Gujarat High Court
Mahendarsinh .N. Jadeja vs District Development Oficer on 28 February, 2022
Bench: A.S. Supehia
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.13017 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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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
of India or any order made thereunder ? NO
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MAHENDARSINH .N. JADEJA
Versus
DISTRICT DEVELOPMENT OFICER & 1 other(s)
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Appearance:
MR HASIT H JOSHI(2480) for the Petitioner(s) No. 1
MS KHYATI P HATHI(346) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/02/2022
ORAL JUDGMENT
1. In the present writ petition, the petitioner
has assailed the judgement dated 06.03.2006 passed
by the Gujarat Civil Services Tribunal, Gandhinagar
rejecting Appeal No.90 of 2005 preferred by the
petitioner, wherein and whereby the Tribunal has
confirmed the order of dismissal dated 01.06.2004
passed by the Deputy District Development officer
(Revenue), Jamnagar District Panchayat, and the
appellate order dated 16.12.2004 passed by the
District Development Officer, Jamnagar. A further
prayer is also made to quash and set aside the
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
order dated 11.04.2019 passed by District
Development Officer, Jamnagar.
2. The petitioner was appointed as Godown Keeper-
cum-clerk from 20.09.1980 for the stock meant for
Integrated Child Development Scheme (ICDS) from
27.07.1985 to 16.09.1997. The Programme Officer in
charge of ICDS drew the notice of the panchayat
authorities to certain defaults in respect of the
management of the Godown at Kalavad. The internal
auditors of Jamnagar District Panchayat brought out
certain serious irregularities and suspected
defalcation in respect of the food articles meant
for ICDS.
2.1 It was alleged against the petitioner that he
sold away 328 bags of wheat and 150 kgs. of Grams
unauthorizedly and retained the sale proceeds
thereof amounting to Rs.1,99,050/-. In the year
1997, initial notice was issued to the petitioner
for showing cause for the aforesaid irregularity.
The petitioner was again asked on 03.08.1998 to
explain the matter. Thereafter, the officer in
charge of ICDS was authorized to file a criminal
complaint against the petitioner. Accordingly, two
criminal complaints were filed for the one and the
same offence.
2.2 The petitioner was charge-sheeted on
30.10.1998 and inquiry proceedings were initiated
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
against the petitioner. The inquiry officer has
found that the charges have been established.
Respondent No.2 accepted the report of the inquiry
officer and after giving the petitioner final show-
cause notice, the impugned order of dismissal dated
01.06.2004 was passed by the Deputy District
Development Officer (Revenue), Jamnagar District
Panchayat.
2.3 Aggrieved by the aforesaid dismissal order,
the petitioner filed an appeal before respondent-
District Development Officer, Jamnagar on
05.07.2004, who, after hearing the appeal on
18.10.2004 passed the impugned order dated
16.12.2004 rejecting the appeal.
2.4 Aggrieved by the aforesaid order dated
16.12.2004, the petitioner preferred Appeal No.90
of 2005 before the Gujarat Civil Services Tribunal,
Gandhinagar (the Tribunal), which was rejected by
the impugned order dated 06.03.2006. Hence, the
present petition.
3. Learned advocate for the petitioner submits
that the order of punishment of dismissal passed by
the disciplinary authority under Rule 6 of the
Gujarat Panchayat Service (Discipline and Appeal)
Rules, 1997 is highly disproportionate to the guilt
established and, therefore, not tenable in law. It
is submitted that while the criminal proceedings
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
were pending against the petitioner for the same
allegation and charge leveled against him, the
respondent authorities have chosen to conduct
disciplinary action and before conclusion of the
criminal proceedings, the disciplinary authority
has passed order of removal from service
disqualifying him for future employment under Rule
6 of the Rules, 1997. It is submitted that
thereafter, the criminal court had decided on
26.05.2005 giving clean acquittal to the petitioner
for the same allegation and charge. It is submitted
that since the order of clean acquittal was not
available during the disciplinary proceedings it
was pointed out before the Tribunal at the time of
deciding the appeal.
3.1 Learned advocate for the petitioner submits
that bare perusal of the order passed by the
Tribunal would make it explicitly clear that this
has not been considered while deciding the appeal
of the petitioner against the order of removal
under Rule 6 of the Rules, 1997. It is submitted
that this Court had passed an order dated
30.01.2014 that in light of the order of the
criminal court dated 26.05.2005, it would be
appropriate that the respondent authority to
consider his case for compulsory / premature
substituting the order of dismissal by the said
order. It is submitted that thereafter vide order
dated 11.04.2019, the respondent-District
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
Development Officer, Jamnagar has maintained the
order of dismissal.
3.2 He has submitted that since it is not disputed
by the respondents that the criminal proceedings
and the departmental inquiry are based on the same
set of facts, charges and evidence, on his clean
acquittal, the Tribunal should have applied its
mind. However, it is submitted that the Tribunal
has, in fact, examined the judgment as if it is
seeking in the criminal appeal. Thus, it is
submitted that the matter may be remanded. As
noticed herein above, the respondents have not
disputed the clean acquittal of the petitioner and
in fact it is admitted that the petitioner has been
acquitted on merits. It is also not in dispute that
both the criminal proceedings and departmental
proceedings, are premised and based on the same set
of facts and charges.
4. Learned advocate Mr.Joshi appearing for the
petitioner has placed reliance upon the judgment of
the Supreme Court rendered in the case of G.M.
Tank vs. State of Gujarat & Ors., 2006 Supreme
Court Cases (L&S) 1121. It is submitted that the
impugned order of the Tribunal may be set aside,
and the matter may be remanded back to the
Tribunal.
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
5. Per Contra, learned Advocate Ms.Khyati Hathi has
submitted that the impugned orders do not require
interference since they are passed after holding a
regular departmental inquiry. She has submitted
that the orders are also confirmed by the Tribunal
in appeal, after considering the order passed in
criminal proceedings. Hence, the writ petition may
not be entertained. No further submissions are
advanced.
6. I have heard the learned advocates appearing
for the respective parties to the lis.
7. On a specific query raised by this Court whether
the criminal proceedings and the disciplinary
proceedings are premised on the same facts and
incidents, it is not disputed by the learned
advocate appearing for the respondents that both
arise from the same incident and same facts. It is
also not disputed by the learned advocate for the
respondents that vide judgment and order dated
26.05.2005 passed by Chief Judicial Magistrate
Court, Kalavad in Criminal Case No.116 of 1998, the
petitioner has been acquitted honourably.
8. Though, there cannot be any cavil on the
proposition of law that the standard of proof in
both the proceedings, i.e criminal and departmental
are different, but at the same time a honorable
acquittal of an employee in the criminal
proceedings cannot be ignored when both are
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
premised on same facts and evidence. A clean
acquittal in criminal proceedings may not have
direct impact on the findings of the disciplinary
proceedings, but the findings of the disciplinary
proceedings and the impugned orders based on such
findings are required to be re-examined in view of
the such acquittal. In the case of G.M.Tank
(supra), the Apex Court in a similar issue has
observed thus:
"28. The judgments relied on by the learned counsel
appearing for the respondents are distinguishable
on facts and on law. In this case, the departmental
proceedings and the criminal case are based on
identical and similar set of facts and the charge
in a departmental case against the appellant and
the charge before the Criminal Court are one and
the same. It is true that the nature of charge in
the departmental proceedings and in the criminal
case is grave. The nature of the case launched
against the appellant on the basis of evidence and
material collected against him during enquiry and
investigation and as reflected in the charge sheet
and factors mentioned are one and the same. In
other words, charges, evidence, witnesses and
circumstances are one and the same. In the present
case, criminal and departmental proceedings have
already been noticed or granted on the same set of
facts namely, raid conducted at the appellant's
residence, recovery of articles therefrom. The
Investigating Officer, Mr. V.B. Raval and other
departmental witnesses were the only witnesses
examined by the Enquiry Officer who by relying upon
their statement came to the conclusion that the
charges were established against the appellant. The
same witnesses were examined in the criminal case
and the criminal court on the examination came to
the conclusion that the prosecution has not proved
the guilt alleged against the appellant beyond any
reasonable doubt and acquitted the appellant by his
judicial pronouncement with the finding that the
charge has not been proved. It is also to be
noticed the judicial pronouncement was made after a
regular trial and on hot contest. Under these
circumstances, it would be unjust and unfair and
rather oppressive to allow the findings recorded in
the departmental proceedings to stand.
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
29. In our opinion, such facts and evidence in the
departmental as well as criminal proceedings being
the same without there being any iota of
difference, the appellant should succeed. The
distinction which is usually proved between the
departmental and criminal proceedings on the basis
of the approach and burden of proof would not be
applicable in the instant case. Though finding
recorded in the domestic enquiry was found to be
valid by the courts below, when there was an
honourable acquittal of the employee during the
pendency of the proceedings challenging the
dismissal, the same requires to be taken note of
and the decision in Paul Anthony's case (supra)
will apply. We, therefore, hold that the appeal
filed by the appellant deserves to be allowed."
Thus, the Supreme Court has held that when the
departmental proceedings and the criminal
proceedings are premised on the same set of facts;
the evidence and the witnesses are also same and
there is an honourable acquittal of an employee, it
would be unjust and unfair and rather oppressive to
allow the findings recorded in the departmental
proceedings to stand. It is held that honorable
acquittal is required to be taken note.
9. In the present case, the judgment of acquittal
in the criminal case was pointed out by the
petitioner before the Tribunal. It is noticed by
this Court that in fact while considering the
judgment in the criminal case, the Tribunal has
endeavored to give its own finding on the judgment
as if it was sitting in appeal. Such a procedure
adopted by the Tribunal is uncalled for in wake of
the fact that the respondents have not disputed
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
that the petitioner has been acquitted on merits
and it is a clean acquittal and both the criminal
proceedings and the departmental proceedings are
based on same set of facts. The only issue which
could have been examined by the Tribunal is whether
in both the proceedings, i.e. in criminal and
departmental, the facts, evidence and witnesses are
common and acquittal is honourable or not.
10. Under the circumstances, the impugned judgment
and order dated 06.03.2006 passed by the Gujarat
Civil Services Tribunal, Gandhinagar rejecting
Appeal No.90 of 2005, is hereby quashed and set
aside.
11. The matter is remanded to the Gujarat Civil
Services Tribunal, Gandhinagar, as suggested by the
learned advocate appearing for the petitioner for
its fresh consideration. Since the appeal is of
2006, and the petitioner has already retired on
28.02.2015, it is expected that the Gujarat Civil
Services Tribunal, Gandhinagar shall decide Appeal
No.90 of 2005 within 06 (six) months, after giving
opportunity to both sides. Liberty is reserved in
favour of the petitioner to challenge the order
dated 11.04.2019 passed by District Development
Officer, Jamnagar by appropriately amending the
appeal filed before the Tribunal.
C/SCA/13017/2007 JUDGMENT DATED: 28/02/2022
12. It is clarified that this Court has not opined
anything on merits. Appeal No.90 of 2005 is ordered
to be restored on its original file.
13. The present petition is allowed. RULE is made
absolute to the aforesaid extent.
Sd/- .
(A. S. SUPEHIA, J)
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Bhavesh-[PPS]
