Piyushbhai Bhagvatbhai Gamit vs State Of Gujarat on 20 March, 2026

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    Gujarat High Court

    Piyushbhai Bhagvatbhai Gamit vs State Of Gujarat on 20 March, 2026

                                                                                                                         NEUTRAL CITATION
    
    
    
    
                              C/SCA/7162/2022                                         CAV JUDGMENT DATED: 20/03/2026
    
                                                                                                                         undefined
    
    
    
    
                                                                                      Reserved On   : 09/03/2026
                                                                                      Pronounced On : 20/03/2026
    
                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                           R/SPECIAL CIVIL APPLICATION NO. 7162 of 2022
    
    
                           FOR APPROVAL AND SIGNATURE:
    
    
                           HONOURABLE MR. JUSTICE MAULIK J.SHELAT                                       Sd/-
    
                           =========================================================
    
                                         Approved for Reporting          Yes      No
                                                                          ✓
                           =========================================================
                                         PIYUSHBHAI BHAGVATBHAI GAMIT
                                                         Versus
                                             STATE OF GUJARAT & ORS.
                           =========================================================
                           Appearance:
                           MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
                           MR. SIDDHARTH RAMI, AGP for the Respondent(s) No. 1,2,3,4
                           =========================================================
    
                              CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
    
    
                                                                    CAV JUDGMENT
    

    [1] Rule returnable forthwith. Learned AGP Mr. Siddharth

    Rami waives service of notice of Rule for and on behalf of the

    SPONSORED

    respondents.

    [2] Heard Mr. P.P.Majmudar, learned advocate for the petitioner

    as also Mr. Siddharth Rami, learned AGP for the respondents, at

    length.

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    [2.1] With the consent of the learned advocates for the respective

    parties, the present matter is taken up for hearing.

    [3] The present writ petition is filed under Articles 14, 16, 21 and

    226 of the Constitution of India, seeking the following reliefs:-

    “(A) YOUR LORDSHIPS may be pleased to issue a writ of
    mandamus or a writ in the nature of mandamus or any other
    appropriate writ, order or directions directing the quash and set
    aside the impugned order dated 19.07.2019 passed by the
    respondent no.4 (At ANNEXURE-A hereto) as well as order dated
    20.11.2019 passed by the respondent no.3 (At ANNEXURE-B
    hereto) and order dated 26.03.2020 passed by the respondent No.2
    (At ANNEXURE-C hereto), and further be pleased to direct the
    respondent authority to reinstate the present petitioner in the
    services with all consequential benefits and back-wages and
    continuity of service along with interst;

    (B) Pending admission, hearing and final disposal of this petition,
    YOUR LORDSHIPS may be pleased to stay the order dated
    19.07.2019 passed by the respondent no.4 (At ANNEXURE-A
    hereto) as well as order dated 20.11.2019 passed by the respondent
    no.3 (At ANNEXURE-B hereto) and order dated 26.03.2020
    passed by the respondent no.2 (At ANNEXURE-C hereto);

    (C) Pass any such other and/or further orders that may be thought
    just and proper, in the facts and circumstances of the present case.”

    SHORT FACTS

    [4] The petitioner was appointed as a Police Constable on

    30.04.2001. The FIR came to be registered against the petitioner on

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    12.08.2010 being C.R.No.I-4 of 2010 with Tapi ACB Police Station,

    Tapi for the offence punishable under Sections 7, 12 and 13(1)(b)

    (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act,

    1988’). The petitioner was suspended by respondent vide order

    dated 27.09.2010 and upon his request made after three years of

    suspension, he was reinstated vide order dated 07.02.2013.

    [4.1] Upon conclusion of the Trial, vide judgment and order dated

    30.04.2019, the Addl. (Ad-hoc) Sessions Judge, Tapi at Vyara has

    convicted the petitioner for the said offences. The petitioner

    appears to have challenged the said conviction before this Court

    by way of Criminal Appeal No.1080 of 2019, which was admitted

    but this Court has not stayed the conviction, as only suspended the

    sentence awarded to petitioner.

    [4.2] Since the petitioner is found convicted, respondent No.4

    herein vide its order dated 19.07.2019, dismissed the petitioner

    from service. The petitioner has unsuccessfully challenged the

    aforesaid impugned order before respondent Nos.3 & 2 by way of

    appeal and revision respectively, who have not interfered with the

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    impugned order passed by respondent No.4. Hence, the present

    petition.

    SUBMISSIONS OF THE PETITIONER

    [5] Mr. P.P.Majmudar, learned advocate would submit that the

    impugned order came to be passed by respondent No.4, is in

    violation of principles of natural justice, as prior to passing of

    order of dismissal, no show cause notice came to be served upon

    the petitioner. It is submitted that irrespective of conviction of

    petitioner, respondent No.4 could not have dismissed the service

    of the petitioner without affording an opportunity of hearing.

    [5.1] Mr. Majmudar, would further submit that neither the

    Appellate Court nor the Revisional authority of the respondent –

    State have taken the aforesaid ground into account whereby,

    committed serious error in law while rejecting the appeal /

    revision.

    [5.2] Mr. Majmudar, would further submit that as per the settled

    legal position of law, even though petitioner is found to be

    convicted in ACB case, then also, it was incumbent upon

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    respondent No.4 to serve him show cause notice. It is submitted

    that since the impugned order is passed in violation of principles

    of natural justice, it requires to be quashed and set aside and

    consequently, the petitioner requires to be reinstated with back-

    wages.

    [5.3] To buttress his arguments, he has heavily relied upon the

    following decision: –

    Ramsingbhai Saburbhai Patel Vs. State of Gujarat & Anr.
    rendered in Special Civil Application No.22629 of 2019,
    dated 23.03.2022;

    [5.4] Making the above submissions, Mr. Majmudar, learned

    advocate for the petitioner would request this Court to allow the

    present petition.

    SUBMISSIONS OF THE RESPONDENTS

    [6] Per contra, Mr. Siddharth Rami, learned AGP has vehemently

    opposed this petition, inter alia, contenting that there is no merit in

    the submission of Mr. Majmudar, learned advocate for the

    petitioner as regards to violation of principles of natural justice by

    the respondent. It is submitted that the petitioner is found to be

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    convicted by the competent Court in a case of corruption and as

    per Rule 14 of the Gujarat Civil Services (Discipline and Appeal)

    Rules, 1971 (for short ‘the Rules, 1971’), it is not required to serve a

    prior show cause notice to the petitioner before effecting the order

    of dismissal.

    [6.1] Mr. Rami, learned AGP would further submit that in a case

    like present one, when conviction of petitioner is neither stayed by

    this Court nor set aside, such convicted person cannot be

    permitted to serve the police department. It is further submitted

    that as per the settled legal position of law, in a case of corruption,

    no lenient view can be taken by the employer, more particularly

    petitioner was serving in a Police Department.

    [6.2] Mr. Rami, learned AGP would further submit that it is not

    sine qua non in all cases to observe the principles of natural justice,

    if it would be an empty formality. It is submitted that as per Rule

    14(1)(i) of the Rules, 1971, in a case where the conduct of the

    petitioner which has led to his conviction on a criminal charge, it

    would be an empty formality to serve him any show cause notice

    prior to his dismissal order. It is further submitted that in a case of

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    convicted employee, there is no second view to be considered by

    the employer – State but to dismiss his service.

    [6.3] Mr. Rami, learned AGP would submit that the decision

    relied upon by Mr. Majmudar, learned advocate for the petitioner

    would not be applicable to the facts of the present case, as there is

    no expressed provision under Rule 14(1)(i) of the Rules, 1971, to

    give an opportunity of hearing to Government Servant –

    petitioner.

    [6.4] To buttress his arguments, he has relied upon the following

    decisions: –

    i. Aligarh Muslim University And Ors vs Mansoor Ali
    Khan
    reported in 2000 (7) SCC 529;

    ii. K.C. Sareen Vs. CBI, Chandigarh reported in (2001) 6 SCC
    584.

    [6.5] Making the above submissions, Mr. Rami, learned AGP

    would request this Court to dismiss the present writ petition.

    POINT FOR DETERMINATION

    [7] Upon hearing the learned advocates for the respective

    parties and after perusal of the pleadings and documents on

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    record, following legal issue germane for my consideration: –

    “Whether, in law, Respondent No. 4 was required to issue

    a show-cause notice before passing the impugned order of

    dismissal following the petitioner’s conviction under the

    Act, 1988 in the ACB Case?”

    ANALYSIS

    [8] The facts observed hereinabove are not in dispute. The

    services of the petitioner came to be terminated by respondent

    No.4 vide its impugned dismissal order dated 19.07.2019, having

    found the petitioner convicted in ACB case. The impugned order

    of dismissal came to be passed in view of the second proviso to

    Article 311 (2) of the Constitution read with exercising its powers

    under Rule 3 of the Bombay Police (Punishment & Appeal) Rules,

    1956 (hereinafter referred to as ‘the Rules, 1956’). The petitioner

    challenged the impugned order of dismissal before the Appellate

    and Revisional Authorities, who dismissed the appeal and the

    revision filed by the petitioner vide orders dated 20.11.2019 and

    26.03.2020, respectively. All these orders are under challenge in

    this petition.

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    [8.1] The sole and principal submission made on behalf of the

    petitioner that prior to passing of impugned order of dismissal by

    respondent No.4, no show cause notice served upon him.

    According to petitioner, it is sine qua non to issue show cause

    notice before passing order of dismissal. Since the impugned order

    was passed without issuing a show cause notice, thereby, claimed

    that dismissal of the petitioner is in violation of principles of

    natural justice and heavy reliance is placed upon the decision of a

    coordinate Bench of this Court in the case of Ramsingbhai

    Saburbhai Patel (supra).

    [8.2] Whereas, respondent – State has opposed this petition

    mainly on the ground that once the petitioner is found to be

    convicted under the provisions of the Act, 1988, then pursuant to

    the second proviso to Article 311 (2) (a) of the Constitution, no

    prior show cause notice was required to be served upon the

    petitioner. Thus, there is no violation of principles of natural

    justice, as alleged.

    [9] Before adverting to the issue germane in the matter, first I

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    would like to refer to the relevant provisions of law which have a

    direct bearing to resolve the controversy.

    : ARTICLE 311 IN CONSTITUTION OF INDIA :

    311. Dismissal, removal or reduction in rank of persons employed
    in civil capacities under the Union or a State

    (1) No person who is a member of a civil service of the Union or an all
    India service or a civil service of a State or holds a civil post under
    the Union or a Slate shall be dismissed or removed by a authority
    subordinate to that by which he was appointed.

    (2) No such person as aforesaid shall be dismissed or removed or
    reduced in rank except after an inquiry in which he has been
    informed of the charges against hi m and given a reasonable
    opportunity of being heard in respect of those charges;

    Provided that where it is proposed after such inquiry, to impose
    upon him any such penalty, such penalty may be imposed on the
    basis of the evidence adduced during such inquiry and it shall not
    be necessary to give such person any opportunity of making
    representation on the penalty proposed:

    Provided further that this clause shall not apply–

    (a) where a person is dismissed or removed or reduced
    in rank on the ground of conduct which has led to his
    conviction on a criminal charge; or

    (b) where the authority empowered to dismiss or remove a
    person or to reduce him in rank is satisfied that for some
    reason, to be recorded by that authority in writing, it is not
    reasonably practicable to hold such inquiry; or

    (c) where the President or the Governor, as the case may be,
    is satisfied that in the interest of the security of the State, it
    is not expedient to hold such inquiry.

    (3) If, in respect of any such person as aforesaid, a question arises
    whether it is reasonably practicable to hold such inquiry as is
    referred to in clause (2), the decision thereon of the authority
    empowered to dismiss or remove such person or to reduce him in
    rank shall be final.

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    : THE GUJARAT CIVIL SERVICES (DISCIPLINE
    AND APPEAL) RULES, 1971 :

    1. Short title, Commencement and Application :-

    (a) These rules may be called the Gujarat Civil Services (Discipline
    and Appeal) Rules, 1971.

    (b) They shall come into force with effect from 15th August, 1971.

    (c) They shall apply to all persons appointed to civil services and
    posts in connection with the affairs of the State of Gujarat whose
    conditions of service are regulated in accordance with the rules
    made under article 309 of the Constitution.

    Provided that nothing in these rules shall apply to any
    Government servants who are members of the All India
    Services or who are Inspectors of Police or Members of the
    Subordinate ranks of the Police Force.

    14. Special procedure in certain cases :

    (1) Nothing contained in rules 8 or 9 shall apply-

    (i) 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,
    or

    (ii) where the Disciplinary Authority is satisfied for reasons to be
    recorded in writing that it is not reasonably practicable to follow
    the procedure prescribed in the said rules, or

    (iii) where the Government is satisfied that in the interest of the
    security of the State, it is not expedient to follow such procedure.

    (2) In cases to which the provision of sub-rule (1) shall apply, the
    Disciplinary Authority may consider the circumstances of the case
    concerned and pass such order thereon as it deems fit :

    Provided that the Commission shall be consulted before passing such
    orders in any case in which such consultation is necessary.

    : THE BOMBAY POLICE ACT, 1951 :

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    “26. Procedure to be observed in awarding punishment.

    When any officer passes an order for fining, suspending,
    reducing, removing or dismissing a Police officer, be shall
    record such order or cause the same to be recorded, together
    with the reasons therefore and a note of the inquiry made, in
    writing, under his signature.

    Provided that [no order for reducing, removing or
    dismissing a Police officer] shall be passed without
    giving him a reasonable opportunity of showing cause
    against the action proposed to be taken against him
    except in cases referred to in the proviso (a) to CI. (2) of
    Art. 311 of the Constitution.”

    : THE CENTRAL CIVIL SERVICES (CLASSIFICATION,
    CONTROL & APPEAL) RULES, 1965 :

    “Rule – 19. Special procedure in certain cases
    Notwithstanding anything contained in rule 14 to rule 18-

    (i) where any penalty is imposed on a Government
    servant on the ground of conduct which has led to his
    conviction on a criminal charge, or

    (ii) where the disciplinary authority is satisfied for reasons to
    be recorded by it in writing that it is not reasonably
    practicable to hold an inquiry in the manner provided in these
    rules, or

    (iii)where the President is satisfied that in the interest of the
    security of the State, it is not expedient to hold any inquiry in
    the manner provided in these rules, the disciplinary authority

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    may consider the circumstances of the case and make such
    orders thereon as it deems fit:

    Provided that the Government servant may be given an
    opportunity of making representation on the penalty
    proposed to be imposed before any order is made in a
    case under clause (i):

    Provided that the Commission shall be consulted, where such
    consultation is necessary, and the Government servant has
    been given an opportunity of representing against the advice
    of the Commission, within the time limit specified in clause

    (b) of sub-rule (3) of rule 15, before any orders are made In
    any case under this rule.”

    [10] At the outset, it requires to be observed that the petitioner

    was serving in State Police Force, then as per proviso to Section 1

    of the Rules, 1971, the Rules 1971 are not applicable to the present

    case. Nonetheless, the case of the petitioner may not be improved

    for the said reason, as his services condition being Police Personnel

    were governed by the provisions of the Bombay Police Act, 1951

    (for short ‘the Act, 1951’). As per proviso to Section 26 of the Act,

    1951, in a case referred to in the second proviso to Article 311 (2)

    (a) of the Constitution, there is no requirement to issue a show

    cause notice to the Police Personnel before imposing punishment.

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    Whereas, first proviso to Rule 19 of the Central Civil Services

    (Classification, Control & Appeal) Rules, 1965 (for short ‘the Rules,

    1965’), the reasonable opportunity in a case like the present one,

    requires to be given to the Central Government Servant.

    [11] The emphasis of Mr. Majmudar, learned advocate for the

    petitioner that, in view of the decision of the coordinate Bench of

    this Court in the case of Ramsingbhai Saburbhai Patel (supra), the

    respondent must issue a show cause notice prior to passing an

    order of dismissal.

    [11.1] I have minutely gone through the aforesaid decision

    pressed into service by Mr. Majmudar, learned advocate. Upon its

    perusal, it appears that a coordinate Bench in that case, relied upon

    the decision rendered in SCA No.9743 of 2020. I have also gone

    through the aforementioned decision, wherein I found that it has

    relied upon the judgment dated 31.07.2018 passed by a coordinate

    Bench in the case of Budhsinh Jaisinh Patel Vs. State of Gujarat

    rendered in SCA No.9967 of 2018. Upon perusal of the

    aforementioned judgment, it can be seen that facts are so similar to

    the case on hand and in the aforesaid judgment, a coordinate

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    Bench has held that it is a condition precedent that authority must

    issue notice before the passing an order of dismissal, so as to

    observe the principles of natural justice, which according to the

    Court, is pre-requisite in law.

    [11.2] In the case of Budhsinh Jaisinh Patel (supra), following

    has been observed and accordingly, held thus: –

    “5. The proposition of law in Ahmadkhan Inayatkhan (supra)
    relied on behalf of the petitioner and what is held in H.N. Rao (supra)
    stand in opposite.

    5.1 However, the law has developed and travelled farther, which is to be
    learnt and gathered from decision of the Apex Court in Union of India
    v. Sunil Kumar Sarkar
    [(2001) 3 SCC 414]. It would be worthwhile to
    advert to analyse.

    5.2 In Kiritkumar D. Vyas v. State of Gujarat [1982 (2) GLR 79]
    this Court held, “mere conviction, therefore cannot be utilised for
    passing an order of dismissal blindfoldedly without hearing the
    delinquent on the question of sentence. Needless to add that this would
    be so even in case where the disciplinary authority exercises powers
    under Rule 14 of the Gujarat Civil Services (Discipline and Appeal)
    Rules.”.
    Kiritkumar D. Vyas (supra) was a Division Bench judgment.
    Relying on the same in a similar set of facts, learned Single Judge of this
    Court in Shankabhai Naginbhai Patel being Special Civil
    Application No.2349 of 1998 set aside the order removing the
    petitioner of that petition keeping it open for the respondent to pass fresh
    order after giving opportunity.

    5.2.1 The Division Bench in Ahmadkhan Inayatkhan (supra) relied
    on the decision in Kiritkumar D. Vyas (supra) as well as another
    decision also of this Court in Laxman Waghgimal v. K.N. Sharma,
    D.S.P., Kutch
    [1985 GLH (UJ-28) 20].
    On the basis of the said
    decisions, in Ahmadkhan Inayatkhan (supra) it was ruled in paragraph
    3 that, “In this decision, this Court held that even though this rule does
    not contemplate giving of the notice, it must be read into this rule that

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    notice should be given to satisfy the principles of natural justice.”.

    5.2.2 Since in H.N. Rao (supra), a view was taken that show-cause
    notice was not necessary, in paragraphs 6 adn 7 of the judgment, the
    Court referred to the decisions taking contrary view including
    Shankabhai Naginbhai Ptael (supra) and Kiritkumar D. Vyas
    (supra) to hold that they did not take the correct view.

    5.3 Now proceeding to look at The Supreme Court decision in Sunil
    Kumar Sarkar
    (supra), it dealt with the case of a delinquent
    undergoing sentence of imprisonment. The respondent was found guilty
    and sentenced under the General Court Martial to rigorous
    imprisonment for six years under the Army Act. The High Court found
    fault with the order of dismissal passed by the disciplinary authority on
    the ground that the same was solely based on conviction suffered by the
    respondent in the Court Martial proceedings. It was held by the High
    Court that the disciplinary authority had a predetermined mind when it
    passed the order of dismissal.

    5.3.1 In the context of the aforesaid facts the Supreme Court held,
    “This is a summary procedure provided to take disciplinary
    action against a government servant who is already convicted in
    a criminal proceeding. The very foundation of imposing
    punishment under Rule 19 is that there should be a prior
    conviction on a criminal charge. Therefore, the question of having
    a predetermined mind does not arise in such cases. All that a
    disciplinary authority is expected to do under Rule 19 is to
    be satisfied that the officer concerned has been convicted of
    a criminal charge and has been given a show-cause notice
    and reply to such show-cause notice, if any, should be
    properly considered before making any order under this
    Rule. Of course, it will have to bear in mind the gravity of the
    conviction suffered by the government servant in the criminal
    proceedings before passing any order under Rule 19 to maintain
    the proportionality of punishment. In the instant case, the
    disciplinary authority has followed the procedure laid down in
    Rule 19, hence, it cannot be said that the disciplinary authority
    had any predetermined mind when it passed the order of
    dismissal.” (Para 8)

    5.4 It is thus considered an essential requirement that before
    disciplinary authority passed the order of dismissal against the

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    respondent who was convicted of criminal charge to give show-cause
    notice and to consider the reply given to the show- cause notice. The
    Supreme Court held that at that stage the question of having
    predetermined mind did not arise in such cases. In other words, the
    Court considered the procedure of giving notice and consider defence
    of the convict at that stage to be the meaningful exercise.
    Dispensation of notice before taking action of dismissal against the
    convicted person which is based on the theory of empty formality was
    found not tenable in law.

    5.5 The authority could not have judged at the stage of taking the
    action of dismissal that the person to be dismissed was not prejudiced
    since there was already a conviction recorded against him. The stage
    to apply the test of prejudice would arrive at a subsequent point of
    time. The requirement of giving notice and appreciating the reply of
    the person concerned was not viewed as an empty formality but a
    condition precedent before passing the order of dismissal under the
    Rule. The observance of natural justice to this extent was treated as
    pre-requisite in law.

    6. In view of the aforesaid decision in Sunil Kumar Sarkar (supra)
    and the ratio thereof, the decisions of this Court in H.N. Rao
    (supra) and those judgments taking the view that prior notice is not
    necessary, no more stand to be the good law.
    The ratio in Sunil
    Kumar Sarka
    (supra) would prevail and the proposition of law laid
    down by
    this Court in Kiritkumar D. Vyas (supra), Shankabhai
    Naginbhai Patel
    (supra) as well as in Ahmadkhan Inayatkhan
    (supra) stand revived to be the law holding the field to be applied.”

    (Emphasis supplied)

    [12] Once a coordinate Bench has taken the aforesaid view,

    ordinarily it is binding on me; in the event of a disagreement, I

    would be required to refer the matter to a Division Bench. As such,

    the view taken by a coordinate Bench is contrary to the binding

    precedent of the Constitution Bench decision of the Hon’ble Apex

    Court in the case of Union of India & Anr. Vs. Tulsiram Patel

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    reported in AIR 1985 SC 1416. It is trite law that any decision of a

    High Court which runs contrary to a Constitution Bench decision

    of the Hon’ble Apex Court, such decision can never be treated as

    binding precedent. [See – Collector of Central Excise Vs. Orient

    Fabrics Pvt. Ltd. Reported in (2004) 1 SCC 597]. In such

    eventuality, I find it necessary to depart from that view without

    referring this matter to Division Bench, albeit for following

    reasons.

    [12.1] It can be seen from the aforesaid reading of decision of a

    coordinate bench in a case of Budhsinh Jaisinh Patel (supra), that

    while taking the aforesaid view, the reliance was placed upon

    decision of the Hon’ble Apex Court in the case of Union of India v.

    Sunil Kumar Sarkar reported in (2001) 3 SCC 414. The facts of that

    case before the Hon’ble Apex Court are not so similar like the

    present case or a case before a coordinate bench, inasmuch as the

    Rule 19 of the Rules, 1965 is not applicable to the present case. The

    said rule is applicable in the case of Central Government Servant.

    It was considered by the Hon’ble Apex Court, and in light of such

    rule, it has been observed that under Rule 19 of the Rules, 1965, a

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    disciplinary authority is required to be satisfied that the officer

    concerned has been convicted of a criminal charge, and before

    passing any order under the said Rule, a show-cause notice to be

    served upon the officer concerned. As observed and reproduced

    said Rule 19 of the Rules, 1965, hereinabove, the rule itself

    provides an opportunity of hearing to be given to officer

    concerned on eventuality of his conviction due to his conduct.

    Whereas, no similar provision like Rule 19 of the Rules, 1965, is

    available, either in the Act, 1951 or under Rules, 1956, and /or in

    the Rules, 1971, as the case may be. In such circumstances, and as

    the impugned order in the present case was passed considering

    the second proviso to Article 311 (2) (a) of the Constitution, it was

    not incumbent upon respondent No.4 (the Disciplinary Authority)

    to examine whether before passing the impugned order, a show-

    cause notice was required to be issued to petitioner for observing

    the principles of natural justice or not.

    [12.2] As such, the aforesaid issue germane to the matter is

    no longer res integra, in the case of Tulsiram Patel (supra), the

    Constitution Bench of the Hon’ble Apex Court has observed and

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    held thus:

    “61. The language of the second proviso is plan and unambiguous.
    The key-words in the second proviso are “this clause shall not apply”. By
    “this clause” is meant clause(2). As clause(2) requires an inquiry to be
    held against a government servant, the only meaning attributable to
    these words is that this inquiry shall not be held. There is no scope for
    any ambiguity in these words and there is no reason to given them any
    meaning different from the plain and ordinary meaning which they bear.
    The resultant effect of these words is that when a situation envisaged in
    any of the three clauses of the proviso arises and that clause becomes
    applicable, the safeguard provided to a government servant by clause (2)
    is taken away. As pointed out earlier, this provision is as much in public
    interest and for public good and a matter of public policy as the pleasure
    doctrine and the safeguards with respect to security of tenure contained
    in clauses (1) and (2) of Article 311.

    62. Before, however, any clause of the second proviso can come into
    play the condition laid down in it must be satisfied. The condition for the
    application of each of these clauses is different. In the case of clause (a) a
    government servant must be guilty of conduct deserving the penalty of
    dismissal, removal or reduction in rank which conduct has led to him
    being convicted on a criminal charge. In the case of clause (b) the
    disciplinary authority must be satisfied that it is not reasonably
    practicable to hold an inquiry. In the case of clause (c) the President or
    the Governor of a State, as the case may be, must be satisfied that in the
    interest of the security of the State, it is not expedient to hold an inquiry.
    When these conditions can be said to be fulfilled will be discussed later
    while dealing separately with each of the three clauses. The paramount
    thing, however, to bear in mind is that the second proviso will apply
    only where the conduct of a government servant is such as he deserves
    the punishment of dismissal, removal or reduction in rank. If the
    conduct is such as to deserve a punishment different from those
    mentioned above, the second proviso cannot come into play at all,
    because Article 311 (2) is itself confined only to these three penalties.
    Therefore, before denying a government servant his constitutional right
    to an inquiry, the first consideration would be whether the conduct of the
    concerned government servant is such as justifies the penalty of
    dismissal, removal or reduction in rank. Once that conclusion is reached
    and the condition specified in the relevant clause of the second proviso is

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    satisfied, that proviso becomes applicable and the government servant is
    not entitled to an inquiry. The extent to which a government servant
    can be denied his right to an inquiry formed the subject-matter of
    considerable debate at the Bar and we, therefore, now turn to the
    question whether under the second proviso to Article 311(2) even
    though the inquiry is dispensed with, some opportunity at least
    should not be afforded to the government servant to that he is not
    left wholly without protection. As most of the arguments on this
    Part of the case were common to all the three clauses of the second
    proviso, it will be convenient at this stage to deal at one place with all
    the arguments on this part of the case, leaving aside to be separately
    dealt with the other arguments pertaining only to a particular clause of
    the second proviso.

    70. The position which emerges from the above discussion is
    that the key-words of the second proviso govern each and every
    clause of that proviso and leave no scope for any kind of
    opportunity to be given to a government servant. The phrase “this
    clause shall not apply” is mandatory and not directory. It is in the
    nature of a Constitutional prohibitory injunction restraining the
    disciplinary authority from holding an inquiry under Article 311(2) or
    from giving any kind of opportunity to the concerned government
    servant. There is thus no scope for introducing into the second
    proviso some kind of inquiry or opportunity by a process of
    inference or implication. The maxim “expressum facit cessare
    tacitum” (“when there is express mention of certain things, then
    anything not mentioned is excluded”) applies to the case. As pointed out
    by this Court in B. Shankara Rao Badam & Ors. v. State of Mysore &
    Anr.
    , [1969] 3 S.C.R. 1, 12, this well-known maxim is a principle of
    logic and common sense and not merely a technical rule of construction.
    The second proviso expressly mentions that clause (2) shall not apply
    where one of the clauses of that proviso becomes applicable. This express
    mention excludes everything that clause (2) contains and there can be no
    scope for once again introducing the opportunities provided by clause (2)
    or any one of them into the second proviso.
    In Atkinson v. United States
    of America Government, L.R. [1971] A.C. 197, Lord Reid said (at page

    232) :

    “It is now well recognised that the court has power to expand procedure
    laid down by statute if that is necessary to prevent infringement of

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    natural justice and is not plainly contrary to the intention of
    Parliament.”

    Here, however, the attempt is not merely to do something contrary to the
    intention of “Parliament”, that is, in our case, the Constituent
    Assembly, but to do something contrary to an express prohibition
    contained in the Constitution. The conclusion which flows from the
    express language of the second proviso is inevitable and there is
    no escape from it. It may appear harsh but, as mentioned earlier,
    the second proviso has been inserted in the Constitution as a
    matter of public policy and in public interest and for public good
    just as the pleasure doctrine and the safeguards for a government
    servant provided in clause (1) and (2) of Article 311 have been . It
    is in public interest and for public good that government servant who
    has been convicted of a grave and serious offence or one rendering him
    unfit to continue in office should be summarily dismissed or removed
    from service instead of being allowed to continue in it at public expense
    and to public detriment. It is equally in public interest and for public
    good that where his offence is such that he should not be permitted to
    continue to hold the same rank, that he should be reduced in rank.
    Equally, where a public servant by himself or in concert with others has
    brought about a situation in which it is not reasonably practicable to
    hold an inquiry and his conduct is such as to justify his dismissal,
    removal or reduction in rank, both public interest and public good
    demand that such penalty should forthwith and summarily be imposed
    upon him; and similarly, where in the interest of the security of the State
    it is not expedient to hold an inquiry, it is in the public interest and for
    public good that where one of the three punishments of dismissal,
    removal or reduction in rank is called for, it should be summarily
    imposed upon the concerned government servant. It was argued that in
    a case falling under clause (b) or (c), a government servant ought to be
    place under suspension until the situation improves or the danger to the
    security of the State has passed, as the case may be, and it becomes
    possible to hold an inquiry. This argument overlooks the fact that
    suspension involves the payment at least of subsistence allowance and
    such allowance is paid at public expense, and that neither public interest
    would be benefited nor public good served by placing such government
    servant under suspension because it may take a considerable time for the
    situation to improve or the danger to be over. Much as this may seem
    harsh and oppressive to a government servant, this Court must

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    not forget that the object underlying the second proviso is public
    policy, public interest and public good and the Court must,
    therefore, repel the temptation to be carried away by feelings of
    commiseration and sympathy for those government servants who
    have been dismissed, removed or reduced in rank by applying the
    second proviso. Sympathy and commiseration cannot be allowed to out
    weigh considerations of public policy, concern for public interest, regard
    for public good and the peremptory dictate of a Constitutional
    prohibition. The Court must bear in mind that the second proviso has
    been in the Constitution since it was originally enacted. It was not
    blindly or slavishly copied from section 240(3) of the Government of
    India Act, 1935. Article 311 was article 282-B of the draft Constitution
    of India and the draft Article 282-B was discussed and a considerable
    debate took place on it in the Constituent Assembly (see the Official
    Report of the Constituent Assembly Debates, vol.IX, page 1099 to
    1116). The greater part of this debate centred upon the proviso to clause
    (2) of the draft article 282-B, which is now the second proviso to Article

    311. Further, the Court should also bear in mind that clause (c) of the
    second proviso and clause (3) of Article 311 did not feature in section
    240
    of the Government of India Act, 1935, but were new provisions
    consciously introduced by the Constituent Assembly in Article 311.
    Those who formed the Constituent Assembly were not the advocates of a
    despotic or dictatorial form of government. They were the persons who
    enacted into our Constitution the Chapter on Fundamental Rights. The
    majority of them had fought for freedom and had suffered imprisonment
    in the cause of liberty and they, therefore, were not likely to introduce
    into our Constitution any provision from the earlier Government of
    India Acts which had been intended purely for the benefit of a foreign
    imperialistic power. After all, it is not as if a government applied to him.
    There are two remedies open to him, servant is without any remedy
    when the second proviso has been applied to him. There are two remedies
    open to him, namely, departmental appeal and judicial review. The scope
    and extent of these remedies will be considered later in the course of this
    judgment.

    101. Not only, therefore, can the principles of natural justice be
    modified but in exceptional cases they can even be excluded. There
    are well-defined exceptions to the nemo judex in causa sua rule as
    also to the audi alteram partem rule. The nemo judex in causa sua
    rule is subject to the doctrine of necessity and yields to it as pointed out

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    by this Court in J.Mohapatra & Co. and another v. State of Orissa and
    another
    [1985] 1 S.C.R. 322,334-5. So far as the audi alteram partem
    rule is concerned, both in England and in India, it is well established
    that where a right to a prior notice and an opportunity to be heard before
    an order is passed would obstruct the taking of prompt action, such a
    right can be excluded. This right can also be excluded where the nature
    of the action to be taken, its object and purpose and the scheme of the
    relevant statutory provisions warrant its exclusion; nor can the audi
    alteram partem rule be invoked if importing it would have the effect of
    paralysing the administrative process or where the need for promptitude
    or the urgency of taking action so demands, as pointed out in Maneka
    Gandhi’s case at page 681. If legislation and the necessities of a situation
    can exclude the principles of natural justice including the audi alteram
    partem rule, a fortiorari so can a provision or the Constitution, for a
    Constitutional provision has a far greater and all-pervading sanctity
    than a statutory provision. In the present case, clause (2) of Article 311
    is expressly excluded by the opening words of the second proviso and
    particularly its key-words this clause shall not apply. As pointed out
    above, clause (2) of Article 311 embodies in express words the audi
    alteram partem rule. This principle of natural justice having been
    expressly excluded by a Constitutional provision, namely, the
    second proviso to clause (2) of Article 311, there is no scope for
    reintroducing it by a side-door to provide once again the same
    inquiry which the Constitutional provision has expressly
    prohibited. Where a clause of the second proviso is applied on an
    extraneous ground or a ground having no relation to the situation
    envisaged in that clause, the action in so applying it would be mala fide,
    and, therefore, void. In such a case the invalidating factor may be
    referable to Article 14. This is, however, the only scope which Article 14
    can have in relation to the second proviso. but to hold that once the
    second proviso is properly applied and clause (2) of Article 311 excluded,
    Article 14 will step in to take the place of clause (2) would be to nullify
    the effect of the opening words of the second proviso and thus frustrate
    the intention of the makers of the Constitution. The second proviso is
    based on public policy and is in public interest and for public good and
    the Constitution – makers who inserted it in Article 311(2) were the best
    persons to decide whether such an exclusionary provision should be there
    and the situations in which this provision should apply.

    102. In this connection, it must be remembered that a government

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    servant is not wholly without any opportunity. Rules made under the
    proviso to Article 309 or under Acts referable to that Article generally
    provide for a right of appeal except in those cases where the order of
    dismissal, removal or reduction in rank is passed by the President or the
    Governor of a State because they being the highest Constitutional
    functionaries, there can be no higher authority to which an appeal can lie
    from an order passed by one of them. Thus, where the second proviso
    applies, though there is no prior opportunity to a government
    servant to defend himself against the charges made against him
    he has the opportunity to show in an appeal filed by him that the
    charges made against him are not true. This would be a sufficient
    compliance with the requirements of natural justice. In Maneka
    Gandhi’s case and in Liberty Oil Mills and others v. Union of India and
    others
    [1984] 3 S.C.C. 465 the right to make a representation after an
    action was taken was held to be a sufficient remedy, and an appeal is a
    much wider and more effective remedy than a right of making a
    representation.

    The Second Proviso – Clause (a)

    127. Not much remains to be said about clause (a) of the second
    proviso to Article 311(2). To recapitulate briefly, where a disciplinary
    authority comes to know that a government servant has been convicted
    on a criminal charge, it must consider whether his conduct which has led
    to his conviction was such as warrants the imposition of a penalty and, if
    so, what that penalty should be. For that purpose it will have to peruse
    the judgment of the criminal court and consider all the facts and
    circumstances of the case and the various factors set out in Challappan’s
    case. This, however, has to be done by it ex parte and by itself.
    Once the disciplinary authority reaches the conclusion that the
    government servant’s conduct was such as to require his dismissal or
    removal from service or reduction in rank he must decide which of these
    three penalties should be imposed on him. This too it has to do by
    itself and without hearing the concerned government servant by
    reason of the exclusionary effect of the second proviso. The
    disciplinary authority must, however, bear in mind that a conviction on
    a criminal charge does not automatically entail dismissal, removal or
    reduction in rank of the concerned government servant. Having decided
    which of these three penalties is required to be imposed, he has to pass
    the requisite order. A government servant who is aggrieved by the

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    penalty imposed can agitate in appeal, revision or review, as the case
    may be, that the penalty was too severe or excessive and not warranted
    by the facts and circumstances of the case. If it is his case that he is not
    the government servant who has been in fact convicted, he can also
    agitate this question in appeal, revision or review. If he fails in all the
    departmental remedies and still wants to pursue the matter, he can
    invoke the court’s power of judicial review subject to the court
    permitting it. If the court finds that he was not in fact the person
    convicted, it will strike down the impugned order and order him to be
    reinstated in service. Where the court finds that the penalty imposed by
    the impugned order is arbitrary or grossly excessive or out of all
    proportion to the offence committed or not warranted by the facts and
    circumstances of the case or the requirements of that particular
    government service the court will also strike down the impugned order.
    Thus, in Shankar Dass v. Union of India and another, [1985] 2 S.C.C.
    358, this Court set aside the impugned order of penalty on the ground
    that the penalty of dismissal from service imposed upon the appellant
    was whimsical and ordered his reinstatement in service with full back
    wages. It is, however, not necessary that the Court should always order
    reinstatement. The Court can instead substitute a penalty which in its
    opinion would be just and proper in the circumstances of the case.”

    (Emphasis supplied)

    [12.3] It is deduced from the aforementioned dictum that in a

    case where Government Servant has been convicted on a criminal

    charge, the Disciplinary Authority only requires to consider

    whether the conduct of delinquent leading to the conviction

    warrants the imposition of a penalty. For that purpose, it will have

    to pursue the judgment of the criminal Court concerned and

    consider the all facts and circumstances of the case. As held, this

    has to be done by the Disciplinary Authority ex parte and by itself.

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    Once the Disciplinary Authority reaches to the conclusion that

    government servant’s conduct was such as it requires his dismissal

    etc., same should be decided by him. It is clearly held that the

    aforesaid has to be done by the Disciplinary Authority without

    hearing the concerned government servant, due to reason of

    exclusionary effect of the second proviso to Article 311(2)(a) of the

    Constitution. Thus, in view of the aforesaid dictum, there cannot

    be any second view which can be taken at least by this Court,

    rather it requires to follow and apply the ratio laid down by the

    Hon’ble Apex Court in the case of Tulsiram Patel (supra) in

    appropriate case, such as present one.

    [12.4] At this stage, it would also be apposite to refer the

    decision of this Court in the case of H.N.Rao Vs. State of Gujarat

    & Ors. reported in 2000 (3) G.L.H. 358, wherein, in para 6 & 7, held

    as under: –

    “6. It is not disputed that the petitioner was not afforded an opportunity
    of hearing before making the impugned order. The question is whether
    the petitioner was required to be given such an opportunity. This Court
    [i.e., myself] in the matter of Rambadan R. Shukla & Anr., [Supra],
    having considered the judgment of the Hon’ble Supreme Court in the
    matter of Union of India v. Tulsi Ram Patel [AIR (1985) SC 1416] and
    Rule 10 (4) of the Gujarat Civil Service [Discipline & Appeal] Rules,
    1971 [as amended on 16th April, 1986] has taken the view that the

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    deliquent has no right to an opportunity of making representation or of
    hearing on the penalty proposed to be imposed. Hence, the order of
    penalty made without affording an opportunity to the deliquent
    to show cause against the proposed penalty or of hearing would
    not be vitiated on that count. The said decision has been
    confirmed by the Division Bench of this Court [Coram K.
    Shreedharan, CJ & A.R Dave, J.] on 4th May, 1998 in Letters
    Patent Appeal No. 5 of 1997. Mr. Supehia has also relied upon the
    judgment of the learned Single Judge [Coram : Mr. Justice NN Mathur]
    in the matter of Shankabhai Naginbhai Patel v. State of Gujarat [Special
    Civil Application No.
    2349 of 1998 decided on 23rd July, 1998]
    [Annexure-G to the petition].

    7. In the said judgment, in a similar set of facts, the learned Judge,
    relying upon the judgment of this Court in the matter of Kiritkumar D.
    Vyas v. State & Anr.
    , [23 (2) GLR 79] quashed and set-aside the order
    of removal from service of the deliquent petitioner and directed that, `it
    will be open for the respondents to pass a fresh order after giving
    opportunity of hearing to the petitioner.’
    As discussed by me in the
    matter of Rambadan [Supra], since the amendment of 16th April, 1986
    in Rule 10 (4) of the Gujarat Civil Service [Disicipline & Appeal] Rules,
    1971, no hearing is required to be afforded to the deliqent government
    servant who is punished pursuant to his conviction by a criminal court
    on a criminal charge. Neither the aforesaid judgment in the matter of
    Rambadan [Supra] nor the amended rule 10 (4) was brought to the
    notice of the learned Judge in the matter of Sankabhai [Supra].
    The
    Court had no occasion either to consider the judgment in the matter of
    Rambadan [Supra] nor the order made in appeal by the Division Bench,
    nor the amended Rule 10 (4) of the Discipline & Appeal Rules. The said
    judgment, therefore, is per incuriam and shall not be applicable.”

    (Emphasis supplied)

    [12.5] The aforesaid decision of a coordinate bench of this

    Court in the case of H.N.Rao (supra) has been confirmed by the

    Division Bench and it was passed following the judgment in the

    case of Tulsiram Patel (supra). It has been clearly held in

    aforementioned decision that the delinquent has no right of

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    hearing on the penalty proposed to be imposed and so, any such

    order passed without hearing would not be vitiated on that count.

    It appears that in the case of Budhsinh Jaisinh Patel (supra), the

    above referred provisions of the Act and Rules discussed above

    either not brought to the notice or in absentia, only placing reliance

    upon decision of the Hon’ble Apex Court in the case of Sunil

    Kumar Sarkar (supra) and unnoticing the ratio of Constitution

    Bench decision in the case of Tulsiram Patel (supra), held that

    ratio of decision of this Court in the case of H.N.Rao (supra), no

    more stand to be good law. With profound respect, and in view of

    the aforesaid, I am unable to subscribe to the view taken in case of

    Budhsinh Jaisinh Patel (supra). In my view, the decision of this

    Court in the case of H.N. Rao (supra) continues to hold the field

    and is, in fact, good law; rather, decision of a coordinate bench in

    the case of Budhsinh Jaisinh Patel (supra), and other decisions

    followed such decision, run contrary to decision of the

    Constitution Bench in the case of Tulsiram Patel (supra), are no

    longer remain good law.

    [13] In light of the foregoing discussions and the ratio laid down

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    by the Hon’ble Apex Court in Tulsiram Patel (supra), and in

    absence of any specific statutory provision such as the Rule 19 of

    the Rules, 1957, granting any opportunity of making

    representation or otherwise, there is no legal requirement to issue

    a show cause notice to State Government servant such as

    petitioner prior to passing an order of punishment, provided the

    case is governed by second proviso to Article 311 (2) (a) of the

    Constitution. Nonetheless, before passing such order, in view of

    the said provisions and as discussed above, the Disciplinary

    Authority must reach to the conclusion that conduct of

    government servant – delinquent has led to his conviction on a

    criminal charge. Thus, the authority concerned, while passing the

    order of punishment, must observe that satisfaction in the order

    and it cannot pass a mechanical order merely because government

    servant is found convicted.

    [14] Although in the case on hand, no argument was canvassed

    by Mr. Majmudar learned advocate for the petitioner, that

    impugned order was passed in a mechanical manner unnoticing

    the requirement of law. Nevertheless, I have minutely gone

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    through the impugned order to verify as to whether respondent

    No.4 undertook the exercise as directed in Tulsiram Patel (supra).

    The petitioner was a police personnel found convicted as per the

    provisions of the Act, 1988 and upon going through the order

    impugned in this petition, I am of the view that respondent No.4 –

    Disciplinary Authority has taken into account the relevant aspect

    which requires to be verified. It has been clearly recorded in the

    impugned order that petitioner was tried for ACB case under the

    Act, 1988 and having found convicted by the Special (ACB) Court

    and considering such serious conduct of the petitioner for which

    he is convicted, then observed that it would not be desirable to

    continue him in service, thus, it has passed impugned order of

    dismissal. According to my view, no error can be found in the

    order impugned in any respect.

    [15] Before parting with the judgement, it would be apposite to

    refer to the pertinent observations of the Hon’ble Apex Court in

    the case of K.C. Sareen (supra) wherein observed and held thus: –

    “12. Corruption by public servants has now reached a monstrous
    dimension in India. Its tentacles have started grappling even the
    institutions created for the protection of the republic. Unless those

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    tentacles are intercepted and impeded from gripping the normal and
    orderly functioning of the public offices, through strong legislative,
    executive as well as judicial exercises the corrupt public servants could
    even paralyse the functioning of such institutions and thereby hinder the
    democratic polity. Proliferation of corrupt public servants could garner
    momentum to cripple the social order if such men are allowed to continue
    to manage and operate public institutions. When a public servant was
    found guilty of corruption after a judicial adjudicatory process conducted
    by a court of law, judiciousness demands that he should be treated as
    corrupt until he is exonerated by a superior court. The mere fact that an
    appellate or revisional forum has decided to entertain his challenge and to
    go into the issues and findings made against such public servants once
    again should not even temporarily absolve him from such findings. If such
    a public servant becomes entitled to hold public office and to continue to do
    official acts until he is judicially absolved from such findings by reason of
    suspension of the order of conviction it is public interest which suffers and
    sometimes even irreparably. When a public servant who is convicted
    of corruption is allowed to continue to hold public office it would
    impair the morale of the other persons manning such office, and
    consequently that would erode the already shrunk confidence of the
    people in such public institutions besides demoralising the other
    honest public servants who would either be the colleagues or
    subordinates of the convicted person. If honest public servants are
    compelled to take orders from proclaimed corrupt officers on account of the
    suspension of the conviction the fall out would be one of shaking the
    system itself. Hence it is necessary that the court should not aid the
    public servant who stands convicted for corruption charges to hold
    only public office until he is exonerated after conducting a judicial
    adjudication at the appellate or revisional level. It is a different
    matter if a corrupt public officer could continue to hold such public office
    even without the help of a court order suspending the conviction.

    13. The above policy can be acknowledged as necessary for the efficacy and
    proper functioning of public offices. If so, the legal position can be laid
    down that when conviction is on a corruption charge against a public
    servant the appellate court or the revisional court should not suspend the
    order of conviction during the pendency of the appeal even if the sentence
    of imprisonment is suspended. It would be a sublime public policy that the
    convicted public servant is kept under disability of the conviction in spite
    of keeping the sentence of imprisonment in abeyance till the disposal of the
    appeal or revision.”

    (Emphasis supplied)

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    CONCLUSION

    [16] In view of the foregoing observations and reasons, and

    having analyzed the applicable statutory provisions in the present

    case alongside the ratio laid down by the Constitution Bench of the

    Hon’ble Apex Court in Tulsiram Patel (supra), I am of the view

    that there is no legal requirement to issue a show cause notice to

    the petitioner prior to passing of the impugned order of

    punishment by respondent No.4.

    [16.1] Since the conduct of the petitioner lead to his conviction

    under the Act, 1988, in the aforesaid ACB case, the impugned

    order dismissing him from service suffers from no error of law.

    [17] In view of the foregoing conclusions, I do not find any merit

    in the petition, which is liable to be dismissed. Accordingly, it is

    hereby dismissed. Rule is discharged. No order as to costs.

    Sd/-

    (MAULIK J.SHELAT,J.)
    Lalji Desai

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