1. By way of present petition under Articles 226 and 227 of the Constitution of India, under Section 67 of the Gujarat Page 1 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined Nagarpalika Adhiniyam (Gujarat Municipalities Act), 1963 and under the Gujarat Civil Service (Discipline and Appeals) Rules, 1971, the petitioner has prayed the following reliefs.

2. Brief facts of the present petition is that the petitioner is qualified Engineer working with Gujarat Housing Board since 21.03.1984 and he put on deputation for a period of one year Page 2 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined and appointed as Chief Officer of Balasinor Nagarpalika. That as there was political rivalry amongst the members of Nagarpalika, false and frivolous allegations were made against the elected members and the petitioner and he came back at Gujarat Housing Board since 28.05.2005. Thereafter, the petitioner was deputed for a period of one and half year in the office of the Superintendent of Stamp Duty, Gujarat State at Gandhinagar and again he came back to Gujarat Housing board in the year of 2007 and since then, he was discharging his duty in Gujarat Housing Board as Assistant Engineer. That since the appointment of the petitioner and till date he has completed approximately 27 years of service and except one year as Chief Officer of Nagarpalika on deputation and one and half year as Superintendent in Stamp Duty Department, for rest of the period, he has discharged his duty as Engineer in Gujarat Housing Board. 2.1 The service record of the petitioner was good, however, he was falsely implicated in an inquiry because of political rivalry between two groups of elected members of Balasinor Nagarpalika. The respondent no.2 had initiated proceedings under the Gujarat Civil Service (Discipline and Appeals) Rules, Page 3 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined 1971 and passed an order on 02.11.2010 whereby the order of recovery of Rs.1,58,720/- was made and further ordered that said amount shall be recovered in 7 equal installments of Rs.22,675/- each and two future increments of the petitioner to be withheld with future effect and Rs.15,120/- has been recovered by the respondents from the salary of the petitioner at the rate of Rs.1,890/- per month, till the petitioner's salary upto July 2011.

2.2 That petitioner had preferred an appeal under Rule 18 of the Gujarat Civil Service (Discipline and Appeals) Rules, 1971 before the Chairman, Gujarat Housing Board - the appellate authority praying for stay of the impugned order of punishment passed by the disciplinary authority, however, the appellate authority dismissed the appeal and confirmed the order passed by the disciplinary authority. Hence, the present appeal is filed.

3. Heard Mr.Yatin Soni, learned counsel appearing for the petitioner and Mr.P. K. Shukla, learned counsel for Mr.Pranav Shah, learned counsel appearing for respondents at length.

4. Mr.Yatin Soni, learned counsel appearing for the petitioner Page 4 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined has submitted the same facts which are narrated in the memo of petition and submitted that the impugned order passed by the appellate authority is without their being any valid and legal reasons and the findings recorded by the appellate authority are perverse and illegal. He has submitted that the disciplinary authority and the appellate authority have not dealt with the contention raised by the present petitioner at the time of inquiry and, therefore, the impugned order of punishment imposed by the disciplinary authority and confirmed by the appellate authority is against the settled legal principles of law and the same is clear in violation of the principles of natural justice. It is further submitted by learned counsel for the petitioner that though the concerned District Collector issued report to take action against the persons, who were in fault and negligent for such misconduct by discharging their duties, appropriate steps required to be taken against all the persons, however, the inquiry was initiated only against the present petitioner and, therefore, the same is with an ulterior motive and mala fide intention. He has submitted that the petitioner has neither committed any illegality and/or irregularity, while procuring the alleged goods Page 5 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined from the grant nor he has committed any mal practice and, therefore, the charged levelled against the petitioner is erroneous and against the facts of the case. He has submitted that the findings recorded by both the authorities against the facts of the present case and without considering the defence raised by the petitioner. He has submitted that the petition deserves to be allowed and the impugned order of punishment deserves to be quashed and set aside. Lastly, Mr.Soni, learned counsel has submitted that the punishment imposed upon the petitioner is very harsh as charge levelled against him is not serious in nature and, therefore, the punishment imposed upon the petitioner is disproportionate to the charge levelled against him and, thus, this Hon'ble Court may interfere with the impugned order passed by the disciplinary authority and confirmed by the appellate authority.

5. Per contra, Mr.P. K. Shukla, learned counsel for Mr.Pranav Shah, learned counsel appearing for the respondents has submitted that the charge levelled against the petitioner is proved during the inquiry and on the basis of the inquiry report, the disciplinary authority has imposed punishment and the same Page 6 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined came to be confirmed by the appellate authority after recording the concurrent findings. He has submitted that during the course of the inquiry, sufficient opportunity was given to the petitioner and after giving full opportunity, the petitioner was found guilty for the charge levelled against him. He has submitted that this Hon'ble Court, while exercising the powers under Articles 226 and 227 of the Constitution of India, has very limited scope to interfere with the findings recorded by the appellate authority and, thus, the present petition being meritless deserves to be dismissed. Over-and-above, while referring to the contentions of the affidavit-in-reply, Mr.Shukla, learned counsel has submitted that considering the settled principles of law, this Court may not interfere with the impugned order of punishment passed by the disciplinary authority and confirmed by the appellate authority.

6. The controversy in the present petition is to the effect that whether the petitioner was held guilty for the charge levelled against him by the respondents is just and proper and the punishment imposed by the disciplinary authority and confirmed by the appellate authority and whether this Court can interfere with the quantum of punishment or not. The law is very settled Page 7 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined on this aspect.

7. After appreciating the contentions and the defence raised by the petitioner during the course of the inquiry, the inquiry officer has submitted a report to the disciplinary authority. The delinquent was given full opportunity to raise his defence and he had submitted his written statement before the disciplinary authority and after considering the reply and the defence, the disciplinary authority has come to the conclusion that the charges levelled against the petitioner are proved and thus, the impugned order of punishment imposed by the disciplinary authority and confirmed by the appellate authority is just and proper as per the law laid down by the Hon'ble Supreme Court as well as this Court.

8. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Orissa Mining Corporation Limited Vs. Ananda Chandra Prusty reported in (1996) 11 SCC 600 wherein the Hon'ble Supreme Court has decided the question of burden of proof in disciplinary proceedings. In the said decision , the Hon'ble Supreme Court has held and observed Page 8 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined in para-6 as under:-

9. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.

10. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-

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The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the Page 10 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms."

In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-

In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham 's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art.14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp.677-

In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."

11. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-

"12. Despite the wellsettled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

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(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:

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." 16 These principles have been succinctly summedup by the Page 21 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined 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:

NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined 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. 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."

12. It is worthwhile to refer to the decision of the State Bank Of India Versus Bela Bagchi reported in (2005) 7 SCC 435, wherein the Hon'ble Supreme Court has held and observed in para-15 as under:-

13. It is worthwhile to refer to the decision of the State Bank Of India Versus Bela Bagchi reported in (2005) 7 SCC 435, wherein the Hon'ble Supreme Court has held and observed in para-15 as under:-

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14. It is worthwhile to refer to the decisions of the Hon'ble Supreme Court in the case of Union Of India Versus Dwarka Prasad Tiwar reported in (2006) 10 SCC 388 and Chennai Metropolitan Water Supply And Sewerage Board Versus T.T.Murali Babu reported in (2014) 4 SCC 108.

15. In the case of Dwarka Prasad Tiwar (supra), the Hon'ble Supreme Court has held and observed in paras - 12 to 15 as under:-

16. In the case of Chennai Metropolitan Water Supply and Sewerage Board (supra), the Hon'ble Supreme Court has held and observed in paras - 18 and 30 as under:-

17. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. A. G. D. Reddy reported in 2023 (11) Scale 530 wherein the Hon'ble Page 27 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined Supreme Court has held and observed in para-32 as under:-

18. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproprtionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

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19. On perusal of the inquiry report of the inquiry officer and the order of the disciplinary authority, I am of the opinion that the punishment of dismissal inflicted on the petitioner vis-a-vis the proven misconduct is not so disproportionate as would shock the conscience of this Court warranting interference.

20. Considering the totality of facts, I am of opinion that the authority has rightly arrived at the conclusion that the petitioner was guilty of misconduct, which was sufficient to remove him from the service. This Court finds no reasons to interfere with the same either.

21. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be dismissed.

22. For the foregoing reasons, this petition fails and is hereby Page 29 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024 NEUTRAL CITATION C/SCA/13155/2011 JUDGMENT DATED: 02/02/2024 undefined dismissed. Rule is discharged. Interim relief, if any, shall stand vacated. There shall be no order as to costs. However, the respondents are directed to release all the retiral dues of the petitioner after deducting the amount of Rs.1,58,720/- with 6% interest from the date of his retirement till the actual payment.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 30 of 30 Downloaded on : Wed Feb 07 20:35:13 IST 2024