RAMSINHJI VIRAJI RATHOD, PARMANAND SOCIETY Vs. THE STATE OF GUJARAT AND ANR.

JUDGEMENT

(1.) The petitioner herein has challenged the validity of Rule152 of the Bombay Civil Services Rules as unconstitutional and void and has further prayed for a direction against the opponent's directing them to treat the show cause notice dated Feb. 18, 1967, Annexure-1 to the petition and the Order, dated April 23, 1968. Annexure Rs.to the petition as illegal, void and of no effect whatsoever. He has further sought for a direction against the opponents for treating the period of the petitioner's absence from duty from June 6. 1957 to Oct. 28, 1965, as period spent on duty for all purposes and for a direction to the opponents to pay the petitioner full pay and allowances for the peeled from June 6. 1957 to Oct. 28, 1965.

(2.) The case of the petitioner is that he was appointed a Junior Grade Clerk in the Civil Class III Post in the then Province of Bombay,on Sept. 20. 1931 by the District Superintendent of Police. Ultimately on May 1, 1957, the petitioner was promoted as Herd Clerk to the District Superintendent of Police, Banaskantha District. On June 5, 1957, the petitioner was arrested for an alleged offence of criminal breach of trust in his capacity as Police Accountant when he was serving in the office of the District Superintendent of Police, Ahmedabad(Rural). The petitioner was suspended from service by an order, dated June 14, 1957 and his suspension was directed to take effect from June 5, 1957 afternoon. In respect of the criminal offence alleged to have been committed by the petitioner he was prosecuted in the Court of the Judicial Magistrate, First Class, II Court, Ahmedabad.for the offence under Sec. 409, Indian Penal Code. On Feb. 27, 1959. the petitioner was convicted for the offence under Sec. 409, Indian Penal Code. Thereafter the petitioner preferred an appeal to the Sessions Court at Ahmedabad. The appeal was dismissed on July 22, 1959. Thereafter a Criminal Revision Application was preferred to the High Court of Bombay and in that Revision Application the judgment and order, dated Nov. 14, 1959, an order for retrial of the petitioner was passed. On retrial by the Chief City Magistrate, Ahmedabad, the petitioner was acquitted so far as the charge of criminal misappropriate,in in respect of the amount of Rs. 2800/ was concerned. A true copy of the judgment by which the petitioner was acquitted has been annexed as Annexure A to the petition Against this judgment and order of acquittal, Criminal Appeal No. 366 of 1962 was preferred by the Government of Gujarat but the appeal was dismissed by the High Court on Aug. 5, 1963. In respect of another amount of Rs. 700/ the petitioner was also prosecuted before the City Magistrate, 5th Court,Ahmedabad and by the order and judgment, dated Nov. 9, 1963, the learned Magistrate acquitted the petitioner. No appeal was filed by the Government of Gujarati against this order of acquittal.

(3.) While these criminal prosecutions were pending against the petitioner the Inspector General of Police by his Order, dated Sept. 11,1959, dismissed the petitioner from servant on the basis of the conviction of the petitioner has the earlier, order, dated Feb. 27, 1959,and the decision in the appal, dated July 22. 1959. Against this order of dismissal the petitioner filed Special Civil Application No. 161 of 1961 in this Court challenging the order of dismissal During the pendency of the Writ Petition, the Government of Maharashtra set aside the order of dismissal passed against the petitioner by the Inspector General of Police and directed that the petitioner should be reinstated.This order was passed by the Government on Feb. 20, 1965. In view of this order of reinstatement, the petitioner withdrew aforesaid Special Civil Application. For the recovery of the amount alleged to have been misappropriated by the petitioner, the Government of Gujarat had filed civil suit No. 620 of 1961 in the City Civil Court at Ahmedabad, praying for a decree in the sum of Rs. 6017.00 against the petitioner but after the petitioner was acquitted in the two criminal trial sand after the order of reinstatement was pasted by the Government of Maharashtra, the State of Gujarat withdrew the said suit on April 19, 1965. The Government of India has by its order dated June 11, 1965,allocated the petitioner to the State of Gujarat. By his letter, dated Sept. 18, 1965, addressed to the Government of Maharashtra, the petitioner requested that the issuance of orders regarding the treatment of the period of suspension as well as the period of absence from duty from the date of dismissal till the date of reinstatement as period spent on duty should be expedited. The Government of Maharashtra replied by its letter, dated Oct. 28, 1965, informing the petitioner that it was for the Government of Gujarat to issue orders about the treatment of the period of suspension find absence from duty. Thereafter correspondence went on and ultimately on Feb. 18, 1967, the Government of Maharashtra issued a show cause notice calling upon the petitioner to show cause as to why the period of the petitioner's suspension from July 1, 1957 to Sept. 10, 1959, should not be treated as such and the period of suspension and the petitioner's absence from duty from Sept. 11. 1959 to October. 28 1965 should not be treated as leave due and admissible including extraordinary leave under the provisions of Rule 152 of the B C S. Rules. The petitioner showed cause in response to this notice and thereafter by the Order, dated April 23, 1968, the Government of Maharashtra decided to treat the period of suspension of the petitioner tom July 1, 1957 to Sept. 10, 1959 as such and the period of absence from Sept. 11, 1959 to Oct. 28, 1965, as leave due and admissible including extraordinary leave. It may be pointed out that the show cause notice, dated Feb. 18, 1967. proceeded on the footing that the acquittal of the petitioner from the charges famed against him was on the basis of benefit of doubt and hence this acquittal could not be treated as honourable.It was on that basis that the show cause notice was issued by the Government of Maharashtra on Feb. 18, 1967 and it is on that footing that the Order, dated April 23, 1968, appears to have been passed by the State Government.