Gujarat High Court

Jamnagar District Panchayat vs Hansaben Rabadiya on 6 July, 2022

Bench: Biren Vaishnav

     C/SCA/11078/2017                            JUDGMENT DATED: 06/07/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 11078 of 2017
                             With
         R/SPECIAL CIVIL APPLICATION NO. 581 of 2020

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 ?

================================================================
              JAMNAGAR DISTRICT PANCHAYAT & 1 other(s)
                              Versus
                  HANSABEN RABADIYA & 1 other(s)
================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2
DECEASED LITIGANT for the Respondent(s) No. 1
MR HASIT H JOSHI(2480) for the Respondent(s) No. 1.1,1.2,1.3,1.4
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1 in SCA
No.581 of 2020
================================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                           Date : 06/07/2022

                        COMMON ORAL JUDGMENT

1. Rule. Learned advocates for respondents waive service of

notice of Rule for the respective parties.

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

2. With the consent of the learned advocates for the

respective parties, these petitions are taken up for final

hearing today.

3. In Special Civil Application No.11078 of 2017, the Jamnagar

District Panchayat has challenged the order of the Gujarat

Civil Services Tribunal dated 08.02.2017 passed in Appeal

No.160 of 2015 by which the Tribunal quashed and set

aside the order dated 10.08.2015 passed by the District

Development Officer, Jamnagar District Panchayat.

4. Special Civil Application No.581 of 2020 has been filed by

the employee since deceased for payment of pension

benefits in compliance of the order of the Tribunal on she

having attained the age of superannuation on 31.01.2016.

5. For the purposes of this Common Oral Judgment, facts of

Special Civil Application No.11078 of 2017 shall be

considered.

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

5.1. Hansaben Rabadiya since deceased was

working as a Female Health Worker under the Jamnagar

District Panchayat. On 11.3.2010 a charge-sheet was

issued to her that she had assaulted a Doctor on duty

namely; Dr. P.S. Horo. Pursuant to the charge-sheet,

departmental proceedings were held against the petitioner

and after an advice obtained from the Gujarat Panchayat

Services Selection Board, an order of compulsory

retirement was passed on 3.11.2011. She was also facing a

criminal case by virtue of an FIR being lodged by the

Doctor. The Inquiry Officer furnished a report opining that

the charges were proved but the findings of the inquiry

were kept in abeyance pending the criminal trial.

5.2. It appears that on 19.7.2012, Hansaben

Rabadiya earned an acquittal in the criminal case. The

order of compulsory retirement in the meantime was

challenged by the employee since deceased before the

Tribunal by filing Appeal No.98 of 2012. Contentions were

raised by the employee with regard to the validity and

legality of the departmental proceedings and also a

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

question whether the inquiry could have proceeded at all

when a Criminal Case No.941 of 2004 was pending against

her and after having earned an acquittal by a judgment

dated 19.7.2012.

6. The Tribunal after recording the contentions remanded the

proceedings to the respondents before the Tribunal only on

the ground that once an employee had earned acquittal

before the Criminal Court, the question of punishment be

reconsidered. A positive finding was recorded in the

departmental proceedings, the charges were held to be

proved. That order of the Tribunal was dated 17.11.2014.

On remand, the District Panchayat on 10.08.2014 revisited

the order of penalty and confirmed that the order of

compulsory retirement should be sustained in view of the

fact that the findings of acquittal in the Criminal Court

without recording any evidence, inasmuch as, the

complainant had not turned up before the trial Court. That

order was again a subject-matter of challenge by Hansaben

Rabadiya respondent since deceased before the Tribunal in

Appeal No.160 of 2015. The Tribunal by the impugned

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

order had set aside the order on account of a Circular of

the State which was extensively reproduced by the

Tribunal, a Circular of 19.4.2004 holding that once there

was an acquittal, penalty could not have been imposed and

that reconsideration was not in accordance with the

directions of the Tribunal as recorded in the first order of

remand dated 17.01.2014.

7. Mr. H.S. Munshaw, learned counsel for the Jamnagar

District Panchayat would assail the order on the ground

that after a full-fledged departmental inquiry, the order of

penalty was passed. On remand by the Tribunal, the issue

was reconsidered and looking to the misconduct i.e. an

assault on a Doctor by a Family Health Worker, penalty of

compulsory retirement was commensurate with the

misconduct. On remand, the issue was reconsidered and

having found that the Tribunal had committed an error in

disturbing the penalty, only on the ground of acquittal, the

order needed to be interfered with.

8. Mr. Hasit H. Joshi, learned counsel appearing for the

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

respondent - employee through her heirs would submit

that when the charge-sheet and the departmental inquiry

proceedings are read, it can easily and safely be inferred

that the entire proceedings were carried out in gross

violation of principles of natural justice. No witnesses were

examined to bring home the charge of assault.

8.1. Mr. Joshi would invite the attention of the Court

to the submissions made by his counter part before the

Tribunal in the first round where submissions were raised

as to the violation of principles of natural justice in the

inquiry proceedings and would, therefore, submit that the

order of penalty was unsustainable, as it was illegal. Even

otherwise the employee had been acquitted and, therefore,

it was not open for the department to hold further inquiry.

9. The validity of the order of the Tribunal needs to be

considered on several aspects in light of the facts that

have been set out hereinabove.

* A charge-sheet was issued to the respondent -

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

employee and departmental proceedings were held.

* Post the departmental proceedings, a penalty of

compulsory retirement was imposed on the respondent.

* That order was a subject-matter of challenge in

an Appeal filed before the Gujarat Civil Services Tribunal.

* Contentions were raised as to violation of

principles of natural justice in the proceedings and a

ground that the proceedings could not have been

continued and ended with the order of penalty once the

employee had been acquitted by a Criminal Court.

* Reading the order of the Tribunal dated

17.11.2014 particularly, the operative portion would

indicate that the Tribunal remanded the matter to the

authority only to reconsider the issue of penalty keeping in

mind the acquittal earned by the respondents. No finding

was recorded while remanding the matter with regard to

the breach of violation of principles of natural justice. The

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

order of the Tribunal attained finality as it was not

challenged by the employee agitating the point which the

Tribunal did not decide i.e. the procedural aspect of the

departmental proceedings.

* The authority on 10.8.2015 reconsidered the

issue in light of the Tribunal's observation only restricted to

revisiting the order of penalty on the ground of acquittal

and reaffirmed its stand of imposing a penalty of

compulsory retirement.

* Once again by the order under challenge, the

Tribunal set aside the order of compulsory retirement only

on the ground of respondent having earned an acquittal

and on the alternate ground of the direction of the Tribunal

with regard to the authority having taken the decision not

being competent.

* The order of the Tribunal is clearly

unsustainable. Here was a Female Health Worker and

employee who had assaulted a Doctor on duty and had

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

faced apart from the departmental proceedings, a criminal

prosecution. It is not open for the employee now to

resurrect and seek to challenge the departmental

proceedings on the ground of it having violated principles

of natural justice when that plea was though raised, but not

decided by the Tribunal in its first round and also on the

ground of preliminary inquiry statement had taken at the

time of final hearing. That issue was closed when the

Tribunal remanded the proceedings only on the aspect of

the validity of the order of penalty on acquittal in a criminal

case. On remand too, when the authority re-affirmed the

order of penalty, the Tribunal once again has set it aside

only on the ground of acquittal by the employee.

10. In the case of Maharashtra State Road Transport

Corporation v. Dilip Uttam Jayabhay reported in

2022(2) SCC 696, while considering the jurisdiction of the

disciplinary authority to impose a penalty even when an

employee had been acquitted, the Hon'ble Supreme Court

had observed as under:

"11. At the outset, it is required to

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be noted that in the departmental proceedings the misconduct alleged against the respondent - driver of driving the vehicle rashly and negligently due to which the accident occurred in which four persons died has been proved. Thereafter, the disciplinary authority passed an order of dismissal, dismissing the respondent - workman from service. The Labour Court did not interfere with the order of dismissal by giving cogent reasons and after re-appreciating the entire evidence on record including the order of acquittal passed by the criminal court. However, the Industrial Court though did not interfere with the findings recorded 10 2022 LIVE-LAW (SC) 3 by the disciplinary authority on the misconduct proved, interfered with the order of dismissal solely on the ground that punishment of dismissal is disproportionate to the misconduct proved and the same can be said to be to be unfair labour practice as per item No.1(g) of Schedule-IV of the MRTU & PULP Act, 1971. The same is not interfered with by the High Court.

11.1 Therefore, the short question which is posed for the consideration of this Court is whether in the facts and circumstances of the case the punishment of dismissal can be said to be an unfair labour practice on the ground that the same was disproportionate to the misconduct proved and therefore the Industrial Court was justified in interfering with the order of dismissal and ordering reinstatement with continuity of service.

11.2 Having gone through the findings recorded by the enquiry officer in the departmental enquiry and the judgment and order passed by the labour court as well as the Industrial Court and even the judgment and order of acquittal passed by the criminal court, it

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emerges that when the respondent 11 2022 LIVE-LAW (SC) 3 was driving the vehicle it met with an accident with the jeep coming from the opposite side and in the said accident four persons died. From the material on record it emerges that the impact of the accident with the jeep coming from the opposite side was such that the jeep was pushed back 25 feet. From the aforesaid facts it can be said that the respondent

- workman was driving the vehicle in such a great speed and rashly due to which the accident had occurred in which four persons died. Even while acquitting the accused - respondent - driver who was facing the trial under Sections 279 and 304(a) of IPC Criminal Court observed that the prosecution failed to prove that the incident occurred due to rash and negligent driving of the accused - respondent herein only and none else. Therefore, at the best even if it is assumed that even driver of the jeep was also negligent, it can be said to be a case of contributory negligence. That does not mean that the respondent - workman was not at all negligent. Hence, it does not absolve him of the misconduct. 12 2022 LIVE-LAW (SC) 3

11.3 Much stress has been given by the Industrial Court on the acquittal of the respondent by the criminal court. However, as such the Labour Court had in extenso considered the order of acquittal passed by the criminal court and did not agree with the submissions made on behalf of the respondent -

workman that as he was acquitted by the criminal court he cannot be held guilty in the disciplinary proceedings.

11.4 Even from the judgment and order passed by the criminal court it appears that the criminal court acquitted the respondent based on the hostility of the witnesses; the

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evidence led by the interested witnesses; lacuna in examination of the investigating officer; Panch for the spot panchnama of the incident, etc. Therefore, criminal court held that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. As per the cardinal principle of law 13 2022 LIVE-LAW (SC) 3 an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, the Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. Even otherwise it is required to be noted that the Industrial Court has not interfered with the findings recorded by the disciplinary authority holding charge and misconduct proved in the departmental enquiry, and has interfered with the punishment of dismissal solely on the ground that same is shockingly disproportionate and therefore can be said to be an unfair labour practice as per clause No.1(g) of Schedule-IV of the MRTU & PULP Act, 1971.

            11.5       Now so far as the order passed by
            the Industrial Court ordering     reinstatement
            with    continuity   of   service   by invoking
            clause No.1(g) of Schedule-IV of the

MRTU & PULP Act, 1971 is concerned, as per clause No. 1(g) only in a case where it is found that dismissal of an employee is for misconduct of a minor or technical character, without 14 2022 LIVE-LAW (SC) 3 having any regard to the nature of the particular misconduct or the past record of service of the employee, so

C/SCA/11078/2017 JUDGMENT DATED: 06/07/2022

as to amount to a shockingly disproportionate punishment."

. The decision relied upon by the Tribunal in the case

of Captain M. Paul Anthony v. Bharat Gold Mines

Limited has undergone a see change and now, the Hon'ble

Supreme Court in a catena of decisions has held that even

if an employee has been acquitted of a criminal charge, for

the purposes of assessing misconduct, it is always open for

the department to proceed further and hold an inquiry.

11. In the facts of the present case, the charge against the

respondent was that of assault. The charge was serious

and no fault can be found with the department in