Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Guj) 928

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, Pranav Trivedi, JJ.
Senma Somabhai Sendhabhai – Appellant
Versus
State of Gujarat & Ors. – Respondents
R/Letters Patent Appeal No. 1337 of 2023 In R/Special Civil Application No. 16375 of 2022 With Civil Application (For Interim Relief) No. 1 of 2023
Decided On : 05-03-2024

Advocates:
Advocate Appeared:
For the Appellant :Mr. K. B Pujara, Advocate
For the Respondent: Mr. Rohan Shah, AGP

Suspension of a sentence does not equate to a stay of conviction; a convicted public servant cannot retain their position.

Headnote:(A) Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d), and 13(2) - Dismissal from service - The petitioner, a Deputy Mamlatdar, was convicted under the Act and subsequently dismissed from service based on the conviction, despite the conviction being under appeal and stayed. The court held that the suspension of the sentence does not equate to a stay of conviction, which remains operative. (Paras 2.6, 5.10, 5.22)

(B) Disciplinary Action - The court emphasized that public servants convicted of corruption cannot retain their positions, and the authority must act in accordance with the law. (Paras 5.20, 5.23)

Facts of the case:
The petitioner was convicted in 2014 for corruption, and despite an appeal, was dismissed from service in 2022 based on the conviction. The dismissal was challenged on the grounds that the conviction was stayed.

Findings of Court:
The court found that the conviction was not stayed, and thus the dismissal was justified.

Issues: Whether the suspension of the sentence also stayed the conviction, and whether the dismissal was justified.

Ratio Decidendi: The court ruled that the suspension of the sentence does not imply a stay of conviction; hence, the dismissal was lawful.

Result: Appeal dismissed.

JUDGMENT :

BIREN VAISHNAV, J.

1. This appeal under Clause 15 of the Letters Patent challenges the oral order dated 22.09.2023 passed by the learned Single Judge. The appellant was the original petitioner who had filed the petition with a prayer to quash and set aside the order dated 01.07.2022 passed by the State dismissing the petitioner from service. The learned Single Judge dismissed the petition. Hence, the appeal.

2. Facts in brief are as under:

2.2 The petitioner was working as a Deputy Mamlatdar. A criminal case was registered at the Bhuj-ACB Police Station being C.R. No.6 of 2009 on 17.06.2009 for offences under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. On being arrested, the petitioner was released on bail but was placed under deemed suspension. He was however reinstated in service by order dated 30.11.2010.

2.3 By judgement dated 05.07.2014, passed by the learned Special (ACB), Judge, Bhuj-Kutch, in Special Case No.(ACB) 12 of 2010, the petitioner was convicted for the said offences and was sentenced to simple imprisonment of two and half years and fine of Rs.15,000/-. A criminal appeal was preferred before this Court viz. Criminal Appeal No.893 of 2014 which is admitted and pending before this Court. An order dated 17.07.2017 has been passed in Criminal Misc. Application No.10694 of 2014 in the Criminal Appeal to which we will extensively refer to hereinafter as that order is the root cause of the controversy involved in this appeal.

2.4 On the basis of conviction by the judgement dated 05.07.2014, the Collector, Bhuj, issued a show cause notice dated 07.08.2014, asking the petitioner to show cause as to why the petitioner should not be imposed a major penalty in light of this conviction. The petitioner replied to the notice on 20.08.2014 along with a copy of the order of the High Court dated 17.07.2014 in the Misc. Application, informing the authority that since in the appeal before the High Court, the judgement and order of the Bhuj Court is under suspension, the petitioner cannot be visited with any penalty as the judgement of the Criminal Court was stayed.

2.5 Seven years after the reply filed by the petitioner, on 05.01.2022, a show-cause notice was again issued to the petitioner asking the petitioner to show cause as to why by virtue of Rule 14(1)(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, why should the petitioner not be inflicted with the major penalty. The petitioner responded by a letter dated 21.01.2022 informing the Collector that in the Criminal Appeal filed by the petitioner, the Court had suspended the judgement till the final hearing and disposal of the appeal and therefore, no penalty can be imposed.

2.6 By the impugned order dated 01.07.2022, after quoting the order of the High Court in appeal, the State dismissed the petitioner from service holding that the order in appeal was only an order suspending the sentence and as the conviction was not stayed, it being operative would result in dismissal from service.

2.7 As pointed out, the learned Single Judge having dismissed the petition, holding the order to be just and proper, this appeal.

3. Mr.K.B.Pujara learned counsel for the appellant would make the following submissions:

3.2 Mr.Pujara would submit that the order dated 01.07.2022, even the show cause notice of early 2014 suffered from total non-application of mind. Without referring to the pending appeal