AJITSINH HALAJI JADEJA vs STATE OF GUJARAT & 1

This Court, on 01.10.2009, passed the following order:- "Learned advocate, Mr.Gogia, appearing on behalf of the petitioner is restricting the present petition challenging that part of the impugned order by which the period of suspension is treated as Under Suspension and is not pressing with the special civil application with respect to challenge to the impugned order as regards the imposition of penalty / punishment of reduction in pay"

Thus, the petitioner has restricted his prayers in the present petition for challenging the impugned order by which his period of suspension is treated as "under suspension".

The brief facts, material for adjudication of the present petition, may be stated thus:- The petitioner was appointed as Constable in respondent S.R.P. on 22.02.1983; transferred as Driver in the Year 2001 or so. He was placed under suspension by Respondent No.2 vide order dated 07.01.2005 for the reason that the petitioner was involved in a criminal offence for which C.R.No.54/04 was registered in Lakhtar Police Station under Section No.397, 341, 342 of the Indian Penal Code and Section 135 of the Bombay Police Act. The petitioner was arrested on 04.09.2004 in connection with the same.

The petitioner was served with charge-sheet dt.15.02.2005 issued by Respondent No.2 containing two allegations. Firstly, for absence from duty from 17.06.2004, secondly that during the period of absence from duty, he was involved in a criminal offence.

In the criminal trial held against the petitioner vide Sessions Case No.84/04: the petitioner was acquitted by Learned Additional Sessions Judge, F.T.C.No.2, Surendranagar by judgment dated 16.08.2005. The criminal case was on the same facts for which the petitioner was charge-sheeted and suspended as stated above.

The departmental enquiry initiated against the petitioner vide chargesheet dated 15.02.2005 was completed. He was issued a show cause notice dated 10.07.2006 calling upon him as to why he may not be imposed with the penalty of reduction in pay Rs.2750/- in time scale for two years with effect on future increments and, why the period of suspension be not treated as suspension.

By the order dated 31.08.2006, passed by the respondent no.2, the petitioner was imposed penalty of reduction of pay to Rs.2750/- in time scale for one year without effect on future increments. It is also observed that period of suspension w.e.f. From 04.09.2004 to 31.08.2006 to be treated as "suspension". Against the aforesaid order, the petitioner preferred an appeal, which was rejected by the order dated 20.02.2007.

Mr.Gogia, learned advocate for the petitioner has submitted that entire period of suspension is required to be treated as spent on duty since the purpose for which the petitioner was suspended i.e. in relation to the criminal prosecution, the petitioner has been acquitted on merits and the departmental inquiry which was based upon the same charge is also dropped.

Per contra Mr.Soni, learned AGP has submitted that the suspension period of the petitioner cannot be regularized for the purpose of counting as on duty since the petitioner is imposed penalty of reduction of pay. He has also stated that the petitioner has not availed alternative remedy under Section 24(a) of the Bombay Punishment and Appeal Rules.

The only issue which falls for consideration before this Court is whether suspension period of the petitioner from 04.09.2004 to 31.08.2006 shall be treated as spent on duty for all purpose in wake of fact that the petitioner is acquitted from the criminal offences and the department proceedings for the same incident is also dropped.

Learned AGP Mr. Soni has also stated that the department inquiry was held for two charges one for involvement of the petitioner in criminal offence and for remaining on unauthorized leave from 17.06.2004. The petitioner was suspended in view of his involvement in the criminal charges for the offence under Sections 395, 397, 341 and 342 of the Indian Penal Code and Section 135 of the Bombay Police Act. The said suspension order does not refer to any unauthorized absence. Thus, the sole basis for suspending the petitioner is his involvement in the criminal offence.

The undisputed fact is that vide order dated 07.01.2005, the petitioner was suspended in view of his involvement in criminal case only and not for remaining absent. It is pertinent to note that, the petitioner was issued charge-sheet dated 15.02.2005 containing two charges (1) pertaining to his absence and (2) his involvement in loot for which criminal prosecution was also simultaneously going on. By the order dated 31.08.2006, passed by the respondent no.2, the second charge of the petitioner of his involvement in the loot was dropped by observing that the petitioner is acquitted in the criminal case in the Sessions Case No.84/04 dated 16.08.2005. Thus, the ground on which suspension order was passed i.e. involvement of the petitioner in the criminal offence disintegrates in view of the order dated 31.08.2006 passed by respondent no.2 dropping the charge against the petitioner.

In my considered opinion, the suspension period of the petitioner cannot be treated as such in light of two factors (1) his acquittal in Criminal Case on merits; and (2) the dropping of department proceedings apropos the charge which was based on criminal offence. The petitioner can be said to be completely exonerated for the charges for which he was placed under suspension. The respondents have chosen to drop the inquiry, in that eventuality they are bound to follow the consequences of such dropping of the inquiry apropos that charge. The submission made by learned AGP that the suspension period cannot be regularized in wake of imposition of punishment does not merit acceptance, since the petitioner is imposed penalty of reduction of pay for the charge of absenteeism for which the petitioner was never suspended. Hence, the suspension period of the petitioner cannot be treated as suspension on some other charge framed against him.

Apropos contention of learned AGP Mr.Soni that the petitioner has not availed remedy of revision, as stated in the impugned order is concerned, learned advocate Mr.Gogia has drawn the attention of this Court to the observation made in the order dated 20.02.2007, wherein it is stated that the revision application filed under Section 27(a) of the Bombay Police Act is not mandatory and the hearing by Additional Director General of Police (Arms Division), Rajkot is also not compulsory. In view of the said obervations made in the appellate order 20.2.2007, the contention of the learned AGP Mr.Soni does not deserve acceptance.

The upshot of the aforementioned analysis is that the impugned order dated 31.08.2006 and the appellate order dated 20.02.2007 treating the period of suspension of the petitioner from 04.09.2004 to 31.08.2006 as suspension is hereby quashed and set aside. The respondent authorities are hereby directed to reconsider the case of the petitioner for regularizing the period of suspension in light of the aforementioned observations made by this Court and pass appropriate orders within a period of two months from today. Before passing any order, the petitioner shall be given an opportunity of hearing. The present petition stands allowed. Rule is made absolute to the aforesaid extent.