Rajiben Kalidas Sanma vs State Of Gujarat
2023 Latest Caselaw 6360 Guj

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     C/SCA/19552/2006                             JUDGMENT DATED: 31/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19552 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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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 ?
                                                                        NO
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 ?

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                          RAJIBEN KALIDAS SANMA
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR PA JADEJA(3726) for the Petitioner(s) No. 1.1,1.2,1.3
MR SAHIL TRIVEDI, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 31/08/2023
                              ORAL JUDGMENT

1. Heard learned advocate Mr. P.A.Jadeja on behalf of the

petitioner and learned Assistant Government Pleader Mr.Sahil

Trivedi on behalf of the respondent - State.

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2. By way of this petition, the petitioner has inter alia

challenged an order dated 20.03.2001 dismissing the present

petitioner from service more particularly confirmed in appeal

vide order dated 10.04.2002 and further confirmed in

revision/review vide order dated 06.07.2006.

3. Short facts leading to filing of the petition are being

narrated herein below:-

3.1. The original petitioner was appointed as an Unarmed

Woman Constable on 04.12.1969 and whereas the petitioner

was promoted to the post of Head Constable and thereafter to

the post of Assistant Sub-Inspector of Police.

3.2. It would appear that a charge-sheet had been issued to

the petitioner on 09.06.1993 inter alia alleging that the

petitioner had got some news published in a local newspaper

and whereas, it was alleged that the petitioner had

misconducted herself. It appears that an inquiry officer had

been appointed to inquire into the charges and whereas the

inquiry officer had exonerated the present petitioner from the

charges leveled against her.

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3.3. It would appear that the disciplinary authority had

disagreed with the findings of the inquiry officer and had

issued a show cause notice to the petitioner on 01.06.1995

inter alia coming to a conclusion that the charges leveled

against the petitioner was proved based on the issues of

disagreement and whereas, the petitioner was directed to

show cause as to why punishment of dismissal should not be

imposed upon the petitioner. It would appear that the

petitioner having represented against the same, the same did

not find favour with the disciplinary authority and ultimately

vide order dated 20.03.2001, the disciplinary authority had

imposed punishment of dismissal from service upon the

present petitioner.

3.4. The petitioner had challenged the same by preferring an

appeal before the appellate authority being the Inspector

General of Police and whereas, vide an order dated

10.04.2002, the Inspector General of Police had rejected the

appeal preferred by the petitioner confirming the order

passed by the disciplinary authority.

3.5. It would appear that against the order passed in appeal,

the original petitioner had preferred a revision application

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before the Director General of Police and whereas, vide order

dated 08.07.2005, the Director General of Police had rejected

the revision application preferred by the present petitioner. It

would appear that the said decision of Director General of

Police had been communicated to the petitioner vide order

dated 06.07.2006 and whereas, the orders passed by the

disciplinary authority, appellate authority and revisional

authority have been challenged by the petitioner by preferring

this petition.

4. Heard learned advocate Mr. P.A.Jadeja on behalf of the

petitioner who would contend that the impugned orders

passed by the respondent authorities suffer from violation of

principles of natural justice and whereas, learned advocate

would submit in this regard that the inquiry officer having

exonerated the present petitioner, thereafter the disciplinary

authority had issued show cause notice to the present

petitioner.

4.1. Learned advocate would submit that a perusal of the

show cause notice would reveal that the disciplinary

authority, without giving an opportunity to the petitioner, had

disagreed with the findings of the inquiry officer and whereas

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based upon such disagreement, the disciplinary authority had

proposed to issue punishment of dismissal upon the present

petitioner.

4.2. Learned advocate would submit that the disciplinary

authority before confirming the disagreement with the

findings of the inquiry officer was required to afford an

opportunity to the present petitioner and whereas, the same

not being granted, a valuable right to the present petitioner

has been violated and whereas in that regard, learned

advocate would rely upon decision of the learned Coordinate

Bench of this Court in case of Jiteshkumar Vallabhdas Chotai

vs. PDJ and Disciplinary Authority and , reported in (2017) 4

GLR 3585.

4.3. Learned advocate Mr. Jadeja would further submit that

along with violation of principles of natural justice, the

impugned order also deserves to be interfered with on

account of the same being highly disproportionate to the

allegations leveled even if they are assumed to be proved.

Learned advocate would submit that the only allegation

against the present petitioner is that a news article had

appeared in a local newspaper more particularly whereby an

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issue with regard to quarter of the present petitioner had

been published and whereas, according to learned advocate,

even if the said charge i.e. of the said news article having

been published at the behest of the petitioner is assumed to

be true without admitting, then also the charge was not so

serious to have attracted punishment from dismissal of

service. Thus submitting, learned advocate would request this

Court to quash and set aside the orders of punishment and to

direct the respondent authorities to pay to the petitioner all

retiral dues.

5. As against the same, this petition is vehemently objected

to by learned Assistant Government Pleader Mr. Sahil Trivedi

on behalf of the respondent - State.

5.1. Learned AGP Mr. Trivedi would submit that challenge to

the findings in disciplinary proceedings would be under a very

narrow compass and whereas, learned AGP would submit that

as per the law laid down by the Hon'ble Apex Court, challenge

to such findings may not entitle this Court exercising

jurisdiction under Article 226/227 of the Constitution of India

to reappreciate the evidence.

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5.2. Learned AGP would further submit that in the instant

case, the principles of natural justice have not been violated

more particularly the petitioner having been granted

adequate opportunity at the stage of issuance of charge-sheet

to defend herself and therefore, at the stage of second show

cause notice to submit as to why the punishment of dismissal

should not be imposed upon the petitioner. Learned AGP

would submit that the principles of natural justice does not

appear to have been violated in any way whatsoever and

whereas learned AGP would therefore submit that this Court

may not interfere in the order of punishment.

5.3. Learned AGP Mr. Trivedi would, at this stage, also draw

the attention of this Court to the Gujarat Civil Services

(Discipline and Appeal) Rules, more particularly, Rule 10

thereof and would submit that after the inquiry report is

submitted by the inquiry officer, the disciplinary authority is

empowered to disagree with the findings of the inquiry officer

and while reasons for disagreement is to be recorded and

whereas, the rules do not envisage that the delinquent is to be

given any opportunity.

5.4. Having regard to such submissions, learned AGP would

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request this Court not to interfere in the impugned order.

Learned AGP would further rely upon the decision of Hon'ble

Apex Court in case of Union of India and Ors. vs.

P.Gunasekaran reported in (2015) 2 SCC 610 in support of his

submissions. Learned AGP would further submit that in case,

this Court were to decide that there has been an infraction in

any of the procedural rules and that the same would result in

the order of the punishment being set aside, then also, this

Court may relegate the petitioners to the disciplinary

authority for continuing the disciplinary proceedings from the

stage the infraction in the procedure is noted.

5.5. Learned AGP would further rely upon the observations

of the Hon'ble Apex Court in case of Union of India vs.

Y.S.Sadhu, Ex-Inspector, reported in (2008) 12 SCC 30 and

decision in case of Anant R. Kulkarni vs. Y.P.Education Society

and Ors. reported in (2013) 6 SCC 515 in support of his

submissions.

6. Heard learned advocates for the respective parties and

perused the documents on record.

6.1. While it is true that the interference of this Court in

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orders passed in the disciplinary proceedings would not

enable this Court to sit as an appellate authority and to

reappreciate evidence and whereas, the aspects on which

interference in disciplinary proceedings could be done, has

been laid down by the Hon'ble Apex Court in case of

P.Gunshekharan (supra) as relied upon by learned AGP.

Paragraph nos. 12 and 13 of the said judgment being relevant

for the present purpose are being reproduced for benefit:-

"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 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

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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;

(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 he 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."

6.2. Keeping the above principles as laid down by the

Hon'ble Apex Court, this Court would now examine whether

the punishment is required to be interfered with or not. It

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would appear upon perusal of the record that after the inquiry

officer had exonerated the present petitioner from the charges

leveled against her, the disciplinary authority had issued a

second show cause notice. Upon perusal of the second show

cause notice, it would appear as submitted by learned

advocate for the petitioner that the disciplinary authority has

forwarded the conclusion on disagreement to the inquiry

officer's report without calling upon the petitioner to show

cause or submit as to why certain issues or certain

conclusions of the inquiry officer should not be disagreed

upon by the disciplinary authority. It would further appear

that the disciplinary authority had based upon the final

conclusions of disagreement had proposed to impose

punishment of dismissal from service and whereas, the second

show cause notice is merely calling upon the employee to

show cause as to why the punishment proposed by the

disciplinary authority should not be imposed upon the

petitioner. In the considered opinion of this Court, the

disciplinary authority not affording an opportunity to the

delinquent to raise her defence against the proposed issues of

disagreement before the disciplinary authority finally

disagreed with the findings of the inquiry officer, would be a

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clear breach of principles of natural justice.

7. At this stage, it would be relevant to mention that

departmental inquiries for employees of the State is governed

by the Gujarat Civil Services (Discipline & Appeal) Rules,

1971. Rule 10 of the Rules states regarding the action to be

taken by the disciplinary authority on the inquiry report. Rule

10(2) of the Rules being relevant for the resent issue, as relied

upon by the learned AGP, is reproduced herein below for

benefit:-

"Rule-10(2):- The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge if the evidence on record is sufficient for the purpose"

7.1. It would appear that Rule 10(2) of the Rules had been

interpreted by a learned Coordinate Bench of this Court in

case of Jiteshkumar Vallabhdas Chotai (supra) replied

upon by the learned advocate for the petitioner. Paragraph

nos. 6, 6.1, 6.2 and 9 of the said decision being relevant for

the present purpose are reproduced herein below for benefit:-

"6. Rule 10(2) of the Rules contemplate giving of reasons in the event the disciplinary authority disagrees with the inquiry report exonerating the delinquent-employee. The requirement of giving

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reasons would indicate that when certain reasons have weighed with the disciplinary authority, the delinquent must be put to notice of those reasons. Keeping the delinquent-employee in dark about the reasons of disagreement but communicating to him that the disciplinary authority had proposed to inflict penalty by not accepting the findings of the inquiry report, would undoubtedly amount to denial of reasonable opportunity.

6.1 Unless the delinquent is made aware as to what reasons and which considerations weighed with the disciplinary authority to take a differing view, the delinquent would be deprived of raising his defence in the context of the findings of inquiry report which had exonerated him, in general and would be further denied the opportunity to properly put-forth his case about the proposed penalty in particular. Opportunity to reply to and explain the reasons of disagreement, and an opportunity in respect of proposed penalty constitute two different sets of opportunities and cannot be combined into a one notice. They are the two stages of defence to be made available to the delinquent in law.

6.2 When a disciplinary authority disagrees with the findings in the inquiry report that the charge was not proved, wanting to come to a contrary conclusion for its own reasons, at that stage, the delinquent becomes entitled to a fresh opportunity to show cause in respect of the reasons which the disciplinary authority has been holding for itself to treat the delinquent guilty. A renewed procedure of communicating the tentative reasons of disagreement, consideration of the defence of the petitioner, weighing and comparing the reasons recorded by the inquiry officer vis-a-vis the petitioner's case as well as the view of the disciplinary authority and thereafter if the disciplinary authority is not satisfied with the explanation of the petitioner, to proceed with a notice with regard to the proposed penalty, becomes imperative so as to meet with the natural justice. It

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could be said that another and separate stage arrives in the departmental inquiry proceedings when the disciplinary authority differs with the findings of the inquiry officer and the conclusion of exonerating the delinquent. The principles of natural justice therefore assumes significance with an added emphasis to make the opportunity to petitioner to defend his case, reasonable, adequate and effective.

9. Summing up, not giving a show cause notice by Disciplinary Authority when it opted to disagree with the findings of inquiry officer wanting to take a view that the charges against the petitioner were proved, was such kind of breach of natural justice which by itself lead to a prejudice to the pettioner. It was obligatory in law for the disciplinary authority to supply the tentative reasoning of disagreement asking the petitioner to show cause thereon, thereby, giving a due and reasonable opportunity of defence and purge the prejudice caused to the petitioner. It was only after considering the reply of the petitioner- delinquent that the Disciplinary Authority could have decided in respect of the penalty. Non-issuance of notice by the disciplinary authority in respect of the tentative findings recorded by him against the inquiry report, was vitiative to the inquiry as well as the ultimate penalty imposed on the petitioner, and it is from the said stage that the inquiry stood vitiated."

7.2. Considering the law laid down by learned Coordinate

Bench of this Court, it would appear that while the

disciplinary authority is empowered to disagree with the

findings of the inquiry officer, yet, the disciplinary authority is

under an obligation, more particularly in tune with the

principles of natural justice, to supply the tentative reasoning

of disagreement asking the delinquent to show cause as to

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why the disciplinary authority should not disagree with the

inquiry officer. It is only after the reply of the delinquent is

considered by the disciplinary authority, that the disciplinary

authority could have decided in respect of penalty. It would

appear that the learned Coordinate Bench has clearly noted

that non-issuance of notice by the disciplinary authority in

respect of tentative findings would vitiate the inquiry as well

as the ultimate order of penalty issued by the respondent

authorities.

7.3. It would further appear that in a later decision in case of

Gaurav Jerambha Prajapati vs. State of Gujarat and Ors.

[Special Civil Application No.14631/2021, Dt.

13.12.2021] considering a similar issue, after relying upon

the law laid down by the learned Coordinate Bench as

referred to herein above, this Court had held as follows at

paragraph nos.23 and 24:-

"23. Thus in the considered opinion of this Court, the delinquent in a departmental proceedings is entitled to be given a copy of the order of the Disciplinary Authority whereby the Disciplinary Authority disagrees with the findings of the Inquiry Officer before a finding of guilt is arrived at. This would be in consonance with the requirement of affording a reasonable opportunity as envisaged under Article 311(2) of the Constitution of India.

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24. In view of the above discussion, to ensure that the delinquent is afforded a reasonable opportunity in a departmental proceedings, more particularly when the Disciplinary Authority disagrees with the findings of the Inquiry Officer, the requirement of giving a copy of such report of disagreement by the Disciplinary Authority to the delinquent is required to be read into Rule 10(2) of the Gujarat Civil Services (Discipline and Appeal) Rules 2002."

8. From the above observations, it would appear that this

Court has gone further and also observed that in addition to

issuing a tentative notice for disagreeing with the findings of

the inquiry officer, after the delinquent replies to the same

and the disciplinary authority reaches a conclusion to

disagree with the findings of the inquiry officer, then before

issuance of show cause notice or along with issuance of show

cause notice, the disciplinary authority is required to give a

final copy of the disagreement to the delinquent in question.

8.1. It would appear that both the requirements i.e. giving

tentative notice of disagreement as well as giving final

conclusion of disagreement appears to have been breached in

the instant case.

9. At this stage, it also requires to be mentioned that while

the inquiry officer has, after a detailed inquiry, come to a

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conclusion that the charges leveled against the present

petitioner are not proved, the disciplinary authority merely on

the basis of conjunctures and surmises has come to a

conclusion that the charge leveled against the present

petitioner stand proved. It would be apposite to mention here

that while there was no material whatsoever to show that the

article had been published in the local newspaper at the

behest of the present petitioner, the disciplinary authority had

considered the statement of a reporter of the newspaper in

question who had inter alia stated that only if a

communication is issued by the person in question, a press

note with names would be printed by the newspaper and

whereas since three months are over as per the policy of the

newspaper, the written communications are destroyed. Based

on the said testimony only on the basis of inference the

disciplinary authority has come to a conclusion that since the

reporter has said that the articles of news with name are only

published upon such letter being issued by the person

concerned, therefore, it has to be assumed that the article had

appeared at the behest of the petitioner herself. It would be

clear that while there was no material whatsoever to indicate

that the news article had been published at the behest of the

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original petitioner, yet, on the basis of assumption, the

disciplinary authority had held the petitioner guilty of the

charges. Thus, it would clearly appear that the disagreement

is clearly tainted by the vice of 'no evidence'.

9.1. Furthermore, it would also appear that the disciplinary

authority had shifted the burden of proof upon the petitioner

more particularly by coming to a conclusion that the

petitioner had committed the misconduct in question more

particularly since after the article had been published, the

petitioner at the relevant point of time had not intimated to

the newspaper as regards the article being false. Thus, in

absence of any cogent material, the disciplinary authority has

disagreed with the report of the inquiry officer and held the

petitioner guilty on the basis of adverse inference.

9.2. Be that as it may, this Court seeks to rely upon

paragraph nos. 12(c), 12(d), 12(e), 12(f) and 12(i) of the

decision of the Hon'ble Apex Court in case of P.Gunasekaran

(supra) which has been quoted herein above more particularly

since it appears that there is a violation of principles of

natural justice in conducting the proceedings as noted herein

above and the conclusion on the face of it is wholly arbitrary

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and capricious and based on no evidence and adverse

inference also as noted herein above.

9.3. In this view of the matter, in the considered opinion of

this Court, the impugned order as well as the order passed in

appeal and review being wholly unsustainable more

particularly for the reasons stated herein above, are required

to be interfered with.

10. Insofar as the submissions made by learned Government

Pleader that the petitioner may be relegated and the

disciplinary proceedings should be permitted to continue from

the stage a breach of principles of natural justice is noted,

more particularly as per the law laid down by the Hon'ble

Apex Court, in the considered opinion of this Court, while the

said principle is the Rule, there are certain exceptions to the

Rule and whereas in the facts of this case, in the considered

opinion of this Court, the exception to the Rule would have to

be followed.

10.1. The reasons for not remanding the matter back to the

disciplinary authority being that the order of penalty had been

imposed upon the present petitioner as far as back in the year

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2001 i.e. approximately 22 years earlier. It would appear that

the present petitioner while she had been dismissed in the

year 2001, had completed her age of superannuation if she

had remain in service in the year 2007. It would also appear

that the original petitioner had unfortunately expired on

17.12.2018. In this view of the matter, since the order itself is

almost more than 2 decades old and since the petitioner

herself had expired during the pendency of the proceedings,

in the considered opinion of this Court, relegating the matter

back to the disciplinary authority would be nothing but an

exercise in futility more particularly since the legal heirs of

the petitioner would not be able to mount any defence on

account of demise of the original petitioner herself.

10.2. Having regard to such a situation, in the considered

opinion of this Court, the request made by learned AGP

cannot be countenanced.

11. In view of the above discussion, observations and

findings, the following directions are passed:-

(i) The impugned order passed by the disciplinary authority

dated 20.03.2001 dismissing the present petitioner, as

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confirmed by the appellate authority vide order dated

10.04.2002 and has confirmed by the revisional authority vide

order dated 08.07.2005, is hereby quash and set aside.

(ii) Consequently, the respondents are directed to consider

the present petitioner as being in service as if the impugned

orders referred to herein above had not been passed at all.

(iii) The respondents are further directed to pay to the legal

heirs of the present petitioner all the retiral benefits as would

have been available to the petitioner if she had been in service

till the date of her superannuation.

(iv) The retiral benefits shall include the gratuity and all

other benefits including the benefit of arrears of pension etc.

and whereas, the arrears shall be paid by the respondent

authority within a period of eight weeks from the date of

receipt of this order with interest at the rate of 6% from the

date it fell due till the date of payment.

(v) It is further clarified that the period between the date of

dismissal till the date of superannuation shall be treated as

notional and whereas the legal heirs of the petitioner shall not

be entitled to any arrears of salary for the said period.

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12. With the above observations and directions, the present

petition stands disposed of as allowed. Rule is made absolute

to the aforesaid extent.

(NIKHIL S. KARIEL,J) Bhoomi