=================================================== GULABSINH DEVUSINH JHALA & ORS.

Versus STATE OF GUJARAT & ORS.

=================================================== Appearance:

armed Police Constables and the petitioners of SCA No. 13000 of 2008 are Armed Police Constables in the Gujarat Railway Police in the Mobile Squad. The details of the respective petitioner is duly produced at Annexure-6 to the petition.

3. The reliefs as prayed for in SCA No. 25294 of 2007 reads thus:

4. The reliefs as prayed for in SCA No. 13000 of 2008 reads thus:

10-2005 as well as order in Appeal dated 25-4-2007 and order in Revision dated 6-2-2008, upholding the removal orders;

(B) Directing the respondents to reinstate the petitioners in service with full back wages and all other consequential benefits;

(C) Pending admission and final hearing of this petition, Your Lordships may be pleased to stay all impugned orders; (D) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined

5. The Special Civil Application No. 13000 of 2008 is treated as a lead matter and in view thereof the facts are narrated from the SCA No. 13000 of 2008 and the decision rendered in SCA No. 13000 of 2008 would also govern to SCA No. 25294 of 2007.

6. The petitioners herein are aggrieved by the orders of removal passed by the respondent no.3 herein dated 28.10.2005 (pg.21-80) which was upheld by the respondent nos. 2 and 1 herein in Appeal by order dated 25.04.2007 (Pg.301-310) and in Revision by order dated 06.02.2008 (Pg.350-419) respectively. The impugned orders are duly produced at Annexures-1 to 5, 14 and 16 respectively.

7. Brief facts leading to the filing of the present petition reads thus:

The return journey was to be by Sabarmati Express, whose departure time was 00:38 hours from Dahod to reach Ahmedabad at 7:00 hours.

7.2. The petitioners left Ahmedabad Railway Station by Rajkot-Bhopal Express as usual as referred to above as scheduled on 26.02.2002 and reached Dahod at 00:35 hours. Upon reaching Dahod, the petitioners came to know that Sabarmati Express was to reach Dahod at 00:30 hours in the early morning of 27.02.2002 and was running late indefinitely and thus, as per the normal practice, the petitioners returned to Ahmedabad by Shanti Express, which left Dahod around 4:45 hours in the early morning and had reached Ahmedabad around 10:05 hours on 27.02.2002. Upon reaching Ahmedabad, petitioners came to know that, S-6 coach of Sabarmati Express which reached Godhra Railway Station at around 07:53 hours was burnt, due to which 58 unfortunate passengers died on the spot.

7.3. The petitioners were shocked, due to the occurrence of such incident, however, it never occurred to the petitioners that the petitioners would be held responsible Page 5 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined for the death of 58 passengers by the authority. Unfortunately, by the order dated 01.03.2002, all the petitioners were placed under suspension by the then District Superintendent of Police (Railway) - the respondent no.3 herein. The charge-sheet was served upon the petitioners on 09.01.2003, copy of which is duly produced at Annexure-7-A and 7-B. 7.4. The petitioners replied to the aforesaid suspension order dated 01.03.2002 and charge-sheet on 12.09.2002, copy of which is duly produced at Annexure-9.

7.5. It is the case of the petitioners that, in the course of the departmental proceedings, the petitioners placed on record, the extract of Station Dairy of the Ahmedabad Railway Police Station, with respect to train patrolling to show that it is a regular practice of the patrolling team to avail of alternative train, in case of late running of either of two trains, i.e. train in which they would go to Dahod and the train in which they come back from Dahod. The said list is produced at Annexure-10.

7.6. The petitioners within a span of three months time, i.e. from 09.09.2001 to 03.02.2002, in several such incidents of patrolling team, travelled by different trains, then what they were allotted. It is the case of the petitioners that, such changes are absolutely routine and normal and Page 6 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined nobody has taken any disciplinary action against any member of any patrolling team for coming by another train due to train running indefinitely late.

7.7. The departmental inquiry was held by Shri Noel Parmar, Deputy Superintendent of Police, who submitted his report to the respondent no.3, based on which the respondent no.3 issued show cause notice on 22.02.2005 to the petitioners asking them to show cause as to why they should not be removed from their services. The show cause notice alongwith the report of the inquiry officer is duly produced at Annexure-11. The petitioners submitted their reply on 01.04.2005, copy of which is duly produced at Annexure-12.

7.8. It is the case of the petitioners that, despite the reply to the show cause notice, the respondent no.3 on 28.10.2005 passed the final order "removing" the petitioners from their service, copy of which is duly produced at Annexure-1 to 5 of the petition. The petitioners thereafter preferred Departmental Appeal against the said order, vide Appeal dated 17.11.2005, copy of which is duly produced at Annexure-13. The said Appeal came to be rejected by the Additional DGP, Railway, by order dated 25.04.2007, copy of which is duly produced at Annexure-14.

7.9. The petitioners, as a last resort, filed the Revision Application dated 05.07.2007 before the Additional Chief Secretary, Department of Home, State of Gujarat, which is Page 7 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined duly produced at Annexure-15.

7.10. Pending the Revision Application, the petitioners approached the Court by filing Special Civil Application No. 25294 of 2007 to 25297 of 2007, wherein, by order dated 03.10.2007, the respondent authorities were directed to decide the Revision Application, within a period of 8 weeks, from the date of receiving the copy of the order and liberty to revive the petitions by filing simple note was reserved, in case of adverse order in revision.

7.11. However, the said Revision Application came to be rejected by order dated 06.02.2008, which is duly produced at Annexure-16.

7.12. The petitioners accordingly revived the aforesaid petitions, as the order in Revision was being adverse to the petitioners herein. The aforesaid has given rise to the filing of the present petitions, wherein, the petitioners herein have challenged the impugned orders as referred above.

SUBMISSIONS ON BEHALF OF THE PETITIONERS :

8.1. Mr. Shalin Mehta, learned senior counsel appearing for the petitioners submitted that the findings of the inquiry officer Shri Noel Parmar are absolutely imaginary and based on no evidence, and therefore, the findings are perverse. Shri Parmar, is an investigating officer of Godhra case in respect of F.I.R. No. 9 of 2002 registered by Godhra Railway Police, Page 8 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined on 27.02.2002.

8.2. Mr. Mehta, learned senior counsel, alleges bias against Shri Parmar. It is submitted that the entire tenure of the inquiry report was that there was some pre-planned conspiracy to burn S-6 coach and if that was indeed the case, then it was legitimate for the petitioners to ask question as to why advance information and intimation was not given or as to why the authorities did not make proper arrangement of security for the passengers of S-6 coach.

8.3. It is further submitted that, in order to put blame on the petitioners, Shri Noel Parmar - Inquiry Officer conveniently concluded that the event of burning of S-6 coach was pre-planned to make it appear that the petitioners ought to have been knowing about the incident. It is shocking that the inquiry officer blames tragic burning of S-6 coach upon the petitioners. It is submitted that, despite such reply to the show cause notice, the respondent no.3 by order dated 28.10.2005 passed the final order removing the petitioners from their services.

8.4. It is submitted that, the petitioners therefore were constrained to prefer appeal challenging the order of disciplinary authority. The learned Appellate Authority has assigned further reasons, while passing the impugned order.

8.5. It is submitted that, at the most, it is a case of false entry, but the petitioners cannot be held responsible for Page 9 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined the riots and the penalty of "removal" is harsh compared to the charges levelled against the petitioners.

8.6. It is submitted that the basic allegation against the petitioners is that instead of coming back by Sabarmati Express, they came back in Shanti Express and because of this, grave incident of burning of S-6 coach of Sabarmati Express at Godhra Railway Station could not be prevented, due to want of proper police force. Thus, they have shown negligence and carelessness towards their duty.

8.7. It is submitted that the issuance of charge-sheet was based on the report of the inquiry conducted by one Shri S.L. Bhatt, the Police Inspector at Railway Station, Ahmedabad, in which the following conclusions were drawn, which reads thus:

8.8. It is submitted that, on the basis of the inquiry officer's report holding that the charge levelled against the Page 10 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined petitioners proved, after issuing show cause notice, by order dated 28.10.2005, the disciplinary authority removed the petitioners from service, which was confirmed by both the Appellate Authority and Revisional Authority by orders dated 25.04.2007 and 06.02.2008 respectively.

8.9. Mr. Mehta, learned senior counsel has placed on record the written submissions on behalf of the petitioners, which reads thus:

12. Having cleared the ground of what would constitute 'misconduct' for the purpose of disciplinary proceeding, a look at the charge framed against the petitioners would affirmatively show that the charge levelled and held to be proved against the petitioners is based on a mere surmise drawn from the aforesaid report of the inquiry conducted by Page 11 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined one Shri S. L. Bhatt, Police Inspector on the incident that happened at Godhra on that fateful day. The petitioners had no information, knowledge or intimation that Sabarmati Express would be attacked as alleged. The petitioners were in plain clothes and belonged to Mobile Squad, they would not carry arms or wireless sets to attract least attention of them being policemen. No law and order duties were assigned to these personnel. Thus it is clear the charge levelled against them does not constitute misconduct for the purposes of disciplinary proceedings.

13. As for the charge of negligence and carelessness on the part of the petitioners, it is submitted the Hon'ble Supreme Court in Union of India vs. J. Ahmed [1979) 2 SCC 286] (para 11) as under:

From the above observations of the Hon'ble Supreme Court it is crystal clear that the negligence in discharge of duty would not constitute misconduct unless the consequences are directly attributable to the negligence of the delinquent. In the present case as submitted above, the law and order was not within the province of the duties of the petitioners. They belong to Mobile Squad without any duties of law and order.

14. It is further submitted the expression of "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law." [ Sher Bahadur vs. Union of India and Others 2002) 7 SCC 142].

It is therefore submitted the present case of the petitioners is a clear case of finding them guilty of the charge without having any evidence to link them with the alleged Page 12 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined misconduct.

15. In summing up, it is thus crystal clear that there is no case stricto sensu for disciplinary proceeding against the petitioners. It appears that there was large scale disturbances in the State. Then followed the usual search for face saving formula to cover up the failure on the part of railway and government machinery in averting or controlling it. The petitioners came handy. A charge was framed which does not constitute misconduct. The charge on the face of it is a mere surmise."

8.10. Mr. Mehta, learned senior counsel relied upon the following decisions:

9.1. Ms. Manisha Lavkumar Shah, learned Additional Advocate General appearing for the respondent - State submitted that, all the 9 petitioners, were served with the charge-memo on 13.08.2002. Pursuant thereto, taking into consideration, the reply filed by the respective petitioners, an Enquiry Officer of the rank of Deputy Superintendent of Police, Western Railway, Vadodara Page 13 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined came to be appointed by an order dated 09.01.2003. The witnesses were examined and the petitioners herein were permitted to cross-examine the witnesses and lead evidence in defense of the charges levelled against them. In the course of enquiry, the enquiry officer framed 5 issues, wherein, issue nos. 1, 2, 4 and 5 stands proved on the basis of documentary evidences and oral evidences and issue no.3 stands partly proved.

9.2. Placing reliance on the findings arrived at by the enquiry officer qua issue nos. 1, 2 and 3, it is submitted that, though the petitioners were supposed to remain present on their patrolling duty in Sabarmati Express train, they were not present in the said train. It is submitted that, even if, the incident could not have been averted, at least, the numbers of death could have been reduced. Thus, the petitioners are responsible for the said incident. It is submitted that, the conspiracy may have been carried-out in their presence also, however, the extent of damage and loss of lives, would not have happened or could have been controlled. It is further submitted that, one of them could have arrested one or two persons or at least, they could have given the information, as to how the offence took place. In view of the aforesaid, the petitioners herein remained totally negligent. It is submitted that the petitioners herein also never sought for permission from any of the higher officers for boarding Shanti Express, instead of Sabarmati Express and the same has resulted in serious carelessness and negligence in discharge of their duties Page 14 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined as mentioned in Issue No.3.

9.3. It is submitted that, Shri Noel Parmar, the Deputy Superintendent of Police, Western Railway, Vadodara submitted the enquiry report alongwith all documentary evidence, which were taken into consideration, during the course of departmental proceedings, vide communication dated 29.10.2004. The disciplinary authority having independently taken into consideration the report filed by the enquiry officer and all the relevant material on record by the enquiry officer, issued show cause notices on 22.02.2005 to all the petitioners.

9.4. It is submitted that the petitioners have submitted their respective replies on 01.04.2005. Upon due consideration of the final defense statement filed by the petitioners and after appreciating the documents and depositions on record, the disciplinary authority on 28.10.2005 passed the order of removal against the petitioners.

9.5. It is submitted that the aforesaid order passed by the disciplinary authority was subject mater of Appeal and Revision before the competent forum, wherein, the said order of removal passed by the disciplinary authority was confirmed by the appellate authority and revisional authority.

9.6. In light of the concurrent findings arrived at by the competent authorities, this Court may not exercise the writ jurisdiction under Article-226 of the Constitution of India.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined 9.7. Ms. Shah, learned AAG submitted that, the due procedure as enumerated in the rules is followed. It is submitted that, it is an admitted fact that, there is no procedural lapse neither at the inquiry nor at the disciplinary stage nor at the appellate stage. It is submitted that, the principles of natural justice is duly complied with including affording of opportunity of hearing and necessary consideration even at the revisional stage.

9.8. It is submitted that the sequence of events, as depicted demonstrates that the entire departmental proceedings have been conducted, in accordance with the rules and the due process of law, has been strictly followed. It is submitted that, adequate opportunity of hearing has also been afforded to the petitioners as well. It is not even the case of the petitioners that, important witnesses have not been examined or that the documents relied upon in the departmental proceedings have not been duly approved. The entire departmental enquiry rests on the documentary evidences, as duly proved by witnesses, who had authored or proved to the first time information, regarding such documents.

9.9. It is submitted that, the station diaries, entries in railway register, effected by petitioners have been proved and are admitted by the petitioners. The duty form assigning duties to the petitioners, has been exhibited as Document No.2 which stands proved. The relevant extracts from the petitioners' hand-

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined written diaries which were required to be filled-in by each of the petitioners in their own hand, also stands proved. It is further submitted that, the false entry posted by the petitioners herein at the Dahod railway outpost, recording the false factum of 9 petitioners boarding Sabarmati Express is also proved. The varied justifications offered for explaining the false entries effected in the Station Dairy, abandonment of Sabarmati Express and boarding of Shanti Express has not been accepted by any of the authorities. The findings of fact as written by the enquiry officer are duly collaborated with the documentary evidence, which at no stage is questioned by the petitioners. Reliance is placed on the following judgments:

9.10. Ms. Shah, learned AAG submitted that, the principal contention raised by the petitioners during the course of hearing with respect to the fact that the enquiry officer (Shri Noel Parmar) was biased, during the course of the enquiry, as he was part of the team carrying-out criminal investigation into Gordhra riots and therefore, the entire proceedings stands vitiated. It is submitted that, the petitioners have given-up the aforesaid ground and have specifically stated in their reply to the show cause notice (pg.158) that they did not allege any bias, during the departmental proceedings, as from the manner in which the Page 17 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined enquiry officer behaved, they believed that he would hold in the favour of the petitioners. it is submitted that, admittedly, the petitioners have raised no grievance before any authority, objecting to the appointment or continuation of Shri Parmar, Dy.S.P., Western Railway, Vadodara, as the enquiry officer, during the entire departmental enquiry.

9.11. It is submitted that, it is not open for the petitioners to improvise their cases, than that of which was pleaded before the departmental authority. It is submitted that, at the first instance, Shri K.C. Bava, Dy.S.P., Western Railway, Vadodara was appointed as an enquiry officer. Upon superannuation of Shri Bava, Shri Noel Parmar, Dy.S.P., Western Railway, Vadodara was appointed as enquiry officer. The appointment of Shri Parmar, was by virtue of the designation of Dy.S.P., Western Railway, Vadodara and not by virtue of name.

9.12. It is submitted that, the petitioners are required to prove that the petitioners were adversely treated by the enquiry officer Shri Parmar, during the course of enquiry proceedings and that the enquiry officer has taken into consideration the irrelevant facts and has conveniently ignored the relevant facts, during the course of enquiry proceedings. It is submitted that, the enquiry report is based on the documents on record and evidence recorded after affording full and complete opportunity to cross-examine the witnesses and lead independent evidence. All the authorities declined to accept the aforesaid belated, Page 18 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined unsubstantiated allegation of bias.

9.13. Ms. Shah, learned AAG submitted that, with respect to the contention of proportionality that the punishment imposed is disproportionate to the alleged misconduct. It is submitted that, it is for the disciplinary authority and the administrative authority to decide the quantum of punishment and the role of the Court is secondary. It is submitted that, the discretion is invested with the aforesaid upon the authorities, to impose appropriate punishment, keeping in view the magnitude of gravity of the misconduct. It is submitted that, the High Court while exercising of power of judicial review cannot substitute itself for conclusion of penalty and imposed some other penalty unless it shock the conscious of the Court. It is in rarest of rare cases, the Court may impose appropriate punishment with cogent reasons in support thereof. It is submitted that, the interference with the quantum of punishment is not a routine matter. The benchmark of police personnel is quiet higher than that of any other government servant, when it comes to responsibilities towards duty.

9.14. It is submitted that, it is well settled principle of law that the High Court or the Tribunal, in exercise of power of judicial review would not normally interfere with the quantum of punishment. It is submitted that, the doctrine of proportionality can be invoked only in rarest of rare case. Placing reliance on the aforesaid submissions, it is submitted that, in the facts of the Page 19 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined present case, dereliction of duty by a civilian would be examined from a different perspective, as against the dereliction of duty by a police officer entrusted to protect the safety of a train and all its passengers. It is a keen to the duty of the soldier manning and army outpost.

9.15. To substantiate the aforesaid submissions, reliance is placed on the following decisions:

9.16. Ms. Shah, learned AAG submitted that, the duty chart for every railway police officer, is assigned by the concerned Police Officer of the Railway Station. It is submitted that, since the year 1997, a scheme has been floated by the Railway Department categorizing the trains into 'A' and 'B' Category. The trains falling in the A Category are such trains, where frequency of untoward incidents like chain snatching, altercations, etc. is high. The instructions issued in this behalf dated 03.04.1997 are annexed at page no. 96 of the petition. The instructions issued to the concerned Police Inspector of the concerned Railway Station are to be implemented in every train falling in A Category, to ensure that at least 3 Armed Personnel with rifles and cartridges must be present. The rest of the ASIs are provided with sticks and ropes. It is submitted that, additionally, police officers in plain clothes are also required to patrol the train. The Sabarmati Page 20 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined Express is a Category A train.

9.17. It is submitted that, out of 9 police personnel, 3 of them are armed with rifles and cartridges and the rest 6 with sticks and ropes were required to patrol and ensure safety of the return of train i.e. Sabarmati Express (9166- Down) which is a "Category - A" train i.e. having a higher propensity for crime. It is submitted that, the petitioners were not required to simply to travel from one destination to another. It is submitted that, their duty was to protect the passengers from any rowdyism, altercation, crime and on safely reaching the prescribed destination enter in the railway register that the Train has safely reached its destination.

9.18. It is submitted that, it is shocking that the petitioners herein choose to trivialize their responsibilities and duties as a Police Officers, by stating that their presence in the specific train would hardly have made any difference. The unfortunate incident which occurred at the Godhara Railway Station on account of chain pulling, stone pelting and setting Coach No. S-6 ablaze by pouring Kerosene could have been averted by the petitioners. It is submitted that the contention of the petitioners that, their presence would have make no difference and hence their abandonment of the entire train merits no punishment much less a serious punishment and much less the punishment of removal is such that the petitioners belonging to the disciplined force, are repeatedly made submissions undermining their duties as Page 21 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined travelling from one Station to another.

9.19. It is submitted that the argument of the petitioners that the false entry posted at the Dahod Railway Station Outpost to the effect that they are departing by Sabarmati Express was made in good faith, as the timeline between the two trains is only 35 minutes, and hence, this is a routine practice followed by the petitioners. However, 9 Police Officers forgot to correct this entry and returned by the Shanti Express instead of Sabarmati Express. Leaving an entire train full of passengers, without the designated Police on board is dismissed by the petitioners as a routine occurrence which happens when a particular train is indefinitely late. It is submitted that, it is on record that entries posted in the Railway Station Diary are reported to the control room. This fact is admitted and not disputed by the petitioners herein. It is submitted that, thus the entry made by the petitioners at the Dahod Railway Station that they are boarded the Sabarmati Express is duly conveyed to the control room and there is no change in this entry, since the petitioners have not bothered to rectify the false entries made in the register. It is submitted that, admittedly no authority is informed of the change of plans adopted by the petitioners of boarding the next available train. It is submitted that, inexplicably the petitioners wait at the Railway Station at 04:30 hrs. without verifying when Sabarmati express scheduled train is due from the Station Master, before aligning a Shanti Express.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined 9.20. It is submitted that, in view of the concurrent findings based on documentary evidence duly corroborated by oral evidence the order of "Removal from Service" passed by the Disciplinary Authority and duly confirmed by the Appellate and Revisional Authority, after hearing the petitioners, required no interference and the present petition be dismissed in limine.

9.21. Ms. Manisha Lavkumar Shah, learned Additional Advocate General placed reliance on the following judgments:

X. In the case of State of U.P. & Ors. v/s. Man Mohan Nath Sinha and Anr. reported in (2009) 8 SCC 310, wherein, the Hon'ble Apex Court held that the power of judicial review is confined to decision making process, rather than the decision itself.

XI. In the case of State of U.P. v/s. SheoShanker Lal Srivastava and Ors. reported in (2006) 3 SCC 276, wherein, the Hon'ble Apex Court held that the High Court of Tribunal would not normally interfere in the quantum of punishment.

XII. In the case of Union of India v/s. Subrata Nath reported in 2022 SCC OnLine SC 1617, wherein, the Hon'ble Apex Court held that the Courts ought to refrain from interfering with findings or facts recorded in departmental inquiry except such findings are patently perverse or grossly incompatible with evidence on record.

XIII. In the case of South India Cashew Factories Workers' Union v/s. Kerala State Cashew Development Corporation Limited and Others reported in (2006) 5 SCC 201. In the aforesaid judgment, the Hon'ble Apex Court held that, merely because the enquiry officer is an employee of the management, it cannot be Page 24 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined lead to the assumption that he is bound to decide the case in favour of the management. It is also held that the inquiries are generally conducted by the officers of the employer and in absence of such any special individual bias, attributable to a particular officer, it cannot be held that, such inquiry is biased, just because it was conducted by the officers of the employer. On the aforesaid ground, it cannot be held that the entire enquiry is vitiated. It is also held that, if an enquiry officer has made some unnecessary observations, the same does not result into bias.

In the facts of the said case before the Hon'ble Apex Court, no objection was raised during the entire inquiry or pleadings before the Labour Court or the earlier proceedings before the High Court. The bias of the inquiry officer has to be specifically pleaded and proved before the adjudicator. Such plea was admittedly absent before the Labour Court. In the aforesaid set of facts, the Hon'ble Apex Court held that, the preliminary order of the Labour Court setting aside the inquiry, on the ground that the inquiry was conducted by an officer of the management and he had made some observations in the enquiry report, which were not warranted in the case, is not a vitiating factor and such reasons are not sufficient to set aside the enquiry.

10.1. Mr. Mehta, learned senior counsel dealt with the aforesaid judgments relied upon by Ms. Manisha Lavkumar Shah, learned AAG and in rejoinder and submitted that the proposition Page 25 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined of law in the aforesaid judgments are well settled, however, the same would depend upon the facts of each case. Though, Mr. Mehta, learned senior counsel placed reliance on Para-12 of the decision in the case of State of Meghalaya reported in (2008) 7 SCC 580 (supra), to substantiate the submission whether the competent authority was justified in removing the respondent from service.

The Hon'ble Apex Court in Paras-16 to 18 held that the respondent belonged to a disciplined force and was supposed to carry out instructions given to him by his superior. The respondent, not only floated the instructions, but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited.

10.2. Mr. Mehta, learned senior counsel submitted that with regard to the decision in case of 2022 SCC OnLine SC 284 (supra), the respondent was a CISF Constable and was found to be sleeping at Watch Tower No.5 by Officer ASI / Exe B. Panda and it was alleged that the said respondent had abused, misbehaved and assaulted the officer on the right shoulder with a short lathi. It is submitted that, such conduct of the officer as a natural consequence is such that, the same is required to be dealt with in appropriate manner, in view of such conduct of the Page 26 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined respondent. However, the same is not applicable in the facts of the present case, wherein, the competent authority has also not attributed knowledge of riots to the petitioners herein and the petitioners herein have derelicted their duties, to the extent that instead of returning by Sabarmati Express, the petitioners returned by Shanti Express and had no knowledge about the untoward incident that had occurred on that date.

11. It is apposite to deal with the judgments relied upon by Mr. Shalin Mehta, learned senior counsel appearing for the petitioners.

I. In the case of Union of India and Others v/s. Prakash Kumar Tandon reported in (2009) 2 SCC 541, reliance is placed on Para-12 of the said judgment. In the said judgment, the disciplinary proceedings were initiated only after a raid was conducted by the vigilance department. The inquiry officer was the chief of the vigilance department, and he evidently being from the vigilance department should not have been appointed as the inquiry officer at all.

The Hon'ble Apex Court in Para-15 has held that the principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order on the said application and the same ought not to have been refused. It is not for the Page 27 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined railway administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority, and therefore, must perform his functions fairly and reasonably, which is even otherwise the requirement of the principles of natural justice.

In light of the aforesaid, the Hon'ble Apex Court in the aforesaid facts, dismissed the appeal filed by the Union of India.

II. In the case of State of Uttar Pradesh and Others v/s. Saroj Kumar Sinha reported in (2010) 2 SCC 772, relied on Paras-28 to 30, wherein, the Hon'ble Apex Court has held that enquiry officer acting in quasi-judicial authority is in the position of an independent adjudicator. That the enquiry officer has to be wholly unbiased. The rules of the natural justice are required to be observed to ensure that the justice is not only done, but is manifestly seen to be done.

In the facts of the said case, the delinquent in accordance with rules made a written request to the appellant - State of Uttar Pradesh demanding copies of documents relied upon, in the charge-sheet by representation dated 10.06.2001. In spite of the mandate of Rules, 1999, neither the disciplinary authority nor the enquiry officer made available such documents to the delinquent, rather a reminder was issued to the delinquent by the enquiry officer on 15.06.2001 to submit reply to the charge-sheet.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined Apprehending that the enquiry officer may be biased, the delinquent submitted a representation dated 19.06.2001 to the Government for change of the enquiry officer. The said request was accepted by the State. It later transpired that the earlier enquiry officer had completed the inquiry report on 03.08.2001, whereas, the new enquiry officer was appointed on 22.09.2001. The respondent only came to know about the existence of the report dated 03.08.2001, in the month of April, 2003. In such circumstances, the Hon'ble Apex Court in Para-40 held that the 1st enquiry report dated 03.08.2001 is vitiated. The 2 nd enquiry report in view thereof cannot be legally termed as an enquiry report, which is in reiteration of the earlier enquiry report. Asking the delinquent to give reply to the enquiry report, without supply of the documents adds insult to injury.

In the aforesaid facts, the Appeal was dismissed, having arrived at the conclusion that the respondent had been denied a reasonable opportunity to defend himself in the enquiry.

III. In the case of Associated Cement Companies Limited v/s. Workman and Another reported in (1964) 3 SCR 652, reliance is placed on Para-12 of the said judgment, wherein, the Hon'ble Apex Court held that, if an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye witness to the impugned incident. Under such circumstances, the Hon'ble Apex Court has held that, injustice is Page 29 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined likely to result if a domestic enquiry is held by an officer who has himself witnessed the alleged incident, the same is very eloquently illustrated by the statements contained in the Manager's letter to Malak Ram. That is why the Hon'ble Apex Court thought it fit that the conduct of domestic enquiries should be left to such officers of the employer who are not likely to import their personal knowledge into the proceedings which they are holding against the enquiry officers.

In the facts of the present case, no criminal proceedings are inflicted against the petitioners herein.

IV. In the case of Cantonment Executive Officer and Another v/s. Vijay D. Wani and Others reported in (2008) 12 SCC 230, placing reliance on Para-7 of the judgment, Mr. Mehta, learned senior counsel submitted that, the question of bias is always the question of fact. The Court has to be vigilant while applying the principles of bias as it primarily depends on the facts of each case. The Court should only act on real bias and not merely on likelihood of bias. In the facts of the said case, three persons who conducted the inquiry, were also the members of the board and that the Board was to take a decision in the matter, whether the report submitted by the enquiry committee should be accepted or not. The Hon'ble Apex Court has held in para-13 that, a person cannot be a judge in his own cause. Once the disciplinary committee finds the incumbent guilty, they cannot sit in the judgment to punish a man on the basis of the Page 30 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined opinion formed by them. Objectivity is the hallmark of a judicial system in our country. The very fact that the disciplinary committee which found the respondent in the said case guilty participated in decision-making process for finding the respondent guilty and dismissed him from service is bias, which is apparent and real.

In the facts of the present case, the aforesaid decision is not applicable. The report given by Shri Noel Parmar, Investigating Officer and is accepted by the competent authorities.

V. In the case of Y.V. Shah v/s. State of Gujarat and Vice Chairman & Managing Director, G.I.D.C., Gandhinagar reported in 2019 (4) GLR 2877, reliance is placed on paras-10 to 14, wherein, in the facts of the said case, the enquiry officer was associated with the drawing / design of the quarters which have ultimately collapsed. In light of the aforesaid, the delinquent requested to appoint the D.E.O., who is not associated with the case (work) either directly or indirectly, and therefore, can deal with the case without any bias. Placing reliance on the ratio laid down by the Hon'ble Apex Court in the case of Ram Lakhan Sharma reported in AIR 2018 SC 4860, it was held that the enquiry officer, who was approving authority of the design, ultimately held that the building has not collapsed because of such faulty design, but because of the materials used by the petitioner. Hence, it can safely be presumed that the enquiry Page 31 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined officer was very well connected with such findings, wherein, it was held that the building had not collapsed because of faulty design, and hence, it can be presumed that there was all possibility of bias in the departmental proceedings.

VI. Mr. Mehta, learned advocate relied on the decision reported in 1997 Supplementary SCC 579, wherein, the Hon'ble Apex Court intervened in the findings of the fact arrived in the disciplinary proceedings, in light of the fact that, the inquiry officer concluded on no evidence and without proper appreciation of the background and circumstances of the case.

In the facts of the present case, the inquiry report is made after following due procedure and due appreciation of the documentary as well as oral evidences.

VII. In the case reported in (2010) 13 SCC 427, the Hon'ble Apex Court held that the Notice must state the charges only and not definite conclusion of the alleged guilt, on the principle of Audi alteram partem, which is the basic principle of natural justice.

In the opinion of this Court, looking to the facts of the present case, the said judgment is not applicable, wherein, the notice is not challenged and petitioners participated in the disciplinary proceedings, having not objected / raised such contention.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined VIII. In the case reported in 2009 (2) SCC 570, the Hon'ble Apex Court has held that, mere production of the document is not enough, the same has to be proved by examining the witnesses.

The aforesaid decision is not applicable in the facts of the present case, wherein,due procedure has been followed in accordance with rules.

IX. The case reported in 1970 (3) SCC 548, is with regard to the non-supply of statement of allegation to the delinquent in spite of the representation.

12.1. Having heard the learned advocates appearing for the respective parties, the following undisputed facts emerge for consideration of the present petitions:

5. 27.02.2002 Sabarmati Express reached Dahod Railway Station at 06:38 hours and departed Dahod Railway Station at 06:40 hours.

6. 27.02.2002 Sabarmati Express reached Godhara railway station at 07:35 hours. The unfortunate incident of chain pulling, stone pelting and setting ablaze coach S6 of Sabarmati Express took place at Godhara Railway Station wherein 58 people including women and children lost their lives.

7. 1.3.2002 Petitioners were placed under 82 - 83 Page 35 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined suspension by the District Superintendent of Police, Western Railway, Vadodara, on the account of the dereliction in discharging their duties.

8. 1.3.2002 Mr. S. L. Bhatt, Police Inspector, Ahmedabad was appointed to conduct the preliminary Enquiry.

9. 1.4.2002 Shri S.L. Bhatt, Police Inspector, 108 - 113 Railway Police Station, Ahmedabad submitted a preliminary report to the Superintendent of Police, Western Railway, Vadodara narrating the dereliction on the part of the Petitioners in boarding Shanti Express instead of Sabarmati Express.

10. 13.8.2002 Petitioners were served with the 89 - 93 Charge Memo accompanied by Articles of Charge, List of Witnesses and a list of Documentary evidence sought to be relied upon during the departmental enquiry. The charge memo stipulated the imposition of a major punishment under Rule 3 of the Bombay Police (Discipline and Appeal) Rules, if all or any of the Page 36 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined charges stands proved against the petitioners, which reads thus (true translation):

Sd/- illegible J. K. Bhatt Police Superintendent Western Railway, Vadodara."

11. 12.9.2002 Petitioner No. 1 i.e. Jabir Hussain 114 - 124 Rasulmiya, submitted a reply against the charge-sheet denying all the charges which were levelled against all the delinquents.

Petitioners, inter-alia raised the following grounds: -

 Petitioners were not heard before they were served with the charge memo.

 Authenticity of the documentary evidence attached with the charge-

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined memo.

 Ex parte Preliminary Enquiry.

 Routinely when a train is late Police Officers board the next available train.

12. 16.09.2002 Application preferred by the 125-129 Petitioner no. 1 seeking reinstatement.

submitted by the petitioners, the Disciplinary Authority i.e. Superintendent of Police, Western Railway, Vadodara passed an order for commencing of Departmental Enquiry and appointed Dy. S.P. Mr. K.C. Bava, Dy. S.P., Western Railway, Vadodara to proceed as the Enquiry Officer. During the course of the Enquiry, on account of superannuation of Mr. K.C. Bava (DySP), Western Railway, Vadodara, Mr. Noel Parmar (DySP) Western Railway, Vadodara came to be appointed as an Enquiry Officer.

14. 29.10.2004 The Enquiry was conducted in 146 accordance with the Gujarat Civil Service (Appeal and Disciple) Rules, Page 40 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined 2002 and the petitioners were permitted to cross examine all the witnesses, lead evidence in their support, and deal with all the documentary evidence supplied, the Enquiry Officer along-with his Enquiry Report submitted the following documents for due consideration to the Disciplinary Authority.

i. Documents related to the issues framed.

ii. List of Documents submitted along-with charge memo.

iii. Examination-in-chief and cross examination of witness.

iv. The Enquiry officer returned a finding of charges 1, 2, 4 and 5 to be proved and charge no 3 to be partly proved.

The findings arrived at by the inquiry officer, reads thus (true translation):

"Discussion as to whether the issues formed are proved or not proved:-

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined Issue No.1 :-

Whether on 26-02-02, the Delinquents got entry made in the Station Diary of Ahmedabad Railway Police Station at 18.15 hours to proceed on duty of Moving Chowki Train Patrolling in Rajkot Bhopal Express Train and departed in this train to go to Dahod?

Issue No. (2):-

Whether the delinquents have declared before the P.S.O., Ahmedabad Railway Police Station that, as the Sabarmati Express was running behind its schedule on 27/02/2002, they had returned to Ahmedabad from Dahod in Shanti Express?

Issue No. 3:-

Had the delinquents remained present on duty of Moving Chowki Train-Patrolling in the Sabarmati Express Train departing from Dahod on 27/02/2002 and had they returned to Ahmedabad therein, they could have prevented the incident of burning the coach of the Sabarmati Express at Godhra.

Issue No. 4:-

Whether the delinquents have committed serious negligence and dereliction in duty by not returning in the train assigned to him?

Issue No. 5:-

Whether the Charge-Sheet, or any part thereof, serviced to the Delinquents by the Superintendent of Police, Western Railway, Vadodara on 13/08/2002 , is proved or not?

Issue No. 1: Yes, proved.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined Issue No. 2: Yes, proved.

Issue No. 3: Partly proved, yes.

Issue No. 4: Yes, proved.

Issue No. 5: Yes, proved.

Issue No. 1:- No allegation arises qua Issue No. 1 i.e. their Daily Activity, as recorded by the Delinquents in their Note-book and Patrol-Book for 26, 27/02/2002, has already been taken on records qua the Documentary Evidence during the Departmental Inquiry. The Delinquents have recorded the entries regarded their movement to and from the Ahmedabad Railways Police Station. This documentary evidence has been taken on record during the Departmental Inquiry against the delinquents, which corroborates this issue. Thus, this issue is proved.

Issue No. (2):- This issue, too, has been corroborated as stated above as well as by Dilipkumar Parsottambhai, Head Constable - Buckle No. 4148 PSO - Head Constable, Ahmedabad Railways Police Station, who remained present as a witness for the State. Moreover, the note-books and patrol-books of the delinquents corroborate the issue. Thus, the above stated documentary evidence has been taken on record during the Departmental Inquiry and therefore, this issue is corroborated.

Issue No.(3):- As the Sabarmati Express was running behind the schedule, the delinquents had, instead of returning therein, returned to Ahmedabad in the Shanti Express.

Thus, it is due to their negligence that this offense could not be Page 43 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined prevented.

This issue is proved that, though the delinquents were assigned duty in the Sabarmati Express, they were not present on their duty. I am an Investigating Officer of the Godhra Carnage and the Delinquents have, in their defense, produced witnesses as well as documentary evidence as to the fact that they had to returned through another train if the train wherein they were assigned duty was running behind the schedule.

For a time being, even if it is believed as a practice prevalent at that time, such practices can be admitted in ordinary circumstances.

No Police Inspector / P.S.I. would give instruction to return through the first available train when there is a law and order situation.

The Delinquents are police personnel. A Head Constable is the head of the Squad and remaining four are Police Constables. When Karsevaks are traveling, Bandobast is assigned in view of gravity of situation. Even if it is assumed once that the Senior Officers like P.I./ P.S.I. had not given any instruction with regard to the Bandobast, in view of the communal riots of 1992, it is the Delinquents who are duty bound and such a rule or practice ought not to be followed on every occasion. When the train was running behind the schedule, they should have thought as to why it was late and they should have contacted the police station of earliest train station or the control-

room. Had they done so, they would Page 44 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined have known that the Karsevaks were aboard the train. However, though a Head Constable was the head of the 'Moving Chowki' the Delinquents did not bother to do so.

I have investigated the offense.

It was a pre-planned conspiracy. In the staff of moving squad were present on the train, they could have known about the chain-pulling and and as they were on the train, the guard or the engine-driver could have required support, i.e. Bandobast, by communicating through walkie-talkie.

Even if the offense could not be prevented, it would have surely prevented such a large number of casualties.

Thus, they are partly responsible. If the conspiracy had been successful even if they were present, at least such a large scale damage to the lives and properties might have been prevented.

Moreover, the staff of the squad could have nabbed one or two of the accused, immediately. Thus, they have shown negligence and therefore, this issue is partly proved.

Issue No. 4 :-

During the Departmental Inquiry, the Delinquents have produced evidence in form of Defense Witnesses to establish that it was a settled practice that in case of a train running behind its schedule, the squad would return in any other train. Such a fact is inadmissible.

Such practice can be said to be acceptable in ordinary circumstances.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined But, it is a fact that when Karsevaks are on move and they were about to return and police personal ought to perform their duty, invariably, even if they do not any prior information in which train the Karsevaks were returning. Instead of giving consideration to the this aspect, they should have performed the duty assigned to them. But, they have not paid attention to this aspect. They did not take permission from any officer and went on to take decision as to how they should perform their duty and they returned to Ahmedabad. Thus, as discussed at Issue No.3, they have committed serious negligence and misconduct and therefore, I consider the issue also as proved.

Issue No. 5:- Proved.

Sd/- (illegible) Noel Parmar, Deputy Superintendent of Police Western Railways, Vadodara Division, Vadodara"

15. 22.2.2005 The Disciplinary Authority issued a 139 - 156 Show Cause Notice to the petitioner to show cause why the punishment of removal, as contemplated in the Charge Memo, under Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956 should not be imposed on the petitioners for grave Page 46 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined dereliction of duty and gross negligence.

16. 1.04.2005 Petitioners submitted their reply to 157 - 285 show cause notice.

17. 28.10.2005 After considering the reply filed by 21 - 80 the Petitioners, the final order of "Removal" came to be passed, by Superintendent of Police (Railway), Vadodara, Western Railway, Vadodara.

18. 17.11.2005 Petitioners thereafter preferred 286 - 300 Appeal challenging the order dated 28.10.2005 of removal by the Disciplinary Authority, Superintendent of Police, Western Railway, Vadodara.

19. 25.04.2007 Appeal came to be rejected by the 301 - 310 Additional DGP, CID Crime Branch and Railways, Gujarat State, Gandhinagar.

20. 5.07.2007 Petitioners preferred Revision 311 - 349 Application before the Additional Chief Secretary, Home Department, State of Gujarat.

21. September Petitioners of Special Civil 2007 Application No. 25294 of 2007 to Special Civil Application No. 25297 of 2007 preferred petition Page 47 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined challenging the order of Removal and so also rejection of Appeal.

Petitions were filed at the stage when the Revision Application was pending before the Revision Authority.

22. 3.10.2007 Hon'ble Court directed the -

Revisional Authority to hear the petitioners and take a decision within a period of 6 weeks.

The petitioners were permitted to revive the petition in case of adversarial orders.

23. 6.2.2008 Additional Chief Secretary, Home 350 to Department, State of Gujarat, heard 419 the petitioners, framed 13 issues, returned detailed finding on each of those issues and upheld the findings and the consequential order passed by the Disciplinary authority and the Appellate Authority. Revision applications were rejected.

12.2. From the aforesaid, following emerge:

(B) This Court has perused the documentary evidences produced before this Court by Ms. Shah, learned AAG, before the competent authority, which include the following Page 49 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined documents:

d. Copy of the register of station dairy at Dahod. e. Certificate by Station Master dated 27.02.2002. f. Extract of Note-books of the petitioners. g. Statement of Station Master- Khelluram Tondaram Meena at Dahod Railway Station.

h. Statement of Un-armed A.S.I.- Shankarbhai Madhabhai.

(C). This Court has considered amongst the documents, statement of Station Master, viz. Khelluram Tondaram Meena at Dahod Railway Station, which is produced on record by way of Annexure-13 in the list of documents, wherein he was stated thus (true translation):

(D). The statement of Shankarbhai Madhabhai dated 10.03.2002 reads thus (true translation):

(E) The aforesaid statements and documents produced on record are un-controverted and in view thereof, Page 52 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined Sabarmati Express train which was late by 6 hours, does not fall within the criteria of a train running 'indefinitely late'. It further emerges that, if the train is delayed for at least 20 hours, than only in such situation, officers are permitted to travel by other train, after informing immediate superior officer. In the facts of the present case, no such permission is sought for by the petitioners herein to board Shanti Express instead of Sabarmati Express, which as per the findings of the competent authority, in the opinion of this Court, is correctly held to be serious, careless and negligent behavior on the part of the petitioners in discharging their duties as mentioned in the issue No.3.

(F) In the course of hearing, it is also pointed out to the Court that the petitioners in the course of inquiry submitted that the petitioners would have become martyr, if they had boarded the train. The petitioners herein are belonging to the police force and such statement from the police personnel is such that the same is rightly not accepted by the disciplinary authority. It is not in dispute that the Sabarmati Express train falls under category-'A'.

(G). There are no procedural lapses on the part of the competent authority, while arriving at the impugned findings. It is not even the case of the petitioners that the inquiry is violative of the principles of natural justice or it is not even the case of the petitioners that important witnesses have not Page 53 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined been examined or that the documents relied upon in the disciplinary proceedings are not proved. The station diary entries in the railway registers effected by the petitioners are also proved and admitted by the petitioners. The duty form assigning the duties to the delinquent officer has been duly exhibited as document no.2, which is proved. The relevant extract of the same, which are hand-written by the petitioners, and which were required to be filled-in by each of the petitioners, are also proved. The false entries posted by the petitioners herein at Dahod Railway Station, wherein, it is recorded that the petitioners are boarding in Sabarmati Express, however, petitioners have travelled by Shanti Express, is also proved and is not in dispute. The inquiry report is on the basis of the evidence led by the respective parties which is also not questioned by the petitioners.

(H) The inquiry is conducted in accordance with the Gujarat Civil Services (Discipline and Appeal) Rules, 2002 and on perusal of the inquiry report, in due compliance of the Gujarat Civil Services (Discipline and Appeal) Rules, the P.O. permitted the petitioners to cross-examine all the witnesses led in support of evidence and dealt with the documentary evidences supplied. The inquiry officer alongwith the enquiry report submitted the following documents for due consideration to the disciplinary authority:

Considering the findings arrived at by the inquiry officer, as referred to above, the same are in consonance with the charges framed against the petitioners herein.

(I) In light of the aforesaid, the misconduct having been proved, the petitioners herein are imposed the punishment of removal as provided under Rule-3 of the Bombay Police (Punishment and Appeal) Rules, 1956. At this stage, it is apposite to refer to Rule-3 of the Bombay Police (Punishment and Appeal) Rules, 1956, which reads thus:

(1-A) (i) The appointing authority or any authority to which it is sub-ordinate or any other authority empowered by the State Government in this behalf may place a Police Officer under Page 55 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined suspension where: -

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined (2) The reversion of a Police Officer from a higher post held by him in an officiating capacity to his substantive post does not amount to reduction.

(3) The discharge of a probationer whether during or at the end of the period of probation on account of his unsustainability for the service does not amount to punishment, (4) The discharge of a temporary police officer on purely administrative grounds does not amount to punishment."

(J). Mr. Mehta, learned senior counsel submitted that the 'punishment of removal' imposed upon the petitioners is disproportionate to the alleged gravity of the misconduct.

In the opinion of this court, the punishment imposed / penalty of removal is in consonance with Rule-3 of the Bombay Police (Punishment and Appeal) Rules, 1956, as referred to herein-above, the charges levelled against the petitioners are proved, the competent authorities held petitioners guilty of "misconduct", which requires no interference, having applied the wednesbury test/ principle, considering the material on record, in absence of any perversity or absurdity in the punishment imposed.

(K). The contention is raised by Mr. Mehta, learned senior counsel that considering the charges levelled against the petitioners would show that the same are held to be proved, merely based on surmises and conjectures and that the petitioners had no information, knowledge or intimation Page 57 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined that the Sabarmati express would be attacked and that the petitioners were in plain cloths and belonged to Mobile Squad, would not carry arms or wireless sets to attract least attention of them being policemen. The charges levelled against the petitioners does not constitute misconduct for the purposes of disciplinary proceedings and at the most it is the case / charge of negligence and carelessness on the part of the petitioners.

(a) In the opinion of this Court, it is not in dispute that, the petitioners themselves have accepted that the petitioners have made false entry at Dahod Railway Station. The petitioners were allotted duty on Sabarmati Express train, however, boarded Shanti Express. The petitioners thought it fit not to ratify such entry or to inform the higher officers. The petitioners herein are members of the police force and are expected to act in accordance with the duty so assigned to them and having failed to do so, the competent authority imposed the punishment upon the petitioners of "removal from service".

(b). From the record, it emerges that the at the time when the Sabarmati express went from Dahod to Godhra, the S-6 compartment was without any police personnel, i.e. all the 9 police personnel chose to travel by Shanti Express, though Sabarmati train was late by only 6 hours. The passengers were without any police personnel, on such train.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined The aforesaid results in negligence as also misconduct on the part of the petitioners in dereliction of their duties. The charges levelled against the petitioners are proved concurrently, with full-fledged departmental inquiry, which is also not in dispute. The competent authorities have acted in bona-fide manner. There appears to be no misuse of jurisdiction on the face of record and in accordance with the constitutional requirement of satisfying the principles of fairness as provided in Article-311(2) of the Constitution of India.

(c). The findings of fact arrived at by the competent authorities upon holding detailed inquiry and elaborately discussing the evidence on record, in absence of breach of cardinal principles of natural justice or in violation of any natural irregularity on the face of record neither proved nor alleged by the petitioners herein, do not require any interference.

In the opinion of this Court, the order of removal passed by the disciplinary authority is duly confirmed by the appellate authority as well as the revisional authority. All the competent authorities have arrived at the following findings concurrently, which reads thus:

i. It is apposite to deal with the issue of Bias (the petitioners never raised the aforesaid objection, at the time when Shri Noel Parmar was appointed as Presiding Officer (P.O.). It is admitted by the petitioners that they were never Page 61 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined objected to the appointment of the I.O.

iii. The aforesaid objection was raised for the first time before the disciplinary Authority, which was dealt with by the disciplinary Authority in detail, holding that in absence of any objection raised, at the relevant point of time, when Shri Parmar, was appointed as I.O., the said objection is not tenable.

iii. The revisional authority has categorically dealt with the said contention, wherein, in absence of any documents on record to prove bias, such contention is negated.

iv. At this stage, it is apposite to refer to the meaning of 'Bias'. According to dictionary, 'anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased'. In other words, 'a predisposition to decide for or against one party without proper regard to the true merits of the dispute'. 'Bias' may be defined as a leaning of the mind, prepossession, inclination, propensity towards an object, condition of mind, partiality, mental process which is always the judgment, special influence, one-sided inclination, a predisposition to decide for or against one party without proper regard to the merits of the dispute. Bias may spring from personal, political, religious, communal, racial, Page 62 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined commercial or economic considerations. "Bias" is a leaning of the mind, prepossession, inclination, propensity towards an object, bent of mind a mental power, which sways the judgment, that which sways the mind towards one opinion rather than another, as, bias of arbitrator, of judge or jury or witness. There are mainly four types of Bias, viz. (i) Pecuniary bias; (ii) Personal bias; (iii) Official bias, departmental bias, policy bias or bias as to subject-matter and (iv) Bias on account of judicial obstinacy.

v. While considering the principle of bias, the said principle co-exists with the principle of waiver. Waiver may be express or implied. Any objection may be inferred to have been waived, if the concerned delinquent is aware and conscious of the bias in the adjudicator as well as his right to object thereto, acquiesced in the proceedings by failing to take objections at the earliest opportunity. By appearing before the adjudicator and keeping silent, knowing all the facts, the said delinquent will be deemed to have abandoned his right later on to object to hearing by the concerned adjudicator on the ground of bias.

vi. In the facts of the present case, the petitioners appeared before the inquiry officer, cooperated in the inquiry proceedings and it is only after the inquiry was over that the petitioners raised objections for the first time against the inquiry officer Shri Noel Parmar, before the disciplinary Page 63 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined authority with regard to the bias. It is alleged that Shri Parmar, inquiry Officer was biased against the present petitioners, in light of the fact that, Shri Parmar was also the investigating officer of Godhra riots.

vii. It is not in dispute that the petitioners have not been charged with any criminal liability nor are they prosecuted in the criminal proceedings of Godhra incident, which occurred on 27.02.2002.

viii. Shri Parmar was appointed as an inquiry officer, by virtue of the designation of the Dy. S.P., Western Railway, Vadodara.

ix. The inquiry undertaken in the criminal proceedings and the departmental proceedings are distinct in nature.

x. It emerges from the record in reply to the show cause notice at page-158, the petitioners never alleged bias against the appointment of Shri Parmar as inquiry officer, as from the manner in which the enquiry officer behaved, the petitioners believed that the enquiry officer would hold in favour of the petitioners. In absence of such contentions having been taken, at the initial stage, the competent authority declined to accept the said contention.

xi. In the course of hearing, Mr. Mehta, learned senior counsel is not in a position to controvert the fact that, Page 64 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined at the first instance, Shri K.C. Bava, Deputy Superintendent of Police, Western Railway, Vadodara was appointed as Inquiry Officer. Upon Shri Bava, having been superannuated from service, Shri Noel Parmar, Deputy Superintendent of Police, Western Railway, Vadodara was appointed as Inquiry Officer. The said appointment was a statutory appointment, by virtue of designation of Deputy Superintendent of Police, Western Railway, Vadodara. Further, no criminal proceedings are initiated against the petitioners.

Mr. Mehta, learned senior counsel alleged personal bias against the P.O. It is apposite to discuss the factors which may give rise to personal bias. The person judging may be a relative or a friend or a business associate of a party, there may be a personal grudge, enmity or grievance or professional rivalry against such party. Resultantly, there is a likelihood that a Judge may be biased towards one party or prejudiced towards the other.

In the facts of the present case, as held by the competent Authorities, dealing with the said allegation of the bias, in absence of any documents / proof on record to prove the alleged Bias, such contention is negatived.

13. In the opinion of this Court, the facts of the present case are governed by the POSITION OF LAW as referred below Page 65 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined with respect to the proportionality, misconduct, concurrent findings of fact and bias:

Three learned Judges of this Court stated as under in State of Andhra Pradesh v Chitra Venkata Rao , (1975) 2 SCC 557:

A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477: (1964) 5 SCR 64].

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined 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 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. xxx

26. For these reasons we are of opinion that the High Court was wrong in setting aside the dismissal order by reviewing and reassessing the evidence. The appeal is accepted. The judgment of the High Court is set aside. Parties will pay and bear their own costs.' (emphasis supplied)

25.In State Bank of India v S K Sharma , (1996) 3 SCC 364 : (AIR 1996 SC 1669), two learned Judges of this Court held:

Union of India [(1981) 1 SCC 664) As pointed out by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262, the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 Page 69 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined AC 374, HL] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India [(1984) 3 SCC 465]. There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66: (1963) 2 WLR 935]). It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr [1980 AC 574 : (1979) 2 All ER 440:

26.In Union of India v K G Soni , (2006) 6 SCC 794 : (AIROnline 2006 SC 563), it was opined:

27.The legal position was restated by two learned Judges in State of Uttar Pradesh v. Man Mohan Nath Sinha , (2009) 8 SCC 310:

28.Turning our gaze back to the facts herein, we find that the learned Single Judge and the Division Bench acted as Courts of Appeal and went on to re-appreciate the evidence, which the above- enumerated authorities caution against. The present coram, in Bharti Airtel Limited v. A. S. Raghavendra , (2024) 6 SCC 418, has laid down:

in administrative law was considered exhaustively in Union of India v. Ganayutham where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained.

I(a) Wednesbury principles

26. Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility".

66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority.

67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated Page 74 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council (SCC at p. 111).] Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India ( SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India (SCC at p. 691), Supreme Court Employees' Welfare Assn. v. Union of India ( SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap (India) (P ). Ltd. (SCC at p. 307) while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then being discriminatory) , this Court has confined itself to a Wednesbury review always.

68. Thus, when administrative action is attacked as discriminatory under Article 14 , the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14 , the principle of secondary review based on Wednesbury principles applies. Proportionality and punishments in service law

69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.

70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham.

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14 , the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum Page 75 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."

C. In the case of State of U.P. v/s. SheoShanker Lal Srivastava and Ors. reported in (2006) 3 SCC 276, wherein, the Hon'ble Apex Court in Para-21 and 22 held thus:

D. It is apposite to refer in the case of State of Meghalaya and Others v/s. Mecken Singh N. Marak reported in (2008) 7 SCC 580, Para -16 to 18 which reads thus:

E. In the case of State of Uttar Pradesh & Another v/s. Man Mohan Nath Sinha and Another reported in (2009) 8 SCC 310, the Hon'ble Apex Court has held in Para-15 and 16, which read thus:

F. In the case of General Manager (Operation

-1)/Appellate Authority, UCO Bank And Others v/s. Krishnakumar Bharadwaj reported in (2022) 13 SCC 237, wherein, the Hon'ble Apex Court in Para-17 held thus:

G. In the decision rendered in Special Civil Application No. 6022 of 1991 dated 07.11.2016, wherein, it is held by the High Court as under:

In a very recent pronouncement in the case of Union of India and others v. P.Gunasekaran , [2015(2) SCC 610], the Supreme Court in details has explained the position of law so far as the scope of interference in the matter relating to the disciplinary proceedings is concerned. I may quote the observations made by the Supreme Court from paras 12 to 20 as under:

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

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

14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1 , many of the above principles have been discussed and it has been concluded thus:

15. In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs-21 to 24, which read as follows:

16. These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

17. In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), 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 impugned order dated 28.02.2000, 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 re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 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 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."

In Chairman and Managing Director, United Commercial Bank (supra), the Supreme Court in paras 14 and 15 held as under:

In Bela Bagchi (supra), the Supreme Court observed the following in para 15:

In Ganesh Santa Ram (supra), the Supreme Court observed in paras 32 and 33 as under:

Applying the principles discernible from the afore-noted decisions of the Supreme Court to the case in hand, I hold that the disciplinary authority committed no error in arriving at the conclusion that the writ-applicant was guilty of the acts of misconduct as alleged.

The above takes me to deal with the principal and the only argument as such canvassed on behalf of the writapplicant as regards the non-supply of the documents. On behalf of the Bank, an affidavit-in-reply has been filed, inter alia, stating as under :

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined In the additional affidavit-in-reply filed on behalf of the Bank, it has been stated as under :

It appears that much emphasis is sought to be laid by the learned counsel appearing for the writ-applicant on the original investigating report/preliminary inquiry report of one Shri R.R.Mankame, officer of the Vigilance Cell of the Bank. I fail to understand what is the legal basis for the demand of the copy of such report. Even if, Shri Mankame was examined as one of the witnesses in the inquiry, it is difficult for me to accept the argument that in the absence of such report prepared by Shri Mankame, the writ-applicant was unable to effectively Page 91 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined cross-examine him. It is settled law that a delinquent is not entitled to a preliminary inquiry report. In the case of Krishna Chandra Tandon v. The Union of India , (1974)4 SCC 374, the Supreme Court held in para 16 as under :

In the case of Chandrama Tewari v. Union of India , (1987)4 JT 98 (SC), the Supreme Court held as under :

Thus, the non-supply of the document on which the Inquiry Officer does not rely during the course of the inquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Inquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of the principles of natural justice. Even then, the non-supply of those documents prejudiced the case of the delinquent officer must be established by the delinquent. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of the principles of natural justice. (see Syndicate Bank v. Venkatesh Gururao Kurati , AIR 2006 SC 3542) In the case of Union Bank of India v. Vishwa Mohan , AIR 1998 SC 2311, the Supreme Court observed as under :

In the case of Burdwan Central Cooperative Bank Ltd. v. Asim Chatterjee , (2012)2 SCC 641, the Supreme Court considered the issue as regards the non-supply of the report of the Inquiry Officer and the absence of a second show-cause notice. The Supreme Court, in para 17, held as under :

In Sarv U.P.Gramin Bank v. Manoj Kumar Sinha , (2010)3 SCC 556, the Supreme Court held in para 27, 28 and 30 as under :

28. The ECIL (AIR 1994 SC 1074 : 1994 AIR SCW 1050, Paras 5 to 7) matter was placed before the Constitution Bench as the attention of the Court was invited to a three-Judge Bench decision of this Court in Kailash Chandra Asthana v. State of U.P. , 1988 (3) SCC 600 : (AIR 1988 SC 1338) wherein it was held that non-supply of the report would not ipso facto vitiate the order of punishment in the absence of prejudice to the delinquent. Upon a detailed consideration of the entire cash law this court laid down certain principles which are as follows :

30. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows :

In view of the above, there is no room for the writapplicant to contend that the order of dismissal deserves to be quashed on the ground that the investigation report of the Vigilance Officer was not supplied to the writ-applicant. It is also very difficult for me to accept the contention that since the preliminary inquiry report was a part of the record, the disciplinary authority might have got influenced by the contents of such report and, therefore, the copy of the report should have been supplied to the writ-applicant.

The reliance placed by Mr.Tanna in the aforesaid context on the judgment of this Court in the case of D.S.Jariwala, in my view, is of no avail to the writ-applicant including the judgment of the Division Bench of this Court rendered in the Letters Patent Appeal No.1022 of 2014.

In the overall view of the matter, I hold that no case is made out to disturb the impugned order of dismissal passed by the Bank.

This writ-application, therefore, fails and is hereby rejected. Rule discharged."

CONCURRENT FINDINGS:

13. Therefore, the finding of the Labour Court that enquiry was vitiated because it was conducted by an officer of the management cannot be sustained.

14. The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he was biased. The plea that the enquiry officer was biased was not raised during the enquiry or pleadings before the Labour Court or in the earlier proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved before the adjudicator. Such a plea was significantly absent before the Labour Court. We also note that the Labour Court itself found that the enquiry officer relied on the evidence adduced in the enquiry and his findings were not Page 102 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that the report is biased. In TELCO v. S.C. Prasad this Court held that : (SCC pp. 380-81, para 13) "13. Industrial Tribunals, while considering the findings of domestic enquiries, must bear in mind that persons appointed to hold such enquiries are not lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do not prevail. Such findings are not to be lightly brushed aside merely because the enquiry officers, while writing their reports, have mentioned facts which are not strictly borne out by the evidence before them."

15. In this case for finding the employee guilty, the enquiry officer relied on the evidence adduced in the enquiry and the Labour Court itself found that the findings were not perverse. In such circumstances, the preliminary order of the Labour Court setting aside the enquiry on the ground that enquiry was conducted by an officer of the management and he had made some observations in the enquiry report which were not warranted in the case is not a vitiating factor and these reasons are not sufficient to set aside the enquiry."

J. In the case of Regional Manager, UCO Bank And Another v/s. Krishnakumar Bharadwaj reported in (2022) 5 SCC 695, in Para-22 of the said decision, the Hon'ble Apex Court has held as under:

In the facts of the said case, the Hon'ble Supreme Court was considering an appeal directed against the judgment and Page 103 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined order passed by the Hon'ble High Court of Allahabad affirming the order of the learned Single Judge, pursuant to which the inquiry proceedings and consequential punishment inflicted upon the respondent delinquent were quashed and set aside. The learned counsel in the course of hearing before the Hon'ble Apex Court raised the plea against the inquiry officer, being biased, but no heed was paid to his request and it was submitted that the documents demanded by him were not made available, despite of request and order passed by the disciplinary authority being non-speaking and cryptic in nature. The aforesaid emerges from Para-15 of the said decision.

The Hon'ble Apex Court dealt with the aforesaid contentions raised by the delinquent and held that, merely making an allegation that the inquiry officer is biased is not sufficient, unless it is supported by the material placed by him either during the course of inquiry or before the disciplinary authority. The said submission was also not made before the High Court and therefore, the said contention was rejected.

In the facts of the present case also, as referred above, the petitioners were never objected to the appointment of Shri Noel Parmar, as inquiry Officer and participated in the inquiry proceedings without any objection and there are no documents on record to prove bias.

14. In the opinion of this court, when the charges levelled against the petitioners are proved, the same resulting Page 104 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined into 'misconduct' by a full fledged inquiry, the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. The Courts cannot assume the function of disciplinary / departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority unless found to be wholly arbitrary and misconceived. Undisputedly, the well grained principle of law is that, the disciplinary authority or the appellate authority in appeal, which is to decide the nature of punishment to be imposed to a delinquent employee, keeping in view of the seriousness of the misconduct of an employee. The Court cannot assume and usurp the function of the disciplinary authority. The aforesaid principle is explained in AIR 1999 SC 625 (para-22). The Hon'ble Apex Court in the case of Lucknow K. Gramin Bank (Now Allahabad U.P. Gramin Bank) & Anr. v/s. Rajendra Singh, reported in AIR 2013 SC 3540 , harmoniously summarized the principles laid down in Para-16, which reads thus:

NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined

(b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;

(c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;

(d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.

(e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co- delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable."

15. The Hon'ble Apex Court in case of Anil KUmar Upadhyay v/s. The Director General, SSB and Others reported in 2022 SC OnLine SC 478, wherein, considering the ratio as referred above, in Para-22 held thus:

In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under:

iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:

16. Considering the charges framed against the petitioners as referred to herein-above, wherein, petitioners are all police staffs and are duty bound to travel from Chalit Chowki in Sabarmati express, leaving from Dahod, as per the duty assigned to the petitioners on 27.02.2002. The petitioners made bogus entries in the register and return in Ahmedabad by Shanti express. If, the petitioners had departed in Sabarmati express Page 108 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined train itself to reach Ahmedabad, the incident that have occurred at Godhra could have been prevented. The petitioners derelict negligence and carelessness towards their duty. The said charges stands proved. The order of removal is passed, considering the aforesaid charge and the petitioners are not charged with the criminal conspiracy. The respondent disciplinary authority passed the order of removal under Rule-3(2) of the Bombay Police (Punishment and Appeal) Rules, 1956, which is upheld concurrently by Appellate Authority and Revisional Authority by reasoned findings. Moreover, in the opinion of this Court, the petitioners herein having accepted that the petitioners have not performed their duties entrusted to them itself proves the case against the petitioners. The petitioners were entrusted the duty in Sabarmati Express train. From the record, it emerges that the train belonged to 'A' category. A Category are such trains where frequency of untoward incidents like chain snatching, altercations, etc. is high. That such instructions issued in this behalf on 03.04.1997, is annexed at page no. 96 of the petition. The said instructions which were issued to the concerned Police Inspector of the concerned Railway Station, were required to be implemented in every train falling in A Category, to ensure that at least 3 Armed Personnel with rifles and cartridges must be present. The rest of the ASIs are provided with sticks and ropes. Additionally, Police Officers in plain clothes, were also required to patrol the train. The petitioners admittedly having been assigned Page 109 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025 NEUTRAL CITATION C/SCA/25294/2007 CAV JUDGMENT DATED: 24/04/2025 undefined such important duty, have casually thought it fit, not to travel by the assigned train and travelled by Shanti Express. The reasonings assigned by the competent authorities do not call for any interference.

17. This Court deems it fit not to exercise the extraordinary jurisdiction under Article-226 of the Constitution of India, for the reasons assigned above. Accordingly both the Petitions fail and are DISMISSED . Rule is discharged.

(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 110 of 110 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Thu May 01 2025 Downloaded on : Sat May 03 12:14:45 IST 2025