Jayprakash Gunvantrai Vyas vs State Of Gujarat
2021 Latest Caselaw 18373 Guj

     C/SCA/4711/2010                                 JUDGMENT DATED: 14/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4711 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1   Whether Reporters of Local Papers may be allowed
    to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                   JAYPRAKASH GUNVANTRAI VYAS
                                   Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MR CJ VIN(978) for the Petitioner(s) No. 1
MR TIRTHRAJ PANDYA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
RULE SERVED BY DS(65) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 14/12/2021

ORAL JUDGMENT

1. By way of this petition, under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned order dated 26.03.2010.

2. It is the case of the petitioner that the petitioner was discharging his

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functions as District Registrar, Co-operatives Societies (City) Ahmedabad between 29.05.1997 to 02.06.1999. During this passage of time, the Government Servant's Co-operative Housing Society tendered a proposed amendment to the bye-laws of the Society for approval. The said application was filed on 11.08.1998. Based upon the receipt of the said application, the petitioner issued notice on 27.08.1998 for extending an opportunity of hearing and the date was given of 15.09.1998. According to the petitioner, the said application was merely for the purpose of approval and/or modification of bye-laws of the Society and as such, though notice was issued, no opportunity or bi-prate hearing was to be given in fact.

2.1. According to the petitioner, the office bearers had approached the petitioner to request the matter to be heard on 28.08.1998 instead of 15.09.1998 and with all bona fides, the petitioner acceded to the request, heard the matter, and suggested two changes in the amendment of bye laws which has been sought. The petitioner disapproved those individual unit holders who constructed on one plot to become members and that only one plot holder shall become members of the Society, irrespective of the fact that various units might have been constructed on one plot and to that effect an order was passed on 01.09.1998 and the notice of Hon'ble High Court of Gujarat was received by the petitioner only on 02.09.1998 and day after the order being passed by the petitioner, later on the said petition came to be disposed of as withdrawn being Special Civil Application No. 6960 of 1998 on 11.04.2000, but the fact of preponement of hearing was made the subject matter of charge against the petitioner.

2.2. It is the case of the petitioner that the respondent authority charged the petitioner by indicating that the co-operative society did not permit for more than one member occupying one plot, the present petitioner had

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made 15-20 occupants of one complex as members of the Society and thereby acted in a manner defeating the very object of the co-operative society and further charge levelled against the petitioner is that though as per the notice hearing was fixed on 15.09.1998 and though the petitioner was aware about the proceedings filed before the Hon'ble High Court and the order was passed by the Hon'ble High Court of Gujarat on 28.08.1998, the petitioner heard the matter on 28.08.1998 and passed an order on 01.09.1998 in parallel to the order passed by the Hon'ble High Court which again has generated a suspicion about his bona fides. As a result of this, charge sheet came to be filed on 12.02.2001.

2.3. The petitioner further states that the said charges were explained by the petitioner and indicated that there was no mala fide intent of the petitioner in preponement of hearing or to pass the order prior to High Court's order. The explanation tendered by the petitioner was not accepted and the Inquiry Officer and the Presenting Officer were appointed on 20.08.2002. The petitioner submitted a detailed reply on 29.01.2004 on receipt of brief note by Presenting Officer and thereafter notice was issued upon the petitioner on 25.11.2008 after an unreasonable period when DPC was to meet in the near future, for the first time, show cause notice as stated above was served on 25.11.2008 to which, a reply was given on 03.12.2008 raising important issues and disputed the charges levelled against the petitioner. It was also pointed out that there was no charge of illegal gratification of any nature, but then, the authority assumed against the petitioner and the bona fides about the haste shown by the petitioner and proceeded to pass an order irrespective of the fact that the inquiry officer had opined that there was no question of taking any money nor any allegation of such a nature and though the allegation was held to be not proved, as suggested by the inquiry officer, the disciplinary authority issued notice indicating the petitioner as to why penalty should not be

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inflicted upon and, therefore, ultimately without considering the stand of the petitioner, an order of penalty came to be passed on 26.03.2010, which is made the subject matter of challenge in the present proceedings.

3. The matter was admitted by the Court on 16.04.2010 and after completion of the pleadings, the same has come up for consideration before this Court in which, learned advocate Mr. C.J. Vin appearing on behalf of the petitioner has vehemently contended that here is a case in which the authority ought not to have issued the order of penalty, especially, when there was no charge of either illegal gratification or related to it. A mere fact of preponement of hearing ought not to have been seen as an undue haste of the petitioner, on the contrary, on receipt of the writ from the Hon'ble High Court, the petitioner has informed the office bearers of the Society not to implement his order which has been passed on 01.09.1998, and as such, there is no infirmity of any nature by the petitioner which can be construed as misconduct. Learned advocate Mr. Vin has further submitted that the authority has proceeded on the wrong premise that despite the Hon'ble High Court having been granted the stay order, the petitioner preponed the date and passed the order, prior to Hon'ble High Court dealing with the matter and that undue haste of preponing of hearing is made the subject matter of inquiry as if the petitioner has committed serious conduct. According to learned advocate Mr. Vin, there was no stay order given by the Hon'ble High Court and ultimately, the said writ petition came to be disposed of as withdrawn later on. Hence, the order of penalty deserves to be quashed and set aside as the same is issued under the mistaken belief.

3.1. Learned advocate Mr. Vin has further submitted that the petitioner is authorized to amend the bye-laws of the Society by virtue of provisions contained under the Gujarat Co-operative Societies Act, precisely Section

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13 of the Act and the same according to learned advocate Mr. Vin is merely an administrative measure for which no hearing is required and as such, even if the date of hearing is proponed, the same would be of no consequence and further merely an order which has been passed on 01.09.1998, is not dehors the provisions of Gujarat Co-operative Societies Act. Neither any appeal is filed nor any proceedings have been carried out, but still undue haste has been assumed by the authority and the petitioner is inflicted with the penalty.

3.2. Learned advocate Mr. Vin has further contended that had there been any intention to flout the order even if passed, the Society people would not have been informed not to implement the order since he is in receipt of the writ of the Hon'ble High Court on the next date of passing the order, however, learned advocate Mr. Vin has candidly submitted that such information given to the office bearers of the Society is not taken before the disciplinary authority nor in reply to the charge sheet as well and it is only stated in the petition memo. Further be that as it may, according to learned advocate Mr. Vin, this preponement ought not to have been viewed in such a serious or suspicion manner to put at stake the long standing career of more than 25 years. It has further been submitted that on one hand instructions are being passed to dispose of the cases in a short while, without any undue delay and when authorities are preponing the date, the same is being viewed with suspicion. Hence, according to learned advocate Mr. Vin, the decision taken by the disciplinary authority is merely based upon conjunctures and surmises and there is hardly any reason to sustain the order of penalty. Even the inquiry officer has also pointed out in its report that the allegations levelled against the petitioner are not proved, but the disciplinary authority has taken a contrary view which is not in consonance with the proposition of law laid down. Hence, the order impugned deserves to be quashed and set aside in the interest of

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justice. It has further been submitted that even personal hearing has not been extended to the petitioner which also indicates violation of the principles of natural justice and that being the position, the order of penalty be quashed and set aside.

4. As against this, Mr. Tirthraj Pandya, learned Assistant Government Pleader appearing on behalf of the respondent authorities has submitted that while passing the impugned order the disciplinary authority has exercised discretion after compliance of the principles of natural justice. A detailed show cause notice has been given to the petitioner to which the petitioner has availed that opportunity by filing reply and after considering the said reply and the relevant material, the disciplinary authority has passed an order by arriving at a conclusion after considering the relevant material on record. Hence, such conclusion arrived at by the authority does not deserves to be disturbed in the interest of justice, especially when there is no other distinguishable material placed before the Court or any perversity is shown by the petitioner. The learned Assistant Government Pleader has further submitted that an assertion is made that no opportunity of hearing is given, however, the petitioner has not prayed for or insisted upon and as such, opportunity of explanation which is the basic requirement is already complied with and availed by the petitioner, such plea of violation of principles of natural justice is not available to the petitioner and as such, a detailed well reasoned order by the authority may not be questioned by the petitioner in exercise of extra ordinary jurisdiction in the absence of patent illegality or material irregularity. Law requires to extend opportunity and that has been availed by the petitioner. It has further been submitted that if a close perusal of the charge levelled against the petitioner to be seen, the haste which has been shown by the petitioner is not explained anywhere right from the beginning of submitting reply and even in this petition, as well. The date of hearing

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which was given on 15.09.1998 is preponed and passed an order on 01.09.1998 knowing fully well that proceedings have been initiated in the Hon'ble High Court and without waiting for that, date is preponed and the order came to be passed. Now this circumstance has never been explained as to upon which request or upon which application the said date of 15.09.1998 is preponed. There appears to be complete silence on this which fact has been clearly noticed by the disciplinary authority and learned advocate Mr. Vin has also candidly submitted that though there appears to be no cogent explanation and as such, the learned Assistant Government Pleader has requested the Court not to substitute the findings when such is the peculiar set of circumstance visible from the record. A detailed order with valid reason is passed by the authority the same may not be disturbed.

5. At this stage, learned advocate Mr. Vin in rejoinder has pointed out the status report of the writ petition being Special Civil Application No. 6960 of 1998 and made an attempt to persuade the Court that there was no intention of the petitioner in preponing the date of hearing.

6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, the Court has noticed that the disciplinary authority while differing with the findings of the inquiry officer has extended opportunity to the petitioner as per the requirement of law and the said notice has been given on 26.11.2008 and such opportunity to explain is availed by the petitioner by submitting reply before the authority. The final defence statement which has been attached, on perusal of it would also indicate that there is no remote explanation about preponement of date of hearing from 15.09.1998 to 28.08.1998 and have passed the order of penalty. The basic charge having been found to be proved by the disciplinary authority, the authority has passed an order

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of penalty after complying with the principles of natural justice and as such, the Court see no reason of violation of non granting of opportunity to the petitioner. On the contrary, a bare reading of the order under challenge is indicating that the same is supported by the reasons to arrive at an ultimate conclusion and the same is well within the authority which is not in dispute. From the aforesaid circumstance, it appears to this Court that there is no patent illegality or any perversity reflecting from the order under challenge and as such, in absence of such circumstance, it is not open for this Court to substitute the view arrived at by the authority based upon proper lawful process. Hence, the Court see no reason to entertain the petition.

7. At this stage, the Court is of the view that the law is well settled on the issue of judicial review over the departmental proceedings and the ultimate penalty order. Time and again, the Hon'ble Apex Court including various High Courts have propounded proposition that examination by the Court is very very limited and finding of the disciplinary authority if based upon the material on record, the same may not be interfered with unless there appears to be any mala fides or perversity. Here, in this case, no mala fides are alleged, but even the perversity is also not reflecting inasmuch as the petitioner himself has not offered any cogent explanation to satisfy the basic charge. It is only that an attempt is made to indicate by a bald assertion that since the request was made by the Society, the date was preponed. This stand of the petitioner is not supported by any material. Hence, the conclusion arrived at by the disciplinary authority does not call for any interference.

8. Even the reiteration of the said principle is quite visible from the recent decision delivered by the Hon'ble Apex Court in the case of Deputy General Manager (Appellate Authority & Ors., v Ajai Kumar Srivastava

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reported in (2021) 2 SCC 612, wherein the concept of judicial review has been discussed and reiterated the relevant paragraphs contained therein are reproduced hereunder :-

"27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.

28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.

29. In the case on hand, the charge−sheet was served upon the respondent delinquent for misappropriation of public funds by affording fake credits in his various accounts maintained at the branch where he was serving (Mumfordganj Branch) during the relevant period. In all, 7 charges were levelled against him of grave misconduct which he had committed in discharge of his official duty and after affording an opportunity of hearing to the respondent delinquent and due compliance of the principles of natural justice, the enquiry officer in his report while dealing with the preliminary objections raised by the respondent delinquent specifically indicated that the details of enquiry report contained 22 pages along with documents produced by the presenting officer marked as PEX−1 to PEX−28 to establish the allegations/charges levelled against the respondent delinquent who neither produced any document nor witness in his defence. It was further indicated that the respondent stated in the course of enquiry that he neither wants to say anything about the prosecution document nor he wants to ask any question to the presenting officer and never requested to seek permission to defend the representative of his choice.

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39. The Constitution Bench has clearly laid down that even after the charges which have been proved, justify imposition of penalty, the Court may not exercise its power of judicial review."

10. Yet another observations of the decision of the Hon'ble Apex Court in the case of Allahabad Bank & Ors., v. Krishna Narayan Tewari reported in (2017) 2 SCC 308, is also considered by the Court and as such, the Court deems it proper to reproduce hereunder the relevant observations

"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty- bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position n the present case. Non- application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case on hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence ha not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told. The enquiry officer, the disciplinary authority and the appellate authority have altered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.

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8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back tot he authority concerned to redo the same afresh. That course would have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise necessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand."

11. From the aforesaid discussion and in view of the proposition of law laid down by the Hon'ble Apex Court as stated herein before, this Court is of the opinion that the authority when has taken a decision to arrive at a particular conclusion in respect of penalty on the basis of the material available on record, there is hardly any justifiable reason to disturb the findings arrived at by the disciplinary authority more particularly, when cogent explanation qua basic charge has not come forward. As a result of this, no case is made out by the petitioner to call for any interference and as such, the petition being devoid of merit, stands dismissed. Rule is discharged. Interim relief if any, stands vacated.

(ASHUTOSH J. SHASTRI, J) phalguni