Ibrahimkhan Jamalkhan Pathan ... vs State Of Gujarat
2022 Latest Caselaw 2264 Guj

    C/SCA/15519/2004                                CAV JUDGMENT DATED: 25/02/2022



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 15519 of 2004

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                       Sd/-
================================================================

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

2      To be referred to the Reporter or not ?                             YES

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

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

================================================================ IBRAHIMKHAN JAMALKHAN PATHAN (DECEASED) Versus STATE OF GUJARAT & 1 other(s) ================================================================ Appearance:

MS DHARA SHAH FOR C J GOGDA(7488) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5

RAJVI N PATEL(9620) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5 MR HARDIK MEHTA, AGP for the Respondent(s) No. 1

================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 25/02/2022 CAV JUDGMENT

1. In the present petition, the petitioner has assailed the order dated 09.05.1984 dismissing him from service and the order dated 11.09.2004 passed in appeal confirming the order of dismissal.

2. During the pendency of this petition, since the petitioner has passed away, the writ petition is pursued by his legal heirs. FACTS:

3. The petitioner was appointed as a Police Sub-Inspector in the year 1963 and was promoted as a Police Inspector in March, 1980 and after

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holding departmental proceedings, he has been dismissed from service by order dated 09.05.1984. A charge-sheet dated 04.07.1981 was served upon the petitioner for holding a departmental inquiry for the misconduct inter alia alleging that:-

(A) The petitioner obstructed the investigation of the FIR being C.R. No.I-109 of 1980 registered for the offence punishable under Sections 302 and 397 of the Indian Penal Code, 1860 (for short "the IPC").

(B) He demanded bribe of Rs.10,000/- from the first informant and his brother-in-law and they were kept in the police custody and tortured and ultimately, the demand was settled for Rs.6,000/-.

(C) With respect to tempering with the record of the Guest House at Chhota Udepur and allegedly trying to create false evidence of his presence at Chhota Udepur, on June 23, 1980 to June 24, 1980 by interpolation of figures "3" into "4".

(D) Created false evidence to show that the petitioner visited the place of incident on June 24, 1980, though the petitioner remained absent at Chhota Udepur.

(E) Tampering with the record inasmuch as he signed the statement of the witnesses recorded on 23.06.1980 though he was not present.

4. A regular departmental inquiry was held by examining 22 witnesses, and after holding the departmental proceedings, the inquiry officer held the charge relating to demand of bribe of Rs.6,000/- as not proved, however rest of the charges were held as proved.

5. It appears that, thereafter the disciplinary authority disagreed with

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the findings of charge no.2 and accordingly, issued a show cause notice dated 08.02.1984 to the petitioner for the reasons of disagreement with the findings of the Inquiry Officer with regard to charge no.2. The petitioner replied to such show cause notice on 01.04.1984 and after considering his reply as well as the findings of the Inquiry Officer, vide impugned order dated 09.05.1984, the disciplinary authority dismissed the petitioner from service.

6. Thereafter, the petitioner filed an appeal against the dismissal order, which was rejected by the order dated 11.09.2004.

SUBMISSIONS:

7. Learned advocate Ms.Dhara Shah appearing for the petitioner has submitted that the impugned order is required to be quashed and set aside since the entire inquiry proceedings were biased, in view of involvement of one Mr.I.A.Erulkar, Deputy Superintendent of Police the documents as demanded by the petitioner were not supplied and in the case of co- delinquent, this Court had set aside the punishment order. She has also referred to the findings of the Inquiry Officer and has submitted that the findings are perverse as the relevant documents were not supplied to the petitioner. No further submissions are advanced.

8. In response to the aforesaid submissions, learned AGP Mr.Hardik Mehta, while placing reliance on the affidavit, has submitted that the impugned order does not require interference since it is not alleged by the petitioner that any of the statutory rules governing the disciplinary proceedings are violated. He has submitted that ample opportunity was given to the petitioner to prove his case, and, the Inquiry Officer, after examining 22 witnesses had held that the charges 1, 3, 4 and 5 as proved.

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It is submitted that the disciplinary authority did not agree with the findings of charge no.2 and after giving the show cause notice to the petitioner, the said charge was also proved. It is submitted that assuming that charge no.2 is not proved, the rest of the charges are serious enough to invite the major penalty of dismissal since the petitioner was serving in the police force and it was not expected from him to engage himself in such misconduct. He has submitted that the judicial review in the disciplinary proceedings are very limited. In support of his submissions, he has placed reliance on the judgment of the Supreme Court in the case of Union of India & Ors. vs. Dalbir Singh, AIR 2021 SC 4504.

9. So far as the contention with regard to the orders passed in the case of co-delinquent is concerned, learned AGP Mr.Mehta has submitted that the order was set aside for the reason that the same was a non-speaking order. It is further submitted by him that the petitioner was given opportunity of hearing while deciding the appeal also and the documents, on which reliance is placed by the Inquiry Officer, have been supplied to him and those documents, on which no reliance is placed, are not required to be supplied. Thus, he has submitted that the writ petition may not be entertained.

CONCLUSION

10. The facts narrated hereinabove suggest that the petitioner was serving in the police department as a Circle Sub-Inspector. He was issued a charge-sheet on 04.07.1981 for the aforementioned charges. The genesis of the charges is the FIR registered being C.R.No.I-109 of 1980 for the offence punishable under Sections 302 and 397 of the IPC on 22.06.1980 at Chhota Udepur Police Station, where the petitioner was serving. The allegations against the petitioner was that he had demanded

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an amount of Rs.10,000/- from the first informant and his brother-in-law. The other charges related to fabrication of the evidence, creation of false evidence and also tampering with the record. It is alleged that he had created the evidence that he had signed the statement of witnesses on 23.06.1980, though he was not present on that day. The Inquiry Officer examined 22 witnesses for proving the charges and accordingly, he held the charge no.3 as not proved. The disciplinary authority did not agree with the findings of the Inquiry Officer with regard to charge no.2, which pertains to the demand of bribe and accordingly, issued a show cause notice dated 08.02.1984, which was replied by the petitioner on 01.04.1984. The show cause notice refers to other charges also, which were proved by the Inquiry Officer. After considering the reply, the petitioner was dismissed from service by the impugned order dated 09.05.1984. The appeal filed by the petitioner was also dismissed by the State Government by the order dated 11.09.2004.

11. It is pertinent to note that, during the intervening period, the petitioner filed Special Civil Application No.2575 of 1984 seeking a direction on the respondent not to dismiss him from service. The said writ petition was disposed of by the judgment and order dated 23.03.2004 since the punishment order of dismissal was already passed on 09.05.1984. It also appears that the petitioner filed Special Civil Application No.6322 of 2004 seeking a direction to set aside the decision of the State Government declining him the interim relief against implementation of the dismissal order. The said writ petition was also dismissed by the order dated 02.09.2004 in view of the order passed by the Appellate Authority, which denied stayed on the proceedings.

12. Ultimately, as noticed hereinabove, by a detailed and

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comprehensive order, the appeal of the petitioner has been rejected by the State Government vide order dated 11.09.2004.

13. The petitioner has raised primary ground that the inquiry proceedings were initiated because of bias of one Mr.Erulkar, Deputy Superintendent of Police, who was the visiting officer for the offence under section 302 of the IPC, where the petitioner was posted. This Court is not impressed with the submissions advanced by the learned advocate for the petitioner since no material is produced before this Court establishing that the entire proceedings were initiated and conducted due to influence of the said officer, and there was an element of bias.

14. Another contention raised is with regard to non-supply of the documents to the petitioner. The petitioner has miserably failed to prove the prejudice caused to him in non-supplying of the documents, which were not relied upon by the inquiry officer. A specific averment is made by the respondent authority in the affidavit-in-reply that irrelevant documents were sought by the petitioner, which were declined by the disciplinary authority and hence, no prejudice was caused to the petitioner in his defence. It is specifically stated that only those documents, which were intended to be used against the petitioner have been supplied to him and he has been given full opportunity to lead his evidence in the inquiry proceedings. Such averment is not controverted by the petitioner. It is well-settled principle of law that only those documents, on which the reliance is placed by the inquiry officer for proving the charge while holding the departmental inquiry, are required to be supplied to the delinquent. Thus, the said contention does not merit acceptance.

15. The third contention raised before this Court is with regard to

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setting aside punishment in the case of co-delinquent. The only order, which is pointed out to this Court is the order dated 05.10.1999 passed in Special Civil Application No.2975 of 1984 in the case of V.J.Solanki. This Court has perused the said order. A bare perusal of the aforesaid order would clarify that the impugned order discharging the concerned petitioner was made without adhering to the principles of natural justice and without passing any speaking order. The Court has also recorded that the charge levelled against the said petitioner was with regard to handing over the money to the present petitioner Mr.Ibrahimkhan Jamalkhan Pathan. Thus, the order was set aside on the technical ground of the punishment of discharge, which was imposed to Mr.V.J.Solanki, being a non-speaking order and in violation of principles of natural justice.

16. In the present case, as noticed hereinabove, the petitioner was given full opportunity to take his defence in the disciplinary proceedings, he was also granted full opportunity to cross-examine the witnesses and also peruse the documents. The entire petition is blissfully silent on violation of any of the statutory rules or regulations under which the disciplinary proceedings are held. Neither the memo of the writ petition nor from the submissions of the learned advocate for the petitioner, it is pointed out that the disciplinary proceedings are held in violation of the principles of natural justice or there is absolute ignorance of the rules under which such proceedings are held. In fact, no statutory rules are referred in the entire writ petition, however, the impugned order as well as the charge-sheet reflect that the disciplinary proceedings are conducted under the provisions of the Gujarat Police Act, 1951 and the Gujarat Police (Punishment and Appeal) Rules, 1956 (for short "the Rules"). The Appellate Authority has also, by a comprehensive order while dealing with all the contentions as well as findings of the Inquiry Officer's report

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and the order of the disciplinary authority, has rejected the appeal of the petitioner, while exercising the powers under Section 27 of the Act.

17. This Court does not find any illegality in the order of the Appellate Authority also. The Supreme Court in the case of Dalbir Singh (supra), after survey of various judgments on the issue of judicial review, has held thus:-

"29......It is not a case of no evidence, which alone would warrant interference by the High Court in exercise of power of judicial review. It is not the case of the writ petitioner that there was any infraction of any rule or regulations or the violation of the principles of natural justice."

The Supreme Court has considered the case of Union of India & Ors. vs. P. Gunasekaran, (2015) 2 SCC 610, wherein the Supreme Court has prescribed the broad parameters for the exercise of jurisdiction of the judicial review in cases of disciplinary proceedings. It is held thus:-

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience ."

18. In the present case, all the parameters, as suggested by the Supreme Court, are satisfied. It is not the case of the petitioner that the inquiry is not held by the Competent Authority or the procedure is not followed or there is violation of principles of natural justice. It is also not found by this Court that the authorities have held themselves to be influenced by irrelevant and extraneous consideration. The conclusion and the imposition of the punishment cannot be said to be arbitrary or disproportionate. As held by the Supreme Court, this Court, while exercising the powers under Articles 226 and 227 of the Constitution of India, cannot appreciate the evidence or interfere with the conclusion, in the inquiry and go into adequacy of the evidence and reliability of the evidence. The Supreme Court has also directed that the Court cannot interfere, if there is some legal evidence, on which the findings are based or correct the error of fact, howsoever, grave it may appear and finally go into proportionality of punishment unless it shocks its conscience.

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19. In the present case, the petitioner was serving in a police department and he has been found to be indulged in serious misconduct. The proved charges are serious enough to invite major punishment like dismissal.

20. For the foregoing reasons and analysis, the writ petition fails. Rule is discharged.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/67