Gujarat High Court

Kanubhai Shamalbhai Patel vs State Of Gujarat on 15 April, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                           C/SCA/4714/2016                                         JUDGMENT DATED: 15/04/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                 R/SPECIAL CIVIL APPLICATION NO. 4714 of 2016

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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                                 Approved for Reporting              No           Yes
                                                                       ✔
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                                   KANUBHAI SHAMALBHAI PATEL
                                                  Versus
                                     STATE OF GUJARAT & ORS.
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                      Appearance:
                      MR. BHUVNESH GAHLOT, learned advocate for MR NK
                      MAJMUDAR(430) for the Petitioner(s) No. 1
                      MR. AAKASH GUPTA, AGP for the Respondent(s) No. 1
                      MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
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                       CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                        Date : 15/04/2025

                                                        ORAL JUDGMENT

1. Heard Mr. Bhuvnesh Gahlot, learned advocate for Mr.

N.K. Majmudar, learned advocate appearing for the petitioner,

Mr. Aakash Gupta, learned Assistant Government Pleader

appearing for the respondent No.1 - State and Mr. H.S.

Munshaw, learned advocate appearing for the respondent nos. 2

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and 3.

2. By way of the present petition, petitioner herein has

prayed for the following reliefs:

"15. In the aforesaid facts and circumstances of the case, the petitioner most respectfully prays before this Hon'ble Court that:

                             (A)     Be pleased to admit this petition.
                             (B)     Be pleased to issue an appropriate writ, order or

direction, directing the respondents Authorities to pass an appropriate order under Rule 152 of BCSR, 1959 and Rule 70 of Gujarat Civil Service (Joining Time), 2002 after giving reasonable opportunity of hearing to the petitioner and the respondents may kindly be directed to pass an appropriate order treating the period between 24.11.1993 to 30.4.1999 as period spent on duty and further be pleased to direct the respondents to grant consequential benefits with 12% interest thereon, to the petitioner;

(E) Be pleased to grant interim relief and be pleased to direct the respondents Authorities to pass an appropriate order treating the period between 24.11.1993 to 30.4.1999 as period the petitioner spent on duty;

(F) Any other and further reliefs may be granted in favour of petitioners as this Hon'ble Court may deem fit and proper under the circumstances of the case with cost."

3.1. Briefly stated that, the petitioner came to be

appointed as Gramsevak by order dated 02.07.1988. The name of

the petitioner was shown at serial no.7 in the said order. The

petitioner was placed under suspension by order dated

11.11.1993, on the basis of the Criminal Case being Special Case

No. 2 of 1994 under the provision of the Prevention of

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Corruption Act. The petitioner was acquitted by the concerned

Court vide judgment and order dated 29.01.1998. The said order

has attained finality. Upon acquittal by the said judgment and

order, the petitioner was reinstated in service by order dated

02.02.1999 and suspension was reviewed.

3.2. As per the relevant Rules, which remained in force at

the relevant point of time, i.e. Rule-152 of the Bombay Civil

Service Rules, 1959, the decision for regularizing the period of

suspension was required to be taken, at the time of revocation of

the order of suspension, i.e. the order of reinstatement of the

petitioner. However, the order dated 02.02.1999, provides that

the reinstatement of the petitioner would be subject to the

disciplinary proceedings and further provided that the period of

suspension would not be regularized, till the disciplinary

proceedings / Criminal Case is pending. The petitioner came to

be acquitted in the Criminal Case and no disciplinary proceedings

were initiated, when the order dated 02.02.1999 came to be

passed. In view of the aforesaid, the period of suspension was to

be regularized, at that juncture and it was required to be treated

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as period spent on duty, as the petitioner came to be acquitted

from the Criminal Case.

3.3. The State challenged the said order of acquittal, by

preferring Criminal Appeal No. 227 of 1998, wherein, by

judgment and order dated 27.06.2012, which is duly produced at

Annexure-D (pg.46), the said Appeal preferred by the State came

to be dismissed, wherein, it is recorded in para-10 that, from the

evidence itself, it is established that the prosecution has not

proved its case beyond reasonable doubt and that the State has

failed to point out how any material evidence was ignored by the

competent Court and in view thereof, it was held that the

competent Court was justified in acquitting the petitioner from

the charges levelled against the petitioner.

4.1. Mr. Bhuvnesh Gahlot, learned advocate for Mr. N.K.

Majmudar, learned advocate appearing for the petitioner submits

that the order dated 17.03.2012, wherein, the period of

suspension between 24.11.1993 to 30.04.1999 which is 5 years, 5

months and 7 days is erroneously held not to be regularized,

wherein, the petitioner herein is acquitted by competent Court by

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judgment and order dated 29.01.1998 and the Appeal filed by the

State being Criminal Appeal No. 227 of 1998 has also been

dismissed by order dated 27.06.2012.

4.2. It is also submitted that, no disciplinary proceedings,

worth the name is held against the petitioner. It is submitted

that the petitioner is also regularized in service by order dated

02.02.1999 and while regularizing the services of the petitioner,

the period of suspension was not regularized. Reliance is placed

on pg-18 of the said order.

4.3. It is submitted that, after 02.02.1999, no disciplinary

proceedings are initiated against the petitioner herein, which is

also not in dispute. In light of the aforesaid, before declining to

regularize the period of suspension, the petitioner was required

to be granted an opportunity of hearing and only then the

impugned order can be passed, wherein, the said period is

declined to be regularized.

4.4. Reliance is placed on Rule-152 of the BCSR, 1959 and

it is submitted that, the said Rule is analogous to Rule-70 of the

Gujarat Civil Services (Joining Time) Rules, 2002 and that the

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respondent authorities be directed to regularize the period of

suspension, upon granting an opportunity of hearing to the

petitioner.

5.1. Mr. H.S. Munshaw, learned advocate appearing for

the respondent nos. 2 and 3 authorities relied upon the Affidavit

in Reply, duly produced at Page-62 and submitted that the

petitioner herein is acquitted upon benefit of doubt and in view

thereof, the discretion lies with the authorities, as to whether the

period of suspension shall be regularized or not? The aforesaid

being undisputed, the question of regularization of the said

period does not arise. It is submitted that, the petitioner attained

the age of superannuation on 31.03.2013 and continued to make

representations but the same was turned down by the respondent

authorities, upon examining the merits of the case.

5.2. Mr. Munshaw, learned advocate relied on the CAV

judgment passed by the Hon'ble Division Bench in Letters Patent

Appeal No. 2783 of 2010 dated 10.06.2016 and submitted that

the discretion lies with the authorities as to whether the period

of suspension shall be regularized or not, more particularly, when

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the acquittal was upon benefit of doubt.

6. Mr. Bhuvnesh Gahlot, learned advocate reiterated the

submissions made earlier and submitted that, it is well settled

position of law that, if the respondent authority thought it fit not

to regularize the period of suspension, petitioner was required to

be put to the notice and the same could have been passed upon

following the cardinal principles of natural justice, which in the

facts of the present case, is absent.

ANALYSIS:

7.1. Having heard the learned advocates appearing for the

respective parties, the dispute in question is narrowed down to

the regularization of the period of suspension of the petitioner,

wherein, the petitioner was suspended for the period from

24.11.1993 to 30.04.1999. It is an admitted fact that no

disciplinary proceedings have been undertaken against the

petitioner herein. The petitioner has been acquitted by the

competent Court, upon benefit of doubt, by judgment dated

29.01.1998 in Special Case No. 2 of 1994 under the provision of

the Prevention of Corruption Act, which is duly produced at

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Annexure-C. The respondent- State challenged the said judgment

and order, by preferring Criminal Appeal No. 227 of 1998,

wherein, the Appeal came to be dismissed by judgment dated

27.06.2012 by observing in para-10 as referred above that in

absence of any evidence, the competent Court rightly ordered the

acquittal qua the petitioner herein.

7.2. This Court has perused the communication dated

02.02.1999, which is duly produced at Annexure-B, wherein, by

the said communication, the services of the petitioner came to be

reinstated, excluding the period of suspension. The petitioner

came to be reinstated in service, however, suspension period for

the period from 24.11.1993 to 30.04.1999 was not regularized.

The respondent authority declined to regularize the suspension

period by communication dated 17.03.2012. Placing reliance on

the judgment and order rendered by the competent Court, the

aforesaid is not in dispute that the petitioner has been acquitted,

upon benefit of doubt, wherein, the discretion lies with the

respondent authorities as to whether or not regularize the period

of suspension, in light of Rule-152 of the BCSR, 1959, which is

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analogous to Rule-70 of the Gujarat Civil Services (Joining Time)

Rules, 2002.

7.3. In the opinion of this Court, before declining to

consider the case of the petitioner for regularization of

suspension, the respondent authorities were required to put the

notice to the petitioner herein. The said order declining to

regularize the services of the petitioner is being contrary to the

well settled principles of natural justice. In the opinion of this

Court, the said issue is also not res-integra, wherein, in an

identical issue, which was dealt with by the Hon'ble Division

Bench in the case of R.R. Jain, Retired Principal Judge City Civil

and Sessions v/s. State of Gujarat reported in AIR ONLINE 2022

GUJ 3211, wherein, in para-24 it was held that if the employee

concerned is not given notice or opportunity of hearing, such

order is unsustainable. Para-24 of the said decision reads thus:

"24. As discussed herein above, that also is in clear breach of principles of natural justice and settled position of law as discussed above. Even otherwise, the investigation in criminal matter was undergoing and which had been stayed by the directions of the Apex Court. On the demise of the employee, the case qua him had abated and therefore, the investigation had not reached to the penultimate stage. Suspension not being a punishment but interim measure to debar the employee to work. Unless there is a specific order of not treating this period as

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period spent on duty, on availing opportunity of hearing by the employer, denial of prayer is unjustifiable. It is undoubtful the right of employer to withhold payment of service benefits for suspension period on justifiable grounds. However, the employee concerned if has not been given any notice on opportunity of hearing, as in the present sheer denial cannot be sustained."

7.3.1. In the facts of the present case also, the petitioner

herein is not granted an opportunity of hearing, before passing

the order dated 17.03.2012 (Annexure-E, pg.51).

7.4. It is also not in dispute that the petitioner herein has

made several representations subsequently and prayed that the

suspension period of the petitioner be regularized. The said

representations dated 10.04.2014, 03.02.2014, etc. filed by the

petitioner are duly produced on record. Though, petitioner made

representations which are declined by the competent authorities,

the same are without granting opportunity of hearing to the

petitioner.

8. In view of above, the action of the respondent