Gujarat High Court
Yavarhusain Ismail Shaikh vs Divisional Controller, Gujarat State ... on 22 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6599 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6891 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 7060 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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YAVARHUSAIN ISMAIL SHAIKH
Versus
DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT
CORPORATION, AHMEDABAD DIVISION
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Appearance:
ANURADHA G RATHOD(7717) for the Petitioner(s) No. 1
MR GK RATHOD(2386) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/07/2025
COMMON ORAL JUDGMENT
1. Since the issues raised in these petitions are similar in
nature, they are being decided by a common judgment.
For the purpose of adjudication, the facts of Special Civil
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Application No. 6891 of 2025 are being taken as the lead
case.
2. Rule returnable forthwith. Learned advocate
Mr.Munshaw waives service of Rule on behalf of the
respondent.
3. This petition is filed under Articles 226 and 227 of the
Constitution of India, challenging the award passed by
the learned Industrial Tribunal, Ahmedabad, in
Reference (IT) Nos. 93 of 2019 dated 09.07.2021, 102 of
2021 dated 01.12.2021, and 92 of 2019 dated
09.07.2021 in Special Civil Application Nos. 6891 of
2025, 6599 of 2025, and 7060 of 2025, respectively,
whereby the Tribunal has set aside the punishment
imposed by the employer with regard to placing the
petitioner on the minimum pay scale (basic pay) and
imposing the punishment of stoppage of five increments
with future effect.
4. It is the case of the present petitioner that he was
working as a Clerk since 15.02.1994 in the respondent
Corporation at the Viramgam Depot. A chargesheet was
issued alleging that, while the workman was on duty on
03.01.2015, one Mr. Chaudhary came to the Viramgam
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Depot and made allegations that his Clerk and other
employees, in connivance with each other, had stolen
diesel. A preliminary inquiry was conducted, and a
report was submitted, following which the petitioner was
served with a chargesheet on 23.02.2015. Upon
conclusion of the departmental inquiry, the petitioner
was imposed the punishment of being placed at the
minimum of the pay scale, vide order dated 12.01.2016.
Challenging the said punishment, a dispute was raised
before the learned Tribunal, which was numbered as
Reference (IT) No. 93 of 2016. The learned Tribunal,
after hearing the parties, substituted the punishment of
placing the petitioner at the minimum pay scale with
that of stoppage of five increments with future effect,
which is the subject matter of challenge before this
Court.
5. Heard learned advocate Ms.Anuradha Rathod for the
petitioner and learned advocate Mr.H.S.Munshaw for
the respondent.
6. Learned advocate Ms. Rathod submits that the petitioner
was not involved in the alleged diesel theft scam and
that the punishment was imposed without any
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supporting evidence. It is further submitted by learned
advocate Ms. Rathod that the Prosecutor and the Judge
were the same person, which is contrary to the
principles of natural justice, and therefore, the
impugned award deserves to be set aside.
7. On the other hand, learned advocate Mr. Munshaw,
appearing for the respondent, is unable to rebut the
submission regarding the fact that the Prosecutor and
the Judge were the same person. Learned advocate
Mr.Munshaw submitted that since this ground was not
raised before the learned Reference Court, it is not open
for the petitioner to raise it before this Court, and in that
background, the present petition deserves to be
dismissed.
8. Having considered the arguments advanced by the
learned advocates and upon referring to the record, it
emerges that the reporter, namely Mr. A.G. Chaudhary,
who is a Security Officer, conducted a secret inquiry and
submitted his report on 15.05.2015 to the Deputy Head
of Security. Based on the said report, a chargesheet was
issued by Mr. M.N. Goswami, Competent Authority and
Divisional Works Superintendent, S.T.Division,
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Ahmedabad. Thereafter, an inquiry was conducted by
Mr. Goswami, Competent Authority and Divisional
Works Superintendent, S.T.Division, Ahmedabad, who
submitted the inquiry report on 21.07.2015. The said
Mr. Goswami, in his capacity as Competent Authority
and Divisional Works Superintendent, S.T.Division,
Ahmedabad, also issued the show cause notice
intimating the present petitioner regarding the proposed
action, and subsequently passed the punishment order
dated 12.01.2016. From the record, it appears that the
show cause notice, chargesheet, and the final
punishment order were all issued by the same person,
i.e. Mr. Goswami, Competent Authority and Divisional
Works Superintendent, S.T.Division, Ahmedabad.
9. This Court has referred the decision of the Apex Court in
the case of Managing Director, ECIL, Hyderabad v.
B. Karunakar, reported in (1993) 4 SCC 727. In the
said judgment, it was held that where the Inquiry Officer
is a person other than the Disciplinary Authority, the
disciplinary proceedings are divided into two distinct
stages. The first stage ends when the disciplinary
authority arrives at its conclusions on the basis of the
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evidence, Inquiry Officer's report and the delinquent
employee's reply to it. The second stage begins when the
disciplinary authority decides to impose penalty on the
basis of its conclusions. While right to receive the report
is thus, a part of the reasonable opportunity of defending
himself in the first stage of the inquiry. It is well-settled
that before the Disciplinary Authority takes into
consideration the findings contained in the Inquiry
Officer's report, the delinquent employee must be
afforded an opportunity to submit a representation
against those findings. The right to show cause against
the proposed penalty, however, arises at the second
stage, that is, after the Disciplinary Authority has
considered the report, formed an opinion regarding the
guilt of the employee, and proposed to impose a specific
penalty. At the first stage, the employee is granted an
opportunity to dispute the findings of the Inquiry Officer
and to establish his or her innocence. At the second
stage, assuming the conclusion as to guilt is accepted,
the employee is entitled to make a representation to
seek either no penalty or a lesser penalty. The second
stage consists of issuance of notice to show cause
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against the proposed penalty and of considering the
reply to the notice and deciding upon the penalty. What
is dispensed with is the opportunity of making
representation on the penalty proposed and not of
opportunity of making representation on the report of
the Inquiry Officer. The latter right was always there.
10. This Court has also considered the decision rendered by
the Apex Court in the case of Union of India & Ors. v.
Ram Lakhan Sharma, reported in (2018) 7 SCC 670,
wherein it was held that the issue as to whether the
Inquiry Officer, who is expected to act independently
and impartially in a disciplinary inquiry, has assumed
the role of a prosecutor, is essentially a question of fact.
Such determination must be made based on the facts
and the proceedings of the particular case. In a relevant
paragraph of the judgment, the Apex Court enunciated
the principle as under:
"33. The Division Bench after elaborately considering the
issue summarised the principles in paragraph 16 which is to
the following effect:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge
shall not act as a Presenting Officer, who is in the position
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of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to
appoint a Presenting Officer in each and every inquiry. Non-
appointment of a Presenting Officer, by itself will not vitiate
the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth
or to obtain clarifications, can put questions to the
prosecution witnesses as also the defence witnesses. In the
absence of a Presenting Officer, if the Inquiry Officer puts
any questions to the prosecution witnesses to elicit the facts,
he should thereafter permit the delinquent employee to
cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-
chief by leading the prosecution witnesses through the
prosecution case, or puts leading questions to the
departmental witnesses pregnant with answers, or cross-
examines the defence witnesses or puts suggestive questions
to establish the prosecution case employee, the Inquiry
Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not
vitiate the inquiry and it is recognised that the Inquiry
Officer can put questions to any or all witnesses to elicit the
truth, the question whether an Inquiry Officer acted as a
Presenting Officer, will have to be decided with reference to
the manner in which the evidence is let in and recorded in
the inquiry.
Whether an Inquiry Officer has merely acted only as an
Inquiry Officer or has also acted as a Presenting Officer
depends on the facts of each case. To avoid any allegations
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of bias and running the risk of inquiry being declared as
illegal and vitiated, the present trend appears to be to
invariably appoint Presenting Officers, except in simple
cases. Be that as it may."
11. The Apex Court has also referred to the decision
rendered by the Division Bench of the Madhya Pradesh
High Court in Union of India v. Mohd. Naseem
Siddiqui, reported in ILR (2004) MP 821, wherein the
judgment was authored by R.V. Raveendran, C.J. In that
case, the Court had the occasion to consider the issue of
vitiation of inquiry proceedings when the Inquiry Officer
departs from his neutral role and assumes the character
of a prosecutor. The relevant paragraph is reproduced
as under:-
"One of the fundamental principles of natural justice is that no
man shall be a judge in his own cause. This principle consists of
seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias,
(ii) The adjudicator shall not be the prosecutor,
(iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of
the facts of the case while inquiring into charges,
(vi) The Adjudicator shall not decide on the dictates of his
Superiors or others,
(vii) The Adjudicator shall decide the issue with reference to
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material on record and not reference to extraneous material or on
extraneous considerations.
If any one of these fundamental rules is breached, the inquiry will
be vitiated"
12. Having considered the legal position discussed above,
this Court is of the opinion that the Inquiry Officer, while
acting as a quasi-judicial authority, occupies the position
of an independent adjudicator. He is not expected to act
as a representative or agent of the Department, the
Disciplinary Authority, or the Government. It is
incumbent upon him to maintain complete impartiality,
and he must not assume the dual role of prosecutor and
judge. His primary duty is to objectively examine the
evidence presented by the Department and, even in the
absence of the delinquent official, to assess whether the
unrebutted evidence on record is sufficient to establish
the charges. In the present case, as discussed
hereinabove, it is evident that the charge-sheet, the
show-cause notice, the inquiry report, and the
punishment order were all issued and authored by the
same individual, namely Mr. Goswami, Competent
Authority and Divisional Works Superintendent,
S.T.Division, Ahmedabad. This convergence of roles
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gives rise to a serious apprehension of bias and suggests
that the inquiry was reduced to a mere empty formality,
lacking the essential safeguards of a fair disciplinary
process. Consequently, the disciplinary proceedings
stand vitiated for failure to adhere to the principles of
natural justice.
13. The contention raised by the learned advocate, Mr.
Munshaw, that this issue was not urged before the
learned Reference Court is noted. However, in the
considered opinion of this Court, when Article 311(2) of
the Constitution mandates following the principal of
natural justice in violation of such a constitutional
safeguard can be examined by this Court in the exercise
of its writ jurisdiction under Article 226. Therefore, the
objection raised by the learned counsel is untenable and
does not preclude this Court from considering the issue
on merits.
14. Resultantly, these petitions are allowed, and the
punishment order passed by the learned reference court
in Reference (IT) Nos. 93 of 2019 dated 09.07.2021, 102
of 2021 dated 01.12.2021, and 92 of 2019 dated
09.07.2021 in Special Civil Application Nos. 6891 of
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2025, 6599 of 2025, and 7060 of 2025, respectively is
hereby and set aside.
15. Rule is made absolute.
(M. K. THAKKER,J)
NIVYA A. NAIR
