STATE OF GUJARAT Vs. SUDAMASINGH LOTANSINGH

JUDGEMENT

(1.) The respondents in Special Civil Application No. 3011 of 1989 are the appellants in this Letters Patent Appeal. The petitioner in the Special Civil Application is the respondent in this Letters Patent Appeal. Convenience suggests that we shall refer to the parties as per their array in the Special Civil Application.

(2.) The petitioner was serving as a Sepoy in Ahmedabad Central Jail. On 21-4-1989 the petitioner was dismissed from service taking note of his conviction in a murder case by the Fourth Additional Sessions Judge, Azamgarh, Uttar Pradesh. As against the conviction, the petitioner has preferred an appeal before the High Court of Allahabad and the same was pending at the time when the Special Civil Application was disposed of by the learned single Judge and we are told that the appeal is, even as on date, pending. Here itself we must note that though in the order of dismissal dated 21-4-1989, the rule quoted is "Rule 8 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971", hereinafter referred to as "the Rules" - this quoting of Rule 8 is obviously and admittedly a mistake because that rule merely sets down the Authorities to institute disciplinary proceeding, and the procedure for initiation of proceedings and imposition of penalties are set forth in other relevant rules. There is a common ground expressed before us that the relevant rule to be invoked and in substance invoked is Rule 14 of the rules concerning special procedure in certain cases and one of the cases is "where a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge", as in the present case. We will presently refer to Rule 14 of the Rules. The petitioner came to this Court impugning the action of the respondents in and by which the petitioner was dismissed from service as above.

(3.) Before the learned single Judge, the primary contention advanced and which found favour with him was that the conviction has not become file and an appeal against the conviction is pending and hence, the order of d : missal from service, as happened in the present case without any enquiry, is not tenable. The learned single Judge took note of the pronouncement of a Bench of this Court in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha, XXX (2) [1989 (2)] GLR 1301 and preferred to follow it on the primary contention raised before him to the other pronouncements to which his attention was drawn and allowed the Special Civil Application quashing the impugned order of dismissal of the petitioner. It must be noted that in the pronouncement of the Bench in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha. XXX (2) [1989 (2)] GLR 1301, action was taken under Rule 14 of the Rules. The Bench on the question as to whether there should be a show cause notice before imposition of penalty followed the pronouncement of an earlier Bench in Kiritkumar D. Vyas v. State of Gujarat, 1982 GLH 687 : (1982 (2) GLR 79). The Bench also expressed the view that until the criminal proceedings are finally over, no action can be taken, simply on the ground that lower Court found the delinquent guilty. For the second proposition before the Bench which was the primary proposition before the learned single Judge in the present case, the Bench followed the view of a learned single Judge of this Court in Laxman Waghjimal v. K. N. Sharma, D. S. P. Kutch, 1985 GLH (UJ) 28. We have been informed that pursuant to the order of the learned single Judge the petitioner has been reinstated in service and he has about a year to go in service. As against the decision of the learned single Judge the respondents have preferred this Letters Patent Appeal. Earlier, on 15-2-1991, finding that there is a conflict between decisions of two Benches of this Court, one in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha, XXX (2) [1989 (2)] GLR 1301; and the other in Letters Patent Appeal No. 119 of 1984, there was a Reference to the Full Bench with regard to the correct interpretation to be put on the word "conviction" occurring in clause (a) of the second proviso to clause (2) of Art. 311 of the Constitution of India. So far as that question is concerned, namely - would the "conviction" at the hands of a competent criminal Court in the first instance suffice, or should the "conviction" await confirmation at the hands of a final or ultimate competent criminal Court, the Full Bench to which one of us (S. Nainar Sundaram, C.J.) was a party, has rendered its opinion on 9-8-1993, saying :