SOMAJI VIRAJI v. REGISTRAR,high COURT OF GUJARAT — 1979 DIGILAW 248 (GUJ)

M. P. THAKKAR, J. ( 1 ) AMIDST the debris of crumbling values the Judicial institution has remained steadfast and has been able to hold its head erect because it speaks the same language regardless of the identity or the personality of the authority Whose order is impugned. It speaks the same language even when its own order on the administrative side is questioned. ( 2 ) AN illiterate peon employed on the staff of the High Court of Gujarat at Ahmedabad was dismissed from service as per the impugned order at Annexure A dated April 24 1979 on the ground that illicit liquor was found from his residential premises when the same were raided by the police authorities on October 21 1977 which according to the competent authority constituted misconduct on his part. An appeal was preferred to the learned Chief Justice on the administrative side. The learned Chief Justice by his impugned order at Annexure B dated August 7 1979 confirmed the order of dismissal passed by the learned Registrar and dismissed the appeal. Thereupon the peon concerned who is said to have put in about 13 years of service has invoked the Jurisdiction of this Court under article 226 of the Constitution of Indiathe impugned order is challenged on the following grounds : (1) The finding of guilt recorded against the petitioner is vitiated being based on no evidence inasmuch as no evidence whatsoever was adduced at the enquiry to show that what was supposed to have been seized from the house of the petitioner was prohibited liquor (the Criminal Court had acquitted the petitioner of the said charge) (2) The disciplinary authority has misconstrued the report at Annexure C made by the petitioner at the time of reporting for duty on October 24 1977 (3 days after the raid was carried out on his premises) and has read into the report a non existent confessional statement. (3) The disciplinary authority has acted on the alleged confessional statement notwithstanding the fact that there is no evidence whatsoever to show that the aforesaid statement was made by the petitioner. (4) The disciplinary authority has recorded a finding of guilt notwithstanding the fact that there is not the slightest evidence to show that the petitioner was in conscious possession of any incriminating article. (4) The disciplinary authority has recorded a finding of guilt notwithstanding the fact that there is not the slightest evidence to show that the petitioner was in conscious possession of any incriminating article. (5) The disciplinary authority has seriously erred in proceeding on the assumption that possession of illicit liquor for the purposes of personal consumption assuming that it is proved constitutes misconduct being an offence involving moral turpitude. ( 3 ) THE facts must be outlined at the outset. The premises occupied by the petitioner were raided by Police Officers on October 21 1977 at about 7-00 p m. A vessel containing liquid which was alleged to be prohibited liquor was attached under a panchnama. The petitioner was prosecuted for an offence under sec. 66 (1) (b) in connection with the aforesaid seizure. He was tried by the learned Chief Metropolitan Magistrate in Summary Case No. 379/78. By his judgment and order dated June 21 1978 the learned Chief Metropolitan Magistrate acquitted the petitioner. The matter might well have rested there in view of the fact that a competent Court had recorded a judicial finding to the effect that the prosecution had failed to establish its case beyond reasonable doubt. The Registrar of the Gujarat High Court however appears to have considered it expedient to take up the matter at the administrative level by way of a disciplinary proceeding. On September 19/21 1978 the petitioner was served with a charge sheet. A charge of misconduct was leveled against him on the ground that prohibited liquor had been seized from his premises during the course of the raid carried out by the Police Officers on October 21 1977 and that the petitioner had admitted that prohibited liquor had been so seized from his premises in the course of the joining report (Annexure C) dated October 24 1977 The petitioner in response to the show cause notice denied that prohibited liquor had been seized from his premises. According to him the police department had concocted a false case and had falsely implicated him as it had an animus against him. He denied that he had made any such admission in the joining report. He was an illiterate person who did not know how to write. According to him the police department had concocted a false case and had falsely implicated him as it had an animus against him. He denied that he had made any such admission in the joining report. He was an illiterate person who did not know how to write. He had appended his signature on a piece of paper on which a writing was already made by Shri P. G. Shah an officer of the Court. In the wake of this explanation a departmental enquiry was conducted by the disciplinary authority. On behalf of the presenting officer only two witnesses were examined namely (1) P. S. I. Gohel who stated that he had carried out a raid and seized certain articles from the premises of the petitioner on October 21 1977 and (2) Vasantbhai Shankerbhai Shankhwar a Court official who produced the joining report submitted by the petitioner on 24-10-77. No other witness was examined. It is the case of the disciplinary authority that the text of the joining report was in the handwriting of one Shamji Naran. However the said Shamji Naran was not examined as a witness. Nor was any witness examined on behalf of the presenting officer to establish that what was seized from the petitioners premises was prohibited liquor. The presenting officer rested his case on the aforesaid material. On behalf of the petitioner two witnesses were examined as defence witnesses namely (1) Shamji Naran who had prepared the joining report in his band and (2) P. G. Shah who stated that as the petitioner aid not know how to write he had asked Shamji to prepare the joining report. He however did not support the petitioner on the point that the joining report had been dictated by him (P. G Shah) to Shamji. This was all the evidence that was adduced at the departmental enquiry. ( 4 ) THE first submissions urged on behalf of the petitioner is that not an iota of evidence had been adduced at the departmental enquiry to show that What was alleged to have been seized from his premises was an intoxicant or prohibited liquor. This could have been established by producing and proving the report of a Chemical Analyser. Neither the report has been produced nor the Chemical Analyser has been examined as a witness. This could have been established by producing and proving the report of a Chemical Analyser. Neither the report has been produced nor the Chemical Analyser has been examined as a witness. Under the circumstances it is a case of no evidence inasmuch as there was no material whatsoever before the disciplinary authority to establish that what was seized from the premises of the petitioner was prohibited liquor. P. S. I. Gohel who was examined as a witness could only depose to the fact that a vessel containing liquid was seized from the premises occupied by the petitioner. He cannot and has not stated that what was seized was prohibited liquor. In fact he is not even competent to depose about it because whether or not the liquid seized from the premises occupied by the petitioner would fall within the definition of intoxicant depended on the report of the Chemical Analyse as regards the alcoholic content if any. it was a matter on which only an expert could have given evidence. This being a departmental proceeding even the report of the Chemical Analyser could not have been acted upon unless the contents were proved by examining the Chemical Analyser for the relevant provision of the Criminal Procedure Code (sec. 293) cannot govern the proceedings at a departmental enquiry. Learned counsel for the respondent is not able to show that there was any evidence before the disciplinary authority to establish that what was seized was prohibited liquor. It must be recalled that the petitioner was acquitted by the learned Chief Metropolitan Magistrate. In order to record a finding of guilt against the petitioner in respect of the charge of conscious possession of prohibited liquor it must be shown that what was seized from his premises was prohibited liquor and that he was in conscious possession thereof. No evidence has been adduced and there was no material before the disciplinary authority on the basis of which it could be held that what was seized was prohibited liquor. The disciplinary authority it appears was not aware of this aspect at all. Reliance was placed solely on the so called admission made by the petitioner in his joining report dated October 24 1977 For the sake of preciseness the said report deserves to be quoted verbatim in extenso : now admittedly the petitioner is an illiterate person. Admittedly he does not know how to write. Reliance was placed solely on the so called admission made by the petitioner in his joining report dated October 24 1977 For the sake of preciseness the said report deserves to be quoted verbatim in extenso : now admittedly the petitioner is an illiterate person. Admittedly he does not know how to write. He can only make his signature. Admittedly the text of Annexure C is not written by him. It is not in dispute that the text is in the handwriting of Shamji. The question then is can the contents be attributed to the petitioner merely because it bears his signature ? In order to treat the statement contained in Annexure C as an admission made by the petitioner it must be shown that the said statement was in fact made by him. Since the text is in the handwriting of Shamji of necessity it must depend on the circumstance whether Shamji had prepared the text word by word at the dictation of the petitioner. It would have been a different matter if the petitioner was a literate person and he could be attributed with the knowledge of the contents of the text. The presenting officer has not examined Shamji at all. Therefore there is no evidence to show that the statement contained in Annexure C which is treated as an admission is made by the petitioner. In fact Shamji has been examined as a defence witness and he has supported the petitioner by saying that the text of Annexure C was written by him as per the dictation of Shri P. G. Shah. In the first place there is no evidence to show that the alleged admission could be attributed to the petitioner. On the other hand there is positive evidence to show that the text of Annexure C was not written as per the dictation of the petitioner. Thus there is no evidence whatsoever on record to show that the alleged admission was made by the petitioner. Again it is a case of no evidence. It has in the alternative been argued that the alleged statement cannot be treated as an admission at all. Thus there is no evidence whatsoever on record to show that the alleged admission was made by the petitioner. Again it is a case of no evidence. It has in the alternative been argued that the alleged statement cannot be treated as an admission at all. In the joining report the petitioner was concerned with tracing the history of the events commencing from the date on which the raid was carried out i. e. from October 21 1977 till the date on which he reported for duty i. e. October 24 1977 He was mentioning the facts for historical purposes to explain why he was absent from duty for three days. And in this context a statement has been made to the effect that a raid was carried out at his premises by the police. The alleged admission is contained in the following statement : it must be remember that the text of Annexure C is in the handwriting of Samji who himself is a Class TV employee and is working as a Peon in the High Court. Surely one cannot expect him to be meticulous and precise in the drafting of the report which was being made for the limited purpose of explaining the delay in reporting for duty. It would be futile to expect him to use the expression in connection with the alleged find of alleged prohibited liquor. What has been stated by him is that the raid was carried out in connection with an offence under the Prohibition Act. It cannot be treated as an admission of the fact that what was seized from his premises was prohibited liquor. Whether or not the liquid which was seized from his possession was prohibited liquor could be established only by adducing evidence of a Chemical Analyser who could depose to the alcoholic content if any thereof. Thus the finding of guilt recorded by the disciplinary authority is not buttressed by any material whatsoever and the finding is vitiated by reason of the fact that it is based of no evidence. ( 5 ) IT was lastly argued that even assuming that prohibited liquor was found from the possession of the petitioner it cannot be said to be an offence involving moral turpitude so as to constitute misconduct. On behalf of the learned Registrar reliance has been placed on a Circular issued by the then Govt. ( 5 ) IT was lastly argued that even assuming that prohibited liquor was found from the possession of the petitioner it cannot be said to be an offence involving moral turpitude so as to constitute misconduct. On behalf of the learned Registrar reliance has been placed on a Circular issued by the then Govt. of Bombay on July 23 1954 which is Annexure V to the affidavit in reply. The Circular is in the following terms :government Service retention in of persons who are convicted by courts of law. GOVERNMENT OF BOMBAY POLITICAL AND SERVICES DEPARTMENT circular NO. CIR - 1154 BOMBAY CASTLE. 23rd July 1954 CIRCULAR OF GOVERNMENTCASES occur in which Government Servants are convicted by Courts of law of offences under the Prohibition Act or the Gambling Act or are found guilty of charges under those acts in Departmental enquiries held against them. Government is pleased to direct that these offences should be treated as involving moral turpitude and accordingly persons found guilty either by Courts of Law or in departmental enquiries may be dismissed from service. By order and in the name of the Governor of Bombay m. D. BHANSALI chief Secretary to the Government of Bombay Political and Services Department. IT is rightly argued by the learned counsel for the petitioner that the disciplinary authority is discharging a quasi judicial function and it is not open to disciplinary authority to act at the dictates of the State Government in regard to issues which are required to be determined by him. It is for him to determine on his own whether or not an offence under the Prohibition Act involves moral turpitude. Whether or not the offence involves moral turpitude does not depend on what the State Government believes. This vital function to form independent judgment cannot be abdicated by the disciplinary authority. On this ground also the impugned order is rendered vulnerable. All the same I do not propose to rest my decision on this ground. So also I do not propose to examine the nuances of the argument that consumption of alcohol or possession of alcohol for the purpose of consumption does not constitute moral turpitude since the petitioner is entitled to succeed on the other ground. ( 6 ) IN the result the petitioner must succeed. The impugned order at Annexure A as confirmed by Annexure B must be quashed and set aside. ( 6 ) IN the result the petitioner must succeed. The impugned order at Annexure A as confirmed by Annexure B must be quashed and set aside. It is declared that the petitioner continues in service. The respondent is directed to treat the impugned order as a nullity and nonexistent in the eye of law and to permit the petitioner to report for duty. The respondent shall also pay the arrears of salary due to the petitioner on or before January 15 1980 Rule is made absolute with costs. Petition allowed. .