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Judgment
Biren Vaishnav, J
[1]. Heard Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate for the petitioner, Mr. H.S. Munshaw, learned
counsel for respondent No.2 and Mr. Kurven Desai, learned AGP for the respondent â€" State.
[2]. The Challenge in this petition is to the order of dismissal dated 18.7.2018 passed by the respondent â€" authority.
[3]. Mr. Joshi, learned senior counsel for the petitioner would rely on the CAV judgment passed in similar matter by the coordinate Bench of this
Court namely; SCA No.9967 of 2018 dated 31.7.2018. He further requested to pass the similar order in this order. The order dated 18.1.2022 reads as
under:
“Whether the petitionerâ€"an Unarmed Head Constable, was entitled to be given show-cause notice before his dismissal from service
based on conviction of the petitioner under the provisions of the Prevention of Corruption Act, 1988, when the competent authority
exercised powers under Rule 3 of Bombay Police (Discipline and Appeal) Rules, 1956 read with Article 311(2)(a) of the Constitution, is the
question posed for consideration in the present petition.
The petitioner came to be dismissed by order dated 24th February, 2017 passed by the District Superintendent of Police,
Dahodâ€"respondent No.3 herein. The Director General of Policeâ€"the appellate authority, confirmed the said order in appeal,
whereafter the order was taken in revision before respondent No.1. The revisional authority as per order dated 26th March, 2018 upheld
the order of dismissal to confirm the order of the appellate authority dated 25th May, 2017.
2.1 The above orders are impugned in the present petition filed under Article 226 of the Constitution. It is prayed further to reinstate the
petitioner in service on his original post with all consequential benefits, as if the impugned order of dismissal was never passed.
The petitioner was posted at Shahera Police Station, Panchmahal, Godhra, as Unarmed Head Constable. On 26th August, 2009 a case
was registered against the petitioner under the provisions of Section 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988. The
petitioner was initially suspended. He later came to be reinstated on condition that the outcome of the criminal case against him would bind
him. The competent criminal court convicted the petitioner as per judgment and order dated 19th December, 2016 and punishment of
rigorous imprisonment for five years and fine with default clause was imposed.
3.1 As a result of the conviction recorded against the petitioner, respondent No.3â€"District Superintendent of Police passed the
aforementioned order dated 24th February, 2017 exercising powers under Rule 3 of the Bombay Police (Discipline and Appeal) Rules,
1966. The appeal and the revision application of the petitioner came to be rejected as noted above.
3.2 It appears that in passing the order of dismissal against the petitioner on the ground of conviction, the respondents rested the exercise
of their powers on the Bombay Police Rules as well as the relied on Circular dated 05th August, 2003 of the General Administration
Department of the State Government. The Superintendent of Police in the order of dismissal noted about the conviction to further observe
that the petitioner had acted dishonest by taking bribe. It was stated further that the petitioner committed serious misconduct for which it
was not advisable to continue him in service. According to the authority, it was a fit case where the guilty petitioner was liable to be
dismissed straightway.
Assailing the impugned order, primarily and principally on the ground of non-observance of principles of natural justice that prior
notice was not given before passing the order of the dismissal, learned advocate for the petitioner Mr.Gautam Joshi pressed into service
decision of the Division Bench of this Court in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha [1989 (2) GLR
1301]. Therein a government servant who was convicted by the criminal court and whose appeal against the conviction was pending in the
High Court, came to be dismissed on the basis of the conviction. The dismissal did not precede with the issuance of notice. The Court held
that failure to give notice vitiated the dismissal.
4.1 On the other hand, learned Assistant Government Pleader Mr.K.M. Antani harped on the decision of this Court in H.N. Rao v. State of
Gujarat [2000(3) GLH 358]. On the basis of this decision, it was submitted that the Court in terms held that notice was not necessary before
passing order of dismissal upon the event of conviction. It was submitted that the decisions which were relied on by this Court in
Ahmadkhan Inayatkhan (supra) were considered and contrary view was taken in H.N. Rao (supra) which is required to be followed.
4.2 The decision of the Supreme Court in Union of India v. V.K. Bhaskar [(1997) 11 SCC 383] was relied on, in which it was held that
dismissal from service on the ground of conduct which led to conviction on a criminal charge could be passed, for which pendency of an
appeal against conviction was no bar. Learned Assistant Government Pleader proceeded to refer to the decision of the Full Bench of this
Court in V.D. Vaghela v. G.C. Raiger, Deputy IPG [1993 (2) GLH 1005] in which the meaning and import of the word ‘conviction’
was highlighted in the context of clause (a) of Second Proviso to Article 311(2) of the Constitution, to lay down that the conviction is
arrived at when recorded by the competent criminal court in the first instance.
The proposition of law in Ahmadkhan Inayatkhan (supra) relied on behalf of the petitioner and what is held in H.N. Rao (supra) stand in
opposite.
5.1 However, the law has developed and travelled farther, which is to be learnt and gathered from decision of the Apex Court in Union of
India v. Sunil Kumar Sarkar [(2001) 3 SCC 414]. It would be worthwhile to advert to analyse.
5.2 In Kiritkumar D. Vyas v. State of Gujarat [1982 (2) GLR 79] this Court held, “mere conviction, therefore cannot be utilised for
passing an order of dismissal blindfoldedly without hearing the delinquent on the question of sentence. Needless to add that this would be
so even in case where the disciplinary authority exercises powers under Rule 14 of the Gujarat Civil Services (Discipline and Appeal)
Rules.â€. Kiritkumar D. Vyas (supra) was a Division Bench judgment. Relying on the same in a similar set of facts, learned Single Judge of
this Court in Shankabhai Naginbhai Patel being Special Civil Application No.2349 of 1998 set aside the order removing the petitioner of
that petition keeping it open for the respondent to pass fresh order after giving opportunity.
5.2.1 The Division Bench in Ahmadkhan Inayatkhan (supra) relied on the decision in Kiritkumar D. Vyas (supra) as well as another
decision also of this Court in Laxman Waghgimal v. K.N. Sharma, D.S.P., Kutch [1985 GLH (UJ-28) 20]. On the basis of the said decisions,
in Ahmadkhan Inayatkhan (supra) it was ruled in paragraph 3 that, “In this decision, this Court held that even though this rule does not
contemplate giving of the notice, it must be read into this rule that notice should be given to satisfy the principles of natural justice.â€.
5.2.2 Since in H.N. Rao (supra), a view was taken that show-cause notice was not necessary, in paragraphs 6 adn 7 of the judgment, the
Court referred to the decisions taking contrary view including Shankabhai Naginbhai Ptael (supra) and Kiritkumar D. Vyas (supra) to hold
that they did not take the correct view.
5.3 Now proceeding to look at The Supreme Court decision in Sunil Kumar Sarkar (supra), it dealt with the case of a delinquent undergoing
sentence of imprisonment. The respondent was found guilty and sentenced under the General Court Martial to rigorous imprisonment for six
years under the Army Act. The High Court found fault with the order of dismissal passed by the disciplinary authority on the ground that the
same was solely based on conviction suffered by the respondent in the Court Martial proceedings. It was held by the High Court that the
disciplinary authority had a predetermined mind when it passed the order of dismissal.
5.3.1 In the context of the aforesaid facts the Supreme Court held,
“This is a summary procedure provided to take disciplinary action against a government servant who is already convicted in a criminal
proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge.
Therefore, the question of having a predetermined mind does not arise in such cases. All that a disciplinary authority is expected to do
under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show-cause notice
and reply to such show-cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have
to bear in mind the gravity of the conviction suffered by the government servant in the criminal proceedings before passing any order under
Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down
in Rule 19, hence, it cannot be said that the disciplinary authority had any predetermined mind when it passed the order of dismissal.â€
(Para 8)
5.4 It is thus considered an essential requirement that before disciplinary authority passed the order of dismissal against the respondent
who was convicted of criminal charge to give show-cause notice and to consider the reply given to the showcause notice. The Supreme
Court held that at that stage the question of having predetermined mind did not arise in such cases. In other words, the Court considered
the procedure of giving notice and consider defence of the convict at that stage to be the meaningful exercise. Dispensation of notice before
taking action of dismissal against the convicted person which is based on the theory of empty formality was found not tenable in law.
5.5 The authority could not have judged at the stage of taking the action of dismissal that the person to be dismissed was not prejudiced
since there was already a conviction recorded against him. The stage to apply the test of prejudice would arrive at a subsequent point of
time. The requirement of giving notice and appreciating the reply of the person concerned was not viewed as an empty formality but a
condition precedent before passing the order of dismissal under the Rule. The observance of natural justice to this extent was treated as
pre-requisite in law.
In view of the aforesaid decision in Sunil Kumar Sarkar (supra) and the ratio thereof, the decisions of this Court in H.N. Rao (supra) and
those judgments taking the view that prior notice is not necessary, no more stand to be the good law. The ratio in Sunil Kumar Sarka
(supra) would prevail and the proposition of law laid down by this Court in Kiritkumar D. Vyas (supra), Shankabhai Naginbhai Patel
(supra) as well as in Ahmadkhan Inayatkhan (supra) stand revived to be the law holding the field to be applied.
6.1 In the aforesaid view, the impugned action taken against the petitioner to terminate his service without issuance of notice prior to the
order and without considering his reply is illegal. Therefore, order dated 24th February, 2017 passed by respondent No.3-District
Superintendent of Police, Dahod as well as further orders dated 25th May, 2017 passed by the Director General of Police, Panchmahals,
Godhra Range, Godhra dismissing the appeal and the order of the revisional authority-respondent No.1 Director General and Inspector
General of Police further dismissing the Revision Application, cannot sustain and they are herewith set aside.
The petitioner shall be entitled to be reinstated in service on his original post with all consequential benefits and back wages. The
reinstatement to the petitioner shall be granted as above with back wages within 15 days from the date of receipt of this order and the
petitioner shall be paid consequential benefits including the back wages arising to be paid by virtue of this order, within four weeks from
the date of his reinstatement.
It is clarified that the respondent authorities are not precluded from passing appropriate order afresh in accordance with law after
giving opportunity of hearing to the petitioner and considering the reply which may be filed.
The petition stands allowed as above.â€
[4] The petitioner shall be entitled to be reinstated in service on his original post with all consequential benefits and back wages. The reinstatement to
the petitioner shall be granted as above with back wages within 15 days from the date of receipt of this order and the petitioner shall be paid
consequential benefits including the back wages arising to be paid by virtue of this order, within four weeks from the date of his reinstatement.
[5] It is clarified that the respondent authorities are not precluded from passing appropriate order afresh in accordance with law after giving
opportunity of hearing to the petitioner and considering the reply which may be filed. It is also clarified that the petitioner shall not be entitled to back
wages from the date of the filing of the petition to the date of the order.
[6] The petition stands allowed as above.