Gujarat High Court

Valjibhai Mithabhai Solanki vs State Of Gujarat on 31 March, 2022

Bench: Biren Vaishnav

    C/SCA/4014/2021                             JUDGMENT DATED: 31/03/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4014 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      VALJIBHAI MITHABHAI SOLANKI
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 31/03/2022

                           ORAL JUDGMENT

1. Heard Mr.R.D.Kinariwala learned advocate for the

petitioner.

2. By way of this petition under Article 226 of the

Constitution of India, the challenge is to the letter

dated 03.02.2021 issued by the respondent no.3

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

herein for recovery of an amount of Rs.2,11,765.74

from the petitioner for the period from 23.11.2005 to

17.05.2013.

3. Facts in brief would indicate that the petitioner was

engaged as a helper with the respondent nos.2 and 3

electricity company. Since a complaint being C.R.

No.I-7 of 2005 against the present petitioner came to

be lodged before the ACB Police Station, Amreli,

under Sections 7, 15 and 13(2) of Prevention of

Corruption Act, the petitioner was suspended and

transferred on 23.12.2005. The Special (ACB) Case

No.8 of 2006 was heard by the learned Special Judge,

Amreli, and vide judgment and order dated

25.04.2016, the petitioner was acquitted on being

given the benefit of doubt. The State went in appeal

and the appeal of the State was dismissed by a

judgment dated 06.10.2016. On the basis of the

judgments of the Criminal Court, the respondent-

company on 28.12.2018 passed an order regularizing

the period of suspension of the petitioner,

however, without actual financial benefits

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

in accordance with the Regulation 241(2) of the

service regulations of the company. It appears that

thereafter on 01.01.2019, the company modifying the

order and amending the order of 20.12.2018,

inasmuch as, the earlier order which did not grant

actual financial benefit was modified to read as

extending actual financial benefit of regularization of

suspension.

4. On 22.12.2020, the Company unilaterally recalled the

order of 01.01.2019 on the basis of Chapter 8 of the

Establishment Manual opining that on assessment

and reading of the judgment of the Criminal Court,

since the petitioner was granted benefit of doubt, it

cannot be treated as acquittal. By the impugned

communication, since the order of granting financial

benefits for the period of suspension was invoked, the

company ordered recovery of the amount so paid to

the petitioner.

5. Mr.R.D.Kinariwala learned counsel for the petitioner

would make the following submissions:

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

5.1 He would submit that vide order of the Court

under the Prevention of Corruption Act and in appeal,

by this Court, the petitioner was acquitted. Based on

this acquittal, the benefits were granted by an order

dated 28.12.2018, by which, the suspension period in

question was not only regularized but by an order of

01.01.2019, actual benefits were paid.

5.2 He would therefore submit that without

application of mind and without giving any reasons,

by orders dated 22.12.2020 and 18.01.2021, the

order of giving actual financial benefits was treated

as cancelled and the recovery was ordered which was

not warranted. It was not open for the respondent

company to cancel such orders once the petitioner

was acquitted.

5.3 Even relying on the order of revocation of

suspension of the year 2007 viz. 18.08.2007, the

petitioner would submit that, that order was subject

to outcome of the appeal and the petitioner had filed

an undertaking.

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

6. Mr.Dipak Dave learned counsel appearing for the

respondent company referring to the affidavit-in-reply

filed on behalf of the company, would indicate that

the order of the criminal court was not an order of

honourable acquittal. It was an acquittal based on

benefit of doubt. That being so, in accordance with

Chapter-8 of the Established Manual of the Gujarat

Electricity Board, on an assessment of the judgment

of the Criminal Court, it was found that acquittal on

basis of benefit of doubt cannot be considered

'honourable acquittal' and therefore the order

granting acquittal financial benefits stood withdrawn.

6.1 Inviting the attention of the Court to the order of

28.12.2018, Mr.Dave would submit that in fact, the

order initially was for regularizing the period of

suspension without financial benefits but, it was

based on some instructions from the Head of the

Department which were, in fact, never issued when

the order was modified without authority of law by a

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

communication of 01.01.2019. It is in background of

these circumstances and especially when regulation

241(2) of the Service Regulations are read, that the

order is just and proper.

6.2 Considering the facts on hand, it needs to be

pointed out that on reading of the operative portion

of the decision of the judgment of the Criminal Court,

what is evident is that the petitioner was not

honourably acquitted but was given the benefit of

doubt.

7. Since the acquittal of the petitioner was not clean

and he had got the benefit of doubt, reliance placed

on the decision in appeal, is misconceived. Reading

Chapter 8 of the establishment manual would

indicate that the authority has to make a specific

order regarding pay and allowances and how the

period of suspension needs to be treated. If the

suspension is based on a criminal case, and if the

employee is honourably acquitted, only then the

period of suspension can be regularized and not

when there is a benefit of doubt. The relevant portion

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

of Chapter 8 of establishment manual reads as under:

"(B)Reinstatement in service on acquittal

The employee under suspension who is acquitted of the offence with which he was charged in a criminal court should be reinstated in service immediately without any avoidable delay and asked to join his duties at once. In such an order of reinstatement the competent authority should make a specific order-

(i) regarding pay and allowances to be paid to him for the period of his absence from duty;

(ii) whether or not the said period shall be treated as period spent on duty.

In passing a specific order on the above points the competent authority may go through the judgment of acquittal and find out whether the employee concerned can or cannot be said to have been honourably acquitted. In the former case the period of absence from duty should be treated as a period spent on duty and he should be paid full wages and allowance after deducting the amount of subsistence allowance already paid to him for the period of his absence from duty. In the latter case the period should not be treated as a period spent on duty unless the competent authority directs that it shall be so treated for any specific purpose only e. g. increment, etc."

8. Even the service regulation 241(2) pressed into

service by the learned counsel for the respondent

also indicates that while deciding on the question of

regularization or otherwise of the period of

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

suspension, the employer needs to consider whether

the employee was fully exonerated and whether the

suspension can be treated as only justified or

otherwise.

9. Mr.Kinariwala's submission relying on Clause-36 of

this General Standing Orders to submit that the

recovery cannot be made unless there is a

departmental proceedings of the charge-sheet, is also

misconceived. That submission of the learned

counsel for the petitioner was on a part reading of

the clause and not when the same is read in complete

manner. It is only on an employer coming to a

conclusion that there is misapprehension of laws of

the company, is a case when a charge-sheet has to be

issued. On the contrary, when the first part of the

clause is read, it specifically entitles the employer to

recover any wrongful payment made to the employee,

of course, on suitable installments. This is not a case

where the petitioner can take the benefit of a mistake

which is not corrected for a long time. Admittedly, it

is so corrected within a period of one and a half year.

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

Even otherwise, when the resolution read with the

establishment manual Chapter-8 provides for

assessment of the judgment of the Criminal Court

and the benefit of regularization of the period of

suspension is only on the basis of an honourable

acquittal, which was not the case on hand, the

petitioner could not have claimed actual financial

benefits for the period in question. The Supreme

Court in a decision in case of Union of India v.

Methu Meda reported in JT 2021 (10) SC 11 has

considered the concept and meaning of acquittal and

the expression "honourable acquittal".

10. Paragraphs 11 to 17 of the aforesaid judgment need

to be reproduced, which read as under:

"11. While addressing the question, as argued the meaning of expression 'acquittal' is required to be looked into. The expressions 'honourable acquittal', 'acquitted of blame' and 'fully acquitted' are unknown to the Code of Criminal Procedure or the Indian Penal Code. It has been developed by judicial pronouncements. In the case of State of Assam & Another vs. Raghava Rajgopalachari, (1972) 7 SLR 44, the effect of the word 'honourably acquitted' has been considered in the context of the Assam Fundament Rules (FR) 54 (a) for entitlement of full pay and allowance if the employee is not dismissed. The Court has referred the judgment of Robert

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

Stuart Wauchope vs. Emperor reported in (1934) 61 ILR Cal. 168, in the context of expression 'honourably acquitted', Lord Williams, J. observed as thus:

"The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the Appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further we decided that the Appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the Appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term "honourably acquitted". "

12. In the case of R.P. Kapur vs. Union of India AIR 1964 SC 787, it is observed and held by Wanchoo, J., as thus:

"Even in case of acquittal, proceedings may follow where the acquittal is other than honourable."

13. In view of the above, if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal. In other words, if prosecution could not prove the guilt for other reasons and not 'honourably' acquitted by the Court, it be treated other than 'honourable', and proceedings may follow.

14. The expression 'honourable acquittal' has been considered in the case of S. Samuthiram (supra) after considering the judgments of Reserve Bank of

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

India vs. Bhopal Singh Panchal (1994)1 SCC 541, R.P. Kapur (supra), Raghava Rajagopalachari (supra); this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt. In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance and probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.

15. Recently, this Court in Union Territory, Chandigarh Administration and Ors. vs. Pradeep Kumar and Anr. (2018) 1 SCC 797, relying upon the judgment of S. Samuthiram (supra) said that acquittal in a criminal case is not conclusive of the suitability of the candidates on the post concerned. It is observed, acquittal or discharge of a person cannot always be inferred that he was falsely involved or he had no criminal antecedent. The said issue has further been considered in Mehar Singh (supra) holding non-examination of key witnesses leading to acquittal is not honourable acquittal, in fact, it is by giving benefit of doubt. The Court said nature of acquittal is necessary for core consideration. If acquittal is not honourable, the candidates are not suitable for government service and are to be avoided. The relevant factors and the nature of offence, extent of his involvement, propensity of such person to indulge in similar activities in future, are the relevant aspects for consideration by the Screening Committee, which is competent to decide all these issues.

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

16. In the present case, the charges were framed against the respondent for the offences punishable under Sections 347/327/323/506(PartII) and 364A IPC. He was acquitted after trial vide judgment dated 19.03.2010 by the Sessions Judge, Jhabua because the person kidnapped Nilesh and also his wife have not supported the case of prosecution. As per prosecution, the complainant was beaten by the respondent and the said fact found support from the evidence of doctor. Therefore, it appears that the Committee was of the view that acquittal of the respondent, in the facts of the present case, cannot be termed as 'honourable acquittal' and the said acquittal may be treated by giving benefit of doubt.

17. The law with regard to the effect and consequence of the acquittal, concealment of criminal case on appointments etc. has been settled in the case of Avtar Singh (supra), wherein a three- Judge Bench of this Court decided, as thus:

"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarize our conclusion thus:

"38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :

38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a 3 case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature,

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a 4 person against whom multiple criminal cases were pending may not be proper.

38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. 38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or 5 submitting false information as to a fact which was not even asked for.

38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

11. Expression "honourable acquittal" and the term

C/SCA/4014/2021 JUDGMENT DATED: 31/03/2022

"benefit of doubt" has been discussed and the

observations of the Supreme Court would indicate

that such acquittal which is on the basis of a benefit

of doubt cannot be treated as "honourable acquittal"

by a Criminal Court.

12. In view of the aforesaid clear position of law as

enunciated by the Supreme Court, the petition

deserves to be dismissed and is accordingly

dismissed. It is expected that in accordance with the