V. G. CHAMPANERI v. STATE — 1994 DIGILAW 288 (GUJ)

B. J. SHETHNA, J. ( 1 ) THE petitioner who was initially appointed as Oversear was subsequently promoted as Deputy Engineer and in 1973 he was further promoted to the post of Executive Engineer. He was completing the age of 55 on 1st August 1979 Looking to his performance in service as Executive Engineer he was continued till the age of 58 and he would have otherwise retired on 31st August 1982 On 4th April 1979 a chargesheet (Annex A) was issued against the petitioner for four charges. A reply dated 21-7-79 (Annex B) was filed by the petitioner. A regular departmental inquiry was held and the inquiry officer submitted his report (Annex C) on 31-3-81. Out of the four charges only the first charge was found to have been proved against the petitioner for having found excess income of Rs. 19000 and 40 Tolas of gold. Rest of the charges were not found to be proved. ( 2 ) ON 7-3-81 a notice (Annex D) was issued against the petitioner calling upon him to show cause why he should not be dismissed from the services as charge No. 1 was found to proved against him. A brief reply dated 31-1-81 (Annex E) was submitted by the petitioner pointing out that there is an error apparent in calculation of the amount and on 6-4-81 a detailed reply (Annex F) was filed. On receiving the reply dated 6 the petitioner was again asked by letter dated 3-11-81 (Annex G) to produce full proof evidence regarding 40 Tolas of gold which was replied to by the petitioner on 16-11-81 (Annex H ). It is interesting to note that thereafter by an order dated 28-12-81 (Annex I) the petitioner was allowed to cross Efficiency Bar. The petitioner was to retire from service on reaching the age of 58 years i. e. on 31-8-82 but as he was more experienced and more competent a unanimous resolution (Annex J) was passed by the Executive Committee of the Panchmahals District Panchayat on 11 to extend the services of the petitioner for a further period of two years and to recommend the same to the Government. On 28-7-82 the District Development Officer recommended (Annex K) to the petitioner. However by an order dated 29 (Annex L) instead of dismissing the petitioner from the services he was removed from the services. On 28-7-82 the District Development Officer recommended (Annex K) to the petitioner. However by an order dated 29 (Annex L) instead of dismissing the petitioner from the services he was removed from the services. ( 3 ) AGGRIEVED by that order the petitioner has filed this petition. At the time of admission Mr. Shah learned counsel for the petitioner has confined his challenge to the quantum of punishment only. Thereupon this Court issued notice and made it returnable on 16-8-82. On 16 the learned counsel for the respondents made a statement before this court that if the petitioner makes an application for pension to the Government such an application will he considered and disposed of within eight weeks from the receipt thereof. On that statement being made Mr. H. B. Shah learned counsel for the petitioner withdrew that petition. However it seems that it was not possible for the Government to consider the grant of pension in lieu of the order of removal passed against the petitioner. Therefore this petition was restored by an order passed in M. C. A. No. 1634/83 dated 5-5-83. ( 4 ) THEREAFTER on 22-1-86 this court issued Rule and notice regarding interim relief was made returnable on 20-2-86 and it was ordered to be heard expeditiously preferably on 20th February 1986 Thereafter the interim relief was refused on 6 86 The matter is placed for final hearing before this Court and it is heard at great length. It may be stated that Mr. Shah for the petitioner has not challenged the impugned order of removal on merits but he has restricted his challenge to the punishment part of the order. He submitted that the penalty of removal from service is highly disproportionate taking into consideration the charge which is found to be proved against him. He submitted that the authority while imposing the extreme penalty of removal from service has not taken into consideration the long standing services of nearly 35 years of the petitioner. In 35 years of his service the petitioner has not been punished even once; neither a major nor even a minor punishment was imposed. He submitted that the authority while imposing the extreme penalty of removal from service has not taken into consideration the long standing services of nearly 35 years of the petitioner. In 35 years of his service the petitioner has not been punished even once; neither a major nor even a minor punishment was imposed. In fact on the eve of his retirement the District Panchayat as well as the DDO both have recommended that the extension of service of the petitioner for a further period of two years on completing the age of 58 years because he was most experienced and efficient person. Not only that during the pendency of the departmental proceedings he was allowed to cross Efficiency Bar. In support of his above submission Mr. Shah has relied upon the judgments of the Supreme Court as well as this Court in (1) Kartar Singh Gerwal vs. State of Punjab AIR 1991 SC 1067 ; (2) C. M. C. Hospital Employees Union vs. C. M. C. Vellore Association 1988 1 LL. J. 263; (3) Kalusinh Gamalsinh vs. Dy. Secretary Home Deptt. (1993) 34 (2) GLR 1278 and (4) D. T. Makawana vs. State of Gujarat (1992) 33 (1) GLR 194. Relying upon these judgments Mr. Shah submitted that the penalty of removal may be modified and the penalty of compulsory retirement may be imposed so that the petitioner can atleast be benefited in pension and that too according to him 1 only. ( 5 ) AS against that Mr. Rathod learned AGP appearing for the respondents vehemently submitted that the penalty imposed by way of order of removal on the petitioner for proved misconduct is the only proportionate penalty which could be imposed by the authority and it is imposed. He submitted that in fact initially the authority not only took the decision to dismiss him from service looking to the gravity of the misconduct proved against him but also served him with the show cause notice calling upon him to show cause why he should not be dismissed from the service. However after considering the long service of 35 years of the petitioner and other relevant circumstances the authority decided not to impose the severest punishment of dismissal and instead imposed a little lighter punishment of removal which is just commensurate with the misconduct committed by the petitioner. However after considering the long service of 35 years of the petitioner and other relevant circumstances the authority decided not to impose the severest punishment of dismissal and instead imposed a little lighter punishment of removal which is just commensurate with the misconduct committed by the petitioner. Therefore this court should not interfere with the order of penalty imposed by the authority and should not reduce it and substitute by an order of compulsory retirement relying upon the recent judgment of the Supreme Court in State Bank of India and Ors. vs. Samarendra Kishore Endew and another JT 1994 (1) SC 217 he submitted that even if this Court comes to the conclusion that the punishment of removal imposed upon the petitioner is harsh even then this Court should not interfere and the proper course for this Court would be to send the matter either to the disciplinary authority or the appellate authority to impose appropriate punishment. ( 6 ) THERE were in all 4 charges levelled against the petitioner as per the chargesheet dated 4 In the inquiry the Inquiry Officer has come to the conclusion that out of four charges only one charge i. e. charge No. 1 about his having assets disproportionate to his known source of income running into thousands of rupees and 40 Tolas of gold reflected adversely on his conduct of unbecoming of a Government officer. This he has committed breach of rule 3 (1) (i) of the Gujarat Civil Services Conduct Rules 1971 As stated earlier a decision was taken on 2-6-82 by the Government at the highest level to dismiss the petitioner from service and the matter was referred to the GPSC for its concurrence which was accorded on 25-6-82. But it appears from the papers of the file which is placed for the Courts perusal that on the representation made by him against the severest punishment of dismissal his case was considered qua the punishment only and taking into consideration the long standing service of 35 years of the petitioner the Government decided to impose the punishment of removal instead of dismissal. Therefore again it was placed before the GPSC and it again concurred with that and accordingly the order of removal was passed against the petitioner. Mr. Therefore again it was placed before the GPSC and it again concurred with that and accordingly the order of removal was passed against the petitioner. Mr. Rathod learned AGP has also pointed out it is not the case of the petitioner that his service was unblemished and that he was removed at the feg-end of his long standing service of 35 years only because of this one charge. He pointed out from the file that in fact three other inquiries were pending against the petitioner including the one containing serious charges of corruption and all these inquiries had been dropped only because the petitioner was removed from the service in connection with the charges proved in the present case. ( 7 ) IN view of the above the judgments cited by Mr. Shah are required to be considered. The first judgment cited by Mr. Shah is of the learned Single Judge of this Court in Kalusinh Gamalsinhs case (supra ). That was a case of a retired constable who was deprived of the amount of Rs. 75 per month from pension for a period of five years. For what charge he was punished is not to be found in the judgment. The learned Single Judge however considering the facts of that case modified the punishment of deduction at the rate of Rs. 75 per month and reduced it to Rs. 45 per month for a period of five years. It may be stated that in that judgment itself the learned Judge has observed :. . . . . . Therefore in the facts and circumstances of this case without laying any precedent I quash and set aside the impugned order of penalty. . . . . . . . . . . Thus this judgment will not help the petitioner in any manner. ( 8 ) NEXT judgment cited by Mr. Shah is also a judgment of the learned Single Judge of this Court in D. T. Makawana vs. State of Gujarat (1992) 33 (1) GLR 194. The petitioner of that case was working as a Mamlatdar and he was chargesheeted on 5 on an allegation that the petitioner and one Nayak Deputy Mamlatdar Pardi were guilty of committing gross irregularities in disposal of 15 cases under the Record of Rights Rules and thereby showing carelessness and bias in the performance of their duties. The petitioner of that case was working as a Mamlatdar and he was chargesheeted on 5 on an allegation that the petitioner and one Nayak Deputy Mamlatdar Pardi were guilty of committing gross irregularities in disposal of 15 cases under the Record of Rights Rules and thereby showing carelessness and bias in the performance of their duties. The charges levelled against that petitioner were partly found to be proved and therefore a penalty of withholding of three increments with future effect was imposed on the petitioner. Considering the facts of that case this Court modified the punishment of stoppage of three increments as imposed by the disciplinary authority to the stoppage of three increments without future effect. In that case also the charge was not of a serious nature and considering the peculiar facts and circumstances of that case this Court interferred with the order of penalty and modified the same as stated above. In my opinion this judgment also cannot take the case of the present petitioner any further as the facts of this case are totally different from the said case and the charge is of very serious nature. ( 9 ) MR. Shah then relied upon the judgment of the Supreme Court in Ranjit Thakur vs. Union of India and Ors. (1988) 1 LLJ 256 . That was a case of an Army Officer. He was chargesheeted for disobeying the lawful command given to him in that the member did not eat his food when so ordered. Summary Court-Martial sentenced him to R. I. for one year. Thereafter he was dismissed from the service. On the point of quantum of sentence the Supreme Court held that :-"the question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But sentence should suit the offence and the offender. It should not be vindictive or unduly harsh or so disproportionate to the offence as to shock the conscience evidencing bias. Doctrine of proportionality ensures that an aspect within the province of Court-Martial viz. punishment can be judicially reviewed and corrected if such punishment is an outrageous defiance of logic. Irrationality and perversity are recognised grounds of judicial review. (emphasis supplied) the Supreme Court found that : "to say that mere refusal to eat food is an innocent neutral act might be an over simplification of the matter. punishment can be judicially reviewed and corrected if such punishment is an outrageous defiance of logic. Irrationality and perversity are recognised grounds of judicial review. (emphasis supplied) the Supreme Court found that : "to say that mere refusal to eat food is an innocent neutral act might be an over simplification of the matter. Mere inaction need not necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to and even defiance of authority. "therefore on the facts of that case the Supreme Court held that the punishment is so shockingly disproportionate as to call for and justify interference and therefore the petitioner in that case was directed to be reinstated with all monetary and service benefits. I fail to understand as to how this judgment of the Supreme Court can be of any help to the petitioner. The charge in that case was such where any Court would have interferred with the order of punishment and the charge which is found to be proved against the petitioner in this case is a serious charge for which the order of removal is just and proper. ( 10 ) THE last judgment of the Supreme Court cited by Mr. Shah on the quantum of punishment is in the case of Kartar Singh Gerwal (supra ). In that case the petitioner who was working as Chief Medical Officer was dismissed from service after inquiry. What was the charge against him is not stated in the judgment. In that case he filed a suit before the Civil court which was decreed in his favour and the appellate court confirmed it. But in the second appeal the High Court set aside the order passed by the Courts below and dismissed his suit against which he preferred an appeal before the Supreme Court. During the pendency of that appeal the appellant died. On behalf of the appellant it was submitted before the Supreme Court that the High Court committed an error in disturbing the order passed by the Courts below and dismissed the suit. It was also argued that the Inquiry Officer did not afford reasonable opportunity and relied upon the material which was not supplied to the appellant. On behalf of the appellant it was submitted before the Supreme Court that the High Court committed an error in disturbing the order passed by the Courts below and dismissed the suit. It was also argued that the Inquiry Officer did not afford reasonable opportunity and relied upon the material which was not supplied to the appellant. The quantum of punishment was also challenged on the ground that the appellants records was unblemished for 29 years and the disciplinary authority acted arbitrarily in dismissing the appellant from the service. It was submitted that the ends of justice would meet by compulsorily retiring him from service which was one of the punishments under the rules which could be imposed. Considering the fact that the appellants service for 29 years was unblemished which was uncontroverted by the other side and the Public Service Commission did not agree with the proposal for dismissal when the inquiry papers were sent to it but the Government did not accept it and got further probe made and dismissed the appellant three days prior to his retirement coupled with the fact that the Supreme Court also considered the fact that the appellant died in 1983 and his widow who was said to be in bed health the Supreme Court found that in the circumstances of the case the ends of justice would meet by compulsorily retiring the appellant and accordingly the order of penalty was substituted by compulsory retirement from service in place of dismissal. Thus the facts of that case were totally different than the facts of this case. It would not be out of context to state at this stage that in that very judgment what the Supreme Court has observed in para 4 was that :. . . . . . Normally this court does not interfere with the order of disciplinary authority on punishment. But on the facts stated above the Supreme Court modified the order of punishment. . . . . . Normally this court does not interfere with the order of disciplinary authority on punishment. But on the facts stated above the Supreme Court modified the order of punishment. In this case except the fact that the petitioner has served for 35 years there are no other compelling circumstances for this Court to interfere with the order of removal passed against the petitioner In fact as stated earlier the petitioners service was not unblemished for all these years and of course he was not found guilty in any other case the fact remains that against him three inquiries were initiated and out of these two were of serious charges of corruption. It is also a fact that the authority has applied it mind on the point of punishment when a request was made by the petitioner to reconsider its decision and ultimately instead of passing an order of dismissal the authority passed the order of removal only. Of course. Mr. Shah was right in submitting that it would not help him much because he had already attained the age of 58 years and he would not be eligible for service anywhere else. But that cannot help the petitioner. If the order of punishment of removal is modified and substituted by a compulsory retirement then the petitioner would perhaps get 1/3rd pension as submitted by Mr. Shah but that would not serve the interest of justice. This type of sympathy against such person who is found to be guilty for such a serious charge of acquiring assets disproportionate to his known source of income would be totally misplaced. ( 11 ) MR. Rathod learned AGP was fully justified in relying upon the latest judgment of the Supreme Court in State Bank of India vs. Sumerandra Kishore Endow JT 1994 (1) SC 217. After considering several judgments of the Supreme Court it has been held that it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the disciplinary authority or the appellate authority should consider and not the High Court or the Administrative Tribunal. After considering several judgments of the Supreme Court it has been held that it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the disciplinary authority or the appellate authority should consider and not the High Court or the Administrative Tribunal. If I was convinced on merits that the punishment is highly disproportionate then interfering with the same straight way in exercise of the jurisdiction under Art. 226 of the Constitution I would have perhaps send the matter either to the disciplinary authority or the appellate authority to consider the question regarding punishment but that is not the case here. Therefore nothing more is required to be done in the matter. ( 12 ) IN view of the above discussion I do not find any substance or merit in this petition and accordingly it fails and is dismissed. Rule is discharged. However there shall be no order as to costs. Petition Dismissed. .