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Gujarat High Court · body

2022 DIGILAW 1025 (GUJ)

Gyanchand Tulsidas v. State Of Gujarat

2022-09-09

A.P.THAKER

body2022
JUDGMENT : 1. Being aggrieved and dissatisfied with the judgment and decree passed by the First Appellate Court in Regular Civil Appeal No.15 of 1997, whereby the First Appellate Court has set aside the decree passed in favour of the plaintiff in Regular Civil Suit No.787 of 1990, the original plaintiff preferred this Second Appeal under Section 100 of the Code of Civil Procedure. 2. For the brevity and convenience, the parties are referred to in this judgment as per their character assigned to them before the Trial Court i.e. plaintiff and the defendant. 3. During the pendency of the present appeal, original plaintiff has died. Hence, his legal heirs are joined as appellants. 4. It is the case of the plaintiff that he was appointed on 01.12.1978 as a constable in Crime Branch, Junagadh District. That he was on duty from 12.10.1988 to 15.10.1988 continuously for a period of four days and he left at 11 O'clock on 15.10.1988. It is contended that normally when a continuous duty is performed for 24 hours, rest is given. 4.1. It is contended that on 15.10.1988, i.e. on the same day at 16.00 hours, the plaintiff was called for and he was informed that one under trial prisoner namely Kevin alias Raising Soma, who, for the production before the learned Judicial Magistrate First Class, Petlad was to sent from Junagadh by somnath mail in custody of escort party consisting of (i) The Guard Commander and the Head Constable namely Mr.Gyanbag Tukaram (ii) the plaintiff Gyanchand Tulsidas and the Guard Constable Mr.Mangu Nagar. That the duty was entrusted upon the Head Constable and the plaintiff was also called for to perform the said duty under the Head Constable. According to the plaintiff, the said under trial, on the train getting slow in between the village Nimgada and Lathidad escaped with the iron fetters in his legs from the custody of the said escort party. Thereafter, a complaint was filed in pursuance to the incident and the departmental inquiry was started in respect to the very incident against the members of escort party including the plaintiff. 4.2. That he was suspended from 04.11.1988 and Dy.S.P. was appointed as inquiry officer. Thereafter, a complaint was filed in pursuance to the incident and the departmental inquiry was started in respect to the very incident against the members of escort party including the plaintiff. 4.2. That he was suspended from 04.11.1988 and Dy.S.P. was appointed as inquiry officer. The inquiry officer held all the three delinquent guilty of charges leveled against them and prepared the inquiry report and submitted it before the D.S.P. The D.S.P. issued show cause notice as to why they should not be removed from the office. Thereafter, by order dated 22.09.1989 the plaintiff stands removed from the service. 4.3. Being aggrieved by the said, the plaintiff preferred an appeal before the D.I.G.Junagadh which also came to be rejected. 5. Being aggrieved by the same, the plaintiff approached the Civil Court by filing Regular Civil Suit with a prayer for permanent injunction and temporary injunction and for mandatory injunction. The main challenge in the suit was on the ground that the Presiding Officer has acted in clear violation of principles of natural justice as he himself has acted as a Public Prosecutor and the Judge. It is also contended that the plaintiff was under the supervision of Head Constable, who was given lesser punishment, whereas, the appellant is ordered to be removed from the service and thus discriminatory treatment has been meted out to the plaintiff though he was similarly situated with the Head Constable. 6. The defendant side has resisted the suit by filing written statement, inter alia, contending that the inquiry against all the delinquent was conducted as per Rules and the principles of natural justice have been duly observed. That the Joint Inquiry is permissible as per the Rules. That no objection was raised as to non appointment of the presiding officer. That the inquiry officer under relevant Rule, the inquiry officer has authority to put any question to any witness for removal of any doubt and therefore, if such exercise is undertaken by the inquiry officer it cannot be said to be acted as both the Prosecutor and the Judge. 7. That the inquiry officer under relevant Rule, the inquiry officer has authority to put any question to any witness for removal of any doubt and therefore, if such exercise is undertaken by the inquiry officer it cannot be said to be acted as both the Prosecutor and the Judge. 7. It appears that the trial Court has framed as many as 7 issues at exhibit 18 to the following effect:- "Issues, as framed at Exh.18 on 13.7.95 by my learned predecessor, read as under:- (1) Whether the plaintiff proves that impugned order dated 22.9.1988 as confirmed by the appellate authority removing plaintiff from service is null and void and inoperative against him? (2) Whether the plaintiff should be held to have continued in service with all the consequential benefits despite the break occasioned by impugned order? (3) Whether the plaintiff is entitled to retain possession of quarter as contended to? (4) Whether the defendant prove that suit is not tenable as barred by C.P.C.Sec.80 ? (5) Whether the defendants prove that this court has no jurisdiction to decide the suit? (6) Whether the plaintiff is entitled to all or any of the reliefs prayed for? (7) What order and decree? " 8. It appears that no oral evidence has been lead by the parties and both the sides have relied upon the documentary evidence only which includes the papers of the Departmental Inquiry and the copy of the various depositions of the Police Officers and the Government Circulars regarding Departmental Inquiry. 9. On the basis of the evidence and the submissions of learned advocates appearing for the parties, the learned Trial Court has decided issue no.1 in affirmative, issue nos.3 to 5 in negative and rest have been decided as per the final order passed in judgment. 10. The Civil Court has passed the decree in favour of the plaintiff by holding the orders of the departmental inquiry as illegal, null and void and consequential relief regarding continue of service with full backwages was granted vide judgment and decree dated 26.03.1997. 11. The judgment and decree of the Civil Court came to be challenged by the defendant by preferring Regular Civil Appeal No.15 of 1997 before the District Court, Junagadh. 11.1. The learned appellate Judge has framed following questions for the determination of appeal in para 9 of the judgment which is as under:- "1. 11. The judgment and decree of the Civil Court came to be challenged by the defendant by preferring Regular Civil Appeal No.15 of 1997 before the District Court, Junagadh. 11.1. The learned appellate Judge has framed following questions for the determination of appeal in para 9 of the judgment which is as under:- "1. Whether the judgment of lower court is perverse and/ or require any interference ? 2. What order ?" 12. The First Appellate Court has allowed the appeal and set aside the judgment and decree passed by the learned Civil Judge Junior Division at Junagadh in Regular Civil Suit No.787 of 1990. 13. Following substantial questions of law are framed for determination of the present appeal:- (i) In the facts and circumstances of the case, whether, the inquiry officer could perform the function as prosecutor as well as Judge? (ii) In the facts and circumstances of the case, whether, questions in the nature of cross-examination put to the witnesses by the inquiry officer would be violation of principal of natural justice? (iii) In the facts and circumstances of the case, could there be discretion in awarding punishment when the two others have been awarded with lessor punishment on the same set of charge? 14. Heard learned advocate Mr.A.N.Gupta for Mr.Ashish Dagli for the plaintiff-appellant and Ms.Moxa Thakkar for respondent at length. Perused the material placed on record. 15. My findings on the aforesaid three questions of law, for the reasons given below, are as under:- (1) In the negative. (2) In the affirmative. (3) In the negative. 16. Reasons Since the facts and circumstances of the case and the legal aspects are interwoven, to avoid the repetition of the same, all these are discussed together. 17. Learned advocate for the plaintiff has vehemently submitted the same facts which are narrated in the appeal memo and has submitted that the First Appellate Court has committed serious error of facts and law in setting aside the judgment and decree of the Trial Court which was granted in favour of the plaintiff. It is also contended that during the departmental inquiry, the inquiry officer has acted both as Prosecutor and the judge. It is also contended that during the departmental inquiry, the inquiry officer has acted both as Prosecutor and the judge. It is also contended that on the same set of facts and for the same incident, other two persons who were members of the same escort party, one was Head Constable, they were awarded lesser punishment, whereas, the plaintiff has been removed from the service and thus there is a discriminatory treatment meted out to the plaintiff. It is also contended that the Head Constable was given a punishment of compulsory retirement, whereas he has been removed from the service. It is also contended that by putting questions to the witnesses by the inquiry officer, the inquiry officer has acted as a Prosecutor and the Judge because he has on the basis of such chief examination and cross-examination reported that there was dereliction of duty of the persons concerned. It is also contended that all these facts have been properly appreciated by the learned Trial Court and on entire consideration of the facts of the case, the order was passed by the Civil Court granting decree in favour of the plaintiff which ought not to have been interfered with by the First Appellate Court. 17.1. Learned advocate for the plaintiff-appellant while referring to the impugned judgment of the First Appellate Court has submitted that the First Appellate Court has not properly appreciated the fact that the discriminatory treatment was given to the plaintiff and the Head Constable, who was the superior officer of the escort party have been meted out the punishment of compulsory retirement. It is also contended that the impugned order of the First Appellate Court is clearly not sustainable in the eyes of law and it deserves to be set aside and judgment and decree of the Trial Court needs to be restored. He has prayed to allow the present appeal. He has relied upon the following decision in support of his decision:- (I) In the case of Union of India & Ors Vs. Ram Lakhan Sharma reported in (2018) 7 SCC 670 . (ii) In the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) & Another Vs. Rajendra Singh reported in (2013) 12 SCC 372 . 18. Per contra, learned AGP Ms.Moxa Thakkar for the defendant has vehemently supported the impugned judgment and decree of the First Appellate Court. Ram Lakhan Sharma reported in (2018) 7 SCC 670 . (ii) In the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) & Another Vs. Rajendra Singh reported in (2013) 12 SCC 372 . 18. Per contra, learned AGP Ms.Moxa Thakkar for the defendant has vehemently supported the impugned judgment and decree of the First Appellate Court. She has submitted that the appellant was Constable and was a member of escort party. She has submitted that since the under trial prisoner escaped from the custody of the escort party, necessary departmental inquiry was initiated against all the persons. She has submitted that the department has followed Rules and Regulations in respect of the departmental inquiry and no breach of any of the provisions of the natural justice has been committed. She has submitted that after departmental inquiry, since the plaintiff was found to be negligent in his duty, after issuance of show cause notice, he came to be dismissed from the service. She has stated that against that order, he has preferred department appeal and thereafter Civil Suit, which was decreed by the Trial Court. According to her submissions, as department was aggrieved by the judgment of the Trial Court, it had preferred First Appeal before the District Court, wherein the learned District Court has properly appreciated the facts and law and has rightly set aside the decree of the Trial Court. She has submitted that the observations and reasons provided by the First Appellate Court in allowing the First Appeal and setting aside the decree of the Trial Court are proper one. She has submitted that there is no legal question involved in this Second Appeal and therefore this Second Appeal be dismissed with cost. She has submitted that the decision cited by the either side are not applicable to the facts of the present case. 19. In the case of Union of India & Ors Vs Ram Lakhan Supra, the Hon'ble Apex Court in para 26 has observed as under:- "26. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772 , this Court had laid down that inquiry officer is a quasi-judicial authority, he has to act as independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held: "28. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772 , this Court had laid down that inquiry officer is a quasi-judicial authority, he has to act as independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held: "28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." In para 27 thereof the Apex Court has also observed that, ".......The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place." 20. Lucknow K. Gramin Bank Supra, the Hon'ble Apex Court in para 15 and 16 has observed as under:- "15. If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one - case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav's case, already taken note above. That is the ratio of Rajendra Yadav's case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should consumerate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full- fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology. 16. This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases. The principles discussed above can be summed up and summarized as follows: (a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. The Court by itself cannot mandate as to what should be the penalty in such a case. (e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the codelinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable." 21. Considering the aforesaid decisions of the Apex Court in relation to the inquiry as well as the Judicial Power of the Court, in respect of punishment to be awarded to the delinquent, on consideration of the facts of the present case, which reveals from the documentary evidence, it appears that there is no dispute that the inquiry in question was a joint one and that out of three delinquent one was a Head Constable and the rest two including the present plaintiff were Constable. It also appears that the defense put up by all the three delinquents was common one. It also appears that the Dy.S.P. was the inquiry officer and no presenting officer was appointed. It also reveals that the inquiry officer did put the question in the nature of cross-examination to the witnesses. The witnesses include the prosecution witnesses as well as the defense witness. It also reveals that the prosecution witnesses were cross examined by one Mr.Kadri on behalf of the delinquent, after such cross-examination the inquiry officer has put questions to each and every witnesses. Not only that, but the defense witnesses were cross examined by the inquiry officer himself. 22. It is admitted facts that in the present case, in the departmental inquiry, no representing officer on behalf of the department was appointed. It is pertinent to note that as per exhibit-53, which is a circular issued by the Government Administration Department in the circular No.-CDR/1082/U.O./674 C dated 13.08.1982, it is instruction to appoint a representing officer in any departmental inquiry. It is pertinent to note that as per exhibit-53, which is a circular issued by the Government Administration Department in the circular No.-CDR/1082/U.O./674 C dated 13.08.1982, it is instruction to appoint a representing officer in any departmental inquiry. The instructions contain that in case of any departmental inquiry initiated at the behest of or report of Anti Corruption Bureau in that case, officer from the Anti Corruption Bureau or any officer of the Police Department can be appointed as representing officer. In other cases, it is not so but considering overall facts, representing officer be appointed. Thus, the Government Circular itself provides for appointment of representing officer for conducting the inquiry against the delinquent. The reasons behind appointment of representing officer is that whenever any witness is examined by the department or by the defense then in that case, he can put question to such witnesses and the inquiry officer has only to report on the basis of such evidence to the department concerned in regard to his conclusion as to the departmental inquiry. 23. At this juncture, it is pertinent to note that the department has relied upon instructions in regard to the departmental inquiry, wherein one of the instructions, is that the inquiry officer can ask any question to any witness for removal of a doubt arises therein. However, this is a power given to the inquiry officer only for asking questions for removal of doubt if any. Further, this authority does not authorize the inquiry officer to cross-examine witness of the defense nor he has any authority to ask questions in re-examination of all the prosecution witnesses after the cross-examination is made by the defense. Thus, considering the material placed on record, it clearly transpires that the inquiry officer has acted both as a Prosecutor and the Judge. Therefore, in view of the decisions referred to herein above of the Apex Court, there is clearly a breach of natural justice. 24. Is also appears from the record that though the inquiry was common and joint and all the three delinquents have agitated it, the Head Constable and the other constable have been awarded lesser punishment of retirement, whereas the harsh punishment of removal from service has been passed against the present plaintiff. This very facts is nothing but an unequal treatment given to the plaintiff by the respondent authority. This very facts is nothing but an unequal treatment given to the plaintiff by the respondent authority. When the plaintiff and the other delinquents were equally placed for the dereliction of the duty and the evidence of the departmental inquiry is the same, there cannot be a disparity in award of punishment as observed by the Apex Court in the case referred to hereinabove. 25. Considering the overall facts and circumstances of the case, coupled with the law laid down by the Apex Court in the aforesaid decisions, it clearly transpires that the learned Trial Court has properly appreciated the facts and law and not committed any legal error in passing the decree in favour of the plaintiff appellant. Against this, on perusal of the judgment of the First Appellate Court, it appears that instead of considering all these relevant facts, so far as it relates to the setting aside of the impunged order of the award of punishment is concerned, in favour of the appellant, learned Joint District Judge has not considered the factum of awarding of different punishment to the other delinquent. Learned IInd Joint District Judge even has not referred to the factum of disparity in award of the punishment in departmental inquiry. The learned Joint District Judge has only observed that regarding nature of punishment to be awarded to the delinquent is within the power of the disciplinary authority and the Court will not go into the said question as an appellate Court. Of course, it is settled that generally the Court will not substitute its own decision in regard to the award of punishment in the departmental inquiry. However, as observed by the Apex Court in the case of Lucknow K. Gramin Bank Supra, doctrine of equity needs to be followed in a departmental inquiry where there are co-delinquents. Now, admittedly in this case, as observed herein, the differential treatment has been given in awarding punishment for the same set of facts and in the same common departmental inquiry. Therefore there is clearly a breach of principles of doctrine of equality and therefore, the Court has ample power to rectify the mistake committed by the departmental authority. 26. Considering the aforesaid facts and circumstances and the legal aspects of the case, I have, therefore, answered the substantial questions of law raised in this petition accordingly. 27. Therefore there is clearly a breach of principles of doctrine of equality and therefore, the Court has ample power to rectify the mistake committed by the departmental authority. 26. Considering the aforesaid facts and circumstances and the legal aspects of the case, I have, therefore, answered the substantial questions of law raised in this petition accordingly. 27. In view of the above discussions, the present appeal is liable to be allowed and the impugned judgment and decree passed by the First Appellate Court in Regular Civil Appeal No.15 of 1997 dated 31.07.2000 needs to be quashed and set aside and the judgment and decree of the Trial Court passed in Regular Civil Suit No.787 of 1990 needs to be restored. 28. In view of the above discussions, I pass the following final order in the interest of justice:- ORDER (i) The present Second Appeal is hereby allowed. (ii) The impugned judgment and decree passed by the IInd District Judge, Junagadh in Regular Civil Appeal No.15 of 1998 decided on 31.07.2000 are hereby set aside and the judgment and decree of the Civil Judge Senior Division, Junagadh passed in Regular Civil Suit No.787 of 1990 are hereby restored. (iii) Considering the facts and circumstances of the present case, parties are directed to bear their respective cost of the present appeal. (iv) Decree to be drawn accordingly in the present Second Appeal. (v) Along with the copy of this judgment and decree, Records and Proceedings of the Regular Civil Suit No.787 of 1990 to be sent back to the learned Trial Court. In view of the order passed in the main matter, the civil application does not survive and the same stands disposed of accordingly.