Prashantbhai Shanabhai Patel vs Gujarat State Cooperative And ...
2023 Latest Caselaw 4328 Guj

       C/SCA/5738/2023                            ORDER DATED: 12/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5738 of 2023

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                 PRASHANTBHAI SHANABHAI PATEL
                             Versus
     GUJARAT STATE COOPERATIVE AND RURAL DEVELOPMENT BANK
                              LTD.
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Appearance:
MR MA KHARADI(1032) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 12/06/2023

                              ORAL ORDER

1. This petition is filed challenging an order of penalty dated 24.10.2013, whereby the petitioner has been placed in a lower grade of Supervisor from junior officer grade-2. Further under order dated 15.11.2013, the pay of the petitioner has been fixed in the lower grade of Supervisor. Aggrieved by both these orders, present petition is filed.

2. Facts, in brief, are as under:

The petitioner joined the service with the respondent- bank on 16.05.1988, as a Clerk on ad-hoc basis. Thereafter, the service of the petitioner was regularised and was promoted to the post of Supervisor in the year 1999 and posted at Dahod. While working as Branch Manager Dahod, he was served with the Show Cause Notice dated 15.01.2013 alleging

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misappropriation, by not depositing the amount of Certificates in their respective accounts. In the show cause, the petitioner was put to notice that why action may not be initiated against him as per Staff Rule No. 35. However, before he could reply, he has been suspended from his service by an order dated 31.01.2013 with immediate effect. The head quarter was fixed at Rajkot. While he was posted at Rajkot office, he was served with second Show Cause Notice dated 18.03.2013 and on 09.04.2013, he was served with charge-sheet. Against the charge-sheet, the petitioner was directed to provide his explanation within ten days. The petitioner was under suspension during this period. The petitioner responded to the charge-sheet by reply dated 14.05.2013. Appointment of Inquiry Officer was made vide order dated 18.06.2013. Inquiry Officer passed an order holding the charges as proved. After the Inquiry Officer's Report, the petitioner was served with second Show Cause Notice dated 13.09.2013, proposing lowering of his grade as also reduction of three increments with permanent effect. The petitioner replied to the second Show Cause Notice by reply dated 24.09.2013. It was case of the petitioner that the inquiry was conducted in cryptic manner and a stigma has been unnecessarily cast without taking in to consideration his long spotless career. Therefore, request was made to restore the earlier position and to reconsider the order of penalty. However, an order dated

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24.10.2013 was passed confirming the penalty of lowering in grade of supervisor as well as withholding of three increments with permanent effect. Aggrieved by the same this petition is filed.

3. Heard learned advocate Mr.U.M.Kharadi for the petitioner. He submitted that from the reply of the petitioner, it is clear that the inquiry was conducted in cryptic manner and charges were wrongly held to be proved. The reply to the show cause was not considered objectively. He further submitted that long spotless tenure of the petitioner has been overlooked by the disciplinary authority. Most importantly, along with the disciplinary proceedings, criminal charge-sheet came to be filed and in the criminal prosecution, the petitioner has been acquitted from the charges leveled against him and therefore, the order of penalty dated 24.10.2013 is erroneous and requires quashment. He further submitted that pursuant to the order of acquittal dated 26.07.2022, by the competent court of law, a representation dated 02.11.2022 has been made, which has not been appropriately considered by the authority. He therefore, submitted that the penalty order may be quashed and set-aside.

4. Considering the submissions, the issue, which requires consideration is whether on account of the order of acquittal,

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the penalty order by the disciplinary authority needs reconsideration or not?

5. From the order of penalty, it is noticed that the Inquiry Officer after following due procedure as contemplated under the Rules, had passed an order holding the charges as proved. It cannot be ignored that the charges leveled were of temporary misappropriation of the amount by not depositing the certificates in respective accounts. Inquiry Officer, after following due procedure, passed an order holding the charges as proved. It is not case of the petitioner that there were procedural irregularities in the departmental proceedings. The report of inquiry officer was accepted by disciplinary authority and thereafter, second Show Cause Notice dated 24.09.2013 was issued, to which, the petitioner responded in detail. After considering the reply, authority passed order of penalty dated 24.10.2013. Merely the petitioner has been acquitted in the criminal proceedings, in my opinion is not the ground for interfering with the order of penalty. As per settled legal position, the standard of proof required in a disciplinary proceeding is based on preponderance of probabilities, whereas the criminal prosecution requires strict proof of evidence beyond reasonable doubt. Both the proceedings are different and distinct and both the forums run at different level. Moreover, in the order of acquittal, dated 26.07.2022, it is

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held that in absence of any strict proof of evidence, the petitioner has been acquitted on the ground of benefit of doubts.

5.1 The Hon'ble Supreme Court in the case of State of Rajasthan and others Vs. Phool Singh reported in 2022 SCC Online SC 1140, by reiterating the above principle has held as under:

"10. There should be no ambiguity in law on this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of "preponderance of probabilities", in a criminal court the prosecution has to prove its case "beyond reasonable doubt". In short, the difference between the two proceedings would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipso facto reinstated in service.

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19. Thus, in the present case, the learned Single Judge as well as the Division Bench of Rajasthan High Court were clearly wrong in interfering with the order of the Disciplinary Authority of the Rajasthan Police and placing their reliance on Capt. M. Paul Anthony. It is the Disciplinary Authority which is best equipped to reach a finding whether a "misconduct" has been committed. The prime concern of a Judge should be whether such a finding has been arrived after following a fair procedure, following the principles of natural justice and fairness. This aspect has been underlined in a recent judgment of this Court (State of Rajasthan v. Heem Singh). The relevant para is reproduced as hereunder: -

"39. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural

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justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a

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view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain."

20. It is true that this Court, apart from the case of Capt. M. Paul Anthony, has in a few cases not interfered with the reinstatement of an employee who was dismissed as a result of disciplinary proceedings, and was only reinstated in service because of his acquittal in criminal proceedings, but again the reasons which weighed with the Court in such cases were that in almost in all such cases, the acquittal was an honourable acquittal and not an acquittal on a technicality, or on acquittal given because of "benefit of doubt".

21. xxx xxx xxx

22. Therefore, in the present case the acquittal of the respondent is not an honorable acquittal, but an acquittal given due to a "benefit of doubt". Under these circumstances and in view of the position of law as stated above, this appeal is allowed and the order dated 29.01.2014 of the learned Single Judge and the order dated 09.09.2020 of the Division Bench of Rajasthan High Court, Jaipur Bench are hereby set aside."

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5.2. In one another decision the Hon'ble Supreme Court in the case of State of Karnataka and another Vs. Umesh reported in (2022)6 SCC 563, held as under:

"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary

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jurisdiction.

xxx xxx xxx

22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re- appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

(i) the rules of natural justice have been complied with;

(ii) the finding of misconduct is based on some evidence;

(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity; and

(vi) the penalty is disproportionate to the proven misconduct."

5.3. In the case of Union of India and others Vs. P.Gunasekaran reported in (2015)2 SCC 610, the Hon'ble Supreme Court has held as under:

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"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, re-appreciating even the evidence before the enquiry 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 Article 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 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

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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 Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate 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."

6. In view of above considering the scope of judicial review in the disciplinary/ penalty proceedings as well as the departmental proceedings and criminal prosecution being different and distinct, this petition fails on both the counts. Therefore, this petition is rejected summarily. No order as to costs.

(MAUNA M. BHATT,J)

DIPTI PATEL