Gujarat High Court
Yavarhusain Ismail Shaikh vs Divisional Controller, Gujarat State ... on 22 July, 2025
NEUTRAL CITATION
C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6599 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6891 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 7060 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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YAVARHUSAIN ISMAIL SHAIKH
Versus
DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT
CORPORATION, AHMEDABAD DIVISION
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Appearance:
ANURADHA G RATHOD(7717) for the Petitioner(s) No. 1
MR GK RATHOD(2386) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/07/2025
COMMON ORAL JUDGMENT
1. Since the issues raised in these petitions are similar in nature, they are being decided by a common judgment. For the purpose of adjudication, the facts of Special Civil Page 1 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined Application No. 6891 of 2025 are being taken as the lead case.
2. Rule returnable forthwith. Learned advocate Mr.Munshaw waives service of Rule on behalf of the respondent.
3. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award passed by the learned Industrial Tribunal, Ahmedabad, in Reference (IT) Nos. 93 of 2019 dated 09.07.2021, 102 of 2021 dated 01.12.2021, and 92 of 2019 dated 09.07.2021 in Special Civil Application Nos. 6891 of 2025, 6599 of 2025, and 7060 of 2025, respectively, whereby the Tribunal has set aside the punishment imposed by the employer with regard to placing the petitioner on the minimum pay scale (basic pay) and imposing the punishment of stoppage of five increments with future effect.
4. It is the case of the present petitioner that he was working as a Clerk since 15.02.1994 in the respondent Corporation at the Viramgam Depot. A chargesheet was issued alleging that, while the workman was on duty on 03.01.2015, one Mr. Chaudhary came to the Viramgam Page 2 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined Depot and made allegations that his Clerk and other employees, in connivance with each other, had stolen diesel. A preliminary inquiry was conducted, and a report was submitted, following which the petitioner was served with a chargesheet on 23.02.2015. Upon conclusion of the departmental inquiry, the petitioner was imposed the punishment of being placed at the minimum of the pay scale, vide order dated 12.01.2016. Challenging the said punishment, a dispute was raised before the learned Tribunal, which was numbered as Reference (IT) No. 93 of 2016. The learned Tribunal, after hearing the parties, substituted the punishment of placing the petitioner at the minimum pay scale with that of stoppage of five increments with future effect, which is the subject matter of challenge before this Court.
5. Heard learned advocate Ms.Anuradha Rathod for the petitioner and learned advocate Mr.H.S.Munshaw for the respondent.
6. Learned advocate Ms. Rathod submits that the petitioner was not involved in the alleged diesel theft scam and that the punishment was imposed without any Page 3 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined supporting evidence. It is further submitted by learned advocate Ms. Rathod that the Prosecutor and the Judge were the same person, which is contrary to the principles of natural justice, and therefore, the impugned award deserves to be set aside.
7. On the other hand, learned advocate Mr. Munshaw, appearing for the respondent, is unable to rebut the submission regarding the fact that the Prosecutor and the Judge were the same person. Learned advocate Mr.Munshaw submitted that since this ground was not raised before the learned Reference Court, it is not open for the petitioner to raise it before this Court, and in that background, the present petition deserves to be dismissed.
8. Having considered the arguments advanced by the learned advocates and upon referring to the record, it emerges that the reporter, namely Mr. A.G. Chaudhary, who is a Security Officer, conducted a secret inquiry and submitted his report on 15.05.2015 to the Deputy Head of Security. Based on the said report, a chargesheet was issued by Mr. M.N. Goswami, Competent Authority and Divisional Works Superintendent, S.T.Division, Page 4 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined Ahmedabad. Thereafter, an inquiry was conducted by Mr. Goswami, Competent Authority and Divisional Works Superintendent, S.T.Division, Ahmedabad, who submitted the inquiry report on 21.07.2015. The said Mr. Goswami, in his capacity as Competent Authority and Divisional Works Superintendent, S.T.Division, Ahmedabad, also issued the show cause notice intimating the present petitioner regarding the proposed action, and subsequently passed the punishment order dated 12.01.2016. From the record, it appears that the show cause notice, chargesheet, and the final punishment order were all issued by the same person, i.e. Mr. Goswami, Competent Authority and Divisional Works Superintendent, S.T.Division, Ahmedabad.
9. This Court has referred the decision of the Apex Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, reported in (1993) 4 SCC 727. In the said judgment, it was held that where the Inquiry Officer is a person other than the Disciplinary Authority, the disciplinary proceedings are divided into two distinct stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the Page 5 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. While right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. It is well-settled that before the Disciplinary Authority takes into consideration the findings contained in the Inquiry Officer's report, the delinquent employee must be afforded an opportunity to submit a representation against those findings. The right to show cause against the proposed penalty, however, arises at the second stage, that is, after the Disciplinary Authority has considered the report, formed an opinion regarding the guilt of the employee, and proposed to impose a specific penalty. At the first stage, the employee is granted an opportunity to dispute the findings of the Inquiry Officer and to establish his or her innocence. At the second stage, assuming the conclusion as to guilt is accepted, the employee is entitled to make a representation to seek either no penalty or a lesser penalty. The second stage consists of issuance of notice to show cause Page 6 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there.
10. This Court has also considered the decision rendered by the Apex Court in the case of Union of India & Ors. v. Ram Lakhan Sharma, reported in (2018) 7 SCC 670, wherein it was held that the issue as to whether the Inquiry Officer, who is expected to act independently and impartially in a disciplinary inquiry, has assumed the role of a prosecutor, is essentially a question of fact. Such determination must be made based on the facts and the proceedings of the particular case. In a relevant paragraph of the judgment, the Apex Court enunciated the principle as under:
"33. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position Page 7 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-
appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in- chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross- examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations Page 8 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."
11. The Apex Court has also referred to the decision rendered by the Division Bench of the Madhya Pradesh High Court in Union of India v. Mohd. Naseem Siddiqui, reported in ILR (2004) MP 821, wherein the judgment was authored by R.V. Raveendran, C.J. In that case, the Court had the occasion to consider the issue of vitiation of inquiry proceedings when the Inquiry Officer departs from his neutral role and assumes the character of a prosecutor. The relevant paragraph is reproduced as under:-
"One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias,
(ii) The adjudicator shall not be the prosecutor,
(iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,
(vi) The Adjudicator shall not decide on the dictates of his Superiors or others,
(vii) The Adjudicator shall decide the issue with reference to Page 9 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined material on record and not reference to extraneous material or on extraneous considerations.
If any one of these fundamental rules is breached, the inquiry will be vitiated"
12. Having considered the legal position discussed above, this Court is of the opinion that the Inquiry Officer, while acting as a quasi-judicial authority, occupies the position of an independent adjudicator. He is not expected to act as a representative or agent of the Department, the Disciplinary Authority, or the Government. It is incumbent upon him to maintain complete impartiality, and he must not assume the dual role of prosecutor and judge. His primary duty is to objectively examine the evidence presented by the Department and, even in the absence of the delinquent official, to assess whether the unrebutted evidence on record is sufficient to establish the charges. In the present case, as discussed hereinabove, it is evident that the charge-sheet, the show-cause notice, the inquiry report, and the punishment order were all issued and authored by the same individual, namely Mr. Goswami, Competent Authority and Divisional Works Superintendent, S.T.Division, Ahmedabad. This convergence of roles Page 10 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined gives rise to a serious apprehension of bias and suggests that the inquiry was reduced to a mere empty formality, lacking the essential safeguards of a fair disciplinary process. Consequently, the disciplinary proceedings stand vitiated for failure to adhere to the principles of natural justice.
13. The contention raised by the learned advocate, Mr. Munshaw, that this issue was not urged before the learned Reference Court is noted. However, in the considered opinion of this Court, when Article 311(2) of the Constitution mandates following the principal of natural justice in violation of such a constitutional safeguard can be examined by this Court in the exercise of its writ jurisdiction under Article 226. Therefore, the objection raised by the learned counsel is untenable and does not preclude this Court from considering the issue on merits.
14. Resultantly, these petitions are allowed, and the punishment order passed by the learned reference court in Reference (IT) Nos. 93 of 2019 dated 09.07.2021, 102 of 2021 dated 01.12.2021, and 92 of 2019 dated 09.07.2021 in Special Civil Application Nos. 6891 of Page 11 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025 NEUTRAL CITATION C/SCA/6599/2025 JUDGMENT DATED: 22/07/2025 undefined 2025, 6599 of 2025, and 7060 of 2025, respectively is hereby and set aside.
15. Rule is made absolute.
(M. K. THAKKER,J) NIVYA A. NAIR Page 12 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:12:48 IST 2025