Senma Somabhai Sendhabhai vs State Of Gujarat
2023 Latest Caselaw 7003 Guj

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      C/SCA/16375/2022                          ORDER DATED: 22/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16375 of 2022
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                    SENMA SOMABHAI SENDHABHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1
MR NEERAJ SHARMA, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                           Date : 22/09/2023

                             ORAL ORDER

1. Considering the issue involved and with consent of the respective parties, the matter is taken up for final hearing today

2. This petition is filed with the prayer to quash and set aside the impugned order of dismissal dated 01.07.2022 passed by respondent No. 1. It is also prayed that the respondent authorities be directed to reinstate the petitioner in service with continuity and all other consequential benefit as if the order dated 01.07.2022 was never passed.

3. The facts in brief as stated in the petition are as under: -

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The petitioner was appointed as clerk with the State Government on 27.01.1993. He was promoted to the post of Deputy Mamlatdar in August, 2008. It is the case of petitioner that he was falsely implicated in one criminal offence being C.R. No. 06 of 2009 dated 17.06.2009 registered with ACB Police Station, Bhuj. The offences under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 were registered against him. Pursuant to the registration of the FIR, the petitioner was arrested and subsequently released on bail.

In view of his arrest, the petitioner was placed under deemed suspension by order dated 27.07.2009. The suspension order was thereafter revoked and he was taken in service by order dated 30.11.2010. For the offences under the Prevention of Corruption Act, 1988 the petitioner was convicted by judgment dated 05.07.2014 in Special Case (ACB) No. 12 of 2010 by the Additional Sessions Judge and Special Judge, Kachchh-Bhuj.

3.1 Against the judgment and order of conviction dated 05.07.2014, the petitioner preferred Criminal Appeal No. 893 of 2014, which has been admitted by this Court on 17.07.2014. The petitioner simultaneously preferred Misc. Criminal Application seeking Suspension of Sentence. In Misc. Criminal Application seeking suspension of sentence this Court by order dated 17.07.2014, suspended the sentence dated

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05.07.2014 till final hearing and disposal of the appeal. Since, the order of dismissal dated 01.07.2022 was passed during pendency of appeal when the trial court's judgement dated 05.07.2014, was suspended, aggrieved by which the present petitioner is filed.

4. Heard learned advocate Mr. K. B. Pujara with learned advocate Mr. Pareshkumar Trivedi for the petitioner and learned Assistant Government Pleader Mr. Neeraj Sharma for the respondent - State.

5. Learned advocate for the petitioner submitted that this Court while admitting the appeal challenging the order of conviction dated 05.07.2014, has suspended the judgment dated 05.07.2014 till the final disposal of the appeal. Relying upon the order dated 17.07.2014, in Misc. Criminal Application No. 10694 of 2014, he submitted that since the judgment of Additional Sessions Judge and Special Judge, Kachchh-Bhuj in Special Case (ACB) No. 12 of 2010 has been suspended till final disposal of the appeal, the order of dismissal dated 01.07.2022, passed during operation of suspension of the judgment is a nullity in eye of Law. Learned Advocate submitted that the respondents cannot take any action against the petitioner on the basis of the said judgment. In this case dismissal order is passed only on the ground of conviction of

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the petitioner by the Trial Court, which has been suspended by this court.

5.1 Further, this is not a case where the Court has only suspended the sentence but since the judgment of conviction dated 05.07.2014 has been suspended, any order passed ignoring the suspension of judgment is bad in law. The Criminal Appeal challenging the conviction order dated 05.07.2014 is pending adjudication and therefore, the respondent authorities are in violation and in breach of order passed by this Court and therefore the same deserves to be quashed and set aside. Upon quashing of the dismissal order, the petitioner is entitled for reinstatement in service and all other consequential benefits.

5.2 In support of his submissions, he relied upon the decision of Hon'ble Supreme Court of India in the case of Ravikant S. Patil V/s Sarvabhouma S. Bagali reported in 2007 (1) SCC 673, wherein it has been held as under: -

".... where the execution of sentence is stayed the conviction continues to operate but where the conviction itself is stayed the effect is that the conviction will not be operative from the date of stay. An order of stay of course does not render the conviction non-existent but only non-operative ...."

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5.3 Therefore the order of dismissal is passed when the effect of conviction is inoperative and therefore the same deserves to be quashed and set aside.

6. On the other hand, learned Assistant Government Pleader Mr. Neeraj Sharma for the respondent - State submitted that the order of conviction dated 05.07.2014 has been passed by competent Court of law after completion of trial. He also relied upon the Government circular dated 05.08.2003 and submitted that under the said circular, the authority is empowered to pass an order of dismissal relying upon Rule 14(1)(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short 'the Rules') in case where the stay has been granted by the Court. The authority has followed the Rule and therefore there is no illegality as alleged.

6.1 Further, prior to dismissal as contemplated under Rule 14(1) of the Rules, the commission has been consulted and therefore there is no procedural lacuna which requires interference by this Court.

6.2 In support of his submissions, he relied upon the decision of Hon'ble Supreme Court of India in the case of K. C. Sareen V/s. Central Bureau of Investigation, Chandigadh reported in

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(2001) 6 SCC 584, wherein it is held that it is necessary that the Court should not aid a public servant who stands convicted for corruption charges to hold any public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level.

7. Considered the submissions and the decisions relied upon. Perusal of documents on record reveal that the petitioner was dismissed by an order dated 01.07.2022 relying upon the order of conviction dated 05.07.2014 by the competent Court of law in Special Case (ACB) No. 12 of 2010. Before the order of dismissal, the petitioner was served with Show-Cause Notice, to which the petitioner responded. Against the order of conviction, the petitioner preferred Criminal Appeal No. 893 of 2014. Along with the criminal appeal, Misc. Criminal Application No 10694 of 2014 (seeking suspension of sentence) was filed, wherein order dated 17.07.2014 was passed on which reliance has been placed.

8. In the decision of Hon'ble Supreme Court in the case of K. C. Sareen [Surpra] it is held as under: -

"11. The legal position, therefore, is this:

Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very

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exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter.

12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive

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as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues

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or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.

13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."

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9. It would be appropriate to refer to one more decision of this Court in case of Subhashbhai Maganbhai Panchal V/s. Deputy District Development Officer reported in 2009 SCC Online Guj 1438, wherein it has been observed as under:-

"12. Learned advocate appearing on behalf of the petitioner as such has not disputed that on conviction the petitioner cannot be dismissed and/or removed. The only submission and contention was that as his criminal appeal against the conviction and sentence is pending and as he is released on bail by this Court in exercise of power under Section 389 of the Code of Criminal Procedure, he could not have been removed. Even, the balance of convenience is not in favour of the petitioner. If, ultimately the petitioner succeeds in criminal appeal and is acquitted in that case, the consequence shall follow and petitioner can be compensated and/or paid the back wages and/or necessary consequence of acquittal shall follow. However, if the conviction and sentence passed by the learned Special Court is upheld and if in the meantime the petitioner is taken on duty and paid the salary and other benefits, in that case it will be very difficult for the respondents to recover the same from the petitioner. Even otherwise, the prayer of the petitioner to reinstate him in service cannot be accepted, as the petitioner is already convicted by the

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Competent Court i.e. learned Special Court, Banaskantha for the offences punishable under Sections 7, 13 (1) and 13(2) of the Prevention of Corruption Act and as on today his conviction stands as the same is not suspended. Under the circumstances when the employee who has been convicted for the offences punishable under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act cannot be reinstated in service."

10. Moreover, under notification dated 05.08.2003, the authority is empowered to pass dismissal order, where stay has been granted, pending appeal under Rule 14(1) of the Rules. Lastly, in the opinion of this court, he decision relied upon by the petitioner of Hon'ble Supreme Court, in the case of Ravikant S.Patil (Supra), would not be applicable in facts of the present case.

11. Thus, by no stretch of imagination, the contention canvassed on behalf of the petitioner can be accepted.

12. In view of above, the petition being meritless deserves to be dismissed and is hereby dismissed. Notice discharged

(MAUNA M. BHATT,J) SHRIJIT PILLAI