JUDGMENT
B.N. Kirpal, C.J.
1. This is a Letters Patent Appeal, whereby the learned single Judge had allowed the writ petition filed by the respondent, who had challenged the order terminating his services.
2. The respondent was working as a Senior Clerk in Vadodara Central Jail for the period 1970 to 1979. During this tenure, it was alleged that he had misappropriated a sum of Rs. 4,501.33. Four criminal cases were instituted against him. It appears that the respondent admitted his guilt before the Chief Magistrate, after charges had been framed against him under Secs. 409, 465, 467 and 477A, I.P.C. Having admitted the charge, the respondent pleaded for mercy. A report was sought from the Probation Officer, by the Chief Judicial Magistrate, and looking into the family circumstances, vide order dated 27th December, 1978, the respondent was released on probation and on bail for good behaviour.
3. The appellants had suspended the respondent on 6th May, 1974 on account of misappropriation of the aforesaid amount of Rs. 4,501.33. After the decision of the Chief Judicial Magistrate, holding the respondent guilty of the commission of the said offences, but releasing him on bail under Section 4 of the Probation of Offenders Act, an order was passed on 31st August, 1979, reinstating the respondent in service with immediate effect. This order revoked the suspension. But, a departmental enquiry was then started against him on 31st March, 1979. The Enquiry Officer submitted his report, which was accepted and a show cause notice was issued to the respondent on 11th of July, 1980, asking him to show cause why he should not be dismissed from service. Reply to the show cause notice was furnished on 4th August, 1980 and after taking the said reply into consideration, the impugned order of dismissal was passed on 3rd of September, 1980. An appeal was filed against the same, but it was dismissed by the Government on 8th September, 1980 and thereafter, the present writ petition was filed.
4. The learned single Judge allowed the writ petition for the following reasons :-
A. It had been contended that there was a report of the Inspector
General of Prisons, recommending reinstatement of the
respondent, but the same was not produced.
B. Principles of natural justice had been violated because of the
non-supply of documents;
C. Copy of the enquiry report was not supplied;
D. It was not understood as to how the respondent was asked to
manage the funds and other valuables of the prisoners who
were in Jail; and
E. The order passed by the Appellate Authority, without assigning
any reason, is against the principles of natural justice.
5. It is contended by the learned counsel for the appellants that in view of the fact that the respondent had been convicted by a Court of competent jurisdiction, the mere fact that the benefit of Probation of Offenders Act had been accorded to him and that his suspension was revoked does not mean that the charges against him were not proved. It is also committed by Miss Doshit that some of the contentions, which have been accepted by the learned single Judge had never been raised in the writ petition. It is also her contention that there is a factual error in the judgment, in as much as the copy of the enquiry report was, in fact, given to the respondent and, further, there was no averment in the writ petition that there had been denial of the principles of natural justice, in as much as material documents were not supplied to the respondent.
6. Shri Nanavati, on the other hand, has supported the judgment and has submitted that, in any event, a lenient view should be taken as the respondent has cardiac trouble.
7. Before dealing with rival contentions, it would be pertinent to note that in the Memorandum of Appeal, it has been stated that the respondent, after his services were terminated by the appellant in 1980, had secured employment with the Ahmedabad Electricity Company Limited. A photostat copy of the letter dated 9th October, 1991 has been placed on record by Miss Doshit, which is written by the Ahmedabad Electricity Company, in which it is mentioned that the respondent was appointed by the said Electricity Company on 26th November, 1980 on a salary of Rs. 480/- per month and his services were terminated on 8-11-1987. Thereafter, he was reinstated on 6th September, 1991 at a salary of Rs. 850/- per month, but a case is pending in the Labour Court with regard to his claim for backwages. It is necessary to refer to the aforesaid fact, because, in the writ petition, which had been filed, it had been, inter alia, contended that the respondent has no other source of income and that his dismissal from service by the appellant herein was causing great deal of suffering to him and members of his family.
8. With regard to the report of the Inspector General of Prisons regarding the reinstatement of the respondents. It is submitted by Miss Doshit that there is no such recommendation on record of the department. Even in the judgment, the learned single Judge has noted that the Counsel for the Department had submitted that there may not be any such letter and on going through the Department record, he was unable to find any such letter. In the writ petition, there is no particular with regard to the date of the alleged report of the Inspector General of Prisons, but nevertheless, the learned single Judge has come to the conclusion that it was difficult to believe that in the absence of any such letter of recommendations, the order of reinstatement would have been issued. This is the presumption, for which we find no basis. It is clear that after the Chief Judicial Magistrate had convicted the respondent, but given him the benefit of Probation of Offenders Act, the trial had come to an end. A decision had then to be taken as to what to do. The departmental proceedings had not commenced and, under the circumstances, the only action which could have been taken was to revoke the suspension and this is precisely what was done. This is not a case where the services of the respondent had been terminated and thereafter, he was reinstated in service. It is no doubt true that in the order, it is stated that the respondent was under suspension and that he was now being reinstated, but the word ‘reinstatement’ is perhaps not very appropriate. What the order means is that the suspension was to come to an end. When an employee is suspended, the relationship of master and servant is not snapped and there can be no question of reinstatement because that would, ordinarily, presume that the servant is no longer in the employment of the master. In any case, even if there be a report of the Inspector General, the same would be wholly irrelevant, because the action which was taken was the revocation of suspension. That has nothing to do with the departmental proceedings, which commenced thereafter.
9. The learned single Judge appears to have been under the impression that there are some documents pertaining to the charge, which were demanded by the respondent, but were not supplied to him and, therefore, there had been violation of the principles of natural justice. We find that there is no such averment in the writ petition at all. The only reference to the non-supply of documents is in paragraph 18 of the writ petition, wherein the petitioner had contended that there were a number of other cases of similar nature with regard to the other persons serving in the departments, but no action had been taken against them. It is with regard to this averment that it was stated in the writ petition that the petitioner had ‘asked the copies and details of such persons during the enquiry yet they were not supplied and thus, no opportunity was given, violating the principles of natural justice……’. The enquiry against the respondent was with regard to the allegation of defalcation against him. That there were other persons against whom such or similar or other allegations were there was wholly irrelevant and, therefore, any documents in this connection were rightly not supplied. It may be noted that one of the contentions which was raised by the respondent before the learned single Judge pertained to this averment, as it was contended that there were other employees, who had committed similar and identical defaults but no departmental action had been taken against them. This contention was expressly rejected, and, in our opinion, rightly so, by the learned single Judge and he came to the conclusion that the question of discrimination could not be raised. Perhaps, attention was not specifically drawn to the facts that the documents, which were wanted by the respondent, were in support of this contention, which was rightly rejected by the learned-single Judge. Therefore, we find that there was no denial of natural justice in the present case.
10. With regard to the non-supply of enquiry report, there is no such averment in the writ petition and, consequently, there is no denial in the reply affidavit. The learned single Judge seems to have fallen in error in observing that it was not in dispute that copy of the enquiry report had not been supplied. The allegation that report had not been supplied is not correct and Miss Doshit has drawn our attention to the official record, which clearly shows that, along with the show cause notice, copy of the enquiry report was forwarded. It is perhaps for this reason that there was no averment in the writ petition, nor was any contention raised with regard to the non-supply of the enquiry report. The conclusion of the learned single Judge in this connection is not correct.
11. With regard to the observations that it was not understood as to how the respondent was asked to manage the funds and other valuables of the prisons, who were in jail, Miss Doshit is right in contending that this Court cannot sit in appeal over the finding of fact, which had been arrived at by the departmental authority. The contention as urged before the learned single Judge, had never been raised in the writ petition. The only allegation in the writ petition is that according to the Jail Manual, the respondent was not responsible for the default. The order imposing penalty, on the other hand, sets out in detail as to how much money was misappropriated by the respondent. The learned single Judge has, unfortunately, not referred to this order, because the modus operandi adopted by the respondent for defalcating money was clearly spelt out therein.
12. It is true that the order of the appellate authority is a non-speaking order. But, the main contention which was raised in the appeal with which was filed before the Appellate Authority was that once the respondent has been given the benefit of the Probation of Offenders Act, then no punishment even after departmental enquiry could have been imposed. In the present state of the law as enunciated by the Supreme Court in a number of decisions, this contention has no force.
13. This is a case where criminal prosecution was successfully launched against the respondent. After the charges were framed, he admitted the guilt, but he was given the benefit of Probation of Offenders Act. A departmental enquiry was instituted and charges were furnished to him. We do not find any principles of natural justice having been denied, as a regular enquiry was held and report of the Enquiry Officer was received. In fact, after the admission of the guilt before the Magistrate, there is very little which could have been urged by the respondent in the departmental proceedings. Under the circumstances the appellants rightly passed the order of dismissal.
14. There is one important reason why no relief should be granted to the respondent. As already observed, in the writ petition, it has been alleged that the respondent has no other source of livelihood in view of his services having been terminated by the appellant. This petition was filed in 1981 when the respondent was already employed with the Ahmedabad Electricity Company Limited. At the time when the petition was decided on 24th July, 1991, the respondent was not in service of the said Electricity Company, but he was reinstated on 6th September, 1991. Nevertheless, between 26th November, 1980 and 8th November, 1987, when his services were initially terminated by the Electricity Company, the respondent had been receiving consolidated salary every month. This fact was not brought to the notice of the learned single Judge, who, while allowing the writ petition, ordered the payment of full backwages. The respondent was guilty of suppressing a material fact and even now, it is the appellant who have brought to the notice of this Court the fact that the respondent had been employed between 26-11-1980 and 8-11-1987 and has again been reinstated by the Electricity Company since 6th of September, 1991. His claim for backwages from the Ahmedabad Electricity Electricity Company between the period 9-11-1987 and 5th September, 1991 is pending before the Labour Court. These are all material facts which should have been disclosed.
15. For the aforesaid reasons, this Appeal is allowed. While dismissing the writ petition, the respondent is given three months’ time to vacate the premises in his occupation. No costs.