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Gujarat High Court · body

2017 DIGILAW 1053 (GUJ)

State of Gujarat v. P. N. Patel

2017-06-08

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Goutam, learned AGP for the petitioner - State, and Mr. Gohil, learned advocate for the respondent. 2. In present petition, the petitioner - State has prayed, inter alia, that:- "7(b) Your Lordship be pleased to issue an appropriate writ in the nature of writ of mandamus and/or writ of certiorari, and/or any other writ, direction or order for quashing and setting aside the judgment and order passed by the Guj. Civil Services Tribunal at Ahmedabad in Appeal No. 154/2003 dated 29.11.2004 at ANNEXURE-A to this petition." 3. The petitioner - State is aggrieved by the order dated 29.11.2004 passed by the learned Service Tribunal in Appeal No. 154 of 2003 whereby the learned Tribunal set aside the order dated 24.3.2003 passed by the disciplinary authority terminating the service of present respondent. 3.1 The learned Tribunal directed the petitioner - State to reinstate the respondent. The learned Tribunal, while setting aside the penalty (termination from service) modified the penalty and substituted the said penalty with penalty of stoppage of one increment with future/permanent effect. The learned Tribunal also denied backwages to the employee by clarifying that the appellant employee will not be entitled for salary for the period from date of order of termination until date of reinstatement. The learned Tribunal, however, clarified that service of claimant will be treated continuous. Feeling aggrieved by the said direction, the petitioner - State has taken out this petition. 4. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocates and from impugned order that the respondent herein was appointed in 1984 and at the relevant time, he was discharging his duty as Hostel Superintendent. 4.1 The alleged incident occurred in 2000. It appears that the respondent herein was transferred to Surat vide order dated 16.8.2000, he, allegedly did not comply the order and did not hand over the charge. 4.2 According to the details stated in the charge sheet, on 11.12.2000, the respondent had gone to Gondal and at around 6:15 p.m., he tried to assault Principal of ITI College (for short 'institute'). 4.3 It also appears that though his service was transferred, he did not vacate the residential quarter allotted to him. Certain other allegations were also levelled against the respondent herein. 4.3 It also appears that though his service was transferred, he did not vacate the residential quarter allotted to him. Certain other allegations were also levelled against the respondent herein. 4.4 The petitioner seems to have also conducted preliminary inquiry and thereafter, charge sheet was issued whereby five allegations were levelled against the respondent herein. Domestic inquiry was conducted. 4.5 Upon conclusion of the domestic inquiry, the Inquiry Officer submitted his report/findings. The disciplinary authority considered the report of the Inquiry officer. 4.6 The disciplinary authority disagreed with certain findings of the Inquiry Officer i.e. part of the report whereas he accepted other findings recorded by the Inquiry Officer. 4.7 Based on his conclusions, the disciplinary authority reached to the decision that the charge against the delinquent employee are proved and in view of nature of charge and gravity of misconduct, the service of the petitioner should be terminated. Consequently, the disciplinary authority passed order dated 24.3.2003 and dismissed the respondent from service. 4.8 Feeling aggrieved by the order dated 24.3.2003, the respondent herein filed appeal before the learned Tribunal. The appeal was registered as Appeal No. 154 of 2003. 4.9 After adjudicating the appeal and after considering rival submissions and after examining the evidence available on record, the learned Tribunal reached to the conclusion that all charges levelled against the petitioner were not proved and the allegations to only certain extent were proved against the delinquent and that therefore, the punishment imposed by the disciplinary authority was too harsh and excessive and not commensurate with the allegation and charge proved against him. 4.10 Having reached to said conclusion, the learned Tribunal considered it appropriate to direct the petitioner - State to reinstate the respondent. The learned Tribunal, as mentioned above, modified and substituted the penalty of stoppage of one increment with permanent effect. The learned Tribunal also denied backwages for the intervening period. 5. Mr. Goutam, learned AGP for the petitioner - State, vehemently assailed impugned order passed by the learned Tribunal. He submitted that the learned Tribunal lost sight of the principle that in the matter of domestic inquiry, strict proof and evidence are not necessary and the allegations are not required to be proved beyond doubt and that the only requirement is of preponderance of probability. He submitted that the learned Tribunal lost sight of the principle that in the matter of domestic inquiry, strict proof and evidence are not necessary and the allegations are not required to be proved beyond doubt and that the only requirement is of preponderance of probability. He submitted that the respondent had tried to assault the Principal of institute and but for the precaution by the Principal, he would have hit the Principal, however, due to Principal's protective action, the respondent could not actually hit the Principal. He submitted that the learned Tribunal failed to appreciate the gravity of the charge/allegation against the petitioner. He also submitted that the learned Tribunal also committed error in not appreciating the fact that the disciplinary authority is entitled to disagreed with the findings of the Inquiry Officer and that in present case, the disciplinary authority had, after following procedure, disagree with certain findings of Inquiry Officer while agreeing with other findings, however, the learned Tribunal failed to appreciate the said fact and concentrated merely on the findings and report of the Inquiry Officer. He submitted that the order passed by the disciplinary authority is reasoned and speaking order and the disciplinary authority has taken into account evidence available on record, gravity of misconduct and other relevant circumstances as well as facts and that therefore, there was no justification to set aside the order passed by the disciplinary authority. 6. Mr. Gohil, learned advocate for the respondent submitted that the learned Tribunal has carefully examined entire evidence on record and discussed at length, findings recorded by the Inquiry Officer in his report. He also submitted that the disciplinary authority proceeded on the premise that the employee had accepted the report of the Inquiry Officer and that therefore, the penalty was justified, however, on examination of the record and entire material as well as circumstances, the learned Tribunal reached to the conclusion that the inference drawn by the disciplinary authority that the employee had accepted the report of the Inquiry officer was unwarranted inference and the material on record did not support such inference. He submitted that in view of the fact that the disciplinary authority's order is essentially and substantially based on the premise that the employee had accepted the report of the Inquiry Officer, the disciplinary authority's order suffers from vice of non-application of mind, more particularly in view of the fact that neither the respondent had accepted the Inquiry Officer's report nor there was any material on record to justify and support such inference. 7. I have considered submissions by learned AGP and learned advocate for the respondent as well as material available on record. 8. From the material on record, it appears that the disciplinary authority deferred with certain findings recorded by the Inquiry Officer. Learned AGP is, to an extent, justified in his submission that the disciplinary authority is competent to defer with the findings of the Inquiry Officer. However, in such event, the disciplinary authority is obliged to grant opportunity of hearing to the concerned employee and he should record reasons to support and justify his different conclusion. In present case, it is noticed that the disciplinary authority did grant opportunity to the respondent employee to make representation, however, the order reflects that the authority has not recorded reasons and grounds to defer from the findings recorded by the Inquiry Officer and/or reasons in support of his final conclusion i.e. different view. Besides this, the order passed by the disciplinary authority also does not reflect that the disciplinary authority considered the representation/reply by the respondent employee. The order does not reflect reasons in support and justification of his decision to defer with the findings recorded by the Inquiry Officer. Under the circumstances, the decision of the learned Tribunal to take into account findings of the Inquiry Officer cannot be faulted. The order of the disciplinary authority falls short of reasons and justification for his decision to reach to conclusion different from the conclusion/findings recorded by the Inquiry Officer. The order passed by the disciplinary authority also does not reflect comparative analysis and evaluation of the evidence to demonstrate and establish as to how the findings recorded by the Inquiry officer are unjustified or unsustainable. The order by the disciplinary authority also does not reflect the reference of evidence in light of which the disciplinary authority reached to finding different from the Inquiry Officer. The order by the disciplinary authority also does not reflect the reference of evidence in light of which the disciplinary authority reached to finding different from the Inquiry Officer. For such reasons, the decision by the learned Tribunal to take into account the findings recorded by the Inquiry Officer and the Tribunal's decision that the disciplinary authority's order is short of sufficient and cogent reasons, cannot be faulted. The learned Tribunal has found in the report of the Inquiry officer that Inquiry Officer reached to the conclusion though some of the allegations and charge are proved, certain allegations are not proved. The learned Tribunal has also held that the principal allegation against the respondent employee namely, allegation about assault on the Principal of the institute is not proved. The said conclusion by the learned Tribunal is based on findings recorded by the Inquiry Officer as well as appreciation of evidence. Besides this, at the time of hearing of this petition, learned AGP failed to point out any material from record which could convince this Court to hold that the findings and conclusions recorded by the learned Tribunal are unjustified or incorrect or contrary to evidence. Like the Inquiry Officer, the learned Tribunal also held that the employee had failed to hand over the charge of the hostel. The Inquiry Officer as well as learned Tribunal have also reached to the conclusion that the said allegation and charge is proved against the employee. The Inquiry Officer as well as the learned Tribunal also held that the charge of the hostel had to be taken over and that the delinquent had also not immediately complied the order of transfer are proved. Having regard to the fact that the allegation and charge which are proved are not grave to warrant or justify capital punishment i.e. termination from service, the learned Tribunal found it necessary and appropriate to modify and substitute the penalty. 9. On reading the order passed by the learned Tribunal, it clearly comes out that the findings and conclusions by the learned Tribunal are based and supported by evidence available on record of the inquiry. The learned Tribunal has analytically examined the evidence, report and findings by the Inquiry Officer. The findings recorded by the learned Tribunal are supported by sufficient and cogent discussion and reasons. The learned Tribunal has analytically examined the evidence, report and findings by the Inquiry Officer. The findings recorded by the learned Tribunal are supported by sufficient and cogent discussion and reasons. Learned AGP has failed to point out any material from record to establish that the findings and conclusion recorded by the learned Tribunal are perverse or arbitrary. The authority of the learned Tribunal to modify or substitute the penalty when it is found that the penalty imposed by the disciplinary authority is too harsh and excessive and not commensurate with the gravity of allegation and charge, is beyond doubt and cannot be disputed. In present case, the learned Tribunal is justified in its decision to interfere with and to modify/substitute the penalty imposed by the disciplinary authority and this Court finds no reason or justification to take different view from the view taken by the learned Tribunal and to interfere with the learned Tribunal's decision. Even otherwise, this Court would not sit in appeal over the decision of learned Tribunal and this Court would not re-appreciate evidence. The view/decision taken by the learned Tribunal is a plausible and possible view based on material and evidence available on record and therefore, it does not warrant any interference in present proceedings. In the result, the petition fails and it deserves to be rejected and is, accordingly, rejected. Rule is discharged. Interim relief, if any, stands vacated.