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2019 DIGILAW 918 (GUJ)

Bharatsinh Jasubhai Gohil v. State of Gujarat

2019-10-15

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. In the present writ petition, the petitioner has prayed for the following reliefs;- (A) Admit this Special Civil Application. (B) Allow this Special Civil Application by issuing an appropriate writ, order or direction quashing and setting aside the order passed by the respondent No. 1 dated 13.07.2006 and thereby directing the respondent No. 1 to hear the revision preferred by the petitioner. (C) Allow this petition by issuing an appropriate writ, order or direction by quashing and setting aside the order at Annexures B.C and d to the petition. (D) Grant interim relief in terms of para C above. 2. The petitioner was working with Jasdan Police Station being an armed police constable. He was deputed at Morbi City Police Station during the Municipality Election. At the time, on 16.09.2000 at 23:15 hours, as per the allegation and charge sheet filed against him, he was found under the influence of intoxication and could not control himself and in such circumstances, an FIR was registered against him for an offence punishable under the Bombay Prohibition Act, 1949. 3. The respondent authority has initiated the departmental inquiry by issuing a show cause notice dated 20th July, 2002. Thereafter, the petitioner was also issued the charge memo on 15th June 2001 and after holding departmental inquiry, the charge against him was proved and accordingly the petitioner was removed from the services vide order dated 9th September, 2002, considering the reply filed by the petitioner. The petitioner thereafter, had preferred an appeal against the impugned order dated 9th September, 2002. However, by an order dated 23rd July, 2003, the appeal was dismissed. 4. The petitioner has filed a revision application against the aforesaid order before the Inspector General of Police, Gandhinagar and the same was rejected vide order dated 14/12-February, 2006. It was further mentioned that the opportunity was given to the petitioner to approach the State Government against the aforesaid order within a period of 60 days. At the outset, learned advocate Mr. Kharadi for the petitioner has submitted that by the order dated 10th October, 2006, the petitioner was acquitted for the offence under the Prohibition Act. 5. It was further mentioned that the opportunity was given to the petitioner to approach the State Government against the aforesaid order within a period of 60 days. At the outset, learned advocate Mr. Kharadi for the petitioner has submitted that by the order dated 10th October, 2006, the petitioner was acquitted for the offence under the Prohibition Act. 5. He has submitted that in fact, the petitioner is acquitted by observing that the procedure under Bombay Blood Test Rules was not followed and hence the departmental proceedings, which are initiated for the same misconduct could not have been initiated and further he has submitted that since the petitioner is acquitted, the respondent authorities may be directed to review the order of misconduct. 6. Learned Assistant Government Pleader has submitted that the entire petition is bereft of the pleadings that the departmental proceedings are required to be quashed and set aside on the ground of violation of statutory rules or violation of principle of natural justice. He has submitted that the departmental proceedings were concluded earlier than the order of acquittal. It is submitted that full opportunity of hearing was given to the petitioner and after threadbare examination, the inquiry officer has held the charges to be proved. He has submitted that in fact the petitioner has not made any prayer for quashing and setting aside the departmental proceedings or the report of the Inquiry Officer. He has submitted that in fact the report of the Inquiry Officer is not communicated to the petitioner and hence, the impugned orders do not require any interference. 7. Learned Assistant Government Pleader has placed reliance on the recent judgment of the Supreme Court dated 1st August, 2019 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. 8. He has further submitted that the petitioner was involved in the very serious misconduct since he had consumed Alcohol, which is proved in the departmental proceedings. 9. Thus, he has submitted that the impugned order may not be disturbed. 8. He has further submitted that the petitioner was involved in the very serious misconduct since he had consumed Alcohol, which is proved in the departmental proceedings. 9. Learned Assistant Government Pleader has further placed reliance on the judgment and order in the case of Rani Laxmibai Kshetriya, Gramin Bank Versus Chand Behari Kapoor and others, reported in (1998) 7 Supreme Court Cases 469 and has submitted that there is no averments, challenging the findings of the departmental proceedings and hence in absence of such averments, the writ petition may not be entertained. 10. I have heard the learned advocates for the respective parties. 11. The facts, which are not in dispute are that in view of the incident, which happened on 16th September, 2000, wherein the petitioner was found to be in a drunken condition, he was subjected to the departmental proceeding. After holding a regular departmental proceedings, the petitioner was removed from the services. The petitioner was conferred full opportunity of hearing in the departmental proceedings. It is pertinent to note that the petitioner has not produced the report of the Inquiry Officer and has challenged the impugned order only. 12. A perusal of the impugned order dated 20th July, 2002 reveals that the petitioner was subjected to the departmental proceedings for his misconduct of unbecoming member of the police officer by indulging him in such activities. 13. It appears that there were witnesses, who were examined by the Inquiry Officer. The petitioner was also given full opportunity of hearing for his defence and after holding the inquiry, by the order dated 20th July, 2002, the petitioner was removed from the services. 14. A perusal of the contents of the petition, it reveals that the petitioner has not challenged the findings of the Inquiry Officer's report or the impugned order dated 20th July, 2002 on the ground of violation of principles of natural justice or procedural defiance and the same is only based on the ground of not testing the blood sample, in laboratory showing that it was below permissible limit and the person who has taken the laboratory test of the said sample, was not cross-examined in the trial court. 15. In the recent judgment of the Supreme Court in the case of Sashi Bhusan Prasad Versus Inspector General, Central Industrial Security Force & Ors. 15. 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. 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. 16. The Supreme Court has observed that both the proceedings of criminal case and departmental inquiry are based on different set of facts and the evidence has no nexus/co-relationship. 16. The Supreme Court has observed that both the proceedings of criminal case and 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. 17. 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 same has been violated or opportunity to 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 & 227 of the Constitution of India. 18. In the present case also, the impugned order of dismissal is not being challenged on the ground that the procedure prescribed under the Bombay Police (punishment and appeal), 1956 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 conditions or submissions it will not apposite to interfere with the disciplinary proceedings while exercising the limited scope of review conferred to his Court under Articles 226 & 227 of the Constitution of India. 19. The petitioner was serving as a Police Constable and was governed by 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). 20. The aforesaid Rule 3 provides that the government servant has to maintain absolute integrity and devotion towards his duty, which the petitioner has violated by involving himself in corruption. 20. The aforesaid Rule 3 provides that the 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 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. 21. At this stage, I may with profit extract the observations of the Apex Court in the decision in the case of State of Uttar Pradesh and Anr. Vs. Man Mohan Nath Sinha and Anr. 2009 (08) 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 Supreme Court has held that the judicial review is not directed against the decision but is confined to the decision making process, and the High Court cannot scan the evidence as if it was a court of appeal. 23. The Apex Court in the case of State of Andhra Pradesh Vs. The Supreme Court has held that the judicial review is not directed against the decision but is confined to the decision making process, and the High Court cannot scan the evidence as if it was a court of appeal. 23. 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: it is 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." 24. Thus, the Supreme Court has held that 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: it is 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. In the present case the petition is bereft of such pleadings, hence in absence of such pleadings this Court cannot preside over the disciplinary proceedings as an appellate authority. 25. 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 proceeding 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. 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. 26. In the present case, unquestionably, the charge sheet was issued to the petitioner for misconduct of indulging into the act unbecoming of the police officer, whereas the criminal case had proceeded regarding the criminal liabilities or delinquency in the offence. The Supreme Court has further observed thus:- "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." 27. In this view of the matter, even if the petitioner is acquitted for the offence under the Prohibition Act, the same would not have legal right reinstating in service since his removal is prior to his acquittal by the trial Court and the petitioner has not challenged the findings of the departmental inquiry. 28. In this view of the matter, the present writ petition fails. Rule discharged. There shall be no order as to costs.