Jayantilal Gangarambhai Jalalji vs State Of Gujarat
2022 Latest Caselaw 1531 Guj

     C/LPA/1437/2016                                           JUDGMENT DATED: 10/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/LETTERS PATENT APPEAL NO. 1437 of 2016


                 IN R/SPECIAL CIVIL APPLICATION NO. 11835 of 2007


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

==========================================================

1     Whether Reporters of Local Papers may be allowed to see No
      the judgment ?

2     To be referred to the Reporter or not ?                               No

3     Whether their Lordships wish to see the fair copy of the No
      judgment ?

4     Whether this case involves a substantial question of law No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                    JAYANTILAL GANGARAMBHAI JALALJI
                                     Versus
                       STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR HASIT H JOSHI(2480) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 2,3,4
NOTICE SERVED for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                     Date : 10/02/2022

                                  ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the impugned judgment and order dated 28.04.2016 passed in Special Civil Application No. 11835 of 2007, the original petitioner

C/LPA/1437/2016 JUDGMENT DATED: 10/02/2022

preferred this intra court appeal under Clause-15 of the Letters Patent Appeal.

2. The following facts emerge from the record of the appeal.

2.1 The appellant was working as an Armed Police Constable in Rajkot (Rural) District Police. The appellant came to be charge-sheeted on 21.08.1989, wherein in a nutshell the following charges are made available:

(i) that when the appellant was posted at Dhoraji Police Station and was given assignment duty of guard of treasury, he came to duty late, without belt and cap and abused the police constable on duty and had altercation with him. The said charge-sheet was replied by the appellant and the same culminated into a show cause notice dated 27.08.2001. After a full fledge inquiry by an order dated 17.09.2001, an order of compulsory retirement was passed by the competent authority. The record indicates that the appellant preferred an appeal before the Special Director of Police on 15.10.2001, the order passed by the competent authority dated 17.09.2001 came to be confirmed vide order passed by the appellate authority on 26.11.2001. The appellant filed a revision, which culminated into an order dated 01.12.2001. The appellant thereafter filed second revision, which culminated into an order dated 17.10.2005. Such concurrent findings of facts came to be challenged by the appellant by filing a writ petition under Article 226 of the Constitution of India being Special Civil Application No. 11835 of 2007 on the grounds that are mentioned in Para-12 of the writ petition.

C/LPA/1437/2016 JUDGMENT DATED: 10/02/2022

3. The respondent- State filed a detailed affidavit opposing the petition. The learned Single Judge by the impugned judgment and order was pleased to dismiss the petition. Against which, the present appeal is filed.

4. Heard Mr. Harshit Joshi, learned advocate appearing for the appellant and Ms. Dhwani Tripathi, learned Assistant Government Pleader for the respondent- State.

5. Mr. Harshit Joshi, learned advocate appearing for the appellant contended that looking to the gravity of charges, the punishment is disproportionate. Referring to the charges at Page-12 of the paper book, Mr. Joshi, learned advocate appearing for the appellant contended that the nature of the charge is only not wearing the cap and not putting the belt and for such charge, the appellant has been asked to compulsory retired. Learned advocate appearing for the appellant has relied upon the judgment of the Division Bench of this Court in Letters Patent Appeal No. 1798 of 2004 and contended that the gravity of charge are such that the same does not warrant compulsory retirement. It is further contended that the authority have considered the material, which is non - germane and by passing the order of compulsory retirement, the appellant have lost their compassionate pension for long service of 34 years. It is further contended that there is no past record of the appellant which warrants such a harsh and disproportionate punishment. It is also submitted that the appellant has been acquitted from the criminal offence. It is submitted that the appeal be allowed.

6.      Per     contra,   Ms.   Dhwani     Tripathi,   learned       Assistant





      C/LPA/1437/2016                                       JUDGMENT DATED: 10/02/2022

Government Pleader for the respondent - State has opposed the appeal and contended that the findings of fact arrived at by all the authorities clearly establishes the fact that punishment imposed upon the appellant any terms it cannot be called excessive of disproportionate. It is also reminded this Court limited power of judicial review in cases of domestic inquiry. It is also submitted that it is not the case of the appellant that there was any procedure lapse or that the finding of such inquiry officer has based on no evidence. It is submitted that the learned Single Judge has rightly dismissed the petition confirming the oral orders passed by fact finding of inquiry. It is submitted that the appeal is meritless and deserves to be dismissed.

7. Having heard learned advocates for the parties, we find that the learned Single Judge after considering the very submissions which were canvassed before this Court has observed thus :

11. So far as the question of proportionality of punishment imposed on the petitioner is concerned, the petitioner was a member of the disciplined force and it was exclusive prerogative of the competent authority to take appropriate disciplinary action against him on the charges of remaining absent and disobeying the commands of the superior authorities requiring him to resume duty and we do not find any reason to disagree with the learned Single Judge that the discretion exercised by the disciplinary authority in the matter of punishment does not call for interference by the Court.

12. The scope of judicial review of the disciplinary action taken by the competent authority against delinquent employees has become subject matter of large number of cases. The employees often invoke doctrine of proportionality by contending that the punishment imposed by the disciplinary authority is arbitrary, excessive, unreasonable or shockingly disproportionate. In some cases, the Courts invoked the doctrine of proportionality and modified/substituted the punishment imposed by the disciplinary authority but in majority of cases the Courts have recognized

C/LPA/1437/2016 JUDGMENT DATED: 10/02/2022

the prerogative of the employee to impose appropriate penalty on the delinquent employee.

13. In Omkumar v. Union of India, ( 2001) 2 SCC 386 the Supreme Court considered the applicability of the doctrine of proportionality in the context of Article 14 of the Constitution, referred to the judgments in Ranjit Thakur v. Union of India, (1987) 4 SCC 611, B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 and then observed:

"In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would nor normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham."

"Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has beenlong delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."

14. The Supreme Court has consistently held that in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court will not interfere with the punishment imposed by the competent authority merely because it feels that it is harsh or that a different view could have been taken of the misconduct committed by the employee. The court can direct the competent authority to reconsider the question of punishment only if it comes to a definite conclusion that the same is shockingly disproportionate to the misconduct or is totally arbitrary or there has been a non- consideration of the relevant factors or where irrelevant considerations have weighed with the competent authority for imposing the particular punishment.

15. So for as the decision of the Supreme Court in the case of Asgar Ibrahim Amin (supra) is concerned, the same is not applicable to the

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facts of the present case. Moreover, the learned advocate Mr. Joshi has led along from the head note of the judgment. Upon reading of the judgment as a whole the head note is found to be mislead what is observed in paragraph No.20. It appears from the observation made in paragraph No.20 that the term with "termination of service" is used in context the voluntary retirement of the petitioner of the said judgment and therefore when reading of the judgment as a whole does not create any impression that the termination or resignation or compulsory retirement would not wash away the post service of the petitioner so as to entitle him to pension."

8. It also deserves to be noted that it is not on a trival issue that the actions are taken against the appellant. As rightly observed by the learned Single Judge, the appellant was in a armed force, where standard of discipline is much higher and apart from the fact that the cap and belt were not applied on inquiry made by the person on duty as to why the appellant has come late, the appellant reverted with abuse which amounts to unbecoming of servant of a disciplined force. Therefore, it cannot be said that the punishment imposed is disproportionate. We may refer to the judgment of the Hon'ble Apex Court in the case of Pravin Kumar Vs. Union of India and others reported in (2020) 9 SCC 471, wherein the Hon'ble Apex Court has set out the parameters of judicial review in service matters and observed thus:

"I. Scope of Judicial Review in Service Matters

25. Learned counsel for the appellant spent considerable time taking us through the various evidences- on record with the intention of highlighting lacunas and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision making process, and not the merits of the decision itself. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

C/LPA/1437/2016 JUDGMENT DATED: 10/02/2022

26. These principles are succinctly elucidated by a three judge Bench of this Court in BC Chaturvedi v. Union of India in the following extract:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:

(i) State of Tamil Nadu v. S Subramaniam, (1996) 7 SCC 509.

(ii) Lalit Popli v. Canara Bank, (2003) 3 SCC 583.

(iii) Himachal Pradesh State Electricity Board Ltd v. Mahesh Dahiya, (2017) 1 SCC 768.

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28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well- reasoned. Furthermore, the High Court didn't restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.

30. Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder."

9. This Court can not act as an appellate authority while examining the issue which are raised by the learned advocate for the appellant. We are in total agreement with the observations made by the learned Single Judge. The appeal therefore fails and deserves to be dismissed. The appeal is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Salim/