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Gujarat High Court · body

2016 DIGILAW 2117 (GUJ)

Yasminben S. Halani v. State of Gujarat

2016-10-10

J.B.PARDIWALA

body2016
JUDGMENT : J.B. PARDIWALA, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a dismissed ‘Deputy Charity Commissioner’ has prayed for the following reliefs: “9 A. Your Lordship be please to admit the present petition. B. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus to quash and set aside the order dated 9th November 2015 being order No. KHTAPA/ECO/102010/43/1104.E passed by the respondent No. 2 dismissing the present petitioner from the service and to reinstate the petitioner in service along with all the consequential benefits. C. Your Lordships be please to declare and hold that the enquiry held against the present petitioner is illegal arbitrary and to quash and set aside the enquiry report with suffers serious illegality. D. Pending hearing and final disposal of the present petition the order dated 9th November 2015 being order no. KHTAPA/ECO/102010/43/1104.E passed by the respondent No. 2 be stayed till the matter has finally decided. E. Your Lordship be please to pass such other and further orders as necessary as may Lords deems fit in the interest of justice.” 2. It appears from the materials on record that while the writ applicant was serving as the ‘Deputy Charity Commissioner’ at Bhuj, a departmental charge-sheet dated 21st July 2014 was served upon her containing the charge that the writ applicant had undertaken inspection of Shri. Gorasia Education Society situated at Haripar, Bhuj, on 27th July 2010 and in the course of the inspection, the writ applicant noticed various illegalities and irregularities in the functioning of the Trust. Although such illegalities and irregularities were noticed, yet the writ applicant failed to initiate appropriate proceedings in that regard against the Society in accordance with law. On the contrary as alleged, the writ applicant gave certain suggestions to the Society so that the illegalities and irregularities could be covered up. 3. The writ applicant filed her detailed statement of defence dated 2nd August 2014 denying all the allegations. 4. One Shri U.C. Rane was appointed as the Inquiry Officer for the purpose of conducting the departmental inquiry. The Inquiry Officer vide his report dated 15th December 2014 held the charges to be fully proved. 5. 3. The writ applicant filed her detailed statement of defence dated 2nd August 2014 denying all the allegations. 4. One Shri U.C. Rane was appointed as the Inquiry Officer for the purpose of conducting the departmental inquiry. The Inquiry Officer vide his report dated 15th December 2014 held the charges to be fully proved. 5. The writ applicant was served with a show cause along with a copy of the report of the Inquiry Officer and was called upon to show cause as regards the findings recorded by the Inquiry Officer. The writ applicant filed a detailed reply dated 2nd February 2015 dealing with the report of the Inquiry Officer. 6. Finally, the State Government being the disciplinary authority, after taking into consideration the report of the Inquiry Officer and the other materials on record, passed an order dated 9th November 2015 dismissing the writ applicant from service. 7. It appears that the writ applicant is also facing a criminal prosecution for the offence punishable under the Prevention of Corruption Act. The Society filed a First Information Report at the A.C.B. Police Station, Bhuj on 6th September 2010, which came to be registered as C.R. No. 6 of 2010. The investigation culminated in filing of the charge-sheet against the writ applicant herein and one another co-accused. The charge-sheet culminated in the Special Case No. 3 of 2011. The trial, as on date, is pending in the Court of the 2nd Additional Sessions Judge, Bhuj. 8. Being dissatisfied, the writ applicant has come up with this writ application. 9. Mr. Vishal T. Patel, the learned counsel appearing for the writ applicant vehemently submitted that the State Government committed a serious error in passing the impugned order dismissing his client from service. 10. Mr. Patel submitted that at the fag end of the career of his client, the departmental inquiry was initiated which resulted in the penalty of dismissal from service. The writ applicant had only seven months left before attaining the superannuation. He submitted that the inquiry was conducted in a most perfunctory manner. The principles of natural justice were violated. No oral evidence was led in the course of the inquiry although the writ applicant insisted to examine the Office Bearers of the Trust. 11. Mr. Patel submitted that the report of the Inquiry Officer is bereft of any reasoning. He submitted that the inquiry was conducted in a most perfunctory manner. The principles of natural justice were violated. No oral evidence was led in the course of the inquiry although the writ applicant insisted to examine the Office Bearers of the Trust. 11. Mr. Patel submitted that the report of the Inquiry Officer is bereft of any reasoning. No reasons have been assigned by the Inquiry Officer while arriving at the conclusion that the charges are fully proved. According to Mr. Patel, mere stating of the facts, the charge, the case put up by the Presenting Officer and the defence of the delinquent is not sufficient. The Inquiry Officer must discuss the evidence and assign reasons in arriving at a particular conclusion. 12. Mr. Patel submitted that although the three Office Bearers of the Trust were cited as witnesses in the charge-sheet, yet none of those were examined by the department. If they would have been examined by the department, then the delinquent could have cross-examined those witnesses to establish her innocence. The failure on the part of the Inquiry Officer in not summoning those witnesses has caused serious prejudice to the writ applicant. Mr. Patel submitted that all these aspects were pointed out to the State Government vide reply to the show cause notice, but the same was not taken into consideration. Mr. Patel would submit that the order passed by the State Government is not supported by any reason. The order imposing the penalty of dismissal from service has a severe civil consequences, and therefore, appropriate reasons should have been assigned. 13. Mr. Patel has placed reliance on the following decisions of the Supreme Court: (1) Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 (2) Hardwari Lal v. State of U.P. (1999) 8 SCC 582 (3) Ananda Bazar Patrika (P) Ltd. v. Employees, AIR 1964 SC 339 14. In such circumstances referred to above, Mr. Patel prays that there being merit in this writ application, the same be allowed and the impugned order be quashed. 15. On the other hand, this writ application has been vehemently opposed by Mr. Utkarsh Sharma, the learned Assistant Government Pleader appearing for the State of Gujarat. In such circumstances referred to above, Mr. Patel prays that there being merit in this writ application, the same be allowed and the impugned order be quashed. 15. On the other hand, this writ application has been vehemently opposed by Mr. Utkarsh Sharma, the learned Assistant Government Pleader appearing for the State of Gujarat. The learned A.G.P. would submit that no error, not to speak of any error of law could be said to have been committed by the State Government in passing the impugned order of dismissal from service. According to the learned A.G.P. the Inquiry Officer held the charges to be fully proved and relying on the report of the Inquiry Officer and the other materials on record, the State Government took the decision to dismiss the writ applicant from service. It is submitted that the writ applicant was holding an important post of the ‘Deputy Charity Commissioner’ and was expected to discharge her duties with utmost integrity, honesty, devotion and diligence. However, the writ applicant acted in a manner unbecoming of a government servant. The learned A.G.P. submitted that the charges in a departmental inquiry are to be proved on the principle of ‘preponderance of probability’ and not by insisting proof beyond reasonable doubt. 16. In such circumstances referred to above, the learned A.G.P. submitted that there being no merit in this writ application, the same may be rejected. 17. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to any of the reliefs prayed for in this writ application. 18. It is a settled law that the Court should not go into the sufficiency or insufficiency of the evidence or the reliability of the evidence in a case arising from a departmental inquiry. It is equally well-settled that if there is some legal evidence on record, on the basis of which, the authority has reached to a conclusion, the same should not be disturbed, but at the same time, the Court should also not overlook any basic or fundamental infirmity in the conduct of the departmental inquiry going to the root of the matter which could have said to have caused a serious prejudice to the delinquent. 19. 19. Although the charge in a departmental inquiry has got to be proved on the principle of ‘preponderance of probability’ and not by insisting the proof beyond reasonable doubt, yet while applying such principle of ‘preponderance of probability’, the same should not be on the basis of conjectures or surmises. Mere suspension, by itself, is not sufficient to say that the charge is proved. This principle, which is otherwise applicable to a criminal prosecution, equally applies in the case of departmental inquiries. 20. I find lot of substance in the submission of the learned counsel appearing for the writ applicant that the inquiry report submitted by the Inquiry Officer only contained the charge, the case put up by the Presenting Officer and the defence of the delinquent. Having perused the entire inquiry report, I do not find any discussion of the evidence on the basis of which it could be said that the charge is proved. The minimum expectation is that the report must be a reasoned one. The report of the Inquiry Officer is bereft of any reason. 21. In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of Anil Kumar v. Presiding Officer, (1985) 3 SCC 378 . The observations of the Court in paras-5 and 6 are relevant. Those are elicited as under: “5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses. he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. it cannot be an ipse dixit of the enquiry officer. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. it cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported a precedent in Madhya Pradesh Industries Ltd. v. Union of India this Court observed that a Speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar v. State of U.P, this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court. 6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.” 22. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.” 22. I may also quote with profit a decision of this Court in this regard in the case of State of Gujarat v. U.D. Khatri, 2013 (2) GLR 1634 . The learned Single Judge observed in para-15 as under: “When the Inquiry Officer submits his report, it should contain & reflect Inquiry Officer's own & independent findings & conclusions and such findings must be based on material/documents, statements etc. placed before him by the delinquent & the Presenting Officer. 22.1 Therefore, the report should reflect analysis and evaluation of evidence on the record, by the Inquiry Officer. Such evaluation & appreciation of evidence should be evident from the discussion in the report. 22.2 Absence of such discussion & evaluation of evidence would mean non-application of mind & casual or mechanical approach by the Inquiry Officer. This also is fatal for any inquiry proceedings. 22.3 When the material on record and the report of Inquiry Officer are examined in juxtaposition with the observations by the learned Tribunal, it emerges that the observations by the learned Tribunal are not incorrect or baseless or perverse or contrary to material available on record before the learned Tribunal. The discussion by learned Tribunal is based on the material on record placed before the learned Tribunal. 22.4 It is pertinent to note that even during the hearing of present petition, the petitioner State could not assail the conclusion of the learned Tribunal that the material gathered during the inquiry i.e. statements which were recorded and the documents or other material which were collected during preliminary inquiry, was not supplied to the respondent, and they were also not made part of the charge-sheet and the petitioner State is also not able to assail the conclusion by the learned Tribunal that the proceedings are infected by breach of principles of natural justice & fair play & the inquiry officer failed to analyse & appreciate evidence and the petitioner State also could not show anything from material on record that the findings by learned Tribunal are incorrect or contrary to record & contrary to evidence, then it cannot be said that the learned Tribunal committed any error in passing the order. 22.5 The State is also not able to demonstrate that the material collected & statements recorded during preliminary inquiry was supplied to the respondent i.e. the delinquent or that the said material was not at all relied by the Inquiry Officer in reaching the final conclusions. 22.6 In this view of the matter, it follows that the learned Tribunal has not erred in holding that the inquiry proceedings and the report of the Inquiry Officer are defective inasmuch as the report is based on such material, which was not supplied to the delinquent and which did not form part of the documentary evidence of the inquiry. 22.7 In present case the learned Tribunal has found such fatal irregularities & defects in the proceedings and in the report by the Inquiry Officer. It is not in dispute in present case that the said irregularities caused prejudice to the respondent & his defence.” 23. I fail to understand why the three witnesses cited in the charge-sheet were dropped and not examined. I am referring to the three Office Bearers of the Society cited as the witnesses. 24. Let me make myself very clear that here is a case in which the Society itself has levelled serious allegations of corruption against the writ applicant. It is on account of the F.I.R. lodged by the Society that the writ applicant is facing the criminal prosecution as on date for the offence under the Prevention of Corruption Act, 1988. I also take notice of the fact that the Inquiry Officer took cognizance of the letter dated 28th August 2010 of the Trust containing the allegations against the writ applicant. The contents of the letter dated 28th August 2010 of the Trust relied upon could have been proved by examining the witnesses referred to in the charge-sheet. No witness was examined to prove the contents of the said letter. It is settled law that even in a departmental inquiry, mere production of the document is not enough. The contents of the documentary evidence has to be proved by examining the witnesses. 25. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Roop Singh Negi (supra), wherein the Supreme Court ruled as under: “14 Indisputably, a departmental proceeding is a quasi judicial proceeding The Enquiry Officer performs a quasi judicial function. 25. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Roop Singh Negi (supra), wherein the Supreme Court ruled as under: “14 Indisputably, a departmental proceeding is a quasi judicial proceeding The Enquiry Officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter-alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.” 26. So far as the refusal on the part of the Inquiry Officer in not examining the three Office Bearers cited as witnesses in the departmental charge-sheet is concerned, I may refer to and rely upon the observations of the Supreme Court in the case of Ananda Bazar Patrika (supra) as under: “11… There can be no doubt that at the domestic enquiry it is competent to the enquiry officer to refuse to examine a witness if he bona fide comes to the conclusion that the said witness would be irrelevant or immaterial. If the refusal to examine such a witness, or to allow other evidence to be led appears to be the result of the desire on the part of the enquiry officer to deprive the person charged of an opportunity to establish his innocence, that of course, would be a very serious matter…” 27. In the overall view of the matter, I have reached to the conclusion that the inquiry was not conducted in a fair and transparent manner. I have also indicated the deficiencies in the report of the Inquiry Officer. I also find substance in the submission of Mr. Patel that the impugned order should have contained some reasons. The Supreme Court in Roop Singh Negi (supra) has observed in clear terms that the order of the disciplinary as also the appellate authority should be supported by reasons. I also find substance in the submission of Mr. Patel that the impugned order should have contained some reasons. The Supreme Court in Roop Singh Negi (supra) has observed in clear terms that the order of the disciplinary as also the appellate authority should be supported by reasons. The Supreme Court observed that if the order entails civil consequences, an appropriate reason is a must. 28. In Mani Shankar v. Union of India, (2008) 3 SCC 484 , the Supreme Court held: “17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden, of proof, namely-preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.” 29. In M.V. Bijlani v. Union of India, (2006) 5 SCC 88 , the Supreme Court held: “25…. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e. beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 30. For the foregoing reasons, this writ application succeeds and is hereby partly allowed. The impugned order passed by the State Government dated 9th November 2015, at Annexure: ‘A’ to this writ application, is hereby quashed and set aside. The matter is remitted to the State Government for a de novo inquiry in accordance with law, and more particularly, keeping in mind the observations made by this Court. 31. The writ applicant has already crossed the age of superannuation, and therefore, there is no question of reinstatement in service at this stage. The outcome of the de novo inquiry and the consequential order, that would be passed, including the outcome of the criminal prosecution, shall govern the rights of the writ applicant as regards her terminal benefits. FURTHER ORDER 32. The de novo inquiry, as directed by this Court, shall be undertaken at the earliest and completed within a period of six months from the date of receipt of this order.