LPA/1352/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1352 of 2008 In SPECIAL CIVIL APPLICATION No. 9758 of 2008 With CIVIL APPLICATION No. 13308 of 2008 In LETTERS PATENT APPEAL No. 1352 of 2008 In SPECIAL CIVIL APPLICATION No. 9758 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= C M SURTI - Appellant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR KB PUJARA for Appellant(s) : 1, MS TANUJA KACHHI, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 24/11/2008 LPA/1352/2008 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. This Appeal preferred under Clause 15 of the Letters Patent arises from the order dated 9th September, 2008 made by the learned Single Judge in above Special Civil Application No.9758 of 2008. On 2nd December, 2005, in a trap laid by the Anti Corruption Bureau Officials, the appellant, Motor Vehicles Inspector (Class-II), is alleged to have accepted illegal gratification. For the said offence allegedly committed by the appellant, he is being tried by the Special Court, Valsad in ACB Special Case No.4 of 2007. Pending the criminal prosecution, on 19th June, 2007, a departmental proceeding is initiated against the appellant. Feeling aggrieved, the appellant preferred above Special Civil Application No.9758 of 2008. The learned Single Judge has dismissed the petition in limine. Therefore, the present Appeal. Learned advocate Mr. Pujara has appeared for the appellant. He has submitted that pending the criminal prosecution, no inquiry could have been initiated LPA/1352/2008 3/4 JUDGMENT against the appellant. He has tried to demonstrate that the charges levelled in the criminal prosecution as well as in the departmental proceeding are identical. He has submitted that the criminal prosecution is now at the fag end; witnesses are examined; arguments are to be advanced and the judgment is to be delivered. The appellant is entitled to the benefit of the judgment of the Criminal Court. Therefore, the departmental inquiry should not be permitted to be proceed at this stage. He has relied upon the judgment of the Hon'ble Supreme Court in the matter of Indian Overseas Bank, Annasalai & Another V/s. P. Ganesan & Others [(2008) 1 SCC 650]. He has next contended that in the departmental proceeding, the Police Inspector, Anti Corruption Bureau, has been appointed as the Presenting Officer. The presence of the said Presenting Officer would cause serious prejudice to the appellant. We are unable to agree with Mr. Pujara. It is well settled that pending the criminal prosecution, a departmental proceeding in respect of the same incidence can proceed against the delinquent servant. LPA/1352/2008 4/4 JUDGMENT As to the prejudice, we have noticed that though the Police Inspector, Anti Corruption Bureau, Valsad is appointed to be the Presenting Officer, he is not the officer who had laid the trap or the officer who had investigated the offence. We are, therefore, of the prima facie view that mere presence of the police officer as Presenting Officer shall not cause prejudice to the appellant. For the aforesaid reasons, we dismiss the Appeal in limine. The Civil Application stands disposed of. We clarify that in the event, in the departmental proceeding the guilt of the appellant is proved and any punishment is imposed upon him, the appellant will be at liberty to raise the contentions, as may be available to him. [Ms. R.M.Doshit, J.] [K.M.Thaker, J.] kdc