Gujarat High Court

B H Dave Since Deceased Through His Heirs ... vs State Of Gujarat on 6 November, 2025

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                          R/LETTERS PATENT APPEAL NO. 1350 of 2024
                                                              In
                                         R/SPECIAL CIVIL APPLICATION NO. 21266 of 2007

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                               B H DAVE SINCE DECEASED THROUGH HIS HEIRS HANSABEN
                                                 BALCHANDRA DAVE
                                                       Versus
                                              STATE OF GUJARAT & ANR.
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                        Appearance:
                        MR VAIBHAV A VYAS(2896) for the Appellant(s) No. 1
                        MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1
                        NOTICE SERVED for the Respondent(s) No. 2
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                           CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                                 and
                                 HONOURABLE MR.JUSTICE L. S. PIRZADA

                                                           Date : 06/11/2025
                                                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr. Vaibhav Vyas

for the petitioner and learned

Assistant Government Pleader Ms. Shruti

Dhruve for the respondents.

2. By this appeal under Clause 15 of the

Letters Patent Act, the appellant-

original petitioner has challenged the

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order dated 20.02.2024 passed by the

learned Single Judge in Special Civil

Application No. 21266/2007.

3. Brief facts of this appeal are as

follows:

3.1 The appellant joined the service

on 05.03.1983 as direct recruit Store

Keeper and in due course, he was

promoted to the post of Forman (Class-

III) on 24.11.1992. At the relevant

point of time, the appellant was also

given charge of In-charge Principal

(Class-II).

3.2 It is the case of the appellant

that the charge-sheet was issued on

18.10.2003 for the charges which were

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denied by the appellant by defense

statement dated 17.04.2004. The

appellant had submitted his defense

statement before the Inquiry Officer on

13.07.2005.

3.3 One Mr. C.D.Patel was appointed

as Inquiry Officer on 15.09.2004 who

submitted inquiry report on 01.08.2005

holding that the charges levelled

against the appellant are partly

proved. It was held that out of seven

charges against the appellant, two

charges being Charge No.2 pertaining to

the purchases made by the appellant

from M/s. Wagheshwari Traders, a

Proprietorship Firm of wife of the

appellant and Charge No.3 pertaining to

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the issue of malpractice of making

purchases from M/s. Wagheshwari Traders

by creating false rates of false

Ceiling and Kota Marble Fitting in

Computer Batch of the Institution were

held to be proved.

3.4 Thereafter, a show-cause notice

dated 12.08.2005 was issued along with

the inquiry report to the appellant for

imposing the penalty. The appellant

filed reply to the show-cause notice on

03.09.2005. The Disciplinary Authority

issued the punishment order dated

14.09.2005 and imposed the punishment

of compulsory retirement from service.

The appellant thereafter preferred an

appeal before the Gujarat Civil

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Services Tribunal challenging the order

of punishment which was rejected by

order dated 14.06.2006. The appellant

thereafter challenged the order of the

Tribunal along with order of

Disciplinary Committee before this

Court by preferring Special Civil

Application No. 21266/2007 which is

dismissed by the impugned order dated

20.02.2024.

Being aggrieved by the impugned order,

the appellant has preferred the present

appeal.

4. Learned advocate Mr. Vaibhav Vyas for

the appellant-original petitioner

submitted that the Inquiry Officer in

the inquiry report (Page 119 of the

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Paper-Book) has held that there is no

malpractice committed by the appellant

except for the fact that the appellant

has undertaken the purchases from Firm

of his wife.

4.1 It was further submitted that

the only lapse on the part of the

appellant was not issuing prior

intimation to the authority before

making purchases from the Firm of his

wife.

4.2 It was further submitted that

the appellant has been punished by

order dated 31.05.2005 passed by the

Director, Employment and Training in a

separate proceeding by stoppage of two

annual increments without future effect

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for breach of Rules 3(1)(1), 3(1)(2)

and 3(1)(3) read with Rule 15(2) and

15(3) of the Gujarat State Services

(Conduct) Rules, 1971.

4.3 It was therefore, submitted that

the Disciplinary Authority has passed a

very harsh order of compulsory

retirement in spite of the meritorious

service of more than 28 years put in by

the appellant. It was submitted that

the appellant has accepted that the

purchases have been made from the Firm-

M/s. Wagheshwari Traders, Junagadh

which was of the ownership of wife of

the appellant but there is no evidence

on record that the purchases have been

made at a higher rate.

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4.4 It was therefore, submitted that

the Disciplinary Authority has

committed an error by imposing penalty

of compulsory retirement as the

appellant has been deprived of the

pensionary benefit after service of

more than 28 years.

4.5 It was further pointed out that

the learned Single Judge has also

committed an error by observing in para

20 that the onus of proof in the

departmental inquiry is to be cast upon

the delinquent by relying upon the

decision of the Hon'ble Apex Court in

case of State Bank of India vs. AGD

Reddy inasmuch as before the Inquiry

Officer, the onus of proof of proving

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the charge is upon the authority and

not on the delinquent.

4.6 It was further submitted that

the appellant has already passed away

and this appeal is filed only to remove

the stigma imposed upon the appellant

so that the legal heir can get the

family pension.

5. On the other hand, learned Assistant

Government Pleader Ms. Shruti Dhruve

for the respondent supported the

Judgement and Order passed by the

learned Single Judge as well as order

passed by the Disciplinary Authority

and confirmed by the Tribunal. It was

further submitted that as held by the

Hon'ble Apex Court in case of State

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Bank of India vs. A.G.D. Reddy reported

in (2023) 14 Supreme Court Cases 391,

this Court cannot sit in appeal with

regard to quantum of punishment imposed

by the Disciplinary Authority. The

Hon'ble Apex Court in the said case has

held as under:

"42. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision- making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and

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reiterated in a long line of judgments of this Court.

43. In the present case, it could certainly not be said that the report is based on no evidence or that it is perverse. The learned Single Judge transgressed the limits of judicial review in setting aside the enquiry proceedings and the punishment imposed. The Division Bench, in a short order has, after extracting a part of the learned Single Judge's judgment, gone on to hold that having perused the records of the enquiry they do not find that the charges have been dealt with in any manner of specificity. Thereafter they conclude that the learned Single Judge was justified in arriving at its conclusion. We are not able to sustain the orders of the learned Single Judge and the Division Bench.

Severability of charges

38. The question that remains is, in the light of the findings above, does the order of penalty imposed call for any interference?

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39. The law is well-settled that if in a disciplinary proceeding, the order of penalty can be imposed on the charges proved and the punishment imposed is lawfully sustainable on those charges, it is not for the Court to consider whether those grounds alone would have weighed with the authority in imposing the punishment. No doubt, on the facts of the present case, on some aspects of the charge, the proof may have been found wanting. However, since the law laid down by this Court is that unless punishment imposed is only co-relatable to any of those charges found not proved, the penalty cannot be set aside. In this case, the punishment can be sustained even if the charges held not proved are severed. [See State of Orissa vs. Bidyabhushan Mohapatra [1963] Supp. 1 SCR 648 and Deputy General Manager (Appellate Authority) and Others. vs. Ajai Kumar Srivastava, (2021) 2 SCC 612].

40. Then the only question is does the penalty imposed shock the conscience of the Court? In the oral arguments as well as in

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the written submissions, the respondent contended that there was no charge of financial misappropriation or of causing any financial loss to the Bank. This submission was countered by the appellant by placing reliance on the judgment of this Court in Disciplinary Authority-Cum- Regional Manager and Ors vs. Nijunja Bihari Panaik, (1996) 9 SCC 69, particularly, the holding of the Court in para seven thereof to contend that the test is really not of loss having been resulted or profit having been made. The test is whether the delinquent employee, has observed the prescribed norms of the Bank. The penalty imposed in this case is "reduction in basic pay to the lowest stage in Scale-I" as envisaged under Rule 49 (e) of the State Bank of India (Supervising Staff) Service Rules and further, to treat the period spent by the delinquent officer under suspension from 18.08.1990 till the date of his reinstatement as suspension only.

Since the charge of not conducting periodical inspection and the failure to complete the formalities for creating equitable mortgage with regard to M/s Saraswathi Fabricators are

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supported by evidence, we do not think that the penalty as imposed is disproportionate so as to shock the conscience of the Court. We maintain the penalty as imposed in the order of the Appointing Authority dated 31.01.1995 and as confirmed by the Appellate Authority."

5.1 Learned AGP Ms. Dhruve further

referred to and relied upon the

decision of Hon'ble Apex Court in case

of Deputy General Manager (Appellate

Authority) and ors vs. Ajai Kumar

Srivastava reported in (2021) 2 Supreme

Court Cases 612 in which, the Hon'ble

Apex Court has held as under:

"24.It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decisionmaking 3 1994(6) SCC 302 4 1995(1) SCC 216 5 1995(6) SCC 749 6 2017(1) SCC 768 7 2020(9) SCC 471 process and

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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 authority as a matter of fact.

26. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:

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(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.

27. 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.

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28. 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.

29. 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.

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36. It is supported by the judgment of the Constitution Bench of this Court in State of Orissa and Others Vs. Bidyabhushan Mohapatra (supra) wherein it has been observed as under:-

"9. The High Court has held that there was evidence to support the findings on heads

(c) and (d) of Charge (1) and on Charge (2). In respect of Charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of Charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed". The recommendation of the Tribunal was undoubtedly founded on its findings on Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court

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therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on Charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on Charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency,

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in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal...."

37. This was further considered by this Court in Binny Ltd. Vs. Workmen8 as under:

"9. ..It was urged that the Court should not have assumed that the General Manager would have inflicted the punishment of dismissal solely on the basis of the second charge and consequently the punishment should not be sustained if it was held that one of the two charges on the basis of which it was imposed was unsustainable. This was rejected following the decision in State of 8 1972(3) SCC 806 Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779], where it was said that if an order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanour for which punishment imposed can lawfully be given, it is not for the Court to consider

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whether that ground alone would have weighed with the authority in imposing the punishment in question. In our view that principle can have no application to the facts of this case. Although the enquiry officer found in fact that the respondent had behaved insolently towards the Warehouse Master, he did not come to the conclusion that this act of indiscipline on a solitary occasion was sufficient to warrant an order of dismissal...."

38. Yet again, in Sawarn Singh and Another Vs. State of Punjab and Others, this Court held:

"19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and

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others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or nonexisting grounds could not have affected the ultimate decision [see State of Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779].

39. The Constitution Bench has clearly laid down that even after the charges which have been proved, justify imposition of penalty, the Court may not exercise its power of judicial review."

5.2 It was further submitted that

the default committed by the delinquent

was of a serious nature and therefore,

the Disciplinary Authority has imposed

a major punishment of compulsory

retirement.

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6. Having heard learned advocates for the

respective parties and considering the

facts emerging from the record as well

as the impugned order passed by the

learned Single Judge, in which the

learned Single Judge has observed as

under:

" 20. Hence, in view of the above, the onus of proof in the departmental inquiry is to be cast upon the delinquent. In present case, after taking into account all the relevant aspect and evidence, the disciplinary authority has passed the impugned order of punishment and the same is confirmed by the Appellate Authority. In view of the law settled by Hon'ble Apex Court and this Court for scope of interference in the quantum of punishment, I am of the opinion that this Court has very limited jurisdiction and in rare case, when the glaring illegality or any perversity is found in the inquiry proceedings and based upon such inquiry, the impugned order of punishment came to be passed, the

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Court can interfere with the findings recorded by the disciplinary authority.

21. In view of above an in view of the decision of the Hon'ble Apex Court and this Court, I am of the opinion that the impugned order passed by the disciplinary authority and confirmed by the appellate authority is not required any interference and hence, the petition is devoid of merits and the same requires to be dismissed.

22. So far as the contention raised by the petitioner with regard to the fact that the petitioner was made scapegoat and the purchase was looked into by the purchase committee and the petitioner was not a party to the purchase committee and therefore, this irregularity / illegality cannot be fasten upon the petitioner, is concerned the same is not supported by any evidence. In fact it is his preliminary duty that when he joined the service he has to disclose the fact that his wife and son are doing the business in the name and style of M/s. Wagheshwari Traders and they are supplying the goods to the

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insinuation, wherein the petitioner is Principal. Even thereafter, also this practice came to be continued and therefore, after considering all these details and after considering the material available on record, the inquiry officer has made report and relying upon the inquiry report, the disciplinary authority has passed impugned order of punishment which is in consonance with the settled legal position.

23. In view of the above and for the foregoing reasons, I am of the opinion that present petition does not deserve to be entertained and same is required to be dismissed."

7. By arriving at above findings, the

learned Single Judge has referred to

and relied upon the decision of this

Court in case of Union of India and ors

vs. P. Gunasekaran reported in (2015) 2

SCC 610.

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8. In view of the above facts and

considering the reasons assigned by the

learned Single Judge, we are of the