Case Note & Summary
The petitioner, Satish L. Gawte, was dismissed from service by order dated 7 October 1998 under Article 311(2) second proviso (b) of the Constitution of India, following his conviction by the Sessions Judge on 20 August 1999. He challenged the dismissal order before the Maharashtra Administrative Tribunal (MAT) in O.A. Nos. 192 of 1999 and 242 of 1999, which were dismissed on 30 July 1999. Subsequently, his conviction was set aside by the Bombay High Court in Criminal Appeal No. 406 of 1999 on 27 October 2004. Based on this acquittal, the petitioner made a representation on 1 October 2005 seeking recall of the dismissal order and reinstatement, which was rejected on 31 January 2006. He then filed O.A. No. 905 of 2006 before the MAT, which was dismissed on 18 October 2006. He also filed Writ Petition No. 849 of 2006 challenging the MAT's order of 18 October 2006, which was dismissed on 16 March 2006. The present Writ Petition No. 2493 of 2006 was filed to challenge the MAT's order dated 30 July 1999 upholding the dismissal order. The High Court, by order dated 13 November 2006, observed that the challenge to the dismissal order dated 7 October 1998 had become stale as it had attained finality. The petitioner's counsel then sought leave to withdraw the petition and file a review petition in Writ Petition No. 849 of 2006, which was granted. The court dismissed the present petition as the challenge to the dismissal order was no longer maintainable.
Headnote
A) Service Law - Dismissal under Article 311(2) second proviso (b) - Subsequent Acquittal - Dismissal order based on conviction under Article 311(2) second proviso (b) of the Constitution of India - Petitioner dismissed on 7 October 1998 after conviction; conviction set aside on 27 October 2004; representation for reinstatement rejected on 31 January 2006; challenge to dismissal order had already been rejected by MAT and High Court and attained finality - Held that the dismissal order having attained finality, the subsequent acquittal does not entitle the petitioner to challenge the dismissal order afresh, and the petition challenging the same is dismissed as stale (Paras 1-4).
Issue of Consideration
Whether the petitioner, who was dismissed from service under Article 311(2) second proviso (b) of the Constitution of India following his conviction, is entitled to reinstatement after his subsequent acquittal by the appellate court, and whether the challenge to the dismissal order can be revived after it has attained finality.
Final Decision
The petition is dismissed as the challenge to the dismissal order dated 7 October 1998 has become stale and the order has attained finality.
Law Points
- Dismissal under Article 311(2) second proviso (b) is based on conviction
- not on conduct
- subsequent acquittal does not automatically revive the right to challenge the dismissal order if it has attained finality
- the principle of 'actus curiae neminem gravabit' does not apply to revive stale challenges
- the remedy lies in seeking review of the dismissal order based on acquittal
- but if the dismissal order has been upheld and become final
- it cannot be reopened.
Case Details
2018 LawText (BOM) (03) 86
Writ Petition No. 2493 of 2006
Smt. V. K. Tahilramani, Acting C.J., M. S. Sonak, J.
Mr. Jaydeep S. Deo for the Petitioner, Mr. N.C. Walimbe, AGP for Respondent No.1 and 2/State
The State of Maharashtra and anr.
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Nature of Litigation
Writ petition challenging the order of Maharashtra Administrative Tribunal upholding dismissal from service under Article 311(2) second proviso (b) of the Constitution of India.
Remedy Sought
Petitioner sought recall of dismissal order dated 7 October 1998 and reinstatement in service.
Filing Reason
Petitioner was dismissed from service following conviction; after acquittal, his representation for reinstatement was rejected.
Previous Decisions
MAT dismissed O.A. Nos. 192/1999 & 242/1999 on 30 July 1999 upholding dismissal; High Court dismissed Writ Petition No. 849/2006 on 16 March 2006; MAT dismissed O.A. No. 905/2006 on 18 October 2006.
Issues
Whether the dismissal order under Article 311(2) second proviso (b) can be challenged after it has attained finality, based on subsequent acquittal.
Submissions/Arguments
Petitioner argued that since his conviction was set aside, the basis for dismissal no longer exists and he should be reinstated.
Respondents argued that the dismissal order had attained finality and the challenge was stale.
Ratio Decidendi
A dismissal order under Article 311(2) second proviso (b) based on conviction, once it has attained finality, cannot be reopened merely because the conviction is subsequently set aside. The remedy lies in seeking review of the dismissal order based on acquittal, but if the dismissal order has been upheld and become final, it cannot be challenged afresh.
Judgment Excerpts
The challenge which now survives in this petition is to the judgment and order dated 30th July 1999 made by the Maharashtra Administrative Tribunal (MAT), Mumbai in O.A. Nos.192 of 1999 & 242 of 1999 instituted by the petitioner upholding the order dated 7th October 1998, dismissing the petitioner from the services under sub-clause (b) of the second proviso to Article 311 (2) of the Constitution of India.
This court, by order dated 13th November 2006 took cognizance of the aforesaid and observed that the dismissal order dated 7th October 1998 has attained finality and the challenge to the same in the present petition is rendered stale.
Procedural History
Petitioner dismissed on 7 October 1998 under Article 311(2) second proviso (b) following conviction. He challenged the dismissal before MAT in O.A. Nos. 192/1999 & 242/1999, which were dismissed on 30 July 1999. His conviction was set aside on 27 October 2004. He made a representation on 1 October 2005 for reinstatement, rejected on 31 January 2006. He filed O.A. No. 905/2006, dismissed on 18 October 2006. He filed Writ Petition No. 849/2006, dismissed on 16 March 2006. He then filed the present Writ Petition No. 2493/2006 challenging the MAT order of 30 July 1999. On 13 November 2006, the High Court observed the challenge was stale. Petitioner sought leave to withdraw and file review in WP 849/2006, which was granted. The present petition was dismissed.
Acts & Sections
- Constitution of India: Article 311(2) second proviso (b)
