Gujarat High Court
Jyotsanaben Aryabandhu vs State Of Gujarat & 4 on 8 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8107/2001 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8107 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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JYOTSANABEN ARYABANDHU....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR NIRZAR S DESAI, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GAUTAM AGP for the Respondent(s) No. 1 , 4 - 5
MR MEHULSHARAD SHAH, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/10/2015
CAV JUDGMENT
Page 1 of 17
HC-NIC Page 1 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner, a compulsorily retired Nagarpalika Employee, has prayed for the following reliefs:
18 (A) Your Lordship may be pleased to admit the writ petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned resolution dated 25.1.2001 [Annexure "A"], and the impugned order dated September 1, 2001, passed by the Director of Municipalities, [Annexure "B"], and further be pleased to direct the respondents to permit the petitioner to discharge her duties without disturbance and to pay the salary to the petitioner regularly;
(C) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to pay salary for the period from October 1997 to November 1999 to the petitioner with interest @ 18% per annum;
18(CC) This Hon'ble Court may be issue a writ of mandamus or any other appropriate writ or direction by directing the respondents to pay all the retiral and pensionary benefits by treating her retirement as retirement by way of superannuation retirement as she has attend the age of superannuation pending the impugned order dtd. 30/3/10 passed by respondents Municipality in the interest of justice." 2 The facts giving rise to filing of this writ application may be summarized as under:
2.1 The appellant joined the service of the Mehsana Municipality as a Clerk on 18.2.1970. She was promoted as the Internal Auditor on December 1, 1974. By an order dated 6.8.2004, she was placed under suspension. The same became a subject matter of the Special Civil Page 2 of 17 HC-NIC Page 2 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT Application No. 8312 of 1993. While issuing rule, this Court stayed the suspension of the appellant. During the pendency of the Special Civil Application she was exonerated vide Resolution dated 6.4.2004. In the interregnum she was superseded by two junior officers. Thereupon, she filed Special Civil Application No. 2979 of 1993 which is pending. In January, 1997, she was transferred from the post of Internal Auditor to that of Community Organiser. She challenged the same in the Special Civil Application No. 1892 of 1997 on the ground that she could not have been transferred without her consent.
2.2 In the meanwhile, on receipt of copy of the complaint made by Shri Chinubhai K. Barot to the Chief Election Commissioner that the appellant was indulging in political activities, the Collector, Mehsana ordered initiation of departmental enquiry against her. She was served with the chargesheet dated 7.2.1997. On receipt of the memo of charges, the appellant submitted application dated 24.2.1997 for supply of the documents specified therein. By an order dated 3.4.1997, the Collector, Mehsana directed that the copies of the documents applied for by the appellant be made available to her. However, the concerned authority supplied to the appellant only the copy of the complaint made by Shri Chinubhai K. Barot. Thereafter, she filed reply dated 29.4.1997 and denied the allegation levelled against her. On being summoned by the Enquiry Officer, the appellant submitted application dated 28.7.1997 Page 3 of 17 HC-NIC Page 3 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT against the conduct of inquiry by an officer who was junior to her till 1993. However, her objection was not attended to by the concerned authority and the enquiry officer proceeded with the enquiry. On receipt of the enquiry report, which contained a finding that the charge levelled against the appellant has been proved, the President of Municipality passed order dated 23.10.1997, vide which penalty of compulsory retirement was imposed on the appellant. The Special Civil Application No. 8133 of 1997 filed by the appellant against the order of punishment was allowed by the learned Single Judge on 29.11.1999. He held that nonsupply of the enquiry report had resulted in violation of the rules of natural justice. Thereafter, the appellant was reinstated in service vide the order dated 22.11.1999. Soon thereafter, she was served with a copy of the enquiry report and called upon to show cause against the proposed punishment. She challenged the reinitiation of the inquiry proceedings in the Special Civil Application No. 35 of 2001, which was dismissed by the learned Single Judge on 10.4.2001 because during the pendency of the Special Civil Application, Mehsana Municipality passed a resolution dated 25.1.2001 again imposing penalty of compulsory retirement on her.
2.3 The appellant challenged the resolution of the Municipality by filing an appeal before the respondent No.5. Initially the respondent No.5 stayed the resolution of the Municipality but, after hearing the Page 4 of 17 HC-NIC Page 4 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT representatives of the appellant and the Department, he dismissed the appeal of the appellant. As a sequel to this, she was removed from service with effect from 6.9.2001.
2.4 The appellant challenged the resolution of the Municipality and the order passed by the respondent No.5 by filing writ petition under Article 226 of the Constitution of India, which was registered as the Special Civil Application No. 8107 of 2001. She pleaded that the enquiry held against her is vitiated due to violation of the rules of natural justice inasmuch as she had not been supplied copies of the documents and was not given reasonable opportunity of defence. She assailed the finding recorded by the Enquiry Officer and order passed by respondent No.5 on the ground that the same were based on surmises and conjectures. She referred to the police report which contained a finding that she was not involved in political activities and submitted that the contrary finding recorded by the Enquiry Officer was not based on any tangible evidence.
She also questioned the order of punishment on the ground of non application of mind and malafide exercise of power by the concerned authorities of the Municipality.
3 It appears that this writ petition was heard in the past by a learned Single Judge of this Court and vide order dated 03.12.2004, the same was ordered to be rejected. Against the above referred order passed by a Page 5 of 17 HC-NIC Page 5 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT learned Single Judge, the petitioner preferred a Letters Patent Appeal No.1068 of 2005 which came to be allowed by a Division Bench of this Court vide order dated 02.08.2005. The appeal was allowed only on the ground that the order passed by a learned Single Judge was not a speaking order. The Division Bench allowed the appeal observing as under:
If the order under challenge is scrutinised in the light of what we have observed above, there is no difficulty in holding that the same does not satisfy the requirement of the speaking order. In our opinion, the learned Single Judge ought to have dealt with the points raised by the petitioner questioning the legality of the departmental enquiry held against her and the punishment imposed by the competent authority, as also the order passed by respondent No.5 The failure of the learned Single Judge to do so has certainly caused serious prejudice to the appellant.
For the reasons mentioned above, the appeal is allowed. The order of the learned Single Judge is set aside. The Special Civil Application is admitted for hearing. The same may now be listed before an appropriate Single Bench as per roster."
4 Accordingly, the matter was placed before this Court and the same was heard.
5 Mr. Nirzar Desai, the learned advocate appearing for the petitioner vehemently submitted that the impugned order of the Directorate of Municipalities dated 01.09.2001 and the impugned action of the respondent - Municipality retiring the petitioner compulsorily could be termed as illegal, improper and violative of the provisions of the Constitution of India.
6 He submitted that the entire career of his client has been ruined Page 6 of 17 HC-NIC Page 6 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT on account of such illegal and highhanded action on the part of the Municipality. He submitted that the inquiry proceedings could be said to have been vitiated on account of number of illegalities committed by the inquiry officer as well as the disciplinary authority. He submitted that the allegations or rather the charge against the petitioner that she had taken part in a political movement are absolutely baseless and contrary to the evidence on record.
7 Mr. Desai submitted that his client attained superannuation during the pendency of this petition and has been denied the pensionary and other retiral benefits, despite the fact that this Court, in an order passed in the Special Civil Application No.16249 of 2007 dated 28.06.2007, had directed the respondents to consider the claim of the petitioner for pensionary and other retiral benefits. He submitted that the respondents vide order dated 30.08.2007 very highhandedly informed the petitioner that she was entitled only to compassionate pension and not regular pension as she was made to retire compulsorily by way of punishment. 8 He submitted that in such circumstances referred to above, the impugned resolution dated 25.01.2001 passed by the Municipality and the order dated 01.09.2001 passed by the Directorate of Municipalities be quashed.
9 On the other hand, this petition has been vehemently opposed by Page 7 of 17 HC-NIC Page 7 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT Mr. Mehul Sharad Shah, the learned advocate appearing for the Mehsana Nagarpalika. Mr. Shah pointed out Rule 179 of the Rules framed by the Mehsana Municipality, which reads as under:
"(1) An officer or servant of the municipality shall not take part in, or subscribe in aid of, any political movement in India or any political movement relating to India affairs. Where there is room for doubt, whether any action, which such officer or servant propose to take will contravene this rule, he shall refer the matter to the Collector of the District through the president of the Board and there after shall act in accordance with such orders as may be passed by the Collector.
(2) Such officer or servant not canvas or otherwise interfere or use his influence in connection with or take part in any election to a legislative body;
Provided that such officer or servant, if qualified to vote at such election, may exercise his right to vote, but if he does so, shall give no indication of the manner in which he proposes to vote or has voted. (3) Such officer or servant who issues an address to electors or in any other manner publicily announces himself or allows himself to be publicly announced as a candidate or prospective candidate for election to a legislative body shall be deemed for purposes of subrule (2) to take part in an election to such body.
(4) The provisions of subrule (2) shall also apply in the cases of an election to any municipal council, school board or other elective local body."
10 He submitted that the petitioner was found indulging in political activities and for such act of misconduct, a chargesheet was served upon her and after a regular departmental inquiry, the inquiry officer held the charge to be heard. Thereafter, the report submitted by the inquiry officer was considered by the Municipality and an unanimous decision was taken to make the petitioner retire compulsorily. He submitted that such decision of the Municipality was challenged by way of an appeal Page 8 of 17 HC-NIC Page 8 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT under Section 48(4) of the Gujarat Municipalities Act before the Directorate of Municipalities and the same was ordered to be dismissed vide order dated 01.09.2001. He pointed out that on 06.09.2001, the order of compulsory retirement was given effect to. 11 He submitted that the sole judges of facts are the departmental authorities and if there being some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be canvassed before this Court. He submitted that the judicial review in a writ petition under Article 226 of the Constitution against the order of the disciplinary authority is not an appeal from a decision, but a review of the manner in which the decision is made. When an inquiry is conducted on the charges of misconduct by a public servant, the Court is concerned to determine whether the inquiry was held by a competent officer or whether the rules of natural justice are complied with, whether the findings or conclusion are based on some evidence and whether the authority entrusted with the powers to hold an inquiry has jurisdiction, power and authority to reach a finding of facts or conclusion.
12 Mr. Shah submitted that neither the technical rules nor the evidence, as defined therein, applies to the disciplinary proceedings. 13 In such circumstances referred to above, Mr. Shah submitted that Page 9 of 17 HC-NIC Page 9 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT there being no merit in this writ petition, the same be rejected. 14 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the respondents committed any error in passing the order of compulsory retirement.
15 This case had a checkered history as would appear from the facts narrated above. Way back in the year 1997, the petitioner was served with a chargesheet alleging that she being an employee of the Municipality was found participating in the political activities which is a conduct unbecoming of a civil servant. The inquiry officer recorded a categorical finding that such imputation was established on the basis of the evidence on record. The Municipality passed a resolution No.471 imposing the penalty of compulsory retirement. The petitioner, then an internal auditor in the Mehsana Municipality, challenged the resolution passed by the Municipality by filing an appeal before the Directorate of Municipalities and the Directorate of Municipalities vide its order dated 01.09.2001 dismissed the appeal, thereby, affirming the decision of the Municipality to compulsorily retire the petitioner. 16 It appears from the materials on record that on 29.08.1986, the petitioner herein had participated actively in the meeting convened by one of the leaders of the Bhartiya Janata Party, namely, Ms. Uma Page 10 of 17 HC-NIC Page 10 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT Bharati. There is evidence on record to show that on 15.01.1994, the petitioner had addressed a meeting of the workers of the Bhartiya Janata Party. The media also reported regarding the same with the name of the petitioner.
17 The rules framed by the Municipality, more particularly, Rule 179, referred to above, makes it clear that an officer or a servant of the Municipality shall not take part in, or subscribe in aid of any political movement in India or any political movement relating to India affairs. The Directorate of Municipalities, while dismissing the appeal filed by the petitioner, has taken into consideration all the relevant aspects of the matter and has recorded finding of facts that the inquiry was conducted in accordance with law and in accordance with the principles of nature justice. There is a specific finding recorded by the Directorate of Municipalities that the Collector, Mehsana, through Police had also got the matter investigated and the report filed by the police would indicate that the petitioner was active in politics and was an active member of the Bharatiya Janata Party.
18 Thus, so long as there is some evidence to support the conclusion arrived at by the departmental authority and accepted by the appellate authority, the same has to be sustained. In the case of Bank of India vs. Degala Suryanarayan [2001 (1) SLJ 113 (SC)], the Supreme Court Page 11 of 17 HC-NIC Page 11 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT held "Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. 19 In the case of B.C. Chaturvedi vs. Union of India [AIR 1996 SC 484], the Supreme Court laid down the following guidelines for judicial review in a writ petition under Article 226 of the Constitution against the order of the disciplinary authority. "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, Page 12 of 17 HC-NIC Page 12 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case".
20 Thus, considering the inquiry officer's report and the reasoning and considering the circumstances of the case, it cannot be said that the case in hand is one of "No Evidence". The departmental inquiry proceedings are not to be equated with the proceedings before a Court nor is it a criminal trial. This Court is not required to meticulously Page 13 of 17 HC-NIC Page 13 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT examine the each and every piece of evidence and to undertake the exercise of reappreciating the evidence.
21 Let me now look into the decision of the Supreme Court in the case of V.S. Menon vs. Union of India [AIR 1963 SC 1160] relied upon by Mr. Desai, the learned advocate appearing on behalf of the petitioner. This decision of the Supreme Court is relied upon to fortify the submission that taking interest in political activities of a political party would not amount to a misconduct entailing the penalty of compulsory retirement from service. In this case, the appellant was serving as a Engineering Supervisor. The allegations or rather the charge against the appellant was as under:
"Soon after your arrival in Nagpur important local communists were reported to have contacted you and during the discussions you were reported to have interested yourself in the political activities of the Communist party and other political organisations and groups in Nagpur. You are also reported to be actively continuing your association with Shri. B. N. Mukherjee and other prominent local Communists."
21.1 On such charge, the appellant was made to retire compulsorily. The Supreme Court considered Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949, which reads as under:
"3. A Government servant who, in the opinion of the Competent authority is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with others in subversive activities in such a manner as to raise doubts about his reliability may be compulsorily retired from service;
Provided that a Government servant shall not be so retired, unless the Page 14 of 17 HC-NIC Page 14 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT competent authority is satisfied that his retention in the public service is prejudicial to national security and unless, where the competent authority is a head of a department, the prior approval of the GovernorGeneral has been obtained."
21.2 Having regard to the language of the Rule, the Supreme Court held as under:
"7. That rule contemplates compulsory retirement from service of a government servant who (a) is engaged in subversive activities or (b) is reasonably suspected to be engaged in subversive activities, or (c) is associated with others in subversive activities. If any one of those three alternative conditions is fulfilled, then the competent authority has also to be satisfied that the manner of his activities is such as to raise doubts about his reliability, as also that his retention in the public service is prejudicial to national security. And, finally, where such an order is passed by a competent authority in his capacity as the head of department, the prior approval of the GovernorGeneral (now the President) has to be obtained. It is manifest on the charge, as framed against the appellant that he was not even alleged to have been engaged or to be reasonably suspected to have been engaged in subversive activities in association with others. It was only alleged against him that he associated with others who were engaged in subversive activities. That is not a charge which could be sustained under R. 3. As the rule is of a penal character, it has to be very strictly construed. If the appellant was even suspected to have been engaged in subversive activities, the charge could have been in those terms. But it is not even alleged that he was suspected to be engaged in subversive activities far less to have been engaged in subversive activities either by himself or in association with others. As the charge against the appellant did not strictly come within the purview of R. 3, there was no basis for the procedure adopted in pursuance of R. 4. It is not, therefore, necessary to pursue the enquiry as to whether the procedure actually adopted complied with that laid down in R. 4.
8. Apart from the initial serious defect in the charge laid against the appellant, even in the allegation made against him it was only said that after his arrival in Nagpur important local communists were reported to have contacted him, and that he was interested in political activities of the Communist party and other political organisations and groups in Nagpur, and finally, that he was reported to be continuing his association with Shri. B. N Mukherjee and of her prominent local Communists. But nowhere it is alleged that the appellant had taken any part in subversive activities by himself or along with others with whom he is said to have been associated. Taking interest in political activities of the Communist party would not amount to taking part in subversive activities so long as the Communist party continued to be a recognised political organisation, Page 15 of 17 HC-NIC Page 15 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT which has not been banned. It cannot be asserted that simply talking with members of the Communist party or associating with such members would amount to engaging in subversive activities. Subversive activity, in order to bring the person within the purview of the rule, must amount to actively pursuing such activities as are calculated to subvert the Government established by law. No such allegations appear to have been made against the appellant."
21.3 Thus, from the above, it appears that what was being considered by the Supreme Court was the effect and the applicability of a particular rule. Interpreting the words "subversive activities" as contained in the Rules, the Supreme Court held that taking interest in political activities of the communist party would not amount to taking part in subversive activities. The Court further held that subversive activities, in order to bring the person within the purview of the rule, must amount to actively pursuing such activities as are calculated to subvert the government establishment by law. The Supreme Court observed that there were no such allegations against the appellant.
22 The above referred decision of the Supreme Court, in my view, has no application to the case in hand. The language of the Rule 179 with which I am concerned is altogether different. It is not possible for me to take a view as a general proposition of law that a public servant can take active part in politics and such activity would never amount to any misconduct. It would all depend upon the rules framed in that regard. The Rule, in the case in hand, is plain and simple and suggests that no officer or servant of the Municipality shall take part in any Page 16 of 17 HC-NIC Page 16 of 17 Created On Fri Oct 09 02:10:30 IST 2015 C/SCA/8107/2001 CAV JUDGMENT political movement. It may not be out of place to mention at this stage that there is no challenge in this petition to the constitutional validity of Rule 179 framed by the Mehsana Municipality.
23 For the foregoing reasons, this petition fails and is hereby rejected. I may only say that if the petitioner is entitled to compassionate pension, or any other benefits, then the same shall be granted to her in accordance with law and an appropriate order, in that regard, shall be passed within a period of four weeks from the date of a receipt of the writ of this order.
(J.B.PARDIWALA, J.) chandresh Page 17 of 17 HC-NIC Page 17 of 17 Created On Fri Oct 09 02:10:30 IST 2015