Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 258 (GUJ)

Ramesh Chimanbhai Patni v. State of Gujarat

2019-03-25

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. The present writ petition has been filed seeking quashing and setting aside of an order dated 12.05.2000 passed by the Commissioner of Police, Ahmedabad City, dismissing the petitioner as well as the order dated 31.08.2010 passed by the Director General of Police (Inquiry), Gujarat State and order dated 18.03.2014 passed by the Home Department, Government of Gujarat, confirming and upholding the dismissal order of the petition. 2. The brief facts leading to filling of the present petition are mentioned below:- 2.1 The petitioner was alleged to have been involved in several criminal cases during his service tenure. A list of the police complaints wherein the petitioner was alleged to have been involved is mentioned herein-below: (i) First Information Report No. 171 of 1991 dated 09.06.1991 for the offences punishable under Sections 324 and 504 of the Indian Penal Code, 1860 and Section 135(1) of the Bombay Police Act, registered with Gomtipur Police Station, Ahmedabad. (ii) First Information Report No. 177 of 1991 dated 11.06.1991 for offences punishable under Sections 323, 324 read with Section 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act, registered with Shaher Kotda Police Station, Ahmedabad. (iii) First Information Report No. 220 of 1998 dated 18.09.1998 for the offences punishable under Sections 307, 294 read with Section 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act, registered with Gomtipur Police Station, Ahmedabad. (iv) First Information Report No. 221 of 1998 dated 18.09.1998 for the offences punishable under Sections 323, 294, 427, 452, 506(2) read with Section 114 of the Indian Penal Code and Section 135(1) of the Bombay Police Act registered with Gomtipur Police Station, Ahmedabad. (v) First Information Report No. 138 of 1999 dated 29.06.1999 for the offences punishable under Sections 323, 419, 504, and 170 of the Indian Penal Code registered with Karanj Police Station, Ahmedabad. (vi) First Information Report No. 157 of 1998 dated 29.06.1998 for the offences punishable under Sections 384, 385 and 170 of the Indian Penal Code registered with Karanj Police Station, Ahmedabad. (vii) First Information Report No. 177 of 1998 dated 24.07.1998 for offences punishable under Sections 384 and 170 read with Section 114 of the Indian Penal Code registered with Karanj Police Station. (vii) First Information Report No. 177 of 1998 dated 24.07.1998 for offences punishable under Sections 384 and 170 read with Section 114 of the Indian Penal Code registered with Karanj Police Station. (viii) First Information Report No. 75 of 1999 dated 09.03.1999 for offences punishable under Section 384 of the Indian Penal Code registered with Karanj Police Station. (ix) First Information Report No. 358 of 1999 dated 17.04.1999 for offences punishable under Sections 384 read with Section 114 of the Indian Penal Code registered with Karanj Police Station. (x) First Information Report No. 359 of 1999 dated 18.10.1999 for offences punishable under Section 384 of the Indian Penal Code registered with Karanj Police Station. (xi) First Information Report No. 355 of 1999 dated 17.11.1999 for offences punishable under Sections 384 read with Section 114 of the Penal Code registered with Karanj Police Station. (xii) First Information Report No. 83 of 1996 was registered against petitioner for remaining absent from work under Section 145(2) of the Bombay Police Act with Madhupura Police Station. The petitioner was arrested in connection with almost all the aforesaid cases and in some instances was placed under suspension by the department. 2.2 The Commissioner of Police, Ahmedabad passed an order of preventive detention against the petitioner under provisions of the Prevention of Anti-Social Activities Act, 1985 (PASA) on 03.01.2000. The petitioner was detained pursuant to the said order and lodged in Jamnagar District Jail to serve out the detention period. 3. At the outset, learned Senior Counsel Mr. Shalin Mehta appearing with Mr. Buch submitted that the petitioner has been acquitted in all the criminal cases and the appeals filed by the State Government challenging his acquittal by the trial court have also been dismissed. He has submitted that the petitioner, after his acquittal, immediately made a representation/appeal/review before the Director General of Police (Inquiry) on 11.08.2009, which came to be rejected by the order dated 31.08.2010. Thereafter, the petitioner preferred revision application before the Home Department, Government of Gujarat on 03.01.2011 and the same was rejected by the order dated 18.03.2014 on the ground that it is filed beyond the period of limitation. 3.1 Learned Senior Counsel Mr. Shalin Mehta has submitted that the impugned order of dismissal as well as the further orders are passed only on the basis of lodging of the criminal cases against the petitioner. 3.1 Learned Senior Counsel Mr. Shalin Mehta has submitted that the impugned order of dismissal as well as the further orders are passed only on the basis of lodging of the criminal cases against the petitioner. However, since the petitioner is subsequently acquitted and the appeals are also dismissed, hence, the petitioner is required to be reinstated in service. In support of his submissions, reliance has been placed on the judgment in the case of State Bank of India and Another vs. Mohammed Abdul Rahim, (2013) 11 SCC 67 . 3.2 It is further submitted by the learned Senior Counsel on behalf of the petitioner that the impugned order is passed under Article 311(2) 2nd Proviso Clause-(b) of the Constitution of India on the ground that since, the petitioner is involved in the criminal cases it would not be appropriate to held a departmental inquiry against him. Thus, it is submitted that once the respondents have chosen not to do any departmental inquiry against the petitioner and the impugned order is passed only on the lodging the criminal cases, the petitioner is to be reinstated in service in view of his acquittal. 4. The learned Assistant Government Pleader has submitted that looking to the criminal cases, it was thought appropriate by the respondent authority/ Home Department to inquire against the petitioner. He has submitted that since the acquittal was not on merits, the petitioner would not be entitled to any reinstatement. In support of his submissions, reliance has been placed on the decision rendered by the Supreme Court in the case of Baljinder Pal Kaur vs. State of Punjab, 2016 (1) SCC 671 . 4.1 Finally it is submitted by the learned AGP that the writ petition is liable to be dismissed on the ground of delay since, the petitioner has preferred the present petition belatedly. He has submitted that the petitioner was dismissed from service vide order dated 12.05.2000 and the petition is filed in the year 2015 challenging the same. 5. I have given my thoughtful consideration to the submissions advanced by the learned advocates for the respective parties and have perused the documents on record also. 6. A perusal of the impugned order dated 12.05.2000 clarifies that respondent no. 3 has passed an order of dismissal in view of the filing of the six criminal cases against the petitioner. The respondent no. 6. A perusal of the impugned order dated 12.05.2000 clarifies that respondent no. 3 has passed an order of dismissal in view of the filing of the six criminal cases against the petitioner. The respondent no. 3 has observed that since there is a possibility of the witnesses being threatened by the petitioner, it would not be appropriate to hold a departmental inquiry against the petitioner and the same was dispensed with by in view of the provisions of Article 311(2) 2nd Proviso Clause-(b) of the Constitution of India as well as Section 25 of the Bombay Police Act, 1951 and hence, as recorded in the impugned order, it would be appropriate to dismiss the petitioner from service. 7. It is not in dispute that in the impunged order refers to 6 criminal cases. It appears that in all there were 12 criminal cases which have been lodged against the petitioner and the petitioner has been acquitted in all of them. In most of the cases, appeals are not preferred against the same. As per the statement provided by the learned AGP, the petitioner was lastly acquitted by the Sessions Court in the FIR being No. 359 of 1999 lodged for the offence under Section 384 of the IPC on 18.10.1999, vide judgment and order dated 26.09.2013. 8. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of State Bank of India and Another vs. Mohammed Abdul Rahim (supra):- “8. Before delving into the contentious issues arising from the arguments advances, the issue with regard to the applicability of the provisions of the Sastry Award may be dealt with in the first instance. According to us, the said provisions do not have any special significance in as much as there can be no doubt on the proposition that on the very same facts that give rise to a criminal offence it is always open to the employer to initiate a departmental proceedings which option the employer may or may not exercise. In the event the employer chooses to initiate a departmental proceedings, it would be open for such an employer to take disciplinary action against the erring employee if the charges levelled are found to be substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. In the event the employer chooses to initiate a departmental proceedings, it would be open for such an employer to take disciplinary action against the erring employee if the charges levelled are found to be substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that standard of proof in a criminal case and a departmental proceeding is different. However, in a case where the employer chooses not to initiate a departmental proceedings and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same i.e. in case of a reversal. The provisions of the Sastry Award, relied upon on behalf of the respondent, therefore, do not in any manner alter the basic principles surrounding the initiation of a criminal action and a departmental enquiry on the same set of facts and the consequences thereof. 9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that had led to the respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service, as act that has been duly performed by the appellant Bank.” 9. The Supreme Court has enunciated that in case where the employee chooses not to initiate a departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same i.e. in case of reversal. It was further observed that in case the employee is acquitted the same would relate back and the initial order of conviction would stand obliterated. It is further held that the substratum of the cause that had led to the impugned dismissal or discharge of the petitioner has ceased to exist and the same would entitle him to be reinstated in service. 10. In the present case, the petitioner, in all 12 criminal cases was acquitted and the acquittal appeals filed against his acquittal were also dismissed. 10. In the present case, the petitioner, in all 12 criminal cases was acquitted and the acquittal appeals filed against his acquittal were also dismissed. Unquestionably, the order of the dismissal dated 12.05.2000 is passed on the lodging of the criminal cases against the petitioner. Thus, the substratum of the filing of the criminal cases against the petitioner which resulted in his dismissal gets obliterated in view of his acquittal. 11. As regards the contention raised by the learned AGP about delay, the same is not well-founded since, the appeals of the petitioner in some of the cases are dismissed on 26.03.2013. Prior to that, when the petitioner was acquitted, the petitioner had preferred an appeal and review application before the Director General of Police, Gujarat State on 11.08.2009 and the same was rejected vide order dated 31.08.2010. The petitioner has also preferred revision application on 03.01.2011 before the State Government, which was also dismissed vide communication dated 18.03.2014. After availing the aforesaid remedies the petitioner has filed the present petition, hence, under no circumstances, it can be said that the petition has been filed belatedly in the year 2015 challenging the order dated 12.05.2000. The petitioner has also challenged the subsequent orders in appeal as well as in the revision, which was lastly rejected on 18.03.2014 and hence, the contention raised by the learned AGP stands rejected. 12. The Supreme Court in the case of Reena Rani vs. State of Haryana and Others, (2012) 10 SCC 215 while examining the provisions of Article 311(2) 2nd Proviso Clause (b) of the Constitution of India, wherein the departmental inquiry was dispensed with on the ground on non-availability of the independent witness has observed thus:- “7. In the order of dismissal, the Superintendent of Police has not disclosed any reason as to why it was not reasonably practicable to hold regular departmental enquiry. The learned Additional Advocate General fairly stated that the order of dismissal does not contain the reasons as to why it was not reasonably practicable to hold regular departmental enquiry against the appellant. He also admitted that no other record has been made available to him which would have revealed that the Superintendent of Police had recorded reasons for forming an opinion that it was not reasonably practicable to hold regular department for providing the particular charges against the appellant. 8. He also admitted that no other record has been made available to him which would have revealed that the Superintendent of Police had recorded reasons for forming an opinion that it was not reasonably practicable to hold regular department for providing the particular charges against the appellant. 8. In view of the above, we hold that the learned Single Judge and the Division Bench of the High Court committed serious error by negating the appellant's challenge to her dismissal from service without enquiry. The Division Bench of the High Court did not examine the issue in the correct perspective and made general observations that each case is required to be decided on its own facts and no straitjacket formula can be adopted to decide whether it is reasonable and practicable to hold regular enquiry for imposing major penalty of dismissal from service. Such general observations could not have been made basis for approving her dismissal from service without enquiry. 9. xxx xxx xxx 10. xxx xxx xxx 11. xxx xxx xxx 12. In the result, the appeal is allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by the appellant is allowed with the direction that she shall be reinstated in service and given all consequential benefits. However, it is made clear that this order shall not preclude the competent authority from taking action against the appellant in accordance with law. At the same time, we deem it necessary to observe that liberty given by this Court shall not be construed as a mandate for initiation of disciplinary proceeding against the appellant and the competent authority shall take appropriate decision after objectively considering the entire record.” In the instant case, the respondent no. 3 has dispensed with the inquiry on the presumption that the witness will be threatened by the petitioner. The respondent no. 3 has not cared to verify such aspects. The impugned order is blissfully silent on the aspect whether the witnesses were contacted and they had refused to depose in the departmental proceedings due to any threat given by the petitioner. Thus, the departmental inquiry cannot be dispensed with by resorting to the provisions of Article 311(2) on presumption. 13. 3 has not cared to verify such aspects. The impugned order is blissfully silent on the aspect whether the witnesses were contacted and they had refused to depose in the departmental proceedings due to any threat given by the petitioner. Thus, the departmental inquiry cannot be dispensed with by resorting to the provisions of Article 311(2) on presumption. 13. As regards reliance placed on the judgment of the Apex Court in the case of Baljider Pal Kaur (supra) by the learned AGP, the same would not apply in the present case since, in the case before the Supreme Court, disciplinary proceedings were held simultaneously with the pendency of the criminal case. Hence, the same would stand on a different footing since, in the present case no departmental proceedings are held in the criminal prosecution filed against the petitioner for dismissing from service. Thus, in view of the law enunciated by the Court in the cases of Reena Rani (supra) and Mohammed Abdul Rahim (supra), the impugned order of dismissal of the petitioner as well as the subsequent orders confirming the dismissal are hereby quashed and set aside. 14. In light of the final directions made by the Supreme Court in the case of Reena Rani (supra) the respondents are hereby directed to reinstate the petitioner in service with all consequential benefits. However, it is made clear that the petitioner will be entitled to the aforesaid benefit after the dismissal of the appeals from 26.09.2013. The petitioner shall be given all the consequential benefits from that date. It is also made clear that this order shall not preclude the competent authority from taking action against the petitioner in accordance with law by holding appropriate disciplinary proceedings against him. The competent authority shall take appropriate decision after objectively considering the entire record and the acquittal of the petitioner. Necessary orders shall be passed in this regard within a period of 03 (three) months from the date of receipt of the present order. 15. The present petition is allowed accordingly. Rule made absolute to the aforesaid extent.