Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 25 (GUJ)

State of Gujarat v. Lalji Gokalbhai

2013-01-16

C.L.SONI

body2013
JUDGMENT : C.L. Soni, J. 1. This appeal under section 100 of the Code of Civil Procedure is filed by the original defendants against whom the respondent-original plaintiff filed Regular Civil Suit No. 379 of 1993 to declare the order dismissing him from service passed on the basis of departmental inquiry and the order of his suspension as void and without any legal foundation and further declare him to be in continuous service as if he was never dismissed from service and to pay him full pay and allowances as if he was in active service. 2. Case of the plaintiff in his suit is that he was serving as police constable, as confirmed employee. When he was serving at Lodhika, DSP Rajkot placed him under suspension by order dated 2.9.1972 and he was served with the Memo (Charge-sheet) dated 12.7.72 alleging that on 26.7.1971, PSI Shri G.N. Raval found Lalji Gokal (plaintiff) with Constable Himatlal Prabhashankar and Suresh Pranlal on National Highway. The plaintiff could not give satisfactory explanation. On further search from the bag of Suresh Pranlal, two rubber tubes giving smell of alcohol with policeman button, short and shirt were found. 3. It is the further case of the plaintiff that the ASP Gondal conducted the departmental inquiry and the charges against the plaintiff were held proved and on the strength of such charges, the plaintiff was served with the notice dated 27.3.1973 by the DSP to show cause as to why the plaintiff should not be dismissed from service. The plaintiff, therefore, initially filed the suit without serving notice under section 80 of the Code of Civil Procedure and after withdrawing the same, the plaintiff filed the another suit. The suit was disposed of by directing the plaintiff to avail the alternative remedy of appeal before the DIG through the DSP as required under the Manual. It is further averred by the plaintiff that the charge against the plaintiff was of mere presence of the plaintiff with the above said two persons and no misconduct was proved by any evidence in the departmental inquiry, still, the DSP dismissed the plaintiff from service. The appellate authority before whom the appeal was filed also dismissed the appeal without application of mind. The appellate authority before whom the appeal was filed also dismissed the appeal without application of mind. The appellate authority has failed to appreciate that there was no charge of misconduct proved against the plaintiff in the departmental inquiry and, therefore, it was a case of no evidence, still the appellate authority mechanically disposed of the appeal without speaking order. Such order of the DSP dismissing the plaintiff from service and confirmed by the appellate authority is null and void and the plaintiff is, therefore, entitled to benefit of continuous service with other consequential benefits. 4. The suit of the plaintiff was resisted by the defendants by filing the written statement at Exh.11 stating that the suit was not maintainable in absence of notice under section 80 of the Code of Civil Procedure ; that the suit of the present nature was also not maintainable; that the suit challenging order of dismissal was filed after a period of 10 years and 11 months and that the plaintiff was dismissed from service on the basis of legally held departmental inquiry as the plaintiff was given full opportunity in such departmental inquiry and, therefore, the plaintiff is not entitled to any relief in his suit. 5. On the basis of pleadings, learned trial Judge framed issues at Exh. 18. On appreciation of the evidence, learned trial Judge held that the charge leveled against the plaintiff was only that the plaintiff was found on highway with two other persons who were suspected to have indulged in the liquor business and there was no evidence in the inquiry to establish any misconduct of the plaintiff. The learned trial Judge also recorded that when the charge against the plaintiff was of just finding him on the highway without there being any other charge of misconduct alleged to have been committed by the plaintiff, the dismissal of the plaintiff on the conclusion of the departmental inquiry for the above said charge could be said to be without any evidence of misconduct and against the principles of natural justice. On such finding and conclusion, the learned trial Judge allowed the suit of the plaintiff and declared the order dated 5.11.1979 passed by the DSP Rajkot dismissing the plaintiff from service and confirmed by the appellate authority vide order dated 18.10.1993 as illegal and void and violative of Article 311(2) of the Constitution of India. On such finding and conclusion, the learned trial Judge allowed the suit of the plaintiff and declared the order dated 5.11.1979 passed by the DSP Rajkot dismissing the plaintiff from service and confirmed by the appellate authority vide order dated 18.10.1993 as illegal and void and violative of Article 311(2) of the Constitution of India. The learned trial Judge further declared the plaintiff to be in continuous service on his original post irrespective of the order of dismissal of the plaintiff from service and further declared the plaintiff to be entitled to all consequential benefits as if the plaintiff was in active service. 6. The defendants - the State and its authorities filed Regular Civil Appeal No. 86 of 1996. The learned appellate Judge found that the Civil Court has rightly recorded that it was a case of no evidence against the plaintiff and further found that the Civil Court had jurisdiction to entertain the nature of the suit filed by the plaintiff. The learned appellate Judge thus concurred with the finding and conclusion reached by the learned trial Judge and dismissed the appeal by judgment and order dated 11.11.1997. 7. This appeal was admitted by order dated 14.10.1998 on the following substantial questions of law: (a) Whether it is open to the lower Courts to thread bear analyze the evidence relied on by competent authority while arriving at the decision and confirmed by the appellate authority when decision of competent authority and appellate authority based ons sufficient evidence before them? (b) Whether it is open to the lower Court to set aside the decision of competent authority and confirmed by the appellate authority for there in flagrant violation of principles of natural justice? (c) Whether it is open to both the lower Courts to interfere in the decision of competent authority confirmed by appellate authority except it is case of no evidence or there is any breach of principles of natural justice? (d) Whether in the facts and circumstances of the case interference shown by the lower courts are warranted or not? (e) Whether issuance of show cause notices to the delinquent plaintiff by one presiding officer and hearing of the proceedings by another officer is in breach of principles of natural justice or not? (d) Whether in the facts and circumstances of the case interference shown by the lower courts are warranted or not? (e) Whether issuance of show cause notices to the delinquent plaintiff by one presiding officer and hearing of the proceedings by another officer is in breach of principles of natural justice or not? (f) Whether it is open to the lower courts of re-appreciating the evidence relied on by the competent authority in coming to the conclusion and confirmed by appellate authority? 8. I have heard the learned advocates for the parties. Mr. Raval, learned Asstt. G.P. appearing for the appellants submitted that the charge against the plaintiff was proved by the evidence of the witnesses especially by the evidence of the PSI that the plaintiff was found on the National Highway with two other persons and, therefore, it cannot be said that it was a case of no evidence in the departmental inquiry. Mr. Raval submitted that loitering at the Highway without any reason by the plaintiff who was a member of disciplined force with two other persons who were found with material smelling alcohol and who were proved to have indulged into trading of alcohol on the basis of the evidence of one Gafurbhai was certainly misconduct of the plaintiff and, therefore when the disciplinary authority thought it fit to dismiss the plaintiff from service, it was not open to the Civil Court to sit in appeal over such decision of the competent authority. Mr. Raval submitted that after the plaintiff was found on highway with two other persons, the plaintiff had no explanation to be on highway with two other persons who were stated to have been indulging into liquor business. Mr. Raval therefore pointed out that considering the conduct of the plaintiff and in absence of any explanation from the plaintiff, evidence of the PSI in departmental inquiry was sufficient to prove the charge against the plaintiff, therefore, it cannot be said that there was no evidence against the plaintiff in departmental inquiry. Mr. Mr. Raval therefore pointed out that considering the conduct of the plaintiff and in absence of any explanation from the plaintiff, evidence of the PSI in departmental inquiry was sufficient to prove the charge against the plaintiff, therefore, it cannot be said that there was no evidence against the plaintiff in departmental inquiry. Mr. Raval submitted that the plaintiff has not challenged legality or otherwise of the departmental proceedings but the case of the plaintiff is that the charge against the plaintiff was not of any misconduct but of simply finding him on highway with two other persons and even if such charge was stated to have been substantiated by the statement of PSI, same would not warrant dismissal of the plaintiff from service. Mr. Raval pointed out that when the departmental inquiry was legally held and when the charge was proved on the basis of evidence of PSI who visited the place and on the basis of other evidence, it was not open to the civil court to thread bear analyze the evidence in the departmental inquiry and to come to the conclusion that the evidence was not sufficient to dismiss the plaintiff from service. Mr. Raval also submitted that the civil court was also not competent to interfere with the punishment imposed by the defendants especially when there was evidence in the departmental inquiry and when there was no breach of the principles of natural justice. Mr. Raval thus urged to allow this appeal on the substantial questions of law framed by this court. 9. In reply, learned advocate Mr. M.D.Rana appearing for the respondent-original plaintiff submitted that the only charge against the plaintiff was that the plaintiff was found on the highway with two other persons namely Himatlal Prabhashankar and Sureshbhai Pranlal. Mr. Rana submitted that there was no evidence adduced in the departmental inquiry even by the PSI who found the plaintiff at Highway that the plaintiff had indulged into misconduct so as to warrant any kind of punishment. Mr. Rana submitted that even the persons whose statements were recorded in the inquiry did not involve the plaintiff with said two other persons who were said to have gone to the place of such persons to collect the liquor. The other witness had in fact in clear terms stated that the plaintiff had never gone to the place of said witness along with Sureshbhai and Himatlal. The other witness had in fact in clear terms stated that the plaintiff had never gone to the place of said witness along with Sureshbhai and Himatlal. Mr. Rana submitted that in fact there was no charge of any misconduct committed by the plaintiff. Simply because the plaintiff was found on Highway by the PSI, evidence of the PSI could be at the best for the purpose of establishing presence of the plaintiff at the Highway but by such evidence, it could not be said that the plaintiff had consciously accompanied those two persons at the Highway for the purpose of dealing in the liquor business. Mr. Rana submitted that there was no evidence in the departmental inquiry to establish the connection of the plaintiff with said two other persons for the purpose of dealing in liquor business. Mr. Rana thus submitted that when it was a case of no evidence against the plaintiff in the inquiry, no order of punishment much less the punishment of dismissal could have been passed against the plaintiff. Mr. Rana submitted that the order of dismissal of the plaintiff on the basis of such departmental inquiry wherein no evidence was led to prove that the plaintiff was in any way connected with the business of liquor in company with two other persons, such order of dismissal was void and against the settled principles of natural justice, therefore, the Civil Court was within its jurisdiction to entertain the nature of the suit filed by the plaintiff. Mr. Rana thus submitted that since the Courts below have not committed any error in holding the order of dismissal as null and void, this Court may not interfere with such finding of fact recorded by the courts below while exercising the powers under section 100 of the Code of Civil Procedure. 10. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the record and proceedings of the case, it appears that the plaintiff who was serving as constable was charged with the allegation that he was found moving on the highway with above said two persons one of whom was found to have rubber tubes smelling alcohol. In respect of such charge, departmental inquiry was held against the plaintiff and in the departmental proceedings, PSI who found the plaintiff at the highway gave his evidence. In respect of such charge, departmental inquiry was held against the plaintiff and in the departmental proceedings, PSI who found the plaintiff at the highway gave his evidence. Said PSI has in his statement before the inquiry officer stated that the plaintiff and other constable Himatlal Prabhashankar were found on Highway during his patrolling with one Sureshkumar Pranlal. He further stated that said Sureshkumar had one bag with him and on searching the said bag, one police uniform and two rub tubes were found from which alcohol smell was coming out and on asking about such smell from his bag, he could not give satisfactory explanation, therefore, against him, complaint under section 124 of the Bombay Police Act was registered. He further stated that when he asked the plaintiff as to why he was there at the Highway, the plaintiff did not give any satisfactory explanation. Such explanation of the plaintiff was recorded by him. It is further stated by the said PSI before the Inquiry Officer that on information, he came to know that Himatlal was dealing in liquor business with Daud Noormohamad. Daud Noormohamad, on being asked, stated that said Himatlal had taken away liquor from him and then on further inquiry, two chits written in the name of Ramnivas Sharma were found. 11. When the PSI was cross examined as to whether he found in his investigation the plaintiff doing any business of liquor, he clearly stated that there was no any material connecting the plaintiff doing business in liquor but information could be gathered against Himatlal doing business of liquor. On further cross examination, he stated that the plaintiff and other persons were walking separate on the highway and nothing was found from the plaintiff in connection with the liquor but one NC Book was found in the name of Ramsumiran and Ram Avadh. 12. In the departmental inquiry, the defendants also examined Shri Daud Noormohamad Miyana as the witness of the department. From the evidence of said witness, it clearly appears that he implicated only two other persons and not the plaintiff. He stated that about one and half year before, Suresh Pranlal and Himatlal had gone to his field (Vadi) to collect liquor. In the departmental inquiry, the defendants also examined Shri Daud Noormohamad Miyana as the witness of the department. From the evidence of said witness, it clearly appears that he implicated only two other persons and not the plaintiff. He stated that about one and half year before, Suresh Pranlal and Himatlal had gone to his field (Vadi) to collect liquor. This witness was cross examined on behalf of the plaintiff and in his cross examination, he clearly stated that the plaintiff who was present during the inquiry had not come with Himatlal and Sureshbhai to collect liquor from him and he also stated that he did not even know the plaintiff. He further stated that at no point of time, either at the time of collecting liquor by the said persons or at any point of time before that, the plaintiff had ever gone to his place to collect the liquor. Statement of the plaintiff was also recorded and pointed question was asked to the plaintiff whether the plaintiff had ever gone to the place of Daud Noormohamad Miyana for taking liquor with Himatlal to which the plaintiff had answered in negative and to the another question about the plaintiff going with Himatlal and Sureshbhai without permission of head quarter to collect liquor, the plaintiff's answer was also in the negative. 13. From the evidence of PSI before the inquiry officer, though it was proved that the plaintiff was found at Highway, however, there was no evidence adduced by said PSI or any other witness to prove that the plaintiff had gone to the highway as a part of team to deal in liquor business with two other persons. That is even not the case of witness Shri Raval, PSI before the inquiry Officer. Said witness has in fact given evidence in his cross examination that no details or information or any material could be found to connect the plaintiff doing business of liquor with two other persons. Charge against the plaintiff was that he was found at Highway with Sureshbhai and Himatlal who were stated to have indulged in the business of liquor. This charge encompasses in itself the charge of plaintiff having indulged himself with two persons in the business of liquor. But for establishing such charge, there is no evidence in the inquiry. Charge against the plaintiff was that he was found at Highway with Sureshbhai and Himatlal who were stated to have indulged in the business of liquor. This charge encompasses in itself the charge of plaintiff having indulged himself with two persons in the business of liquor. But for establishing such charge, there is no evidence in the inquiry. Therefore, the Courts below have rightly found that it was a case of no evidence against the plaintiff. 14. In view of the above admitted facts, simply because the departmental inquiry proceeded against the plaintiff and simply because in such departmental inquiry, charge against the plaintiff was stated to have been proved, jurisdiction of the civil court cannot be taken away to find out whether it was a case of no evidence against the plaintiff or not in the departmental inquiry. In undertaking such process, civil court has to, at least, look at the nature of evidence adduced in the departmental inquiry to find out whether it is a case of no evidence or not and such process undertaken by the civil court cannot be said to be an exercise by the civil court to thread bear analyze the evidence relied on by the competent authority. It is true that the civil court is not competent to evaluate or make assessment of the evidence in the departmental inquiry so as to find out whether the charge could be said to have been proved. In the facts of the case, civil court cannot be said to have undertaken exercise of thread bear analysis of the evidence to find out whether the charge stated to have been proved is on the basis of proper appreciation of evidence by the inquiry officer or not. As discussed above, when this Court find that there was no evidence to prove the charge of plaintiff's involvement in illegal activity of liquor, civil court had also looked at such evidence in inquiry and recorded that it was a case of no evidence. Therefore, when the courts below have found as a matter of fact that it was a case of no evidence and when the plaintiff was simply found to be at the Highway as per the evidence of the PSI before the inquiry officer, in my view, there was no misconduct proved against the plaintiff by any evidence in the inquiry. Therefore, when the courts below have found as a matter of fact that it was a case of no evidence and when the plaintiff was simply found to be at the Highway as per the evidence of the PSI before the inquiry officer, in my view, there was no misconduct proved against the plaintiff by any evidence in the inquiry. If such was the case made out by the plaintiff, the Courts below were justified in holding the order of punishment tobe invalid, null and void and such could never be said to be interference by the civil court in the jurisdiction of the competent authority. 15. However, the question would still remain as to whether the plaintiff would be entitled to all the benefits flowing from the judgment and decree passed by the Courts below. During the course of hearing, when it was put to learned advocate Shri Rana for the respondent that though the plaintiff was directed by civil court to file appeal before the appellate authority against the order of dismissal and though his appeal was entertained and decided by the appellate authority on merits, still, the plaintiff could not be made entitled to any monitory benefits for the period from the order of dismissal till reaching the age of superannuation on the ground that the plaintiff himself was responsible for initially approaching the civil court after long period of ten years and that for the subsequent period, the plaintiff having not worked, the plaintiff could not be made entitled for any monitory benefits for the intervening period, Mr. Rana on instruction from the respondent, candidly stated before the court that the plaintiff had reached the age of superannuation in the year 2007, therefore, the plaintiff would be satisfied if he is given benefit of pension by treating his services as continuous service ignoring his dismissal from service. 16. At this stage, learned AGP Mr. Raval pointed out submitted that this court vide order dated 12.5.99 passed in the Civil Application No. 4131 of 1999 directed to reinstate the respondent-plaintiff or to pay sum of L 2000.00 every month till the disposal of the appeal. He stated that the defendants have duly complied with the said interim order passed by this Court and have continued to pay L 2000.00 per month to the plaintiff even after the respondent reached the age of superannuation in the year 2007. He stated that the defendants have duly complied with the said interim order passed by this Court and have continued to pay L 2000.00 per month to the plaintiff even after the respondent reached the age of superannuation in the year 2007. He further pointed out that in 2008, one civil application was preferred for early hearing of the second appeal. However, since the defendants were bound by the interim order, defendants continued to pay L 2000.00 per month to the plaintiff even after 2007 till today. He, therefore requests that even if the plaintiff is to be granted pensionary benefit, total amount paid to the plaintiff after reaching the age of superannuation is required to be deducted per month from the pension benefits of the plaintiff. 17. It appears that though the courts below have held the order of dismissal as invalid, null and void, still, while granting consequential benefits to the plaintiff, the courts below failed to take into consideration the material aspect of the plaintiff filing the suit after a period of ten years. There is no dispute about the fact that the plaintiff has not rendered any explanation for filing the suit after a period of ten years challenging the order of his dismissal from service. However, there is also no dispute about the fact that the appeal of the plaintiff was entertained and decided on merits by the competent authority, therefore, delay had not come in his way to get the order of his dismissal examined by civil court. However, when the consequential benefits on declaration of the order of dismissal as invalid, null and void are to be worked out, the plaintiff's conduct of approaching the court late in time is also required to be taken into consideration. Since the learned advocate Mr. Rana has fairly stated on instruction that the plaintiff having reached the age of superannuation and since the plaintiff has been getting L 2000.00 per month right from the month of June, 1999 onwards, the plaintiff would be satisfied with the benefit of pension on the basis of his continuous service. Since the learned advocate Mr. Rana has fairly stated on instruction that the plaintiff having reached the age of superannuation and since the plaintiff has been getting L 2000.00 per month right from the month of June, 1999 onwards, the plaintiff would be satisfied with the benefit of pension on the basis of his continuous service. However, this Court also needs to keep in mind the request made by the learned AGP that even after the plaintiff reached the age of superannuation, department went on paying L 2000.00 per month to the plaintiff and such amount is required to be deducted from the pension to be made available to the plaintiff. This Court is, therefore, of the view that since the Court is exercising appellate jurisdiction, it can mould relief in the facts of the case. This Court is of the view that while upholding the declaration granted by the Courts below as regard the order of dismissal of plaintiff from serivce as null and void, the plaintiff could not be made entitled to any other monitory benefits except the benefit of continuous service for the purpose of pension to the plaintiff. 18. Thus, for moulding the relief, the appeal will be required to be partly allowed and the judgment and decree passed by the Courts below will be required to be modified. 19. In the result, this appeal is partly allowed. Judgment and decree passed by the learned trial Judge and confirmed by the learned appellate Judge declaring the order of dismissal dated 5.1.1979 and confirmed by the appellate authority dated 18.10.1993 as null and void stands confirmed. The judgment and decree granting all consequential benefits except continuity of service to the plaintiff is quashed and set aside. Plaintiff is declared to be in continuous service irrespective of the order of dismissal from service. However, the plaintiff would not be entitled to any monitory benefit or any consequential benefits on account of he being declared as having continued in service irrespective of the order of dismissal. The plaintiff shall however be entitled to pension benefits on the basis of his continuous service irrespective of order of his dismissal from service. Defendants are directed to work out such pension benefits and to pay such benefits to the plaintiff within six weeks from the date this Judgment and Order is made available to the defendants. The plaintiff shall however be entitled to pension benefits on the basis of his continuous service irrespective of order of his dismissal from service. Defendants are directed to work out such pension benefits and to pay such benefits to the plaintiff within six weeks from the date this Judgment and Order is made available to the defendants. From pension benefits, the defendants shall deduct total amount paid to the plaintiff after he reached the age of superannuation under the interim order of this Court. However, such deduction shall be at L 2000.00 from the amount of pension available to the plaintiff at the end of every month till the entire amount paid after 2007 is recovered. There shall be no deduction of the amount paid under the interim order till the period the petitioner reached his superannuation age. For the purpose of working out pension benefits to the plaintiff, if necessary, the defendants shall pass formal order of reinstatement of the plaintiff in service with continuity of service. Such formal order of reinstatement of the plaintiff shall be only for the purpose of granting pension benefits to the plaintiff. The judgment and decree passed by the Courts below shall stand modified accordingly to the extent stated above. Appeal partly allowed.