Gujarat High Court
Mohmmad Unus Abdulkarim Shaikh vs Paschim Gujarat Vij Company Ltd on 9 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2835 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
Approved for Reporting Yes No
==========================================================
MOHMMAD UNUS ABDULKARIM SHAIKH
Versus
PASCHIM GUJARAT VIJ COMPANY LTD & ANR.
==========================================================
Appearance:
MR BP TANNA, SENIOR COUNSEL with MR A R ROCKEY(7592) for the
Petitioner(s) No. 1
MR. HARDEEP L MAHIDA(7112) for the Petitioner(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/03/2025-09/04/2025
ORAL JUDGMENT
1. Heard Mr. B. P. Tanna, the learned Senior Counsel assisted by Mr. A. R. Rockey, the learned advocate appearing for the petitioner and Ms. Lilu K. Bhaya, the learned advocate appearing for the respondent No.1.
Page 1 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined
2. The petitioner herein has prayed for declaring the inquiry proceedings illegal as well as the decision of the respondent No.2 removing the petitioner from the service and the order passed by the Appellate Authority and treat the petitioner in continuous service as if no order of penalty was issued to the petitioner. The relief as prayed for read thus :-
"A. This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorary or other appropriate writ, order or direction, declaring the inquiry proceedings, as illegal and contarary to law and be please to set aside the decision of respondent no. 2 to remove the petitioner from services and the order passed by appellate authority, as illegal, unjust, arbitrary, non-application of mind and be pleased to quash and set aside the same and direct the respondents to treat the petition in continuous service as if no order of penalty was issued to the petitioner.
B. Be pleased to declare the decision of Disc. Authroity imposing penalty of removal from service of the petitioner and order passed by the appellate authority, as illegal, unjust and be pleased to quash and set aside the same and direct respondents to reinstate the petitioner in service with all consequential benefits and pay arrears to the petitioner with 18% interest.Page 2 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined C. Pending admission and final disposal of the petition be pleased to suspend further implementation and operation of the order of imposing penalty of removal of services to the petitioner and direct the respondents to allow the petitioner to resume duties.
D. Any other relief which this Hon'ble Court deems fit and proper in interest of justice."
3. Briefly stated the petitioner herein was suspended vide order dated 5.3.2010. The alleged incident of electricity theft occurred at the residence of one Shri Shaileshbhai Bhayani, that there was a circuit attached and by attaching the said circuit the petitioner had allegedly collected Rs.3,000/- from the customer. So far as Shaileshbhai Bhayani is concerned, he was earlier also caught in electricity theft. On the basis of his statement, suspension order dated 5.3.2010 (Annexure-A), charge-sheet was issued to the petitioner dated 4.10.2010 (Annexure-B).
3.1 The petitioner submitted reply to the said charge-sheet Page 3 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined dated 24.12.2010 (Annexure-C). The Inquiry Officer conducted inquiry proceedings in flagrant violation of the Disciplinary Appeal Rules and principle of natural justice. The inquiry officer instead of examining the prosecution witnesses has examined the petitioner upto page-1 to 18 of the proceedings and thereafter filled in the gaps. The departmental witnesses were called from 14.3.2011 to 29.3.2011, inquiry proceedings were adjourned on 17.3.2011, 22.3.2011 and 28.3.2011. The petitioner was examined and cross-examined. 3.2 The petitioner was without service and the inquiry report served with the show cause notice on 22.7.2011 (Annexure-G) which was with pre-determined mind. The petitioner requested to supply him inquiry report which was supplied on 29.7.2011 (Annexzure-H). The petitioner submitted detailed reply to the show cause notice on 29.8.2011. The order of removal of the petitioner from service came to be issued vide Order No.JCO-HR-PERSONAL-11-810 on 23.9.2011. Page 4 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined 3.3 The aforesaid gave rise to the Special Civil Application No.15092 of 2011. The said petition was disposed of wherein the petitioner was directed to approach the Appellate Authority by way of Appeal (Annexure-J). In the meanwhile, the petitioner received order of dismissal from service on 23.9.2011 (Annexure-K). The petitioner filed Appeal to the Managing Director pointing out that there is no substance in the allegations against the petitioner and the inquiry proceedings and findings are perverse and contrary to the law. The Appeal preferred by the petitioner also came to be rejected by order dated 8.2.2012 without recording any contentions of the petitioner (Annexure-M).
3.4 The aforesaid has given rise to filing of the present petition for the reliefs, as prayed above.
4. Mr. B. P. Tanna, the learned Senior Counsel appearing for the petitioner submitted that the proceedings conducted by the respondent authority are violative of Disciplinary Appeal Page 5 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined Rules and principles of natural justice and fair play. 4.1 It is submitted that the petitioner was examined first and thereafter to fill up the gaps the departmental witnesses were examined.
4.2 Reliance is placed on the ratio laid down by the Hon'ble Apex Court in 2008 (8) SCC 236 wherein the Hon'ble Apex Court has held that, in an enquiry, the employer should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
4.3 It is submitted that after the examination of the petitioner to fill up the gaps the respondent examined the first witness, Lab Dy. Engineer Mr. N. S. Doshi. The petitioner had Page 6 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined requested the inquiry officer to call the main witness i.e. complainant - Shri Shaileshbhai Bhayani. The said communication is duly produced at Annexure-D. The said request was rejected by letter dated 7.6.2011 informing that the statement of Shri Shaileshbhai Bhayani was taken by the competent authority verified and, therefore, his presence is not necessary.
4.4 It is submitted that the name of witness mentioned in the charge-sheet i.e. the name of Shri G. K. Vara, PSI was not mentioned, yet all of a sudden he was called as a witness which was objected by the petitioner by communication/letter dated 23.5.2011. The said request was rejected by letter dated 7.6.2011. Based on such so called inquiry proceedings which is not at all in conformity with the provisions of Disciplinary Appeal Rules and principles of natural justice and fair play, it is submitted that the petitioner was not served with the inquiry report with the show cause notice and that disciplinary proceedings are initiated with pre-decided mind and to Page 7 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined victimize the petitioner.
4.5 It is submitted that the contentions of the petitioner in the reply to the show cause notice going to the root of the matter and that the impugned orders are passed without taking into consideration the contentions raised by the petitioner.
5. Ms. Lilu K. Bhaya, the learned advocate appearing for the respondent authority submitted that it was observed from the figures of T & D Loss of the respondent Company that mass scale theft of electricity was going on in the jurisdiction of the respondent in Saurashtra region. It was observed that special circuits were prepared and as and when it was applied to the meter or kept near the meter, the meter was getting hanged and particular number was appearing on the meter display. Therefore even though the meter is O.K., the consumption of electricity would not be recorded in the meter. To stop the aforesaid mass crime, the respondent decided to task all such persons who are involved in theft of electricity. Page 8 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined At various places during the course of site inspection such circuits were seized. To see that not only the person who commits theft is caught, but also the persons involved in manufacturing, supplying and fixing such circuits are also caught and action were required to be taken against them because if such persons are not stopped from manufacturing, selling or fixing such device, the entire transmission and distribution of electricity would be affected and there would be serious financial loss to the respondent company. If such circuits are used, there would be no sufficient electricity available in the Saurashtra region. In view thereof the respondent company issued specific circulars wherein directions were issued to the field offices that in such cases even if the consumer make payment of 100% of the bill for theft of electricity, unless such consumer discloses the name of the person who has manufactured/ supplied/ fixed the circuit, the connection should not be reconnected. In some cases the consumers at Jamnagar obtained order of re-connection from Special Court at Jamnagar. Against such orders, the respondent Page 9 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined herein preferred Appeal From Order Nos.81 of 2010 to 88 of 2010 wherein interim order passed by the Trial Court was stayed. In those matters, the Hon'ble Court after detailed hearing and perusing the affidavit filed by the Managing Director, PGVCL showing how the theft was committed and how it will affect the revenue and the seriousness of such offence and the details of such persons booked for the same, how many cases have been registered in PGVCL Police Station, how many circuits have been seized by the company and other important relevant data were placed before the Court. It was also brought to the notice of the Court that PGVCL staff was also found involved in helping consumers using such device. Two persons had been identified and are suspended immediately and disciplinary actions are started against them as per company's rules. It is submitted that the petitioner herein is one of these two employees.
5.1 It is submitted that the stay granted was confirmed by the High Court upon perusing the affidavit of the Managing Page 10 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined Director duly produced at Annexure-I. It is submitted that the petitioner herein was involved in supplying such circuits to the consumers of the respondent herein and it has been admitted by the consumers before the respondent as well as before police that the aforesaid circuits were supplied and fixed by the petitioner herein. It is submitted that various F.I.Rs. have been filed against the petitioner herein as well as the consumers indulging in theft of electricity under Section 150 of The Electricity Act, 2003 and other offences which is duly produced at Annexure-II.
5.2 Reliance is placed on F.I.Rs. lodged with GUVNL Police Station against petitioner as well as persons indulging in the theft of electricity duly produced at Annexure-III wherein statements given by the consumers as well as the petitioner herein before police authority, are placed on record. The petitioner herein in his statement given before police authority admitted having committed the offence of supplying the circuits.
Page 11 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined 5.3 It is submitted that upon issuance of the charge-sheet to the petitioner, the petitioner was suspended from service vide order dated 5.3.2010. The consumer one Shri Shailesh Dharamshibhai Bhayani during the laboratory inspection gave a statement and declared that the petitioner had come with the box that if it is fixed with the wiring, then his consumption will be less and he had charged Rs.3,000/- from the said consumer for fitting this device. The petitioner was supplied copy of the Proforma-15 alongwith charge-sheet also copy of the site rojkam dated 18.2.2010, copy of the Annexure-4 dated 18.2.2010, copy of the credit gate pass no.1, copy of the meter rojkam JRD/008924 dated 19.2.2010, copy of the statement of the consumer and panchnama and copy of the fax message dated 9.3.2010.
5.4 It is submitted that the police was informed since theft of electricity amounts to offence under Section 135, 138 and 150 of The Electricity Act, 2003. The F.I.R. was lodged against Page 12 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined the petitioner as well as the consumer on 9.3.2010. The entire investigation was carried out by the police officer - P.S.l. Shri G.K. Vara. The charge-sheet was issued for causing financial loss to the respondent company, for causing damage to the image of the respondent company. The charges stood proved against the petitioner vide report of the Inquiry Officer dated 21.6.2011. The show cause notice was issued to the petitioner on 22.7.2011 to which the petitioner replied on 29.8.2011. The competent authority considering the same passed the order dated 23.9.2011 removing the petitioner from the service. 5.5 It is submitted that the petitioner was granted full and sufficient opportunity following the cardinal principles of natural justice. Against the order of removal dated 23.9.2011, the petitioner preferred Departmental Appeal to the Managing Director and the same was rejected by the order dated 8.2.2012. In the meantime, the competent authority passed the order terminating the service of the petitioner after conducting departmental inquiry and upon giving full opportunity of Page 13 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined defense to the petitioner.
5.6 It is submitted that the petitioner upon suspension on 5.3.2010 by Circular dated 3.4.2001 of erstwhile Gujarat Electricity Board, was given subsistence allowance which came to be increased from 50% to 75% on completion of one year from the date of suspension of the concerned employee duly produced at Annexure-IV.
5.7 It is submitted that the petitioner is guilty of misconduct, misappropriation and which is established looking to the documentary evidence. Looking to the seriousness of charges which are proved against the petitioner in the departmental inquiry the service of the petitioner was terminated. It is submitted that the petitioner earlier also faced departmental inquiry and punishment of stoppage of two increments with cumulative effect, however there was no improvement in the petitioner. The action taken against the petitioner is in accordance with the rules and it was felt that Page 14 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined the petitioner's action is against the interest of the company. 5.8 It is submitted that the business of distribution of electricity is directly connected with the public. If such type of incidents happen repeatedly, if no strict action is taken against the persons responsible for the same, then it gives a wrong message to the society at large which would create bad image of the company in the public eye. The impugned action by the respondent Company is in the interest of the public at large and the company that the petitioner's service was terminated. There cannot be any malafide on the part of the officers of the respondents who have acted in the interest of the company and in accordance with law.
5.9 It is submitted that the consumer i.e. Shaileshbhai Bhayani was examined by the competent authority and the police and who had given statement before the police which was confirmed by the competent authority and therefore it was not necessary to examine the consumer.
Page 15 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined 5.10 It is submitted that upon objection raised by the petitioner against examining P.S.I. Shri G. K. Vara, the same was not considered. It is submitted that the inquiry conducted against the petitioner is in accordance with the rules and upon following the principles of natural justice. It is also submitted that the petitioner was supplied copy of inquiry report and only thereafter the show cause notice was issued to the petitioner. It is therefore denied that it is the case of pre- determination by the respondent authority. Placing reliance on the aforesaid submissions, it is submitted that present petition be dismissed.
6. Mr. Tanna, the learned Senior Counsel in rejoinder reiterated the contentions raised earlier. Mr. Tanna, the learned Senior Counsel relied on page-188 and submitted that by not examining Shri Shaileshbhai Bhayani, the consumer the petitioner lost right to cross-examine Shri Bhayani. It is submitted that the petitioner lost valuable right of cross- Page 16 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined examination by non-examination of the consumer by the respondent Company. It is submitted that the prayers as prayed for are such the same be granted.
6.1 Mr. Tanna, the learned Senior Counsel relied on AIR 2021 SC 4554, paragraphs 8 and 12, wherein the Hon'ble Apex Court held that in absence of Tax Collector having been examined as a witness by leading evidence in support of his signature having been forged by the respondent, the inquiry officer arrived at unsubstantiated finding based on no material but founded on unfounded suspicion.
(b) 2017 (0) LablC 2427, wherein it was held that the Tribunal grossly erred by observing that the examination of witness is not required only on apprehension that he would support the petitioner in disciplinary proceedings which would be against the interest of the Government.
(c) 1999 (8) SCC 582, wherein the Hon'ble Apex Court held Page 17 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined that non-observance of principles of natural justice in not examining complainant and witness who had accompanied delinquent to the Hospital was not proper.
(d) 2004 (2) GLH 535, wherein it is held that upon non- supplying of copy of documents the inquiry stands vitiated.
Placing reliance on the aforesaid decisions, it is further submitted that present petition be allowed.
7. Ms. Bhaya, the learned advocate relied on the following decisions :-
(a) Civil Appeal Nos.8546-8549 of 2024, in case of State of Rajasthan and Ors., vs. Bhupendra Singh.
(b) 1975 (2) SCC 557, wherein it is held that the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which Page 18 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution of India.
(c) (2011) 10 SCC 249
(d) (1996) 3 SCC 364, judicial review, principles of natural
justice.
(e) (2006) 6 SCC 794, wherein it is held by the Hon'ble
Apex Court that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The scope of judicial review is limited to the deficiency in the decision making process and not the decision.
(f) (2021) 3 SCC 806, wherein the Hon'ble Apex Court held that if the disciplinary authority accept the finding recorded by the inquiry officer and passes an order no detailed reasons are required to be recorded in the order imposing punishment.
(g) Civil Appeal No.5187 of 2023 Page 19 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined
8. Having heard the learned advocates appearing for the respective parties the following emerge :-
8.1 The petitioner was allegedly involved in supplying such circuit to the consumers of the respondent herein which would result in the theft of electricity. The same is admitted by the consumer before the respondent as well as the police that such circuits are supplied and fixed by the petitioner herein. Various FIRs are lodged against the petitioner herein as well as consumer indulging in theft of electricity under Sections 135, 138 and 150 of the Electricity Act, 2003. The copies of the statements of the consumers are duly produced at Annexure- R3. The petitioner has made a statement before the police having admitted the offence of supplying the circuit. The consumer, one Shri Shaileshbhai Bhayani had during the laboratory inspection given a statement and declared that the petitioner had come with the box that if it is fixed with wiring then the consumption would be less and Shri Shaileshbhai Bhayani was charged Rs.3,000/- for fitting such device. Page 20 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined 8.2 The petitioner was supplied with a copy of the aforesaid statement Proforma-15 alongwith the charge-sheet, copy of the Rojkam dated 18.2.2010, copy of Annexure-4 dated 18.2.2010, copy of the credit gate pass No.1, copy of the meter Rojkam JRD/008924 dated 19.2.2010, copy of the statement of the consumer and panchnama and copy of the fax message dated 9.3.2010. The Police was informed for theft of electricity amounts to offence under Sections 135, 138 and 150 of The Electricity Act, 2003. The F.I.R. was lodged against the petitioner as well as the consumer on 9.3.2010. The petitioner filed reply to the show cause notice on 23.9.2011 removing the petitioner from service. The petitioner preferred Departmental Appeal to the Managing Director which was rejected by order dated 8.2.2012.
9. Upon perusal of the record and the documents produced on record this Court is inclined to pass the following order :-
9.1 The decision of the respondent No.2 to remove the Page 21 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined petitioner herein from the services by order dated 23.9.2011 which is duly produced at page-56 Annexure-K was challenged before this Court by preferring the Special Civil Application No.15092 of 2011 which was dismissed by order dated 21.10.2011 wherein it was held that the petitioner can agitate and file an Appeal against the order of removal under Schedule-C of the Board of Employees' Conduct, Discipline and Appeal Procedure - Annexure-J page-54. The petitioner on 24.11.2011 filed Appeal before the competent authority memo of which is duly produced at Annexure-L page-58.
9.2 Upon perusal of the contentions raised in the Appeal, it emerges that the petitioner herein has taken primary contention while challenging the order passed by the disciplinary authority dated 23.9.2011 in Ground (C) has contended that the disciplinary action initiated against the petitioner by the Inquiry Officer was against the principles laid down under Article 311 of the Constitution of India. The petitioner has also raised several grounds in the Appeal Page 22 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined wherein one of the grounds taken by the petitioner before the Appellate Authority wherein it is contended that during the inquiry witnesses mentioned in the charge-sheet ought to have been examined prior to the examination of the petitioner.
In the inquiry held against the petitioner, the petitioner was examined first and thereafter other witnesses were examined.
The aforesaid is a legal contention raised by the petitioner as also other grounds raised in the Appeal.
10. This Court has perused the impugned order passed by the Appellate Authority which is duly produced at Annexure-M dated 8.2.2012 (page-74) wherein the Appellate Authority has failed to deal with the contentions raised by the petitioner herein in the Appeal. The impugned order is an unreasoned order.
11. In the opinion of this Court, the petitioner herein has raised serious and arguable points in the Appeal preferred Page 23 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined before the Appellate Authority to which the Appellate Authority is bound to apply its mind. The ground raised by the petitioner are legal grounds which are not answered/considered by the Appellate Authority or answered all the grounds in the affidavit-in-reply.
12. In view of the aforesaid, the impugned order passed by the Appellate Authority dated 8.2.2012 in the opinion of this Court is unreasoned and non-speaking order wherein the contentions raised by the petitioner in the Appeal are not considered at all or there is absolute non-application of mind by the Appellate Authority.
13. It is apposite to refer to the ratio laid down by the Hon'ble Apex Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Versus Jagdish Sharan Varshney, reported in (2009) 4 SCC 240, paragraphs 8 to 11 read thus :-
"8. In our opinion, an order of affirmation need not contain as Page 24 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case(supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. The view we are taking was also taken by this Court in Divisional Forest Officer V/s. Madhusudan Rao, 2008 2 JT 253 (vide para 19), and in Madhya Pradesh Industries Ltd. V/s. Union of India, AIR 1966 SC 671, siemens Engineering & Manufacturing Co. Ltd. V/s. Union of India, AIR 1976 SC 1785 (vide para 6), etc.
9. In the present case, since the appellate authority's order does not contain any reaons, it does not show any application of mind.
10. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee V/s. Union of India, 1990 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not- Also, giving of reasons Page 25 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
11. No doubt, in S.N.Mukherjee's case (supra), it has been observed (vide para 36) that:
"..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
14. This Court was initially not inclined to entertain present petition, but considering the legal point raised by the petitioner herein with respect to the examination of the petitioner prior to examination of the witnesses, is such that the same was required to be answered by the Appellate Authority in accordance with the rules and regulations.
15. This Court relies on the decision in the case of Kushalbhai Ratanbhai Rohit Versus State Of Gujarat, reported in (2014) 9 SCC 124, paragraphs-7 to 9 read thus :-
"7. In Sangam Lal V/s. Rent Control and Eviction Officer, Page 26 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined Allahabad & Ors., AIR 1966 All. 221, while dealing with the rent control matter, the court came to the conclusion that until a judgment is signed and sealed after delivering in court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed.
8. This Court has also dealt with the issue in Surendra Singh & Ors. V/s. State of U.P., AIR 1954 SC 194 observing as under:
"Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery.Page 27 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment."
9. Thus, from the above, it is evident that a Judge's responsibility is very heavy, particularly, in a case where a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore, one cannot assume, that the Judge would not have changed his mind before the judgment become final."
16. As a general rule, the delinquent should not be interrogated before the some witness or witnesses have been examined in support of the charge. The delinquent must be Page 28 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025 NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined given a fair chance to hear the evidence in support of the charges and to put such relevant questions by way of cross- examination as the delinquent desires, then he must be given a chance to rebut the evidence led against him, depending upon the facts and circumstances of each case.
17. Ms. Bhaya, the learned advocate appearing for the respondent relies on Chapter-VIII of the Board's of Employees' Conduct, Discipline and Appeal Procedure with respect to disciplinary action wherein reliance is placed on Clause (F) of the said Rules.
18. In light of the aforesaid, it is not in dispute that the petitioner herein would be governed by the rules and regulations of the respondent authority and in view thereof this Court deems it fit that the Appellate Authority to consider the contentions raised by the petitioner herein in the Appeal and pass a reasoned order within a period of four weeks from receipt of this Court.
Page 29 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025
NEUTRAL CITATION C/SCA/2835/2012 JUDGMENT DATED: 09/04/2025 undefined
19. This Court has otherwise not opined on the merits of the matter.
20. If the order is adverse to the petitioner, liberty is served in favour of the petitioner to file a note before the Registry to revive the present petition.
21. For the foregoing reasons, the order passed by the Appellate Authority dated 8.2.2012 rejecting the Appeal is quashed and set aside. The present matter is remanded back to the Appellate Authority to decide afresh within a period of four weeks after giving opportunity to both the sides. The present petition is partly allowed. Rule is made absolute to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 30 of 30 Uploaded by K.K. SAIYED(HC00169) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 21:24:49 IST 2025