Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 315 (GUJ)

STATE OF GUJARAT v. YASMINBEN S. HALANI

2018-01-30

BIREN VAISHNAV, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 10.10.2016 passed in Special Civil Application No. 19817 of 2015, by which, the learned Single Judge has allowed the said Special Civil Application partly and has quashed and set aside the order passed by the State of Gujarat dated 09.11.2015 (Annexure-‘A’ to the petition) and has remitted the matter to the State Government for de novo inquiry in accordance with law and more particularly keeping in mind the observations made in the said order, the original respondent Nos. 1,2 and 3 have preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent. 2. We have heard Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the appellants at length. We have also perused and considered the impugned judgment and order passed by the learned Single Judge. 2.1. At the outset, it is required to be noted that, after holding the Departmental Inquiry, the Disciplinary Authority passed an order dated 09.11.2015 dismissing the writ applicant from services. The aforesaid was the subject matter before the learned Single Judge. 2.2. At this stage it is required to be noted that, the writ applicant was facing criminal prosecution for the offences punishable under the provisions of Corruption Act. At the relevant time, the writ applicant was serving as a Deputy Charity Commissioner at Bhuj. The allegations against the writ applicant was that, he has undertaken inspection of one Shri Gorasiya Education Society on 27.07.2010 and in the course of the Inspection, when the writ applicants noticed various illegalities and irregularities in the functioning of the Trust, she demanded the bribe to cover up the illegalities and irregularities of the trust. That the trust – Society filed the First Information Report with the Anti Corruption Bureau at Bhuj on 06.09.2010, 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 and one another co-accused. The charge sheet was culminated in Special Case No. 3 of 2011 and the same was pending in the Court of Law before the learned Sessions Court. The investigation culminated in filing of the charge sheet against the writ applicant and one another co-accused. The charge sheet was culminated in Special Case No. 3 of 2011 and the same was pending in the Court of Law before the learned Sessions Court. That pending the criminal proceedings, a departmental charge sheet dated 21.07.2014 was served upon the writ applicant containing the charge that the writ applicant had undertaken inspection of Shri Gorasiya Education Society and in the course of inspection, the writ applicant noticed various illegalities and irregularities in the functioning of the trust. It was alleged that, although such illegalities and irregularities were noticed, yet the writ applicant failed to initiate proper 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. That the writ applicant filed detailed statement of defence denying all the allegations. That, thereafter, the Inquiry Officer held the charges to be fully proved. That, thereafter, the writ applicant was served with a Show-cause Notice along with a copy of the Report of the Inquiry Officer and was called upon to show-cause as regards findings recorded by the Inquiry Officer. The writ applicant filed a detailed reply dated 02.02.2015 dealing with the Report of the Inquiry Officer. Thereafter, the State Government being the Disciplinary Authority, after taking into consideration the report of the Inquiry Officer and other materials on record, passed an order dated 09.11.2015 dismissing the writ applicant from services. The order of dismissal was the subject matter before the learned Single Judge. 2.3. It was the case on behalf of the writ applicant before the learned Single Judge that the Inquiry was conducted in a most perfunctory manner and that the principles of natural justice were violated. 2.4. No oral evidence was led in the course of Inquiry, although, the writ applicant insisted to examine the Office Bearers of the Trust. It was also submitted that the Report of the Inquiry Officer is bereft of any reasoning. It was also submitted that no reasons have been assigned by the Inquiry Officer while arriving at the conclusion that the charges are fully proved. It was also submitted that the Report of the Inquiry Officer is bereft of any reasoning. It was also submitted that no reasons have been assigned by the Inquiry Officer while arriving at the conclusion that the charges are fully proved. It was submitted that, mere stating of the facts, the charges, the case put up by the Presenting Officer and the defence of the delinquent was not sufficient. It was submitted that the Inquiry Officer ought to have discussed the evidence and assign the reasons in arriving at a particular conclusion. After making above submissions, it was requested to allow the petition and quash and set aside the order passed by the Disciplinary Authority dismissing the petitioner from service. 3. That, after considering the submissions made by the learned advocates appearing for the respective parties, while observing in paragraph Nos. 19, 20, 23, 24 and 27, the learned Single Judge has reached to the conclusion that the Inquiry was not conducted in a fair and transparent manner. The learned Single Judge also recorded deficiency in the Report of the Inquiry Officer. That thereafter, the learned Single Judge has allowed the said petition in part and has quashed and set aside the order passed by the State Government dated 09.11.2015. However, looking to the serious allegations and the serious charge of misconduct alleged to have been committed by the writ applicant, the learned Single Judge has remitted the matter to the State Government for de novo inquiry in accordance with law and more particularly keeping in mind the observations made by the learned Single Judge in paragraphs, which are as under: “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. 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. xxxxx xxxxx xxxxx xxxx 22. xxxx xxxx xxxx xxxx 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. xxxx xxxx xxxx xxxx 26. xxxx xxxx xxxx xxxx 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.” 4. Considering the aforesaid facts and circumstances of the case and the findings recorded by the learned Single Judge on the aspect of Report of the Inquiry Officer, and thereafter, when the learned Single Judge has quashed and set aside the order or dismissal dated 09.11.2015; however, has remitted the matter to the State Government for de novo Inquiry in accordance with law and more particularly keeping in mind the observations made by the Court reproduced herein above, it cannot be said that the learned Single Judge has committed any error which calls for the interference of this Court. As such, we are in complete agreement with the view taken by the learned Single Judge. It is required to be noted that, as such, the learned Single Judge looking to the serious allegations and serious charge of misconduct has in fact remitted the matter to the State Government for de novo Inquiry, which is absolutely just and proper. In the facts and circumstances of the case, the same does not require any interference of this Court. 5. In view of the above and for the reasons stated above, the present Letters Patent Appeal fails and the same deserves to be dismissed and is accordingly dismissed. The Disciplinary Authority to conclude the de novo Inquiry at the earliest, and within a period of six months from today. At this stage, it is required to be noted that, as such, the impugned judgment and order has been passed on 10.10.2016. Within six months time, the Disciplinary Authority/State Government ought to have concluded the de novo Inquiry and therefore instead of preferring the present Appeal, had the department proceeded with the de novo Inquiry, it would have been over by now. Be that as it may, if the de novo Inquiry is not concluded, the State Government is directed to conclude the de novo Inquiry as ordered by the learned Single Judge within a period of six months from today. Be that as it may, if the de novo Inquiry is not concluded, the State Government is directed to conclude the de novo Inquiry as ordered by the learned Single Judge within a period of six months from today. With this, the present Letters Patent Appeal stands dismissed. In view of dismissal of the present Letters Patent Appeal, the Civil Application No. 8958 of 2017 stands dismissed.