1. By way of present petition, under Articles 226 and 227 of the Constitution of India, the petitioner has challenged Page 1 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined order dated 4.9.2015 passed by the learned Gujarat Educational Institutions Services Tribunal in New Appeal No.257 of 2014 as well as order bearing outward No. 3939 dated 25.2.2012 of the Manager, St. Anne's Secondary and Higher Secondary School, Nadiad, dismissing the petitioner from the services of the school and prayed, inter alia, that:-

2. The facts giving rise to present petition are that the petitioner joined the services of the school on 1.7.2002 as a "Sathi Sahayak" and after completing 5 years of service, he was appointed as a peon in the school. On 17.3.2011 or thereafter, a multimedia projector of the school was stolen and the same was allegedly recovered from the petitioner and on inquiry, it was found that he was not having any papers of that multimedia projector and therefore, the police has arrested the petitioner.

2.1 On further inquiry and investigation, it was found that the petitioner had stolen the said projector from the respondent school and for that the F.I.R. came to be registered at Nadiad Town Police station being I-C.R. No. 94 of 2011. During the investigation, while he was in Page 3 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined custody the multimedia projector was recovered by the investigating officer and the investigating officer asked the Administrator of that school to come and identify as to whether the multimedia projector is of the school or not? Thereafter, the administrator of the school went to the police station and on the basis of number of multimedia projector, he had identified that this was the same multimedia projector, which was stolen from the school. Therefore, criminal case was registered against present petitioner and on the basis of that the respondent school had issued a show-cause-notice on 31.5.2011 with regard to the said criminal case and theft of the multimedia projector.

2.2 The petitioner was asked to give the written explanation within 10 days from the date of receipt of the notice and thereafter, the petitioner came to be suspended and the chargesheet came to be issued on 28.9.2011.

2.3. On the basis of the inquiry, the investigating officer Page 4 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined found the petitioner guilty for the charge levelled against him and thereafter, the disciplinary authority took a decision to terminate the service of the petitioner.

2.4 The petitioner feeling aggrieved and dissatisfied with the the impugned order of termination filed application before the Tribunal bearing Application No.36 of 2012.

2.5 The petitioner has raised the contention that the impugned action of the respondent is without there being any evidence and without there being any records and hence, the impugned order passed by the respondent school authority is illegal, perverse and the same deserves to be quashed and set aside.

2.6 The said application was decided by the Tribunal on 4.9.2015, wherein the Tribunal has dealt with the contentions raised by the petitioner in nutshell and passed the order 4.9.2015 and dismissed the application filed by the present petitioner.

NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined 2.7 It is also relevant to note herein that in the meantime, the criminal case registered against the petitioner was tried by the Competent Court and the same came to be decided by the 8th Addition Chief Judicial Magistrate, Nadiad and the petitioner was acquitted by giving benefits of doubt vide judgment and order dated 27.9.2012.

3. In present petition the petitioner has challenged order dated 4.9.2015 passed by the learned Gujarat Educational Institutions Services Tribunal in New Appeal No.257 of 2014 as well as order bearing outward No. 3939 dated 25.2.2012 of the Manager, St. Anne's Secondary and Higher Secondary School, Nadiad, dismissing the petitioner from service.

4. Present petition is filed mainly on the ground that the inquiry proceedings initiated against the present petitioner is ab initio void, as there is no evidence which connects the petitioner with the crime in question and the disciplinary authority, without examining any relevant Page 6 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined witness or any material has passed the order.

SUBMISSIONS ON BEHALF OF THE PETITIONER

5. Mr. Rahul Sharma, learned Counsel for the petitioner has submitted that there is clear breach of violation of principle of natural justice, as there is no sufficient material or any opportunity is given to the petitioner.

Learned Counsel for the petitioner further submitted that the respondent has not examined any witness to connect the petitioner along with theft of multimedia projector and therefore, there is no proper inquiry and the charge established against the petitioner is, without there being any sufficient material and thus, the inquiry itself is bad in law and the same deserves to be set aside and the petitioner deserves to be reinstated at his place with all consequential benefits.

5.1 Mr. Rahul Sharma, learned Counsel for the petitioner has further submitted that there is no material which connects the petitioner with the so called theft of the multimedia projector. He has further submitted that there Page 7 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined is no evidence to the effect that whether the multimedia was found from the possession of the petitioner or not. He has further submitted that there is also no evidence that whether the said multimedia projector was of the institution or not because there is no any further identification and merely on the basis of the number of the multimedia projector, the administrator of the school has identified that it is the same multimedia projector but there is no further material, which leads to connect that the petitioner has stolen the said multimedia projector from the school. He has further submitted that even till that moment, the school has not registered any FIR for the theft of the said multimedia projector. He has, therefore, prayed that the impugned disciplinary proceedings and the order based upon the same and confirmed by the Tribunal is bad in law, erroneous and the same deserves to be quashed and set aside.

5.2 In support of his submission, learned Counsel for the petitioner has referred to and relied upon the decision of the Hon'ble Apex Court in the case of Roop Singh Negi Page 8 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined vs. Punjab National Bank and others reported in (2009) 2 SCC 570. He has relied upon following paragraphs.

13. The High Court noticed the decision of this Court in Kuldeep Singh vs. Commissioner of Police & ors. [( 1999) 2 SCC 10], Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. [( 2006) 4 SCC 713] and Bhagwati Prasad Dubey vs. The Food Corporation of India [AIR 1988 SC 434] whereupon reliance has been placed by the learned counsel appearing on behalf of the appellant, and held:

The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

16. In Union of India vs. H.S. Goel [(1964) 4 SCR 718, it was held:

17. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:

Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the Page 13 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."

19. The judgment and decree passed against the respondent therein had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. Appellant therein in the aforementioned situation filed a Writ Petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on an evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind.

21. Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC 88, this Court held:

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

5.3 Mr. Sharma, learned Counsel for the petitioner has emphasized that the onus to prove the guilt of the delinquent is on the institution and in present case, as Page 15 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined there is no material and no evidence and no witness has been examined by the respondent authority and that therefore, the department proceedings is vitiated.

5.4 In view of the aforesaid decision of the Hon'ble Apex Court, Mr. Sharma, learned Counsel for the petitioner has submitted that the inquiry is based upon no evidence and the respondent authority has not examined any witnesses in support of the charge levelled against the petitioner and therefore, the impugned order is without there being any reason and it is a non-speaking order passed by the respondent to remove the petitioner from the service and therefore, he urges before the Court that present petition may be allowed.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

6. As against the same, Mr. Vakil, learned Counsel for the respondent has relied upon paragraph Nos. 4 and 6 of the affidavit-in-reply which read as under:-

6.1 In view of the above, learned Counsel for the respondents has submitted that the respondent has initiated the departmental proceedings only on the basis of moral turpitude, as the petitioner is involved in a criminal case of theft of the multimedia projector from Page 18 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined the school. He has further submitted that on the basis of that the criminal case was registered against the petitioner. Learned Counsel for the respondent has further submitted that in the said affidavit, it is further clarified that the police authority has called the administrator from the school and during the course of investigation, the multimedia projector was handed over to the school authority and therefore, the school authority had issued a show-cause-notice. He has further submitted that thereafter, the departmental inquiry was initiated based upon the charge framed under the chargesheet.

Learned Counsel for the respondent has further submitted that in charge No. 4, it is mentioned that since the petitioner is involved in the criminal case therefore, the action is initiated against the petitioner.

6.2 Learned Counsel for the respondent has submitted that considering the above facts, the order passed by the respondent authority and confirmed by the Tribunal is well reasoned order and it is in consonance with the settled legal principle and thus, present petition may not Page 19 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined be interfered by this Court and same my be dismissed.

6.3 In support of his submission, learned Counsel has relied upon the decision of this Court in case of Vithalbhai Haribhai vs. Superintendent of Police District Bhavnagar and others reported in 2019(3) GLR 2241. Learned Counsel for the respondent has emphasized on the paragraph No. 10 and 11 of the said judgment of this Court, which reads as under:-

6.4 Learned Counsel has also referred and relied upon the judgment of the Hon'ble Apex Court in the case of Union of India and others vs. P.Gunasekaran reported in (2015) 2 SCC 610 wherein, he has emphasized upon the scope and interference in the disciplinary proceedings, while exercising the power under Articles 226 and 227 of the Constitution of India.

Learned Counsel has relied upon paragraph Nos. 12 to 20 which read as under:-

NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

14. In one of the earliest decisions in State of A.P. v. S. Sree Rama Rao , many of the above principles have been discussed and it has been concluded thus: (AIR pp. 1726-27, para 7) "7. The High Court is not constituted in a proceeding under Article 226 of the Constitution as 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 Page 23 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 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 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 Article 226 of the Constitution."

15. In State of A.P. v. Chitra Venkata Rao³ , the principles have been further discussed at paras 21-24, which read as follows: (SCC pp. 561-63) "21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court.

NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao . 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 Article 226 of the Constitution 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 Article 226 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 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 Page 25 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined 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 Article 226.

22. Again, this Court in Railway Board v. Niranjan Singh 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 Niranjan Singh 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 shutdown of an air compressor at about 8.15 a.m. on 31- 5-1956. 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 Page 26 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined 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 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 Article 226 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 Page 27 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined are within the exclusive jurisdiction of the Tribunal. (See Syed Yakoob v. K.S. Radhakrishnan .)

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 conclusions. The High a 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 V.R. Krishna Iyer, J. in State of Haryana v. Rattan Singh . To quote the unparalleled and inimitable expressions: (SCC p. 493, b para 4) "4. in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to Page 28 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined 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 Indian Evidence Act . For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach d 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 Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu , these principles have been consistently followed adding practically nothing more or altering anything.

18. On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the 28-2-2000, had arrived at the following findings:

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 reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India. a

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, 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 Page 30 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined 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."

7. At this juncture, Ms. Dharitri Pancholi, learned Assistant Government appearing for respondent No.4 has drawn the attention of this Court upon the observations made by the Hon'ble Apex Court with regard to the fact that the onus of proof in the departmental inquiry is to be cast upon the delinquent.

7.1 Ms. Dharitri Pancholi, learned Assistant Government for respondent No. 4 has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Orissa Mining Corporation and another vs. Ananda Chandra Prusty reported in (1996) 11 SCC 600 wherein Hon'ble Apex Court has observed, inter alia, that:-

The position with respect to burden of proof is as clarified by us hereinabove viz., that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation. For example take the first charge in this case. The charge was that he made certain false notings on account of which loans were disbursed to certain ineligible persons. The respondent's case was that those notings were based upon certain documents produced and certain records maintained by other employees in the office. In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis of wrong notings made by the respondent."

7.2 Ms. Dharitri Pancholi, learned Assistant Government Pleader has also relied upon the decision of the Hon'ble Apex Court in case of State Bank of India vs. AGD Reddy reported in 2023 LawSuit(SC) 828, wherein Hon'ble Apex Court has observed as under:-

8. I have heard Mr. Rahul Sharma, learned Counsel for the petitioner and Mr. R.R. Vakil, learned Counsel for the respondent and Ms. Dharitri Pancholi, learned Counsel for the respondent No.4.

9. Present petition is filed against the impugned order of punishment imposed by the disciplinary authority, based upon the inquiry conducted against the petitioner and subsequently confirmed by the Tribunal and therefore, the issue involved in present petition is as to whether the Court can interfere in the findings recorded by the disciplinary authority and confirmed by the Tribunal while exercising power under Articles 226 and 227 of the Constitution of India or not.

10. In present petition the school authority has alleged the charges against the petitioner as under:-

Thus, you have committed serious misconduct by taking a school-owned projector from the school without authorization for illegal gain. The misconduct you have committed is of a serious nature and the school's name has been placed on police records because of the misconduct you have committed.

5. You are under suspension from duty with effect from 02.06.2011. Show cause notice was served to Page 37 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined you on 31.05.2011 and you have submitted your reply on 04.06.2011. As your reply is not satisfactory and the projector has been handed over to the school on 31.08.2011, there is a provision to take disciplinary action if you are found guilty after conducting a departmental inquiry for the misconduct committed by you.

6. Therefore, by serving the present charge-sheet to you, it is informed that, it is decided to take disciplinary action, if you found guilty for the theft of a multimedia projector manufactured by Sony Company which was owned by the school and taken into your personal possession without authorization from the school. If you want to make any explanation regarding the same, then send such explanation to the school management within 7 days."

11. In present petition, it appears that the petitioner is involved in a criminal case, though he is acquitted by granting benefits of doubts but the charge which is levelled against him is with regard to the theft of the multimedia projector, which is found in his possession.

This fact is relevant, as the said multimedia projector was stolen from the school, wherein the petitioner was Page 38 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined serving as a Peon. It is expected from the person who are serving in the institution to remain trustworthy to the institution and herein present case, it appears that the petitioner who was serving in the institution as a peon and from the said school, so called multimedia projector was stolen and the said multimedia projector was found from his possession and for that the criminal case came to be registered and ultimately, he was granted benefits of doubt because of the witnesses have not supported the case. But, the case which leads to the recovery of the projector is an admitted fact and for that the initiation of inquiry was conducted by the respondent, after giving proper opportunity. In the said proceedings, the petitioner has appointed the defence Counsel and in his defence his Counsel has adhered the hearing of departmental inquiry and has examined the Sister Rosamma Joseph who is administrator of the school and even his Counsel has not insisted for providing any opportunity to examine the other witnesses in his defence and hence, the inquiry officer has come to a conclusion Page 39 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined that the charge which is levelled against the present petitioner is proved.

12. At this stage, it is appropriate to take into account relevant findings of the inquiry officer which reads as under:-

sheet was framed against the concerned employee on 28/09/2011.

(2.1) Resolution of suspension and letter dated 2/6/11 (3) Copy of F.I.R. dated 30/1/11.

Rozamma Joseph gave her statement on 19/12/11, wherein she has stated as under.

The Advocate for the concerned employee has cross- examined this witness, wherein she has stated that,

- I was the Manager of the school for the period from 2006 to 2011.

- It is true that it was my responsibility to look after the administration of the school.

- I did not see the projector after 17/3/11.

- I came to know after 15 days of the theft that the projector had been stolen.

- I do not know as to on which day the projector was Page 44 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined stolen.

- The projector was stored in a wooden cupboard. The key of this cupboard was being kept in another cupboard. Two to three persons were aware about this.

- Whenever the key was required, two to three persons used to take the key.

- There used to be movement of people at the place where the projector was stored.

- No police complaint was made regarding the theft of projector.

- It is true that the police had informed that they had found the projector.

- There was no name of the school on the projector that was found, but there was number.

- Such kind of projectors are available in the market.

- L.C.B. Police had called us to Nadiad.

- When the Police showed us the projector in L.C.B. Office, concerned employee Prakashbhai was also present.

- I do not know whether projector was found from the house of Prakashbhai.

- The disciplinary action was taken against the employee with my signature and I made the signature after reading.

- The facts of letter dated 2/6/11 are true.

- Vipul Makwan is performing duty at our school.

- Security guards are deployed at our school.

- The duty of the security guard is to guard the property of the school and to ensure that the students do not go Page 45 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined outside the school.

- The security guard did not inform about the theft of projector.

- Complaint was lodged after the police recovered the projector.

It is clearly proved from the cross-examination of the said witness that the projector belonged to the company and the same is proved by the bill dated 16/12/08 produced vide Exh.1. It is found from the deposition of the said witness that said projector was stolen from the school premises. That projector was recovered from Mr. Prakash by the Police.

(6) Thus, prima facie, Mr. Prakashbhai has not been able to clarify as to how this projector came into his custody. If the projector was with Prakashbhai, no evidence has been produced regarding process done for taking the projector outside the school. Under such circumstances, the statement of the witness is accepted. And it is proved from the circumstantial evidence that concerned employee had stolen the projector from the school premises.

(7) The concerned employee has given statement in his defense, wherein he has stated that, "As per the complaint of the complainant, the projector machine was kept in the cupboard of the school and the Page 46 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined hall was locked. The hall is not a restricted area and the area has continuous movement of people. No one has seen the accused taking the projector or even opening the lock. The key of lock is kept at public place and hence, anyone can use the same. Security guard is deployed at the school. If the projector is stolen, security guard would notice, but the same has not happened here. As mentioned in the complaint, this projector was kept in the cupboard situated in the hall of the school on 17/03/11 and whereas, the complaint has been lodged on 30/12/11, which is given after lapse of 2.5 months after the incident. The complainant has not lodged any complaint regarding theft of the projector, but the L.C.B. Branch called the complainant to their office and showed the projector and the complainant identified the same. If no police complaint was lodged, as to how the police can conduct the investigation. Moreover, it cannot be believed that though no name, address or identification of the school was mentioned on the projector, as to how the complainant could be directly contacted. It is mentioned in the complaint of the complainant that they were called by the L.C.B., whereas it is mentioned in the notice dated 2/6/11 that arrest has been made by the S.O.G. Both these branches of the police have different functions. The said accused has been wrongly arrested after planting the projector in order to implicate the accused falsely. Proceeding is pending against the accused in the Chief Judicial Magistrate Court of Nadiad and if the accused is Page 47 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined acquitted in the court proceedings, the action taken in this inquiry would have no effect. The accused has to maintain family and if further action is taken in this case, the accused would incur irreparable loss. As the accused is not guilty, the proceeding is futile.

(8) No where in the statement of this witness, it is shown that the offense committed by the accused is not proved. Because the projector recovered from him belonged to the school and if the projector was found from the custody of the employee, no clarification has been given as to how the projector came into custody of the concerned employee from the school premises without carrying out any process. Under such circumstances, statement of the witness is available and with corroboration of the same, it is proved that after the projector owned by the school was stolen from the school, it was recovered from the concerned employee and as the same was shown by the police, it was found that the projector belonged to the school. Hence, it is clearly proved beyond doubt that concerned employee has stolen the projector of the school.

(9) Thus, considering the statement of the witness, her cross-examination and the the circumstantial evidences produced, the allegations levelled against the employee are proved clearly and beyond doubt and I hereby resolve that the employee is found guilty."

NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined

13. In present case, after taking into account all the relevant aspect and evidence, the disciplinary authority has passed the impugned order of punishment and the same is confirmed by the Tribunal. Considering the fact that now it is well settled by the series of judgment of Hon'ble Apex Court and this Court wherein describe the scope of interference in the quantum of punishment, I am of the opinion that this Court has very limited jurisdiction and in rare case, the Court can interfere with the findings recorded by the disciplinary authority when the glaring illegality or any perversity is found in the inquiry proceedings and based upon such inquiry, the impugned order of punishment came to be passed.

14. Herein the present case, the charge itself is of the moral turpitude, as it is expected from the person, who is serving in the institution that he is having an integrity towards the institution. The multimedia projector of the school authority was found from the possession of the petitioner and for that the criminal case is registered Page 49 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024 NEUTRAL CITATION C/SCA/18662/2015 JUDGMENT DATED: 25/01/2024 undefined against present petitioner. This fact crests clear doubts on the integrity of the petitioner. Though, the petitioner was acquitted by the competent Trial Court by giving benefits of doubts but not honourably acquitted from the charge leveled against him and therefore, while appreciating all these evidence, the disciplinary authority has passed the impugned order, which is confirmed by the Tribunal is in consonance with the settled legal principles and thus, no interference is required to be called for in the present petition.

15. In view of the above and for the foregoing reasons, I am of the opinion that present petition does not deserve to be entertained and same is required to be dismissed.

16. Accordingly present petition is hereby dismissed.

Rule is discharged.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 50 of 50 Downloaded on : Wed Jan 31 20:32:59 IST 2024