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2019 DIGILAW 900 (GUJ)

Dilipbhai H. Mehta v. State of Gujarat

2019-10-14

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. The present writ petition has been filed seeking quashing and setting aside the decision/order of the respondents dated 30th October, 2006, dismissing the petitioner from the service. The petitioner has also prayed for quashing and setting aside the order dated 13th November, 2006. 2. During the pendency of this petition, by the interim order dated 10th April, 2007, this Court had directed the respondent authorities to pay the retirement benefits including the pensionary benefits to the petitioner, which are available to the petitioner as per the service condition. 3. The aforesaid interim order was challenged by the respondent-State before the Division Bench by filing Letters Patent Appeal No. 1582 of 2007. By the judgment and order dated 28th January, 2008, this Court has set aside the order dated 10th April, 2007, by which the respondent authorities were directed to pay the retirement benefits to the petitioner. 4. Learned advocate Mr. M.H. Sonar appearing for the petitioner has submitted that the impugned order dismissing the petitioner from the services on the date of retirement is illegal. He has submitted that the petitioner was due to retire on 30th October, 2006 and the impugned order was passed on the same day. 5. It is further submitted that prior to the aforesaid order, vide order dated 26th October, 2006, the petitioner was ordered to retire from the services and hence the subsequent order dated 30th October, 2006 dismissing the present petitioner from the services, is illegal. 6. Learned advocate Mr. Sonar has submitted for the same incident the petitioner was prosecuted in criminal case being Special ACB Case No. 10 of 1996 and he was acquitted by the trial court vide judgment and order dated 26th February, 2010 and hence, the respondent authorities should have reviewed the case of dismissal of the petition. 7. In this regard, learned advocate for the petitioner has placed reliance on the judgment in the case of S. Bhaskar Reddy Versus Superintendent of Police, reported in 2015(2) SCC 365 and has submitted that considering the long services of the petitioner of 27 years, the Disciplinary Authority may be directed to impose lesser punishment, so that he may not be deprived of any retirement benefits. No other submission has been made by the learned advocate for the petitioner. 8. Per contra learned Assistant Government Pleader Mr. No other submission has been made by the learned advocate for the petitioner. 8. Per contra learned Assistant Government Pleader Mr. Joshi has submitted that the acquittal of the petitioner was not honourable since the witnesses have turned hostile and hence, the judgment of the Supreme Court in the case of S. Bhaskar Reddy (supra) does not apply to the case of the petitioner. 9. He has submitted that prior to his acquittal, the petitioner was subjected to departmental proceedings and after holding the same, the charge against the petitioner was proved and hence, he was dismissed from the services on 30th October, 2006. 10. Learned Assistant Government Pleader Mr. Joshi has submitted that in fact, the petitioner did not respond to the show-cause notice issued to him after the completion of inquiry and prolonged the same till his date of retirement on the protest of the pendency of the criminal case. Hence, the authorities were left with no other option but to dismiss the petitioner from the services on the date of retirement. It is further submitted that there is no bar provided in the statutory rules to impose the punishment on the date of retirement. 11. Learned Assistant Government Pleader Mr. Joshi has submitted that the petitioner has not challenged the departmental proceedings. It is submitted that since the petitioner has not alleged any violation of statutory rules being the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, under which the departmental proceedings were held, the impugned order of penalty cannot be interfered with. 12. Learned Assistant Government Pleader Mr. Joshi has placed reliance on the recent decision of the Supreme Court for the identical issue. Vide judgment and order dated 1st August, 2019 passed in Civil Appeal No. 7130 of 2019 in the case of Sashi Bhusan Prasad Versus Inspector General, Central Industrial Security Force & Ors., the Supreme Court has held that there is no bar in conducting the departmental proceedings parallel to the criminal case and both the proceedings have no nexus with each other. Thus, he has submitted that the impugned order may not be disturbed. 13. The facts, which are not in dispute are that the petitioner was issued charge-sheet dated 11th September, 2003 for violation of Rules 3(i) and 3(ii) of the Gujarat Civil Services (Conduct) Rules, 1971 since he was involved in corruption. Thus, he has submitted that the impugned order may not be disturbed. 13. The facts, which are not in dispute are that the petitioner was issued charge-sheet dated 11th September, 2003 for violation of Rules 3(i) and 3(ii) of the Gujarat Civil Services (Conduct) Rules, 1971 since he was involved in corruption. A perusal of the charge sheet reveals that it is specifically mentioned that the petitioner has violated the conditions incorporated in the appointment order and has misused his position as an Medical Officer. The aforesaid charge sheet also reveals that the petitioner has taken bribe of Rs. 40/- for issuance of the medical certificate and has committed the crime. 14. After holding a regular departmental inquiry under the Discipline and Appeal Rules, 1971, the Inquiry Officer submitted a detailed report dated 17th December, 2005, holding the charge proved against the petitioner. Accordingly, a show cause notice was issued on 28th February, 2006 to the petitioner calling upon him as to why any of the penalty specified under the Rules, 1971 should not be imposed upon him. Accordingly, the petitioner has made a representation dated 12th March, 2006 and requested the State Authority not to take any final decision till the judgment of the Special Court is delivered. Again, the same request was made on 20th March, 2006. Vide communication dated 15th June, 2006, the State Authority again asked the petitioner to tender his explanation within ten days. 15. It is pertinent to note that on 1st July, 2006, the petitioner asked the State Authority to give him one month time to file appropriate reply. Thus, the petitioner whiled away his time from 20th February, 2006 till the date of his superannuation i.e. on 30th October, 2006. Thus, the Disciplinary Authority was not left with any no other option but to pass the order of dismissal since the petitioner was retiring on that day. Hence, such action of the disciplinary authority cannot be endorsed as illegal. 16. Learned advocate for the petitioner has emphasized on the acquittal granted vide judgment and order dated 26th February, 2006 passed in Special ACB Case No. 10 of 1996 by the District and Sessions Judge, Surat in support of his submission. 17. Hence, such action of the disciplinary authority cannot be endorsed as illegal. 16. Learned advocate for the petitioner has emphasized on the acquittal granted vide judgment and order dated 26th February, 2006 passed in Special ACB Case No. 10 of 1996 by the District and Sessions Judge, Surat in support of his submission. 17. This Court has perused the judgment acquitting the petitioner, which would reveal that the petitioner has been acquitted since the witnesses have turned hostile and the acquittal is not an honourable acquittal. In the case of S. Bhaskar Reddy (supra), the Supreme Court, while examining the case of an employee who was honorably acquitted has altered the punishment from dismissal to compulsory retirement because of such acquittal. Such advantage cannot be conferred on the petitioner since the acquittal of the petitioner is not an honourable. 18. In the recent judgment of the Supreme Court in the case of Sashi Bhusan Prasad Versus Inspector General, Central Industrial Security Force & Ors. passed in Civil Appeal No. 713 of 2019, while examining an analogous issue, has observed thus; 21. It may not be of assistance to the appellant in the instant case for the reason that the charge levelled against the appellant in the criminal case and departmental proceedings of which detailed reference has been made were on different sets of facts and evidence having no nexus/co-relationship. The kind of criminal act/delinquency which he had committed in discharge of his duties in the course of employment. That apart, much before the judgment of the criminal case could be pronounced, the departmental enquiry was concluded and after the Inquiry Officer had held him guilty, he was punished with the penalty of dismissal from service. 22. The judgment in G.M. Tank case (supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. 22. The judgment in G.M. Tank case (supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/co-relationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service. 23. It is not the case of the appellant that any error committed in the procedure prescribed under the scheme of Rules 1969 has been violated or opportunity to hearing has not been afforded or the principles of natural justice has been violated, in absence thereof, it is otherwise not open for the Courts to interfere in the disciplinary proceedings under its limited scope of review under Articles 226 & 227 of the Constitution of India. 19. The Supreme Court has observed that both the proceedings of criminal case and the departmental inquiry are based on different set of facts and the evidence has no nexus/co-relationship. The Apex Court has refused to interfere with the punishment since the departmental inquiry was concluded before the judgment of the criminal case. In the present case also the order of dismissal is passed before the judgment of acquittal. 20. The Supreme Court has finally held that the delinquent had not alleged any error in the procedure prescribed under the scheme of Rules 1969 or the opportunity of hearing has not been afforded or the principles of natural justice has been violated. It is held that in absence thereof, it is otherwise not open for the Courts to interfere in the disciplinary proceedings under its limited scope of review under Articles 226 and 227 of the Constitution of India. Similar view has been taken in the following judgments. 21. It is held that in absence thereof, it is otherwise not open for the Courts to interfere in the disciplinary proceedings under its limited scope of review under Articles 226 and 227 of the Constitution of India. Similar view has been taken in the following judgments. 21. At this stage, I may with profit extract the observations of the Apex Court in the case of State of Uttar Pradesh and Anr. Vs. Man Mohan Nath Sinha and Anr. 2009 (8) SCC 310 , wherein the Apex Court has observed thus:- "The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own occlusions. In the instance case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers fresh consideration by the High Court in accordance with law. On this short ground, we sent the matter back to the High Court." 22. The Apex Court in the case of State of Andhra Pradesh Vs. S. Sree Rama Rao, AIR 1963 SC 1723 has observed thus:- "There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art, 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: iris concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the 34 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution. In our Judgment the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice. The conclusions of the departmental 37 officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case," nor on the ground that the High Court would have on that evidence come to a different conclusion. The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him. The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court." 23. In the present case also, the impugned order of dismissal is not being challenged on the ground that the procedure prescribed under the Gujarat Civil Services Rules, 1971 is violated. In fact the petitioner has not challenged the disciplinary proceedings or the findings of the inquiry officer or his report. Thus, in absence of such contentions or averments it will not apposite to interfere with the disciplinary proceedings while exercising the limited scope of review conferred to his Court under Articles 226 and 227 of the Constitution of India. 24. In the present case, the charge-sheet has been issued for the violation of provisions of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, more particularly Rule 3 thereof. 25. It will be apposite to refer the relevant rule of the Gujarat Civil Services (Conduct) Rules, 1971. Rule 3 (1) of the Gujarat Civil Services (conduct) Rules, 1971 reads as under: "3. General: (1) Every Government servant shall at all times- (i) maintain absolute integrity. (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a Government servant. Explanation: A Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of clause (ii). 26. The aforesaid Rule 3 provides that he government servant has to maintain absolute integrity and devotion towards his duty, which the petitioner has violated by involving himself in corruption. The disciplinary proceedings are premised on the violation of the Conduct Rules applicable to a government servant, whereas the criminal case is based on the involvement of the accused with regard to his criminal complicity in the offence under which he has been charged. Thus, it cannot be said that the charge under both the proceedings is similar. Hence, no directions can be issued to the respondents for reviewing the punishment of dismissal on the premise that he has been acquitted in the criminal case. 27. Thus, it cannot be said that the charge under both the proceedings is similar. Hence, no directions can be issued to the respondents for reviewing the punishment of dismissal on the premise that he has been acquitted in the criminal case. 27. The Apex Court in the case of Deputy Inspector General Police and Anr. Vs. S. Samuthiram, 2013(1) SCC 598 has held that mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. In the absence of any provision in the service rule for reinstatement, even if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. The Apex Court has also observed that reason is that the standard of proof required for holding a person guilty by a criminal court and the inquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. In the present case the Inquiry Officer, after detailed examination of the witnesses and the evidence has proved the charges against the petitioner. 28. Prior to the acquittal of the petitioner, the departmental inquiry was already concluded and he was already held guilty of the charges. Merely because the petitioner is found to be held guilty for the first time, the same cannot make him eligible for lesser punishment. The petitioner was involved in a serious misconduct of corruption and after giving him full opportunity of hearing in the departmental proceedings, the charges have been proved. 29. On the backdrop of the foregoing observation and analysis, the present writ petition fails. Rule discharged. There shall be no order as to costs.