Decided on April 07,1983

B C Dwivedi Respondents


B. K. MEHTA - (1.) The State Government and the Commissioner of Labour by this Letters Patent Appeal seek to challenge the interim order dated 29/12/1982 made by this Court (Coram: P. D. Desai J.) in Special Civil Application No. 5214 of 1982 while issuing Rule nisi. The learned Single Judge directed the respondents of the said special civil application to reinstate the petitioner respondent herein in service forthwith and to permit him to report to duty with effect from opening of the office hours on 30/12/1982 and to give him appropriate posting upon his so reporting for duty. This direction was given in light of the similar direction being given by Supreme Court in CORPORATION OF THE CITY OF NAGPUR V. RAMCHANDRA AND OTHERS (1981) 2 SUPREME COURT CASES 714 It should be recalled at this stage that the Deputy Secretary Labour and Employment Department of the State of Gujarat has by his order of 13/09/1980 suspended the original petitioner pursuant to his being trapped in the Anti-corruption raid carried out by the Anti-Corruption Department for having accepted illegal gratification of Rs. 100.00 from one Shri Harendra Amratlal Vora of Surendranagar on 5/08/1980 and an offence was registered against him under sec. 5(2) of the Prevention of Corruption Act. The impugned order of suspension therefore stated that having regard to the nature of the offence if a person is prosecuted to a Court he would be sentenced or if proceedings are initiated departmentally he would be subjected to major penalty. The impugned order therefore directed that the respondent petitioner be suspended immediately and he would be entitled to subsistence allowance permissible under the rules. It is common ground that the respondent petitioner was acquitted by the Special Judge Surendranagar vide his judgment and order of 6/01/1982 The State Government has preferred an appeal in the High Court from the said judgment and order. It is also not in dispute that no inquiry by way of disciplinary proceeding has been initiated after the impugned order of suspension or after the acquittal. No charge-sheet has been served on the respondent petitioner. It should be also noted that according to the Government resolution of 13/04/1970 issued in the General Administration Department the earlier Government Circular dated 6-4-1965 has been amended so as to provide that in case of acquittal full pay and allowance shall be admissible for the period of absence from duty. The Government Circular of 6 sought to provide as to how the period of absence during suspension removal or dismissal is to be regulated on subsequent reinstatement of a Government employee. It is in this back ground that the learned Single Judge considered as to what should be the appropriate interim relief in the matter. In Ramchandras case (supra) the Court was concerned as to what should be the appropriate directions which should be issued in the matter pending trial of the respondent in Criminal Case No. 1902/76 filed in the Court of Judicial Magistrate First Class Nagpur. The Supreme Court speaking through Fazal Ali J. left the question as to whether departmental inquiry pending against the respondents be continued after their acquittal to the concerned authority. However the Supreme Court directed that in case the respondents are acquitted the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. It is in this context that the learned Single Judge gave the impugned directions in the interim order.
(2.) We have heard the learned Advocates for the parties and we do not think that there are any justifying reasons for us to interfere with the impugned directions in the interim order. The reason are obvious. In the first place the power of suspension under Rule 5 of the Gujarat Civil Services (Discipline & Appeal) Rules 1971 is open to the appointing authority or the disciplinary authority in contemplation of the disciplinary proceedings or its pendency or where a criminal case against the delinquent employee is under investigation inquiry or trial in respect of any criminal offence involving moral turpitude. In our opinion as the matter stands at present none of the contingencies provided in clauses (a) and (b) of Rule 5(1) is in existence. The learned Assistant Government Pleader appearing on behalf of the State urged that inasmuch as the State Government his preferred an appeal from the judgment and order of the Special Judge Surendranagar acquitting the respondent petitioner the power of suspension under the 5 1)(b) is still available to the authority concerned. We cannot agree with the learned Assistant Government Pleader since the concept of trill in criminal law has a well recognised connotation and the trial would mean all preceedings including sentence (vide: B. R. LAWRENCE V. EMPEROR AIR 1933 PC 218). In other words the trial concludes with the judgment of acquittal or conviction (vide: THE STATE V. NARAMUDDIN AHMED AND ANR. AIR 1955 Ass 214 AND JOTI PRASAD V. STATE AIR 1951 ALLAHABAD 549). Merely because the acquittal appeal has been preferred it cannot be said that the trial continues. The alternative contingency of suspending pending a Government employee in contemplation of disciplinary proceeding or its pendency is also not in existence in the present case since as observed above no inquiry has been established much less no charge-sheet has been issued though the respondent petitioner was suspended as back as 30/09/1980 and the corruption cases ended by his acquittal on 6/01/1982 The power of suspension therefore comes to an end. There is also an additional ground in support of the view which we are inclined to take for not interferring with the impugned order. In the State Government Circular issued in General Administration Department of 8/07/1970 which is more in the nature of a policy decision which the State Government has taken in view of the public accounts Committees reaction to a large number of Government servants being kept under suspension. In that context the material part of paragraph 3 of the said Circular reads as under: "3.... However, if the acquittal in a prosecution case or setting aside of an order of dismissal removal etc. is on technical ground and not on the merits of the case there should be no objection to proceedings being instituted in such cases. Govern ment is however pleased to direct that even in such cases the Government servants should not be placed under suspension again after reinstatement in service i.e. fresh prosecution or departmental inquiry against them if considered necessary should be instituted and completed expeditiously without placing them under suspension. (emphasis supplied)"
(3.) The learned Assistant Government Pleader has invited our attention to the decision of the Supreme Court in VIDYA CHARAN SHUKLA V. PURSHOTTAM LAL KAUSHIK (1981) 2 SCC 84 where it was held that a successful candidate is disqualified for being chosen at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years imprisonment but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him his disqualification is annulled and rendered nonest with retroactive force from its very inception and the challenge to his election on the ground that he was disqualified is no longer sustainable. We do not think this decision of the Supreme Court can be of any assistance to the cases of the State Government at this stage.;

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