show cause notice has been challenged in the Appeal before the High Court and the judgment was rendered on March 30, 2013. The order of suspension of sentence has been made on 25thApril, 2013. In the opinion of this Court, when the Appellate Authority has already suspended the sentence,it is not the case where the trial Court has convicted the person and no stay has been granted. Instead this is a case where the petitioner has been convicted and the State has preferred an Appeal & admittedly, the departmental proceedings have not been initiated as yet.

18 In the instant case, the appeal is pending which is a continuation of the trial and therefore, when the judicial proceedings are already pending and the order of suspension of sentence is also passed by this Court, invoking powers under Rule 24 of the Rules by taking recourse to the Circular dated 1st October, 2009 by the respondent-authority is surely not sustainable.

19 Even perusal of the impugned order reflects that the respondent has not given cogent and clear reasonings to pass the impugned order. After 31st July, 2008, no chargesheet has been issued within four years as is provided under the Rules and after about seven years,

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such notice came to be issued, when the Appellate Court suspended the sentence. Since there are no departmental proceedings initiated by the State, in absence of either the chargesheet or initiation of any proceedings as provided under the Disciplinary and Appeal Rules, the only aspect the department can rely upon is the conviction in the judicial proceedings. The judicial proceedings also would include the pending Appeal which is a continuation of trial, where the Court had suspended the order of sentence and that could not have been ignored.

At the cost of reiteration, it has been stated that departmental proceedings have been instituted within four years, the petitioner's superannuation and order of sentence having been stayed, there is nothing at present with the department to act upon such direction of 100% cut in the pension. Assuming that the respondent - authority at the time of retirement of the petitioner also made a note of fact that the criminal proceedings are pending and on its outcome, it would have right to initiate the departmental proceedings within four years of date of superannuation, the right is permitted but the departmental proceedings have not been instituted for the event which took place within four years such institution, as per sub rule (5) of Rule 24. Further also it is not the case that the departmental proceedings have been instituted as the same get institution from the date on which the chargesheet has been issued to the Government employee or pensioner."

7. Since, the issue pertains to interpretation of Rule s23 and 24 of the Gujarat Civil services (Pension) Rules, 2002, I may incorporate the same.

"RULE 23 : Pension subject to good conduct

(1) Further good conduct shall be an implied condition of every grant of pension. Government may, by order in writing, withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:

Provided that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum pension as fixed by Government.

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(2) Where a pensioner is convicted of a serious crime by a Court of law, action under sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction.

(3) In a case not falling under sub-rule (2), if Government considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under sub-rule (1), follow the procedure as laid down in Rules 9 and 10 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971 for imposing a major penalty.

(4) The Gujarat Public Service Commission shall be consulted before an order under sub-rule (1) is passed in respect of officers holding posts within their purview.

Explanation. In this rule :

(a) the expression 'serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (Act, XIX of 1923),

(b) the expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Sec. 5 of the Official Secrets Act, 1923 (Act, XIX of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State.

RULE 24 : Right of Government to withhold or withdraw pension

(1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:

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Provided that the Gujarat Public Service Commission shall be consulted before any final order is passed in respect of officers holding posts within their purview :

Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government.

(2) (a) The departmental proceedings referred to in sub- rule (1), if instituted while the Government employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government employee had continued in service.

(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment.

(i) shall not be instituted save with the sanction of the Governor,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government employee during his service.

(3) In case of a Government employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rules 144 to 146 shall be sanctioned.

(4) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of sub-rule (1) of this rule, ordinarily be made at a

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rate exceeding one-third of the pension admissible on the date of retirement of a Government employee.

(5) For the purpose of this rule :

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government employee or pensioner, or if the Government employee has been placed under suspension from an earlier date, on 1 ["such date or if any decision is taken by the Competent Authority for either of it, and"]

(b) judicial proceedings shall be deemed to be instituted

(i) in case of criminal proceedings, on the date on which the complaint 2 ["registered or any decision is taken to register the complaint by the Competent Authority"] or report is made by a police officer of which the Magistrate takes cognizance, and

(ii) in case of civil proceedings, on the date of presenting the plaint in the Court 2 ["or any decision is taken by the Competent Authority to initiate civil proceedings"].

8. From the observations of the Coordinate Bench it can be noticed that the provisions of Rule 23 of the Pension Rules, 2002 are not considered, and the judgment proceeds on the interpretation of Rule 24. Rule 23 mandates "good conduct" an implied condition of every grant of pension. It is stipulated that the pension can be withheld by the Government, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Rule 24 empowers the State Government to withhold part or whole of pension, if a

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pensioner is found to be guilty of grave misconduct or negligence in any departmental or judicial proceedings. Sub-rule 5(a)(b) clarifies with regard to the institution of "departmental proceedings" and "judicial proceedings", i.e on issuance of statement of charges for departmental proceedings and for criminal proceedings on the date of registration of complaint or any decision is taken to register the complaint by the Competent Authority or cognizance taken by the Magistrate on police report, respectively. Sub-Rule 2(b)(i)(ii) bars initiation of the departmental proceedings without sanction of the Governor and shall not be in respect of any event which took place more than four years before such institution.

9. The Coordinate Bench has observed that since the sentence is suspended and the criminal appeal against the same is pending the same can be said to be continuation of judicial proceedings, hence the invocation of power under Rule 24 of the Rules is not sustainable. In this regard, I may refer to the judgement of the Full Bench of this Court in the case of P.D.Waghela and Ors. vs. G.C.Raiger, Deputy I.G.P. 1993 (2) G.L.H. 1005. The Full Bench was called upon to decide the following question:

"1. The question, we, as a Full Bench, are being called upon to decide, turns on the interpretation that should be put on the expression 'conviction', found in Clause

(a) of the second proviso to Clause (2) of Article 311 of the Constitution of India. The question is: Would the

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'conviction' at the hands of a competent Criminal Court in the first instance suffice, or should the 'conviction' await confirmation at the hands of a final or ultimate competent Criminal Court ? The placement of Clause (a) of the second proviso to Clause (2) of Article 311 will stand better appreciated if the entire Article 311, as it stands in the Statute Book".

After analyses of the provisions of Article 311 and various judgements, the Full Bench has held thus:

21. Accordingly, we express our opinion on the question coming up for our consideration as follows:

The conviction spoken to in Clause (a) of the second proviso to Clause (2) of Article 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position and action, taken on the basis of such conviction, need not conform to Clause (2) of Article 311, since by the express terms of the second proviso thereto, Clause (2) of Article 311 is dispensed with.

10. Thus, the Full Bench has held that the conviction of an employee which forms a basis of dismissal, removal or reduction in rank, could be one recorded by a competent criminal court in the first instance and the preferring of an appeal or revision against such conviction and pendency of the same will not alter the position.

11. With regard to the observations made by the Coordinate Bench of suspending the sentence during the pendency of criminal appeal filed by a Government servant against his conviction, I may with profit refer to the decision rendered in the case of Government of Andhra Pradesh vs. B.

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Jagjeevan Rao, 2014 (13) S.C.C. 239, the Supreme Court, while examining the dismissal order passed pending Criminal Appeal and suspension of sentence, has held thus:

"6 It is not in dispute that the respondent was convicted by the Principal Special Judge for SPE & ACB Cases for the offences punishable under the Act. The High Court, as the order would reflect, had only directed suspension of sentence. There was no order of stay of conviction. It is well settled in law that there is a distinction between suspension of sentence and stay of conviction. This has been succinctly stated in Rama Narang v. Ramesh Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] : (S. Nagoor Meera case [Director of Collegiate Education (Admn.) v. S. Nagoor Meera, (1995) 3 SCC 377 : 1995 SCC (L&S) 686 : (1995) 29 ATC 574] , SCC pp. 380-81, para 7)

"7......... 15......"Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order referred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities. ...

16. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable

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it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? ... If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect."

7. A similar view has been expressed in K.C. Sareen Vs. CBI, Chandigarh (supra).

8 The question, thus, emerges whether an inquiry should have been held under Article 311(2) of the Constitution, regard being had to the scheme of Rule 25(1) of the Rules. In this context, we would like to extract a passage from the pronouncement of the Constitution Bench in Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 In the said case, the officer concerned was convicted under Section 332 of the IPC and the learned Magistrate had released him on probation under the Probation of Offenders Act. Considering the said factual position the Constitution Bench opined thus:

"153. The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the Respondent's conviction under section 332 of the Indian Penal Code and the nature of the offence committed which led the disciplinary authority to the conclusion that the further retention of the Respondent in the public service was undesirable. The mention of section 332 of the Indian Penal Code in the said order itself shows that Respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public servant or in consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The Respondent had gone to the office of his superior officer and had hit him on the head

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with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the offence committed would have been the more serious one under section 333. The Respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his retention in public service was undesirable. In fact, the conduct of the Respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on probation. We accordingly hold that clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the Respondent ."

9. Having stated the principle, we shall now advert to the Rule position. Rule 25(1) being relevant is reproduced below:

"Special Procedure in Certain Cases:

Notwithstanding anything contained in Rule 20 to Rule 24

(1) where penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit."

The requirement of the said Rule, as it seems, is that the conduct of Government servant that had led to conviction on the criminal charge and the circumstances of the case are to be considered by the disciplinary authority before imposing the appropriate punishment.

10. In the case at hand, the respondent was convicted under Section 7 and 13(1)(d) read with Section 13(2) of the Act and sentenced to one year rigorous imprisonment. In almost similar case in S. Nagoor Meera (supra), a two- Judge Bench, after referring to the conceptual mandate of Article 311(2) and after referring to the dictum in Shankar Dass Vs. Union of India, (1985) 2 SCC 358 has expressed thus:

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"10 What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.

11. The Tribunal has given yet another reason for quashing the show- cause notice, viz., that whereas the conviction of the criminal court was on 4- 2- 1991, the impugned show- cause notice was issued only on 27- 10- 1993. The appellant has explained that though the respondent (sic appellant) had come to know the conviction soon after the judgment of the criminal court, of the order of the High Court suspending the sentence. It is stated that after obtaining legal advice, the show- cause notice was issued. In our opinion, the delay, if it can be called one, in initiating the proceedings has been properly explained - and in any event, the delay is not such as to vitiate the action taken. "

11. Regard being had to the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service. Therefore, the High Court has clearly erred in its interpretation of Rule 25(1) and further committed illegality in not keeping in mind the distinction between stay of conviction and suspension of sentence as envisaged under Section 389(1) of the Code."

12. Thus, the Apex Court has held that what is really relevant is the conduct of the Government servant which has led to his conviction on a criminal charge and until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. The Apex Court has set aside the order of

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High Court while distinguishing 'stay of conviction' and 'suspension of sentence'. In the present case and in the case before the Coordinate Bench, the employee has been convicted for serious offence under the Prevention of Corruption Act. The only distinguishing factor before the Apex Court and in the writ petitions before this Court, is that the employees were in service, whereas in the present case they have retired and their pension is sought to be withheld in view of their conviction in criminal offence.

13. The Coordinate Bench has held that since the sentence is suspended in appeal, the provisions of Rule 24 withholding pension cannot be invoked. Though, I agree with the view expressed by the Coordinate Bench holding that a criminal appeal can be said to continuation of the judicial proceedings, but the same will have a different impact in service jurisprudence wherein an employee is convicted of a serious offence and any departmental action is taken against him during the pendency of an appeal though his sentence is suspended. Thus, as per the decision of the Full Bench and the Apex Court, the conviction of a Government employee by the Criminal Court of first instance, in a serious offence will have an impact on his service including retirement benefits and the suspension of sentence in criminal appeal will have no significance.

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14. The Coordinate Bench has also held that "assuming that the respondent-authority at the time of retirement of the petitioner also made a note of fact that the criminal proceedings are pending and on its outcome, it would have right to initiate the departmental proceedings within four years of date of superannuation, the right is permitted but the departmental proceedings have not been instituted for the event which took place within four years such institution, as per sub-rule (5) of Rule 24. Further also, it is not the case that the departmental proceedings have been instituted as the same get institution from the date on which the charge-sheet has been issued to the Government employee or pensioner."

15. In my considered opinion, the aforenoted observations made by the Coordinate Bench are not in confirmation with the language of Rules 23 and

24. The limitation of four years prescribed under Rule 24(2)(b)(ii) will not apply in the "judicial proceedings", but in "departmental proceedings", since Rule 24(5)(a) clarifies that the departmental proceedings shall be deemed to have been instituted on the date of issuance of "statement of charges", whereas Rule 24(5)(b)(i) prescribes that in the case of criminal proceedings, on the date on which "complaint" or report is made to the police officer. In the case

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before the Coordinate Bench and in the present case, no statement of charges is framed. No departmental charge-sheet is issued, hence it cannot be said that any disciplinary proceedings can be said to have been "instituted". The drawing of a charge-sheet is the condition precedent for institution of departmental proceedings. Rule 9(3) of Gujarat (Discipline and Appeal) Rules, 1971 mandates of issuance of 'statement of imputations and distinct article of charges' to the delinquent for initiation of departmental proceedings. The power under Rule 24(5) of the Pension Rules, 2002, cannot be exercised in isolation to that of the provisions of Rule 23(2) of said Rules, which stipulates that "the action to be taken in view of conviction of an employee", whereas Rule 23(3) stipulates of "holding a departmental inquiry as per the procedure prescribed under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971". Thus, for proving a misconduct by holding a departmental inquiry the limitation of four years prescribed under Rule 24(2)(b) of the Pension Rules, 2002 will get attracted and the procedure prescribed under Rules 9 and 10 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971, have to be followed. It is well settled proposition of law, that departmental proceedings can be said to have been initiated when a charge-sheet is issued. In cases where the Government servant is convicted of offence, the provisions of Rule 14 of

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the Discipline and Appeal Rules, 1917 will apply. Rule 14 does not stipulate of providing any opportunity of hearing to the government employee if he is convicted of an offence. I may clarify, the said proposition by placing reliance on the Constitution Bench judgement of the Apex Court in the case of Union of India vs Tulisram Patel, 1985 (3) S.C.C. 398 and also by placing reliance on the Rule 14 of Gujarat Civil Services(Discipline and Appeal)Rule, 1971.

16. I may incorporate the observations made by the Constitution Bench in the case of Tulisram Patel(supra). While examining the provisions of second proviso to section 311(2) of Constitution of India, the Apex Court has held thus:

"The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Art. 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim "expressum facit cessare tacitum" ("when there is express mention of certain things, then anything not mentioned is excluded") applies to the case. As pointed out by this court in B. Shankara Rao Badami V/s. State of Mysore, this well-known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that proviso becomes applicable"

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In the present case, clause (2) of Art. 311 is expressly excluded by the opening words of the second proviso and particularly its keywords "this clause shall not apply". As pointed out above, clause (2) of Art. 3 II embodies in express words the audi alteram partem rule. This principle of natural justice having been expressly excluded by a constitutional provision, namely, the second proviso to clause (2) of Art. 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the constitutional provision has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Art. 14. This is, however, the only scope which Art. 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and clause (2) of Art. 311 excluded. Art. 14 will step in to take the place of clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution- makers who inserted it in Art. 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply. 102 In this connection, it must be remembered that a government servant is not wholly without any opportunity. Rules made under the proviso to Art. 309 or under Acts referable to that article generally provide for a right of appeal except in those cases where the order of dismissal, removal or reduction in rank is passed by the President or the governor of a State because they being the highest constitutional functionaries, there can be no higher authority to which an appeal can lie from an order passed by one of them. Thus, where the second proviso applies, though there is no prior opportunity to a government serve to defend himself against the charges made against him, he has the opportunity to show in an appeal filed by him that the charges made against him are not true. This would be a sufficient compliance with the requirements of natural justice. In Maneka Gandhi case and in Liberty Oil Mills V/s. Union of India the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy than a right of making a representation.

127 Not much remains to be said about clause (a) of the second proviso to Art. 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a

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government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the Judgement of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still 'wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass V/s. Union of India this court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."

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17. At this stage, it would be essential to extract the provision of Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The same read as under:

"RULE 14 : Special procedure in certain cases

(1) Nothing contained in rules 8 and 9 shall apply-

(i) Where a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that It Is not reasonably practicable to follow the procedure prescribed in the said rules, or

(iii) where the Government is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure.

(2) In cases to which the provisions of sub-rule ( 1 ) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it deems fit:

Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.

18. The provisions of Rule 14 of the Discipline and Appeal Rules, 1971 are analogous to provision of Article 311(2)(a)(b)(c) of the Constitution of India. The said provisions govern imposition of penalties specified under Rule 6. The Constitution Bench of the Apex Court in the case of Tulsiram

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Patel (supra) has held that "It is in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Art. 311(2) or from giving any kind of opportunity to the concerned government servant". It is also directed by the Constitution Bench that where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be.

For that purpose, it will have to peruse the Judgement of the criminal court and consider all the facts and circumstances ex parte and by itself. Thus, there is no need of issuance of show cause notice to the government servant or provide any opportunity of hearing to him before imposing punishments of dismissal, removal or reduction in rank if he is convicted of serious offence. It is held that where the second proviso applies, though there is no prior opportunity to a government servant to defend himself against the charges made against him, he has the opportunity to question such action in an appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case an further it is also held that if he fails in the departmental remedies and still 'wants to pursue the matter, he can

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invoke the court's power of judicial review subject to the court permitting it. filed by him that the charges made against him are not true. On the same analogy, if a pensioner is convicted of serious offence; Rule 23(2) of the Gujarat Civil Services (Pension) Rules, 2002, does not stipulate any issuance of show cause notice to him or her calling upon to show cause as to why his or her pension should not be withdrawn. The only requirement is the consultation with the Gujarat Public Service Commission under Rule 23(4) of the Gujarat Civil Services (Pension) Rules, 2002, that too only for those posts which come under their purview. In case of a pensioner who is convicted of a serious offence, the provisions of Rule 23(2) of the GCSR,Pension Rules, 2002, only require about taking action under sub-rule 1 in "light of the judgement of the court relating to such conviction". There is no limitation prescribed under the Rules for taking action against an employee who is convicted for serious offence by the Criminal Court of first instance. The Rule also does not demand of issuance of show cause notice. Hence, if there is no requirement of issuance of show cause notice under the Rules, the question which arises for consideration is whether such 'notice' which is issued by the state government to the pensioner seeking his explanation for withdrawal of pension can be termed as "initiation of departmental proceedings"? Thus, the view expressed by the

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coordinate bench requires a re-look. It is now a well-settled principle of interpretation of statutes that the court must give effect to the purport and object of the Act or statutory Rules. The intention of the Rule 23 and 24 is that an government servant who has been convicted of serious offence cannot be conferred with benefit of pension, as conferment of such benefit is subject to his or her good conduct.

19. Since, the judicial discipline and propriety demands that in case of difference of opinion with the view expressed by the Coordinate bench, the single judge has to refer the matter to Division bench, in view of the provision of Rule 5(1) of High Court of Gujarat Rules. The preceding issues as discussed have wide ramifications; hence, I intend to refer the matter to the Division Bench on the following questions of law.

(a) Whether "suspension of sentence" in a criminal appeal filed against the conviction in a serious offence ordered by the Criminal Court of first instance can bar the disciplinary authority in exercising powers under the provisions of Rule 23 and 24 of Gujarat Civil Services(pension)Rules, 2002, against a pensioner and the disciplinary authority has to wait for the outcome of appeal or finality of conviction?

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(b) Whether the disciplinary authority in absence of any stipulation in Rule 23(2) of Gujarat Civil Services(pension)Rules, 2002, is required to issue show cause notice to the pensioner seeking his or her explanation for withdrawal of pension ,if he or she is convicted by the Criminal Court of first instance in a serious offence?

(c) If question(b) is answered in affirmative then "Whether the "issuance of such show cause notice", to the pensioner pursuant to his or her conviction by the Criminal Court of first instance can to be said to an institution of "departmental proceedings" under Rule 24(5) of the Gujarat Civil Services(pension)Rules, 2002, and the same would attract the bar of four years as envisaged under Rule 24(b) of Gujarat Civil Services(pension)Rules, 2002.

(d) Whether any restriction or a limitation period can be prescribed for the disciplinary authority for taking any action against the pensioner under Rule 23(2) and Rule 24(1) of Gujarat Civil Services(pension)Rules, 2002 after he or she is convicted of a serious offence by the Criminal Court of first instance?

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20. The Registry is directed to place the matter before the Hon'ble the Acting Chief Justice for taking appropriate decision.

                                                       Sd/-     .
                                               (A. S. SUPEHIA, J)
Bhavesh-[PPS]*