Chandubhai Tribhovandas Panchal vs State Of Gujarat Thro The ...
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     C/SCA/10878/2011                             JUDGMENT DATED: 31/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10878 of 2011


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                             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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                 CHANDUBHAI TRIBHOVANDAS PANCHAL
                               Versus
           STATE OF GUJARAT THRO THE SECRETARY & 2 other(s)
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 31/03/2023

                             ORAL JUDGMENT

PRELUDE :

1. By way of present petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

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"....this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, direction or order :

(A) Quashing and setting aside the order dt. 10.5.2011 imposing the penalty of monthly pension cut of Rs.3000/- for 10 years on the petitioner, and refund the amount deducted from the petitioner with 12% interest.

(B) Quashing and setting aside the departmental inquiry against the petitioner.

(C) During the pendency and final disposal of this petition, the Respondent No.1 may be restrained from further implementing the order dt. 10.5.2011 imposing penalty of monthly pension cut of Rs.3000/- for 10 years.

(D) To grant such and further relief as may be deemed fit and proper."

FACTUAL MATRIX :

2. It is the case of the petitioner that he was appointed as a Police Sub-Inspector on 1.7.1969 in the State of Gujarat and on reaching the age of superannuation he retired from service on 31.3.2003. After the retirement, a charge-sheet dated 4.10.2004 came to be served upon the petitioner by the respondent no.3 for holding departmental inquiry into five charges, main charge being that on 16.2.2002, the petitioner had accepted an amount of Rs.280/- as illegal gratification from one Jeep Driver

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Maganbhai Maknajibhai Pandor in connection with cancellation of a memo. The petitioner did not send his written statement of defence as was required as per the said charge-sheet. An Inquiry Officer was thereafter appointed to hold the departmental inquiry. After initiating and conducting the regular departmental inquiry, the Inquiry Officer submitted his report and found that charges nos.2, 3, 4 and 5 were proved, however, charge no.1 was not proved. The State Government agreed with the findings of the Inquiry Officer and, therefore, issued a memo dated 30.12.2010 calling upon the petitioner to show-cause as to why pension or part thereof should not be stopped. In reply to the said memo, the petitioner submitted his representation dated 25.2.2011. The State Government, after considering the representation made by the petitioner, imposed a penalty of monthly pension cut of Rs.3,000/- for 10 years.

3. Being aggrieved and dissatisfied with the decision of the State Government imposing penalty of monthly pension cut of Rs.3,000/- for 10 years, the petitioner has preferred the present petition.

SUBMISSIONS ON BEHALF OF THE PETITIONER :

4. Mr.Tajas Satta, learned advocate appearing for the petitioner has contended that the petitioner was not given ample opportunity of being heard and even there is a breach of rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. It is incumbent on the part of the Inquiry Officer that, after recording the evidence if the Inquiry Officer closes the case,

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at that time, an opportunity is required to be given to the delinquent to examine himself, and generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. The provision is more or less similar to Section 313 of the Code of Criminal Procedure, which would provide an opportunity to a person facing charges to explain the circumstances which may be used against him. No such opportunity is given to the petitioner. The petitioner is deprived of fair opportunity of hearing and denied the principles of natural justice. To that extent, the petitioner is prejudiced. To fortify his submission, Mr.Satta has relied upon a decision of this Court rendered in the case of Faridaben Ahmedhusen Qureshi Wd/o Ahmedhusen L. Qureshi vs. State of Gujarat (Special Civil Application No.7317 of 2004, decided on 1.7.2010).

5. The second limb of argument of the learned advocate Mr.Satta is that the Inquiry Officer has proceeded ex-parte, and when charge no.1 is not proved, the question of proving the other charges does not arise. To that extent, the Inquiry Officer has committed an error and in upholding the aforesaid finding of the Inquiry Officer, the Disciplinary Authority has also committed an error in imposing the penalty.

6. Lastly, learned advocate for the petitioner Mr.Satta has requested this Court to quash and set-aside the order dated 10.5.2011 imposing penalty of monthly pension cut of Rs.3,000/- for 10 years on the petitioner and to refund the amount deducted from the petitioner with 12% interest. He

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further requested to quash and set-aside the departmental inquiry against the petitioner.

SUBMISSIONS ON BEHALF OF THE RESPONDENT - STATE :

7. Per contra, learned AGP Mr.Kurven Desai appearing for the respondent - State of Gujarat has vehemently submitted that the present petition is not maintainable as the departmental inquiry proceedings have not been challenged by the petitioner and the petitioner has only challenged the order of punishment dated 10.5.2011. Further, learned AGP Mr.Desai submitted that ample opportunity of hearing was given and principles of natural justice were strictly followed by the Inquiry Officer, even though the petitioner has intentionally opt to remain absent. After several reminders issued to the petitioner, though he remained present but did not participate in the proceedings. Therefore, now he cannot blame that he had not been given ample opportunity and the Inquiry Officer had not followed the principles of natural justice. To substantiate his argument, learned AGP Mr.Desai has relied on the Rojkam produced at pp.82 to 84 of the compilation, which is produced along with the affidavit-in-reply submitted on behalf of the respondent no.3 and has requested to dismiss the petition since the petitioner is taking undue advantage of his own wrong.

FINDINGS :

8. Before delving into the issue on hand, it is pertinent to highlight the importance of principles of natural justice in a

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disciplinary proceeding as compliance with the principles of natural justice is not an empty formality but a mandatory requirement. The Hon'ble Apex Court, in the case of Sur Enamel and Stamping Works Pvt. Ltd. vs. Their Workmen, (1964) 3 SCR 616, has laid down the following :

"4....An enquiry cannot be said to have been properly held unless,

(i) the employee proceeded against has been informed clearly of the charges leveled against him,

(ii) the witnesses are examined-ordinarily in the presence of the cmployee-in respect of the charges,

(iii) the employee is given a fair opportunity to cross- examine witnesses,

(iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and

(v) the enquiry officer records his findings with reasons for the same in his report."

9. Having considered the submissions canvassed by the learned advocates for the parties and having perused the documents on record, it appears that while the petitioner was

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serving as a Police Sub-Inspector, on 18.2.2002, one complaint came to be lodged with the A.C.B. by one Shri Maganbhai Maknajibhai Pandor, wherein, it was alleged that the present petitioner demanded bribe from him. Pursuant to the said complaint, departmental proceedings came to be initiated and Inquiry Officer was appointed. Thereafter, a charge-sheet came to be issued on 4.10.2004. Though the charge-sheet was duly served upon the petitioner, he did not file any statement of defence. The petitioner was given ample opportunity to defend, however, he did not avail the same and even he did not cross- examine the witnesses also. On going through the record and the rojkam produced at pp.82 to 84, it appears that the petitioner tried his level best to prolong the proceedings. On 30.11.2004, the regular departmental proceedings came to be initiated and though the petitioner was given ample opportunity to defend upto 7.1.2006, he did not avail the same and repeatedly requested the Inquiry Officer to adjourn the matter on one pretext or the other. Once again on 17.1.2006, the petitioner appeared before the Inquiry Officer and requested to postpone the departmental proceedings for a period of four months. Thereafter, several reminders were issued to the petitioner to remain present. The witnesses were examined but not cross- examined by the petitioner. On 8.3.2006, the petitioner once again sought for an adjournment. Therefore, on 24.4.2006, the petitioner was directed to remain present before the Inquiry Officer on 28.4.2006 to conduct the departmental proceedings. Since the petitioner was not remaining present, on 12.6.2006, he was informed about the decision of examining the witnesses ex- parte. Thereafter, again on several dates, i.e. from 29.8.2006 upto 11.9.2009, the petitioner was informed about examining

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the witnesses. On 29.12.2009, the petitioner was informed to file his defence, however, the petitioner did not submit his defence. On 20.1.2010 and 6.3.2010, the petitioner was once again reminded to submit his defence. Thereafter, on 10.4.2010, one more chance was given to the petitioner to remain present before the Inquiry Officer. However, the petitioner once again sought for adjourment for one month. Ultimately, on 18.4.2010, the petitioner submitted his defence and the said defence was considered by the Inquiry Officer. Thus, the question does not arise that ample opportunity was not afforded to the petitioner for filing his defence and petitioner was denied fair opportunity to defend himself.

10. Further, on going through the record, more particularly, the rojkam produced at pp.82 to 85, and the departmental proceedings, prima facie I am of the considered view that sufficient opportunity of hearing was afforded to the petitioner and the principles of natural justice was followed by the Inquiry Officer and the disciplinary authority. Thus, the petitioner cannot blame that the provisions of rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 are not scrupulously followed by the Inquiry Officer.

11. Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether any violation or breach of principles of natural justice has been committed by the Inquiry Officer during the departmental proceedings ?

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12. The reply is emphatically in the negative. To answer the same, it is profitable to refer and rely upon the case reported in AIR 1984 SC 273 (K.L.Tripathi vs. State Bank of India and others). Speaking for a three-Judge Bench, Justice Sabyasachi Mukharji (as His Lordship then was) considered the question, whether violation of each and every facet of principles of natural justice has the effect of vitiating the inquiry. The learned Judge in para-32 observed as under :

"32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.

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The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases.

The principles of natural justice will, therefore, depend upon the facts and circumstances of each particular case. We have set out herein before the actual facts and circumstances of the case. The appellant was associated with the preliminary investigation that was conducted against him. He does not deny or dispute that. Information and materials undoubtedly were gathered not in his presence but whatever information was there and gathered namely, the versions of the persons, the particular entries which required examination were shown to him. He was conveyed the information given and his explanation was asked for. He participated in that investigation. He gave his explanation but he did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts."

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13. It is trite to say that the inquiry is vitiated by violation of principles of natural justice. The Hon'ble Apex Court, in the case of State Bank of India vs. R.K.Jain and others, reported in (1972) 4 SCC 304, held that an inquiry is vitiated by violation of principles of natural justice or if no reasonable opportunity was provided to the delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with rules of natural justice. But, in the present case, on going through the record and facts of the case, it can be said that the principles of natural justice in the disciplinary proceeding was empty formality. In the present case also, no empty formality is done by the Inquiry Officer. Though ample opportunity was afforded to the petitioner, he remained negligent over his right. Now, after waking up from a deep slumber, the petitioner is trying to take undue advantage of his own wrong by saying that he was not afforded ample opportunity of being heard by the Inquiry Officer. Now, he is trying to do that indirectly, which is impermissible to do directly. The said argument is not sustainable in view of the peculiar facts of the present case.

14. One more aspect which is required to be considered is that the findings recorded by the disciplinary authority were not challenged. However, the scope for interference with the findings of the disciplinary authority under Article 226 and 227 of the Constitution of India is very limited. In this regard, reference can be made to the case reported in (2022) SCC OnLine SC 667 (State Bank of India and another vs. K.S.Vishwanath). In

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the said case, the Supreme Court had an opportunity to reiterate on the subject and it was held in para-27 as under :

"27. Recently in the case of Nand Kishore Prasad (Supra) after considering other decisions of this Court on judicial review and the power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry, it is observed and held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is further observed and held that the High Court is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. It is further observed that if there is some evidence, that the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition under Article 226 of the Constitution of India to review/reappreciate the evidence and to arrive at an independent finding on the evidence...."

15. Further, in the case of Union of India vs. P.Gunasekaran, reported in (2015) 2 SCC 610, in para-13, the Hon'ble Supreme Court delineated the following parameters as to when the High Court shall not interfere in the disciplinary proceedings :

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"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."

16. In the instant case, none of the above criteria is satisfied or the case of the petitioner does not fall in any of the aforesaid parameters. In the present case, the allegations are against a police officer asking for an illegal gratification. The petitioner has remained negligent to defend himself and now he is making hue and cry that he has not been afforded ample opportunity of being heard. This is nothing but abuse of process of law. He cannot take undue advantage of his own wrong.

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17. The petitioner has given his statement of defence on 17.4.2010 and also made further representation on 25.2.2011 before the disciplinary authority (Annexure-G page-50 and Annexure-D page-32 respectively of the compilation), which are considered by the respective authorities. Further, the learned advocate for the petitioner has argued that the Inquiry Officer did not find proved Issue No.1. If the memo was not issued, then the question does not arise to hold the delinquent guilty qua the other charges. It is needless to say that the tenor of the charge- sheet was considered. The main issue was the issuance of the memo. However, on going through the report and the charge, the Issue Nos.2 to 5 are in connection with asking for illegal gratification for issuance of the false memos, and to enrope the applicant in criminal offences, the delinquent has misused the vehicle of the applicant and without the permission, he left the headquarter Vijaynagar. All these allegations made in the charge-sheet are found unequivocally proved.

18. In the case of Ashok Kapil vs. Sana Ullah (dead) and others, (1996) 6 SCC 342, the Supreme Court observed that the maxim "Nullus commodum copere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, a party cannot secure the assistance of a court of law for enjoying the fruit of his own wrong. Further, it would be relevant to refer the legal maxim "vigilantibus non dormientibus jura subveniunt" i.e. the law assists those that are vigilant with their rights, and not those that sleep thereupon. Law will help only those who are vigilant. Law will not assist those who are careless of his/her

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right. In order to claim one's right, he/she must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Law confers right on persons who are vigilant of their rights. The equity comes to the aid of the vigilant and not the slumbering. Being an employee of a disciplined department and a member of law enforcement agency, the petitioner ought to have responded to the various reminders of the authority and exercised his right of defence. However, he has neither cross-examined any witness nor has made any such demand before the authority and he further participated in the proceedings before the Inquiry Officer and filed his final statement of defence on 17.4.2010 and made representation on 25.2.2011 before the disciplinary authority. Thereafter, considering the said defence, the disciplinary authority imposed punishment upon the petitioner. Both the authorities have taken into consideration the petitioner's conduct of intentionally remaining absent.

19. Learned advocate for the petitioner has relied upon Faridaben Ahmedhusen Qureshi (supra), wherein it has been held as under :

"8. Having regard to the rival contentions, it is factually not disputed that the respondent-authorities while conducting the inquiry did not comply with the requirement of Rule 9(17). Non-compliance of this has been held by the Apex Court to be denying an opportunity to explain the circumstances appearing against the delinquent. This would certainly vitiate the departmental proceedings and would

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affect the right of the petitioner to defend himself in a material way. Under the circumstances, the impugned order imposing the penalty deserves to be set aside."

20. The said judgment is clearly distinguishable on fact. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr, (2005) 4 SCC 649).

21. In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr. Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., [2002] 1 SCR 621, are also quite apt (at p.635):

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

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Thus, the decision rendered in the case of Faridaben Ahmedhusen Qureshi (supra) would be of no help to the petitioner as the set of facts of the case on hand are different.

22. Having regard to the conduct and the dilatory tactics adopted by the petitioner, now he cannot take undue advantage of his own wrong by saying that he has not been afforded ample opportunity of being heard and put his defence. He has also put forward his defence and the disciplinary authority has also considered the same and then imposed the penalty. There is no breach of the provisions of rule 9(17) of the Rules, 1971, or the principles of natural justice, as the petitioner is not denying the opportunity to explain the circumstances appearing against him. Hence, the question does not arise to vitiate the departmental proceedings and it would affect the right of the petitioner to defend himself in any manner. Hence, looking to the facts of the present case, this Court is of no help to the petitioner.

23. In the above view of the matter, the petition fails and is hereby dismissed. Rule discharged.

(HASMUKH D. SUTHAR, J.) /MOINUDDIN