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2015 DIGILAW 682 (GUJ)

Savjibhai Naranbhai Adroja v. State of Gujarat

2015-07-09

J.B.PARDIWALA

body2015
JUDGMENT J.B. Pardiwala, J. 1. By this writ-application under Article 226 of the Constitution of India, the petitioner a retired employee has prayed for the following reliefs:- "A. The Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring the impugned decision on the part of respondent No. 2 & 3 not regularizing the period of suspension and non-payment of the pension and retirement dues to petitioner, as illegal, unjust, arbitrary and be pleased to direct respondents to pay all the retirement benefits to the petitioner with 12% interest and further direct the respondent No. 1 to recover the amount of interest % cost from the personal pay of the erring officer. B. This Hon'ble Court be pleased to declare that without any justification the amount of provident fund, leave encashment etc. are illegally withheld by the respondents which were required to be paid to the petitioner immediately on dismissal/retirement of the petitioner. C. Pending admission and final disposal of this petition, be pleased to direct the respondents to pay forthwith the due amount payable to the petitioner towards retirement benefits. D. Pending admission and final disposal of this petition, be pleased to direct the respondents to start paying pension to the petitioner to enable him to maintain himself and family. E. Any other and further relief this Hon'ble Court deem fit and proper, in interest of justice." 2. The facts giving rise to this application may be summarized as under:- 3. The petitioner joined the services of the respondent as the Talati-cum-Mantri w.e.f. 7th December, 1998 and was posted at the Taluka Panchayat Morbi. It appears that in the year 2003 one M. Case No. 8 of 2003 came to be registered against him for the offence punishable under Sections 465, 467, 468, 471, 473 read with Section 114 of the Indian Penal Code. The F.I.R. was lodged by the Circle Officer. On completion of the investigating, the charge-sheet was filed which culminated in the criminal case No. 1370 of 2003, in the Court of the Chief Judicial Magistrate, Morbi. 4. The criminal trial resulted in the conviction of the petitioner herein and was sentenced to undergo rigorous imprisonment for a period of four years with fine. 5. On completion of the investigating, the charge-sheet was filed which culminated in the criminal case No. 1370 of 2003, in the Court of the Chief Judicial Magistrate, Morbi. 4. The criminal trial resulted in the conviction of the petitioner herein and was sentenced to undergo rigorous imprisonment for a period of four years with fine. 5. The petitioner on being convicted by the criminal Court came to be dismissed from service vide order dated 27th January, 2006, passed by the respondent No. 2. 6. It appears that the petitioner challenged the order of conviction and sentence by filing the Criminal Appeal No. 9 of 2005 before the Sessions Court at Morbi. The Sessions Court allowed the appeal and accordingly acquitted the petitioner. 7. On being acquitted by the Appellate Court, the petitioner requested the respondent No. 2 to reinstate him in service with all consequential benefits. It appears that the respondents thought fit not to reinstate the petitioner in service, although he came to be acquitted by the Appellate Court. 8. In such circumstances referred to above, the petitioner approached the Gujarat Civil Services Tribunal, Gandhinagar by filing an Appeal No. 156 of 2008. The Tribunal vide its order dated 16th November, 2011 allowed the appeal and directed that the petitioner be reinstated in service w.e.f. 27th October, 2007, and further directed that the period of suspension be treated as on duty, and pension case of the petitioner be finalized accordingly. 9. It appears that the State of Gujarat filed Criminal Appeal No. 1597 of 2008 before this Court challenging the judgment and order of acquittal passed by the Appellate Court. The Criminal Appeal against the order of acquittal was ordered to be admitted by this Court and is pending as on today. 10. In view of the specific directions issued by the Tribunal, the petitioner came to be reinstated in service, vide order dated 5th March 2013 w.e.f. 27th October, 2007. Such order was passed by the Deputy District Development Officer, District Panchayat, Rajkot. 11. After reinstatement the petitioner was posted at the village Padhdhari, District-Rajkot. 12. It is the case of the petitioner that although he was ordered to be reinstated in service w.e.f. 27th October, 2007, yet no decision was taken as regards the regularization of the period of suspension as well as the grant of the consequential benefits. 13. 11. After reinstatement the petitioner was posted at the village Padhdhari, District-Rajkot. 12. It is the case of the petitioner that although he was ordered to be reinstated in service w.e.f. 27th October, 2007, yet no decision was taken as regards the regularization of the period of suspension as well as the grant of the consequential benefits. 13. It appears that by the time he could report at village-Padhdhari he attained superannuation. He attained superannuation on 28th February, 2009. 14. The petitioner kept on filing representations to the respondent No. 3 seeking full compliance of the order passed by the Tribunal referred to above. However, the respondents failed to respond to such representations filed by the petitioner. Hence this petition. 15. Ms. Reena M. Kamani, the learned advocate appearing for the petitioner vehemently submitted that the petitioner should have been reinstated in service with all consequential benefits. She submitted that the respondents have not passed any order of regularization of the suspension period and thereby withholding the difference of pay to be paid to the petitioner. She submitted that while the petitioner was under suspension he was being paid the subsistence allowances according to the rules but on being acquitted of the criminal charge by the Appellate Court the period should have been regularized. 16. She submitted that the respondents should have fixed the pay of the petitioner treating him in continuous service for all purpose. She submitted that although the petitioner was ordered to be reinstated in the year 2013 w.e.f. 27th October, 2007 yet no amount towards the salary for the period between 27th October, 2007 and 28th February, 2009 has been paid. 17. In such circumstance referred to above Ms. Kamani, the learned advocate prays that the relief prayed for in this petition be granted. 18. On notice being issued to the respondents they have appeared. The respondent No. 2 - District Development Officer, Rajkot has filed an affidavit-in-reply, inter alia, making the following averments in paragraph Nos. 3 & 4:- "3. The respnt. No. 2 submits that against the order of acquittal by the Fast Tract Court, the State of Gujarat has preferred Criminal Appeal No. 1597/08 before the Hon'ble High Court of Gujarat. The respondent No. 2 - District Development Officer, Rajkot has filed an affidavit-in-reply, inter alia, making the following averments in paragraph Nos. 3 & 4:- "3. The respnt. No. 2 submits that against the order of acquittal by the Fast Tract Court, the State of Gujarat has preferred Criminal Appeal No. 1597/08 before the Hon'ble High Court of Gujarat. It is submitted that the petitioner herein preferred Appeal No. 156/08 before Hon'ble Gujarat Civil Service Tribunal at Gandhinagar praying for a relief of reinstatement in service pursuant to his acquittal by Fast Track Court and the said appeal was allowed by Hon'ble Tribunal through judgment dated 16.11.11 with a direction that the petitioner herein is deemed to have been reinstated with effect from 27.10.07 and the period of suspension be treated on duty and pension case be prepared by the authority. It is submitted that in view of this an order dated 5.3.13 is passed by the competent authority to the effect that petitioner is reinstated in service subject to the outcome of the proceedings of Criminal Appeal No. 1597/08 pending before the Hon'ble High Court of Gujarat and a copy of the said order is annexed as ANNEXURE-C. It is pertinent to note that as petitioner herein has attained age of superannuation in the month of February, 2009 it was necessary to give a notional effect for various purposes. 4. In view of the above mentioned facts and circumstances the authority is required to compute the benefits of provisional pension, provisional gratuity and Leave Encashment payable to the petitioner after taking necessary actions for the regularization of the period of suspension as well as dismissal in accordance with the provisions of the rules. It is submitted that the said exercise is in progress and needful would be done within a short period." 19. The District Development Officer has filed a further affidavit-in-reply, inter alia, stating as under in paragraph No. 1:- "1. It is submitted that the said exercise is in progress and needful would be done within a short period." 19. The District Development Officer has filed a further affidavit-in-reply, inter alia, stating as under in paragraph No. 1:- "1. The Respondent No. 2 most respectfully submits that during the pendency of the present proceedings further actions are taken on the issue of payment of pension to the petitioner and through order dated 17/07/2014 it is decided that petitioner is entitled to provisional pension as well as gratuity and a copy of the said order is annexed herewith and marked as Annexure-A. It is submitted that the Treasury Officer at Rajkot has to take necessary action in this regard. It is submitted that an amount of Rs. 2,35,700/- is payable towards gratuity after deduction of 10% of the amount. It is pertinent to note that the amount recoverable from the present petitioner would be adjusted against the amount payable towards gratuity and a copy of order is annexed herewith and marked as Annexure-B." 20. Mr. Munshaw, the learned advocate appearing for the District Panchayat, Rajkot submitted that the authority will have to compute the benefits of the provisional pension, provisional gratuity and leave encashment payable to the petitioner. After passing appropriate orders for the regularization of the period of suspension as well as dismissal in accordance with the provisions of the rules, the needful will be done within a short time. He further submitted that vide order dated 17th July, 2014 provisional pension as well as provisional gratuity amount has also been determined. However, he submitted that the Treasury Officer at Rajkot will have to do the needful. 21. Ms. Kamani, the learned advocate appearing for the petitioner in rejoinder submitted that although vide order dated 17th July, 2014, provisional pension has been fixed w.e.f. 1st March, 2009 but till this date not a single penny towards the arrears of the pension amount has been paid to the petitioner. She submitted that the respondents have not made their stance clear so far as the salary payable to the petitioner from 27th October, 2007 till 28th February, 2009 is concerned. She submitted that although the respondents have admitted that the petitioner is entitled to receive the requisite amount towards the leave encashment but nothing has been paid to the petitioner. 22. She submitted that although the respondents have admitted that the petitioner is entitled to receive the requisite amount towards the leave encashment but nothing has been paid to the petitioner. 22. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the reliefs prayed for in this writ-application. 23. Rule 70 of the Gujarat Civil Services provides for regularization of pay and allowances. Rule 70 reads as under:- "70. Regularization of Pay and allowances and the period of absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review and such Government employee, is re-instated: (1) When a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make order of re-instatement shall consider and make a specific order:- (a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of opinion that the Government employee has been fully exonerated or in the case of suspension that was wholly unjustified; the Government employee shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be. (3) In other case, the Government employee shall be given proportion of such pay and allowances as the competent authority may prescribe Provided that the payment of allowances under sub-rule (2) or (3) shall be subject to all other conditions under which such allowances are admissible. (4) In case falling under sub-rule (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In case failing under sub-rule (3) the period of absence from duty shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose. Instruction: Payment of pay and/or allowances under this rule should be withheld for any period during which the Government employee has accepted private employment or engaged in trade or business. Instruction: Payment of pay and/or allowances under this rule should be withheld for any period during which the Government employee has accepted private employment or engaged in trade or business. A certificate as prescribed in sub-rule (4) of rule-69 shall be obtained from him before payment is made. (6) In deciding whether any pay and allowance should be granted under this rule to Government employees in temporary employment, the period for which the temporary appointment has been sanctioned shall be taken into consideration. (7) When an appointment made in consequence of a vacancy caused due to the removal or dismissal of a Government employee is cancelled in order to provide for the reinstatement of the removed or dismissed Government employee, the cancellation shall not affect retrospectively, to the said appointment, and for all purposes, the cancelled appointment shall be held to have been in force upto the date of its cancellation." 24. It appears that vide order dated 17th July 2014, the provisional pension of Rs. 6505/- was fixed according to the revised pay scale and the amount of gratuity was also calculated accordingly. However, once again vide order dated 8th December, 2014, the provisional pension is reduced to Rs. 4000/- and accordingly the amount of gratuity was also reduced to Rs. 1,47,000/- instead of Rs. 2,61,888/-. It appears that the benefit of the 6th Pay Commission recommendation were not extended in favour of the petitioner. 25. It also appears that the salary for the period between 27th October, 2007 and 28th February, 2009 has also not been worked out. Not a single Penny towards the arrears of the pension has been paid to the petitioner. 26. The order of the Tribunal also attained finality. The Tribunal directed reinstatement of the petitioner in service w.e.f. 27th October, 2007, and the period of suspension was also ordered to be treated as on duty. If the suspension period was ordered to be treated on duty and regularized, then in such circumstances, the petitioner is entitled to the arrears from 10th February, 2005 to 28th February, 2009 i.e. the date of superannuation. Although the respondent No. 2 has admitted in his affidavit-in-reply that the petitioner is entitled to the amount of leave encashment taking into consideration 28th February, 2009 as the date of retirement nothing has been paid towards the same. 27. Mr. Rohan Yagnik, the learned AGP appearing for the respondents Nos. Although the respondent No. 2 has admitted in his affidavit-in-reply that the petitioner is entitled to the amount of leave encashment taking into consideration 28th February, 2009 as the date of retirement nothing has been paid towards the same. 27. Mr. Rohan Yagnik, the learned AGP appearing for the respondents Nos. 1 to 4 vehemently opposed this application and submitted that the petitioner is not entitled to the regularization of his pay and allowances. Although he has attained superannuation yet the acquittal appeal filed by the State before this Court is pending as on today. He pointed out that although there is a reference in the order of the Tribunal regarding the acquittal appeal filed by the State Yet the Tribunal overlooked the same and relied on a Government Resolution dated 1st October 2009, issued by the GAD which provides that if an employee has been acquitted in the criminal proceedings and an acquittal appeal is filed by the State than unless and until the order of acquittal is stayed by the Higher Court the employee would be entitled to the finalization of his pension. In support of his submission he relied on a Division Bench decision of this Court in the case of D.M. Gohil vs. State of Gujarat reported in : (2000) 2 GLR 1574 , wherein the Division Bench had the occasion to deal with almost an identical issue. He pointed out that in the case before the Division Bench Rule 250 of the BCSR was interpreted which is analogous to rule 70 of the GCSR, 2002. He placed reliance on the following observations of the Division Bench. "In our opinion, none of the contentions can be upheld. So far as the first prayer is concerned, the relevant provision is Rule 152 of the Rules. The said Rule is material in deciding the controversy raised in this appeal and requires to be quoted in extenso - "152.(1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. (3) In other case, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose." In our opinion, the only interpretation which can be given to the above rules is that the proceedings must have been finalized and the authority must have formed an opinion that the suspension of the Government servant was "wholly unjustified". It is true that in the case on hand, the appellant was acquitted by the Special Judge, Bhavnagar. But it is equally true that an appeal against order of acquittal is filed by the State of Gujarat which is already admitted and awaits final hearing. The question whether or not the appellant was properly acquitted by the Special Judge, Bhavnagar, is at large before this Court. In our considered opinion, therefore, the acquittal recorded against the appellant cannot be said to be final and Rule 152 of the Rules cannot be pressed in service at this stage. The alternative argument of the learned Counsel also cannot be accepted. Since the proceedings are not over and the appeal is still pending, no direction can be issued to the authorities to decide the case of the appellant in accordance with Rule 152 of the Rules. This is a premature stage. The alternative argument of the learned Counsel also cannot be accepted. Since the proceedings are not over and the appeal is still pending, no direction can be issued to the authorities to decide the case of the appellant in accordance with Rule 152 of the Rules. This is a premature stage. Such question can be decided only after the proceedings are over inasmuch as on the basis of the final order passed by a competent Court in criminal proceedings and/or departmental proceedings, the authorities will have to exercise jurisdiction under Rule 152 in accordance with statutory provisions. Hence, even that direction cannot be issued." 28. The following facts are not in dispute. (1) The petitioner was acquitted by the Appellate Court on 26th June, 2007 vide judgment and order passed in Criminal Appeal No. 9 of 2005. (2) The Gujarat Civil Services Tribunal, Gandhinagar passed an order in Appeal No. 156 of 2008, filed by the petitioner herein ordering reinstatement of the petitioner in service w.e.f. 27th October, 2007. The Tribunal also ordered that the period of suspension shall be treated as on duty and the pension case of the petitioner be finalized accordingly. (3) The order of the services Tribunal dated 16th November, 2011 attained finality as neither it was challenged by the Panchayat nor by the State Government. (4) Pursuant to the order passed by the Services Tribunal, the District Development Officer, Rajkot passed an order dated 5th March, 2013 ordering reinstatement of the petitioner w.e.f. 27th October, 2007 subject to the outcome of Criminal Appeal No. 1597 of 2008, filed by the State of Gujarat in this Court. Although the District Panchayat passed an order dated 5th March, 2013 for reinstatement w.e.f. 27th October, 2007 the petitioner could not resume his service because he had already attained superannuation on 28th February, 2009. (5) Till this date the retiral dues of the petitioner have not been settled and the decision to pay pension to the petitioner was taken only in July, 2014. 29. In the backdrop of the aforesaid undisputed facts I am of the view that the objection raised by the learned AGP regarding the pendency of the criminal appeal deserves to be overruled. Mr. 29. In the backdrop of the aforesaid undisputed facts I am of the view that the objection raised by the learned AGP regarding the pendency of the criminal appeal deserves to be overruled. Mr. Yagnik may be right in his own way, more particularly, in view of the Division Bench decision of this Court but at the same time I should not ignore the fact that the order of the Tribunal attained finality and should be given effect to. The Panchayat has also understood the entire matter correctly but it appears that there is some objection at the end of the respondent No. 4 as usual. 30. I am also in agreement with Ms. Kamani that the respondents could not have reduced the provisional pension from Rs. 6505/- to Rs. 4000/- thereby not giving effect to the 6th Pay Commission recommendation. As a result, the amount of gratuity also got reduced from Rs. 2,61,888/- to 1,47,000/-. 31. I am of the view that the petitioner is entitled to draw provisional pension of Rs. 6505/- which was already fixed with arrears including the arrears of the salary for the period between 10th February, 2005 and 28th February, 2009 i.e. the date of superannuation. The petitioner is also entitled to be paid the salary from 27th October, 2007 till the date of his superannuation in terms of the order passed by the Tribunal. The petitioner is also entitled to receive the amount of leave encashment considering 28th February, 2009, as the date of his retirement. 32. In the aforesaid view of the matter, the respondents are directed to act immediately in accordance with the directions of this Court and make the necessary payments within a period of eight weeks from the date of the receipt of the writ of the order at the rate of 8% interest. Rule is made absolute to the aforesaid extent.