JUDGMENT G.B.SHAH 1. Heard the learned counsel Mr I.S. Supehia for the appellant and the learned AGP Mr N.J. Shah respondent. 2. The brief facts of the case are that the appellant, J M Parmar, Junior clerk was working in the inward outward branch in the Ahmedabad Central Jail and on 27.6.1991 at about 5.30 pm, the appellant complained to the Administrative Officer in his cabin that peon S.H. Parmar did not do the work of past the covers. The Administrative Officer in turn asked the appellant to give complaint in writing. Instead following the instructions of higher official, the appellant went out of the cabin of the Administrative Officer and slapped the peon S H Parmar during the office hours and when another peon Govindbhai intervened, the appellant continued to beat S H Parmar due to which door of the cabin of the Account Officer got opened and S H Parmar went into the said cabin. Thus the departmental inquiry against appellant J M Parmar was initiated to the effect that the appellant had disobeyed the instructions of Administrative Officer and beat the peon S H Parmar during the working hours and thus he had committed grave indiscipline. 3. All the allegations have been proved and the report prepared by the Inquiry Officer was forwarded to Disciplinary Authority and on the basis of the Inquiry Officer's report, show cause notice dated 21.5.1 was issued by the Disciplinary Authority to the appellant by Registered A.D. post. The Additional Director General of Police and Inspector General of Prisons, Gujarat State also came to the conclusion that charges levelled against the appellant have been proved. It was further informed the appellant to explain to why the proposed penalty should not be imposed upon the appellant. The acknowledgement receipt duly signed by the appellant on 28.5.1994 returned by post and thus it is proved that the postal article was duly served on 21.5.1994. The appellant had not filed reply within the stipulated period and accordingly Disciplinary Authority i.e. the Addl. Director General of Police and Inspector General of Prisons has pas the order and imposed penalty of dismissal from service to the appellant on 15.10.1994. The appellant then after a delay of four years, preferred Appeal No.224/98 before the Gujarat Civil Services Tribunal the Member, after hearing the learned Advocates for the parties, passed the order dated 20.9.2000 dismissed the said appeal. The appellant then after a delay of four years, preferred Appeal No.224/98 before the Gujarat Civil Services Tribunal the Member, after hearing the learned Advocates for the parties, passed the order dated 20.9.2000 dismissed the said appeal. Then the appellant had preferred Special Civil Application No.188 of 2001 be the learned Single Judge before this Court wherein the main and only ground narrated in para 10 of petition is extracted below: "The only question which calls for consideration in this petition is whether the penalty dismissal is legal, proper, reasonable and proportionate and whether the Tribunal had power and jurisdiction to interfere with the penalty imposed by the disciplinary authority mechanical manner." The learned Single Judge, after hearing the learned counsel for the parties, dismissed the said Special C Application by order dated 27.12.2010. Being aggrieved and dissatisfied by the judgment and order d 27.12.2010 passed in Special Civil Application No.188 of 2010, the present appellant has filed this appeal challenging the said order. 4. Mr Supehia, learned counsel for the appellant has submitted that the explanation of the appellant as required under Rule 9 (17) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 was recorded by the Inquiry Officer and though the appellant had not participated in the departmental inquiry still it was incumbent on the part of the Inquiry Officer to call the appellant for the purpose of seeking explanation against the evidence recorded against the appellant and hence the said aspect was considered by the Inquiry Officer. In support of his submission, the learned counsel has placed reliance decision in Ministry of Finance v. S. B. Ramesh AIR 1998 SC 853 and submitted that it has been specifically held that even the departmental inquiry remained exparte, the delinquent has to be informed about recording of his explanation. The learned counsel has further submitted that the similar provision contained in sub-rule 18 of Rule 14 of C.C.S. (CCA) Rules was considered in the above case which similar to the present Rule 9(17). He has also submitted that in Special Civil Application No.7317 of 2 decided on 1.7.2010, it was held that Rule 9(17) is more or less similar to section 313 of the Cod Criminal Procedure, 1973 and non-compliance of the above Rule would vitiate the order of penalty. He has also submitted that in Special Civil Application No.7317 of 2 decided on 1.7.2010, it was held that Rule 9(17) is more or less similar to section 313 of the Cod Criminal Procedure, 1973 and non-compliance of the above Rule would vitiate the order of penalty. He then submitted that though this point was not raised specifically before any authority uptill now, the s goes to the root of the matter and hence is being raised specifically for the first time and the permission raise the same should be allowed as the appellant was not called upon to offer his explanation as required under section 9(17) and hence the order of dismissal is vitiated. It is the well settled legal position that w the above point was not raised before any authority or Court by the appellant, the same cannot be raised before this Court at this stage. This point has been squarely covered by the Apex Court in paragraph No of the decision reported in (2010) 2 SCC 543 in Rameshkumar v. State of Haryana which reads as under: "Though, it was contended that the initial appointment of the appellant was contrary to recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during arguments. In such circumstances, the High Court ought not to have interfered with factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to be challenged the order of Labour Court." 5. In such circumstances, the High Court ought not to have interfered with factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to be challenged the order of Labour Court." 5. We are quite aware with the facts that if the finding of fact alleged to have been reached in an improve manner, it can be corrected/rectified under Article 227 of the Constitution of India and the writ petition rectify the alleged grave procedural error is also maintainable and accordingly though the point was raised specifically before any authority uptill now as narrated in the above referred para No.4 and the appellant has raised the point specifically for the first time before this Bench, interest of substantial justice to be rendered to the appellant, permission as sought for by the appellant is granted. 6. Before dealing with the above question raised by the appellant narrated in para 4 above, the conduct the appellant forthcoming on the record in para 8 of the report of the Inquiry Officer is necessary to looked into. Para 8 of the inquiry report is extracted as under: "This inquiry was held in the Jail Staff Training School on 25.11.91 and 26.11.91, intimation in this regard was forwarded to the peon S H Parmar vide confidential letter No.97 dated 15.11.91 of this office, whereas the Junior clerk J M Parmar was intimated the confidential letter No.98 dated 15.11.91. As the peon S H Parmar and other witness remained present at this time, their statements were recorded where as the Junior Clerk Parmar did not remain present on both these days whereas the Head Clerk D G Sutariy of the Vadodara Central Jail was forwarded an intimation to remain present vide confidential letter No.MKM/756 dated 18.11.1991 of the Office of I.G. Prison, but he did remain present. Shri J M Parmar vide his letter dated 18.11.1991 informed that after the letter was received by him in respect of engaging a friend-Assistant and oral statements there was a public holiday in the government office, the friend Assistant could not be for out and as a friend Assistant was necessary, he requested for granting the adjournment of days by saying that he would find a friend assistant. Thereafter, vide his letter dated 25.11.1991, a request was made for adjournment of 15 days, which was granted and he personally informed accordingly and thereafter, vide confidential letter No.97 dated 20.12.1991 of this office, he was informed to send the name of the friend assistant and information in that regard within five days. The said letter was received by him 21.11.1991, in the context of the said letter, an application was submitted by him 13.12.1991 to the effect that he intends to engage Mr R.P. Gondaliya as a Friend Assist Therefore, vide confidential letter No.7 dated 7.2.1992 of this office, Shri Gondaliya informed to forward consent letter but consent letter was not received from him and there of vide confidential letter No.16 dated 4.3.1992 of this office, he was again informed to send consent letter. In addition to this, vide confidential letter No.15 dated 4.3.1992 of this off Shri J M Parmar was informed to send the names of the witnesses whom he wanted to examined within ten days and it was informed that failing which ex-parte decision will taken. As stated above, as Shri J M Parmar did not remain present on the adjournment and he not submit any kind of reply, vide confidential letter dated 5.3.1992 of this office, information was asked for in respect of as to leave of how many days were granted by Superintendent of Central Jail, Ahmedabad, therefore, the Superintendent had confidential letter No.376 dated 17.3.1992 informed that Shri Parmar has not attended o for last two or three months. Therefore, vide confidential letter No.49 dated 3.7.1992 of office, he was again informed that the departmental inquiry would be conducted ex pa though he was given adequate time and opportunities for making his defence, any reply not been submitted. And vide the confidential letter No.565/06.01.94 dated 4.2.94 of office of I.G Prison, the instruction was issued that ex parte action will be taken by granting a last adjournment to Shri Parmar, it should be served through the constable and thereof if he does not remain present, ex parte action shall be taken. Therefore, vide the confident letter No.TLM/941 dated 5.1.1994 of this office and vide the letter No.199/B 2051 dated 17.2.94 of the Superintendent Ahmedabad, Mr J.M. Parmar was informed to remain pre at the Jail Staff Training School at 11 O'clock on 24.2.94 and however he has not remained present. Therefore, vide the confident letter No.TLM/941 dated 5.1.1994 of this office and vide the letter No.199/B 2051 dated 17.2.94 of the Superintendent Ahmedabad, Mr J.M. Parmar was informed to remain pre at the Jail Staff Training School at 11 O'clock on 24.2.94 and however he has not remained present. In this way, the adequate opportunities have been given to Shri Parmar for making defence. If he had been not actually responsible, he could have surely produced his defence. But he has not done so, though he was repeatedly instructed. Therefore, in this regard, he is found to have been responsible. As no representation has been made on his behalf, following ex parte decision has been compelled to be taken in respect of the departme inquiry of Shri J M Parmar." 7. It is pertinent to note that over and above the show cause notice dated 21.5.1994 for dismissal was giving to the appellant and the same was duly served on 28.5.1994 he had not taken care to give reply to the same and accordingly the Disciplinary Authority had imposed penalty of dismissal from service. 8. Rule 9 (17) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 (hereinafter referred to as "the Rules") reads as under: "(17) The Inquiry Authority may, after the Government servant closes his case, and shall the Government servant has not examined himself, generally, question him on circumstances appearing against him in the evidence for the purpose of enabling Government servant to explain any circumstances appearing in the evidence against him. 9. It is the submission on the part of the learned counsel for the appellant that as per the above Rule, it incumbent on the part of the Inquiry Officer to call the appellant for the purpose of seeking his explana on the evidence recorded against him. He has, then submitted that the above legal position is also supported by the decision reported in Ministry of Finance v. S. B. Ramesh (supra). We have carefully perused same. In the said case, the delinquent was a government servant who was married living with another woman, K.R. Aruna while his first wife was alive and the first marriage had not been dissolved. The K.R. Aruna was not chosen for inclusion in the list of witnesses. We have carefully perused same. In the said case, the delinquent was a government servant who was married living with another woman, K.R. Aruna while his first wife was alive and the first marriage had not been dissolved. The K.R. Aruna was not chosen for inclusion in the list of witnesses. The Apex Court has accordingly cam the conclusion that the Inquiry Authority as well as the Disciplinary Authority have gone wrong in placing reliance on Exh.1 which is the alleged statement of K.R. Aruna without offering K.R. Aruna as a witness cross-examination and accordingly the Apex Court has come to the conclusion that the order of Disciplinary Authority was based on no evidence and the findings were perverse. The relevant portion para 13 of the above referred decision reads as under: xxx xxx xxx "The learned counsel for the respondents argues that as the inquiry itself was held ex p as the applicant did not appear in response to notice, it was not possible for the Inquiry Authority to question the applicant. This argument has no force because, on 18.6.1991 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the Enquiry Authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of the CCS (CCA) Rules. The omission to do this is a serious error committed by Enquiry Authority." xxx xxx xxx 10. In the case on hand, the explanation of the appellant as required under the Rule 9 (17) appears to have not been recorded by the Inquiry Officer but in our view, the same is not fatal to the instant case because in our opinion, in this particular case such omission should not result in setting aside the conviction sentence as submitted by the learned counsel for the appellant because under the circumstances, efforts should be made to undo or correct one of the lapses more particularly when the above point was not raised specifically before any authority or Court. So in our view, we have to consider the impact of the lapse the overall aspects of the case. Here the Disciplinary Authority as well as the Appellate Tribunal have appreciated and re-appreciated the evidence forthcoming on the record and after having all the satisfaction, the punishment of dismissal had been imposed. The learned Single Judge has also observed that under Article 227 the scope of scrutiny would be limited unless the finding is recorded which is perverse without any evidence and after observing the petition as meritless the same was dismissed. 11. We have gone through the efforts put in by the Inquiry Officer to see that the appellant shall remain present, but at all the time, the appellant remained absent for the reasons best known to him. In this case Inquiry Officer has also examined eight witnesses who have supported the charges levelled against appellant and the said evidence is sufficient to bring home the guilt of the accused and in our view, considering the entire aspects, the lapse does not matter much and for this particular case, it could sidelined justifiably because in our view, the lapse is not so vital as would vitiate the entire case as charge is sufficiently and satisfactorily proved giving enough opportunities to the appellant which appellant had not availed for the reasons best known to him. 12. Learned counsel Mr Supehia has further submitted that the punishment of dismissal passed by Disciplinary Authority and confirmed by the higher forum was not only against the settled principles of but it is suffered from non-application of mind and the punishment is shockingly disproportionate. For he has drawn our attention to the facts of the case and has submitted that the peon Mr S.H. Parmar who was working under the present appellant had refused to do the pasting work even though it was the closing hour of the office at 5.30 p.m. and the present appellant had slapped him and the said action was not pre-plan but in a fit of anger, it had happened. Mr Supehia has further submitted that the prosecution witnesses Rana in para 8 of the inquiry report has categorically stated that there was exchange of words and scuffle between the appellant and the peon and thus provocation and retaliation cannot be ruled out. Mr Supehia has further submitted that the prosecution witnesses Rana in para 8 of the inquiry report has categorically stated that there was exchange of words and scuffle between the appellant and the peon and thus provocation and retaliation cannot be ruled out. Consider the same as the appellant had completed more than six years of service and that too having an unblemished service record and so considering the said aspect, he should be at the most be held responsible for a mi punishment. 13. It is important to note that the appellant was serving in the Police Department where utmost discipline is required for the smooth functioning of the institution. We have considered the entire oral evidence forthcoming on the record narrated in the report of the Inquiry Officer. It has come on record that more then one slap has been given by the appellant to the peon S H Parmar for which peon S H Parmar was hospitalised and the injury certificate is forthcoming on the record. The appellant had complained to higher official i.e. the Administrative Officer visiting his chamber that the peon S H Parmar did not do the work pasting covers and the Administrative Officer had rightly asked the appellant to give a complaint in writing naturally for taking further steps against the erring official but instead of that the appellant had thought it fit not to follow the instructions given by the higher official and the incident narrated above had occurred. Even if it is presumed that the action on the part of the appellant was not treated to be pre-planned, at same time it cannot be said that it was merely occurred in a fit of anger because necessary instructions already been given by the Administrative Officer and one has to follow the same more particularly a getting experience of six years in the said Government services. The learned Single Judge heard the learned counsel at length on the issue of imposition of penalty of dismissal and whether the same is shockingly disproportionate or not to the charges proved. The learned Single Judge has come to the conclusion that punishment of dismissal could not be shockingly disproportionate to the charges proved and we find ourselves in agreement with the same. 14. The learned Single Judge has come to the conclusion that punishment of dismissal could not be shockingly disproportionate to the charges proved and we find ourselves in agreement with the same. 14. In view of the aforesaid, we do not find any illegality either in the impugned order passed by learned Single Judge or in the order passed by the Tribunal. This appeal lacks merits and is accordingly dismissed.