ORAL JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction to pass an appropriate order reinstating the petitioner in service and grant all consequential pay and allowance taking into consideration the order dated 13.01.2016 passed in Criminal Appeal No.917 of 2004.

2. Facts in brief would indicate that the petitioner was appointed as constable (unarmed) in the year 1980. In 1986 the petitioner was appointed as Radio Operator/Assistant Sub Inspector. An FIR was lodged on 17.04.1999 in the Nadiad Town Police Station under Sections 325, 326, 114, 365 and 302 of the Indian Penal Code and the petitioner was arrested and placed under suspension.

3. By a judgment and order dated 19.05.2004, in Sessions Case No.233 of 2000, the petitioner was convicted for life imprisonment under Sections 302 and 114 of the Indian Penal Code and also for rigorous imprisonment for 7 years under Sections 365 and 114 of the Indian Penal Code.

4. On 30.10.2004 a show cause notice was issued to the petitioner asking him as to why he should not be dismissed from service. He filed a reply on 12.11.2004. As a result of his conviction, by an order dated 21.02.2006, the Additional Director General of Police, dismissed the petitioner from service. On 15.02.2016, based on the judgment in Criminal Appeal No.917 of 2004, the petitioner made a representation that he be reinstated in service. As no decision was taken, the petitioner filed Special Civil Application No.17024 of 2016 which was disposed of with a direction that the representation be decided. On 08.03.2017, the representation was decided against the petitioner and communicated by an order dated 01.05.2017. The authority held that since the petitioner was given benefit of doubt and it was not a clean acquittal, the representation was rejected.

5. The only submission made by Mr.Ashish Desai learned counsel for the petitioner relying on paras 8 and 9 of the decision in the Criminal Appeal was that since the compromise was arrived at and the Court had observed that the prosecution has failed to miserably prove its case, the order of dismissal based on conviction must be set aside.

6. Mr.Kurven Desai learned AGP would submit that there was no clean acquittal so as to warrant reinstatement. Relying on the reply filed, learned AGP would submit that only “benefit of doubt” was given.

7. Considering the submissions made by the learned counsel for the respective parties, the relevant paras viz. paras 8 and 9 of the judgment dated 13.01.2016 in Criminal Appeal No.917 of

2004 are reproduced as under:

“7. Learned Additional Public Prosecutor Ms. C.M. Shah has supported the case of the prosecution and has contended that in view of the evidence led by the witnesses as well as the medical evidence, this is a fit case wherein the accused were required to be convicted under Section 302 of the Indian Penal Code. It is further submitted that in the aforesaid circumstances, the view taken by the learned Judge is just and proper and therefore, no interference is called for by this Court.

8. We have heard learned Advocates appearing for the respective parties and perused the records of the case. A period of almost 16 years has lapsed from the date of incident. Though the case appears to be one amounting to culpable homicide, the prosecution has failed to miserably prove its case. The aspect of how the deceased could have travelled from the Court premises to the premises (back portion) of the Mercantile Co-operative Bank, Nadiad is not explained by the prosecution.”

8. Reading para 9 of the order categorically indicates that the petitioner was not exonerated and was given only benefit of doubt. Obviously this was not a clean acquittal to warrant reconsideration of the order of dismissal which was passed based on conviction. The appeal was not decided on merits but it was only decided on the basis of the compromise as is evident from para 8 of the order.

9. For the