Vinodrai Devjibhai Gohil vs State Of Gujarat
2022 Latest Caselaw 736 Guj

    C/SCA/5015/2021                              CAV JUDGMENT DATED: 21/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 5015 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================

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 ?

================================================================ VINODRAI DEVJIBHAI GOHIL Versus STATE OF GUJARAT ================================================================ Appearance:

MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1 MR MEET THAKKAR, AGP (5) for the Respondent(s) No. 1,2,3,4,5 ================================================================ CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 21/01/2022 CAV JUDGMENT

1. Rule, returnable forthwith. Mr. Meet M. Thakkar,

learned Assistant Government Pleader waives service

of notice of Rule for the respondents.

2. With the consent of the learned advocates appearing

for the respective parties, the petition was taken up

for its final disposal.

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

3. In this petition, under Article 226 of the Constitution

of India, the petitioner has prayed for quashing and

setting aside the punishment order dated 17.4.2020.

He has also prayed for quashing and setting aside the

appellate orders dated 3.7.2020 and 16.1.2021.

4. The facts in brief are as under:

4.1. The petitioner joined service as a Police

Constable on 17.8.1994. He was promoted as Health

Constable in the year 2010 and, thereafter,

promoted to the post of Assistant Sub Inspector on

10.4.2017.

4.2. A charge-sheet was issued to the petitioner on

8.6.2019. The charge-sheet inter-alia stated that the

petitioner over a period of time, used his mobile

phone as well as one mobile number of Jashiben

Shantibhai to make calls to listed bootleggers of

Amreli District. The charge further was that the use

of such sim-cards was illegal and the petitioner did

this to hide his identity and in order to have

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

monetary benefits.

5. The petitioner filed a reply on 4.2.2019. A

departmental inquiry was conducted and after the

evidence adduced during the course of such inquiry,

an inquiry officer submitted his inquiry report dated

30.10.2019 holding the charge to be proved. Based on

the inquiry officer's report, a show cause notice dated

4.12.2019 was issued to the petitioner asking the

petitioner to show cause as to why the punishment of

dismissal from service be not passed. The petitioner

filed a detailed reply dated 29.12.2019. By the order

dated 17.4.2020, a penalty was imposed by which the

petitioner was placed in the minimum pay scale of

police constable for two years with future effect. The

petitioner preferred an appeal on 27.5.2020 which

appeal came to be dismissed by the Inspector General

of Police, Surat Range. A revision was preferred and

by an order dated 16.1.2021, the Director General of

Police rejected the revision. These orders are under

challenge.

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

6. Mr. Vaibhav A. Vyas, learned counsel for the

petitioner reading the charge-sheet would submit that

the charges are ambiguous and did not contend

specific details. This amounts to violation of

principles of natural justice.

6.1. He would further submit that except the

allegation that the petitioner had from his mobile

phone and that one of Jashiben talked to the listed

bootleggers of Amreli, no specific allegation as to

what benefit the petitioner gained was imputed.

6.2. Mr. Vyas would further submit that there was

no evidence worth the name to even remotely

suggest that the petitioner obtained any monetary

benefit or pecuniary benefit from any of the

bootleggers.

6.3. Mr. Vyas would take the Court through the

statements recorded of Jashiben Shantibhai

Chauhan, Rameshbhai Shambhubhai Solanki and

Vishal Chandrakantbhai Ruparel, documents which

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

were given with the charge-sheet and submit that

except the allegation that the mobile phone of

Jashiben was used which was given to her by her

son-in-law; Rameshbhai Shambhubhai Solanki, no

other misconduct was alleged.

6.4. Mr. Vyas would take the Court through the

report of the Inquiry Officer and the findings thereof

and submit that during the cross examination of

Jashiben, it had come on record that Jashiben had

denied that the petitioner had used her sim-card for

calling up bootleggers. That, she had never seen the

petitioner before the incident in question. Reading

Rameshbhai's examination, Mr. Vyas would submit

that Rameshbhai had admitted that the petitioner

would be engaged in conducting raids to discourage

gambling and arresting the prohibition offenders

and that is how he would know the petitioner.

6.5. Taking the Court through the findings of the

Inquiry Officer, Mr. Vyas would submit that it was a

case of no evidence. The inquiry officer had travelled

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

beyond the charge-sheet, inasmuch as, it was a

finding that the petitioner knew that Jashiben was a

bootlegger despite which he used her Sim-Card.

6.6. Mr. Vyas would submit that there was no

material before the Inquiry Officer, which showed

that the sim-card was used for any personal benefit

of the petitioner.

6.7. Mr. Vyas would also take the Court through the

orders of the penalty dated 17.4.2020 and the

appellate orders dated 3.7.2020 and 16.1.2021 and

submit that the orders are without any reasons.

Detailed representation was made on 18.10.2019

and the revision and the memo of appeal were also

extensively relied which in the impugned orders

have not been discussed.

6.8. Mr. Vyas would submit that the order of penalty

is not in consonance with the provisions of Bombay

Police (Punishments & Appeals) Rules, 1956 mainly

Rule 3 thereof. Rule 3(i) talks about reduction in

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

rank, grade or pay. The punishment placing him in

the lower pay scale of a police constable can never

be done because it would amount to placing him in a

pay scale of a cadre in which he was not working

and it was not the intention of the Disciplinary

Authority to reduce him in rank.

6.9. Mr. Vyas would further submit that there were

47 cases which the petitioner had successively

solved with regard to the prohibition offences and

the order therefore of penalty was unjustified.

7. Mr. Meet M. Thakkar, learned Assistant Government

Pleader for the respondent-State would submit that

the entire chain of events would indicate that the sim-

card was purchased by Rameshbhai, who happened to

be the son-in-law of Jashiben. He would invite the

Court's attention to page 68 of the Inquiry Officer's

Report and submit that from the question put by the

Inquiry Officer to Rameshbhai it was evident that

Rameshbhai had antecedents in prohibition offences.

Even in the cross examination of Rameshbhai, it was

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

pointed out that a sim-card was given by force.

7.1. Mr. Thakkar would further submit that even

Jashiben had admitted that she had given the sim-

card as her son-in-law had no other number.

Admittedly, therefore, there was a direct connection

between Rameshbhai through Jashiben and the

petitioner knowing well that the two were

bootleggers used their sim-cards for making calls.

7.2. With regard to the orders under challenge, Mr.

Thakkar, learned Assistant Government Pleader

would submit that the order of penalty and the two

orders in appeal extensively set out the grounds

raised by the petitioner in appeal and it may not

therefore be said that the orders are without

reasons.

8. Mr. Thakkar submitted that it cannot be said that the

charges are not proved and that they are vague.

Considering the statements of the witnesses, it has

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

come on record that the sim-card was purchased in

the name of Jashiben from the shop of Vishalbhai and

the same was being used by the son-in-law who gave

the sim-card to the petitioner. He submitted that the

petitioner being a responsible Police Officer could not

have used the sim-card of a bootlegger for the

purpose of contacting bootleggers.

9. With respect to the limitations of this Court to

exercise powers under Article 226 of the Constitution

of India, Mr. Thakkar would rely on the decisions of

the Hon'ble Supreme Court of India in the case of

Deputy General Manager (Appellate Authority)

and others v. Ajai Kumar Srivastava reported in

2012(2) SCC, 612. He read the head note (a) and (c)

in support of his submission that jurisdiction of the

Court under Article 226 of the Constitution of India is

circumscribed by limitation of correcting errors of

law or procedural error. The Court cannot adjudicate

the case on merits as an appellate authority. He

would also rely on the decision of the Hon'ble

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

Supreme Court in the case of State of Karnataka v.

N. Gangaraj reported in 2020(3) SCC 423,

paragraph Nos.14 and 15 of the judgment in context

of limitation of the High Court to interfere with the

findings recorded by the disciplinary authority. He

would submit that it is not a case of no evidence that

the findings are perverse. Mere discrepancies in

evidence will not make it a case of no evidence.

10. Having considered the submissions made by the

learned advocates for the respective parties what

needs to be noted is thus:

(a) The charge levelled against the petitioner is

that he used his mobile as well as mobile number

7283936484 for calling up at various times, listed

bootleggers of Amreli District. The imputation is that

using his mobile as well as the sim-card of Jashiben

for such calls tantamounts to misconduct. To give

the charge more teeth a statement of imputation is

made that this was done to get monetary benefits by

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

hiding his identity which exhibited corrupt

tendencies. The charge-sheet imputes corrupt

motives to the petitioner. The case of the

department is that the sim-card of Jashiben was used

to call-up bootleggers for monetary benefits. No

further steps as to what and how the department has

come to the petitioner's motive to gain monetary

benefits is coming forth. Nothing is on record to

show and demonstrate in what manner the

petitioner derived monetary benefits. Merely

because a sim-card of the other person is used to

call-up bootlegger itself may not be a misconduct

especially when it has come on record through the

testimony of Rameshbhai, who gave the sim-card

that he was an informer for the petitioner who had

played a role in controlling gambling and prohibition

offences in the District and this was only possible

through information received in a discreet manner

since the charge-sheet itself lacks details and is

vague. Apparently merely because calls are made to

bootleggers itself stand alone would not tantamount

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

to a misconduct. There is no record or basis to show

that by usage of the sim-card the petitioner gained

monetarily. No instances have been pointed out by

leading evidence by the authority.

(b) The charge of using his phone and the sim-card

of Jashiben which in turn was provided by

Rameshbhai hinges on the statements of Jashiben

and Rameshbhai. In her statement recorded on

7.6.2019 Jashiben states that based on her

documents the sim-card was purchased by a shop of

Vishalbhai and the card was being used by his son-

in-law Rameshbhai. Rameshbhai in his statement

recorded on the same day stated that the sim-card

was given by his mother-in-law for use and since he

was an informant for the petitioner and was

providing information the sim-card was therefore

used for such purposes by the petitioner.

(c) Even during the course of the departmental

inquiry Jashiben was cross-examined wherein she

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

denied of the sim-card being used to call bootleggers

She also on a question put to her whether the

petitioner made demands for monetary benefits

stated that it was only at this time was she made

aware that the petitioner was a Police Officer. Even

Rameshbhai, before the Inquiry Officer stated that

he used to be the petitioner's informant.

11. To vilify the petitioner, a connection with bootlegger

is sought to be made apparent through the

submission of the learned AGP by relying on some

questions being put to Rameshbhai and Jashiben to

indicate that the petitioner knew that they both were

bootleggers and that itself was enough to justify the

charge. The Inquiry Officer also while recording a

finding of guilt observed that it is established that the

petitioner used the sim-card for personal gain and

that using a bootlegger's sim card tantamounted to

moral turpitude. This finding of the Inquiry Officer

was clearly beyond the imputation in the charge-

sheet. The findings of the Inquiry Officer are

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

therefore perverse.

12. Call records are produced as evidence to show that

calls were made to listed bootleggers. Beyond this to

come to a logical and reasonable conclusion that such

calls were made to gain monetary benefits should

have been established by examining any of the call

recipients to bring home the charge of corrupt

motive. The defence, of a charge being proved on the

basis of pre-pondernace of probability is one thing but

absence of evidence is something which is writ large

and even by such a yardstick it can safely be inferred

to be a case of no evidence.

13. The argument of Mr. Vyas even on the doctrine of

proportionality appears to be of some merit.

Reduction in pay from that of a Assistant Sub-

Inspector to that of a Police Constable for two years

with future effect is a grave financial loss for just the

charge of using his sim-card to call bootleggers. In

the representations, it is brought on record that

C/SCA/5015/2021 CAV JUDGMENT DATED: 21/01/2022

through his network of informants the petitioner had

brought to light 47 cases of gambling and / or

prohibition. Also on record are orders of penalties

imposed on delinquents with similar imputation which

show the department's approach to such instances of

misconduct. Taking the use charge of use of a sim-

card of another per-se to be connected to bootlegger

as a misconduct, the penalty could have been less

damaging.

14. For all the aforesaid reasons, the petition is allowed.

The order dated 17.4.2020 is quashed and set aside.

Consequentially so also the orders dated 3.7.2020

and 16.1.2021 set aside. The petitioner, on such

orders being quashed, shall be entitled to all financial

and other consequential benefits that may accrue on

the order of penalty being quashed. Rule is made

absolute accordingly. No order as to costs.

Direct Service is permitted.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA