J S BHAGORA Vs. G I D C

JUDGEMENT

(1.) Invoking Article 226 of the Constitution, the petitioner has approached this Court for a writ, order or direction in the nature of mandamus directing the respondent to regularise the service of the petitioner with full back wages from the date of termination till his reinstatement. The petitioner was serving as an Assistant under the respondent, i.e. Gujarat Industrial Development Corporation, and a criminal complaint was lodged against him by the respondent-employer pursuant to which he was convicted to criminal breach of trust punishable under Sec. 409 read with Sec. 114 of the Indian Penal Code, 1860 and sentenced to rigorous imprisonment for three years with fine of Rs. 5,000/-. He preferred an appeal from that judgment and order dated 31-7-1999 of the learned Judicial Magistrate, First Class, Sabarkantha, Himatnagar. The appellate Court, in terms, held that the petitioner was a public servant, that the noting at Exh. 61 relied upon by the prosecution as sanction could not be regarded as sanction envisaged under the provisions of the Criminal Procedure Code, 1973 and that, due to absence of such sanction, and without entering into the other issues, the petitioner was acquitted.

(2.) The petitioner is stated to have thereafter made several representations for reinstatement, and at last, filed the present petition. During the course of the proceedings before the trial Court, the petitioner was issued the show-cause notice dated 1-5-2000 wherein it was stated that, in view of the order dated 31-7-1999 of the learned Judicial Magistrate, First Class and under the provisions of Regulation 40C of the G.I.D.C. (Staff) Regulations, 1963, the service of the petitioner was required to be terminated and he was called upon to show-cause as to why such order should not be passed. The petitioner had, in his reply dated 15-5-2000, stated that an appeal had been filed by him on 25-8-1999 which was pending, and therefore, no steps should be taken against him. It is the grievance and allegation of the petitioner that, without considering his pleas and representations, order dated 12-6-2000 to terminate his service with immediate effect under the provisions of Regulation 40C of the G.I.D.C. (Staff) Regulations, 1963 was made. A copy of that order was not annexed with the petition, but subsequently, placed on record by the learned Counsel Ms. Davawala. 2.1 The said Regulation 40C, in effect and in substance, carves an exception, in case of conviction on criminal charges, from the normal procedure for imposing penalty, and reads as under :

(3.) It was vehemently argued by learned Counsel Ms. Davawala that, once conviction by criminal Court was reversed and acquittal was recorded by the appellate Court, the basis for termination of service by the employer vanishes and the order of reinstatement must follow as a matter of course. She relied upon the judgment of the Supreme Court in Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, 1996 (11) SCC 603, which was subsequently followed by the Supreme Court in Union of India v. Jaipal Singh, 2004 (1) SCC 121, to submit that the Court had only denied back wages in such cases where the High Court had already ordered reinstatement. The observations, torn out of context, read as under :