Gujarat High Court
Pravinkumar Tribhuvandas Vanza vs Chief District Medical Officer & Civil ... on 16 April, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/1904/2010 ORDER DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1904 of 2010
In
R/SPECIAL CIVIL APPLICATION NO. 767 of 2010
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PRAVINKUMAR TRIBHUVANDAS VANZA
Versus
CHIEF DISTRICT MEDICAL OFFICER & CIVIL SURGEON & ORS.
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Appearance:
MS URVI A RAVAL(3814) for the Appellant(s) No. 1
MS ROSHINI PATEL ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 16/04/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Heard Ms. Urvi Raval, learned advocate appearing for the
appellant.
2. The appeal under Clause 15 of the Letters Patent arises out
of an order of the learned Single Judge dated 05.05.2010 by
which, the learned Single Judge dismissed the petition.
3. Prayers in the petition which was filed before the learned
Single Judge read as under :-
"(A) Your Lordships be pleased to allow and admit this petition;
(B) Your Lordships be pleased to issue a writ of mandamus or a writ
in the nature of mandamus or any other appropriate writ, order or
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C/LPA/1904/2010 ORDER DATED: 16/04/2024
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direction, directing the respondents to grant promotion in the cadre
of senior clerk or pay higher grade scale of Rs. 4000-6000 w.e.f.
01.01.2003 on the basis of above pay revision;
(C) Your Lordships be pleased to issue a writ of mandamus or a writ
in the nature of mandamus or any other appropriate writ, order or
direction, directing the respondents grant of annual increment from
the date of reinstatement within a stipulated period of time;
(D) Your Lordships may be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order
or direction, directing the respondents to grant the unpaid
subsistence allowance at the rate of revised pay scale within a
stipulated period of time.
(E) Your Lordships may be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order
or direction, directing the respondents revised salary from date of
reinstatement order within a stipulated time."
4. Ms. Urvi Raval, learned counsel for the appellant would
submit that the order impugned in the petition which denied the
benefit of subsistence allowance and other benefits on the ground
that the State had challenged the order of acquittal before this
Court and as the appeal was pending, the benefits could not be
granted, was wrong.
4.1. She submitted that the appellant had been acquitted without
any qualification. It therefore being a clean acquittal, she was
entitled to the benefits as prayed for. In support her submission,
she would rely upon the decision of this Court in the case of State
v. B.C. Dwivedi reported in 1983 (2) GLR 1315. She would
press into service the finding of the Court in the case of B.C.
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Dwivedi (supra) which indicated that once an employee has been
acquitted, mere filing an appeal by the State would not be
continuance of trial. In other words, it was her submission that
having been acquitted, denial of the benefits only on the ground of
the pendency of the State's appeal is misconceived.
5. Ms. Roshni Patel, learned Assistant Government Pleader
would support the order of the learned Single Judge.
6. Having considered the submissions made by the learned
counsels for the parties, and though the emphasis has been laid
by the learned counsel for the appellant to take us through the
order of the criminal court to persuade us to consider the case as
that of clean acquittal, reading of the operative part of the
judgment would indicate that the appellant was acquitted only on
the benefit of doubt. We cannot sit in appeal over the judgment of
the trial court in appeal which is a subject matter at large before
an appropriate Bench of this Court in Criminal Appeal filed by the
appellant herein. The Hon'ble Apex Court in the case of State of
West Bengal & Ors., v. Sankar Ghosh reported in (2014) 3
SCC 610, in paragraph 16 has considered the distinction between
clean acquittal and acquittal on the ground of benefit of doubt.
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Paragraph 16 of the judgment reads as under :-
"16. In Inspector General v. S. Samuthiram [(2013) 1 SCC 598], this
Court in paragraph 24, 25 and 26 of the judgment has elaborately
examined the meaning and scope of the "honourable acquittal" and
held as follows :-
"26. As we have already indicated, in the absence of any
provision in the service rules for reinstatement, if an
employee is honourably acquitted by a criminal court, no
right is conferred on the employee to claim any benefit
including reinstatement. Reason is that the standard of proof
required for holding a person guilty by a criminal court and
the enquiry conducted by way of disciplinary proceeding is
entirely different. In a criminal case, the onus of establishing
the guilt of the accused is on the prosecution and if it fails to
establish the guilt beyond reasonable doubt, the accused is
assumed to be innocent. It is settled law that the strict
burden of proof required to establish guilt in a criminal court
is not required in a disciplinary proceedings and
preponderance of probabilities is sufficient. There may be
cases where a person is acquitted for technical reasons or the
prosecution giving up other witnesses since few of the other
witnesses turned hostile, etc. In the case on hand the
prosecution did not take steps to examine many of the crucial
witnesses on the ground that the complainant and his wife
turned hostile. The court, therefore, acquitted the accused
giving the benefit of doubt. We are not prepared to say that in
the instant case, the respondent was honourably acquitted by
the criminal court and even if it is so, he is not entitled to
claim reinstatement since the Tamil Nadu Service Rules do
not provide so."
7. Having found no fault with the order of the learned Single
Judge, we dismiss the appeal.
8. We may clarify that since the impugned communication
which was challenged before the learned Single Judge, indicated
that it was only on the ground of the pendency of appeal that the
appellant was not being considered for any other benefits, the
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State shall consider the case of the appellant for appropriate
orders, subject to the outcome of the Criminal Appeal filed before
this Court.
(BIREN VAISHNAV, J)
(PRANAV TRIVEDI,J)
phalguni
