[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL [CASE NUMBER] FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] (NOW, [ENTITY] Petitioner(s) Versus [ENTITY] & 2 Respondent(s) Appearance: HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MR [ENTITY], ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 - 3 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 19/09/2016 ORAL JUDGMENT
HC-NIC Page 1 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] By this writ-application under [SECTION] of the [ACT], the writ-applicant, a former employee of the Gujarat State Civil Supplies Corporation Limited, has prayed for the following reliefs :
"(a) Your Lordships may be pleased to admit and allow this petition;
(b) Your Lordships may be pleased to issue writ of mandamus and/or writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the order dtd. 22.5.98 passed by respondent no.3 (Annexure-F), and order dtd. 28.12.2001 passed by respondent no.2 (Annexure-H) and thereby issue directions to the respondent authorities to give all the consequential benefits to the petitioner.
(c) Pending hearing and final hearing of this petition, Your Lordships may be pleased to stay the execution, implementation and operation of orders which are at Annexures-F and H annexed with petition.
(d) Your Lordships may be pleased to award cost of this petition.
(e) Your Lordships may be pleased to grant such other and further reliefs as deemed fit, just and proper in the interest of justice."
It appears from the materials on record that the writ- applicant joined the services of the Corporation sometime in the year 1983. While he was serving as a [ENTITY] Manager at Dehgam, a departmental charge-sheet dated 25th November 1997 was issued by the Corporation on certain grounds of misconduct.
It is the case of the Corporation that while the writ- applicant was serving as a [ENTITY] Manager, an inquiry was HC-NIC Page 2 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] undertaken which revealed that there was shortage of 5.39.500 quintals of wheat and 58.500 kgs. of superfine rice. The inquiry further revealed that 47 gunny bags were also missing from the godown. It is further alleged that when the new [ENTITY] Manager took over the charge, he noticed shortage of 13.60 quintals of wheat and 19 quintals of superfine rice. The Inquiry Officer at the end of the inquiry arrived at the conclusion that the charges were held to be proved. The disciplinary authority accepted the findings recorded by the Inquiry Officer and passed an order imposing penalty of putting the writ-applicant in the lowest of the pay- scale, recovery of Rs.22,246.38ps. towards the loss of the food-grains and no promotion for a period of ten years.
Being dissatisfied, the writ-applicant preferred an appeal before the appellate authority, which also failed vide order dated 27th December 2001.
Being dissatisfied, the writ-applicant has come up with this writ-application.
Mr.[ENTITY], the learned counsel appearing for the writ- applicant vehemently submitted that the findings recorded by the Inquiry Officer as regards the negligence and carelessness are based on conjectures and surmises. According to him, there is no legal evidence, worth the name, to impute any negligence or carelessness in discharge of duty.
On the other hand, this writ-application has been vehemently opposed by Mr.[ENTITY], the learned counsel appearing for the Corporation. Mr.[ENTITY] has placed reliance HC-NIC Page 3 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] on the following averments made in the affidavit-in-reply filed on behalf of the Corporation :
"3. The respnt. no.3 humbly submits that petitioner herein who was born on 3.4.1955 joined the service of Gujarat State Civil Supplies Corporation Ltd. as Sr.Asstt. on 15.9.83 and was promoted to the post of Depot Manager on 13.6.88. The respnt. no.3 humbly submits that while petitioner herein was posted as [ENTITY] Manager at Dehgam, Dist. Ahmedabad during inspection by Deputy Manager (Accounts) on 24.9.97 number of irregularities and illegalities in maintaining the stock and resulting into financial loss to the Corporation were noticed and, therefore, petitioner was issued a charge sheet on 25.11.97. The respnt. no.2 submits that the petitioner who was under suspension and issued the said charge sheet was not found satisfactory. It is stated that a full-fledged departmental inquiry was held against the petitioner and the inquiry officer after offering all the opportunities to the petitioner to represent his case and complying with the principles of natural justice concluded that all the four charges leveled against the petitioner were proved on the basis of facts and material on record.
The respnt. no.3 submits that thereafter petitioner was issued a second show cause notice on the issue of quantum of penalty as envisaged under the [ACT] of Gujarat State Civil Supplies Corporation Ltd. It is stated that the petitioner herein gave evasive replies and tried to shift the buck on labour contractor or labourers though he was in charge of the godown as [ENTITY] Manager. It is submitted that petitioner was personally heard on 7.4.98 by the respnt. no.3 and again reiterated his defense but considering the overall factual scenario and findings of the departmental inquiry officer it was thought fit to impose a penalty of placing the petitioner to the lowest of the pay scale of the cadre of Sr.Asstt. and recover an amount of Rs.46,647.88 and not to consider him for promotion to the post of [ENTITY] Manager for a period of 10 years.
4. The respnt. no.3 submits that petitioner herein addressed a departmental appeal to the respnt. no.1 and again reiterated that the labour contractor and his HC-NIC Page 4 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] labourers were responsible for all the irregularities. He also contended that it was due to misdeeds and malafide of the labour contractor.
5. The respnt. no.3 submits that the respnt. no.2, i.e. [ENTITY] as a competent authority partly allowed the said appeal through order dated 28.12.01 by way of confirming the order of placing the petitioner to the lowest of the pay scale of the post of Sr.Asstt. as well as recovery of Rs.46,647.88 but quashed the order of not considering him for promotion to the post of [ENTITY] Manager, for a period of 10 years.
6. The respnt. no.3 submits that being aggrieved and dissatisfied by the said order petitioner herein has preferred present Special Civil Application but has failed to pinpoint any lacuna in departmental inquiry held against him as well as show any ground to justify his stand of his innocence. It is stated that the petitioner was Incharge of the [ENTITY] at Dehgam as [ENTITY] Manager and, therefore, his defense that the entire episode unearthed by the Deputy Manager (Accounts) on 24.9.97 was due to malafide and misdeeds of labour contractor and labourers is without any substance. It is submitted that the petitioner has tried to save his skin by way of shifting evidence buck on the shoulders of labour contractor and the labourers keeping as if he was not Incharge of [ENTITY] as Manager. It is submitted that he was duty bopund to handle the affairs of entire godown as its Manager and, therefore, the departmental inquiry officer, disciplinary authority as well as appellate authority have rightly not accepted his version about his ignorance and innocence. It is pertinent to note that a huge loss of Rs.46 647.88 was noticed by the Deputy Manager (Accounts) in the year 1997. It is pertinent to note that Gujarat State Civil Supplies Corporation Ltd. is handling the business of public distribution of commodities and also providing food commodities to the various authorities undertaking and implementing govt. schemes like Mid Day Meal Programme, Integrated Child Development Scheme etc. meant for children and pregnant women, more particularly of rural and tribal areas. The respnt. no.3 submits that all the authorities have examined the matter in entirety and thereupon concluded that the petitioner was responsible for HC-NIC Page 5 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] mismanagement of the godown and liable to face the consequences of his misdeeds, misconduct, indiscipline and financial loss caused to the public exchequer. The respnt. no.3 submits that considering the proved charges the penalty imposed by the authority is just, legal and in proportion to the proved charges and, therefore, in no circumstances it can be said that the same is disproportionate and requires to be quashed and set aside.
The respnt. no.3 submits that even the past record of the petitioner is also not satisfactory.
The respnt. no.3 submits that petitioner is trying to save his skin by way of repeatedly contending that one Mr.[ENTITY], [ENTITY] Manager is not taken to task. It is humbly stated that Mr.[ENTITY] is ordered to be prematurely retired on 6.2.14."
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Corporation committed any error in passing the impugned order.
It is now well settled by a plethora of judgments of the Supreme Court that in exercise of its powers under [SECTION] and [SECTION] of the [ACT] should not venture into the re-appreciation of evidence or interfere with the conclusion arrived at by the disciplinary authority in the inquiry proceedings, if the same are conducted in accordance with law or go into the reliability/adequacy of evidence, or interfere, if there is some legal evidence on which the findings are based, or correct error of fact however grave it may be, or go into the proportionality of punishment unless it shocks the conscience.
It is equally well settled that the High Courts in exercise HC-NIC Page 6 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] of its powers under [SECTION] and [SECTION] can only consider whether the inquiry held by the competent authority was in accordance with the procedure established by law, and the principles of natural justice, whether irrelevant or extraneous consideration and/or exclusion of admissible or material evidence or admission of inadmissible evidence being influenced the decision rendering it vulnerable.
This Court may interfere if the finding is wholly arbitrary and capricious based on no evidence which no reasonable person could have ever arrived at.
The inquiring authority vide its report concluded that some of the charges were held to be established reflecting upon his devotion and diligence towards work. The disciplinary authority later considered the relevant records of the case including the findings of the inquiring authority and the submissions made by the petitioner and thought fit to pass the order of dismissal from service.
The appellate authority also looked into the matter and thought fit to affirm the order except modifying slightly by deleting that part of the penalty order which said that no promotion for a period of ten years.
I take notice of the fact that the inquiring authority has examined the charges levelled against the writ-applicant including the documents produced by the Presenting Officer and came to the conclusion that the charges were fully proved.
In a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of HC-NIC Page 7 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER]
proportionality and not on proof beyond the reasonable doubt.
In [PRECEDENT], the Supreme Court, in paras 25 and 26, observed as under:
"25. The High Court, in our view, under [SECTION] of the [ACT] was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well acceptable principle of law that the High Court while exercising powers under [SECTION] of the [ACT] does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In [PRECEDENT], this Court held that the High Court cannot re-appreciate the evidence acting as a court of Appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.
26. This court in [PRECEDENT] held:
"7 Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under [SECTION] to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the Inquiring Authority."
HC-NIC Page 8 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] In a very recent pronouncement in the case of Union of India and others v. [ENTITY] [2015(2) SCC 610], the Supreme Court in details has explained the position of law so far as the scope of interference in the matter relating to the disciplinary proceedings is concerned. I may quote the observations made by the Supreme Court from paras 12 to 20 as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under [SECTION] of the [ACT], shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a). the enquiry is held by a competent authority;
(b). the enquiry is held according to the procedure prescribed in that behalf;
(c). there is violation of the principles of natural justice in conducting the proceedings;
(d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i). the finding of fact is based on no evidence.
HC-NIC Page 9 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER]
13. Under [SECTION] of the [ACT], 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.
14. In one of the earliest decisions in [PRECEDENT], many of the above principles have been discussed and it has been concluded thus:
"7. The High Court is not constituted in a proceeding under [SECTION] of the [ACT] a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it 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. Where there is some evidence, which 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 for a writ under [SECTION] to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the HC-NIC Page 10 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under [SECTION] of the [ACT]."
15. In [PRECEDENT], the principles have been further discussed at paragraphs-21 to 24, which read as follows:
"21. The scope of [SECTION] in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in [PRECEDENT]. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under [SECTION] of the [ACT] is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under [SECTION] over the decision of the authorities holding a departmental enquiry against a public servant. The 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. Second, where there is some evidence which 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 HC-NIC Page 11 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under [SECTION].
22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. [ENTITY] (AIR 1969 SC 966) said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In [ENTITY] case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion HC-NIC Page 12 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under [SECTION] is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See [PRECEDENT].
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these HC-NIC Page 13 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
16. These principles have been succinctly summed-up by the living legend and centenarian Justice [ENTITY] in [PRECEDENT]. To quote the unparalled and inimitable expressions:
"4. in a domestic enquiry the strict and sophisticated rules of evidence under the [ACT] may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the [ACT]. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. "
17. In all the subsequent decisions of this Court up to the latest in [PRECEDENT], these principles have been consistently followed adding practically nothing more or altering anything.
18. On [SECTION], the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:
HC-NIC Page 14 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] "[SECTION] was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri [ENTITY], provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. "
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re-appreciate the evidence in exercise of its jurisdiction under [SECTION] of the [ACT].
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under [SECTION] of the [ACT], to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
Thus, in the overall view of the matter and also considering the position of law, I am of the view that the HC-NIC Page 15 of 16 Created On Wed Sep 21 05:17:32 IST 2016 [CASE NUMBER] disciplinary authority as well as the appellate authority committed no error in arriving at the conclusion that the writ- applicant was guilty of the acts of misconduct as alleged.
It appears that the service record of the writ-applicant is also very unsatisfactory. This was not the only departmental inquiry instituted against the writ-applicant. He was also held to be negligent and careless in discharge of his duties while serving as the Manager of the Oil Depot.
In the overall view of the matter, I hold that no case is made out for interference.
For the foregoing reasons, this writ-application fails and is hereby rejected. Rule is discharged.
([ENTITY], J.) MOIN HC-NIC Page 16 of 16 Created On Wed Sep 21 05:17:32 IST 2016