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2024 DIGILAW 1573 (GUJ)

VALJIBHAI MITHABHAI SOLANKI v. STATE OF GUJARAT

2024-07-18

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. Admit. Mr. Manohar Rahevar, learned AGP waives service of notice of admission on behalf of respondent No. 1 and Mr. Dipak R.Dave, learned advocate waives service of notice of admission on behalf of respondent Nos. 2 and 3. 2. The present Letters Patent Appeal emanates from the judgment and order dated 31.03.2022 whereby, the learned Single Judge has rejected the writ petition filed by the appellant challenging the action of the respondents of recovering an amount of Rs.2,11,765.74 for a period of suspension from 23.11.2005 to 17.05.2013, which was regularized by the respondent authorities. 3. The facts, which are recorded by the learned Single Judge are not in dispute. The same are incorporated as under: “3. Facts in brief would indicate that the petitioner was engaged as a helper with the respondent nos.2 and 3 electricity company. Since a complaint being C.R. No. I-7 of 2005 against the present petitioner came to be lodged before the ACB Police Station, Amreli, under Sections 7, 15 and 13(2) of Prevention of Corruption Act, the petitioner was suspended and transferred on 23.12.2005. The Special (ACB) Case No. 8 of 2006 was heard by the learned Special Judge, Amreli, and vide judgment and order dated 25.04.2016, the petitioner was acquitted on being given the benefit of doubt. The State went in appeal and the appeal of the State was dismissed by a judgment dated 06.10.2016. On the basis of the judgments of the Criminal Court, the respondent company on 28.12.2018 passed an order regularizing the period of suspension of the petitioner, however, without actual financial benefits in accordance with the Regulation 241(2) of the service regulations of the company. It appears that thereafter on 01.01.2019, the company modifying the order and amending the order of 20.12.2018, inasmuch as, the earlier order which did not grant actual financial benefit was modified to read as extending actual financial benefit of regularization of suspension. 4. On 22.12.2020, the Company unilaterally recalled the order of 01.01.2019 on the basis of Chapter 8 of the Establishment Manual opining that on assessment and reading of the judgment of the Criminal Court, since the petitioner was granted benefit of doubt, it cannot be treated as acquittal. 4. On 22.12.2020, the Company unilaterally recalled the order of 01.01.2019 on the basis of Chapter 8 of the Establishment Manual opining that on assessment and reading of the judgment of the Criminal Court, since the petitioner was granted benefit of doubt, it cannot be treated as acquittal. By the impugned communication, since the order of granting financial benefits for the period of suspension was invoked, the company ordered recovery of the amount so paid to the petitioner.” 4. Mr. Vaibhav Vyas, learned advocate appearing for the appellant at the outset, has pointed out the findings recorded by the trial Court acquitting the appellant for the offences for which, he was charged i.e. under Sections 7, 15 and 13(2) of Prevention of Corruption Act, 1988. He has submitted that in fact, the respondent authorities have believed one line recorded in the trial Court that the appellant has been acquitted by giving benefit of doubt however, on the reading of the observations made by the trial Court in the judgment, it transpires that the appellant was acquitted on merits. He has also submitted that the State had filed an appeal being Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016 assailing the said judgment and the order of the trial Court and in fact, this Court has categorically observed that the complainant by hook or crook, had admitted to frame the appellant. Thus, it is submitted that while passing the order dated 22.12.2020, the respondent-Superintendent Engineer has not considered this aspects and hence, it is urged that the impugned order passed by the respondent-authorities and the learned Single Judge may be quashed and set aside. 5. Mr. Dipak Dave, learned advocate appearing for respondents has submitted that the impugned order does not require any interference and the same is appropriately passed. He has submitted that the appellant was acquitted for the offence by giving benefit of doubt as recorded by the trial Court. Thus, it is urged that as per the provisions of Chapter VIII of the Establishment Manual of the respondent-Board, more particularly, paragraph No. B (page No. 122), the case of the appellant was appropriately considered by the respondent-Board. 6. We have heard the learned advocates appearing for the respective parties. The fact as stated herein are not in dispute. Thus, it is urged that as per the provisions of Chapter VIII of the Establishment Manual of the respondent-Board, more particularly, paragraph No. B (page No. 122), the case of the appellant was appropriately considered by the respondent-Board. 6. We have heard the learned advocates appearing for the respective parties. The fact as stated herein are not in dispute. By the order dated 22.12.2020 passed by the Superintendent Engineer, Circle Office, Amreli, by invoking the provisions of the Establishment Manual of the respondent-Board, the earlier order dated 01.01.2019 regularizing the period of suspension of the appellant from 23.11.2005 to 17.05.2013 has been revoked and consequential recovery has been ordered. 7. The appellant was suspended in view of the registration of a complaint under the provisions of Prevention of Corruption Act, 1988. The trial Court vide judgment and order dated 25.04.2016 passed in Special (ACB) Case No. 8 of 2006 acquitted the appellant for the offences for which, he was charged. Thereafter, it appears that the respondents regularized the suspension period and conferred regular payscale and accordingly, the benefits were given however, subsequently when the appellant requested for fixation of seniority, it appears that by the impugned order, the earlier order was cancelled and differential amount of pay, which was paid for the suspension period has also been ordered to be revoked, on the ground that the appellant was in fact, acquitted by the trial Court by giving benefit of doubt. 8. We have perused the impugned order dated 22.12.2020, the same does not anywhere reflect the application of mind on behalf of the respondent authorities with regard to the findings recorded by the trial Court and also the observations made by this Court in the judgment dated 06.10.2016 passed in Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016. It appears that the respondent-Board, while taking clue from the final order passed by the trial Court has revoked the earlier order regularizing his suspension period. 9. It is a settled legal precedent that while examining the findings of the trial Court, the evidence which has been discussed by the trial Court has to be gone into and not the final order which has been passed by the trial Court. 9. It is a settled legal precedent that while examining the findings of the trial Court, the evidence which has been discussed by the trial Court has to be gone into and not the final order which has been passed by the trial Court. In the present case, it is noticed by us that the findings of acquittal recorded by the trial Court are on merits and in fact, it is recorded that there was no evidence produced by the State during the trial proceedings and whatever evidence which was produced does not directly involve the appellant in the offence. At this stage, it would be apposite to incorporate the observations made by this Court in the judgment dated 06.10.2016 in the Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016, which was filed by the State assailing the judgment and order of the acquittal passed by the trial Court. The observations made are as under: “4. Whereas, PW-2 at Exh.22 is panch witness, namely, Chandrakantbhai Bhikhabhai Bochiya. In addition to all other evidence to confirm acquittal, initially, it is to be recorded that the panch witness has admitted that the complaining party wants the accused to remain present at their home by any means and to pay him money. This goes to show that, particularly, the respondent is trapped not by the prosecuting agency, but by the complainant by hook or crook and thereby, it can be presumed that such complaint is filed to settled some other accounts. The evidence of the witness shows that instead of handing over the money to this accused at his house, when they reached there, it was conveyed to the respondent-accused by the complainant that why you have not come to his house to accept the money and therefore pressing the accused to come to the house of the complainant to accept the money. So, practically, accused was called to attend the non-operative I.C. either to repair it or replace it, and when it reached there, instead of paying the amount of rik\rickshaw charges etc. to the rickshaw driver, tainted currency notes was forcefully handed over to the accused and then, it was disclosed that trap is positive. So, practically, accused was called to attend the non-operative I.C. either to repair it or replace it, and when it reached there, instead of paying the amount of rik\rickshaw charges etc. to the rickshaw driver, tainted currency notes was forcefully handed over to the accused and then, it was disclosed that trap is positive. The witness has categorically admitted in his deposition that in fact the accused and Rameshbhai Chudasama, the rickshaw driver had started to leave the place of the complainant without accepting the bribe and he categorically confirmed that the accused had not accepted the bribe and in fact complainant has placed the amount of bribe back in his pocket, but raiding party has conducted the trap showing that it is a positive trap. Therefore, practically, there is no evidence regarding even acceptance and possession of tainted currency notes by the accused. In cross-examination, witness makes it very clear about what has happened, but he on the contrary confirms that the accused has never demanded or accepted the amount of bribe. 5. In view of above clear set of evidence by two witnesses, practically, there remains nothing, but to confirm the acquittal. However, scrutiny of deposition of other witnesses confirms that they are police officers and sanctioning authority to prosecute the respondent. Therefore, though they are supporting the prosecution story, their evidence alone cannot be sufficient to confirm the conviction because there is no cogent and reliable evidence to confirm the conviction because there is no cogent and reliable evidence to confirm either of the ingredients listed herein-above.” 10. While examining the findings of the trial Court, this Court in Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016 has categorically observed that the respondent (present appellant) is not trapped by the prosecuting agency, but by the complainant by hook or crook and thereby, it can be presumed that such complaint is filed to settle some other accounts. While examining the findings of the trial Court, this Court in Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016 has categorically observed that the respondent (present appellant) is not trapped by the prosecuting agency, but by the complainant by hook or crook and thereby, it can be presumed that such complaint is filed to settle some other accounts. The statement of witness is also examined and it is recorded that “the witness has categorically admitted in his deposition that in fact the accused and Rameshbhai Chudasama, the rickshaw driver had started to leave the place of the complainant without accepting the bribe and he categorically confirmed that the accused had not accepted the bribe and in fact complainant has placed the amount of bribe back in his pocket, but raiding party has conducted the trap showing that it is a positive trap. Therefore, practically, there is no evidence regarding even acceptance and possession of tainted currency notes by the accused.” 11. The entire evidence of the witness is also discussed by the appellate Court in the said judgment and the findings recorded by this Court in the Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016, categorically show that the acquittal cannot be said to be the acquittal by giving the benefit of doubt, but it is the acquittal on merit. The respondent-Board was required to discuss the evidence recorded by the trial Court as well as the observations made by this Court while rejecting the Criminal Misc. Application (Leave to Appeal) No. 17753 of 2016 before passing the impugned order. 12. The intention of the provision under which, the said order is passed, more particularly, paragraph No. B of the Chapter VIII of Establishment Manual cannot absolve the respondent-Board from applying its mind on the findings recorded by the trial Court and also by the appellate Court. It is obligatory for the respondent-Board to discuss the findings recorded by the trial Court and the observation recorded by the appellate Court, before passing appropriate order regulating the period of suspension, which is not done in the present case. The learned Single Judge has also fallen in error in ignoring this vital aspect. 13. Under the circumstances, the impugned order dated 22.12.2020 passed by the respondent-Board is quashed and set aside. The order passed by the learned Single Judge is also quashed and set aside. The learned Single Judge has also fallen in error in ignoring this vital aspect. 13. Under the circumstances, the impugned order dated 22.12.2020 passed by the respondent-Board is quashed and set aside. The order passed by the learned Single Judge is also quashed and set aside. The respondents are directed to pass fresh order in light of the aforesaid observations within a period of eight weeks from the date of receipt of the order of this Court. 14. The present appeal is allowed. The Civil Application (For Stay) stands disposed of.