IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 948 of 1983 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- G M TANK Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 948 of 1983 MR VB PATEL, SR. COUNSEL WITH MR DG CHAUHAN for Petitioner No. 1 MR. A.D. OZA, G.P. with MS. SHRADDHA TRIVEDI, AGP, for Respondents No. 1-2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 28/01/2002 C.A.V. JUDGEMENT 1. G.M. Tank-petitioner has filed this petition before this court praying for a writ of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 21.10.1982 passed by the Executive Engineer by which he has dismissed the petitioner from service from 15.10.1982. The petitioner further prayed that the respondent may be directed to treat the petitioner in continuous service and also direct the respondents to pay full salary and other allowances etc. The said petition was filed somewhere in the year 1983 and this court was pleased to admit the same and notices have been served on the respondent and now the matter has been placed for final hearing before me. 2. The facts giving rise to this petition are as under: 2.1 The petitioner joined service of the State of Gujarat in the year 1953 as Overseer. In 1955 the petitioner was promoted as Assistant Engineer and in 1965 he was promoted as Executive Engineer. Thus on that day the petitioner had put in 26 years service. According to the petitioner, he was working as Executive Engineer efficiently, diligently. 2.2 It has been stated in the petition that there was confidential enquiry against the petitioner in May, 1977 regarding the petitioner's income and the petitioner was called upon by the Inspector, Corruption Department to furnish statements of his income and properties. The petitioner submitted all particulars of his income and properties itemwise to the Investigation Officer who submitted his report to the Government. Thereafter nothing happened. The petitioner has reason to believe that the chapter was closed. 2.3 It has been stated in the petition that thereafter the petitioner has received charge-sheet dated 20.2.1979. In the charge-sheet the respondents alleged that the petitioner has illegally accumulated the excess income by way of gratification. The charge is reproduced as under: "The petitioner's income from salary, interest, rent and LIC policy amount comes to Rs. 2,75,328/- from April, 1953 to December, 1977, against that the petitioner has possessed property worth Rs. 5,29,509.14. Therefore the allegation is that Rs. 2,54,180/- are excess by way of illegal gratification. Therefore the petitioner violated Rules 3.1 of the Gujarat Civil Services Conduct Rules, 1971." 2.4 Thereafter the petitioner has replied to the said charge by his explanation dated 15.5.1979. The petitioner in his explanation denied all allegations as well as calculations made therein. The petitioner clarified and explained his income in this behalf. 2.5 Thereafter the Government appointed one Mr. V.B. Raval as Enquiry Officer on 30.6.1979. One Mr. S.B. Bhuj, Police Inspector, was appointed as the Presenting Officer. In the inquiry proceedings some of the witnesses were examined by the department on 12.9.1979, namely, relatives of the petitioner. It has been stated by the petitioner that Smt. Nirmalaben Govindbhai Tank, the wife of the petitioner, Shri Meghjibhai Karsandas Kamlia, father-in-law of the petitioner, Shri Harishbhai Meghjibhai Kamlia, brother-in-law of the petitioner, Shri Jayantibhai Madhavjibhai Tank, the brother of the petitioner and Shri Anilkumar Meghjibhai Kamlia were examined. Thereafter, the Inquiry Officer submitted his report at the end of the enquiry. The Inquiry Officer has held that the petitioner had property and income disproportionate to the known sources of income which shows that the petitioner has received illegal gratification and the charge against the petitioner about illegal possession was proved. 2.6 Thereafter, the Deputy Secretary, Irrigation Department issued a show cause notice dated 4.6.1980 to the petitioner to show cause against the proposed dismissal. The petitioner replied to the show cause notice by his letter dated 27.9. 1980. The said show cause notice and report of the Inquiry Officer are placed on record of the case. Thereafter, the Government ordered petitioner's dismissal from service with immediate effect by resolution dated 15.10.1982 which was communicated by the letter/order dated 22.10.1982. The order has been produced on the record. 2.7 Being aggrieved and dissatisfied with the said order the petitioner has filed this petition before this court. 2.8 Mr. V.B. Patel, learned senior counsel with Mr. D.G. Chauhan for the petitioner submitted that the aforesaid order has been passed at the instance of one Mr. M.D. Patel, Secretary, Irrigation Department who has bias and prejudice against the petitioner. 2.9 He has further submitted that the Inquiry Officer has arbitrarily concluded and arrived at the conclusion by unreasonable and irrational mind. The findings of the Inquiry Officer is without any evidence whatsoever and totally perverse. 2.10 The learned counsel for the petitioner further submitted that the Inquiry Officer ignoring the correct facts deposed by the witnesses, reached a strange conclusion without any rational reason or tangible and credible material on record. No evidence either orally or documentary, was led by the Department. Charges were not proved. The Inquiry Officer submitted his report (see: Annexure-C pages 42 to 75). Findings were recorded in favour of the petitioner. However, contrary to the findings and without an iota of evidence against the petitioner, find the petitioner guilty for the alleged charges. 2.11 He further submitted that there is no warrant for any action against the petitioner and all the proceedings are contrary to the principles of natural justice and null and void. In any event, the order of dismissal is passed without any material and basis and is passed without application of mind and arbitrarily on suspicion only. He further submitted that the findings of the Enquiry Officer and the impugned order of dismissal suffers from error apparent on the face of the record. He submitted that the order is manifestly illegal as the same is based without any evidence merely on irrational conjectures. He submitted that the conclusion is incompatible with his observations made therein and it is ex-facie irrational, arbitrary and perverse. He submitted that no reasonable man can arrive at such a conclusion in the face of the findings referred in this behalf. 2.12 He further submitted that the reasons for holding charge proved are also irrational and the findings are against cogent and reliable evidence supported by unimpeachable documentary evidence. He submitted that the approach of the Enquiry Officer and the Government is laconic and displayed total want of application of mind. He further submitted that this is a case of no evidence and therefore this court must entertain the present petition under Article 226/227 of the Constitution of India. 2.12A The affidavit filed by the respondent is also vague and does not disclose that the petitioner has illegally accumulated the excess income by way of gratification as alleged. The judgements cited by the learned counsel for the respondent have no application in the facts and circumstances of the case. 2.12B In view of the above facts and submission, the learned counsel for the petitioner submitted that this petition may be allowed and set aside the dismissal order dated 22.10.1982 at Annexure-E and direct the respondents to treat the petitioner continue in service from 22.10.1982 as if his services have not been terminated and direct the respondents to pay full salary, all consequential benefits, including promotion and other allowances, from 22.10.1982 as if the services of the petitioner have not been terminated till the date of superannuation. The said benefits be given with 18% interest and the cost of this petition. The respondents be directed to fix pension etc. 2.13 The learned counsel for the petitioner has also relied on the Notification dated 10.8.1971 issued by General Administration Department which has been issued in exercise of power conferred by Article 309 of the Constitution of India and with previous approval of the Central Government under proviso to sub-section (6) of Section 81 of the Bombay Reorganisation Act, 1960, particularly Rule (3) `General' which provides that every Government servant shall at all times (i) maintain absolute integrity. 3. In support of the aforesaid contention, the learned counsel has relied on the following decisions: 3.1 M/S. SIR SHADI LAL SUGAR AND GENERAL MILLS LTD. AND ANOTHER VS. COMMISSIONER OF INCOME TAX reported in (1987) 4 SCC 722. In this case at paras 11 and 13 the Hon'ble Supreme Court has observed as under: "Para 11 - The High Court reiterated that the onus of proving concealment was on the revenue because the proceedings for penalty were penal in character. In that view of the matter the High Court was of the opinion that so far as Rs. 48,500/- was concerned it was not proved that there was any deliberate concealment. So far as the other two amounts of Rs. 67,500/- and Rs. 21,700/- were concerned, it was contended that the High Court noted the history of the order of the Inspecting Assistant Commissioner and the circumstances of the case and the High Court was of the view that the Tribunal had not at all considered the fact that the value of the shortage was only Rs. 26,429/-. According to the High Court, the Tribunal had brushed aside the fact that the assessee had agreed to the addition of this amount. According to the High Court, the Tribunal had not set aside the finding of the Inspecting Assistant Commissioner that the assessee surrendered the amount of Rs. 67,500/when it was faced with facts which clearly established concealment. The assessee according to the Inspecting Assistant Commissioner has surrendered the amount only after the Income Tax Officer had conclusive evidence in his possession that the amount represented its income. In other words, what the High Court sought to state was that acceptance by the assessee was material to give proper weight to judge the criminality of the action which according to the High Court was not given. The High Court highlighted that so far as Rs. 67,500/- was concerned only on being faced with facts from which there could possibly be no escape fro the inference that the amount represented his income, that the assessee agreed to its inclusion. The High Court was of the view that the Tribunal was in error in brushing aside consideration of these aspects while considering the question of concealment. Para 13 - So far as whether there was justification for the answer given to the reframed third question or was proper or not has to be judged on the basis as to how far the High Court in a reference could interfere with a finding of fact and transfer the same into a question of law on the ground that there has been non-consideration of all relevant facts. The low on this point is quite settled." 3.2 The learned counsel for the petitioner has also relied on the decision of the Privy Council in the case of EDWARDS (INSPECTOR OF TAXES VS. BAIRSTOW AND ANOTHER reported in 1956 Appeal Cases at page 14 (HL) on page No. 36 it is observed thus: "I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn fro the. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it ay be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that is is rather misleading to speak or there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are fond to occur." 3.3 The learned counsel for the petitioner submitted that the aforesaid decision is followed in MCLEOD & CO. VS. SIXTH INDUSTRIAL TRIBUNAL reported in AIR 1958 CALCUTTA 273 where Mr. Justice P.B. Mukharji (as he was then) of Calcutta High Court has observed at para 13 on 276 thus: "This decision of the House of Lords was given in proceedings on appeal and not in certiorari, but the importance of the classical observations of Lord Radcliffe lies in the distinction between `primary' facts and `inferences' drawn from them and in laying down when the latter are questions of law although expressed in three seemingly different expressions in jurisprudence on this point, namely (i) no evidence to support the determination (ii) evidence is inconsistent with the determination (iii) the true and only reasonable conclusion contradicts the determination and the learned Lord's preference for the third expression as being most appropriate." 3.4 The learned counsel for the petitioner has also relied on the authoritative book of Administrative Law, Fifth Edition by Prof. H.W.R. Wade wherein on page 287 under the heading "findings, evidence and jurisdiction" the learned author has discussed finding of fact-no evidence principle. According to him this principle has been discussed and followed by the Division Bench of this Court in the case of SIDDHARTH MOHANLAL SHARMA VS. SOUTH GUJARAT UNIVERSITY reported in 1982(1) GLR 233 for which I am going to make a reference afterwards. He has further stated that the said law is still a good law and Prof. Wade in his Eighth Edition 2000 on page 278 under the heading "findings, evidence and jurisdiction" and under the heading "The no evidence rule" stated as under:- "Findings of fact are traditionally the domain where a deciding authority or tribunal is master in its own house. Provided only that it stays within its jurisdiction, its findings are in general exempt from review by the courts, which will in any case respect the decision of the body that saw and heard the witnesses or took evidence directly. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact. But the limit of this indulgence is reached where findings are based on no satisfactory evidence. It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly (See: R.V. Criminal Injuries Compensation Board 1997 SLT 291). It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At his point, therefore, the court is disposed to intervene. `No evidence' does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding; (see: Allinson V. General Medical Council (1894) 1 QB 750 at 760) or where, in other words, no tribunal could reasonably reach than conclusion on that evidence.(See: R.V. Roberts (1908) 1 KB 407 at 423) This ` no evidence' principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires (see: below p. 364). It also has some affinity with the substantial evidence rule of American law, which requires that findings be supported by substantial evidence on the record as a whole (See: Administrative Procedure Act (USA 1946), s. 10(e)). In the United States this rule has virtually eliminated the need to inquire whether facts are jurisdictional, since the same test is applied whether they are so or not. English law has not gone so far, since it retains the strict test for jurisdictional fact, but allows a margin of error for other dealings which have evidential support." 3.5 The learned counsel for the petitioner has also relied on the Division Bench judgement of this court in the case of SIDDHARTH MOHANLAL SHARA VS. SOUTH GUJARAT UNIVERSITY (supra). In this case on pages 242-243 the court has held at para 18 thus: "Natural justice likewise is sanctified constitutionally in the great equalising principle enunciated in Art. 14, and therefore, the executive action must meet the requirements of rules of natural justice. Natural justice, it has been said, is only `fair play in action'. When, therefore, a university authority in the exercise of its disciplinary power, holds proceedings for infliction of penalty for misconduct upon one of its errant students, it is its duty to act fairly in matters, substantive and procedural. Certiorari will issue to quash those proceedings if it is found that the authority acted unreasonably or unfairly in the circumstances of the case. 3.6 The Division Bench of this court after relying on a passage from Administrative Law by Prof. Wade in connection with "no evidence" further observed in para 20 on page 243 as under: "The learned Author has pointed out that the `no evidence' rule has some affinity with the substantial evidence rule of American law which, as explained by Bernard Schwartz in his treatise or Administrative Law, 1976 Edition, at page 595, means, `such evidence as might lead a reasonable person to make a finding.' In other words, according to the learned Author "The evidence in support of a fact-finding is substantial when from it an inference of existence of the fact may be drawn reasonably." 3.7 The learned counsel further relied on the decision of the Hon'ble Supreme Court in the case of MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION VS. K.S. GANDHI AND OTHERS reported in (1991) 2 SCC 716 in which on page 748 at para 37 the Hon'ble Supreme Court was pleased to observe thus: "It is thus well settled law that strict rules of the Evidence Act and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries." 4. Mr. A.D. Oza, learned G.P. with Ms. Shraddha Trivedi, learned A.G.P. for the respondents. He has relied on the affidavit of Mr. A.G. Shaikh, Dy. Secretary, dated 29.10.2001. The learned G.P. after relying on the affidavit and the record of case, made the following submissions: 4.1 The learned counsel submitted that the Government has issued charge-sheet dated 20.2.1979 which contained serious charges against the petitioner. The petitioner replied to the said charges by his letter dated 15.5.1979. Thereafter, the Inquiry Officer prepared report dated 31.3.1980. The petitioner replied to the said inquiry report by his reply dated 27.9.1980. After considering all relevant documents, inquiry report and final defence statement, the charges against the petitioner were found to be proved and defence statement being found not worth accepting, the order dated 22.10.1982 came to be filed. The said order has been passed after following necessary and required procedure laid down in Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and after taking into consideration all relevant material and documents produced and after affording sufficient and adequate opportunity to the petitioner to defense his case. The State Government on finding the petitioner guilty, concluded to dismiss him from the Government Service vide order dated 22.10.1982. Hence the impugned order is just, proper and in accordance with law and requires no interference by this court. 4.2 The order of dismissal passed against the present petitioner is passed after holding a full-fledged inquiry as envisaged by Rule 9 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. He submitted that the petitioner has been charged with serious charges of possessing assets disproportionate to the known sources of income in the chargesheet dated 20.2.1979 which is produced at Annexure-A on page 15. 4.3 It is submitted that though the petitioner had made allegation of mala fide against one Mr. Patel, he has not been joined as party. Thus since the person against whom mala fides are alleged is not joined as party, the petition is not maintainable and requires to be rejected. 4.4 It was further submitted that it is crystal clear from the lengthy and elaborate inquiry proceedings that the charges against the petitioner are proved and therefore the same would attract provisions of Rule 3(1) of the Gujarat Civil Services Conduct Rules, 1971 i.e. to maintain absolute integrity. 4.5 It was further submitted that the Inquiry Officer has passed the order after considering the relevant material and after affording an opportunity of being heard to the petitioner and there is no mistake apparent on the face of the record. Therefore this court may not interfere with the findings of the Inquiry Officer under Articles 226/227 of the Constitution of India. 4.6 It was further submitted that from the bulky departmental