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2009 DIGILAW 297 (GUJ)

Gangaram Panachand Prajapati v. State of Gujarat

2009-04-24

M.R.SHAH

body2009
Judgment M.R. Shah, J.—By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 13.4.2009 passed by the respondent No. 2 dismissing the petitioner, on conviction for the offences under the provisions of Prevention of Corruption Act. 2. Petitioner was serving as a Medical Officer, Class II with the department of Health and Family Welfare. While he was serving at Primary Health Center, Malan, Tal: Palanpur, Dist. Banaskantha, a criminal case was instituted against the petitioner for the offences punishable under Sections 7, 13(1)(d), (1)(2)(3) and Section 13(2) of the Prevention of Corruption Act, in the month of June, 2003, on raid bing carried out by the Anti Corruption Bureau, Palanpur. The petitioner was tried by the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur in Special ACB Case No. 121 of 2003. That during the trial, the petitioner came to be suspended w.e.f. 1.10.2003. That the petitioner came to be charge sheeted and departmental inquiry came to be initiated against the petitioner vide charge sheet dated 3.6.2004. That during the pendency of the aforesaid Criminal Case as well as departmental inquiry, petitioner came to be reinstated in service vide order dated 13.3.2006. That, thereafter petitioner came to be convicted by the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur vide judgment and order of conviction dated 21.2.2007 for the offences under the provisions of the Prevention of Corruption Act and has been sentenced to undergo RI for three years along with fine of Rs. 5000/-. That being aggrieved and dissatisfied with the judgment and order of conviction and sentence , the petitioner has preferred Criminal Appeal No. 461 of 2007 and the said appeal has been admitted. Along with the appeal petitioner preferred an application under Section 389 of Code of Criminal Procedure being Criminal Misc. Application No. 2644 of 2007 for suspension of sentence and releasing him on bail. That petitioner has been released on bail by suspending sentence by the learned Single Judge of this Court vide order dated 16.3.2007. Along with the appeal petitioner preferred an application under Section 389 of Code of Criminal Procedure being Criminal Misc. Application No. 2644 of 2007 for suspension of sentence and releasing him on bail. That petitioner has been released on bail by suspending sentence by the learned Single Judge of this Court vide order dated 16.3.2007. That, thereafter petitioner has been served with the show cause notice dated 4.6.2007 in view of the conviction of the petitioner under the Prevention of Corruption Act and the petitioner was required to show cause why a major punishment shall not be imposed on him under the Rules. That the petitioner replied to the said show cause notice on 8.6.2007 stating that as the judgment and order of conviction and sentence is subject matter of challenge before this Court by way of Criminal Appeal wherein sentence has been suspended, it was requested not to take any action till pendency of the said appeal. That, thereafter respondent No.2 has passed the impugned order dated 13.4.2009 purported to be under the provisions of Rule 14(1)(2) of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971, dismissing the petitioner from service as a Medical Officer, Class II. That being aggrieved and dissatisfied with the impugned order of dismissal, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 3. Shri Tejas Barot, learned Advocate appearing on behalf of the petitioner has vehemently submitted that in view of the pendency of the Criminal Appeal against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge convicting the petitioner for the offences under the Prevention of Corruption Act and in view of the sentence being suspended the impugned order of dismissal deserves to be quashed and set aside. It is further submitted that the impugned order has been passed under Rule 14(1)(2) of the Gujarat Civil Service (Discipline & Appeals) Rules, 1971, however the said Rule shall not be applicable as the said Rule is with respect to dispensing with the inquiry where the disciplinary authority is satisfied for the reasons to be recorded in writing that is not reasonably practical to follow the procedure prescribed in Rules 8 & 9. It is further submitted that impugned order is absolutely cryptic and non speaking order. It is further submitted that impugned order is absolutely cryptic and non speaking order. It is submitted that no reasons have been recorded while passing the impugned order as contemplated under Rule 14(1)(2) of the said Rules. Shri Tejas Barot, learned Advocate appearing on behalf of the petitioner has relied upon the decision of the Division Bench of this Court in the case of Kiritkumar D. Vyas vs. State of Gujarat & Anr. reported in 1982 (2) GLR 79 . It is submitted that as held by the Division Bench of this Court even if an employee is convicted, before taking disciplinary action opportunity must be given to employee in regard to quantum of punishment. It is submitted that as held by the Division Bench of this Court mere conviction would not “dispense with the requirement of giving of reasonable opportunity”. By making above submissions and relying upon the aforesaid decision, it is requested to allow the present Special Civil Application. 4. Petition is opposed by Ms. Calla, learned AGP appearing on behalf of the respondent State. It is submitted that Rule 14(1)(i) confers power upon the disciplinary authority to dismiss the employee on conviction. It is submitted that the said powers are vested under Rule 14(1)(i). It is submitted that even in the show cause notice Rule 14(1)(i) of the Discipline & Appeals Rules, 1971 has been mentioned and it appears that by mistake and through oversight while passing the impugned order Rule 14(1)(2) has been mentioned. It is submitted that mere wrong mention of the provisions would not make the order illegal if otherwise the impugned order is in accordance with law. 5. Now, so far as the submission on behalf of the petitioner that as the Criminal Appeal against the judgment and order of conviction and sentence has been admitted and pending for final hearing before this Court and the petitioner has been released on bail by suspending the sentence order of dismissal cannot be passed is concerned, it is submitted that merely because, sentence is suspended, the conviction is not suspended. It is submitted that conviction still stands. Therefore, it is submitted that so long as the conviction stands it is within the power of authority to dismiss the employee from service. It is submitted that suspension of sentence and suspension of conviction both are different. It is submitted that conviction still stands. Therefore, it is submitted that so long as the conviction stands it is within the power of authority to dismiss the employee from service. It is submitted that suspension of sentence and suspension of conviction both are different. It is submitted that in the rarest of rare case the conviction is suspended. It is submitted that admittedly in the present case conviction is not suspended and therefore, the authority is justified in dismissing the petitioner from service invoking Rule 14(1)(i) of the Discipline & Appeals Rules, 1971. It is further submitted that even otherwise the balance of convenience is also in favour of the department as at this stage on conviction the petitioner is to be dismissed from service. If, ultimately the petitioner succeeds in Criminal Appeal and his conviction is set aside in that case, necessary consequence can follow. 6. Meeting with the decision relied upon by the learned Advocate appearing on behalf of the petitioner Kiritkumar D. Vyas (Supra), it is submitted that the said decision was in the facts of that case. It is submitted that in the present case the petitioner has been given opportunity and show cause notice was issued before passing the impugned order. It is also further submitted that when the petitioner has been convicted for the offences under the Prevention of Corruption Act, only order of penalty can be dismissal from service and no other penalty can be imposed and there cannot be any lesser penalty then the dismissal and, therefore, the impugned order /decision is just and proper and the petition deserves to be dismissed. 7. Heard the learned Advocates appearing on behalf of the respective parties. It is not in dispute that the petitioner has been convicted for the offences under the Prevention of Corruption Act and is sentenced to undergo RI for three years along with fine of Rs. 5000/-. It is true that against the judgment and order of conviction Criminal Appeal before this Court is pending and petitioner has been released on bail by this Court by suspending sentence. However, by releasing petitioner on bail by suspending the sentence it cannot be said that conviction has been suspended. Conviction still stands until it is set aside by the higher forum and accused is acquitted. Rule 14(1)(i) confers power upon the disciplinary authority to dismiss an employee on conviction. However, by releasing petitioner on bail by suspending the sentence it cannot be said that conviction has been suspended. Conviction still stands until it is set aside by the higher forum and accused is acquitted. Rule 14(1)(i) confers power upon the disciplinary authority to dismiss an employee on conviction. Considering the above, when on conviction petitioner has been dismissed from service after giving an opportunity and issuing show notice, it cannot be said that the said order is in any way illegal and / or arbitrary. Under the circumstances, the contention on behalf of the petitioner that as the Criminal Appeal is pending and the sentence is suspended and he is released on bail by this Court in exercising the powers under Section 389 of the Code of Criminal Procedure, order of dismissal cannot be passed and ought not to have been passed cannot be accepted. 8. It is the contention on behalf of the petitioner that while passing the impugned order the respondent No.2 has mentioned Rule 14(1)(2) of the Discipline & Appeals Rules, 1971 and it provides for dispensing with the departmental inquiry in certain circumstances and for the reasons to be recorded. Therefore, it is submitted that as no reasons have been recorded for dispensing with the inquiry and Rule 14(1)(2) does not contemplate dismissal order of an employee on conviction, the impugned order deserves to be quashed and set aside. The aforesaid submission cannot be accepted. Looking to the show cause notice served upon the petitioner after the conviction and by which the petitioner was required to show cause why on conviction a major penalty shall not be imposed Rule 14(1)(i) of the Discipline & Appeals Rules, 1971 that has been referred to. It appears that by mistake Rule 14(1) (2) has been referred in the impugned order. As held by the Hon’ble Supreme Court as well as this Court in catena of decisions mere wrong mentioning of Section and/ or provision the order shall not be rendered illegal, if otherwise it is in accordance with law. Learned advocate appearing on behalf of the petitioner is not in position to dispute that on conviction employee/ petitioner cannot be dismissed. Learned advocate appearing on behalf of the petitioner is not in position to dispute that on conviction employee/ petitioner cannot be dismissed. Under the circumstances, when the impugned order of dismissal on conviction of the petitioner for the offences under the Prevention of Corruption Act is otherwise in accordance with law, more particularly, Rule 14(1)(i) of the Discipline & Appeals Rules 1971, mere wrong mentioning of Rule does not invalidate and / or make the order illegal. Under the circumstances, the impugned order is not required to be quashed and set aside on the aforesaid ground. 9. Now, so far as reliance placed upon the decision of the Division Bench of this Court in the case of Kiritkumar D. Vyas (Supra) is concerned, it is required to be noted that in the case before the Division Bench a workman - a Class IV employee was dismissed from service on conviction for the offences under the Prohibition Act and without giving any opportunity. Therefore, on the facts the Division Bench has of the opinion that if an opportunity would have given, the said employee would have satisfied the authority with respect to the lesser punishment, therefore, on facts the Division Bench has held that an opportunity ought to have been given to the employee and on mere conviction for the offences under the Prohibition Act the order of dismissal ought not to have been passed. On facts of the present case, the said decision would not be applicable. In the present case, the petitioner has been given the opportunity and a show cause notice was issued upon the petitioner after conviction and the petitioner was required to show cause why a major penalty should not be imposed and petitioner did submit the reply to the show cause notice also and thereafter impugned order has been passed. Therefore, on facts even the opportunity has been given to the petitioner. Even otherwise, it is required to be noted that petitioner has been convicted for the offences under the Prevention of Corruption Act. Once an employee has been convicted for the offences under the Prevention of Corruption Act, the only penalty which could be imposed is the order of dismissal and there cannot be any other lesser penalty then the order of dismissal in the case where an employee is convicted for the offences under the Prevention of Corruption Act. Once an employee has been convicted for the offences under the Prevention of Corruption Act, the only penalty which could be imposed is the order of dismissal and there cannot be any other lesser penalty then the order of dismissal in the case where an employee is convicted for the offences under the Prevention of Corruption Act. Under the circumstances also, the impugned order is not required to be quashed and set aside. In the facts and circumstances of the case, authority is justified in dismissing the petitioner from service on conviction for the offences under the Prevention of Corruption Act. 10. Even, the impugned decision is also required to be considered from another angle. If the petitioner is ultimately acquitted and his Criminal Appeal is allowed , in that case, necessary consequence can follow and the petitioner can be compensated by way of back wages. However, at this stage during the pendency of the Criminal Appeal if the petitioner is not dismissed and is continued in service in that case, if ultimately the Criminal Appeal is dismissed and the conviction is confirmed and thereafter the petitioner is dismissed, in that case it will be very difficult for the State Government to recover the amount of salary etc. paid to the petitioner during the aforesaid interregnum period. Under the circumstances also the impugned order of dismissal is warranted. 11. For the reasons stated above, petition fails and deserves to be dismissed and is accordingly dismissed.