Somabhai Motibhai Makwana vs State Of Gujarat
2023 Latest Caselaw 5376 Guj

     C/SCA/10053/2023                                 JUDGMENT DATED: 10/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10053 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                          sd/-

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

2     To be referred to the Reporter or not ?                               No

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

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

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                        SOMABHAI MOTIBHAI MAKWANA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SMIT P. VAGHELA, LD. ADVOCATE FOR MR VAIBHAV A VYAS(2896)
for the Petitioner(s) No. 1
 for the Respondent(s) No. 2
MS POOJA ASHAR, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date: 10/07/2023

                             ORAL JUDGMENT

1. This petition is filed challenging the order of penalty dated 27.09.2022, passed by the Home Department, Government of Gujarat (ANNEXURE A), directing deduction of

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Rs.3,000/-, every month from pension of the petitioner for a period of five years.

2. Facts in brief are as under:

The petitioner had joined the service of the Jail Department in the year 1991 as Sepoy. Thereafter, in the year 2013, he was promoted to the post of Hawaldar. During his tenure at Ahmedabad Central Jail, two under-trial prisoners were found with two mobile phones. The duty at that time was that of the petitioner. Therefore, he was served with Show Cause Notice and disciplinary proceedings for the said incident was initiated against him. Inquiry was conducted as per Gujarat State Civil Services (Conduct) Rules. 1971, and upon completion of the said proceedings under the extant Rules, Inquiry Officer under its report dated 04.07.2022 held the charges as proved.

Against the report of the Inquiry Officer, the petitioner filed representation dated 16.11.2021. The representation was considered and order of penalty dated 27.09.2022 was passed. Under the penalty order, Rs.3,000/- has been directed to be deducted from the pension of the petitioner for 5 years. Against the order of penalty dated 27.09.2022, the petitioner filed review application seeking reconsideration, and the same has been rejected by order dated 02.02.2023. Aggrieved by which, the present petition is filed.

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3. Heard learned advocate Mr.Smit Vaghela for learned advocate Vaibhav Vyas for the petitioner and learned Assistant Government Pleader Ms.Pooja Ashar for the respondent.

4. Learned advocate Mr.Smit Vaghela for the petitioner submitted that order of penalty dated 27.09.2022 is non- reasoned order. Various factors, which the petitioner had represented, particularly the fact that he was not on duty at night hours when phones were seized, has not been considered. He submitted that the petitioner was on duty during the day hours whereas surprise visit was incidented at night hours and therefore, allegations made are erroneous.

4.1 Further, there are many Officers, who were working in Jail and it is not only petitioner's negligence but it is collective negligence of all the Officers, who were on duty at the relevant time.

4.2 Moreover, charge-sheet was served upon the petitioner on the verge of his retirement and therefore, the order passed by the disciplinary authority imposing penalty is erroneous and deserves interference by this Court.

4.3 In support of his submissions for non-reasoned order,

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learned advocate for the petitioner relied upon following decisions of this Court:

(i) V.R.Gohil Vs. Gujarat Water Supply and Sewerage Board in Special Civil Application No.2321 of 2011 dated 04.12.2019;

(ii) D.B.Jethva Vs. State of Gujarat & Anr. in Special Civil Application No.4472 of 2010 dated 16.12.2021.

5. On the other hand, learned Assistant Government Pleader Ms.Pooja Ashar submitted that as can be evident from the report of the Inquiry Officer that surprise visit was carried out as information was received by the jail Superintendent that many under-trial prisoners are keeping mobile phones. The discipline of jail inmates is part of duty of the petitioner and evidently, as the under-trial prisoners were found with the mobile phones, the petitioner was negligent in performing his duty and therefore, charge-sheet was appropriately issued.

5.1 Further factum of mobile phones having found from the possession of the under-trial prisoners cannot be ignored. Further, the under-trial prisoners were using mobile phones since last more than 1 ½ months, during which, the petitioner was Supervisor for the said barrack.

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5.2 In support of her submissions, she submitted that scope of judicial review in disciplinary proceedings is very minimal and the said aspect has been considered by this Court in Special Civil Application No.4845 of 2023 and 1504 of 2020 and other allied matters. She submitted that there is no error in the order of penalty and therefore, no interference is called for by this Court.

6. Considered the submissions and decisions relied upon. It would be appropriate to revisit the following facts:

7. The factum of having found two mobile phones from the under-trial prisoners, is not disputed. Further, it is also not in dispute that the petitioner was on duty during the day hours and two mobile phones were seized during the surprise visit at night hours.

8. It was also found that the jail inmates were using these mobile phones since last 1 ½ months when the petitioner was on duty. Inquiry Officer therefore in its report dated 04.07.2022, after details recording of evidence, has held the charges as proved. Inquiry Officer took into consideration the statement of two jail inmates from whom, the mobile phones were seized, as also the defence of the present petitioner. Even defence of the petitioner that it is not possible to carry out the

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frisking of the jail inmates is also considered and thereafter, a detailed report was prepared holding the charges as proved. Upon Inquiry Officer Report dated 04.07.2022, the Disciplinary authority passed an order dated 27.09.2022, wherein he has incorporated that upon the Inquiry Officer's report, the petitioner was asked to give his final explanation, which he filed. The said explanation of the petitioner was considered and thereafter, the order of penalty deducting Rs.3,000/- from the pension of the petitioner for 5 years was awarded.

9. From the tenure of the order of Disciplinary Authority dated 27.09.2022, it is noticed that it recorded the facts and the evidence based on which the Inquiry Officer has passed its report holding the charges as proved. Since he was in conformity with the findings recorded by the inquiry authority, separated reasoning are not provided. The disciplinary authority took note of the explanation of the delinquent. Therefore, this Court is not in agreement with the submissions of the learned advocate for the petitioner that this is a non- reasoned order. Moreover, the review of the petitioner has been considered and thereafter, an order dated 02.02.2023 has been passed and therefore, the submission that the order of penalty was passed without application of mind is also not supported by the facts.

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10. Further, the Hon'ble Supreme Court in the case of Union of India and others Vs. Subrata Nath reported in 2022 SCC Online SC 1617, in relation to scope of judicial review in disciplinary proceedings, has held as under:

"18. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran, 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 inquiry 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

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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;

(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."

11. In view of the above, when the disciplinary authority has passed the penalty order, after following the due procedure as contemplated under the Rules and passed an order confirming the findings of the Inquiry Officer, I do not any reason to

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interfere. More particularly in the matter of quantum penalty, this Court is not required to sit in appeal on the decision of the Disciplinary Authority. In my opinion, no interference is called for. It is neither the case where the findings arrived at by the disciplinary authority are based on no evidence or is perverse, nor that the principle of natural justice have not been complied with. As stated hereinabove, the Disciplinary Authority has passed an order, after following due procedure as contemplated under the Rules and after due application of mind.

12. In view of above I do not see any reason to interfere and therefore, the present petition being devoid of merits, deserves to be dismissed and is hereby dismissed. No order as to costs.

sd/-

(MAUNA M. BHATT,J)

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