Gujarat High Court
Arvind Mohanbhai Hadiyal vs Union Of India Through Secretary & 4 on 25 July, 2014
Bench: Vijay Manohar Sahai, A.G.Uraizee
C/SCA/13633/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13633 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
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 NO
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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ARVIND MOHANBHAI HADIYAL....Petitioner(s)
Versus
UNION OF INDIA THROUGH SECRETARY & 4....Respondent(s)
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Appearance:
Mr Hasit Joshi for the Petitioner
DELETED for the Respondent(s) No. 4 5
Mr I.H. Saiyed, Addl. Solicitor General for the Respondents Nos. 1 3
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 25/07/2014
Page 1 of 11
C/SCA/13633/2012 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.G.URAIZEE) We have heard Mr Hasit Joshi, learned advocate for the petitioner and Mr I.H. Saiyed, learned Additional Solicitor General for the respondents.
2 The brief facts giving rise to the present petition are that the petitioner was appointed as Constable/GD by the Commandant as per Office Order No.7/EII/273/GCJ/SSB/91/2404 dated 8 th March 1994. He came to be served with the charge sheet for the following charges as per Memorandum dated 31st May 1992:
"ARTICLEI That the said No.90531 Const. (GD) Hadiyal Arvind of 'B' Coy GC SSB Jamnagar was deployed for NIP training in vill. Kaneri of Keshod Circle of SubArea Junagadh w.e.f. 4197. He was issued movement order by I/C Section Comdr. On 7197 (A/N) with the direction to report to Coy Comdr 'B' Coy at Junagadh. The individual inspite of reporting at Coy Hqr. Junagadh had wilfully absconded himself enroute to Junagadh on the same day. Thereby the said No.90531 Const (GD) Hadiyal Arvind committed an act of indiscipline, neglect of duty in his capactiy as a member of the force u/s 11 (1) of C.R.P.F. Act, 1949 and Rules 1955.
ARTICLEII That the said No.90531 Const. (GD) Hadiyal Arvind of 'B' Coy while wilfully absenting from NIP camp village Kaneri was arrested by Railway Police at Wankaner Railway Station on 11 011997 for unlawful activity and thus remained in judicial custody w.e.f. 120197 to 140197 as per report received from Railway Police, Rajkot vide letter No.227/1997 dated 24011997. Thereby the said No.90531 Const (GD) Hadiyal Arvind committed an act of indiscipline, misconduct in his capacity as a member of the force u/s 11 (1) of C.R.P.F. Act, 1949 and Rules 1955.Page 2 of 11 C/SCA/13633/2012 CAV JUDGMENT
ARTICLEIII That the said No.90531 Const. (GD) Hadiyal Arvind of 'B' Coy while arrested by Railway Police at Wankaner Railway Station for unlawful activities and thereafter remained in judicial custody w.e.f. 120197 to 140197, the individual thus failed to inform his arrest to G.C.Hqr. being a Govt. Servant, which is an act of prejudicial to good order and discipline in force. Thereby the said No.90531 Const (GD) Hadiyal Arvind failed to comply with the instructions and committed an act of indiscipline in his capacity as a member of the force u/s 11 (1) of C.R.P.F. Act, 1949 and Rules 1955."
3 Shri R.S. Kharyal, Coy Commander, GC, SSB, Jamnagar came to be appointed as Enquiry Officer to inquire into the charges levelled against the petitioner. After conclusion of the inquiry, the Inquiry Officer arrived at the following finding on each Article of Charges:
"6. FINDINGS ON EACH ARTICLE OF CHARGE:
Articles of charges 1 and 3 have been admitted by the accused during the course of his statement and also stand proved beyond doubt, on the basis of statements of prosecuting witnesses and prosecuting documents.
Articles of charges regarding involvement the accused, in unlawful activities at Vankaner Railway Station and, arrest by Railway Police on 11/1/97 at Vankaner Railway Station and remaining under Judicial custody w.e.f. 12.1.97 to 14.1.97 stand fully proved on basis of paper AAS and police report. The recovery of 92 (ninety two) bottles of English Wine from the individual by Railway Police cannot be taken as granted as the case is to be decided by the court of law. But the circumstances related to the case and the evasive statements of the accused, gives a hint that the involvement of the accused in this, cannot be ruled out. As Page 3 of 11 C/SCA/13633/2012 CAV JUDGMENT such the articles of charges the extent that the accused was actually involved in unlawful activities does not stand proved. However arrest made by the Police and remaining under judicial custody of the accused w.e.f. 12.1.97 to 14.1.97 stand fully proved beyond doubt, including that the desertion for Section Hqrs. and not informing authority anything about his arrest."
4 The Report of the Enquiry Officer was accepted vide order dated 9th February 1998. The petitioner came to be removed from service. The petitioner challenged his removal by filing Regular Civil Suit No.349 of 2009 in the court of the learned Principal Senior Civil Judge at Jamnagar. The said suit came to be withdrawn on 18 th July 2012 with a view to file an appropriate proceeding in the Central Administrative Tribunal with a liberty to file fresh writ. The petitioner did not prefer any petition in the Central Administrative Tribunal, but, instead, preferred the present petition for the following reliefs:
"(A) Admit this petition.
(B) Quash and set aside order dated 9.2.98 annexure E holding it as illegal, unjust, harsh and violative of the principles of natural justice and be further pleased to direct the respondents to reinstate the petitioner in service with continuity of service and consequential benefits including full back wages for intervening period in the interest of justice.
(C) Pending admission, hearing and final justice, Your Lordships be pleased to direct the respondent authorities to review and reconsider the order of penalty dated 9.2.98 while keeping in mind the order of acquittal dated 6.2.2009 and pass appropriate fresh orders in the matter in the interest of justice.Page 4 of 11 C/SCA/13633/2012 CAV JUDGMENT
(D) Grant such other and further reliefs deemed just and proper in the facts and circumstances of this case."
5 Learned counsel, Mr Joshi for the appellant has contended that the departmental enquiry could not have proceeded against the petitioner while the criminal case was still pending in a competent criminal court. It is further contention that since the petitioner is honorably acquitted in the criminal case, it is incumbent upon the respondents to reinstate him. To buttress this submission, he has relied upon the decision of the Supreme Court in the case of (1) Basanti Prasad V. Chairman, Bihar School Examination Board, (2009) 6 SCC 791, (2) G.M. Tank v. State of Gujarat & Ors., (2006) SCC (L & S) 1121 and State Bank of Hyderabad and Another v. P Kata Rao, (2008) 15 SCC 657.
6 Mr Joshi next contended that the petitioner was pursuing remedy in wrong forum by filing a civil suit to challenge his dismissal and therefore since the suit is withdrawn with a view to prosecute the remedy in a competent forum, this writ petition is maintainable. It is his further submission that the petitioner could not have filed the present petition before his acquittal in the criminal case and therefore his order of dismissal dated 9th February 1998 could not have been challenged before he got acquitted in criminal case. In support of his submission, Mr Joshi has relied upon the decision of the Apex Court in the case of Basanti Prasad (supra).
7 On the other hand, Mr I.H. Saiyed has supported the impugned decision of the respondents removing the petitioner from service. He has further contended that the departmental enquiry was conducted against the petitioner as per the prevalent rules after affording the opportunity and therefore the petition is without merits and may be dismissed.
Page 5 of 11 C/SCA/13633/2012 CAV JUDGMENT8 Mr I.H. Saiyed has relied upon the following averments made in the affidavitinreply filed by Shri Nawal Kishor Singh, Repondent No.10, which are extracted hereinbelow:
"It is further submitted that it is also incorrect on the part of the petitioner to contend that he has not received all the documents referred to in Annexure3. I submit that he has received all these documents under the proper receipt. A copy of reply given by the petitioner is annexed hereto and marked as AnnexureR1. I submit that the inquiry was held as per the principles laid down for the inquiry and the petitioner was afforded reasonable opportunity at all times. Moreover, no violation of principles of natural justice has been done by the inquiry authority during the course of inquiry. Therefore, question of breach of principles of natural justice does not arise. I submit that the departmental inquiry was initiated against the petitioner for absenting himself from section/Coy. and thereafter arrested by Police. Article I and opportunity of the petitioner in any respect, order of dismissal was passed against him is not correct.
13. It is further submitted in this regard that the petitioner has never sought permission to leave head quarter from NK/GD Roshan Lal who was the I/C section. NK/GD Roshan Lal as a I/C section informed the individual that sanction of EL/CL was not within his capacity as such leave cannot be granted by I/C section. However, NK/GD Roshan Lal I/C section had given him a movement order dated 07th January, 1997 with direction to report at Company HQ Junagadh so that the Company could sanction leave to the petitioner. However, it is vehemently denied that Shri R.S. Kharyal, Company Commander has given any verbal or written permission to CT (GD) Hadiyal Arvind regarding sanction of leave, as he has never reported to Coy. HQ Junagadh. Hence, the plea of the petitioner is baseless and not admitted. The petitioner was brought to village Kaneri/'B' Coy. Hqs Junagadh by the Railway Police for identification and Shri Kharyal, Coy. Commander and others had accordingly identified him to be as SSB Constable. However, it is vehemently denied that no SSB officer/official had made request to Railway Police regarding torture or maximum remand from the Court. It is submitted that the petitioner was removed on the ground of willful absence and failed to inform Page 6 of 11 C/SCA/13633/2012 CAV JUDGMENT about his arrest to his superior authority being a government servant. Hence, the plea to permit him to take him back in service and wait till the final disposal of the Criminal Case No.671 of 1997 before the learned Additional Judicial Magistrate does not hold good.
14. With reference to the contents of paragraph 4, I deny all the contentions and/or averments made in the present paragraph are denied.
15. the departmental inquiry was initiated against the petitioner for absenting himself from Section/Coy. and thereafter arrested by Police. Never forced to sign any papers/documents and only asked to sign his statement as per the Rule and all copies of statements were provided to him as and when required. The departmental inquiry report was provided to the petitioner vide letter No.675 dated 21 st January, 1998 by the Commandant and copy of receipt were obtained. However, after perusal of all records and departmental inquiry report, the then Commandant GC SSB, Jamnagar has passed order No.7/PF/90531/CT/ HA/GCJ/97/180819 dated 09th February, 1998 under which he was removed from service. I submit that the deponent has not received notice dated 19th May, 2009 issued by Shri Shashikant V. Dhruve and therefore, there is no question of replying the said notice.
16. I submit that in view of the fact stated hereinabove, none of the ground raised by the petitioner are sustainable in eye of law.
17. With reference to contents of ground (a) of the petition, I deny the same. I submit that the departmental inquiry was initiated against the petitioner for absenting himself from Section/Coy. and thereafter arrested by Police. The petitioner was removed on the ground of willful absenteeism and failed to inform about his arrest to superior being a government servant. Therefore, plea about pending criminal case is deovids of any merit and substance.
18. With reference to contents of ground (b) of the petitioner, I submit that inquiry was held as per the principles laid down for conduct of inquiry and the petitioner was afforded reasonable opportunity at all times. Moreover, no Page 7 of 11 C/SCA/13633/2012 CAV JUDGMENT violation of principles of natural justice has been done by the inquiry authority during the course of inquiry. I submit that before passing the order of removal, the petitioner was provided copy of departmental inquiry also. Therefore, there is no merits and substance in contention of ground (b) of the present petition."
9 The petitioner has not controverted and denied the above averments of the respondents made in the affidavitinreply and has mainly concentrated in his rejoinder affidavit on the issue of delay and laches and his acquittal in criminal proceedings.
10 At the outset, it needs to be mentioned that upon service of the Memorandum of Charges and appointment of Inquiry Officer, the statement of the petitioner came to be recorded on 18 th September 1997. The petitioner, in his statement, accepted the appointment of Mr R.S. Kharyal, Coy Commander, GC, SSB, Jamnagar as Inquiry Officer and further regarding the question as to whether he pleads guilty against the charges partially or as a whole. He pleaded guilty qua Articles of Charges I and III as a whole and as regards Charge II, he pleaded guilty to the extent that he was arrested by the Railway Police at Vankaner Railway Station and remained in judicial custody with effect from 12.1.1997 to 14.1.1997 and pleaded not guilty regard unlawful activities.
11 In view of the admission of the petitioner qua Articles of Charges I and II, the Inquiry Officer has recorded the finding that these charges stand proved beyond doubt as mentioned in the foregoing part of the judgment.
12 The contention of Mr Joshi, learned advocate for the petitioner that in view of the acquittal of the petitioner in criminal case, the dismissal order is not sustainable in view of the judgment of the Honourable Supreme Court in G.M. Tank v. State of Gujarat and Others Page 8 of 11 C/SCA/13633/2012 CAV JUDGMENT (supra) is concerned, the departmental enquiry is not initiated on the basis of the involvement of the petitioner in a criminal case. The departmental enquiry was initiated against the petitioner for his conduct of absconding (charge Article I) and wilfully absenting from NIP Camp at village Kaneri and his remaining in judicial custody for the period from 12.1.1997 to 14.1.1997 as per the report from Railway Police, Rajkot (Charge Article II). These two Articles of Charges are admitted by the petitioner and therefore the ratio expounded in the above cited judgments relied upon by the learned advocate for the petitioner is not applicable to the facts of the present case. Both these Charges are very serious in nature. The petitioner belonged to a disciplined force and it was expected of him to maintain absolute discipline and loyalty to his service. The petitioner has failed to conduct himself in a manner expected of him as a member of the disciplined force and therefore, in our opinion, these to proved charges alone are sufficient to sustain the impugned order of the dismissal of the petitioner from service.
13 As regards the Article of Charge III is concerned, the Inquiry Officer has found that the involvement of the petitioner in an unlawful activity is not proved, but the petitioner's remaining in judicial custody from 12.1.1997 to 14.1.1997 stands fully proved beyond reasonable doubt. Thus, it is abundantly clear from the Memorandum of Articles, more particularly, Article No.III and findings of the Inquiry Officer that the initiation of criminal proceedings for the involvement of the petitioner in unlawful activity was not the sole basis for initiation of departmental proceedings. The ratio expounded by the Hon'ble Supreme Court in the judgments relied upon by the learned counsel for the petitioner is a trite law, but since the departmental proceedings were not initiated on the basis of a criminal case initiated against the petitioner alone, his subsequent acquittal therefrom would not be of any help to the petitioner.
Page 9 of 11 C/SCA/13633/2012 CAV JUDGMENT14 The High Court on judicial side does not sit in appeal over the decision of the disciplinary authority. It is well settled by a catena of judgments of the Honourable Supreme Court that it is not within the competence of the High Court to substitute or interfere with the punishment imposed by the disciplinary authority merely on the ground that the High Court feels that it is on higher side. The scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court. We do not find that the principles of natural justice were not followed and the petitioner was not afforded an opportunity to contest the departmental enquiry as is evident from the aforesaid extracts from the affidavitinreply of the respondents. The present case is not the one where it can be said that the punishment inflicted on the petitioner is too harsh or it shocks the conscience of the Court. Therefore, in our opinion, there is no justifiable or germane reason to interfere with the decision of the disciplinary authority removing the petitioner from the service.
Page 10 of 11 C/SCA/13633/2012 CAV JUDGMENTFor the reasons aforesaid, we do not find any merit in the petition and hence the same is dismissed. Rule is discharged. No costs.
Sd/ (V.M.SAHAI, J.) Sd/ (A.G.URAIZEE, J.) *mohd Page 11 of 11