M V CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) While petitioner was serving as a Divisional Accountant a Class III post in the Medium Irrigation Project Division of Ankleshwar, a case under Prevention of Corruption Act, 1947 read with section 161 IPC was instituted against him before the learned Special Judge, Bharuch. During the pendency of the trial, he was suspended on 23/01/1985. In the said trial, in the first instance, he was convicted by the Judge, Special Court and thereafter, the said conviction was upheld by High Court in Criminal Appeal No.1189/86 by judgement dated 16/17-4-1993. His appeal before the Supreme Court succeeded on 3/9/19997 and he was acquitted and conviction was set aside on the ground that no valid sanction for prosecuting has been granted by the Government. However, the Court looking to the age of litigation and issue involved did not permit trial denovo in respect of the charges. During this period, the petitioner has attained the age of superannuation and retired from services on 30/04/1994. During the entire period of his tenure w.e.f. 23/01/1985 to 30th April 1994, the petitioner has remained under suspension. As a result of setting aside of conviction, the suspension of petitioner was revoked. The Government also decided not to take any departmental action against the petitioner and consequential benefits were computed by treating him on duty throughout the period during which he remained under suspension. The petitioner was also afforded promotion as and when it became due to him by giving him deemed date as on the date person who were junior to him was promoted on the next higher post. He was given promotions on the posts of Assistant Office Superintendent [DN] and Assistant Office Superintendent [Circle] w.e.f. 10/3/19980 and 28/12/1984 respectively. Lastly, he was given promotion as office superintendent w.e.f. 23/5/89. However, no emoluments were granted to the petitioner for 23/5/1989 to 10/3/1980 and 30/4/1994, the period covering his promotion as Office Superintendent by order dated 6/03/1998. It is this action which is the subject matter of challenge in this petition.

(2.) It has been urged by learned counsel for the petitioner that in fact, no orders were made denying petitioner the emoluments for period of suspension and in fact all other emoluments except for the higher post of office superintendent has been paid. The petitioner cannot be denied entitlement of higher post of which he was denied opportunity at appropriate time for no fault of his. If the denial of pay of promotional posts for the period is relatable to Rule 152 of B.C.S.R., the same could not have been made without affording opportunity of hearing. In that event, the impugned order has been made without affording an opportunity of hearing and therefore, it suffers from breach of principle of natural justice and cannot be sustained. He also pointed out that the Government in its own decision has taken the view that where a person who has been prosecuted and convicted, on being acquitted on technical ground and no further appeal is filed against such acquittal on technical ground that that the Government also decided not to take any action against the petitioner, such acquittal should be deemed to be an acquittal on merit and as a consequence thereof, he is entitled to full benefit as having been reinstated as a result of clean acquittal.

(3.) Learned counsel for the respondents supports the order of denial of emoluments of higher post solely on the ground of Rule 152 of B.C.S.R. He contends that the purport of its circular is confined only for the purpose of grant of promotion, but does not affect making of an order under Rule 152 of B.C.S.R. Rules which is to be made in such eventuality. As in the present case under the provision of the Act governing the regularisation and payment of the period during which government servant has not discharged his duties as a result of suspension or dismissal order and ultimately, he is restored back to his original position. So far as the question of order having been made in breach of principles of natural justice is concerned, it is not disputed that the order has been made in breach of principles of natural justice. On respondents own showing the order denying emoluments for suspension period cannot be sustained, if the same has been made in breach of principle of natural justice, and this is admitted position in present case, that orders has been made in breach of natural justice, the impugned action is liable to be set aside.