Gujarat High Court
H R Iyer vs State Of Gujarat & on 22 April, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/1189/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1189 of 2013
In SPECIAL CIVIL APPLICATION NO. 23316 of 2007
With
CIVIL APPLICATION NO. 10897 of 2013
In
LETTERS PATENT APPEAL NO. 1189 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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H R IYER....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Appellant(s) No. 1
MR NJ SHAH AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
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Page 1 of 13
C/LPA/1189/2013 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 22/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellant has preferred this appeal against the judgment and order dated 12.9.2013 passed by the learned Single Judge whereby the petition has been dismissed.
2. We have heard Mr. Vaibhav A. Vyas learned advocate for the appellant, Mr. Premal Joshi learned advocate for respondent no. 2 and Mr. N.J. Shah learned AGP for respondent no. 1.
3. The facts of the present case are that the appellant had joined the service as Government Labour Officer on 2.3.1982. He was issued a show cause notice dated 18.7.2005 whereby the appellant was called upon to show-cause as to why the disciplinary proceedings under the Gujarat Civil Service (Discipline and Appeal) Rules 1971 be not initiated for the alleged misconduct. That the basis of issuance of the said notice was a complaint given by one Dr. Madhvi J. Sheth of Govind Clinic against the appellant, wherein, she had alleged that the appellant had filed two criminal cases against her under the provisions Page 2 of 13 C/LPA/1189/2013 JUDGMENT of Minimum Wages Act, though the said clinic had kept necessary record and the appellant was intentionally harassing the complainant. The appellant submitted his reply to the show cause notice on 2.8.2005. Thereafter, the appellant was served with a charge dated 27.9.2006 for the misconduct alleged to have been committed by the appellant. The charge against the appellant was that of filing false cases against the complainant and that the appellant was discourteous towards the complainant. The appellant denied the charge and responded to the charge vide his defence statement dated 14.11.2006. Thereafter, the appellant was called for personal hearing on 18.1.2007. On 12.3.2007 the appellant submitted further reply in view of the fact that the original complainant Dr. Madhavi J. Sheth had pleaded guilty in the Criminal Cases registered against her by the present appellant and was therefore held guilty of commission of offences punishable under sec. 22, 26(5), 26(1), 26(2) of the Minimum Wages Act. The appellant also produced the copy of the judgment and order of conviction dated 8.3.2007 passed by the learned Judicial Magistrate First Class, Court No. 4, Vadodara. That after considering the aforesaid judgment and order of conviction passed against the original complainant Dr. Madhavi J. Sheth, the charge no. 1 levelled against the appellant was held to be not proved, however, having regard to the Page 3 of 13 C/LPA/1189/2013 JUDGMENT statement of Dr. Madhavi J. Sheth, the appellant was held guilty of charge no. 2 of being discourteous to her at the time of taking inspection, and accordingly, the respondent authority passed the impugned punishment order, whereby, one increment of the appellant has been ordered to be stopped without future effect.
4. Learned advocate Mr. Vyas for the appellant has submitted that the learned Single Judge has failed to appreciate that so far as the merits of the charge against the appellant is concerned, it is the case of the appellant that the same is baseless, more particularly, in view of the fact that the basis of the charge against the appellant does not survive in view of the fact that the original complainant Dr. Madhvi J. Sheth has been found guilty by the Court of competent jurisdiction. It is further submitted that the charge against the appellant is also not sustainable in view of the fact that the respondent authority while arriving at the conclusion of holding the appellant guilty, has not even bothered to examine the original complainant. Mr. Vyas further submitted that the learned Single Judge has failed to appreciate the fact that even the say of the complainant as reflected from the complaint itself would show that the appellant had not even met her and therefore the entire story of being discourteous to the complainant is a got up one. It is further Page 4 of 13 C/LPA/1189/2013 JUDGMENT submitted that in these circumstances, the impugned judgment and order of punishment,over and above being violative of principles of natural justice, is absolutely illegal, arbitrary, malafide and pervert. Mr. Vyas further submitted that the learned Single Judge has failed to appreciate that there has been perversity on the part of the Disciplinary Authority since the Disciplinary Authority has failed to take into consideration relevant material and has taken into consideration irrelevant material or such material which legally could not have been taken into consideration. It is further submitted that by relying upon the complaint of the complainant which was recorded behind the back of the appellant, the learned Single Judge has taken into consideration irrelevant material, which legally could not have been taken into consideration in view of the settled legal position that when a person is not examined, his statement could not be relied upon. It is submitted that while dismissing the petition, the learned Single Judge has quoted a paragraph from the affidavit-in-reply filed in Special Civil Application No. 8720 of 2008 though appellant was not a party to the said petition and therefore the learned Single Judge ought not to have taken into consideration something which is not even brought to the notice of the appellant. Further, the said fact was not at all relevant for the Page 5 of 13 C/LPA/1189/2013 JUDGMENT purpose of deciding the petition filed by the appellant. Mr. Vyas further submitted that there is no evidence against the appellant to hold the charges levelled against the appellant as proved, however, only on the basis of the assumption and presumptions the punishment order is imposed upon the appellant to prejudice the caseof the appellant for promotion on the postof Assistant Commissioner of Labour, Class-I, which is clearly evident from the file notings obtained by the appellant under the Right to Information Act, wherefrom, it is specifically revealed that the said punishment is imposed on the basis of assumption and presumption, and therefore, the impugned judgment and order passed by the learned Single Judge requires to be quashed and set aside.
5. Mr. N.J. Shah learned AGP appearing for the respondent no. 1 - State has submitted that the Government has considered the order dated 8.3.2007 passed by learned Judicial Magistrate First Class, Vadodara in the criminal case and has decided the charge no. 1 which is not proved, but the charge no. 2 is absolutely proved because Dr. Madhavi Sheth has represented to the Commissioner of Labour regarding misbehaviour of the appellant dated 11.9.2004. Mr. Shah has further submitted that the Commissioner of Labour has appointed Smt. A.A. Mehasaniya, Asstt.
Commissioner of Labour to inquire about the
Page 6 of 13
C/LPA/1189/2013 JUDGMENT
matter. Mr. Shah further submitted that Dr.
Madhvi Sheth and Dr. Smrutiben have stated in presence of Smt. Mehasaniya that Mr. Iyer had misbehaved with staff, and therefore, the order of punishment is not violated of principle of natural justice. Mr. Shah submitted that the disciplinary authority has taken into consideration all the relevant facts and documents and has rightly came to the conclusion that the appellant had misbehaved with the person of the Govind Clinic during his official duty, and therefore, the punishment imposed upon the appellant is just and proper and the present appeal deserves to be dismissed.
6. Mr. Premal Joshi learned advocate for respondent no. 2 has submitted that respondent Commission has consented to the recommendation forwarded by the State Government and the respondent Commission has to play a very limited role to the extent of consenting to keep the proposal in a sealed cover.
7. We have perused the papers and considered the rival submissions of both the parties. The fact that the lady doctor against whom the appellant had filed a complaint and the competent court had convicted her and she was punished with payment of fine. The order of the learned Single Judge on this premise itself cannot be sustained. The appellant's main grievance is that he is charge-
Page 7 of 13C/LPA/1189/2013 JUDGMENT sheeted at the time when his promotion became due. The inquiry started at the behest of a convicted doctor which had culminated into
stoppage of one increment without future effect. The scenario made out by the learned Single Judge that it was a gruesome act of the appellant to have barged in the hospital and had shown discourteousness towards lady doctor being proved. The fact that the first charge did not reveal any of such fact itself go to show that it was an after-thought by the said lady doctor, at whose premises, the appellant had gone to have surprise visit. Hence, the impugned judgment and order of the learned Single Judge cannot be sustained and the same deserves to be quashed and set aside as the inquiry itself was bad.
8. The next question now that emerges is whether the inquiry held against the appellant and the punishment inflicted requires interference by this Court. On the factual back ground which we have narrated hereinabove and the principles of service jurisprudence would permit us to quash the punishment. The allegation no. 2 reads as follows:
"When on 11.8.2004, Shri H.R. Iyer, Government Labour Officer, Class-2, had made the inspection of the clinic of Dr.Madhvi Sheth, being Govind Clinic, Raopura, Vadodara, at the time of taking a statement during the inspection proceedings at the time of legal Page 8 of 13 C/LPA/1189/2013 JUDGMENT procedures at the organization of Dr. Madhvi J. Sheth, Goving Clinic, Raopura, Vadodara, he had used rough language. In view of the complaint of the applicant in this respect, its explanation has been obtained vide letter dated 28.10.2005 and by taking into consideration the same, though the records were maintained as per the Rules and Regulations and inspite of following the laws applicable, he has intentionally misused his powers and has caused harassment to the applicant. In this manner, he has violated the provisions of Sub Rule [3] of Rule-3[1] Part of the First Part the Gujarat State Services (Conduct) Rules, 1971 for which he is responsible."
9. The Hon'ble Apex Court, in the case of Roop Singh Negi vs. Punjab National Bank & Ors., reported in (2009)2 SCC 570, in para-15 has held as under:
"15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry Page 9 of 13 C/LPA/1189/2013 JUDGMENT officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."
10. It is to be noted that the place of inspection and the owner, i.e. Dr. Madhvi had accepted before the Court of competent jurisdiction that she was guilty and fine was imposed upon her. This itself show that there was no record maintained, and therefore, allegation no. 2 itself false and no inquiry could have been held against the appellant. The reply filed by the present appellant speaks volumes abut the behaviour of Dr. Madhvi Sheth who did not even cared to appear before the raiding officer, i.e. the present appellant. One Dr. Smrutiben Shah talked to the appellant. However, it is clear from the order passed by the learned Judicial Magistrate First Class, Vadodara, whereby, the complainant has been convicted and imposed fine. Despite that, the appellant has been held guilty so far as allegation no. 2 is concerned and the following order has been passed:
"In view of the Departmental Inquiry against Shri H.R. Iyer, Government Labour Officer, Class-2, the punishment of stopping one increment without future effect in his next ensuing increment becoming due in the pay of Shri H.R. Iyer, Government Labour Officer, Class-2 Page 10 of 13 C/LPA/1189/2013 JUDGMENT is being awarded to him.
11. It is very clear from the reply of the appellant that the doctor had never met him, and therefore, asper the service jurisprudence, this Court would be loath in interfering with the finding of the Inquiry Officer but unless they are perverse. In this case, the order itself, it is clear that the allegation no.1 is not proved. It goes without saying that just because the appellant had lodged the criminal case, as a counter blast, the lady doctor had come out with a case of misbehaviour. The doctor is not before us, but her letter dated 11.9.2004 shows that it is an after thought. Para-7 of the said letter reads as follows:
"(7). He came for inspection when I was in operating theatre. He did not have the decency to wait for me. He spoke to my junior staff who was frightened out of her wits. When my resident Doctor (Dr. Pooja) & anaesthetist (Dr. Smruti) spoke to him, he has disregarded their explanation & gone on to write whatever he felt to the contrary."
12. From the letter of lady doctor, it is very clear that the appellant had not met the lady doctor. As she is not before us, we do not propose to say anything. On the touch-stone of Page 11 of 13 C/LPA/1189/2013 JUDGMENT the decision of the Apex Court and the principle enunciated, it becomes clear that the findings of the Inquiry Officer holding the appellant guilty is arbitrary, erroneous and based on no material for the reasons we have noted hereinabove. It appears that the projection before the learned Single Judge on the basis of the papers and on the superficial reading, the learned Single Judge has held that this is a gross case where lady doctor and lady staff have been absed but if the evidence is read and scrutinised, the entire edifice of the departmental proceeding will fail as held by us. The submissions made before the learned Single Judge evenif we consider to be edified, it cannot take the caseof the State for non-issuance of writ, and in our view, having gone through the entire reply and the submissions made, they are edentulous and the case of the State can go no further. The learned Single Judge seems to have fallen in error in holding that the appellant had misbehaved with the lady doctor, and therefore, the order of the Inquiry Officer and the learned Single Judge requires to be quashed and set aside.
13. In the result, this appeal is allowed. The impugned judgment and order of learned Single Judge dated 12.9.2013 in Special Civil Application No. 23316 of 2007 and the order of punishment dated 18.7.2007 are quashed and set aside.
Page 12 of 13C/LPA/1189/2013 JUDGMENT 14. As the main appeal is allowed, Civil
Application No. 10897/13 is disposed of.
(V.M.SAHAI, J.) (K.J.THAKER, J) mandora Page 13 of 13