SCA/3182/1994 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3182 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== HITUBHA C ZALA Versus STATE OF GUJARAT & another ====================================== Appearance : Mr. I.S. Supehia for the petitioner Ms. Asmita Patel, Assistant Government Pleader, for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 08/02/2008 ORAL JUDGMENT SCA/3182/1994 2/15 JUDGMENT 1 This petition under Article 226 of the Constitution of India is filed with a prayer to issue a writ of mandamus or any other appropriate order quashing and setting aside the order of dismissal dated 8th April 1993, confirmed in appeal vide order dated 27th July 1993, and upheld by the Revisional Authority vide order dated 11th January 1994, and reinstating the petitioner in service with all consequential benefits including back wages with interest. 2 The short facts of the case are as under: 2.1 That the petitioner was serving as an Armed Police Constable in the State Reserve Police Force, Cadre No.10, Ukai until he came to be dismissed from service on 8th April 1993. A charge sheet dated 26th February 1991 came to be served on the petitioner on the ground that on 14th September 1990, when the petitioner was posted at a very sensitive point of Wadi Police Station area of Vadodara during the communal riots near Ranavav Masjid, he remained absent. That, on that day, when the communal atmosphere was surcharged in the City of Vadodara, without obtaining permission of the superior, Head Constable, Shri Ajitsingh M. Yadav, the petitioner remained absent from 20.15 hrs. and left the said point. Thus, the petitioner had shown gross negligence and carelessness in performance of his duties. That, the petitioner replied to the charge sheet and submitted that, in fact, the petitioner had not deserted the sensitive point where he was posted on duty, but had informed the Jamadar, Ajitsingh M. Yadav, incharge of the point, that he was down with head-ache and required some medicine and, therefore, had gone to the camp. That, thereafter, immediately, the petitioner reported on duty, but was not permitted to, and, on the next day, the petitioner informed the superior officer and incharge Police Inspector, but of no avail and, later on, he was charge-sheeted. That, the Departmental Authority SCA/3182/1994 3/15 JUDGMENT thought it fit to appoint Enquiry Officer and to hold a departmental enquiry in accordance with the Rules. That, on 7th September 1992, the petitioner consented for self-defence and, after examining documentary as well as oral evidence in the form of statements of witnesses, the Enquiry Officer found the charges against the petitioner proved beyond any doubt. In the departmental enquiry, three witnesses came to be examined, namely, Police Inspector, M.L.Pawar of “B” Company, Armed Police Constable, Badamsingh Jayaram and Bhagwansingh Narsingh both of 'B” Company, and documentary evidence in the form of police diary maintained by Shri Pawar, Police Inspector, extracts of police diary dated 14.9.1990 of Police Inspector, Shri Pawar, visit book dated 14.9.1990 and daily duty lists dated 14.9.l1990 and 15.9.1990 and other registers was produced. The above examination of witnesses and documents was in consonance with the statements and report given to the petitioner along with the charge sheet. 2.2 A show cause notice dated 16th March 1993 was issued by the Disciplinary Authority. The petitioner was given adequate opportunity to defend his case and even to cross examine witness Nos. 1, 3 and 4, but not availed by the petitioner, and, after considering the report of the Enquiry Officer, it was mentioned in the said show cause notice that, since charges were proved, considering the seriousness of the misconduct of grave nature, read with Rule 47(5) of the Bombay State Reserve Police Rules, 1959 and Section 25 of the Bombay Police Act, 1951 and the powers given therein, why the petitioner should not be dismissed from service and the period of suspension should not be treated as such. The petitioner was furnished the report of the Enquiry Officer along with the above show cause notice. 2.3 On 29th March 1993, the petitioner replied to the show cause SCA/3182/1994 4/15 JUDGMENT notice and submitted that, during the service tenure of 10 years, the petitioner served the department with sincerity and the petitioner is implicated in a false case. Not only that, but the petitioner had not left the place of his duty without informing the incharge of the point but, admittedly, orally he informed and returned immediately from the camp and reported for duty, which was not accepted and even on the next day also, the petitioner tried to report duty, but, instead of permitting the petitioner to report duty, a false case under the Bombay Prohibition Act was registered. The petitioner also submitted in his reply that Ajitsingh Yadav, incharge of the place of duty, was never examined and the report submitted by him was never given to the petitioner. It is further stated in the reply that other witness, namely, police constable, Bhagwansinh Raj Purohit, in his statement stated that, in place of the petitioner, on the next day, i.e. 15.9.1990, another constable was posted while the company commandant Shri Pawar stated that another constable was posted and, therefore, the above statements are contradictory. It is further submitted in the reply that the statements given by the constables, who were witnesses, appeared to have been changed and even in the case of any misunderstanding having taken place, the petitioner can be pardoned by inflicting a lesser penalty. 2.4 After considering the reply of the petitioner, the Disciplinary Authority passed an order of dismissal on 8th April 1993 wherein the reply submitted by the petitioner dated 20.3.1993 was taken into consideration, which is referred to in the preamble of the order. With regard to the submission of the petitioner that he is a responsible officer, the Authority concerned examined the service record of the petitioner of ten years and found that on nine different occasions from 1984 to 1990, the petitioner had remained absent and, later on, the leave came to be sanctioned without pay and, thus, found that the petitioner cannot be SCA/3182/1994 5/15 JUDGMENT said to be a responsible member of the disciplinary force. So far as the other contentions of the petitioner are concerned, the Authority found that the weekly diary maintained by the company commandant and timings noted did co-relate with the absence of the petitioner. However, absence of the petitioner from the place of duty was not disputed. The company commandant, Shri Ajitsinh, who was at the relevant point of time on 14.9.1990 in charge of the post, was informed twice to remain present in the departmental enquiry, but, since he retired from the service, could not remain present and, therefore, it was decided not to examine him in the enquiry and, considering the nature of evidence surfaced on the record available, the misconduct of the petitioner came to be proved. The Authority also considered the statements of witnesses, Bhagwansinh Raj Purohit and the Police Inspector, Maruti Laxman Pawar and found the petitioner guilty of the misconduct and dismissed him from service and the period of suspension was treated as such. Against the order of dismissal, an appeal was prepared by the petitioner on 22.5.1993 and all the grounds came to be raised again and submitted that he may be exonerated from the chares and the order of dismissal may be set aside. However, the Appellate Authority, after considering the submissions of the petitioner in appeal, found that the charges have been proved against the petitioner and the punishment was commensurate with the proven misconduct and the circumstance under which the petitioner had left the post situated in highly sensitive communal area of Vadodara city during the communal riots, was unpardonable and such negligence and carelessness would amount to gross misconduct punishable under Section 14 of the SRP Act. The appeal came to be dismissed vide order dated 27.7.1993. Thereafter, a revision came to be filed by the petitioner on 20.10.2003 challenging the order passed in appeal by raising the same contentions with two more additional grounds that the departmental enquiry was conducted by the SCA/3182/1994 6/15 JUDGMENT Senapati of company, the Presenting Officer was not appointed and proper opportunity was not given to defend the case in the enquiry. No notice was given with regard to absentism from the year 1994 to 1990 which was relied upon by the Authority in violation of provisions of Bombay Police Manual and the decision of this Court reported in 20 GLR 497 with regard to following certain instructions in the departmental enquiry. It is further submitted that the punishment is on the higher side considering the absence of only half an hour. However, the Revisional Authority thought it fit not to interfere with the order of dismissal and rejected the revision by order dated 11.1.1994. 2.5 Being aggrieved by the order of dismissal dated 8th April 1993, confirmed in appeal vide order dated 27th July 1993, and upheld by the Revisional Authority vide order dated 11th January 1994, the petitioner is before this Court. 3 Shri I.S. Supehia, learned counsel for the petitioner, has challenged all the above orders passed by the Authorities below on the ground that, for absence of half an hour, the petitioner is inflicted with a punishment of economic death like dismissal from service contrary to the Rules, Regulations and instructions framed by the State of Gujarat in conducting the departmental enquiry against the delinquent and against the provisions of paragraph 7(18) and paragraph 9, sub-paragraph 2.10 of the Guidelines issued by the State Government in this regard and, therefore, the impugned order of dismissal deserves to be quashed and set aside. According to Shri Supehia, though a contention was raised before the Appellate Authority and the Revisional Authority about non- compliance of principles of natural justice, but the same was not dealt with and the aspect about consideration of past record of the petitioner without affording an opportunity to the petitioner vitiates the whole SCA/3182/1994 7/15 JUDGMENT departmental proceeding and the previous misconduct is taken into consideration while imposing penalty without notice to the petitioner. Therefore, the impugned order of dismissal deserves to be quashed and set aside in view of the decisions of the Apex Court in the case of State of Mysore vs. K. Manche Gowda, reported in AIR 1964 SC 506 [para 9] and in the case of Ministry of Finance vs. S.B. Ramesh, reported in AIR 1998 SC 853. 3.1 According to Shri Supehia, as per the above instructions, the statement of delinquent ought to have been recorded by the Enquiry Officer at the end of the departmental enquiry which is not done and, therefore, the proceedings are vitiated. Learned counsel for the petitioner further submitted that the guard incharge of the place of duty Shri Ajitsingh was not examined and even his report was not taken into consideration and the report sent by him was not part of the list of documents sent with the charge sheet and, therefore, his non- examination is against the principles of natural justice as laid down in 1999 AIR SCW 4387 [Hardwari Lal vs. the State of U.P.]. He submitted that, for the punishment under Section14(1) of the SRP Act, there must be evidence to show that the charges are proved and any reference to such section by the Authority is unwarranted. The learned counsel for the petitioner has relied upon the unreported decision dated 21.10.1997, in Letters Patent Appeal No.1798 of 2004 [State of Gujarat vs. Tushar C. Shah] rendered by the Division Bench of this Court and submitted that it is the duty of the Authority to pass a reasoned order. Considering the over all aspects of the matter, it is submitted that the petition deserves to be allowed and the impugned order of dismissal deserves to be quashed and set aside. 4 Ms. Asmita Patel, learned Assistant Government Pleader, SCA/3182/1994 8/15 JUDGMENT appearing for the respondents, has invited the attention of the Court to the concurrent findings of the Appellate Authority and the Revisional Authority in exercise of their respective jurisdiction envisaged under the Rules and submitted that petitioner does not deserve any leniency looking to the grave misconduct proved in the departmental enquiry. According to the learned AGP, the charge against the petitioner is grave in nature in as much as the petitioner was posted to man a very highly sensitive point communally surcharged or flared up pursuant to communal riots which took place before a week and the absence of the petitioner from duty even for half an hour can be said to be very grave and fatal and in a given case it may result into unusual and uncontrollable situation leading to even extreme and grave law and order situation. The learned Assistant Government Pleader has further submitted that, in fact, the absence of the petitioner was not half and hour, but more than that. After affording a reasonable opportunity to the petitioner to defend in the departmental enquiry, the orders are passed, which do not deserve any interference in exercise of power under Article 226 of the Constitution of India. The learned Assistant Government Pleader has referred to the report submitted by the Enquiry Officer and submitted that the delinquent had submitted his preliminary statement of defence as early as in October 1991 after he was supplied copy of charge sheet and relevant documents. Not only that but, on a number of occasions, the petitioner was given opportunity to furnish the name of next friend to defend his case in the departmental enquiry and, thereafter, one writer constable Kanubhai Vasava was appointed as next friend who ultimately withdrew consent and, thereafter also, again, the petitioner was given opportunity to furnish another name of his next friend, but, by letter dated 7.9.1992, the delinquent expressed his willingness to defend his case and, thus, the witnesses were informed to remain present in the enquiry. Thereafter also, by letter dated SCA/3182/1994 9/15 JUDGMENT 13.10.1992, the delinquent was given again an opportunity to furnish list of witnesses and documents in his defence. But, reply dated 19.10.1992 was received from the delinquent that no list of documents or witnesses to be furnished any more. 4.1 Thus, according to the learned Assistant Government Pleader, the delinquent cannot be permitted to raise grievance about any opportunity not offered to defend his case by the Authority. According to the learned Assistant Government Pleader, the reference made by the Authority to the past record of service of the petitioner was in answer to the contention raised by the petitioner in his reply to the show cause notice, for which no separate notice is required. The learned Assistant Government Pleader has referred to the findings of the Enquiry Officer and submitted that the misconduct of the delinquent is proved beyond doubt on the basis of even statement of delinquent that he left the point of duty for half an hour and failed to report duty till the next day when a case under the Bombay Prohibition Act was registered against him. According to learned Assistant Government Pleader, other witnesses, namely, Armed Police Constable, Badamsingh Jayaram, Bhagwansingh Raj Prohit and Zala confirmed the absentism of the petitioner and posting of another police constable when the petitioner was not found at the place of his duty. The learned Assistant Government Pleader has further submitted that, though the petitioner was allowed to cross examine witnesses Nos. 1, 3 and 4, the petitioner did not do so. According to learned Assistant Government Pleader, communal riot took place on 4.9.1990 and such misconduct on the part of the petitioner cannot be considered for inflicting lesser punishment. That a speaking and reasoned order was passed by the Disciplinary Authority after taking into consideration the reply to the show cause notice filed by the petitioner. SCA/3182/1994 10/15 JUDGMENT 4.2 The learned Assistant Government Pleader has placed reliance on the provisions of Rule 2 of the Gujarat Civil Service Conduct Rules, 1971, which defines government and government servants and Rule 3(1) mandates every government servant to maintain absolute integrity and devotion to duty, failing which, it amounts to unbecoming of a government servant. The learned Assistant Government Pleader relied upon the Rule 6.1 of the SRP Rule and the decision of the Apex Court in the case of Mithilesh Singh vs. Union of India and others, reported in AIR 2003 SC 1724, where removal from service of a member of railway protection force on the ground of absence from duty without prior intimation and punishment thereof has been found to be proper by the Apex Court. Another decision of this Court in the case of M.N.Parmar vs. Dy. Commissioner of Police, Baroda, reported in 2001 (4) GLR p.3543, relating to unauthorized absence of a police constable and the punishment of removal from service was found to be justified. Relying on the judgment of the Apex Court in the case of P.D. Agrawal vs. State Bank of India and others, reported in 2006 8 SCC p.776, she submitted that, if any plea is not raised before the Appellate Authority, the same cannot be raised for the first time in a writ petition under Article 226 of the Constitution of India and even non-observance of principles of natural justice in a given case vitiates the order only when real prejudice is caused to the complainant by such omission. According to her, relevant provisions of the departmental enquiry rules and the disciplinary appeal rules were followed. Therefore, in exercise of its power of judicial review under Article 226 of the Constitution of India, this Court ought not to sit in appeal over the finding of guilt recorded by the Disciplinary Authority nor would the Court interfere with the quantum of punishment unless it is shockingly disproportionate. Even the scope of judicial review on quantum of punishment is circumscribed SCA/3182/1994 11/15 JUDGMENT and no power under Article 226 of the Constitution of India can be exercised for this purpose. 4.3 She has further submitted that the Disciplinary Authority has applied his mind and, when it is found that sufficient evidence, in the form of documentary and oral, exists, the penalty of dismissal is imposed against the petitioner by treating the period of suspension as such. According to learned Assistant Government Pleader, the order passed by the Appellate Authority is also reasoned and exhaustive to uphold that the charges against the petitioner were proved beyond any doubt and the appeal of the petitioner came to be rejected. So is the case with the Revisional Authority, where proper opportunity was given to the petitioner and, after dealing with all the contentions raised by the petitioner, the Revisional Authority has upheld the orders passed by the Authorities below which do not deserve any interference by this Court in exercise of power under Article 226 of the Constitution of India. 5 Having considered the rival submissions of the learned advocates for the parties and on going through the documentary evidence produced on record, I am not inclined to accept the submissions made by the learned counsel for the petitioner that the order of dismissal dated 8th April 1993, confirmed in appeal vide order dated 27th July 1993, and upheld by the Revisional Authority vide order dated 11th January 1994, in any manner, deserves interference in exercise of power under Article 226 of the Constitution of India. On the contrary, the misconduct on the part of the petitioner of remaining absent from duty at a highly sensitive point situated in communally surcharged area of Vadodara City is grave in nature and cannot be pardoned. 5.1 I have carefully perused the order of the Disciplinary Authority, SCA/3182/1994 12/15 JUDGMENT which mentions about issuance of charge sheet along with relevant documents. Even a preliminary statement of defence was submitted by the petitioner. Again, an opportunity was given to the petitioner to furnish the name of next friend to defend his case in the departmental enquiry and on withdrawal of the consent of the next friend, once again, an opportunity is given to the petitioner to furnish another name of next friend to defend his case and, from the consent given by the petitioner by letter dated 7.9.2002 to proceed with the enquiry, it cannot be inferred that no opportunity was given to the petitioner. 5.2 Even, during the course of enquiry, the petitioner submitted that he never wanted to examine any other document or witnesses. Witnesses Nos. 1, 3 and 4 have deposed against the petitioner and it is proved that the petitioner was absent from duty unauthorisedly. Thus, from the record, it is evident that the Disciplinary Authority has given adequate opportunity to defend the case to the petitioner and, thereafter, the charges are proved in the departmental enquiry conducted against the petitioner. The facts that the show cause notice was given to the petitioner on 16.3.1993 by the Disciplinary Authority along with report of the Enquiry Officer; was replied by the petitioner on 29.3.1993; was taken into consideration by the Disciplinary Authority; and reasoned order dated 8.4.1993 was passed dismissing the petitioner from service, reveal that the petitioner was given sufficient opportunity to defend his case. So far as the contention with regard to not following instruction issued by the State Government for conducting departmental enquiry as contained in paragraph 7(18) and in paragraph 9, sub-paragraph 2(10) of another guidelines issued by the State Government is concerned, nowhere such contentions were raised by the petitioner before the Authorities including appellate and revisional one and, therefore, the same cannot be permitted to be raised first time in a writ petition under SCA/3182/1994 13/15 JUDGMENT Article 226 of the Constitution of India. Even otherwise also, they are instructions and guidelines and, in view of the discussion herein above, sufficient opportunity was given to the petitioner. Learned counsel for the petitioner is not able to show that any prejudice is caused to the petitioner because of alleged non-observance of the instructions and guidelines and, therefore, no principle/doctrine of audi-alterm-partem is violated, as laid down in P.d. Agrawal [supra] [2006] 8 SCC p.776. Thus, the contention, to the above extent as raised by the petitioner, also fails. 5.3 In the present case, if overall service career of the petitioner is taken into consideration, then also, in the past, on nine different occasions, the petitioner had remained absent without leave,which was condoned by the Authority by treating the same as leave without pay. In such circumstances, it cannot be said that the misconduct, for which the petitioner has been dismissed from service, is the first and only instance in his service tenure. Thus, the findings of guilt recorded in the departmental enquiry, as confirmed by the Appellate Authority and the Revisional authority, concurrent in nature, do not deserve any interference by this Court in exercise of its power under Article 226 of the Constitution of India. 5.4 So far as the decisions relied upon by the learned counsel for the petitioner as referred to earlier, are concerned, they are in a different set of circumstances. In S.B. Ramesh [supra] {AIR 1998 SC 853} there was a total dearth of evidence to bring home the charge that the delinquent has been living in a manner unbecoming of a government servant or that he has exhibited adulterous conduct by such living and another woman was not examined and the Apex Court held that the finding of the departmental enquiry was not sustainable. In the present