Gujarat High Court
Jayesh K Dave vs State Of Gujarat on 25 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/21638/2007 ORDER DATED: 25/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21638 of 2007
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JAYESH K DAVE & ORS.
Versus
STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR KV SHELAT(834) for the Petitioner(s) No. 1.1,1.2,1.3
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 25/07/2024
ORAL ORDER
1. Heard Mr. K. V. Shelat, the learned advocate appearing for the petitioner and Ms. Suman Motla, the learned AGP appearing for the respondent - State.
2. By way of present petition the petitioner herein has invoked the Articles 226 and 227 of the Constitution of India being aggrieved and dissatisfied by the impugned order passed by the Gujarat Civil Services Tribunal, Gandhinagar in the Appeal No.253/06/2015 dated 17.1.2007.
It is prayed that in the departmental inquiry the Inquiry Page 1 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined Officer has not allowed the petitioner to cross-examine the witnesses nor has allowed the petitioner to remain present at the time of taking statements of the witnesses, has resulted in violation of the principles of natural justice and the process of effective representation made by the petitioner. The order passed by the disciplinary authority dated 25.8.2006 whereby the petitioner herein is ordered to be removed from the service.
2. Brief facts leading to the filing of the present petition read thus :-
2.1 The petitioner herein was working as driver in the community Health Center at Maliya Miyana Centre. The petitioner was served with charge-sheet on 9.5.2001 initiating departmental proceedings against the petitioner. The charge-
sheet is duly produced at Annexure-A. The charges framed against the petitioner read thus :-
(i) The petitioner declined to take the ambulance from the Community Health Centre at Dakor for an emergency work on Page 2 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined 14.7.2000 and at that time he abused and assaulted Dr.I.G.Sahani, Superintending Officer and caused knife injuries.
(ii) As a driver of ambulance he declined to carry emergency services entrusted to him.
(iii) The petitioner misbehaved with the higher officer.
2.2 The petitioner submitted his representation against the charge-sheet alleging violation of Rule 3(1) of Gujarat State Discipline & Conduct Rules, 1971. Upon the similar grounds a criminal complaint was also filed against the petitioner wherein after fullfledged trial, the petitioner is acquitted on 11.12.2003.
2.3 On 18.7.2006, the petitioner was sent a copy of the inquiry report and called upon to submit his defense. The petitioner submitted defense on 29.7.2006.
2.4 The petitioner pointed out that essentially there was only one charge with respect to the incident alleged to have taken place on 13.7.2000 alleging that when the Superintending Officer asked the petitioner to take the ambulance from Page 3 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined Community Centre at Dakor to Ahmedabad, the petitioner refused, abused and assaulted the said Superintending officer with knife. The said incident was on the basis of further departmental proceedings also. The relevant copies of the statements were not supplied to the petitioner for cross-
examining the witnesses and to make effective representation and thereby the non-supply of relevant material resulted in failure of principles of natural justice. The petitioner was not allowed to represent and submit reply to the proof submitted by the Superintending Officer.
2.5 The petitioner represented that at the time of examination of the witnesses, the petitioner or his representative were not allowed to remain present and the witnesses were examined ex-parte without giving proper opportunity of cross-examining them and consequently the report submitted by the Inquiry Officer itself was illegal, arbitrary and violative of principles of natural justice.
Page 4 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined 2.6 The respondent authorities passed an order dated 25.8.2006 based on inquiry officer's report without considering the defense of the petitioner and directed, the petitioner be dismissed from service.
2.7 The petitioner herein preferred appeal being Appeal No.253 of 2006 before the Gujarat State Civil Services Tribunal at Gandhinagar.
2.8 The petitioner contended that the Inquiry Officer previously made inquiry report on 2.1.2006 in violation of principles of natural justice and therefore the respondent authorities appears to have sent back the inquiry report and it appears that even on the second inquiry witnesses were examined without keeping the petitioner present and without informing him. Inspite of the aforesaid, respondent authorities without considering the defense statement of the petitioner inflicted the extreme penalty of dismissal which was an economic death to the petitioner.
Page 5 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined 2.9 By order dated 25.6.2007 the Tribunal dismissed the Appeal No.253 of 2006 against the order of dismissal by the respondent authority by coming to the conclusion that the question of alleged assault or behaviour of Dr.Sahani and charges regarding thereto was not established, however the Tribunal came to the conclusion in para-2, plea of 20" to 22"
inches rainfall at Ahmedabad and surrounding districts on 14.7.2000 was not established. The Tribunal also came to the conclusion that the request of the petitioner at the relevant point of time to the effect that he wanted somebody with him so that in case of any difficulty he does not get stranded alone. Under such circumstances, the petitioner's request was treated as just by the Tribunla, but at the same time the Tribunal has erred in coming to the conclusion that when the superior officer has not accepted such request of the petitioner he should have proceeded with Ambulance without any demure. The Tribunal has further misread and misappropriated the evidence by holding that the petitioner has not proved that the road was blocked. The Tribunal considered Page 6 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined such omission to proceed on flooded road as a serious breach in performance of duty.
3. In the aforesaid set of facts the present petition is filed wherein the follow reliefs are prayed which read thus :-
"(A) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, direction or order in the nature of certiorari quashing and setting aside the impugned communication annexures "G" and E" to the Petition by holding that the petitioner be reinstated in service with all consequential benefits, wages, effect etc;
(AA). The Hon'ble Court be pleased to issue writ, order or direction directing the Respondent Authority to pay the arrears of salary of deceased Petitioner after deducting suspension allowance paid till death, alongwith the family pension and retirement benefits to the surviving heirs being the Petitioner Nos. 1.1 to 1.3 and direct the Respondent Authority to pay the amount of compensation in lieu of compassionate employment to heirs as per policy to the Petitioner Nos.1.1 to 1.3 in view of the untimely death of the Original Petition.
(B) Your Lordships be pleased to hold that in the departmental inquiry the inquiry officer has not allowed the petitioner to cross-examine the witnesses nor has allowed the Page 7 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined petitioner to remain present at the time of taking statements of witnesses has resulted in violation of principles of natural justice and the process of effective representation to be made by the petitioner and hence the inquiry proceedings be arbitrary and violative of also declared illegal, Articles 14 and 16 of the Constitution of India and require to be quashed and set aside;
(C) Pending admission, final hearing and disposal of the present petition, Your Lordships be pleased to stay forthwith the operation, implementation and execution of annexures "G"
and "E" in the interest of justice;
(D) Your Lordships be pleased to grant exparte ad interim relief in terms prayer (C) be granted;
(E) Award any such other and further reliefs deemed fit and expedient in the interest of justice.
(F) Award the costs of the Petition."
Submissions on behalf of the petitioner :-
4. Mr. K. V. Shelat, the learned advocate appearing for the petitioner submitted that the penalty imposed upon the petitioner by the disciplinary authority as also the Tribunal is Page 8 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined harsh compare to the allegations levelled against the petitioner which has resulted in the economic death to the petitioner who is having handicapped wife, minor daughter and aged parents as dependent.
4.1 Mr. Shelat, the learned advocate submitted that though the pending the petition the original petitioner expired on 6.5.2008, is survived by his legal heirs and legal representatives. In view thereof it is true that reinstatement is not possible and reliefs are molded accordingly.
4.2 It is submitted that the disciplinary inquiry is proceeded in violation of the principles of natural justice (true translation):-
"(2) The Departmental Inquiry Officer submitted report dated 07/07/06 stating that the charges are proved. Thus, the Respondent - Commissioner served show-cause notice on 18/07/06 and I submitted detailed reply to the same on 27/09/06, wherein it was requested not to accept the findings of the Departmental Inquiry Officer because the Departmental Inquiry Officer has not examined any witness or evidences and statements of both the government witnesses were recorded in Page 9 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined the absence of me - the Appellant. Because I - the Appellant was not kept present or I was not informed to remain present on the day when the government witnesses were examined.
(3) It is surprising that it is mentioned in the order of the Respondent that the Departmental Inquiry Officer had submitted report prior to this on 02/01/06, but no witnesses or evidences were examined. Therefore, the case was remanded back for fresh inquiry. Though the witnesses were examined during the next inquiry, I was not kept present. Despite this, the Respondent - Commissioner did not take into consideration any of such fact and without showing any reasons or findings as to why my reply was not accepted, this penalty of economic death is awarded, which is not lawful."
4.3 It was submitted by Mr. Shelat, the learned advocate appearing for the petitioner that pending the present petition, the petitioner expired on 6.5.2008 and in view thereof he is represented by legal heirs.
4.4 In view of above submissions, Mr. Shelat, the learned advocate relied on the following decisions :-
(a) In the case of Chatrapal vs. State of Uttar Pradesh, reported in AIR 2024 SC 948 (paragraphs 12 and 16) Page 10 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined
(b) In the case of Ishwarbhai H. Patel vs. State of Gujarat, reported in 2000 (4) GLR 3053 (paragraphs 9 and 10)
(c) In the case of Rama Kant Misra vs. State of Uttar Pradesh and Ors., reported in (1982) 3 SCC 346 (paragraph-8) 4.5 It was lastly submitted that the case of the present petitioner is a fit case of imposing appropriate punishment of stopping of increment by setting aside dismissal and notionally treating the deceased petitioner as driver, to be paid his salary and post death benefits as may be available to him in the interest of justice.
Submissions on behalf of the respondent - State :-
5. Per contra, Ms. Suman Motla, the learned AGP appearing for the respondent - State submitted that no interference is called for in the order impugned passed by the learned Tribunal and the disciplinary authority.
5.1 Ms. Motla, the learned AGP submitted that out of the three charges levelled against the petitioner as referred above Page 11 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined though the petitioner is acquitted from the charges levelled in the criminal proceeding, the petitioner was acquitted for want of evidence. Fresh evidence did not comeforth in the disciplinary inquiry also, therefore the charges, however probably cannot be accepted to have been established.
5.2 Ms. Motla, the learned AGP placed reliance on paragraph-9 of the order and submitted that the Tribunal has rightly held that the charge of insubordination stands proved and the Tribunal rightly held that the petitioner's main plea was that 20" to 22" inches rainfall at Ahmedabad at the relevant point of time made difficulty to negotiate the roads and the petitioner wanted someone with him in case of any difficulty, that the petitioner may not stranded alone. Such request may be just but when it was not accepted, the petitioner was required to proceed without anyone demure which the petitioner could not have denied to go to Ahmedabad, is rightly considered in paragraph-9 of the said order. Placing reliance on the same it was submitted that the petitioner Page 12 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined shirked from duty at critical time which was not acceptable and in view thereof the punishment inflicted in such context though severe, is warranted and which requires no interference.
Analysis :-
6. Heard the learned advocates appearing for the respective parties.
6.1 The petitioner herein was serving as driver in the Community Health Centre at Maliya Mivana Centre. The petitioner was suspended from service with effect from 20.7.2000 and was served with charge-sheet on 9.5.2001 initiating departmental proceedings against the petitioner. The charge-sheet inter alia mentioned as under (true translation) :-
"1. When Dr. I.J. Sahani, the Superintendent, Community Health Centre, Dakor, District - Kheda assigned him the emergency service for Ahmedabad with the ambulance vehicle, he denied to accept the said task, and after using abusive words for the Superintendent, he made a deadly Page 13 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined assault on him with a knife and inflicted a blow of the knife on his face.
2. He has refused to perform emergency service and driver duty by driving ambulance as per his duty as a driver.
3. He has committed an act of misconduct by using abusive words for a superior controlling officer.
4. He has assaulted and injured the Superintendent in the course of his duties and prevented him from performing his duties and thereby, he has committed a criminal act.
5. The statement of imputations and list of evidence have been attached herewith.
6. In response to the above allegation, to submit a written statement of defence along with supporting documents, and if he wants to be examined orally, the documents of this inquiry are available in the office, which can be examined within 10 days from the date of receipt of this yadi.
7. He shall submit his written statement of defence in two copies within 30 days from the date of receipt of this yadi, and if he fails to do so, it will be deemed that he does not want to submit the statement of defence and does not want to examine or produce any witness.Page 14 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024
NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined
8. It is informed to give explanation as to why it shall not be considered a reason sufficient to impose any penalty upon him as mentioned in Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971, if the above allegation or any part thereof is proved.
9. It shall be noted that no representation will be entertained after the final order of penalty is passed."
6.2 The petitioner submitted undated representation (page-20) against the charge-sheet alleging violation of Rule 3(1) of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971. On similar ground criminal complaint came to be filed against the petitioner whereby the petitioner came to be acquitted by order dated 11.12.2003. The evidences and list of witnesses are produced at page-21-22 for framing of charge against the petitioner. The reply to the charge-sheet dated 25.6.2001 by the petitioner - delinquent, page-23 (Annex.B). By communication dated 11.7.2006 (page-27), the departmental officer informed the petitioner that the reply tendered by the petitioner herein was beyond the time limit prescribed and in Page 15 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined view thereof no further action was required to be taken. The departmental officer addressed communication dated 18.7.2006 (page-28) Annex.C to produce final defence. Report by the Inquiry Officer is duly produced at page-29. Final defence by the petitioner dated 29.7.2006 (page-37) is duly produced at Annex-D. Findings of the Inquiry Officer from pages 33 to 36 (true translation) read thus :-
"Findings of the Present Case:-
As per the direction of Ld. Deputy Director, Ahmedabad, the Civil Surgeon, Kheda gave instruction over the telephone at 6.15 o'clock in the evening on 14/07/2000 that the Driver of Community Health Center, Dakor has to remain present with the Ambulance Van at T. B. Hospital Ahmedabad on 15/07/2000 at 8.00 o'clock in the morning. Accordingly, the Superintendent of Community Health Center, Dakor gave written order to the Driver on 14/07/2000 and Sweeper Punamben Ambalal of the the CHC was sent at 9.00 o'clock in the evening to give the order to the Driver. Driver Mr. Dave read the order and returned to the Sweeper saying 'I do not accept this document'. Therefore, the order was returned to the Superintendent. Such facts are stated by Sweeper Punamben Ambalal Harijan in her statement.Page 16 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024
NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined The Driver told the Superintendent personally to send a person with him. As the Superintendent of CHC, Dakor contacted the Higher Officer, permission was not received to send any other person with the Ambulance Van and therefore, the Driver was told to go alone.
The Driver has stated in his clarification regarding sending other person with him that as it rained about 20 to 22 inches in Ahmedabad on 13/07/2000, there was reason to believe that there may be water logging and hence, he had requested to send a person with him. However, as it had rained on 13/07/2000, there was reason to believe that the water may have receded on 15/07/2000. Moreover, as no oral permission was received from the higher office to send one person along, no person can be sent. Therefore, this submission of the Driver cannot be accepted. In addition, there is no provision to send one person alongwith the Ambulance Van. It is clearly found that by making such demand, there was strong reason for Driver Mr. Dave for not going to perform emergency duty at Ahmedabad.
Ambulance Van are required for taking preventive actions so that epidemic may not spread after natural calamity like floods and the Driver has committed gross negligence towards his duty by not following the order by denying to perform his duty in such emergency situation.
Page 17 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined He had remained absent from duty without giving any leave report with the motive that he does not have to go for duty at TB Hospital Ahmedabad with the Ambulance Van on 15/07/2000. The Class-4 employees of CHC, Dakor have stated in this regard their statement dated 15/07/2000.
Police Complaint was lodged for the charges of using abusive language for Superintendent Dr. Sahani, misbehaving with him and causing physical injury to him by attacking him using knife. In the judgement of this case, the JMFC, Dakor has acquitted Driver Mr. Dave on 11/11/2003 as the witnesses turned hostile and as no further evidences were produced for the Prosecution. But when witnesses (1) Dr. S. B. Patel and (2) Sweeper Punamben, were asked personally, it is found that Driver Mr. Dave had attacked Superintendent Mr. Sahani with knife.
The Civil Surgeon, Kheda has given opinion in his Preliminary Inquiry Report that the Driver had bullying attitude and behaved in undisciplined manner which is unbecoming of a government servant and his behaviour was such that criminal offence would be constituted and that such behaviour should not be tolerated.
Ld. Deputy Director, Ahmedabad recommended that stern action should be taken against the driver to prevent such Page 18 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined instances in future because it is proved that the Driver Mr. Dave attacked Superintendent Dr. Sahani.
The Presenting Officer of this case has stated in his brief that Driver Mr. Dave has behaved with Senior Officer uncouthly and the same has been corroborated. Thus, as Mr. Dave has not be sincere towards his duty and violated Rule-3(1) of the Gujarat Civil Services (Discipline and Conduct) Rules, 1971, it has been recommended to take appropriate action as per Rule-6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
Opinion:-
A government employee is bound to perform 24 hours duty from the time of his appointment. He has to give such guarantee also. Accordingly, though Mr. Dave had given the guarantee, it is proved that he had caused hindrance in providing health and medical services by not performing emergency duty by not taking Ambulance Van for giving timely health and medical services to the citizens in natural calamity like flood. It is also proved that this kind of behaviour was gross negligence on his part towards his duty. Moreover, it is also proved that Driver Mr. Dave had attacked Superintendent Mr. Sahani using knife.
I also concur with the opinion of Ld. Deputy Director, Page 19 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined Ahmedabad and Civil Surgeon, Kheda. It is proved that Driver Mr. Dave had misbehaved with his Senior Officer. Therefore, Driver Mr. Dave is liable for punishment as per Rule-6 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971. Thus, considering all the above mentioned details, the Charge No.1, Charge No. 2 and Charge No. 3 are found to have been proved against Driver Mr. Dave."
The respondent authority passed order dated 25.8.2006 (Annex.E) based on the Inquiry Officer report, which reads thus :-
"Charge:-
(1) As Superintendent Dr. I. J. Sahani, Community Health Center, Dakor, District Kheda entrusted duty of emergency services including Ambulance Van to you at Ahmedabad, you denied to accept the duty and used abusive language for the Superintendent and caused injury to him using knife.
(2) He has denied to perform his duty as a driver to drive Ambulance Van in emergency services.
(3) He has misbehaved by using vulgar abusive language for the senior supervising officer.
(4) He has caused injury to the Superintendent by attacking Page 20 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined him while he was on duty and thereby caused obstacle to him in performing his duty and thereby committed criminal act.
Since Mr. J. K. Dave, Driver, Community Health Center, Dakor was not fit to perform duty actively for the Government as he had made murderous attack on Superintendent Class - 1, he was placed under suspension from government service w.e.f. 15/07/2000 vide the order mentioned under Preamble No. 2 and during his suspension, his headquarter was fixed as Community Health Center, Maliya, Miyana, Dist. Rajkot.
With regard to the above charge-sheet, Driver Mr. Dave submitted his statement of defense vide letter dated 25/06/01 mentioned under Preamble No.3. As he did not admit the charges levelled against him, in order to provide sufficient opportunity for self-defense and to oppose, the departmental inquiry of this case was deputed to Special Officer of Departmental Inquiry vide order mentioned under Preamble No. 4. As the Departmental Inquiry Officer did not complete the inquiry, the inquiry was handed over to other Departmental Inquiry Officer vide order mentioned under Preamble No.5.
The Departmental Inquiry Officer had submitted his report vide letter mentioned under Preamble No. 6. However, on Page 21 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined examination of the Inquiry Report, it was found that examination-in-chief, cross-examination or re-examination of the witnesses have not been conducted. Hence, it was informed vide letter mentioned under Preamble No. 7 to complete such procedure and submit the inquiry report afresh. Pursuant thereto, the Inquiry Officer has again submitted Inquiry Report vide letter mentioned under Preamble No. 8. The Inquiry Officer of this Inquiry Report has found that Charges No. 1, 2 and 3 levelled against Driver Mr. Dave are proved.
Therefore, as per the yadi dated 18/07/06 of this office mentioned under Preamble No. 9, a copy of the Inquiry Report was forwarded to Driver Mr. Dave and he was informed to submit his final statement of defense.
Pursuant thereto, Driver Mr. Dave (presently under suspension) had submitted his final statement of defense vide letter dated 29/07/06 mentioned under Preamble No. 10 wherein he has stated that as the charge-sheet served to him is defective, the same is not acceptable. Moreover, police complaint was registered for the same charges regarding which departmental inquiry is going on and as trial for this case was conducted in the Court, Ld. Court has acquitted him from the charges. Whereas, no where it is mentioned as to on the basis of which evidences or statements the Departmental Inquiry Officer has found the charges proved.
Page 22 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined Moreover, it is stated that the Departmental Inquiry Officer has heard the witnesses ex-parte and snatched away his right of cross-examination. Hence, it is requested to exonerate him from the charges.
Thus, on perusal of the charge-sheet served to Driver Mr. Dave, Departmental Inquiry Report as well as all the papers of the inquiry, it is found that Driver Mr. Dave has not stated prior to this or during the inquiry about the defective charge-sheet. Moreover, from the record such charges are also corroborated that Mr. Dave made murderous attack on Superintendent Class-1 and though order to perform emergency duty was served to Driver Mr. Dave, he did not perform his duty as driver in emergency duty during serious condition like floods. Therefore, as his final statement of defense is also not acceptable, it is believed that the charges levelled against the driver are proved and as it is just and proper to award penalty to him, the following penalty is imposed.
Order:-
Order is hereby passed against Mr. J. K. Dave (Presently under suspension), Community Health Center, Maliya Miyana, Dist. Rajkot, to dismiss him from service.
Entry in regard be made in the service book of Mr. Dave with red ink."Page 23 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024
NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined The petitioner preferred Appeal before the Gujarat State Civil Services Tribunal, Annex-F being Appeal No.253 of 2006 wherein grounds raised, page-49, in paragraphs 2 to 5 challenging the order passed by the disciplinary authority dated 25.8.2006, as referred above, read thus (true translation):-
"(2) The Departmental Inquiry Officer submitted report dated 07/07/06 stating that the charges are proved. Thus, the Respondent - Commissioner served show-cause notice on 18/07/06 and I submitted detailed reply to the same on 27/09/06, wherein it was requested not to accept the findings of the Departmental Inquiry Officer because the Departmental Inquiry Officer has not examined any witness or evidences and statements of both the government witnesses were recorded in the absence of me - the Appellant. Because I -
the Appellant was not kept present or I was not informed to remain present on the day when the government witnesses were examined.
(3) It is surprising that it is mentioned in the order of the Respondent that the Departmental Inquiry Officer had submitted report prior to this on 02/01/06, but no witnesses Page 24 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined or evidences were examined. Therefore, the case was remanded back for fresh inquiry. Though the witnesses were examined during the next inquiry, I was not kept present. Despite this, the Respondent - Commissioner did not take into consideration any of such fact and without showing any reasons or findings as to why my reply was not accepted, this penalty of economic death is awarded, which is not lawful.
(4) A Criminal Case was also registered against me for misbehaviuor against the officer concerned. But as no witnesses remained present and no one was ready to give testimony, such reply was given to file this complaint also. Though this was clearly mentioned, the Respondent - Commissioner has not taken into consideration any fact.
(5) The allegations levelled against me - the Appellant were not such that major punishment of economical death may imposed upon me forcing my family to starvation. I joined service since the year 1992."
The order passed by the Appellate Tribunal dated 17.1.2007 (page-51) paragraphs 2, 8 and 9 read thus :-
"2. Shri J.K. Dave the appellant was charge sheeted on 9/5/01 on the following counts :Page 25 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024
NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined
1) Shri Dave declined to take the Ambulance from the Community Health Centre at Dakor, When he was asked to do so as an emergency work on 13/07/2000 and abused and assaulted Dr. L.G. Sahani, the Superintending officer with a knife injuring him.
2) As a driver of an ambulance, he declined to carry on emergency services entrusted to him.
3) Mis-Behaved with the higher officer.
8. The fact that there was a flood situation at Ahmedabad on 14/7/04 is a fact. That Dr. Sahani, the Superintending officer of Dakor Community Health Centre received an instruction to send an Ambulance to Ahmedabad to cope up with certain health situation which might crop up because of flood i not questioned by anybody. That Shri Jayesh Dave was ordered to go to Ahmedabad is an accepted fact. That Shri Dave made condition to have somebody to accompany him to Ahmedabad is also an admitted fact. That the appellant did not go to Ahmedabad is also a matter of record.
9. Coming now to the question of assault on Dr. Sahani the fact that he received a facial wound of 6 mm X 2 mm on 14/7/2000 is also a fact proved on the basis of the records available with the referral hospital Dakor. Only point is that the criminal court did not find adequate evidence to establish Page 26 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined that the said wound was caused by a knife by Shri Dave. No Fresh evidence in this regard has come forth during the course of departmental inquiry. Therefore, these charges, howsoever, probable it might have been cannot be accepted to have been established.
What remains therefore is the charges of insubordination in a critical period. Shri Jayesh Dave's main plea was that 20"/22"
inches rainfall at Ahmedabad at the relevant point of time made it difficult to negotiate the roads. He wanted to have somebody with him so that in case of any difficulty he does not get stranded alone. In the circumstances, his request maybe just. But when it was not accepted, he should have proceeded without any demure. He cannot deny to go to Ahmedabad. It is not the say of the appellant that the road was blocked. There was no evidence to that effect. He did not try to go to Ahmedabad. Ambulance services are always a emergency services- His service were required for emergency situation at Ahmedabad. In such a situation, if he refuses to perform his duties, it is a very serious matter. It is not his contention that the situation was so bad that he could have been drowned or the vehicle could have been washed away. He wanted to have a second man to be of help in case of emergency. The authorities found it difficult to accede to for some reason or other. In that case as a disciplined person, he should have proceeded. In the administrative set up shirking the duty in such a critical time would not be acceptable. The Page 27 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined punishment inflicted in such a context, though serve, is warranted. We would not like to interfere with the same.
ORDER We therefore, reject the appeal.
Pronounced to day i.e on 25th Day of June 2007."
6.3 Upon perusal of the record, the petitioner herein came to be exonerated from the criminal charge by order of acquittal dated 11.12.2003. Further it is the case of the petitioner that none of the witnesses claimed any personal knowledge of the incident of deceased petitioner assaulted on Dr. Sahani. That the appellant-petitioner did not get the chance to cross-
examine the witnesses and also leading questions were put to the appellant-petitioner and that the gravity of crime is of such magnitude that it would warrant dismissal. The Inquiry Officer while passing the order dated 25.8.2006 of dismissal held that on perusing the charge-sheet, report of departmental inquiry, and considering the papers of investigation, it is found that Driver Mr. Dave has not stated prior to this or during the Page 28 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined inquiry about the defective charge-sheet. Moreover, from the record such charges are also corroborated that Mr. Dave made murderous attack on Superintendent Class-1 and though order to perform emergency duty was served to Driver Mr. Dave, he did not perform his duty as driver in emergency duty during serious condition like floods. Therefore, as his final statement of defense was also not acceptable, it was believed that the charges levelled against the driver are proved and the petitioner came to be dismissed.
The aforesaid order was also taken in Appeal, as referred above, whereby the Tribunal by order dated 25.6.2007 held that while the petitioner was exonerated from the criminal charges, the same having not established, the charges of insubordination during the critical period weighed with the disciplinary authority as also weighed with the learned Tribunal. Both the authorities took into consideration the fact that the petitioner herein has not controverted the fact that the petitioner declined to accept the order by the Administrator.
Page 29 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined The petitioner driver declined to take the ambulance from Community Health Centre at Maliya Mivana Centre, when he was asked to do so as an emergency work on 13.7.2000 and declined to carry on the emergency work and stated that the petitioner wanted to have someone with him so that in case of any difficulty the petitioner would not get stranded alone.
Both the authorities have held that it is undisputed that the petitioner never tried to go to the Ahmedabad. The ambulance services are always emergency services and his service was required to emergency situation at Ahmedabad. In such a situation, the petitioner refused to perform his duty, it would resultantly be a matter of serious misconduct. The authorities also held that it is also not the contention that the situation was such that the petitioner could have drawn or the vehicle could have been washed away, however the petitioner wanted someone to be with him in case of emergency. The authority thought it difficult to accede to the same for the some or other reasons. Under such circumstances, as a disciplined person the petitioner should have proceeded.
Page 30 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined In the administrative setup, the shirking of duty in such a critical time could not be acceptable and in the present case the Tribunal has thought it fit not to interfere in the punishment of dismissal imposed by the disciplinary authority by order dated 25.8.2006.
7. It is apposite to deal with the decisions relied upon by Mr. Shelat, the learned advocate appearing for the petitioner.
(a) In the case of Chatrapal vs. State of Uttar Pradesh, reported in AIR 2024 SC 948.
The aforesaid decision is not applicable to the facts of the present case as the inquiry proceedings were conducted fairly and enough opportunity was granted to the petitioner to represent his case. In view thereof, paragraph-12 relied upon by Mr. Shelat, the learned advocate for the petitioner has reference to the Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 and in view thereof the criteria laid down in the said judgment, the Inquiry Officer has not caused injustice to the petitioner.
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(b) In the case of Ishwarbhai H. Patel vs. State of Gujarat, reported in 2000 (4) GLR 3053.
In the facts of the present case, the petitioner misconduct has more gravity then that relied upon by Mr. Shelat, the learned advocate for the petitioner in the said judgment. In the facts of the present case, the petitioner herein chose not to comply with the order of the superior officer and misbehaved with the authority.
(c) In the case of Rama Kant Misra vs. State of Uttar Pradesh and Ors., reported in (1982) 3 SCC 346.
In the facts of the present case though the petitioner was ordered to go to Ahmedabad as a part of his duty as an Ambulance driver, the petitioner did not comply and further misbehaved with the authority and, therefore, considering the conduct of the petitioner and aforesaid precedent relied upon by Mr. Shelat, the learned advocate for the petitioner is not applicable.
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8. In the aforesaid set of facts, in the opinion of this Court, present case is governed by the following position of law.
Position of law :-
(a) In the case of State of Rajasthan and Ors. vs., Heem Singh, reported in (2021) 12 SCC 569, paragraphs-34, 37 to 39 read thus :-
"34 We have to now assess as to whether in arriving at its findings the High Court has transgressed the limitations on its power of judicial review. In Moni Shankar v. Union of India , ( 2008) 3 SCC 484 a two judge Bench of this Court had to assess whether the Central Administrative Tribunal had exceeded its power of judicial review by overturning the findings of a departmental enquiry by re- appreciating the evidence. In regard to the scope of judicial review, the Court held thus:
"17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the Page 33 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere.
We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v. Sheo Shanker Lal Srivastava [(2006) 3 SCC 276 : 2006 SCC (L&S) 521] and Coimbatore District Central Coop. Bank v. Employees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68] )"
(emphasis supplied) 37 In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining Page 34 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges craft is in vain.
38 In the present case, we have an acquittal in a criminal trial on a charge of murder. The judgment of the Sessions Court is a reflection of the vagaries of the administration of criminal justice. The judgment contains a litany of hostile witnesses, and of the star witness resiling from his statements. Our precedents indicate that Page 35 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. In Southern Railway Officers Association v. Union of India , (2009) 9 SCC 24 this Court held:
"37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge ." (emphasis supplied)
39. In State v. S. Samuthiram , (2013) 1 SCC 598 a two-Judge Bench of this Court held that unless the accused has an "honorable acquittal" in their criminal trial, as opposed to an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. But the penal statutes governing substance or procedure do not allude to an "honourable acquittal". Noticing this, the Court observed:
"Honourable acquittal
24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Page 36 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari [1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows: (Raghava case [1972 SLR 44 (SC)] , SLR p. 47, para 8) "8. ... The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted"."
(Robert Stuart case [ILR (1934) 61 Cal 168] , ILR pp. 188-
89)
26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to Page 37 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so." (emphasis added)
(b) In the case of State of West Bengal Central School Service Commission v. Abdul Halim, reported in AIROnline 2019 SC 2188, paragraphs-27 to 30 read thus :-
"27.It is well settled that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention under Article 226 of the Constitution of India.
28.In any case, the High Court exercises its extraordinary jurisdiction under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to Page 38 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined itself the question of whether there has been breach of any fundamental or legal right of the petitioner, or whether there has been lapse in performance by the respondents of a legal duty.
29.The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
30.In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in Page 39 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined law, which can be corrected by the writ Court by issuance of writ of Certiorari."
9. In the facts of the present case and the aforesaid ratio as laid down by the Hon'ble Supreme Court, having considered both the orders passed by the respondent authority, considering the findings of facts arrived at by the competent authority, undisputed fact emerges that the petitioner herein has also not rebutted the fact that the petitioner declined to accept the order of Superintending Officer for ambulance service to Ahmedabad for emergency work. The petitioner herein was a driver of an ambulance which cannot be lost sight of. The petitioner never thought it fit to accept the order, however resisted the same. The law is well settled that the order of acquittal in criminal proceeding and disciplinary proceeding are independent of each other and the order of acquittal for want of adequate evidence would not result in exoneration from the alleged misconduct in the disciplinary proceedings as the petitioner being a driver of an ambulance Page 40 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024 NEUTRAL CITATION C/SCA/21638/2007 ORDER DATED: 25/07/2024 undefined wherein the petitioner's services required the petitioner to act accordingly in case of emergency. The aforesaid impugned orders having been passed after a fullfledged inquiry, no interference is called for under Article 226 of the Constitution of India to exercise extraordinary jurisdiction.
10. For the foregoing reasons the present petition stands dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 41 of 41 Downloaded on : Mon Jul 29 22:56:27 IST 2024