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2003 DIGILAW 591 (GUJ)

STATE OF GUJARAT v. G. M. Dalwadi

2003-09-30

R.M.DOSHIT

body2003
R. M. DOSHIT, J. ( 1 ) THIS petition under Article 227 of the of Constitution of India has been preferred by the Commissioner of transport, Gujarat State against the judgment and order dated 10th March, 2000 passed by the learned Gujarat Civil services Tribunal, Gandhinagar [hereinafter referred to as, "the Tribunal"] in Appeal No. 67 of 1999. ( 2 ) THE facts leading to the present petition are as under :- the respondent-herein [hereafter referred to as, "the delinquent"] was appointed as a Junior Clerk under the commissioner of Transport, the petitioner herein. On 12th October, 1995, a chargesheet came to be issued against the delinquent for the commission of acts of misconducts referred to therein. Pursuant to the said chargesheet, disciplinary inquiry was held against the delinquent. The Inquiry officer submitted his report on 29th November, 1997. The inquiry officer held that the imputation of charge made in respect of the various misconducts alleged to have been committed by the delinquent was proved. Pursuant to the said report, the records of the disciplinary inquiry and the final reply of the delinquent, by order dated 26th October, 1998 made by the disciplinary authority, the delinquent was ordered to be removed from service. Feeling aggrieved, the delinquent preferred above referred appeal No. 67 of 1999 before the Tribunal. The Tribunal allowed the appeal under the impugned judgment. The order of punishment imposed upon the delinquent has been setaside. The delinquent has been ordered to be given all consequential benefits. Feeling aggrieved, the State Government has preferred the present petition. ( 3 ) THE learned Tribunal has, having considered the evidence on record, held that the imputation of charge made against the delinquent was not proved. The tribunal has recorded a finding that the duplicate licence in question was issued by the delinquent under the instructions given by the concerned Clerk Shri Dudhrejia. The said duplicate licence was issued by the delinquent with a view to helping the said Shri Dudhrejia to lessen his burden. No ulterior motive or intention to defraud was proved against the delinquent. The tribunal has also drawn adverse inference against the disciplinary authority for not examining the driver Narendra Kumar and the R. T. O agent-Rasikbhai. In the opinion of the Tribunal, had those two persons been exanined, several illegalities could have been detected. No ulterior motive or intention to defraud was proved against the delinquent. The tribunal has also drawn adverse inference against the disciplinary authority for not examining the driver Narendra Kumar and the R. T. O agent-Rasikbhai. In the opinion of the Tribunal, had those two persons been exanined, several illegalities could have been detected. The Tribunal has also observed that it is the connon practice amongst the Governnent servants, Bank employees, etc. to offer and receive help fron one another. The Tribunal has also held that but for the request made by the said Shri Dudhrejia, the delinquent would not have issued the duplicate licence in question. The Tribunal has observed that the said defence has been taken by the delinquent at the first opportunity available. The action of the delinquent cannot be said to be unnatural. The tribunal has not believed the evidence of shri Dudhrejia on the premise that the said shri Dudhrejia would not admit of his entrusting work to the delinquent. The tribunal has also observed that the disciplinary authority has not given any reason why the delinquent should be visited with the punishment of removal and why a lesser punishment would not have been more appropriate. ( 4 ) I have perused the records of the disciplinary proceedings. ( 5 ) A Chargesheet came to be issued against the delinquent on 12th October, 1995 in respect of three acts of commission and omission amounting to misconduct. [1] It was alleged that the licence issued in favour of one driver-Narendra Kumar had expired on 31st May, 1991. On his application for renewal of licence and on receipt of appropriate fees, the concerned clerk Shri Dudhrejia on 22nd February, 1994 renewed the said licence for the period from 22nd February, 1994 to 21st february, 1997. The relevant entries were also made in the concerned register. It is alleged that the said entries were scored off and an entry was made recording the validity of the said renewed licence from 22nd July, 1993 to 21st July, 1996. The delinquent, on the basis of the said interpolated information, had issued duplicate licence in favour of the said narendra Kumar for the validity period from 22nd July, 1993 to 21st July, 1996. The said duplicate licence was obtained by the witness Sagarmal Behrumal, the owner of the vehicle No. GJ-1-R-4137. The delinquent, on the basis of the said interpolated information, had issued duplicate licence in favour of the said narendra Kumar for the validity period from 22nd July, 1993 to 21st July, 1996. The said duplicate licence was obtained by the witness Sagarmal Behrumal, the owner of the vehicle No. GJ-1-R-4137. The said vehicle had met with an accident on 6th december, 1993. It was being driven by the said driver Narendra Kumar. In respect of the said accident, the said witness sagarmal had used the said duplicate licence for insurance claim. Thus, the delinquent was alleged to have issued the said duplicate licence, though it was not part of his duty, without verifying the correctness of the entries. [2] It was alleged that during, the years 1990-91. when the delinquent was incharge of the allotment of numbers to the driving licence, he left five numbers blank with an ulterior intention to use such unallotted numbers at a later time for issuing bogus licence. [3] the delinquent was also charged for misbehaving with the Senior Clerk Shri B. K chauhan and the Peon- Shri N. P Patni on 27th September, 1995, when the said two persons had gone to serve the order of suspension upon the delinquent. ( 6 ) THE said imputation of charge was duly answered by the delinquent on 15th November, 1995 wherein he "denied the allegations made against him. With respect to the charge no. [1], the delinquent has stated, inter alia, that until the handwriting expert opined that the interpolation in the relevant entry in the register was made by the delinquent, no inquiry can be initiated against the delinquent. However, he did not deny that the duplicate licence in question was issued by the delinquent. With respect to the charge no. [2], the delinquent has stated that he was not informed whether any licence was issued under the licence numbers left blank by the delinquent. With respect to the charge no. [3], the delinquent has stated that till the date, the order of suspension was not served upon him, any report made against the deliquent was false and was actuated by malafide. These details have been noted with a view to recording that it was not the case of the delinquent that the duplicate licence was issued by him pursuant to the request made by the witness Shri Dudhrejia or any other officer. These details have been noted with a view to recording that it was not the case of the delinquent that the duplicate licence was issued by him pursuant to the request made by the witness Shri Dudhrejia or any other officer. It was not denied that the relevant licence numbers were kept blank nor it was denied that the said blanks were kept with an ulterior intention. In fact, the said reply is evasive and spells out nothing but the arrogance of the delinquent. It was for the first time in the cross examination of the witness Shri Dudhrejiar the delinquent suggested that Shri Dudhrejia had requested the delinquent to issue duplicate licence in favour of the Driver- narendrabhai. However, the said suggestion was denied by the said Shri dudhrejia. ( 7 ) IN my view the Tribunal has erred in holding that the delinquent had taken the defence of his being requested by Shri dudhrejia to issue duplicate licence at the first available opportunity i. e. in the cross examination of the witness Shri Dudhrejia. The Tribunal has overlooked the fact that the first opportunity to putforth the defence to any delinquent is the reply to the chargesheet. As recorded hereinabover in his reply to the chargesheet, it was not the case of the delinquent that the witness Shri dudhrejia had requested the delinquent to issue duplicate licence. The Tribunal has also erred in drawing adverse inference against the prosecuting authority for not examining the driver Narendrabhai or RTO agent-Rasikbhai. Further, the Tribunal has alto erred in drawing inference in favour of the delinquent merely for his putting question in the cross examination to the witness Shri Dudhrejia that it was the said witness who had instructed the delinquent to issue duplicate licence. In my view, the tribunal has failed to notice that the delinquent had tried to improve upon his defence over the course of disciplinary proceedings. The conclusion of the tribunal that the duplicate licence had been issued by the delinquent at the request of the witness Shri Oudhrejia is based on presumption and surmises. The Tribunal has presumed that in all public offices, banks, etc. , the employees are used to request other employees for help or to render such help. The conclusion of the tribunal that the duplicate licence had been issued by the delinquent at the request of the witness Shri Oudhrejia is based on presumption and surmises. The Tribunal has presumed that in all public offices, banks, etc. , the employees are used to request other employees for help or to render such help. Further, having decided that the first charge levelled against the delinquent was not proved, the Tribunal has refrained from examining the second and third charges at all. The Tribunal has stopped short by recording that no licence was issued against the numbers left blank by the delinquent. The Tribunal has not even referred to the third charge levelled against the delinquent. ( 8 ) I am alive to the fact that the powers conferred upon the Tribunal are that of the Appellate Authority. It is open to the Tribunal to re-examine the evidence on record, to record its own finding and also to substitute the finding recorded by the disciplinary authority. Whereas, this court has a limited power of supervision over the orders made by the Tribunal. Unless the order made by the Tribunal suffers from the grave error apparent on the face of the record which has resulted into miscarriage of justice, or the findings recorded by the Tribunal are perverse, this court shall not interfere with the orders of the Tribunal, ( 9 ) I am of the view that this is one case where the decision of the Tribunal has resulted into miscarriage of justice which warrants interference by this Court under the supervisory power conferred under article 227 of the Constitution of India. ( 10 ) AS recorded hereinafaover the finding recorded by the Tribunal in respect of the first charge is contrary to the record and is based on presumption and surmises. With respect to the rest of the charges, the tribunal has not recorded any finding at all. Nor the said charges have been taken into consideration for examining whether the punishment imposed upon the delinquent was justified or not. ( 11 ) IT is evident that on the date when driver Narendra Kumar met with the accident, he did not possess a valid driving licence. In the circumstances the owner of the vehicle Sagarmal Bherumal, could not have claimed insurance money for the damage caused to the vehicle. ( 11 ) IT is evident that on the date when driver Narendra Kumar met with the accident, he did not possess a valid driving licence. In the circumstances the owner of the vehicle Sagarmal Bherumal, could not have claimed insurance money for the damage caused to the vehicle. With a view to facilitating the insurance claim, the said sagarmal Bherumal arranged for issuance of a duplicate licence in the name of driver- narendra Kumar for the period covering the date of the accident. Indisputably, the duplicate licence was issued by the delinquent. Obviously, the duplicate licence was obtained by the owner sagarmal Bherumal with an intention to defraud the Insurance Company. The delinquent played an important role in this fraudulent scheme by issuing duplicate licence. Indisputably, it was neither the function of the delinquent to issue such licence nor was it his defence that the said licence was issued by him at the request of the concerned Clerk Shri Dudhrejia or any other officer. Such defence was taken by the delinquent at a much later stage in the disciplinary inquiry, though unsuccessfully. ( 12 ) IT is quite possible that apart from the delinquent, there were other persons involved in the aforesaid fraudulent scheme and a further inquiry could have revealed the names of the other persons involved. However, merely because further inquiry was not made, the delinquent cannot be exonerated even though by evidence on record the charge against him has been proved. ( 13 ) AS to the second charge, there is no denial by the delinquent that he had left certain licence numbers blank while issuing the licence numbers. He has not even explained why such blanks were maintained nor he has denied that the said blanks were maintained with an ulterior intention to issue bogus licence at a later date. In absence of even a bare denial, the charge has rightly been held to be proved by the disciplinary authority. The fact that no licence was issued in the said numbers at any point of time thereafter is of no consequence. ( 14 ) EVEN the third charge has been proved by the statenent of the concerned persons i. e. Shri B. K Chauhan and Shri N. P patni. The fact that no licence was issued in the said numbers at any point of time thereafter is of no consequence. ( 14 ) EVEN the third charge has been proved by the statenent of the concerned persons i. e. Shri B. K Chauhan and Shri N. P patni. It should also be noted that even in answer to the report of the inquiry officer, the delinquent has not made out any case based on the evidence on record. Even the said replyis evasive. ( 15 ) IN view of the evidence on record, I am of the opinion that the disciplinary authority has rightly held that the imputation of charge made against the delinquent was proved. The charges levelled against the delinquent reflects upon the integrity/ lack of integrity and bona fide intention of the delinquent. The said charges are grave enough to warrant removal fron service. ( 16 ) IN view of the above discussion, the petition is allowed. The inpugned judgenent and order dated 10th March, 2000 passed by the learned Gujarat Civil Services tribunal, Gandhinagar in Appeal No. 67 of 1999 it quashed and set-aside. The order of disciplinary authority dated 26th October, 1998 [annexurw- a to the petitioni] is restored. Rule is made absolute with costs. .