IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5256 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE AKSHAY H.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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- TUSHAR D BHATT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5256 of 2002 MR YN OZA, SR. ADVOCATE with MR BP GUPTA for Petitioner MR SN SHELAT, LD. ADVOCATE GENERAL with MISS MAITHILI MEHTA, AGP for Respondent No. 1 MR DS NANAVATI for NANAVATI & NANAVATI for Respondent 2 MR SB VAKIL, SENIOR ADVOCATE with MR AS VAKIL for Respondent No. 3 - Deleted vide order dtd. 4/5/2004. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 14/05/2004 CAV JUDGEMENT 1ss. The petitioner has approached this Court under Article 226 of the Constitution of India to challenge the order of dismissal from service passed against him dated 22nd May, 2002 by the Deputy Secretary, Health & Family Welfare Department, Government of Gujarat, in the name of the Governor of Gujarat State. The said order has been passed against the petitioner in view of the fact that all the charges except one levelled against him in the departmental inquiry were proved beyond reasonable doubt. One was partly proved. The charge-sheet issued against the petitioner contained in all seven charges, details whereof will be stated in due course of the judgment. 2. To appreciate the controversies that have been raised in this petition relevant facts in brief are required to be stated as under :- 2.1. The petitioner joined service of respondent no. 1 as Food Inspector on 1st December, 1982 and since then he had been working in the Food & Drugs Control Administration, Government of Gujarat. He was appointed and posted at Ahmedabad and for almost 14 years he worked in Ahmedabad as well as Gandhinagar Circle. He was thereafter transferred to Rajkot in the year 1996 where he remained for 3 years. Later on by order dated 13th September, 1999 the petitioner was transferred to Bhuj. He, however, did not join duty at Bhuj and on 4th October, 1999 he sent a fax message regarding the illness of his mother. He also thereafter did not report for duty at the transferred place inspite of the fact that he was relieved from his duty at Rajkot on 5th October, 1999. The petitioner entered into correspondence with respondent no. 2. He was, therefore, granted personal hearing by respondent no. 2 on 17th November, 1999. On 30th November, 1999 also he had a personal meeting with respondent no. 2. Inspite of the same, it appears that petitioner did not join the duty since on 4th January, 2000 the Assistant Commissioner, Bhuj called upon him to join service. He was thereafter given in writing on 10th January, 2000 that he was flouting the order of respondent no. 2 by not joining the service at Bhuj. He was on the same day served with a show cause notice for remaining absent without authority. The petitioner submitted his reply dated 17th January, 2000 to the said show cause notice expressing his inability to join at Bhuj. He was thereafter suspended from the service by order dated 8th March, 2000. It was only on 27th April, 2000 he joined at Bhuj, but it was conditional joining. He was, therefore, served with a charge-sheet dated 5th May, 2000 containing seven charges, in short, which can be described as (1) remained unauthorizedly absent between the period 11th October, 1999 and 27th April, 2000, (2) he on his own decided the place of discharging his duty without receiving any prior permission of the competent officer instead of reporting at transferred place, (3) he exerted mental pressure and also gave threats by writing letters to the head of the department for transferring him to a place of his choice, (4) he acted beyond his official authority by giving notice to his superior officer under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules (for short 'the Rules'), (5) he flouted and disobeyed the orders of head of the department as well as the head of the office, (6) ignoring the office orders issued by the Government, he directly represented to his head of the department regarding his transfer, and (7) he used intemperate language not befitting a Government employee. 2.2. The petitioner in response to the said charge-sheet filed his written reply dated nil. Thereafter, respondents appointed one Mr. J.G. Mehta, a retired Joint Secretary, Government of Gujarat as Inquiry Officer. After a detailed inquiry, the Inquiry Officer prepared his report holding the petitioner guilty of the charges levelled against him. He forwarded the entire material placed before him including the statement of defence submitted by the petitioner dated 4th October, 2001 in respect of the brief submitted to him and his report to the Disciplinary Authority. The respondent no. 2 by communication dated 29th October, 2001 forwarded copy of the inquiry report to the petitioner and called upon him to show cause why in view of the findings given by the Inquiry Officer, one of the punishments indicated in rule 6 of the Rules should not imposed, within 15 days of the receipt of the said letter. In response to the said show cause notice, the petitioner submitted two replies, viz. one dated 12th November, 2001 and other dated 10th December, 2001. It also appears that he has forwarded his further reply dated 30th April, 2002, which now according to him, has not been taken into consideration by the Disciplinary Authority. It appears from the record that though aforesaid show cause notice was given by respondent no. 2, the impugned order regarding dismissal from the service against the petitioner was passed by the Deputy Secretary, Health and Family Welfare Department of the Government of Gujarat in the name of the Governor of Gujarat State. Thus, the said order has been passed by respondent no. 1 in view of rule 6 (8) of the Rules. It is this order which is now sought to be challenged by the petitioner. 3. It is the say of the petitioner that respondent no. 2 has been keeping grudge against him since long as he alongwith several other Food Inspectors had expressed complete dissatisfaction against the Department for not framing proper recruitment rules and for not opening proper promotional avenues for the Food Inspectors. It is the say of the petitioner that he had been taking a leading part in agitating this issue and they had even preferred various petitions before this Court for fixing the seniority and for grant of promotion, etc. It is his say that on account of this he had been entering into constant conflict not only with respondent no. 2 but even respondent no. 3 also, who then was Minister for Health and Family Welfare. It is his say that he had, while at Rajkot, detected certain tobacco vendors flouting the provisions of the Prevention of Food Adulteration Act (for short 'P.F.A. Act') and, therefore, he had collected samples of the commodities which they were selling. He had also registered cases against some oil millers and he had sought sanction u/S. 20 of the P.F.A. Act for prosecution by filing complaint in the Court against those persons, but the same was not accorded by respondent no. 2. On account of this also there was conflict and ultimately as a measure of vengeance he had passed order transferring him from Rajkot to Bhuj inspite of the fact that he had asked him to post him at Ahmedabad as there were about 65 cases filed by him under the P.F.A. Act and his attendance in the Court was very necessary. It is his say that because of the malafide order passed against him, he had not joined duty at Bhuj but he had been attending the Court proceedings at Ahmedabad whenever there was date of hearing. It is his case that the impugned order has been passed by respondent no. 1 at the instance of respondent no. 2, who himself is guilty of committing several acts of misconduct for which respondent no. 1 has ultimately served him with a charge-sheet. All these acts of misconduct had been brought to light by the petitioner. He has, therefore, prayed for quashing the order. 3.1. As against that, the say of the respondent is that the petitioner was behaving in a manner which did not befit a Government employee. He initially remained at Ahmedabad and Gandhinagar for almost 14 years and thereafter he was transferred to Rajkot where he had discharged duty for 3 years. According to respondents, his transfer to Bhuj was in the course of routine administrative exigencies. He had, however, flouted the orders of the superior and had not reported for duty at Bhuj. Not only that but he had even written letters threatening respondent no. 2 that if he did not transfer him to Ahmedabad, he would summon a press conference and reveal his misdeeds to the public and also to the Government. He had even threatened respondent no. 2 to file P.I.L. against him in this Court. All this was done with a view to exercise mental pressure on respondent no. 2 to cancel his transfer order for Bhuj and to place him at Ahmedabad. Thus, according to the respondents, the petitioner had committed several acts of serious misconduct for which he was required to be departmentally proceeded with. Hence, he was served with the charge-sheet, suspended, departmentally proceeded against and upon finding him guilty, in view of the serious misconduct, dismissed from service. According to the respondents, no illegalities have been committed by the respondents either in issuing the order of transfer against the petitioner or in passing the order of dismissal from service. The say of the respondents is that though show cause notice was issued by respondent no. 2 as Disciplinary Authority, it was respondent no. 1 which had to pass the impugned order because the petitioner had made number of allegations against respondent no. 2 including an allegation to the effect that the order of transfer was passed malafide by respondent no. 2. It is also the say of the respondents that looking to the gravity of the established guilt, penalty of dismissal from service was the only appropriate punishment which could be awarded to the petitioner. 3.2. At this juncture, it may be noted here that the petitioner, on 4th May, 2004 before the commencement of the hearing, sought permission to delete respondent no. 3 and also to withdraw the averments made against him in the petition. In view of the same, the petitioner was directed to put on record a pursis praying for deletion of respondent no. 3 and also to identify the averments which were made against him in the petition and which were sought to be withdrawn by him. Such pursis has been put on record by the petitioner. In view of the said request, this Court has permitted to delete respondent no. 3 from the petition. Hence, respondent no. 3 stands deleted vide order dated 4th May, 2004 and so do the averments that have been made against him in the petition and duly identified by the petitioner in his pursis. 4. Mr. Y.N. Oza, Ld. Senior Advocate appearing with Mr. B.P. Gupta for the petitioner has submitted that the impugned order is bad in law mainly for three reasons. The first reason he has advanced is that the show cause notice dated 29th October, 2001 issued by respondent no. 2 clearly indicates that he had already made up his mind without even receiving the reply from the petitioner believing the charges to be proved beyond reasonable doubt. Thus, according to Mr. Oza, if respondent no. 2 had already prejudged the issue, there was hardly any scope for him to take a different view even after receiving the representation of the petitioner against the proposed penalty. The second reason advanced by Mr. Oza is that the Disciplinary Authority respondent no. 2 has issued the show cause notice; whereas the impugned order has been passed by respondent no. 1 i.e. authority higher than the respondent no. 2, which is not the one who had issued a show cause notice. It is his submission that when the show cause notice was issued by respondent no. 2 and when the representations against the proposed punishment had been submitted by the petitioner to respondent no. 2, it was respondent no. 2 who alone could have taken this decision and passed the impugned order. The order passed by respondent no. 1 is, therefore, against principles of natural justice, null and void and it is required to be quashed and set aside. The third reason advanced by him is that in the Rules, provision of the appeal is made against the impugned order and appeal lies to respondent no. 1 against the order of respondent no. 2. However, respondent no. 1 has passed the impugned order and, therefore, his valuable right of appeal is lost and that too without the knowledge of the petitioner since no prior intimation was given to him regarding change of Disciplinary Authority. He has further submitted that in the alternative, the punishment imposed by respondent no. 1 is grossly disproportionate to the guilt established against the petitioner. According to him, neither the unauthorized absenteeism nor use of intemperate language against superior officer is considered to be so serious act of misconduct that it should require imposition of punishment of dismissal from the service. According to him, stoppage of increments for limited period or even with permanent effect would be just and proper punishment. In support of his aforesaid submissions he has also placed reliance on various decisions of the Apex Court and this Court. I will refer to them in due course of the judgment. 4.1. As against that, Mr. S.N. Shelat, the Ld. Advocate General appearing with Miss Maithili D. Mehta for the respondents has submitted that respondents have not committed any illegality and no injustice has been caused to the petitioner. Respondent no. 1 under peculiar circumstances was required to pass the impugned order because though the respondent no. 2 was the disciplinary authority, he could not have passed the order of punishment against the petitioner since the petitioner had made serious allegations against him right from the beginning. He has further submitted that it was to safeguard the interest of the petitioner also, respondent no. 1 had decided to consider the issue of imposition of punishment and to pass appropriate order on basis of material of inquiry held against the petitioner. According to him, such decision was just and proper because under the Rules respondent no. 1 was the main Disciplinary Authority and it could certainly act when such circumstances required it to pass the order. He has also submitted that respondent no. 1 was required to act because of the compelling circumstances and in such situation the doctrine of necessity would apply because respondent no. 1 had no other alternative but to pass the impugned order itself. He has also submitted that it is quite possible that in such circumstances a right of appeal may not be available to the delinquent. However, when there is no other alternative, such recourse has to be taken. He has further submitted that so far the penalty imposed by respondent no. 1 is concerned, it is just and proper calling for no interference by this Court. He has also advanced submission with regard to limited scope of judicial review of such order in a petition under Article 226 of the Constitution of India. Lastly he has submitted that there is no merit in allegations that government i.e. respondent no. 1 is protecting respondent no. 2 and in any case it has no relevance when misdeeds of petitioner are being assessed. Lastly he has submitted that the petition be dismissed as there is no merit in it. 4.2. Mr. D.S. Nanavati, learned advocate appearing for respondent no. 2 has adopted most of the submissions of Mr. Shelat. He has further submitted that when the petitioner has deleted respondent no. 3 and also deleted the allegations/averments made in relation to respondent no. 3, nothing has remained against respondent no. 2 also, because all his allegations are to the effect that it was respondent no. 3 at whose behest respondent no. 2 had acted against the petitioner. He has, therefore, submitted that the petition be dismissed. Mr. Shelat as well as Mr. Nanavati have also placed reliance on several decisions. 4.3. The first contention of Mr. Y.N.Oza regarding prejudging issue by respondent no.2 while issuing show cause notice on the question of proposed punishment is concerned, no doubt it is stated by respondent no. 2 that he accepted the findings of the Inquiry Officer regarding the charges levelled against the petitioner as proved beyond reasonable doubt and he also believed them to be so, it is respondent no. 1 who has ultimately decided the issue regarding the imposition of punishment after taking into relevant material. The question of imposition of punishment comes only when the entire material is placed before the Disciplinary Authority or the authority taking action against the delinquent and after taking it into consideration, such authority concurs with the findings given by the Inquiry Officer, ofcourse subject to what the delinquent has to say about the proposed punishment. In such circumstances, merely because it was stated by respondent no. 2 in the show cause notice that he believed the findings of the Inquiry Officer to be true, it would not mean that decision to dismiss the petitioner was already taken and issuance of show cause notice was merely an idle formality. In any case, petitioner is not prejudiced by such observations because it is respondent no. 1 who has ultimately taken the final decision and has passed the impugned order. In other words, it is respondent no. 1 who has acted as the Disciplinary Authority. 4.4. The second contention of Mr. Oza is that so far as the show cause notice dated 29th October, 2001 is concerned, admittedly, it has been issued by respondent no. 2, whereas, it is respondent no. 1 who has ultimately passed the impugned order on 22nd May, 2002, which cannot be permitted. He has submitted that when the show cause notice is issued by one authority, the authority other than the said authority cannot impose punishment. For that purpose, he has also placed reliance on the decision of the Apex Court rendered in the case of G.Nageshwara Rao v. A.P.S.R.T. Corpn. reported in A.I.R. 1959 S.C. p.308. In the said case hearing was done by the Secretary of the State Government, incharge of the Transport department and the final decision was taken by the Ministry incharge. In the circumstances, it was held by the Apex Court that the principles of natural justice were violated and the decision was vitiated. 4.5. This submission of Mr. Oza cannot be accepted. It is an undisputed fact that right from the beginning the petitioner has been making allegations against respondent no. 2. It is his case that because of the strong prejudice and feeling of vengeance, respondent no. 2 had passed the order of transfer against him. It is also clear from the record of the petition that at every stage, the petitioner has made allegations against respondent no. 2. It is the case of the respondents that in such circumstances, even with a view to protect the interest of the petitioner, respondent no. 1 had taken upon it the role and responsibility of Disciplinary Authority and to issue the impugned order. There is much substance in the say of the respondents. Record of the petition shows that according to the petitioner himself, he had been entering into constant conflict with respondent no. 2 for one reason or the other. The petition also discloses that various litigations have been filed in this Court by the present petitioner and others to challenge the Recruitment Rules and fixation of seniority etc., where respondent no. 2 is made party. It is also clear from the record of the petition that even after the departmental inquiry was initiated against the petitioner he had been complaining about the alleged acts of misconduct having been committed by respondent no. 2. It is true that respondent no. 1 has setup inquiry against respondent no. 2 in relation to the acts of misconduct which were complained of by the petitioner. However, the question that remains to be considered is whether in such circumstances, especially when several of the charges levelled against the petitioner were relating to respondent no.2, can respondent no. 2 be allowed to judge the guilt of the petitioner. It is elementary principle of legal jurisprudence that a person cannot be allowed to act as Judge, even in quasi judicial proceedings, if it is found that such person had reason to be biased against the concerned delinquent. The Apex Court in the decision rendered in the case of G. Nageshwara Roa v. A.P.S.R.T. Coprn. (Supra) has observed as under :- "It is a fundamental principle of natural justice that in the case of quasi judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute. It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally take part in the proceedings though in fact he does not influence the mind of the person, who finally decides the case. This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done." It is to be noted that, here the situation is slightly graver than the one before the Apex Court because in the instant case there is direct conflict between the Judge i.e. Disciplinary Authority and the accused i.e. delinquent Certainly such Judge cannot be permitted to decide the guilt or innocence of the person making allegations against him. There is, therefore, nothing wrong even when the show cause notice was issued by respondent no. 2, and it was responded to by the petitioner by submitting his explanation to the office of respondent no. 2 but ultimately, it was respondent no. 1 who took the decision regarding imposition of penalty of dismissal against the petitioner. Further the aforesaid decision of the Apex Court will not be of help to Mr. Oza because unlike in the case before the Apex Court, respondent no. 2, except for issuing notice has not done anything more. It is respondent no. 1 who has done rest of the things. The impugned order reflects that every bit of material that was required to be taken into consideration has been considered by the concerned Officer of respondent no. 1. Not only that, he has also taken into consideration the representations that were made in response to the show cause notice dated 29th October, 2001 by the petitioner. These representations are dated 12th November, 2001 and 10th December, 2001. Thus, so far as the application of mind to the entire issue is concerned by the concerned authority, it is adequately revealed or manifested from the text of the impugned order. In no way it has caused any prejudice to the petitioner. Further even the petitioner has not stated what prejudice has been caused to him, when the notice has been issued by respondent no. 2 and the impugned order has been passed by respondent no. 1. Mr. Oza