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2014 DIGILAW 730 (GUJ)

Anilkumar Ramniklal Trivedi v. State of Gujarat

2014-07-07

R.P.DHOLARIA, V.M.SAHAI

body2014
JUDGMENT : Vijay Manohar Sahai, J. We have heard Mr. Vaibhav A. Vyas, learned counsel appearing for the appellant, Mr. Harsheel Shukla, learned Assistant Government Pleader appearing for respondent Nos.1 to 3 and Mr. H.S. Munshaw, learned counsel appearing for the respondent No.4. 2. This Intra-Court Letters Patent Appeal has been filed by the appellant-original petitioner challenging the judgment and order dated 21.1.2013 passed by the learned Single Judge in Special Civil Application No.9247 of 2002 whereby the learned Single Judge dismissed the writ petition of the appellant. 3. The brief facts of the case are as under :- 3.1. The appellant was working as Junior Clerk with the District Panchayat, Banaskantha. The wife of the appellant committed suicide on 09.07.1995 and a complaint came to be lodged against the appellant and his family members before the Tharad Police Station, being I-C.R. No. 90 of 1995, for the offences punishable under Sections 498(A), 306, 302, 304(B), 201 and 114 of the Indian Penal Code. In pursuance of the said complaint, the appellant came to be arrested on 12.07.1995 and he was put under suspension vide order dated 03.08.1995, with effect from the date of his arrest, i.e. 12.07.1995. On filing of the charge-sheet in connection with the aforesaid FIR, the same was numbered as Session Case No. 16 of 1996. On completion of the trial in the aforesaid case, the Sessions Court acquitted all the accused including the appellant. 3.2. Pursuant thereto, the appellant made a representation to the respondent authorities for his reinstatement and regularisation of the service for the aforesaid period. The competent authority passed an order of reinstatement on 31.03.1997 and the appellant resumed his duties on 2.4.1997. Thereafter, on 19.09.1997, respondent No.4 passed an order whereby the intervening period, during which the appellant was in jail, was treated as period under suspension. Being aggrieved thereby, the appellant preferred an appeal, which came to be dismissed by respondent No.3 vide order dated 28.04.1999. The appellant, therefore, preferred revision/representation before respondent No.2, who was pleased to reject the same vide order dated 19.10.2001. 3.3. Being aggrieved thereby, the appellant preferred an appeal, which came to be dismissed by respondent No.3 vide order dated 28.04.1999. The appellant, therefore, preferred revision/representation before respondent No.2, who was pleased to reject the same vide order dated 19.10.2001. 3.3. The appellant finding no other way out challenged all the three orders mentioned above by filing Special Civil Application No.9247 of 2002 and also prayed for a direction to the respondent authorities to treat the period spent by the appellant under suspension from 12.7.1995 to 1.4.1997 as duty period for all purposes, with all consequential benefits. 3.4. The said writ petition came to be dismissed by the learned Single Judge by the impugned judgment and order dated 21.1.2013. While dismissing the writ petition, the learned Single Judge placed reliance on the conjectural observations made by the learned Sessions Judge and also relied upon a Division Bench decision in the case of K.D. Desai v. High Court of Gujarat, 2009 (3) GLH 631 . 4. After hearing the learned counsel for the parties, we are of the opinion that the observations made by the learned Sessions Judge to the effect that it is possible that the prosecution witnesses might have entered into a compromise with the accused and on account of that, they may not be giving evidence against the accused and that the accused might have won over the witnesses is merely based on conjectures and surmises. There was no material on the record which warranted such an assumption by the learned Sessions Judge. The learned Single Judge committed an error in relying upon such an assumption made by the learned Sessions Judge for denying continuity of service. Furthermore, the Division Bench of this Court in the case of K.D. Desai (Supra), was not applicable to the facts of the case as in the said case, the question for consideration was that in service jurisprudence, both in criminal and departmental action, if a criminal action is initiated against an employee and on the basis of the same, departmental proceeding is also initiated and if the said person is acquitted in the criminal action, even then the departmental action will survive. This is not the case here. This is not the case here. In the present case, as the appellant was involved in the criminal offence and he was taken into custody for more than 48 hours, consequently therefore, in view of the deeming provision, he was put under suspension and till his acquittal, his suspension continued. Indisputably, the Department has not initiated any departmental proceedings against him, but due to his involvement in the criminal offence, he was put under suspension. Here, it is a simple case of suspension on account of filing of criminal case against the appellant with no departmental proceedings against the appellant. We have perused the judgment rendered in Sessions Case No.16 of 1996 wherein the appellant as well as his two family members were charge-sheeted and after conclusion of the trial, the learned Sessions Judge has rendered the judgment of clear acquittal and the appellant has been held to be innocent so far as the offence is concerned. So precisely, there appears no finding that any benefit of doubt is given to the present appellant. Therefore, the impugned judgment of the learned Single Judge cannot be maintained and deserves to be set aside. 5. In the result, this Letters Patent Appeal succeeds and is allowed. The judgment and order dated 21.1.2013 passed by the learned Single Judge in Special Civil Application No.9247 of 2002 is quashed and set aside. The orders dated 19.9.1997 passed by the Deputy District Development Officer, Banaskantha, order dated 28.4.1999 passed by the District Development Officer and order dated 19.10.2001 passed by the Additional Development Commissioner, Gandhinagar are also quashed and set aside. The respondents are directed to treat the appellant's service for the period on which the appellant was placed under suspension i.e. from 12.07.1995 to 1.4.1997 as continuous service for all purposes, except the pay during the period of his suspension. However, the appellant will not be entitled to any difference of salary for the said period under suspension and for the said period, the appellant will be treated on leave. If leave is not available with the appellant, then it shall be treated as leave without payment. In view of disposal of main appeal, Civil Application also stands disposed of accordingly. L.P.A. Allowed.