JUDGMENT :

A.S. Supehia, J.

1. The petitioner has assailed the order dated 9-8-2002 imposing penalty of reduction in the basic pay of Rs. 2,750/- for two years from 1-5-2002 as well as the orders dated 28-8-2002 and dated 27-7-2006 passed in the appeal and the revision respectively by the competent authorities.

2. The brief facts are adumbrated of the case are as under:

2.1. The petitioner was working as an Armed Police Constable at Bhavnagar. On 29-7-1998, the respondent No. 1 served a charge-sheet for the alleged misconduct that the petitioner while he was assigned the duty of taking the prisoner at Sir-T Hospital, Bhavnagar at the Prisoners' ward on 28-5-1996, the said prisoner namely, Chaturji Mohanji escaped from his custody. A regular departmental inquiry was initiated against the petitioner and the alleged charges are partly proved against the petitioner. Pursuant to the aforesaid charges being proved, respondent No. 1 passed the order dated 9-8-2002, imposing penalty of reduction in basis pay and placed him in the pay of Rs. 2,750/- instead of Rs. 3,170/- for two years from 1-5-2002. The appeal filed by the petitioner against the said order was dismissed by the respondent No. 1 vide order dated 28-8-2002. Being aggrieved, the petitioner filed a Revision Application before the respondent No. 3, which was also dismissed vide order dated 27-7-2006.

3. Learned Advocate Mr. Kunal Shah appearing on behalf of the petitioner has submitted that the revisional authority i.e. respondent No. 3 has ignored the fact that the petitioner is acquitted in the criminal. He has submitted that pursuant to the case filed against the petitioner being Criminal Case No. 3787 of 1996, the petitioner has been acquitted by the Criminal Court vide judgment and order dated 30-8-1996. He further submitted that though the judgment and order of the Criminal Court states that the petitioner has been acquitted on benefit of doubt but in fact he has been acquitted on merits. He has submitted though his acquittal was brought to the notice of the competent authority the same is not considered by the respective authorities while passing the impugned orders.

3.1. Learned Advocate Mr. Kunal Shah also invited attention of this Court to the findings of the Inquiry Officer. He has submitted that the Inquiry Officer in the inquiry report has also recorded the statement of the concerned detenue, who has stated that at the time when he escaped from the custody, the concerned police personnel was wearing different clothes than the petitioner. Thus, the learned Advocate has submitted that the petitioner has been wrongly roped in the entire episode, and in fact he is not involved in any manner of letting the prisoner who fled away from the custody. Learned Advocate has submitted that it cannot be said that the petitioner was negligent in his duty, and hence, the impugned penalty is harsh and disproportionate to the misconduct. Learned Advocate for the petitioner has relied upon the judgment in the case of G.M. Tank v. State of Gujarat, 2006 (2) GLH 533 (SC) : [2006 (3) GLR 2348 (SC)], for the proposition of law that once an employee has been acquitted in the Criminal Court then no penalty can be imposed upon him if the charges are similar.

4. Learned Assistant Government Pleader Mr. Hardik Soni per contra submitted that considering the findings of the respondent-authorities and the guilt of the petitioner and looking to the negligence part of the petitioner, penalty imposed upon him cannot be said to be disproportionate and harsh. He also submitted that the petitioner has been acquitted by giving benefit of doubt. The penalty cannot be set aside merely because the petitioner has been acquitted in the criminal case. He has submitted that the criminal case as well as the departmental proceedings are governed by the different sets of evidence, and hence, the acquittal has no bearing on the findings of the Inquiry Officer.

5. Heard the learned Advocates for the respective parties