)) )) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8465 of 1998 with SPECIAL CIVIL APPLICATION No 6356 of 2000 with CIVIL APPLICATION No 9767 of 2000 in SPECIAL CIVIL APPLICATION No 8465 of 1998 with CIVIL APPLICATION No 3436 of 1999 in SPECIAL CIVIL APPLICATION No 8465 of 1998 with CIVIL APPLICATION No 10978 of 1998 in SPECIAL CIVIL APPLICATION No 8465 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KIRITSINH MOHOBATSINH BRAHMBHATT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8465 of 1998 and Special Civil Application No. 6356 of 2000 MR YATIN OZA FOR MR RJ OZA for Petitioner MR YATIN OZA WITH MR.TUSHAR MEHTA IN SCA 6356/2000 FOR PETITIONER MS MANISHA LAVKUMAR ASSTT GOVT PLEADER for Respondent No. 1 RULE SERVED BY DS for Respondent No. 4, 6 UNSERVED-REFUSED (N) for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 08/12/2000 CAV JUDGEMENT "Nor can the tests and the principles that have been laid down be applied mechanically or by way of syllogism. A mechanical or syllogistic approach may appear to furnish the easiest way of solving a complicated problem, but the allurement of the easy way has to be resisted. For while such ways are beset with risks of error in all branches of law, they are even more unsafe and inexpedient in industrial law, where sensitive problems of human relations have to be solved in the midst of all the complexities of morden industrial organisation. That is why in applying the well-settled tests and principles on these problems we have to bear in mind that all tests that are possible of application should be applied,the value and importance to be attached to individual tests will vary according to the nature of the industrial activities and according to the nature of the disputes in which the problem has arisen viz, whether it is in respect of lay-off, retrenchment, production bonus, profit bonus or something else." "The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of Judicial Review is vested in the superior Courts, the judiciary has a special and additional duty to perform , viz.,to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society." #. MR.Y.N.Oza, learned Senior Advocate appearing in both these petitions on behalf of the petitioner with Mr.R.J.Oza and Mr.Tushar Mehta, learned advocates and Ms.Manisha Lavkumar, learned AGP appearing on behalf of the respondents in both these main petitions. #. The brief facts of the present petitions are as under :- The petitioner is serving as Police Inspector [Detection Crime Branch], Baroda with effect from 29th January, 1997. Thereafter, the petitioner who was holding the post of Police Inspector was transferred by order dated 25th April, 1998 from Baroda to Junagadh Armed SRP Chawki. The said order of transfer has been challenged by the petitioner before the learned Civil Judge (S.D.), Baroda in Regular Civil Suit No. 317 of 1998, wherein the learned Civil Judge has granted interim stay against the transfer by order dated 22-6-1998. The said order of learned Civil Judge (S.D.), Baroda has been challenged by the respondent - State of Gujarat in Regular Civil Appeal No. 277 of 1998 before the learned District Judge, Baroda which was heard and decided by the Asstt. Judge, Baroda on 15th September, 1998 and dismissed the said appeal filed by the State of Gujarat. Against the said order passed in aforesaid Regular Civil Appeal, a Civil Revision Application No. 1615 of 1998 has been filed by the State of Gujarat which is pending before this Court. The aforesaid Civil Revision Application is also heard by this Court along with other two Special Civil Application Nos.8465 of 1998 and 6356 of 2000. #. According to the case of the petitioner, one complaint was filed by one Gopalbhai Karshanbhai Patel on 19th September, 1998. On the basis of the said complaint which was received by the respondent and consequently, the petitioner was suspended during the pendency of the departmental inquiry by order dated 2nd October, 1998. Thereafter, on the basis of very same complaint, chargesheet dated 18th September, 1999 has been served to the petitioner and it was decided to hold departmental inquiry against the petitioner in respect of the complaint which was filed by one Gopalbhai Karshanbhai Patel. Simultaneously, a criminal complaint was also lodged against the petitioner on the basis of very same complaint of said Gopalbhai Karshanbhai Patel and on that basis, Special Criminal Case No. 9 of 1999 has been filed before the learned Special Judge, Baroda. The petitioner has challenged the suspension order dated 2nd October, 1998 in Special Civil Application No.8465 of 1998. During the pendency of the aforesaid Special Civil Application, the leaned Special Judge, Baroda has decided the said Criminal Case No. 9/1999 on 11th April, 2000, wherein the petitioner has been acquitted honourably in respect of the charges levelled against him pursuant to the chargesheet filed by the department in Criminal Case. After acquittal in respect of the very same charge, the petitioner has approached to the Police Commissioner, Baroda City by application dated 21st April, 2000 with a request that in respect to the very complaint, two proceedings were initiated against the petitioner and the same were based upon the same facts, one incident and common witnesses in the said two proceedings and during the pendency of the departmental inquiry in respect of the same complaint, the petitioner has been declared honourable acquittal by the learned Special Judge, Baroda in Criminal Case No. 9 of 1999 dated 11th April, 2000 and therefore, the request was made by the petitioner that now in such circumstnaces,the departmental inquiry may be quashed and set aside and the chargesheet is also required to be set aside. This application of the petitioner has been considered by the Police Commissioner, Baroda city and by letter dated 29th June, 2000, has gave reply to the petitioner that after considering the decision rendered in Criminal Case,the request which was made by the petitioner cannot be acceded to and the inquiry as well as the chargesheet are not required to set aside or not required to be dropped as requested by the petitioner. Consequently, departmental inquiry was ordered to be held against the petitioner which is still progressing and remain continue inspite of the fact that in Criminal Case No. 9/ 99, the petitioner has been declared acquitted. Against this, the petitioner has filed Special Civil ApplicationNo.6365 of 2000 wherein, a prayer has been made to the effect that because of the acquittal in criminal Case No.9 /99, honourably, therefore, a departmental inquiry which was initiated in pursuance of the chargesheet dated 18th September, 1999 stands concluded and further prayed that the chargesheet dated 18th September, 1999 may be quashed and set aside and the respondents may be restrained from initiating and conducting any departmental proceedings in pursuance of the said chargesheet. Civil Application No.10976 of 1998 has been filed by the petitioner for amendment in the main Special Civil Application No. 8465 / 98, wherein amendment has been granted by this Court by order dated 8th December, 1998. Similarly, Civil Application No. 3436 / 1999 has also been filed by the petitioner with a prayer to amend main Special Civil Application No.8465 of 1998, wherein also prayer of amendment in main Special Civil Application has been granted by this Court on 20th September, 1999. One another Civil Application No. 9767 of 2000 in Special Civil Application No. 8465 of 1998 has been filed by said original complainant viz. Gopalbhai Karshanbhai Patel with prayer to be jointed as the party respondent in main Special Civil Application No.8465 of 1998, wherein, no order has been passed by this Court so far. #. In the present case, the main controversy is surrounded in respect of complaint filed by said Gopalbhai Karshanbhai Patel against the petitioner on 19th September, 1998. Departmental charged dated 18th September, 1999 has been served to the petitioner and during the pendency of said departmental inquiry, the petitioner has been suspended by order dated 2nd October, 1998. On the basis of the said complaint dated 19th September, 1998, a criminal case No.9/99 has been instituted against the petitioner before the learned Special Judge, Baroda,wherein the petitioner has been declared honourable acquittal by order dated 11th April, 2000. In light of these undisputed facts, the question pose before this Court for consideration is that whether departmental inquiry in such circumstances can be permitted and conducted by the respondents against the petitioner when on the basis of the same complaint and same set of facts in criminal case No.9/99, the petitioner has been declared acquitted honourably. The petitioner has also challenged the suspension order in Special Civil Application No. 8465 of 1998. In both these petitions, allegations of malafide are levelled by the petitioner against the Commissioner of Police viz. Shri Kuldeep Sharma, the Hon'ble Minister of State of Gujarat Shri Jaspal Singh and one Jayaben Thakker and other officers. However, the respondents have denied all such allegations of malafide in their reply. In both these petition, a detailed reply has been filed by the respondents. A copy of the suspension order, departmental chargesheet, chargesheet in criminal case, judgement in criminal case and other relevant papers are produced on record by both the parties. #. Mr.Y.N.Oza, learned senior advocate has submitted that when one complaint became the part of the departmental chargesheet as well as in criminal case on the basis of very same incident, there are common witnesses in both these cases i.e. in said criminal case as well as in departmental chargesheet. According to Mr.Oza, there is no iota of evidence of slightly difference between the chargesheet on which the criminal case was based and on which, the departmental inquiry proceedings initiated, therefore, in such situation, once the petitioner has been exonerated with honourable acquittal after examining all the witnesses then, in such circumstances, on the basis very same complaint, same set of facts, same incident, same witnesses, a departmental inquiry cannot be permitted. Mr.Oza, learned senior advocate has relied upon some of the decisions of this Court as well as the Apex Court. Mr.Oza, has also relied upon the decision of this Court in case of ABDUL HAKIM V. DISTRICT SUPDT. OF POLICE reported in 19 GLR 210 and has also further relied upon the decision of this court in Special Civil Application No.2294 of 1988 decided on 2nd December, 1989 [ Coram : R.C.Mankad, J]. Mr.Yatin Oza, learned senior advocate has also relied upon the decision of this Court in Special Civil Application No.7823 of 1989 decided on 19th March, 1991 [ Coram : A.N.Divecha, J.]. Mr.Oza, has also relied upon the decision of the Division Bench of this Court in case of STATE OF GUJARAT vs. B.C.DWIVEDI reported in 1983 (2) GLR page 1315 and reliance has also placed on decision of the Apex Court in case of M.PAUL ANTHONY VS. BHARAT GOLD MINES LTD reported in AIR 1999 Supreme Court 1416. Mr.Yatin Oza has also submitted that clear conclusion in Criminal Case No.9/1999 wherein it has been held by the learned Special Judge, Baroda that (i) the petitioner was held to be present at the police station and is held to be not present at the scene of alleged incident of delivering threat (ii) the complainant was not in Baroda on the date on which threat alleged to have been administered by the petitioner herein (iii) the Special Court has specifically held in para-24 of the judgment that the case of the complainant is not believable and has specifically held that it appears that the complainant is used by some one as an instrument (iv) The Special Court has further held on evidence in Para-25 of the judgement that the petitioner and the then Police Commissioner namely Shri Kuldeep Sharma has some difference of opinion. It is also pointed out that the Special Court has in para-33 of its judgment held that the petitioner had developed some disputes with the then Police Commissioner Shri Kuldeep Sharma and the Court has further held that the complainant Shri Gopalbhai Karshanbhai Patel has good relationship with the then Police Commissioner Shri Kuldeep Sharma and therefore, the Court has concluded that it is believable that complainant is used by the then Police Commissioner and the complaint is motivated complaint. According to Mr.Yatin Oza, learned senior advocate, these are clear conclusions of the Special Court after appreciating oral and documentary evidence which were led before the Special Court and the Court had come to such conclusion and granted honourable acquittal to the petitioner then in such circumstances, departmental inquiry on the basis of the same set of facts, same complaint and same witnesses cannot be permitted against the petitioner, otherwise, verdict on appreciation of all the testimony and evidence rendered in Criminal Case become redundant and meaningless. Mr.Yatin Oza has also submitted that in departmental inquiry also, very same witnesses which were named and examined in the criminal case, have been named and further submitted that the very chargesheet on the criminal case was based, the very chargesheet giving the colour of the department chargesheet has been served on the petitioner and the department inquiry is based on such departmental chargesheet, which in fact, does not differ in any manner from the chargesheet which was made basis in the criminal prosecution. Mr.Oza has also read over both these chargesheets namely departmental chargesheet as well as the chargesheet which was basis in the criminal prosecution and pointed out that except the date of incident, there is no change of single word or any material aspect which differs between the departmental chargesheet and chargesheet in criminal case. Therefore, according to the learned Senior Advocate Mr.Oza, that when one incident is alleged against the petitioner, pursuant to the complaint filed against the petitioner and on the basis of same chargesheet and witnesses, the departmental chargesheet was served and simultaneously criminal case has also been lodged against the petitioner on the basis of same complaint, same witnesses and alleging same incident and same set of facts. According to his submission, after acquittal, no departmental inquiry can be permitted and same is required to be set aside and the chargesheet must be quashed and set aside. Mr.Oza, has also submitted that under the aforesaid facts and circumstances, if the departmental inquiry is set aside and chargesheet is set aside, then naturally result thereof would be setting aside of the suspension order dated 2nd October, 1998 because the suspension order is passed during the pendency of departmental inquiry and not during the pendency of the criminal prosecution. Therefore, according to Mr.Oza, once the chargesheet and department inquiry is set aside, then suspension order is required to be quashed and set aside. #. Ms.Manisha Lavkumar, learned AGP appearing on behalf of the respondents has submitted that against the acquittal in Special Criminal Case No.9/99, the State of Gujarat has filed appeal before this Court and the said appeal has been admitted by this Court, therefore, according to her submission, unless and until the appeal is not decided by this Court, departmental inquiry cannot be set aside by this Court. In short her submission is that acquittal is under challenge before this Court and since the matter is admitted by this Court, such acquittal granted by the trial court in favour of the petitioner cannot be taken into account by this Court. She also submitted that suspension is not during the pendency of criminal prosecution, therefore, suspension cannot be set aside. She relied upon some of the observations made by the Division Bench in Letters Patent Appeal No.1254 of 1998, wherein the Division Bench has come to the prima facie opinion that in such circumstances, suspension cannot be interfered by this Court. She also relied upon some of the pronouncements of the Apex Court as well as of this Court. She relied upon following decisions reported in different law journals; (1) V.P.Gindroniya Vs. State of M.P reported in AIR 1970 SC 1494 (2) Nelson Motis Vs. Union of India reported in AIR 1992 Supreme Court 1981 (3) 1997 (4) SCC 385 (4) Jakhatsinh Motisinh Parmar Vs. D.S.P. Baroda reported in 1989 (2) GLR 935 (5) R.G.Jadeja Vs. P.K.Bansal, Commissioner of Police Surat City reported in 1993 (2) GLR 1077 (6) Solanki Laxmansinh Kesarisinh Vs. State of Gujarat and another reported in 1994 (6) SLR 789 (7) Chief Regional Manager of SBI Vs. S.Eswara Rao reported in 1995 (2) LLJ 874 (8) g. prahalad vs. state of karnataka and other reported in 1980 (2) SLR 461 (9) State of Rajashthan Vs. B.K.Meena reported in AIR 1997 Supreme Court 13 (10) Regional Manager Central Bank of India vs. Muppidi Prabhakar reported in 1996 I. LLJ 929 #. After relying upon the above pronouncements of the various courts including the pronouncement of the Apex Court, submission has been made by the learned AGP Mr. Manisha Lavkumar to the effect that law is well settled and established on this point and on mere acquittal cannot be considered to be a bar for holding departmental inquiry against the delinquent by the department. She also submitted that standard of proof in both the trial are different and it is within the powers of the department to hold departmental inquiry even if the delinquent has been declared acquitted on the basis of the same charges. She further submitted that it is also settled proposition of law that if any employee has been terminated on the basis of conviction then if that conviction is also ultimately set aside and delinquent is declared acquitted which does not result into automatic reinstatement of such delinquent and even such circumstances also, department is free to hold departmental inquiry against such delinquent inspite of the fact that he declared acquitted in criminal case. Therefore, mere acquittal has no bearing and / or any impact on the departmental chargesheet because in both proceedings, standard of proof are different and decision of the criminal case is not binding to the department as the same is under challenge before this Court in Criminal Appeal. However, she read over the affidavit of Shri Bhargav, Mr.C.P.Singh and Mr.Desai. She also read before this Court two orders passed by this Court [ Coram : R.R.Tripathi, J. ] in same proceedings and she relied upon the order passed by this Court [ Coram : R.R. Tripathi, J. ] dated 4th May, 2000 and relied upon certain observations made by this Court. She also submitted that Special Civil Application No. 2697 of 2000 has been filed by the petitioner before this Court with a prayer to stay further implementation of the suspension order as well as with prayer to reinstate the petitioner in light of the facts that the petitioner has been declared acquitted in criminal Case. However, said special civil application has been examined by this Court [ Coram : R.R.Tripathi, J.] wherein observations which have been made by the Division Bench of this Court in Appeal No.1254 of 1998 dated 13th October, 1998 were relied. She also submitted that in Special Civil Application No.8465 / 98, very suspension is under challenge. The learned Single Judge of this Court has passed order on 7th October, 1998 making RULE returnable on 8th December, 1998 and granted stay against the suspension order and the said order was also challenged by the respondent before the Division Bench in Letter Patent Appeal No. 1254 of 1998 wherein, the Division Bench of this Court by order dated 13th October, 1998 has observed that while allowing the appeal and setting aside the order passed by the learned Single Judge. She also submitted that facts of the acquittal of the petitioner has been brought before this Court by way of Civil Application No. 2697 / 2000 and this Court has considered the decision of the Division Bench of this Court reported in 1983 (2)GLR 1315 delivered in case of State of Gujarat vs. B. C. Dwivedi and the observations made by the Division Bench of this Court in Letters Patent Appeal No.1254 of 1998 wherein, it is observed that from the impugned order of suspension, it is clear that a serious compliant has been filed against the first respondent in view of grave nature of allegations. Third appellant conducted preliminary inquiry and came to the conclusion that departmental proceedings are to be initiated against the first respondent and on that basis, he was placed under suspension. Suspension order is passed as there is pending departmental proceedings. Serious allegations have been made against the first respondent and third appellant has rightly initiated departmental proceedings. Ultimately, Civil Application rejected by this Court on the ground that main Special Civil Application has been fixed for final hearing and this Court does not find any reason for granting any relief in favour of the petitioner even after acquittal of the petitioner in Special Criminal Case No. 9 of 1999. The order of suspension is not based on the criminal proceedings but the same is based as there is pending departmental proceedings. Relying upon the observations made this Court in order dated 4th May, 2000 passed in Civil Application No.2697 of 2000. Ms. Manisha Lavkumar, learned AGP has also submitted that departmental inquiry cannot be quashed and set aside on the ground of petitioner having been acquitted in criminal case No. 9 of 1999. She also denied allegations of malafide alleged against the Hon'ble Minister Shri Jaspal Singh, Ms.Jayaben Thakker and the then Police Commissioner Shri Kuldeep Sharma. #. Against the aforesaid submission of the learned AGP, Mr.Yatin Oza, learned Senior Advocate has also submitted that observations made by the Division Bench of this Court in Letter Patent Appeal No. 1254 of 1998 is prior in point of time before the acquittal of the petitioner. Therefore, the same now cannot be considered to have been made against the petitioner. Mr. Oza has also submitted that the then Police Commissioner Shri Kuldeep Sharma has not filed affidavit and according to Mr.Oza, the allegations of malafide have not been properly replied and the same amounts to admission of the other side. Mr.Yatin Oza has further submitted that in such type of cases, no doubt, it has been clearly established by the Apex Court that there may not be any formula that in each and every criminal case of acquittal, departmental proceedings cannot be initiated. Mr.Oza also submitted that looking to the facts which are undisputed between the parties that one complaint become the base of departmental chargesheet as well as chargesheet of criminal case. Common witnesses in both these proceedings and same set of facts and the judgment in criminal case on merits after examination of oral and documentary evidence are required to be considered at the time of considering the controversy involved in the matter on hand. Therefore, in light of these facts which are not in controversy between the parties, departmental inquiry can