Pandor Mahendrasinh Bharatsinh vs State Of Gujarat
2022 Latest Caselaw 745 Guj

       C/SCA/766/2020                                ORDER DATED: 24/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 766 of 2020

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                        PANDOR MAHENDRASINH BHARATSINH
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR GAUTAM JOSHI, SR. COUNSEL with VYOM H SHAH(9387) for the
Petitioner(s) No. 1
MR KURVEN DESAI, AGP (1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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  CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 24/01/2022

                                 ORAL ORDER

[1]. Heard Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate for the petitioner, Mr. H.S. Munshaw, learned counsel for respondent No.2 and Mr. Kurven Desai, learned AGP for the respondent - State.

[2]. The Challenge in this petition is to the order of dismissal dated 18.7.2018 passed by the respondent - authority.

[3]. Mr. Joshi, learned senior counsel for the petitioner would rely on the CAV judgment passed in similar matter by the coordinate Bench of this Court namely; SCA No.9967 of 2018 dated 31.7.2018. He further requested to pass the similar order in this order. The order dated 18.1.2022 reads as under:

"Whether the petitioner-an Unarmed Head Constable, was entitled to be given show-cause notice before his dismissal from service based on conviction of the petitioner under the provisions of the Prevention of

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Corruption Act, 1988, when the competent authority exercised powers under Rule 3 of Bombay Police (Discipline and Appeal) Rules, 1956 read with Article 311(2)(a) of the Constitution, is the question posed for consideration in the present petition.

2. The petitioner came to be dismissed by order dated 24th February, 2017 passed by the District Superintendent of Police, Dahod-respondent No.3 herein. The Director General of Police-the appellate authority, confirmed the said order in appeal, whereafter the order was taken in revision before respondent No.1. The revisional authority as per order dated 26th March, 2018 upheld the order of dismissal to confirm the order of the appellate authority dated 25th May, 2017.

2.1 The above orders are impugned in the present petition filed under Article 226 of the Constitution. It is prayed further to reinstate the petitioner in service on his original post with all consequential benefits, as if the impugned order of dismissal was never passed.

3. The petitioner was posted at Shahera Police Station, Panchmahal, Godhra, as Unarmed Head Constable. On 26th August, 2009 a case was registered against the petitioner under the provisions of Section 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. The petitioner was initially suspended. He later came to be reinstated on condition that the outcome of the criminal case against him would bind him. The competent criminal court convicted the petitioner as per judgment and order dated 19th December, 2016 and punishment of rigorous imprisonment for five years and fine with default clause was imposed.

3.1 As a result of the conviction recorded against the petitioner, respondent No.3-District Superintendent of Police passed the aforementioned order dated 24th February, 2017 exercising powers under Rule 3 of the Bombay Police (Discipline and Appeal) Rules, 1966. The appeal and the revision application of the petitioner came to be rejected as noted above.

3.2 It appears that in passing the order of dismissal against the petitioner on the ground of conviction, the respondents rested the exercise of their powers on the Bombay Police Rules as well as the relied on Circular dated 05th August, 2003 of the General Administration Department of the State Government. The Superintendent of Police in the order of dismissal noted about the conviction to further observe that the petitioner had acted dishonest by taking bribe. It was stated further that the petitioner committed serious misconduct for which it was not advisable to continue him in service. According to the authority, it was a fit case where the guilty petitioner was liable to be dismissed straightway.

4. Assailing the impugned order, primarily and principally on the ground of non-observance of principles of natural justice that prior notice was not given before passing the order of the dismissal, learned advocate for the

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petitioner Mr.Gautam Joshi pressed into service decision of the Division Bench of this Court in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha [1989 (2) GLR 1301]. Therein a government servant who was convicted by the criminal court and whose appeal against the conviction was pending in the High Court, came to be dismissed on the basis of the conviction. The dismissal did not precede with the issuance of notice. The Court held that failure to give notice vitiated the dismissal.

4.1 On the other hand, learned Assistant Government Pleader Mr.K.M. Antani harped on the decision of this Court in H.N. Rao v. State of Gujarat [2000(3) GLH 358]. On the basis of this decision, it was submitted that the Court in terms held that notice was not necessary before passing order of dismissal upon the event of conviction. It was submitted that the decisions which were relied on by this Court in Ahmadkhan Inayatkhan (supra) were considered and contrary view was taken in H.N. Rao (supra) which is required to be followed.

4.2 The decision of the Supreme Court in Union of India v. V.K. Bhaskar [(1997) 11 SCC 383] was relied on, in which it was held that dismissal from service on the ground of conduct which led to conviction on a criminal charge could be passed, for which pendency of an appeal against conviction was no bar. Learned Assistant Government Pleader proceeded to refer to the decision of the Full Bench of this Court in V.D. Vaghela v. G.C. Raiger, Deputy IPG [1993 (2) GLH 1005] in which the meaning and import of the word 'conviction' was highlighted in the context of clause (a) of Second Proviso to Article 311(2) of the Constitution, to lay down that the conviction is arrived at when recorded by the competent criminal court in the first instance.

5. The proposition of law in Ahmadkhan Inayatkhan (supra) relied on behalf of the petitioner and what is held in H.N. Rao (supra) stand in opposite.

5.1 However, the law has developed and travelled farther, which is to be learnt and gathered from decision of the Apex Court in Union of India v. Sunil Kumar Sarkar [(2001) 3 SCC 414]. It would be worthwhile to advert to analyse.

5.2 In Kiritkumar D. Vyas v. State of Gujarat [1982 (2) GLR 79] this Court held, "mere conviction, therefore cannot be utilised for passing an order of dismissal blindfoldedly without hearing the delinquent on the question of sentence. Needless to add that this would be so even in case where the disciplinary authority exercises powers under Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules.". Kiritkumar D. Vyas (supra) was a Division Bench judgment. Relying on the same in a similar set of facts, learned Single Judge of this Court in Shankabhai Naginbhai Patel being Special Civil Application No.2349 of 1998 set aside the order removing the petitioner of that petition keeping it open for the respondent to

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pass fresh order after giving opportunity.

5.2.1 The Division Bench in Ahmadkhan Inayatkhan (supra) relied on the decision in Kiritkumar D. Vyas (supra) as well as another decision also of this Court in Laxman Waghgimal v. K.N. Sharma, D.S.P., Kutch [1985 GLH (UJ-28) 20]. On the basis of the said decisions, in Ahmadkhan Inayatkhan (supra) it was ruled in paragraph 3 that, "In this decision, this Court held that even though this rule does not contemplate giving of the notice, it must be read into this rule that notice should be given to satisfy the principles of natural justice.".

5.2.2 Since in H.N. Rao (supra), a view was taken that show-cause notice was not necessary, in paragraphs 6 adn 7 of the judgment, the Court referred to the decisions taking contrary view including Shankabhai Naginbhai Ptael (supra) and Kiritkumar D. Vyas (supra) to hold that they did not take the correct view.

5.3 Now proceeding to look at The Supreme Court decision in Sunil Kumar Sarkar (supra), it dealt with the case of a delinquent undergoing sentence of imprisonment. The respondent was found guilty and sentenced under the General Court Martial to rigorous imprisonment for six years under the Army Act. The High Court found fault with the order of dismissal passed by the disciplinary authority on the ground that the same was solely based on conviction suffered by the respondent in the Court Martial proceedings. It was held by the High Court that the disciplinary authority had a predetermined mind when it passed the order of dismissal.

5.3.1 In the context of the aforesaid facts the Supreme Court held, "This is a summary procedure provided to take disciplinary action against a government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a predetermined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show-cause notice and reply to such show-cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, it cannot be said that the disciplinary authority had any predetermined mind when it passed the order of dismissal." (Para 8)

5.4 It is thus considered an essential requirement that before disciplinary authority passed the order of dismissal against the respondent who was convicted of criminal charge to give show-cause notice and to consider the

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reply given to the showcause notice. The Supreme Court held that at that stage the question of having predetermined mind did not arise in such cases. In other words, the Court considered the procedure of giving notice and consider defence of the convict at that stage to be the meaningful exercise. Dispensation of notice before taking action of dismissal against the convicted person which is based on the theory of empty formality was found not tenable in law.

5.5 The authority could not have judged at the stage of taking the action of dismissal that the person to be dismissed was not prejudiced since there was already a conviction recorded against him. The stage to apply the test of prejudice would arrive at a subsequent point of time. The requirement of giving notice and appreciating the reply of the person concerned was not viewed as an empty formality but a condition precedent before passing the order of dismissal under the Rule. The observance of natural justice to this extent was treated as pre-requisite in law.

6. In view of the aforesaid decision in Sunil Kumar Sarkar (supra) and the ratio thereof, the decisions of this Court in H.N. Rao (supra) and those judgments taking the view that prior notice is not necessary, no more stand to be the good law. The ratio in Sunil Kumar Sarka (supra) would prevail and the proposition of law laid down by this Court in Kiritkumar D. Vyas (supra), Shankabhai Naginbhai Patel (supra) as well as in Ahmadkhan Inayatkhan (supra) stand revived to be the law holding the field to be applied.

6.1 In the aforesaid view, the impugned action taken against the petitioner to terminate his service without issuance of notice prior to the order and without considering his reply is illegal. Therefore, order dated 24th February, 2017 passed by respondent No.3-District Superintendent of Police, Dahod as well as further orders dated 25th May, 2017 passed by the Director General of Police, Panchmahals, Godhra Range, Godhra dismissing the appeal and the order of the revisional authority-respondent No.1 Director General and Inspector General of Police further dismissing the Revision Application, cannot sustain and they are herewith set aside.

7. The petitioner shall be entitled to be reinstated in service on his original post with all consequential benefits and back wages. The reinstatement to the petitioner shall be granted as above with back wages within 15 days from the date of receipt of this order and the petitioner shall be paid consequential benefits including the back wages arising to be paid by virtue of this order, within four weeks from the date of his reinstatement.

8. It is clarified that the respondent authorities are not precluded from passing appropriate order afresh in accordance with law after giving opportunity of hearing to the petitioner and considering the reply which may be filed.

       C/SCA/766/2020                                  ORDER DATED: 24/01/2022



         9. The petition stands allowed as above."

[4]      The petitioner shall be entitled to be reinstated in service on his

original post with all consequential benefits and back wages. The reinstatement to the petitioner shall be granted as above with back wages within 15 days from the date of receipt of this order and the petitioner shall be paid consequential benefits including the back wages arising to be paid by virtue of this order, within four weeks from the date of his reinstatement.

[5] It is clarified that the respondent authorities are not precluded from passing appropriate order afresh in accordance with law after giving opportunity of hearing to the petitioner and considering the reply which may be filed. It is also clarified that the petitioner shall not be entitled to back wages from the date of the filing of the petition to the date of the order.

[6]      The petition stands allowed as above.



                                                        (BIREN VAISHNAV, J)
VATSAL S. KOTECHA