Gujarat High Court

Bhasker Kishorkant Gandhi vs State Of Gujarat on 21 February, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

                                                                                   NEUTRAL CITATION




     C/SCA/17909/2023                             JUDGMENT DATED: 21/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 17909 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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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 ?

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                        BHASKER KISHORKANT GANDHI
                                   Versus
                          STATE OF GUJARAT & ANR.
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Appearance:
MR SHALIN MEHTA, LD. SR. ADV. with MS SANSKRUTI SHARMA for
MR.NISARG P RAVAL(7262) for the Petitioner(s) No. 1
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 21/02/2024

                             ORAL JUDGMENT

1. Heard learned senior advocate Mr.Shalin Mehta with

learned advocate Ms.Sanskruti Shukla for learned advocate

Mr.Nisarg Raval on behalf of the petitioner and learned

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Assistant Government Pleader Mr.Aditya Pathak on behalf of

the respondent - State.

2. Issue Rule returnable forthwith. Learned AGP Mr.Pathak

would waive service of rule on behalf of the respondent -

State.

3. By way of this petition, the petitioner has sought for

being reinstated in service more particularly the petitioner

being terminated upon conviction in a criminal case and

whereas, the said conviction having been set aside by this

Court in appeal.

4. Learned senior advocate Mr.Mehta on behalf of the

petitioner would submit that the petitioner had originally been

appointed as a Drug Inspector, Class-II vide order dated

04.12.1989 and whereas an FIR had been preferred against

the petitioner under the provisions of Prevention of

Corruption Act and whereas the said FIR had culminated into

the Special Case (ACB) No.01/1998 which had been decided

by the learned Special Judge and Additional Sessions Judge

(Fast Track Court No.1), Nadiad.

4.1. It is submitted that vide a judgment and order dated

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30.04.2004, the learned Trial Court had found the petitioner

guilty of the charges and had convicted and sentenced the

present petitioner. It is further submitted that the petitioner

had preferred an appeal against the same before this Court

and whereas, in the said appeal being Criminal Appeal

No.734/2004, this Court vide order dated 22.08.2023 had set

aside the decision of conviction by the learned Trial Court.

4.2. It is submitted by learned senior advocate that in the

interregnum i.e. vide an order dated 18.02.2006 i.e. after the

conviction in question, the respondents had terminated the

petitioner from service more particularly by relying upon the

order of conviction. It is further submitted by learned

advocate that while the conviction had been the only aspect

that had weighed with the respondents, upon the said

conviction being set aside, the respondents were required to

recall the order of termination and were required to place the

petitioner appropriately in service.

4.3. Learned senior advocate Mr.Mehta would submit that as

such, the petitioner upon the FIR being filed against him, had

been suspended from service w.e.f. 15.11.1997 and whereas

while, at the relevant point of time, when the order of

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termination had been passed, since it was passed upon the

conviction, there was no issue of even considering the period

of suspension to be regularized, yet, now since the conviction

has been set aside, therefore, this Court may issue

appropriate directions to the respondents to regularize the

period of suspension.

5. As against the same, learned AGP Mr.Pathak would

submit that while the judgment of this Court setting aside the

decision of the learned Trial Court of convicting the present

petitioner is of recent origin i.e. dated 22.08.2023, therefore,

the State is still in the process of considering the request of

the present petitioner for reinstatement more particularly

after the order of termination is recalled. Learned AGP also

could not point out to any appeal having been preferred by the

State Government or even being contemplated by the State

Government as regards the said decision.

6. Having heard learned senior advocate for the petitioner

and learned AGP for the respondent - State, the only question

which arises for consideration of this Court is whether the

State is requited to take appropriate action more particularly

upon the order of conviction being set aside by the superior

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court i.e. this Court.

6.1. In the considered opinion of this Court, the issue does

not require any intricate delving into the facts or legal issues,

it would normally appeal to reason as to when an employee

had been dismissed from service upon being convicted, upon

the conviction being revised, the order of dismissal would also

require to be recalled. As such, perusal of the order dated

18.02.2006 reveals that upon the petitioner being convicted,

the petitioner had been given a opportunity to show cause as

to why the petitioner should not be imposed with any major

penalty and whereas upon the petitioner submitting his

representation as regards the major penalty, the same had not

been taken into account and punishment of termination from

service on the basis of conviction was imposed. As a natural

corollary, upon the order of conviction being set aside by the

superior court i.e. this Court in appeal, it was incumbent upon

the respondent - State to have immediately withdrawn the

order of termination and to have reinstated the present

petitioner with all consequential benefits.

6.2. The only exception to this could have been if the State

could have pointed out that the State having preferred an

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appeal before the Hon'ble Supreme Court against the decision

of this Court and whereas in appeal the Hon'ble Supreme

Court had stayed the order of this Court setting aside the

decision of convicting the present petitioner. In absence of

any such material, more particularly, in absence of even a

contemplation of filing an appeal at this stage, in the

considered opinion of this Court, the State cannot shirk away

from reinstating the present petitioner.

6.3. Furthermore, in the considered opinion of this Court,

since the suspension was on account of the criminal complaint

filed against the present petitioner and whereas while the

respondents at the relevant point of time would have been

justified in dismissing the present petitioner more particularly

since the petitioner had been convicted by the competent

court, yet, upon the conviction being set aside by a superior

court, the natural consequence thereof would be that while

the petitioner would be entitled to be reinstated, the

petitioner would also be entitled to seek benefit of

regularization of the period of suspension.

7. In view of the above discussion, in the considered

opinion of this Court, the following directions would meet with

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the ends of justice:-

(i) The order of termination dated 18.02.2006 is hereby

quashed and set aside.

(ii) The respondents are directed to forthwith reinstate the

present petitioner and whereas the present petitioner shall be

accorded all consequential benefits including financial

benefits and benefits of seniority as if the order of termination

had never been passed.

(iii) Furthermore, the respondents are also directed to

regularize the period of suspension of the present petitioner

w.e.f. 15.11.1997 till the date of termination i.e. 18.02.2006.