SCA/1476/1998 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1476 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 the civil judge ? ========================================================= KANTABEN FULABHAI KHANT, WIDOW OF DECEASED FULABHAI - Petitioner(s) Versus DISTRICT DEVELOPMENT OFFICER & 1 - Respondent(s) ========================================================= Appearance : MRS KETTY A MEHTA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 MR DC DAVE for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/01/2008 ORAL JUDGMENT 1. The deceased petitioner, now his widow, under Article 226 of the Constitution of India seeks SCA/1476/1998 2/9 JUDGMENT appropriate direction and/or any order or writ to the respondents by challenging the order dated 09.01.97 setting aside the order dated 06.03.95 passed by the District Agricultural Officer, District Panchayat, Valsad regularizing the period of suspension of the petitioner from 06.02.85 till 07.12.94 on the ground that his acquittal cannot be said to be acquittal entitling the petitioner in having the said period treated as regular period spent on duty. 2. The facts in brief deserve to be set out as under: 2.1 At the relevant time the petitioner was working as Gram Sevak against whom a criminal complaint was lodged on 09.01.84 being C.R. No. 3/84. The said case culminated into criminal case being Criminal Case No. 831/87 but the competent court ultimately vide order dated 30.09.94 acquitted the present petitioner. The ground for acquittal is death of the main accused and dearth of evidence in the criminal case. On acquittal of the petitioner, he came to be reinstated by the competent authority vide order dated 28.11.94. This order was passed pursuant to the approval from the concerned District Development Officer vide note dated 14.11.94. The said order of reinstatement provided that separate orders would be passed in respect of treating the suspension period on receipt of appropriate representation in this behalf. The order took effect immediately. The District Agricultural Officer, District Panchayat SCA/1476/1998 3/9 JUDGMENT regularized the period of suspension as period spent on duty under the provisions of BCSR, Rule 152(2) and (4). The period of suspension i.e. from 06.02.85 to 07.12.94 was treated to be period spent on duty for all the purposes. 2.2 This order of District Agricultural Officer dated 06.03.95 was taken up under review by the concerned District Development Officer and a show cause notice came to be issued to the petitioner on 26.09.95 calling upon the petitioner to show cause as to why the order of the District Agricultural Officer dated 06.03.95 be not revoked as it was not in consonance with law. The petitioner vide his representation dated 05.10.95 submitted that the order is passed by the competent authority and he did not want to make any representation thereof. The District Development Officer on 09.01.97 cancelled the order dated 06.03.95 passed by the District Agricultural Officer treating the period of suspension of the petitioner to be period spent on duty on the ground that the acquittal of the petitioner under the criminal case was essentially on account of the prosecution witnesses turning hostile and he was acquitted on account of benefit of doubt and therefore it can be said that the petitioner had not performed his duty diligently and that the Head of Department's order was not just and proper and therefore it was set aside by the District Development Officer, District Panchayat. SCA/1476/1998 4/9 JUDGMENT 2.3 The petitioner appears to have approached the Additional Development Commissioner by preferring appeal being Appeal No. 14/97 which came to be disposed of. The Additional District Development Commissioner confirmed the order of the District Development Officer dated 09.01.97 resisting the order of the District Agricultural Officer dated 06.03.95 treating the period of suspension of the petitioner as spent on duty. Being aggrieved and dissatisfied by this order, the petitioner has preferred this petition. 3. During pendency of the petition, the petitioner passed away and hence his heirs have been brought on record. Now the heirs are prosecuting this petition. 4. Ms. Ketty Mehta, learned advocate appearing for the petitioner has submitted that the suspension order itself indicates unequivocally that the petitioner was required to be placed under suspension on account of lodging of criminal complaint against him. When the criminal complaint resulted into criminal case and when he was acquitted he was rightly reinstated and the competent authority i.e. District Agricultural Officer rightly treated the suspension period to be period spent on duty. The District Development Officer ought not to have set aside the said order on the ground that the petitioner's acquittal was not an honourable acquittal as the court has observed that the main accused has died and there was dearth of evidence. SCA/1476/1998 5/9 JUDGMENT Ms. Mehta has submitted that the District Development Officer was not justified in passing the order setting aside the order passed by the competent authority i.e. the District Agricultural Officer. The order of the District Development Officer ought not to have been confirmed by the Additional Development Commissioner as both the authorities have taken into consideration the factors which are not germane for deciding as to why and how the period of suspension was to be regularised. She has submitted that in this view of the matter, the petition deserves to be allowed. 5. Mr Rakesh Patel, learned advocate appearing for Mr. D.C. Dave has submitted that the District Development Officer was well within his authority to decide the period of suspension in respect to the petitioner. He relies upon the affidavit filed by the District Development Officer as well as the order passed by the Additional Development Commissioner. The subsequent event with regard to the disciplinary actions proposed and held against the petitioner are sought to be relied upon for justifying the order of the District Development Officer which was passed setting aside the order of the District Agricultural Officer treating the period under the suspension as period spent on duty when the petitioner was acquitted by the competent court. Mr Patel however could not dispute that in the instant case the competent authority was the District Agricultural Officer and it was submitted that the District SCA/1476/1998 6/9 JUDGMENT Development Officer had all the justification for setting aside the order passed by the said authority as the petitioner's acquittal cannot be said to be an acquittal completely. The criminal court had to pass the order of acquittal on account of demise of the main accused as well as want of evidence. In view of this the order impugned deserves to be upheld and the petition deserves to be dismissed. 6. This court has heard learned counsel for the parties and perused the papers on record. The suspension order of the petitioner dated 06.02.95 unequivocally goes to show that the petitioner was required to be placed under suspension on account of a criminal case lodged against him and one more person. The complaint culminated into a criminal case being Criminal Case No. 831/97 wherein ultimately the competent court for the reasons recorded in the judgement acquitted the petitioner vide order and judgement dated 30.09.94. Now if the petitioner was acquitted, a duty was cast upon the competent authority to reinstate him as there was no contemplation at the relevant time for holding departmental proceedings against him. The competent authority i.e. the District Agricultural Officer as per the Gujarat Panchayats Service(Disciplinary & Appeal) Rule, 1964 accordingly passed an order of reinstating the petitioner with immediate effect. This order was passed after obtaining approval from the District Development Officer. The said order of reinstatement dated 28.11.94 was implemented SCA/1476/1998 7/9 JUDGMENT immediately and the petitioner was permitted to resume his duties. Thereafter the competent authority i.e. District Agricultural Officer in exercise of its powers under Rule 152 of the BCSR passed an order dated 06.03.95 treating the suspension period of the petitioner as period spent on duty for all purposes. 6.1 It deserves to be noted that Rule 152 of the BCSR does not deal with specifically as to what exercise is to be undertaken when the concerned employee is acquitted in a criminal case. The suspension period in the case like the present one wherein the petitioner was acquitted will have to be viewed from the point of his acquittal. Had the petitioner been convicted then the suspension would have been said to be justified but in the instant case the petitioner was acquitted and therefore the acquittal for whatever reason has to be considered as acquittal itself and therefore on that basis his reinstatement was warranted which was accordingly granted by the concerned authorities and the petitioner was reinstated also. When the petitioner was reinstated as he was acquitted that acquittal which was considered basis for reinstatement of the petitioner ought to have been considered sufficient in treating the said period of suspension as period spent on duty. The factum of acquittal when was found sufficient for considering the petitioner's fitment or suitability for reinstatement the same could not have been found to be inadequate for SCA/1476/1998 8/9 JUDGMENT treating the period of suspension as period spent on duty as the same would be absolutely arbitrary. 7. This Court is of the view that the subsequent development after the reinstatement of the petitioner on the ground of acquittal cannot be held against the petitioner for denying him the benefit of regularization of the suspension period especially in the instant case when even the show cause notice dated 03.10.97 has also been quashed and set aside by the District Development Officer. In other words it can also be said that until 03.10.97, there was nothing which can be said to be made the basis for denying him the benefit of regularization. Assuming for the sake of examination, the submission that the subsequent development indicate the petitioner's liability to be subjected to any disciplinary proceedings then also the fact remains to be noted that the earlier suspension of the petitioner which was revoked and the petitioner was reinstated was actually on account of pendency of criminal case. It was not on any other account but only on lodging of criminal case against him which resulted into acquittal of the petitioner. In view of this, the order of the District Development Officer as well as that of the Additional Development Commissioner can be said to be unsustainable in law and the same deserves to be quashed and set aside. 8. In the premises aforesaid, the petition is allowed. The order dated 09.01.97 passed by the SCA/1476/1998 9/9 JUDGMENT District Development Officer as well as the order dated 22.01.98 passed by the Additional Development Commissioner are hereby quashed and set aside. The respondents are hereby directed to workout the monetary benefits admissible to the widow of the deceased petitioner as if the order of the District Development Officer had never been passed. The petitioner's period of suspension shall be regularized as per the order of the District Agricultural Officer. The entire monetary benefits would be worked out within a period of 15 days from the date of receipt of the writ of this Court. The deceased petitioner's widow shall be supplied copy and within 15 days therefrom she shall be paid the arrears. Rule is made absolute accordingly. (S.R.BRAHMBHATT, J.) Divya//