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2009 (3) GCD 2554 (Guj)
Hon’ble Mr. Justice M.R. Shah
Gangaram Panachand Prajapati (Dr.)
Versus
State of Gujarat & Anr.
Special Civil Application No. 3987 of 2009—Decided on 24/04/2009
Gujarat Civil Service (Discipline and Appeal) Rules, 1971 — Rule 14(1)(2) — Prevention of Corruption Act — Sections 7, 13(1)(d)(1)(2)(3) and 13(2) — Criminal Procedure Code, 1973 — Section 389 — Conviction — Sentence suspended and appeal pending — Dismissal — Sustainability — Held, even if appeal is pending and sentence is suspended order of dismissal from service is not wrong because merely sentence is suspended while conviction stands — Rule under Rules 1971 confers power upon the disciplinary authority to dismiss an employee on conviction — Contention that departmental inquiry in certain circumstances can be suspended but for that reasons have to be recorded as required of Rule 14(1)(2) has no force and can not be accepted — It is merely mentioning wrong rule instead of Rule 14(1)(i) — Mere mentioning of incorrect Rule can not invalidate the impugned order.
Held :
It is true that against the judgment and order of conviction Criminal Appeal before this Court is pending and petitioner has been released on bail by this Court by suspending sentence. However, by releasing petitioner on bail by suspending the sentence it cannot be said that conviction has been suspended. Conviction still stands until it is set aside by the higher forum and accused is acquitted. Rule 14(1)(i) confers power upon the disciplinary authority to dismiss an employee on conviction. Considering the above, when on conviction petitioner has been dismissed from service after giving an opportunity and issuing show notice, it cannot be said that the said order is in any way illegal and / or arbitrary. Under the circumstances, the contention on behalf of the petitioner that as the Criminal Appeal is pending and the sentence is suspended and he is released on bail by this Court in exercising the powers under Section 389 of the Code of Criminal Procedure, order of dismissal cannot be passed and ought not to have been passed cannot be accepted.
[Para 7]
Looking to the show cause notice served upon the petitioner after the conviction and by which the petitioner was required to show cause why on conviction a major penalty shall not be imposed Rule 14(1)(i) of the Discipline & Appeals Rules, 1971 that has been referred to. It appears that by mistake Rule 14(1) (2) has been referred in the impugned order. As held by the Hon’ble Supreme Court as well as this Court in catena of decisions mere wrong mentioning of Section and/ or provision the order shall not be rendered illegal, if otherwise it is in accordance with law. [Para 8]
Law Laid Down :
Merely by releasing petitioner on bail by suspending the sentence it can not be said that conviction has been suspended.
Case Law Analysis :
Kiritkumar D. Vyas vs. State of Gujarat & Anr., 1982 (2) GLR 79 [Para 3].—Distinguished
M.R. Shah, J.—By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 13.4.2009 passed by the respondent No. 2 dismissing the petitioner, on conviction for the offences under the provisions of Prevention of Corruption Act.
2. Petitioner was serving as a Medical Officer, Class II with the department of Health and Family Welfare. While he was serving at Primary Health Center, Malan, Tal: Palanpur, Dist. Banaskantha, a criminal case was instituted against the petitioner for the offences punishable under Sections 7, 13(1)(d), (1)(2)(3) and Section 13(2) of the Prevention of Corruption Act, in the month of June, 2003, on raid bing carried out by the Anti Corruption Bureau, Palanpur. The petitioner was tried by the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur in Special ACB Case No. 121 of 2003. That during the trial, the petitioner came to be suspended w.e.f. 1.10.2003. That the petitioner came to be charge sheeted and departmental inquiry came to be initiated against the petitioner vide charge sheet dated 3.6.2004. That during the pendency of the aforesaid Criminal Case as well as departmental inquiry, petitioner came to be reinstated in service vide order dated 13.3.2006. That, thereafter petitioner came to be convicted by the learned Additional Sessions Judge, 5th Fast Track Court, Palanpur vide judgment and order of conviction dated 21.2.2007 for the offences under the provisions of the Prevention of Corruption Act and has been sentenced to undergo RI for three years along with fine of Rs. 5000/-. That being aggrieved and dissatisfied with the judgment and order of conviction and sentence , the petitioner has preferred Criminal Appeal No. 461 of 2007 and the said appeal has been admitted. Along with the appeal petitioner preferred an application under Section 389 of Code of Criminal Procedure being Criminal Misc. Application No. 2644 of 2007 for suspension of sentence and releasing him on bail. That petitioner has been released on bail by suspending sentence by the learned Single Judge of this Court vide order dated 16.3.2007. That, thereafter petitioner has been served with the show cause notice dated 4.6.2007 in view of the conviction of the petitioner under the Prevention of Corruption Act and the petitioner was required to show cause why a major punishment shall not be imposed on him under the Rules. That the petitioner replied to the said show cause notice on 8.6.2007 stating that as the judgment and order of conviction and sentence is subject matter of challenge before this Court by way of Criminal Appeal wherein sentence has been suspended, it was requested not to take any action till pendency of the said appeal. That, thereafter respondent No.2 has passed the impugned order dated 13.4.2009 purported to be under the provisions of Rule 14(1)(2) of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971, dismissing the petitioner from service as a Medical Officer, Class II. That being aggrieved and dissatisfied with the impugned order of dismissal, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
3. Shri Tejas Barot, learned Advocate appearing on behalf of the petitioner has vehemently submitted that in view of the pendency of the Criminal Appeal against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge convicting the petitioner for the offences under the Prevention of Corruption Act and in view of the sentence being suspended the impugned order of dismissal deserves to be quashed and set aside. It is further submitted that the impugned order has been passed under Rule 14(1)(2) of the Gujarat Civil Service (Discipline & Appeals) Rules, 1971, however the said Rule shall not be applicable as the said Rule is with respect to dispensing with the inquiry
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