GANGARAM PANACHAND PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 13. 4. 2009 passed by the respondent No. 2 dismissing the petitioner, on conviction for the offences under the provisions of Prevention of corruption Act.

(2.) PETITIONER was serving as a Medical officer, Class II with the department of health and Family Welfare. While he was serving at Primary Health Center, Malan, tal: Palanpur, Dist. Banaskantha, a criminal case was instituted against the petitioner for the offences punishable under septions 7. 13 (1) (d), (1) (2) (3) and Section 13 (2) of the Prevention of Corruption Act, in the month of June, 2003, on raid bing carried out by the Anti Corruption Bureau, palanpur. The petitioner was tried by the learned Additional Sessions Judge, 5th Fast track Court, Palanpur in Special ACB case No. 121 of 2003. That during the trial, the petitioner came to be suspended w. e. f. 1. 10. 2003. That the petitioner came to be charge sheeted and departmental inquiry came to be initiated against the petitioner vide charge sheet dated 3. 6. 2004. That during the pendency of the aforesaid Criminal Case as well as departmental inquiry, petitioner came to be reinstated in service vide order dated 13. 3. 2006. That, thereafter petitioner came to be convicted by the learned Additional sessions Judge, 5th Fast Track Court, palanpur vide judgment and order of conviction dated 21. 2. 2007 for the offences under the provisions of the Prevention of corruption Act and has been sentenced to undergo RI for three years along with fine of Rs. 5000/ -. That being aggrieved and dissatisfied with the judgment and order of conviction and sentence, the petitioner has preferred Criminal Appeal No.- 461 of 2007 and the said appeal has been admitted. Along with the appeal petitioner preferred an application under Section 389 of Code of Criminal Procedure being criminal Misc. Application No. 2644 of 2007 for suspension of sentence and releasing him on bail. That petitioner has been released on bail by suspending sentence by the learned Single Judge of this Court vide order dated 16. 3. 2007. That, thereafter petitioner has been served with the show cause notice dated 4. 6. 2007 in view of the conviction of the petitioner under the Prevention of Corruption Act and the petitioner was required to show cause why a major punishment shall not be imposed on him under the Rules. That the petitioner replied to the said show cause notice on 8. 6. 2007 stating that as the judgment and order of conviction and sentence is subject matter of challenge before this Court by way of Criminal appeal wherein sentence has been suspended, it was requested not to take any action till pendency of the said appeal. That, thereafter respondent No. 2 has passed the impugned order dated 13. 4. 2009 purported to be under the provisions of rule 14 (1) (2) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, dismissing the petitioner from service as a medical Officer, Class II. That being aggrieved and dissatisfied with the impugned order of dismissal, petitioner has preferred the present Special Civil application under Article 226 of the constitution of India.

(3.) SHRI Tejas Barot. learned Advocate appearing on behalf of the petitioner has vehemently submitted that in view of the pendency of the Criminal Appeal against the judgment and order of conviction and sentence passed by the learned Additional sessions Judge convicting the petitioner for the offences under the Prevention of corruption Act and in view of the sentence being suspended the impugned order of dismissal deserves to be quashed and set aside. It is further submitted that the impugned order has been passed under rule 14 (1) (2) of the Gujarat Civil Service (Discipline and Appeals) Rules, 1971, however the said Rule shall not be applicable as the said Rule is ,with respect to dispensing with the inquiry where the disciplinary authority is satisfied for the reasons to be recorded in writing that is not reasonably practical to follow the procedure prescribed in Rules 8 and 9. It is further submitted that impugned order is absolutely cryptic and non speaking order. It is submitted that no reasons have been recorded while passing the impugned order as contemplated under Rule 14 (1) (2) of the said Rules. Shri Tejas Barot, learned advocate appearing on behalf of the petitioner has relied upon the decision of the Division Bench of this Court in the case of Kiritkumar D. Vyas v. State of gujarat and Anr reported in 1982 (2) GLR, 79. It is submitted that as held by the division Bench of this Court even if an employee is convicted, before taking disciplinary action opportunity must be given to employee in regard to quantum of punishment. It is submitted that as held by the Division Bench of this Court mere conviction would not "dispense with the requirement of giving of reasonable opportunity". By making above submissions and relying upon the aforesaid decision, it is requested to allow the present Special Civil Application.