[Cites 10, Cited by 0]
Gujarat High Court
B G Chaudhary - Assistant Public ... vs State Of Gujarat on 10 April, 2026
NEUTRAL CITATION
C/SCA/8545/2011 JUDGMENT DATED: 10/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8545 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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B G CHAUDHARY - ASSISTANT PUBLIC PROSECUTOR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR Y J PATEL(3985) for the Petitioner(s) No. 1
MR SIDDHARTH RAMI, AGP for the Respondent(s) No. 1
MR M S QURESHI for MR PREMAL R JOSHI(1327) for the Respondent(s)
No. 3
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/04/2026
JUDGMENT
1. Heard Mr. Y.J. Patel, learned advocate for the
petitioner, Mr. Siddharth Rami, learned AGP for the
respondent No. 1 and Mr. M.S. Qureshi, learned advocate
appearing on behalf of Mr. Premal R. Joshi, learned
advocate for the respondent No. 3.
2. The present petition is filed under Article 226 of the
Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIP may be pleased to admit and
allow this petition.
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C/SCA/8545/2011 JUDGMENT DATED: 10/04/2026
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(B) YOUR LORDSHIP may be pleased to issue a
writ of mandamus and/or any other appropriate
writ, order of direction and thereby be pleased to
quash and set aside the order dated 30.05.2011
passed by the respondent no.2 in departmental
inquiry.
(C) During the pendency and final hearing of this
petition, YOUR LORDSHIPS may be pleased stay
implementation, operation and execution of the
order dated 30.05.2011 passed by the respondent
no.2 in departmental inquiry.
(D) YOUR LORDSHIP may be pleased to pass such
other order and further orders as may be deemed
just and proper in the interest of justice."
SHORT FACTS:
3. The petitioner happens to be Assistant Public
Prosecutor posted at Metropolitan Court, Ahmedabad. It
appears that in one bail application filed by accused
before the Court concerned, the petitioner endorsed no
objection. It also appears that despite no objection, the
Court has not granted bail to the accused. Furthermore, a
criminal complaint in which the bail application was filed
relates to an offence under Sections 308, 288, 120(B),
406, 420 and 114 of Indian Penal Code read with Sections
3, 5 and 7 of the Gujarat Ownership Flats Act, 1973.
3.1. The complainant was a victim of the earthquake and
filed the said complaint against the builder concerned.
When it was found by the complainant that the petitioner
herein endorsed no objection, he lodged a complaint with
the competent authority which ultimately resulted into
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initiation of departmental inquiry against the petitioner.
3.2. After giving opportunity of hearing and upon
conclusion of the inquiry, the disciplinary authority vide
its impugned order dated 21.04.2011 found the petitioner
guilty of committing misconduct as an Assistant Public
Prosecutor and accordingly imposed penalty of stoppage
of three increments with future effect as per the Gujarat
Civil Services (Discipline and Appeal) Rules, 1971. The
order of penalty has been challenged by way of this
petition.
SUBMISSIONS OF THE PETITIONER:
4. Mr. Y.J. Patel, learned advocate for the petitioner
would submit that considering the nature of allegation
and charge, the petitioner could not have been held liable
and is wrongly held guilty of misconduct. It is submitted
that despite there is a detailed reply and a final
representation submitted by the petitioner, neither such
contention is recorded nor considered by the disciplinary
authority while passing impugned order which amounts
to violation of principles of natural justice. It is further
submitted that accused is also acquitted by the
competent Court as the complainant turned hostile.
4.1. Mr. Patel, learned advocate would further submit
that assuming without admitting that charge was proved
against the petitioner, then also the penalty imposed
upon the petitioner is disproportionate to the misconduct.
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4.2. Mr. Patel, learned advocate would further submit
that petitioner was having an unblemished career and in
his entire service career, the petitioner was never even
scolded by his superior and considering the singular act,
such disproportionate and harsh punishment ought not to
have been imposed upon him.
SUBMISSIONS OF THE RESPONDENTS:
5. Per contra, Mr. Rami, learned AGP has vehemently
opposed this petition and placed reliance upon the
contention raised by the respondent in its reply. It is
submitted that the petitioner being Assistant Public
Prosecutor could not have endorsed no objection in the
bail application, that too in a case related to earthquake
victim.
5.1. Mr. Rami, learned AGP would further submit that
the petitioner has not disputed that he has not made such
an endorsement in the bail application. It is also
submitted that after considering the entire set of facts
and evidence made available during the course of inquiry,
the disciplinary authority has upon proper appreciation
and application of mind decided to impose penalty upon
petitioner which is just and reasonable.
5.2. Lastly, it is submitted that this Court has a limited
jurisdiction to interfere in such type of disciplinary
proceeding unless this Court found that either there is
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any violation of principles of natural justice or the penalty
imposed is disproportionate which would shake the
conscience of the Court, this Court may not entertain this
petition.
5.3. Mr. M.S. Qureshi, learned advocate appearing on
behalf of Mr. Premal Joshi, learned advocate for
respondent No. 3 would adopt the argument of Mr. Rami,
learned AGP.
6. No other submissions than recorded hereinabove
have been made by the respective learned advocates.
ANALYSIS:
7. Having heard learned counsels for the respective
parties and upon perusal of pleadings and documents, it
is not in dispute that the petitioner while serving as
Assistant Public Prosecutor at Metropolitan Court,
Ahmedabad gave his no objection in one bail application
related to the aforesaid offence in question. It is also not
in dispute that despite such no objection, the Court has
rejected bail application, thereby accused was not
released. Such aspect is not in dispute and could not have
been disputed by the petitioner.
8. At the same time, the petitioner appears to have
submitted is final written submission in detail by citing
various reasons for issuance of such no objection. Upon
careful perusal of the impugned order passed by the
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disciplinary authority, I could not find any such grounds
either recorded or dealt with by disciplinary authority
while coming to the conclusion that charge is proved
against the petitioner.
9. Once any Assistant Public Prosecutor gave his/her
endorsement like 'No Objection' in any bail application,
prima facie, it may be viewed seriously by the department
concerned on receipt of the complaint. At the same time,
it was incumbent upon the disciplinary
authority/department to ascertain under which
circumstances such no objection issued. Upon satisfying
itself that there was no valid justification for an Assistant
Public Prosecutor to issue such 'no objection', the
disciplinary authority/department concerned has a right
to punish the petitioner by imposing penalty in
accordance with law. In the case on hand, such exercise
appears to have not been undertaken by disciplinary
authority while passing the order.
10. This Court has gone through the final
submission/reply submitted by petitioner upon receipt of
inquiry report and as observed hereinabove, such
grounds set out in the final reply were neither recorded
nor taken into account by disciplinary authority in the
impugned order; rather, without appreciating the stance
of the petitioner, the authority has found him guilty for
the misconduct.
10.1.According to my considered view, it was incumbent
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upon disciplinary authority to take into account the final
submissions/reply of petitioner and ought to have arrived
at a just and reasonable conclusion while negating such
submissions/reply of the petitioner by holding that charge
stand proved against petitioner.
11. The disciplinary authority ought to have considered
the fact that an Assistant Public Prosecutor is also an
advocate and officer of the Court. Merely because he has
issued no objection to one bail application would not ipso
facto amounts to his misconduct but factors weighed with
him to issue such endorsement needs to be examined by
the authority before reach to its final conclusion. It
appears that in very criminal complaint, before deciding
bail application, investigating agency - police intended to
file 'C'-summary having not found any cheating etc. and
same was discussed with the petitioner. Likewise, original
complainant had later on turned hostile and not stood by
his complaint. All these factors need to be considered by
the disciplinary authority before taking any final decision,
which unfortunately completed overlooked. Having not
considered all these aspects of the matter by the
disciplinary authority, its impugned decision vitiated as it
was passed in violation of principles of natural justice and
fairness.
12. Moreover, it is not brought to the notice of this
Court that in past, petitioner was subjected to either any
disciplinary proceedings or being warned for any
negligence or misconduct while discharging his duty as
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an Assistant Public Prosecutor, as the case may be. Prima
facie, considering the singular alleged misconduct of the
petitioner, penalty imposed by the disciplinary authority
is also disproportionate in asmuch as the accused is
already denied bail and later on acquitted by the
competent Court as complainant turned hostile being not
supported his complaint before the concerned Court.
Such aspect ought to have been considered by the
disciplinary authority.
13. In view of aforesaid, this Court inclined to interfere
with the impugned order of punishment and would like to
remand the matter back to the disciplinary authority to
reconsider the final submission/reply of the petitioner and
thereafter, shall pass a reason order.
CONCLUSION:
14. In view of the foregoing discussion and reasons, the
impugned order dated 30.05.2011 passed by the
respondent No. 2 - disciplinary authority is hereby
quashed and set aside and accordingly, the matter is
remanded back to the respondent - the disciplinary
authority to decide the matter afresh from the stage of
final reply/submission of the petitioner.
14.1.It is open for the petitioner to file additional
submissions/reply before the respondent - disciplinary
authority and the same shall also be considered by it. If
so requested, the petitioner shall be granted a personal
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opportunity of hearing by the disciplinary authority.
15. Since the impugned order was passed in the year
2011, the respondent - disciplinary authority is hereby
directed to decide the matter within a period of two
months from the date of receipt of a copy of this order.
16. In view of the foregoing conclusion, the present
petition is partly allowed. Rule is made absolute to the
aforesaid extent. No order as to costs.
17. Direct service is permitted.
(MAULIK J.SHELAT,J)
SYED SHAHANAZ
