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Gujarat High Court · body

2016 DIGILAW 346 (GUJ)

A. S. Pandya v. Addl. Development Commissioner

2016-02-12

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. Both these petitions involve common question and therefore the same are taken up for hearing together. In Special Civil Application No. 3900 of 1995, the petitioner has prayed that the order dated 21.5.1984 passed by the District Development Officer, order dated 31.8.1984 passed by the Additional Development Commissioner, Gandhinagar as well as the order dated 21.2.1986 passed by the Gujarat Civil Services Tribunal in Appeal No. 123 of 1985 be quashed and set aside. In second petition being Special Civil Application No. 3899 of 1995, similar prayer is made for quashing and setting aside the orders passed by the District Development Officer dated 11.6.1984, Additional Development Commissioner dated 1.11.1984 and Gujarat Civil Services Tribunal, Gandhinagar in Appeal No. 122 of 1985 dated 21.2.1986. During the pendency of these petitions, the petitioner has expired and therefore his legal heirs are brought on record. 2. The short facts leading to filing of the present petitions are as under: "2.1 The petitioner joined services as Mantri on 1.12.1957 and after Gujarat Panchayats Act came into force in the year 1961, services of the petitioner was considered as government service and the said post was renamed as Talati-cum-Mantri. In 1974-75, when the petitioner was working at Meghraj, certain criminal complaints were filed against him. In the said criminal cases, the petitioner was acquitted by the competent criminal Court. However, for the same set of facts, departmental inquiry was initiated against the petitioner and respondent-department issued memo of charges to the petitioner. The concerned inquiry officer submitted his report to the disciplinary authority wherein he has held that charges levelled against the petitioner are proved and, therefore, the disciplinary authority relying upon the said report passed an order on 21.5.1984 by which the petitioner came to be dismissed from the service. The said order was challenged before the appellate authority namely Additional Development Commissioner. However, the appeal preferred by the petitioner was dismissed. The petitioner, thereafter, filed Appeal No. 123 of 1985 before the Gujarat Civil Services Tribunal, Gandhinagar. The said appeal was also dismissed by the order dated 21.2.1986. The petitioner has, therefore, challenged the aforesaid orders by filing the petition being Special Civil Application No. 3900 of 1995. However, the appeal preferred by the petitioner was dismissed. The petitioner, thereafter, filed Appeal No. 123 of 1985 before the Gujarat Civil Services Tribunal, Gandhinagar. The said appeal was also dismissed by the order dated 21.2.1986. The petitioner has, therefore, challenged the aforesaid orders by filing the petition being Special Civil Application No. 3900 of 1995. 2.2 On the same set of facts, when the petitioner was working as Talati-cum-Mantri at Kasana during the period between 1972-73, the respondent-department conducted the departmental inquiry against the petitioner and the disciplinary authority passed the dismissal order on 11.6.1984 against the petitioner on the basis of the report submitted by the Inquiry Officer, the said order was also confirmed by the Additional Development Commissioner on 1.11.1984 as well as the Tribunal on 21.2.1986 in Appeal No. 122 of 1985 and, therefore, the said orders are also challenged by the petitioner by filing separate petition being Special Civil Application No. 3899 of 1995." 3. Learned advocate Ms. Mita Panchal appearing for the petitioner in both these petitions mainly contended that though the department has failed to prove the charges levelled against the petitioner, the Inquiry Officer on the basis of the assumptions and presumptions, held that charges levelled against the petitioner are proved. Relying upon such findings given by the Inquiry Officer, the disciplinary authority passed the order of dismissal. Learned advocate referred to the order passed by the Development Commissioner which is produced at Annexure 'B' with the compilation and submitted that in the said order, it has been specifically observed that the amount was deposited by the petitioner after a delay of two to six months. However, during the course of departmental inquiry, no evidence was produced with a view to prove that the petitioner has temporarily misappropriated the alleged amount. In spite of the said findings, on the basis of the assumptions and presumptions, it was held that the petitioner temporarily misappropriated the alleged amount. It is further held that even if temporary misappropriation is not believed, even then, the petitioner has not deposited the amount within reasonable time and thereby he has committed misconduct. 4. Learned advocate Ms. In spite of the said findings, on the basis of the assumptions and presumptions, it was held that the petitioner temporarily misappropriated the alleged amount. It is further held that even if temporary misappropriation is not believed, even then, the petitioner has not deposited the amount within reasonable time and thereby he has committed misconduct. 4. Learned advocate Ms. Panchal thereafter submitted that in the said order, it has been further observed by the Additional Development Commissioner that certain entries were rectified in certain receipts, however, department has not produced any evidence with a view to prove that the said correction was made by the petitioner. In spite of such findings recorded by the Inquiry Officer, he has presumed that the record was in the possession of the petitioner and therefore he must have corrected the entries. Thus, on the basis of such conjectures and surmises, the petitioner was held guilty and therefore the impugned orders are required to be quashed and set aside. 5. Learned advocate Ms. Panchal thereafter contended that criminal proceedings were initiated against the petitioner for the alleged temporary misappropriation of the amount. However, the competent criminal Court has acquitted the petitioner as prosecution has failed to prove the charges levelled against him. On the same set of facts and on the basis of the same evidence, the departmental inquiry was initiated against the petitioner which is not permissible in view of the decision rendered by the Hon'ble Supreme Court. She, therefore, submitted that on this ground also, the impugned orders be quashed and set aside. 6. Learned advocate for the petitioner alternatively submitted that even assuming without admitting that department has proved that certain amount was not deposited by the petitioner within reasonable time after receiving the same from the concerned person, even then, as per the observation made in the order passed by the Additional Development Commissioner, the petitioner has committed misconduct and temporary misappropriation is not believed. Therefore, the punishment imposed by the disciplinary authority i.e. dismissal of the petitioner from service is shockingly disproportionate to the charges levelled against him/proved against him and, therefore, the order of punishment be quashed and set aside. In support of the aforesaid contentions, learned advocate Ms. Panchal appearing for the petitioner has placed reliance upon the following decisions: "1. G.M. Tank v. State of Gujarat and others, reported in 2006(5) SCC 446 2. In support of the aforesaid contentions, learned advocate Ms. Panchal appearing for the petitioner has placed reliance upon the following decisions: "1. G.M. Tank v. State of Gujarat and others, reported in 2006(5) SCC 446 2. Roop Singh Negi v. Punjab National Bank and Others, reported in 2009(2) SCC 570 3. H.L. Gulati v. Union of India and others, reported in 2015(4) Scale 353." 7. On the other hand, learned advocate Mr. Manish Patel appearing for the respondent No. 2 submitted that the order of dismissal was passed in the year 1984. Thereafter, the petitioner preferred the petition before this Court in 1989 against the order of Tribunal which was passed in the year 1986. However, the said petition was withdrawn with a view to file fresh petition in December, 1991 and thereafter the present petition is filed in the year 1995 and, therefore, there was a delay in filing the present petition. Therefore, the petitioner is not entitled to claim any relief. 8. It is further contended by learned advocate for the respondent that there are concurrent findings of facts recorded by the authorities as well as the Tribunal against the petitioner and, therefore, this Court may not exercise the jurisdiction vested in it under Articles 226 and 227 of the Constitution of India and these petitions be dismissed. Learned advocate further submitted that it is true that the petitioner has been acquitted by the criminal Court, however, the respondent can initiate the departmental proceedings against the petitioner for the misconduct committed by him during the course of his service and, therefore, the department initiated the departmental proceedings against the petitioner. The charges levelled against the petitioner were proved during the course of such inquiry and, therefore, in the facts and circumstances of the case, when the disciplinary authority has passed order of dismissal which has been confirmed by the appellate authority as well as the Tribunal, this Court may not interfere with the same. 9. Learned advocate Mr. Patel thereafter submitted that punishment imposed by the disciplinary authority cannot be said to be shockingly disproportionate to the charges levelled against the petitioner in the facts and circumstances of the present case and, therefore also on this ground, the said order may not be interfered with. 10. Learned AGP Mr. Oza has supported the submissions canvassed on behalf of learned advocate Mr. Patel appearing for respondent No. 2. 11. 10. Learned AGP Mr. Oza has supported the submissions canvassed on behalf of learned advocate Mr. Patel appearing for respondent No. 2. 11. I have considered the submissions canvassed on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record and the decisions relied upon by learned advocate for the petitioner. 12. From the record, it has emerged that the department issued the charge sheet to the petitioner on 29.10.1982. In the said chargesheet, mainly it has been alleged that when the petitioner was working as Talati-cum-Mantri at Meghraj, it was his duty to deposit the amount on the next date in the treasury if the amount is more than Rs. 200/-. He had not deposited the said amount within the stipulated time and there was a delay of 2 to 6 months in depositing the said amount in the treasury and thereby the petitioner has temporary misappropriated the amount. It is further alleged in the chargesheet that in the receipts, certain corrections were made and thereby the petitioner has unauthorizedly corrected the record. In connection with the aforesaid chargesheet issued to the petitioner, departmental inquiry was conducted against him. The Inquiry Officer submitted his report on 27.6.1983. In the said report, the Inquiry Officer held that the charges levelled against the petitioner were proved. Therefore, second show cause notice was issued by the disciplinary authority to the petitioner on 3.9.1983 and thereafter by the impugned order dated 27.5.1984, the petitioner was dismissed from service. As observed hereinabove, against the said order, appeal was preferred before the Additional Development Commissioner and after rejection of the appeal by the Additional Development Commissioner, the appeal was preferred before the Tribunal which was also dismissed. It is also revealed from the record that before the departmental inquiry was initiated against the petitioner, criminal cases were filed against the petitioner for the same incident and for the same charges. However, by an order dated 31.7.1981, the petitioner was acquitted for the alleged offences punishable under Section 409 of the I.P.C. While acquitting the petitioner, the concerned Magistrate observed that the prosecution has failed to prove the case against the petitioner by producing any oral as well as documentary evidence. 13. However, by an order dated 31.7.1981, the petitioner was acquitted for the alleged offences punishable under Section 409 of the I.P.C. While acquitting the petitioner, the concerned Magistrate observed that the prosecution has failed to prove the case against the petitioner by producing any oral as well as documentary evidence. 13. Thus, after the order of acquittal was passed by learned J.M.F.C. in July, 1981 for the incident of 1974-75 and for the incident of 1971-72 for the same allegations and on the basis of the same set of facts, the department issued the chargesheet in October, 1982 i.e. after a period of more than seven to nine years from the date of alleged incident. It is further clear from the observation made by the Additional Development Commissioner in the order dated 31.8.1984 passed by him that the Inquiry Officer has observed in his report that during the course of the departmental inquiry also, the department has failed to prove the charge of temporary misappropriation against the petitioner. However, the Inquiry Officer has presumed that when the petitioner had not deposited the amount received by him within stipulated time limit, he must have temporarily misappropriated the said amount. It is also revealed from the record that the Additional Development Commissioner has further observed that even if it is believed that the petitioner has not temporarily misappropriated the alleged amount, even then, when he has not deposited the amount within stipulated time limit, he has committed misconduct. At this stage, it is relevant to be noted that there was no charge of misconduct committed by the petitioner in the chargesheet filed against him. In the chargesheet, it was alleged that the petitioner has temporarily misappropriated the amount. 14. So far as the second charge is concerned, there also Additional Development Commissioner has observed that in the inquiry report, Inquiry Officer has observed that the department has failed to prove that the petitioner has made certain corrections in the receipts. However, in spite of such observation, the finding was given by the Inquiry Officer that the record was in the custody of the petitioner and, therefore, he must have corrected certain entries in the receipts. 15. However, in spite of such observation, the finding was given by the Inquiry Officer that the record was in the custody of the petitioner and, therefore, he must have corrected certain entries in the receipts. 15. Thus, from the discussion made hereinabove, it is crystal clear that though the department has failed to prove the charges against the petitioner, on the basis of the presumptions and assumptions and on the basis of the conjectures and surmises, it was presumed that the petitioner has temporarily misappropriated the amount and committed misconduct. Similarly, it was also wrongly presumed that the record was in the custody of the petitioner and, therefore, he must have corrected the said record. Therefore, the question which is required to be considered in these facts and circumstances of the case is that if the inquiry report is passed on the conjectures and surmises, can it be sustained? If not, whether the order of penalty passed on the basis of such report, can be sustained or not? 16. With a view to decide the aforesaid issue, the decision relied upon by learned advocate for the petitioner is required to be considered. In the case of Roopsingh Nege (supra), the Hon'ble Supreme Court observed in paragraph 23 as under: "23 Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however, high may be, can under no circumstances be held to be a substitute for legal proof." 17. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however, high may be, can under no circumstances be held to be a substitute for legal proof." 17. Keeping in mind the aforesaid decision rendered by the Hon'ble Supreme Court, can it be said that when the report of the Inquiry Officer was passed on merely ipse dixit as also surmises, conjectures, same could not have been sustained. The inferences drawn by the Inquiry Officer apparently were not supported by any evidence. The said fact is clear from the record. Therefore, such suspicion, as is well known, however may be, can under no circumstances be held to be a substitute for legal proof. Thus, in the facts of the present case, this Court is of the opinion that when it is clear from the observation made by the Additional Development Commissioner in the impugned order, that the Inquiry Officer has specifically observed that the department has failed to prove the charge of temporary misappropriation against the petitioner and department has also failed to prove the charge against the petitioner that he himself has corrected certain entries in the receipts. On the basis of the conjectures, surmises, presumptions and assumptions, it was believed that the charges levelled against the petitioner are proved. Thus, such report cannot be sustained. Therefore, the order of punishment passed on the basis of such presumptions and assumptions also cannot be sustained and therefore all the impugned orders are required to be quashed and set aside on this ground. 18. Similarly, as observed hereinabove, the incident is for the year 1971-72 and 1974-75 for which prosecution was lodged against the petitioner before the criminal Court in July, 1981 and the criminal Court acquitted the petitioner and thereafter in October, 1982, chargesheet was issued to the petitioner on the basis of the same set of facts. Therefore, the question which is required to be considered by this Court is when the delinquent is acquitted by the criminal Court on the said set of facts, whether department can initiate the departmental inquiry on the basis of the same evidence or not. For considering this issue, this Court has to consider the decision rendered by the Hon'ble Supreme Court in the case of G.M. Tank (supra), the Hon'ble Supreme Court has observed in paragraphs 20,30 and 31 as under: "20. For considering this issue, this Court has to consider the decision rendered by the Hon'ble Supreme Court in the case of G.M. Tank (supra), the Hon'ble Supreme Court has observed in paragraphs 20,30 and 31 as under: "20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." 19. Keeping in mind the aforesaid decision, if the facts of the present case are seen, it can be said that the charges levelled against the petitioner in the criminal proceedings as well as in the departmental proceedings are similar and the department has relied upon the same evidence. Keeping in mind the aforesaid decision, if the facts of the present case are seen, it can be said that the charges levelled against the petitioner in the criminal proceedings as well as in the departmental proceedings are similar and the department has relied upon the same evidence. Thus, when the petitioner has been acquitted by the competent criminal Court, the initiation of the departmental inquiry thereafter against the petitioner was not permissible and therefore also, the impugned orders passed by the disciplinary authority as well as the appellate authority and the Tribunal are required to be quashed and set aside. 20. In view of the aforesaid discussion, both the petitions are allowed. The impugned orders dated 21.5.1984 passed by the District Development Officer, dated 31.8.1984 passed by the Additional Development Commissioner, Gandhinagar and dated 21.2.1986 passed by the Gujarat Civil Services Tribunal in Appeal No. 123 of 1985 be quashed and set aside. In second petition being Special Civil Application No. 3899 of 1995, the orders passed by the District Development Officer dated 11.6.1984, Additional Development Commissioner dated 1.11.1984 and Gujarat Civil Services Tribunal, Gandhinagar in Appeal No. 122 of 1985 dated 21.2.1986 are quashed and set aside. As the petitioner has expired, there is no question of passing the order of reinstatement. However, legal heirs of the petitioner are entitled to get all the consequential benefits. Accordingly, the respondents are directed to give all the consequential benefits to the legal heirs of the petitioner within a period of four months from the date of receipt of the order. Rule is made absolute. No order as to costs.