Gujarat High Court
State Of Gujarat And Ors. vs Vinubhai Maganlal Thakkar on 22 March, 1991
Equivalent citations: (1991)2GLR837
Author: G.N. Ray
Bench: G.N. Ray, S.B. Majmudar
JUDGMENT G.N. Ray, C.J.
1. This Appeal is directed against the judgment passed by the learned single Judge on 22nd November, 1989 in Special Civil Application No. 6660 of 1986. The respondent Vinubhai Thakkar moved a writ petition, challenging the legality and/or-validity of the order dated December 23, 1986, removing him from service, as contained in Annexure 'X' to the writ application. The learned single Judge allowed the writ application and set aside the order of removal, inter alia on the finding that the disciplinary proceeding was not conducted by following the principles of natural justice. It may be noted here that it is an admitted position that at the stage of second show cause notice, according to the principle followed by the Department, an opportunity of personal hearing was given to the respondent, viz, the delinquent officer. Such hearing was given before the Deputy Secretary, Revenue Department, Government of Gujarat, and it is also an admitted position that under the rules of business applicable to the Revenue Department, it was the Minister-in-charge of the Revenue Department, who had to take the decision in case of a disciplinary action against a Class I Officer. The respondent herein, being a Deputy Collecor, was a Class I Officer and, therefore, the Minister-in-charge of the Revenue Department had to take a decision in the disciplinary proceeding initiated against the said Deputy Collector. Since the personal hearing was given before the Deputy Secretary, Revenue Department, and the decision was taken by the Minister-in-charge of the Revenue Department, the learned single Judge, relying on the decision of the Supreme Court made in the case of G. Nageswar Rao v. A.P.S.R.T. Corporation, , inter alia came to the finding that the disciplinary authority, having decided to give personal hearing to the petitioners, should not have left to the Deputy Secretary the task of giving personal hearing and such divided responsibility was destructive of the concept of judicial hearing, as indicated by the Honourable Supreme Court. In that view of the matter, the learned single Judge did not enter into consideration of other contentions raised in the writ application and made the rule absolute, by setting aside the order of removal from service. Being aggrieved by such decision of the learned single Judge, the instant appeal has been preferred by the State of Gujarat and other Officers of the Government of Gujarat.
2. The learned Counsels appearing for both the parties have submitted before us that the disciplinary proceeding was initiated in respect of raid of the shop of one Shri Zaverchand Gafurchand Desai on 16th of April, 1974, and the disciplinary proceeding was concluded on 23rd December, 1986 by passing the said order of removal of Shri Thakkar from service and since said Shri Thakkar is out of employment for a long time, the Court of appeal should consider the case on all the points raised in the writ petition and even if the Court of appeal is not inclined to uphold the decision of the learned single Judge on the sole ground that the principle of natural justice was violated and proper hearing had not been given because the Minister-in-charge passed the impugned order of removal from service although personal hearing was given before the Deputy Secretary of the Revenue Department, the Court of appeal should not send the case back on remand before the learned single Judge for rehearing on the other issues raised in the writ petition and in the facts and circumstances of the case, it is only desirable that the Court of appeal should consider all the points raised in the writ petition, including the point on which the learned single Judge had allowed the writ petition. As it appeared to us that such submission was just and proper in the facts of the case, we have taken into consideration the other points raised in the writ petition, along with the point taken into consideration by the learned single Judge.
3. The short facts concerning the instant appeal, are that the respondent (writ petitioner Shri Thakkar) was the Deputy Collector in-charge of essential supplies and was posted at Bharuch at the relevant time, viz., in April, 1974. On receiving information that in Village Vinchhiad, Taluka Vagra, in Bharuch District, provisions of Essential Commodities Act were violated, the said Deputy Collector, along with the Mamlatdar and Circle Inspector, raided the shop of Shri Zaverchand Gafurchand Desai. A Seizure List or Panchnama was prepared by the said Deputy Collector. It is the case of the department that, initially, a panchnama was prepared, wherein it was indicated that some unaccounted for essential commodities were found in the said shop of Shri Desai, but having accepted a bribe of Rs. 500/- such panchnama was cancelled and the second on was prepared, wherein the said Articles were not noted. The charge levelled against Shri Thakkar may be stated as hereunder:
When they raided the shop of Shri Zaverchand Gafurchand Desai of Vinchhiad, Tal. Vagra, Dist. Bharuch, they seized the objectionable stock Articles from his shop, but after accepting a bribe from him, they prepared a false panchnama and declared the Articles as unclaimed property. They are thus guilty of grave misconduct amounting to lack of integrity.
It may be mentioned here that, along with Shri Thakkar, the Mamlatdar, was also charge-sheeted and the same charge-sheet was also issued to him. There has been a joint trial of both the said persons. The Mamlatdar, however, has not been removed from service. The delinquent officer Shri Thakkar contended, inter alia, that no second panchnama was prepared and, in any event, he was not present when the alleged first panchnama was prepared. When the panchnama was prepared in his presence the alleged Articles had not been found in the shop of said Zaverchand Desai, but such Articles were found in the open space (otla) of the adjoining house of the neighbour. Such neighbour was not in the house and the house was under lock and key. As nobody made a claim on the said Articles found on the otla of the house of the said neighbour, a proper report was made about the said unclaimed goods and following the usual procedure, by giving proper notice, such goods were disposed of by public auction and the sale proceeds were deposited to the credit of the Government. The delinquent officer denied any involvement in the allegation of changing the panchnama by accepting bribe and the case of acceptance of bribe was also denied by him. The Departmental Enquiring Officer submitted a report, inter alia, on the finding that the charge against Shri Thakkar was proved and was believed to have been established. As aforesaid, an opportunity of personal hearing was given to the delinquent officer before imposing any penalty and such hearing was given by the Deputy Secretary of the Revenue Department, who submitted a report, and on the basis of such report, the Minister-in-charge of the Revenue Department passed the impugned order of removal from service. It appears that none of the witnesses examined in the disciplinary proceeding had stated that the Delinquent Officer had accepted the said bribe. It may be mentioned here that an account book for the said business of Zaverchand maintained by Shri Zaverchand was seized and there was an endorsement to the effect that he had paid bribe of Rs. 500/- on the previous day to the Mamlatdar in the presence of some persons, including the Sarpanch. Curiously enough, although strong reliance was placed on such endorsement in the account book maintained by Shri Zaverchand, the independent witnesses referred to in the said account book witnessing acceptance of bribe by the Mamlatdar, including the Sarpanch of the village, had not been examined by the Department. Zaverchand was examined, but he denied offer of any bribe either to the delinquent officer or to the Mamlatdar. So far as the alleged first panchnama is concerned, it may be noted that an unsigned report stated to have been written by the Circle Inspector Shri Saiyad was found, wherein it was mentioned that the Articles, which were noted in the panchnama or seizure list made by the delinquent officer, viz., The Deputy Collector, were admitted to be the goods belonging to the said Shri Zaverchand. No attempt was made by the Department to examine any witness to establish that such incomplete panchnama had been prepared in the presence of the delinquent officer or at his instance, the same was replaced by preparing a second panchnama duly signed by Shri Zaverchand and witnesses to the said panchnama. Nome of the witnesses examined in the departmental proceeding has stated that the said bribe was offered to the Deputy Collector Shri Thakkar and as aforesaid, the endorsement in the account book of Shri Zaverchand only indicated that he had offered the bribe to the Mamlatdar. The learned Counsel appearing for the appellant has contended that in the departmental proceeding, the strict requirement of proof as in the case of criminal trial is not necessary. If on the broad facts established in the departmental proceeding it is possible to draw a reasonable inference, the disciplinary authority is quite entitled to draw such reasonable inference and if one view or the other is also possible on the evidences adduced in the disciplinary proceeding and a view has been taken by the disciplinary authority, the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, should not reconsider the evidences on merit and should not make any attempt to weigh such evidences for the purpose of making an independent finding of its own. The High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India does not act as an appellate authority and as such, any exercise to scrutinise the evidences for the purpose of making an independent finding will be wholly unwarranted. Such attempt has been deprecated by the Supreme Court in a number of decisions and our attention has been drawn to a very recent decision of the Supreme Court, made in the case of State of Maharashtra v. Madhukar Narayan Mardikar . The Supreme Court has held in the said decision that the High Court erred in embarking upon reappreciation of the evidence since the High Court was not sitting in appeal against the decision of the departmental authorities. Mr. Mehta, learned Assistant Government Pleader, appearing for the appellants, has stated that although the first panchnama was not signed by the parties and, therefore, it was only an unsigned report, the said panchnama or unsigned report was admittedly written by the Circle Inspector Shri Saiyad and the goods, which were stated to have been found on the otla of the house of the neighbour and were noted as unclaimed goods, were mentioned in the first report or panchnama as belonging to Desai. He has also contended that when the Deputy Collector and/or the Prant Officer was the superior officer conducting the raid, it must be presumed that he was present from the very beginning and when the first report was prepared by the Circle Inspector, he must be presumed to be present at the time of preparing the said unsigned report or panchnama. As such, there was no occasion to prepare a panchnama later on. The very fact of preparation of a panchnama in a different manner, showing the goods in question being not found in the shop of Zaverchand appears to be the result of a later decision and the case, that such improper panchnama prepared at a later stage was the outcome of bribe received by the Deputy Collector, should be accepted. He has contended that acceptance of bribe is seldom proved by direct evidence, but from the attending facts and circumstances, a reasonable inference about acceptance of bribe can be made. He has submitted that in the account book of Zaverchand, offer of the bribe of Rs. 500/- was mentioned, and it is immaterial whether he denied of offering such bribe when he was examined in the departmental proceeding. In the context of cancelling the first panchnama and preparation of the second in a different manner, the case of acceptance of bribe of Rs. 500/- by the Deputy Collector can be reasonably inferred and if the disciplinary authority on such inference has come to the finding that the case of misconduct in accepting the bribe has been established, no interference is called for by this Court. Coming to the case of not giving reasonable opportunity of being heard, Mr. Mehta has contended that the departmental proceeding was conducted fairly and reasonably and such departmental proceeding was conducted after giving the Deputy Collector all reasonable opportunities of being heard. The witnesses were examined in his presence and chances to cross-examine have also offered to him. Several dates were fixed for giving an opportunity of hearing to the delinquent officer in the said departmental proceeding, but he chose not to appear on such dates. In the circumstances, it cannot be contended that the disciplinary proceeding was vitiated for not giving reasonable opportunity of being heard to the delinquent officer during the enquiry. Mr. Mehta has also contended that there is no statutory rule requiring that the delinquent officer should be given a personal hearing at the stage of second show-cause notice, but when it was proposed to impose a major penalty, as a policy decision, it was decided to give a personal hearing to the delinquent employee if he would ask for such personal hearing. As the Deputy Collector expressed a desire to get a personal hearing, such opportunity was given to him. Mr. Mehta has contended that such opportunity was purely ex gratia and not on the basis of any statutory rule. He has contender that as a matter of policy, in all cases, the Minister-in-charge never gives personal hearing, but the superior departmental officer is entrusted with such personal hearing and on the basis of the note prepared by such departmental officer and on perusal of the records of the disciplinary proceeding, the Minister-in-charge takes the ultimate decision in the disciplinary proceeding. No exception has been made in the instant case and the report the Deputy Secretary, before whom personal hearing was given, was perused and considered by the Minister-in-charge and the ultimate order of removal from service was passed by the Minister. He has submitted that in the aforesaid facts and circumstances, there was no question of dereliction of duty of the disciplinary authority in the matter of giving proper hearing. He has contended that the learned single Judge failed to appreciate the facts and circumstances of the case and he has relied on the Supreme Court decision referred to hereinbefore although the decision is not applicable in the facts of this case. Mr. Mehta has contended that in the case decided by the Supreme Court since relied on by the learned single Judge, there was a statutory requirement of a particular authority to give a hearing and to decide the case, but admittedly, a different authority had given the hearing, but the statutory authority ultimately took the decision. It was in that context the Supreme Court had indicated that the requirement of hearing could not have been split and such splitting of hearing and decision between two authorities had resulted in failure of justice. In this connection, Mr. Mehta has referred to a decision of the Supreme Court made in the case of Ossein and Gelatine Mfg. Association v. Modhi Alkalies and Chemicals Ltd. . The Supreme Court has held in the said decision that where proceeding is not in the nature of formal judicial proceeding, there is nothing wrong if objections were heard by one officer and approval is given by another officer of the Government. Relying on the said decision, Mr. Mehta has contended that it is the decision of the Government and when the decision is to be made institutionwise it is immaterial which of the officers of the institution gives hearing. He has contended that in Nageswar Rao's case since relied on by the learned single Judge, it was found that there was a statutory requirement that the concerned officer should take a decision by giving a hearing. It was only in that context it was held that hearing could not have been given by any other officer, who was not required to decide. Mr. Mehta has also referred to a decision of the Calcutta High Court made in the case of District Controller of Stores, Eastern Railway v. Ram Govinda . It has been held in the said decision that it is not a Constitutional requisite to give a personal hearing at the stage of second show cause notice before imposing actual punishment. It has been held that "reasonable opportunity" under Article 311(2) should be given to the person concerned to show cause against the action proposed to be taken against him and if a second show cause notice to impose penalty is issued and an opportunity to show cause is given, the Constitutional requirement is fulfilled. Hence, removal of the Railway servant from service does not become unconstitutional simply by the reason that no personal hearing was given to him at the stage of second show cause notice when he had the fullest hearing in the departmental enquiry. Mr. Mehta has contended that even if it is assumed that the ex gratia personal hearing was not properly given, for any lapse in giving such personal hearing properly, the departmental proceeding cannot be vitiated and no statutory provision or requirement under the Constitution has been breached. Mr. Mehta has also referred to a decision of the Bombay High Court made in the case of Bijay Kalipada Mukharji v. Corporation of City of Nagpur reported in ILR 1959 Bombay 215. In the said decision, it has been held that where a special committee has been appointed to enquire into the charges against the officer and he was given an opportunity to be heard by the special committee and on the basis of the report submitted by the special committee, the Corporation took action against its officer, there was no violation of the principles of natural justice. Mr. Mehta has contended that as the ex gratia personal hearing given to the delinquent officer was not any judicial hearing or any statutory hearing, it cannot be contended that the punishing authority is under an obligation to give such personal hearing and he cannot decide on the basis of the report made by a Senior Officer before whom the personal hearing was made. He has, therefore, submitted that the learned single Judge should not have allowed the writ petition simply on the ground that as proper personal hearing had not been given to the writ petitioner, the impugned order of removal from service could not be sustained in law. Mr. Mehta has also referred to other decisions of different High Courts for the purpose of showing the personal hearing by the authority imposing punishment is not always incumbent. We need not refer to such decisions and dilate on this aspect for the reasons stated hereafter. Mr. Mehta has contended that the delinquent officer, in the instant case, is a very Senior Officer, viz. Deputy Collector, and he has been found to be guilty of the charge of misconduct by accepting bribe to show undue favour to the shop-owner, in complete derogation of the duties and responsibilities cast on him. In such circumstances, the punishment of removal from service is only just and proper and no interference is called for by the writ Court against the said decision.
4. Mr. B.P. Tanna, learned Counsel appearing for the respondent, has, however, contended that although there is no statutory requirement to give another personal hearing at the stage of second show cause notice, if the State Government has formed a policy decision to give such hearing the State Government must be bound by such policy. Hence, the personal hearing required under a policy decision must be a proper personal hearing by the disciplinary authority. He has submitted that the Government cannot be permitted to contend that although as a policy decision, a personal hearing is required to be given, even then if such proper personal hearing has not been given in contravention of the policy decision, the order of removal must be upheld as valid. He has contended that the very purpose of personal hearing is to give the delinquent an opportunity to ventilate his viewpoints before the disciplinary authority. If the disciplinary authority had no occasion to hear the delinquent employee, the very purpose of personal hearing is frustrated. He has submitted that before the Enquiring Officer, a hearing had taken place and a report was submitted by the Enquiring Officer. Despite such report, as a policy decision, it has been decided by the Government that the disciplinary proceeding should not be concluded for imposing a major penalty without giving the delinquent employee an opportunity of personal hearing, if he so desires. Admittedly, the delinquent employee had expressed a desire of personal hearing but such personal hearing was not given to him. If a decision for personal hearing has been taken, such hearing must be given in the proper manner and it can never be permitted that a different officer will give a hearing and another authority will take a decision on the basis of such hearing. He has submitted that the decision of the Supreme Court, as made in Nageswar Rao's case, therefore, squarely applies in the facts of the case and the learned single Judge was justified in relying on the said decision and in holding that in the absence of a proper hearing being given to the delinquent officer, the impugned order of punishment cannot be sustained in law. Mr. Tanna has also contended that in the instant case, there is no evidence adduced in the disciplinary proceeding on the basis of which a finding can be made about the complicity of Shri Thakkar in accepting the said bribe and in changing the panchnama for showing undue favour to the said Shri Zaverchand. He has submitted that there was no evidence, either direct or circumstantial, from which even a reasonable inference can be drawn that the Deputy Collector was present at the time of preparation of the unsigned report and/or panchnama and at this instance, a panchnama alleged to be the second panchnama was incorrectly prepared. There is also no evidence, either direct or circumstantial, from which it can be held reasonably that any bribe was offered to him and/or he had occasion to accept the same. Mr. Tanna has submitted that reasonable inference from the facts established can always be drawn and in the disciplinary proceedings, the rigour of proof as required in a criminal trial is not necessary, but even in the departmental proceeding, the fact for basing the finding is required to be established. There must be evidence, either direct or circumstantial, for establishment of such fact. No finding can be permitted in a departmental proceeding simply on the basis of surmise or conjecture. He has submitted that if the report of the enquiring officer and the decision of the disciplinary authority are referred to, it will be quite evident that both the enquiring officer and the disciplinary authority simply proceeded on the basis of surmise and conjecture. Referring to the report of the enquiring officer. Mr. Tanna has contended that the enquiring officer has proceeded on the footing that since the Deputy Collector was the senior-most officer in the matter of raiding the said shop and conducting search and seizure, it was his duty to remain present from the very, beginning and if he was not present at the time of preparation of the unsigned report, which is stated to be the first panchnama, he failed in his duty in order to involve a subordinate officer and to escape from his responsibility. Mr. Tanna has contended that such finding of the enquiring officer is not warranted by any evidence, but it is in the realm of surmise and conjecture. He has drawn the attention of the Court to the finding of the enquiring officer to the following effect:
The first panchnama also had been drawn by him and the said papers would have been kept in his possession and possibility cannot be denied that later on, after preparing another panchnama, he might have taken signatures of the subordinate officers and staff.
Mr. Tanna has contended that such finding of the enquiring officer is absolutely perverse and is based on surmise and conjecture, without any evidence whatsoever. He has contended that the unsigned report stated that the first panchnama was written by the Circle Inspector Shri Saiyad. There is no evidence to the effect given by Shri Saiyad that such report was prepared in the presence of the Deputy Collector or at his instance, the said report was not made a panchnama and a separate panchanama was prepared. No witness has stated that the first report was prepared in the presence of the Deputy Collector and the same was changed at his instance. He has submitted that there was no charge of dereliction of duty. Even if it is assumed that the Deputy Collector should have been present from the very beginning when the raid was made and he should not have reached late and for such lapse, the charge of dereliction of duty could have been brought againt him, no such charge was levelled against the delinquent officer. The only charge which was levelled against the delinquent officer was the charge of misconduct in accepting bribe for changing the first panchnama by repleacing it by a second panchanama. Mr. Tanna has also contended that it is curious that the first unsigned report, which is alleged to be a panchnama, has been kept with the records. If the Deputy Collector had ever intended to change the first panchnama by replacing it by the second one on acceptance of bribe, the said unsigned report would not have been kept with the record and such report is expected to be destroyed by him. The very presence of the said unsigned report, therefore, reveals that there was no occasion for him to prepare the first unsigned report to be replaced by the panchnama subsequently prepared and/or to know about such report. Mr. Tanna has also drawn the attention of the Court to the decision of the disciplinary authority. It appears that the disciplinary authority has relied on the statement given by one of the Government witnesses Shri Ahmedibhai given before the Anti-Corruption Bureau. It appears that the deposition of the said Ahmedibhai in the departmental proceeding is not in conformity with the deposition and/or the statement given before the Anti-Corruption Bureau. The disciplinary authority has relied on the statement made before the Anti-Corruption Bureau and has held that the deposition given by the said Shri Ahmedibhai in the disciplinary proceeding seems to have been given under great pressure. Mr. Tanna has contended that behind the back of the delinquent officer, the disciplinary authority should not have relied on the alleged statement given by one of the witnesses before the Anti-Corruption Bureau. Reliance on such statement made by one of the witnesses before the Anti-Corruption Bureau without disclosing the same to the delinquent officer has occasioned to a grave failure of justice, violating all principles of fair play and natural justice. Mr. Tanna has also contended that as the fact of giving Rs. 500/- as bribe was noted in the account book of Zaverchand, the disciplinary authority has come to the finding that Shri Thakkar has accepted the bribe. He has submitted that the endorsement in the said account book does not mention the name of Shri Thakkar, but mentioned the name of the Mamlartdar Shri Joshi and it is also mentioned that such bribe was given in the presence of independent persons, including the Sarpanch on previous day. The department has not cared to examine any of the witnesses and there is no evidence, indicating that the bribe was paid to Shri Thakkar. Mr. Tanna has contended that as unclaimed stocks were found in the otla of the house of the neighour of Zaverchand, the disciplinary authority proceeded on the footing that such goods really belonged to Zaverchand and as such goods were not mentioned in the panchnama prepared by the Deputy Collector, the malpractice committed by Shri Thakkar must be held to have been established. Mr. Tanna has submitted that such finding is absoloutely on the basis of surmise and conjecture and in absence of any evidence. He has contended that if there is no evidence whatsoever and a finding is made simply on the basis of surmise and conjecture, such finding must be held to be a perverse finding and/or no finding at all. In the aforesaid circumstances, the writ Court is quite within its power to hold that the departmental proceeding is vitiated because the punishment is based on no evidence at all. Mr. Tanna has also contended that a joint trial has been made, both against Shri Joshi, the Mamlatdar, and also against the Deputy Collector and the evidence of the Mamlatdar has been relied against Shri Thakkar, viz., the Deputy Collector. He has contended that the charge of acceptance of bribe was also made against said Shri Joshi and if any statement has been made by him in denial of such acceptance, the same cannot be relied for drawing any adverse inference against Shri Thakkar. In the facts of the case, Mr. Tanna has contended that the joint trial has vitiated the disciplinary proceeding. He has also stated that, admittedly, on the last date of departmental hearing, the delinquent officer did not get any opportunity of being heard because, admittedly, the notice of such hearing was received by him long after the date fixed for hearing. But without giving him any further opportunity by fixing another date, the enquiring officer completed the departmental enquiry and submitted a report against the delinquent officer. Mr. Tanna, has therefore, submitted that even on merits, the disciplinary proceeding must be held to be illegal and void.
5. After considering the respective contentions of the learned Counsels appearing for the parties, it appears to us that, in the instant case, there is no evidence whatsoever against the Deputy Collector, indicating that the unsigned report, which is alleged to be the first panchnama, was prepared in his presence and/or at his instance, the same was not completed, but a panchnama was subsequently prepared by him. It may be noted here that the Deputy Collector's case was that in his presence only one panchnama was prepared and he did not witness preparation of any other report. It may also be noted here that there is no charge against the delinquent officer on account of dereliction of duty in not remaining present from the very beginning of the raid by Mamlatdar and others, but the only charge that has been levelled against him is the misconduct on account of accepting bribe. None of the witnesses have stated about the offer of the said bribe to the Deputy Collector. Even in the account book maintained by Shri Zaverchand, there is no reference about payment of bribe to the Deputy Collector. On the contrary, it has been mentioned that such bribe has been paid to the Mamlatdar in the presence of independent persons, named in the said endorsement and one of the persons, witnessing the alleged offer of bribe of Rs. 500/- was the Sarparch of the village. Strangely enough, the Department chose not to examine any of the said persons. It is an admitted position that the first unsigned report was prepared by the Circle Inspector. The said Circle Inspector was not even asked as to whether the goods referred to in the said unsigned report were admitted by Shri Zaverchand as his goods. It may be noted here that the goods in question were found on the otla of the house of neighbour. As such goods were unclaimed goods, the same were ultimately auctioned, after due publicity. Since the department had been contending that the said unclaimed goods were, in fact, found in the shop of Zaverchand and on that basis, an unsigned panchnama was initially prepared, it was only expected that the department had taken care to have some evidence to the effect that the goods, in fact, had been found in the shop of Zaverchand and/or he had admitted about the possession of the said goods in the presence of Deputy Collector when the Circle Inspector had prepared the unsigned report, or the Deputy Collector was aware of such admission by Zaverchand. Unfortunately, no such step was taken by the department to bring any evidence to the aforesaid effect. There is no manner of doubt that in the departmental proceeding, strict requirement of proof, as in the case of a criminal trial, is not necessary and on a broad view of the matter, a reasonable inference can be drawn on the basis of the evidence adduced in the proceeding. In the instant case, however, there is no evidence whatsoever on the basis of which an inference can be reasonably drawn that the Deputy Collector was present at the time of preparation of the unsigned report and/or he had prepared a false panchnama, contrary to the said unsigned report, with full knowledge. There is also no evidence whatsoever, from which any reasonable inference can be drawn that a bribe of Rs. 500/- was offered to him. If a Mamlatdar accepts a bribe and does not complete the first panchnama and thereafter, when the Deputy Collector comes the panchnama is prepared, there cannot be any occasion to have a reasonable inference that the second panchnama was prepared at the instance Of the Deputy Collector by accepting bribe to show a favour to the shop-owner. We have already indicated that there is no evidence to indicate that when the Deputy Collector was present in the shop, the goods in question, which were, later on, stated to have been found on the otla of the house of neighbour, in fact, were found in the shop of Zaverchand. If the Deputy Collector was late in arriving at the said shop, he may be charged for dereliction of duty for not remaining present from the very beginning, but unfortunately, there was no such charge of dereliction of duty levelled against him. We are not oblivious of the legal position that the writ Court is not a Court of appeal and as such, is not competent to re-appreciate the evidence and to take one view of the other. If on the evidence adduced in a disciplinary proceeding, one view or the other is possible, either on the basis of direct evidence or on the basis of the reasonable inference drawn from the evidence adduced in the proceeding and a view has been taken by the disciplinary authority, there is no occasion for the writ Court to supplement its own finding on the scrutiny of the evidence adduced in the departmental proceedings. But if there is no evidence whatsoever, on the basis of which even a reasonable inference of fact can be drawn, and the finding rests purely in the realm of surmise and conjecture, then the law is well settled by the Supreme Court that the requirement of evidence cannot be substituted by surmise and conjecture. Suspicion cannot be permitted to take the place of the requirement of proof or evidence in support of the department's case. If the finding has been made on pure surmise and conjecture, in the absence of any evidence whatsoever, such finding must be held to be perverse and not sustainable in law. In such circumstances, the writ Court will be justified to interfere. We are, therefore, inclined to hold that the impugned punishment is vitiated on the ground of perverse finding in the absence of any evidence, supporting the finding about the complicity of the delinquent officer. On that score alone, the Special Civil Application should be allowed. It also appears to us that on the last date of hearing, the delinquent officer had no occasion to appear at the hearing because, admittedly, he did not get any notice before the said date of hearing. But the hearing was concluded by the enquiring officer without giving him such opportunity of being heard and against him the enquiring report was submitted. The departmental enquiry has also not been properly conducted in view of the fact that a statement of one of the witnesses for the department, alleged to have been made before the Anti-Corruption Bureau was relied on by the disciplinary authority without disclosing the same to the delinquent officer and/or without giving him any opportunity to explain the same. In that view of the matter, the impugned order of punishment of removal from service cannot be sustained in law and the ultimate decision of the learned single Judge, quashing the impugned order of punishment must be upheld and we hold accordingly. In view of such decision, it is not necessary to go into the question as to whether or not the requirement of personal hearing was complied with even if the hearing was given by the Deputy Secretary and ultimate decision was given by the Minister-in-charge of the concerned department. Such question is kept open and the decision of the learned single Judge on this aspect stands modified to that extent. It may be noted here that Mr. Tanna has also submitted that the writ petitioner does not intend to press the point of improper personal hearing given to the writ petitioner if on other points the Court comes to the finding that the impugned order is not otherwise sustainable in law. He has also submitted that if the Court of appeal holds that the impugned order of removal from service is otherwise bad and illegal and the ultimate decision to that effect by the learned single Judge is upheld, the appeal Court may give such direction about backwages as may appear to the appeal Court to be just and proper and the writ petitioner is prepared to accept lesser amount of back wages, if, in the special fact of the case, such direction is warranted.
6. Considering the aforesaid submissions of Mr. Tanna, we direct that the impugned order of removal from service being not sustainable in law for the reasons indicated hereinbefore, the same would stand quashed and the writ petitioner should be reinstated by maintaining the continuity in service but he will be entitled to half of the back wages and other emoluments as would have been payable to him in the absence of the impugned order of removal from service from the date of impugned order of removal from service till the date of the judgment. We are giving such direction for payment of half of the backwages and other emoluments in view of the fact that if the Deputy Collector would have been more vigilant and had not allowed the Mamlatdar and others to raid the shop before his arrival, question of preparation of the unsigned panchnama or acceptance of any bribe for giving an opportunity to change such panchnama would not have arisen. Let the writ petitioner be reinstated in service and payment in terms of this judgment be made to the writ petitioner-respondent as early as practicable but not beyond a period of six weeks from this date. In the facts of the case there will be no further occasion to proceed with the departmental enquiry.
7. The appeal is accordingly disposed of without any order as to costs, modifying the judgment of the learned single Judge to the extent indicated in this judgment.