Gujarat High Court
Sp Damor- Deceased vs Principal Chief Conservator Offorest & on 11 February, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/8933/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8933 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 or any order made thereunder ?
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SP DAMOR- DECEASED....Petitioner(s)
Versus
PRINCIPAL CHIEF CONSERVATOR OFFOREST & 1....Respondent(s)
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Appearance:
MR RAJESH P MANKAD, ADVOCATE for the Petitioner(s) No. 1 - 1.3
MR RUTVIJ OZA, AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 11/02/2016
ORAL JUDGMENT
1. By way of this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order Page 1 of 17 HC-NIC Page 1 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT dated 29.3.1994 passed by the disciplinary authority-Principal Chief Conservator of Forests as well as the order dated 7.6.1995 passed by the Gujarat Civil Services Tribunal in Appeal No.218 of 1994.
2. Heard learned advocate Mr.Rajesh P Mankad for the petitioner and learned AGP Mr.Rutvij Oza for the respondent.
3. The brief facts for deciding the controversy involved in this petition are as under:
3.1 The petitioner was working as Range Forest Officer in the year 1983-1985 and was posted in Vyara range under the Surat Circle of Gujarat Forest Department. The show cause notice was issued on 1.3.1986 and the petitioner was asked to show cause as to why further action should not be taken against him on the basis of the allegations that between the period between October, 1983 to December, 1985, 19,556 stumps of illegal cut trees have been found in the Vyara forest range and the petitioner along with the staff working under him had failed to take effective steps to stop such illegal activities.
The petitioner submitted his reply to the show cause notice. The said reply was not accepted and Page 2 of 17 HC-NIC Page 2 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT the respondent-authorities, by an order dated 4.10.1986, placed the petitioner under suspension. However, the petitioner was thereafter reinstated on 31.1.1989 as per the order passed by this Court in the petition preferred by the petitioner. The chargesheet came to be issued against the petitioner along with one Mr.M.K.Mulla and Mr.R.N.Jhala wherein the charges were levelled against the petitioner that he was negligent in performance of his duties. The said chargesheet was issued on 8.1.1987. The petitioner submitted his reply to the aforesaid memo of charges issued by the department wherein he has denied the charges levelled against him. Thereafter, disciplinary proceedings were initiated and the Inquiry Officer was appointed for conducting the inquiry. The department produced the evidence before the Inquiry Officer during the course of the said inquiry and the said Inquiry Officer, after conclusion of the said inquiry, submitted his report to the disciplinary authority on 21.6.1990. The Inquiry Officer held that charges levelled against the petitioner are not proved. The disciplinary authority thereafter issued show cause notice to the petitioner and asked the petitioner to show cause as to why the punishment of lowering the basic pay to the lowest basic pay of Rs.1640/- for five years with permanent effect and treating Page 3 of 17 HC-NIC Page 3 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT the period of suspension pending inquiry as under
suspension in respect of the petitioner should not be imposed. The disciplinary authority was not agreeable with the findings given by the Inquiry Officer. Therefore, the aforesaid show cause notice dated 2.2.1993 was issued by him. The petitioner filed his reply to the said notice. However, the disciplinary authority imposed the penalty as per his show cause notice by order dated 29.3.1994. The petitioner, therefore, being aggrieved and dissatisfied with the said order passed by the disciplinary authority preferred Appeal No.218 of 1994 before Gujarat Civil Services Tribunal, Gandhinagar. The Tribunal by the impugned order dated 7.6.1995 dismissed the said appeal. The petitioner has, therefore, preferred this petition.
3.2 At this stage, it is required to be noted that during the pendency of this petition, the petitioner has expired and, therefore, his legal heirs are brought on record.
4. Learned advocate Mr.Mankad appearing for the petitioner mainly contended that the department issued the chargesheet to one Mr.M.K.Mulla and Mr.R.N.Jhala along with the petitioner. In the said chargesheet also, the charges levelled against the said officers were Page 4 of 17 HC-NIC Page 4 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT similar, that they remained negligent in performance of their duties. Learned advocate Mr.Mankad has submitted that during the period in question, there was indeed excess illegal felling of the trees in the Vyara range, Unai Range, Mandvi (North) Range, Mandvi (South) Range. All the aforesaid ranges are falling under Surat circle. However, the reason for the illegal felling of the trees were mainly two fold - (1) strike by the entire forest department personnel between 15.7.1985 to 14.8.1985. During this period, adivasis had in massive number invaded this forest and removed large amount of timber and (2) Vyara range being in the constituency of the then Chief Minister, there was lot of political pressure on the Forest department not to take any strict action against the said adivasis, specially in view of the fact that assembly election was to be held in 1985. Even sufficient staff was not provided to the petitioner by the higher authorities and therefore time and again the petitioner has requested the higher authorities to depute necessary staff. Even the complaint is given against the miscreants. Thus, the petitioner has not remained negligent in performance of his duty as alleged by the respondents-authorities. At this stage, learned advocate Mr.Mankad submitted that the Inquiry Officer, after considering the Page 5 of 17 HC-NIC Page 5 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT evidence produced on record by the department, rightly held that the department had failed to prove the charges levelled against the petitioner. In spite of the specific findings given by the Inquiry Officer which was on the basis of the evidence and material produced on record, the disciplinary authority has wrongly discarded the said version of the Inquiry Officer and wrongly disagreed with the findings recorded by the Inquiry Officer. He, therefore, submitted that it is a case of no evidence against the petitioner and, therefore, impugned orders be quashed and set aside.
4.1 Learned advocate Mr.Mankad thereafter contended that similar charges were levelled against Mr.Mulla and Mr.Jhala. The Inquiry Officer, after the conclusion of the inquiry, held that charges levelled against both the aforesaid officers were not proved. The same disciplinary authority, thereafter, disagreeing with the finding given by the Inquiry Officer, issued show cause notice to both the aforesaid officers. Both these officers submitted their reply. However, Mr.Jhala was fortunate in having his case considered by the new disciplinary authority who had taken charge after retirement of the earlier officer. The new officer accepted the findings of the Inquiry Officer and Page 6 of 17 HC-NIC Page 6 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT exonerated Mr.Jhala. However, so far as the case of the petitioner and case of Mr.Mulla are concerned, their cases were considered and decided by the then PCCF Shri Vaishnav who confirmed the punishment against the petitioner and Mr.Mulla. The petitioner as well as Mr.Mulla, therefore, preferred appeal before the Tribunal.
However, though the case of the petitioner as well as Mr.Mulla is similar, the Tribunal has allowed appeal preferred by Mr.Mulla whereas though the same grounds were raised by the petitioner, his appeal was dismissed. Learned advocate Mr.Mankad, therefore, contended that the impugned order passed by the Tribunal be quashed and set aside. Learned advocate Mr.Mankad has placed reliance upon the following decisions in support of his arguments:
(1) Inderjit Singh V/s State of Punjab TR.Collector and Anr. Reported in 2011(1) GLH
662.
(2) Tata Engineering and Locomotive Company Limited, Bombay V/s Jitendra Prasad Singh, reported in 2001(10)SCC 530.
(3) Special Civil Application No.780 of 2005 dated 31.7.2013.
5. On the other hand, learned AGP Mr.Oza submitted that the jurisdiction of this Court Page 7 of 17 HC-NIC Page 7 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT while exercising the powers under Articles 226 and 227 of the Constitution is limited and this Court may not disturb the concurrent findings of facts recorded by the disciplinary authority which has been confirmed by the Tribunal and, therefore, this petition be dismissed. Learned AGP then contended that minor penalty is imposed by the disciplinary authority looking to the facts and circumstances of the case and therefore this Court may not interfere with the penalty imposed by the authority. Learned AGP thereafter submitted that the case of the petitioner is different than the case of the other two persons namely Mr.Mulla as well as Mr.Zhala and, therefore, the petitioner cannot claim parity with the aforesaid two officers. He also submitted that the period was different in case of the petitioner and in case of Mr.Mulla. He, therefore, requested that this petition be dismissed.
6. I have considered the submissions canvassed on behalf of learned advocates for the parties. I have also gone through the material produced on record. From the record, it is revealed that the department has issued chargesheet against three officers namely the petitioner Mr.M.K.Mulla and Mr.R.N.Jhala, the allegation against all the three officers were Page 8 of 17 HC-NIC Page 8 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT similar. The Inquiry Officer, after considering the evidence produced before him in all the three cases, has held that the department has failed to prove the charges against all the three officers. In spite of the specific finding recorded by the Inquiry Officer, the disciplinary authority issued show cause notice to all the aforesaid three officers. The disciplinary authority i.e. PCCF Mr.Vaishnav considered the case of the petitioner as well as Mr.Mulla and in case of the petitioner by way of the impugned order, he imposed the penalty of lowering the basic pay to the lowest basic pay of Rs.1640/- for five years with permanent effect and treating the period of suspension pending inquiry as under suspension was imposed and so far as the case of Mr.Mulla is concerned, it was ordered to withhold two increments for a period of one year with permanent effect. It was also ordered that period of suspension of Mr.Mulla be considered as suspension. In the meantime, new PCCF has taken over the charge and the said officer while acting as disciplinary authority, accepted the reply given by Mr.Zhala and exonerated him. It has also come on record that when Mr.Mulla has preferred Appeal No.480 of 1990 before the Tribunal, the Tribunal has observed in paragraph 5 as under:
"5. On considering the appeal memo of the appellant, parawise remarks, record Page 9 of 17 HC-NIC Page 9 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT of enquiry as found in the files submitted by the respondent and submissions made by the parties during the hearing of the appeal, it is found that the present case has certain material facts and such facts are that in the range of Mandvi (North) under the appellant there was nuisance of illegal cutting and according to the appellant he was trying his best to stay it by pressing all the resources in his command into service at the risk of his life. However, in the month of May 1985 when Dy.Conservator of Forest Shri Gota was in round towards Mangrol village some anti-social elements surrounded him and attempted to misbehave with him and he was even manhandled. Shri Gota had filed criminal complaint for such incident but no immediate actions were taken either by the Police or by the Superior Officers of the Police department and, therefore, such anti- social elements became more head strong and they indulged in illegal cutting by challenging the staff under the appellant and also instigated other adivasis for committing theft of forest property and adivasis of certain villages used to come in groups and take away woods of illegally cut trees on their heads. In such circumstances according to the appellant it was almost impossible for individual members of the staff to challenge such anti-social elements. However, all possible attempts were made to control illegal cutting. When activities of illegal cutting was found going out of control both the ranges planned combined action to control illegal cutting. In such action on 22.5.1985 at 11.00 hrs staff members of both the ranges alongwith certain labourers went towards Amli Dam where Page 10 of 17 HC-NIC Page 10 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT there was information about illegal cutting. When they went there it was found that a mob of 400 to 500 persons was engaged in illegal cutting and when the staff members of the forest apprehended them they confronted the staff members with axes. Even in such situation staff members prevented them from illegal cutting of forest. In such incident the persons involved in illegal cutting started running away to escape apprehension and in such attempt two persons in the mob died by drowning in Amli Dam. Such incident came to the notice of the persons of the area on 26.5.1985 and as a result thereof anti forest department wave was aroused in Adivasi area and they attempted to plan to beat members of the forest staff and some politicians also joined hands with such anti-social elements. On 25.5.1985 quarter of Shri Loharvad Beat Guard was ransacked. By 28.5.1985 there were mass attack on quarters of forest department and nurseries and quarter of Forestor Shri Kanedia was ransacked and articles therein were destroyed. Reports were made in this regard to the Government by Deputy Conservator of Forest. Moreover, enraged mob of Adivasis started illegal cutting in forest area at random. After 22.5.1985 it was not possible for the members of the staff in head-quarter to reside in their head quarter and they were also not in a position to perform their normal duties. In this regard local visits were made by the respondent at Mandvi on 16.6.85, 28.7.85. As a result of the dam incident the whole staff of the department went on strike on account of untolerable harassment caused to them by anti-social elements and mobs of Adivasis. It is the defence of the appellant that it was on account Page 11 of 17 HC-NIC Page 11 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT of such large scale illegal cutting indulged in by anti-social elements and mobs of Adivasis after the dam incident resulting in strike of forest employees that there was large scale illegal cutting in the range area of the appellant. Right from the beginning i.e. from the stage of reply to the very first show cause notice the appellant has contended that he and his staff members worked in very adverse circumstances and at the risk of their lives and in such circumstances they deserved assistance, cooperation and protection by the Superior Officers of the department but instead they are subjected to the charge of negligence in their duties and punished. Now it is found that there is no denial of the hard fact of the incident that took place on 22.5.1985 at Amli Dam and serious consequences thereof by mass assault by mob of adivasis on the quarters of the members of the staff of forest department and large scale illegal cutting of trees. Now it appears that crucial dispute between the parties was about the timing of illegal cutting apart from the exact number, there can be no denial on perusal of the record that there was large scale illegal cutting of trees in forest area under the range of the appellant running in thousands. It is further found from the record that according to the opinion of export no exact timing of cutting of trees can be given from the trunk. The material question involved is whether the appellant can be found to be guilty of dereliction in the performance of his duties and punished for such charge. By now it has not remained secret that in certain pockets of forest area some head strong anti-social elements indulge in Page 12 of 17 HC-NIC Page 12 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT nefarious activity of destroying valuable forest wealth of the nation by illegal cutting. Ill equipped inadequate forest staff in such pockets is no match to prevent and or totally and effectively control illegal cutting by such anti-social elements and as a result thereof in certain such pockets proportion of illegal cutting is very high. The question is whether the staff posted in such pockets if not provided with additional force can be said to be negligent in performance of their duties. Is it not high time for the top officers of the Forest department to have survey of such pockets and provide well equipped additional force to check the anti-social elements effectively in such pockets. In the particular case, it does appear from the record that the range under the appellant was the target of anti-social elements for indulging in illegal cutting. To prevent such cutting it appears that members of two ranges of Mandvi combined and they tried to apprehend the members of such anti- social elements who were in large number running into hundreds but unfortunately it resulted in the accidental death of the Adivasis in their attempt of running away to escape apprehension and this aggravated the situation to the climax and what happened then is narrated above and requires no repetition. It is further found from the record that before the dam incident the appellant took legal steps of lodging legal information for illegal cutting and also for removal of muddammal to safe place. It appears to us on considering the record as a whole that the appellant and the members of the staff under him could not successfully prevent or effectively control the illegal cutting in the range Page 13 of 17 HC-NIC Page 13 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT as many persons running in hundreds were involved in illegal cutting. When the appellant and the members of the staff planned vigorous action with combination of two ranges, unfortunately it resulted in the aggravation of the situation by accidental death of two Adivasis and the result was reverse than expected. It appears that the properties and lives of the appellant and his subordinates in the range were in danger after the unfortunate incident of dam on 22.5.85. Thank God that no life of any forest employee is lost in what happened after Adivasis in the area noticing the accidental death of two Adivasis by drowning in the Dam in attempting to run away. In our view such a grave situation reasonably required sympathetic consideration for the appellant and his subordinates by the top officers of the Forest department. We find from the detailed report of the Enquiry Officer that he has properly discussed the evidence before him of both the witnesses of the department and the defence and his assessment and appreciation thereof is logic and reasonable. Reasons stated by the respondent in the show cause notice served to the appellant for disagreeing with the report of Enquiry Officer are not convincing in view of the oral as well as documentary evidence adduced in the course of the departmental enquiry. So on considering on the whole on perusal of the records of the enquiry we are constrained to conclude that finding of the respondent about his disagreement with the report of Enhquiry Officer cannot be upheld. We consequently find that the appellant cannot be found guilty of the charge levelled against him and naturally therefore he cannot be Page 14 of 17 HC-NIC Page 14 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT punished for such charge."
7. After recording the aforesaid finding, the Tribunal allowed the appeal preferred by Mr.Mulla and thereby quashed and set aside the order of punishment passed by the disciplinary authority. From the record, it is further clear that the present petitioner has also placed the same defence before the Inquiry Officer, disciplinary authority as well as before the Tribunal which was put forward by Mr.Mulla. In spite of that, discriminatory treatment is given to the petitioner and the Tribunal has dismissed the appeal preferred by the petitioner, Thus, in the opinion of this Court, the disciplinary authority as well as the Tribunal have committed the error while inflicting the punishment and while rejecting the appeal preferred by the petitioner and therefore both the orders are required to be quashed and set aside. This Court is conscious of its jurisdiction conferred upon it under Articles 226 and 227 of the Constitution of India. However, when there is case of no evidence, this Court can certainly interfere with the penalty imposed by the disciplinary authority. The department has failed to prove the charges levelled against the petitioner. The said fact can be revealed from the report given by the Inquiry Officer. Thus, though there was no case against the petitioner, the disciplinary Page 15 of 17 HC-NIC Page 15 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT authority has wrongly not believed the report and while disagreeing with the said report issued the show cause notice and thereafter imposed the punishment without properly considering the reply submitted by the petitioner. It has also come on record that discriminatory treatment is given to the petitioner by the respondent-authorities and therefore also the petitioner is entitled to claim parity. Thus, when the new PCCF- disciplinary authority has accepted the version of Mr.Jhala and when the Tribunal has accepted the defence of Mr.Mulla, it was not proper on the part of the disciplinary authority in not accepting the defence of the petitioner and it was also not proper on the part of the Tribunal in not accepting the version of the petitioner. Thus, though the scope of interference is very limited in the facts and circumstances of the present case, this Court is of the opinion that both the impugned orders deserve to be quashed and set aside.
8. Accordingly, this petition is allowed. The impugned orders are quashed and set aside. The respondents are therefore directed to give all the consequential benefits to the legal heirs of the petitioner within a period of three months from the date of the receipt of this order. No order as to cost. Rule is made absolute.
Page 16 of 17 HC-NIC Page 16 of 17 Created On Sun Feb 28 00:29:07 IST 2016 C/SCA/8933/1995 JUDGMENT (VIPUL M. PANCHOLI, J.) Srilatha Page 17 of 17 HC-NIC Page 17 of 17 Created On Sun Feb 28 00:29:07 IST 2016