Gujarat High Court
Gilbert Nazareth vs State Of Gujarat on 18 June, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/980/2019 JUDGMENT DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 980 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 3156 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GILBERT NAZARETH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.SHASHIKANT PARMAR(6346) for the Appellant(s) No. 1
MR SAHIL TRIVEDI AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 18/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. This appeal filed under Clause 15 of the Letters Patent, 1865
emanates from the order dated 18.02.2019 passed by the learned
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C/LPA/980/2019 JUDGMENT DATED: 18/06/2024
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Single Judge in Special Civil Application No.3156 of 2019. The
appellant - original petitioner had assailed the order dated
15.03.2018 passed by the respondent - State directing the pension
cut of Rs.5,000/- for 05 years. The appellant assailed the same
before the learned Single Judge but failed and hence, the present
appeal.
2. Mr.Parmar, learned advocate for the appellant has submitted
that the impugned order of the learned Single Judge as well as the
order of cut in pension is required to be quashed and set aside and
since the petitioner was in fact authorised by the State Government
to take decision with regard to the sale of land of the respondent -
Corporation. He has referred to the order dated 15.04.2005 passed
by the Gujarat Rural Housing and Rural Department Board,
Gandhinagar and submitted that the same authorises him to deal
with the land of the Corporation and hence accordingly, he has
entered the sale deed with the beneficiaries. While referring to the
findings of the inquiry officer's report, it is submitted that at the
most, it can be said that the appellant had, though acted in a bona
fide manner on the basis of the said resolution, ultimately, there is
no allegation alleging that he had gained from any transaction. It is
submitted that since on the verge of retirement, the charge-sheet is
issued to the appellant; the impugned order is required to be
quashed and set aside. No further contention is raised.
3. Per contra, Mr.Trivedi, learned AGP while inviting the
attention of this court to the order dated 15.04.2004 passed by the
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respondent-State Department has stated that the order dated
15.04.2005 is clarificatory in nature and the same is only issued
clarifying that the Secretary of Board is empowered to remove the
hypothecation on the land only and there is no power conferred
upon the Secretary to sell the land of the Board. He has submitted
that in the present case, the appellant, though was not authorised
to sell the land, has entered into the sale deed with the
beneficiaries of the land, which is a very serious charge and since
the same is proved after holding the departmental inquiry, the
punishment order may not be interfered with.
4. We have heard the learned advocates for the respective
parties. At the relevant time, the appellant (original petitioner) was
serving as a Secretary, Gujarat Rural Housing Board (GHRB) and he
retired on 30.11.2010. The appellant was issued a charge-sheet
dated 29.11.2010 before his retirement, alleging that he had entered
into the sale deed of the land belonging to the Gujarat Rural
Housing Board with the EWS beneficiaries (members of the
Brahamani Co-operative society).
5. It is the case of the appellant that on the basis of the
Administrative Order dated 15.04.2005 passed by the State
Department, he was authorised to enter into the re-sale and sale of
the land of the Board and hence, he passed the Administrative
Order dated 20/26.05.2008 to execute the sale deed in favour of the
Brahmaninagar Co-operative Society. Since it appears that some
complaint was made by the members of the Brahmaningar Co-
operative Society before the State Government, the State
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Government initiated departmental proceedings by issuing the
charge-sheet dated 29.11.2010. The charges referred to the
authorisedly returning the un-utilized land to the co-operative
society and it is alleged that thus, the appellant has acted without
jurisdiction in discharge of his duties as a Secretary of the Gujarat
Rural Housing Board. After holding the regular departmental
proceedings and on completion of the same, the inquiry officer
submitted his findings to the respondents on 14.09.2007 holding the
charge as proved. Ultimately, the respondent No.2 passed an order
dated 15.03.2018 to the effect of ordering pension cut of Rs.5,000/-
p.m. for 05 years.
6. It is noticed by us that in the writ petition and also before
us, the appellant has not alleged any violation of the statutory rules
in holding the departmental proceedings. At this stage, it would be
apposite to refer to the observations of the Apex Court in the case
of Deputy General Manager (Appellate Authority) and Ors. vs. Ajai
Kumar Srivastava, 2021 (2) S.C.C. 612.
"24. It is thus settled that the power of judicial review, of the
Constitutional Courts, is an evaluation of the decision making
process and not the merits of the decision itself. It is to ensure
fairness in treatment and not to ensure fairness of conclusion. The
Court/Tribunal may interfere in the proceedings held against the
delinquent if it is, in any manner, inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing the
mode of enquiry or where the conclusion or finding reached by
the disciplinary authority if based on no evidence. If the
conclusion or finding be such as no reasonable person would have
ever reached or where the conclusions upon consideration of the
evidence reached by the disciplinary authority is perverse or
suffers from patent error on the face of record or based on no
evidence at all, a writ of certiorari could be issued. To sum up,
the scope of judicial review cannot be extended to the
examination of correctness or reasonableness of a decision of
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authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged
misconduct against the public servant, the Court is to examine and
determine:
(i) whether the enquiry was held by the competent authority; (ii)
whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some
evidence and authority has power and jurisdiction to reach finding
of fact or conclusion.
26. It is well settled that where the enquiry officer is not the
disciplinary authority, on receiving the report of enquiry, the
disciplinary authority may or may not agree with the findings
recorded by the former, in case of disagreement, the disciplinary
authority has to record the reasons for disagreement and after
affording an opportunity of hearing to the delinquent may record
his own findings if the evidence available on record be sufficient
for such exercise or else to remit the case to the enquiry officer
for further enquiry.
27. It is true that strict rules of evidence are not applicable to
departmental enquiry proceedings. However, the only requirement
of law is that the allegation against the delinquent must be
established by such evidence acting upon which a reasonable
person acting reasonably and with objectivity may arrive at a
finding upholding the gravity of the charge against the delinquent
employee. It is true that mere conjecture or surmises cannot
sustain the finding of guilt even in the departmental enquiry
proceedings.
28. The Constitutional Court while exercising its jurisdiction of
judicial review under Article 226 or Article 136 of the Constitution
would not interfere with the findings of fact arrived at in the
departmental enquiry proceedings except in a case of malafides or
perversity, i.e., where there is no evidence to support a finding or
where a finding is such that no man acting reasonably and with
objectivity could have arrived at that findings and so long as there
is some evidence to support the conclusion arrived at by the
departmental authority, the same has to be sustained".
7. The Apex Court has thus categorically held that the Courts /
Tribunals may interfere in the proceedings held against the
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delinquent if it is, in any manner, inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the
mode of enquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. In the present case,
there are no averment made by the appellant alleging that the
inquiry proceedings are vitiated either by non-observation of rules
governing the disciplinary proceedings or due to violation of such
Rules. The delinquent- appellant is also afforded full opportunity of
hearing to present his case. The findings of the conclusion recorded
by the inquiry officer, do not in any manner indicate that the same
are perverse and the findings are based on no evidence. Thus, as
per the settled legal precedent, the Constitutional Court, while
exercising its jurisdiction of judicial review under Article 226 of the
Constitution of India would not interfere with the findings of the
fact arrived at in the departmental proceedings, except in the case
of mala fides or perversity, i.e. where there is no evidence to
support the finding or where a finding is recorded that no man
acting reasonably and with objectivity could have arrived at those
findings. So long there is some evidence to support the conclusion
arrived at by the departmental authority, the same has to be
sustained. The order dated 15.04.2004 passed by the respondent -
State Department, on which reliance is placed by the appellant, is
clarificatory in nature and the same is only issued clarifying that
the Secretary of Board is empowered to remove the hypothecation
on the land only and there is no power conferred upon the
Secretary to sell the land of the Board. Hence, the contention raised
by the appellant, that he was authorized to sell the land belonging
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to the Gujarat Rural Housing Board, does not merit acceptance.
8. In the present case, there is a definite finding recorded by the
inquiry officer that the appellant had acted beyond his authority
and he was not authorised either by the State Government or by
the respondent department to enter into sale deed of the land
procured by the GRHB. Hence, we do not find any infirmity or
illegality in the order passed by the respondent - State ordering the
pension cut of Rs.5,000/- p.m. for 05 years. The order of the
learned Single Judge, does not in any manner suffer from any
infirmity or illegality.
9. The Letters Patent Appeal fails and the same is dismissed.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
NAIR SMITA V./56
