Gujarat High Court
Ibrahimbhai Usmanbhai vs State Of Gujarat on 11 September, 2024
NEUTRAL CITATION
C/SA/66/2001 ORDER DATED: 11/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 66 of 2001
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IBRAHIMBHAI USMANBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR ROHAN RAVAL, ASST. GOVERNMENT PLEADER for Respondent No.1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/09/2024
ORAL ORDER
1. In the order-sheet, following order was passed by coordinate Bench of this Court (Mr.Justice Ravi R. Tripathi as he then was) on 24.06.2002 :
"Admit.
To be heard with Second Appeal No.59/98."
2. No substantial question of law was formulated in view of Section 100(4) of the Code of Civil Procedure, 1908 (for short 'CPC') at the time of admission of the appeal. In view of that, when this second appeal is taken up for final hearing, learned advocate Mr.Ashish Dagli refers to the substantial questions of law appellant has framed in the appeal memo which reads as under :
"(i) Whether joint departmental inquiry in respect of same allegation are proper if the defence are likely to be clashed with each other?
(ii) Whether the court below committed serious error of law in dismissing the suit preferred by the appellant?Page 1 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024
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(iii) Whether the Inquiry Officer is allowed to perform the function of Public prosecutor?
(iv) Whether the Inquiry Officer can perform role of Public Prosecutor as well as of Judge?
(v) Can principle of Bias would apply against the person who acted as prosecutor as well as judge in conducting the inquiry?
(vi) Can the Inquiring Officer be permitted to question the witnesses during the cross examination?
(vii) If in respect of same charges the principles of discrimination would not apply if the Head is given lessor punishment than the Companion?
(viii) Whether, duel role played by the Inquiring Officer would not prejudice the entire defence of the appellant and also affects the principles of natural justice?
(ix) Whether the respondent has jurisdiction to file charge-sheet in the year 1991 when the same is clearly time-barred?
(x) Whether the appellate Court is duty bound to assign reasons on the contentions raised by the appellant or whether the appellate Court is permitted to pass speaking order in a substantive Appeal under Section 96?
(xi) Whether the Civil Court has jurisdiction when the mixed question of law and facts are involved, the efficacious remedy will be High Court or would be civil court?
(xii) Whether the Civil Court has committed error o law by holding that the efficacious remedy would be High Court?"
3. Second Appeal No.59 of 1998 which is ordered to be heard along with this appeal has been separately heard and summarily dismissed.
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4. The second appeal under Section 100 of CPC challenges the concurrent judgment and decree arrived at by the learned Court below wherein learned Joint Civil Judge, Senior Division, Judge, Junagadh by judgment and decree dated 08.01.1998 in Regular Civil Suit No.59 of 1993 dismissed the suit of the plaintiff. The same has been confirmed in Regular Civil Appeal No.17 of 1998 by the learned Principle District Judge, Junagadh by judgment and decree dated 21.10.2000.
5. The brief facts of case are as under.
5.1 The facts in brief are that the appellant was serving as Police Constable and while he was posted at Prisoners' ward, at that time a raid was carried out by the higher officers wherein it was found that some of the prisoners have consumed liquor. Therefore actions were initiated against the appellant and chargesheet was filed. Accordingly, the appellant and other persons are initially suspended and departmental inquiry was initiated. Ultimately the appellant was acquitted in the criminal case. However, in the departmental inquiry initiated against the appellant, the charges levelled against him were proved and the appellant was dismissed from the service. Against the said order of dismissal the appellant preferred Regular Civil Suit No.59 of 1993 before the learned Trial Court. Learned Trial Court vide judgment and decree dated 08.01.1998 dismissed the said suit. Being aggrieved by the said order, the appellant preferred Regular Civil Appeal No.17 of 1998 before learned Appellate Court, which came to be dismissed vide judgment and decree dated 21.10.2000. Hence, this appeal.
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6. Heard learned advocate Mr.Ashish Dagli appearing for the appellant and learned AGP Mr.Rohan Raval appearing for the State.
7. Learned advocate Mr.Ashish Dagli would make two fold submissions. He would firstly submit that the joint departmental inquiry was initiated against the plaintiff - appellant, his superior Guard Commander Musa Noormohammad and other officers. He would further submit that no departmental inquiry was carried out against the Guard Commander but the departmental inquiry was carried out against the appellant - plaintiff without following the requirement under Articles 14 and 16 of the Constitution of India. No equal treatment was given to the appellant - plaintiff. Yet the concerned Inquiry Officer initiated the departmental inquiry and held the appellant - plaintiff guilty. The disciplinary authority has also confirmed the said finding. He would submit that the Civil Court has passed the order in favour of other officer who was jointly charge- sheeted with the present appellant - plaintiff. Thus, on the principle of equality, the same finding would also be applicable in favour of the appellant - plaintiff but the learned Trial Court though having been placed the judgment and order of the Civil Court qua other officers, did not acted in equality and passed the judgment and order against the appellant - plaintiff which is not less than jurisdictional error committed by the learned Civil Court.
8. Learned advocate Mr.Dagli would further submit that learned Appellate Court in its cryptic order without assigning Page 4 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined any reasons to the various ground raised in the appeal memo dismissed the first appeal which is substantive right of the unsuccessful plaintiff and therefore the Court below have committed serious but jurisdictional error, therefore, interference is required in the second appeal.
9. It is also sought to be submitted by learned advocate Mr.Dagli that the departmental inquiry against the appellant - plaintiff was sought on the charge which was identical in the criminal case. He would further submit that in the criminal case, the appellant - plaintiff was acquitted. On same set of evidence, in departmental proceedings, the appellant - plaintiff has been held guilty. Therefore, there is inconsistency in the finding of the Court below more particularly the learned Civil Court where this issue has not been properly examined. Learned advocate Mr.Ashish Dagli would further submit that the Inquiry Officer himself has made some cross-examination of the witness and in that way he has acted with interest and it smacks bias. In departmental proceedings, this issue was also brought to the notice of the learned Civil Court, but the same has not been considered by the learned Civil Court. Learned advocate Mr.Dagli would further submit that Second Appeal No.59 of 1998 was preferred by the State against Mahendra Babulal who was co- delinquent. Regular Civil Suit No.64 of 1993 preferred by the co- delinquent has been partly allowed in favour of Mahendra Babulal. Similar charge was placed against him. The very same Civil Court revoked the dismissal order and ordered for continuation of service of Mahendra Babulal. Same issue was urged by the present appellant - plaintiff before the learned Trial Page 5 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined Court but the appellant - plaintiff has been given different finding by the learned Court below. As such, the principle of natural justice is breached.
9.1 In view of the above, learned advocate Mr.Dagli submits to allow this appeal.
10. As against these submissions, learned AGP would submit that in the Second Appeal this Court cannot substitute the finding of facts given by the learned Trial Court. After referring various questions of law framed by the appellant, he would submit that none of the questions of law could be treated as a substantial question of law. He would further submit that learned Civil Court has rightly discussed, deliberated and decided the issue that the Civil Court cannot interfere into the decision of the departmental proceedings until it is pleaded and proved that the principle of natural justice is breached. He would submit that learned Civil Court has observed and examined that Exhibits-31 and 32 which gave the effect of termination of the appellant - plaintiff from the service is passed after following procedure laid down in the law, observing the service rules and regulation and therefore, in view of that learned Civil Court cannot venture into deciding the legality and validity of the decision arrived in disciplinary proceedings as Appellate Court.
10.1 It is also submitted by learned AGP that the present appellant - plaintiff must have attended the age of superannuation as he was 37 years old when he filed Regular Civil Suit No.59 of 1993. Even in view of that the present second appeal has become infructuous and therefore, he submits to dispose of the same in accordance with law.
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11. In Mavjibhai Hirabhai Vania vs. Gujarat State Road Transport Corporation - 2012 (5) GLR 4346, the coordinate Bench of this Court has held as under :
"5.0. Heard the learned advocates for the respective parties at length and considered and gone through the impugned judgment and order passed by both the Courts below as well as evidence on record. At the outset, it is required to be noted that in the departmental inquiry which was initiated against the plaintiff and it is held to be legal and valid, the charge / misconduct of not issuing the tickets though the fare was collected i.e. misconduct of misappropriation came to be proved and thereafter order of dismissal has been passed by the disciplinary authority. The learned trial Court interfered with the order of dismissal imposed by the disciplinary authority solely on the ground that the same is disproportionate to the misconduct proved and consequently learned trial Court decreed the suit and quashed and set aside the order of dismissal passed by the disciplinary authority and directed the respondents herein original defendants to reinstate the plaintiff. The said judgment and decree passed by the learned trial Court has been set aside by the learned Appellate Court by impugned judgment and order by holding that once the misconduct has been proved in departmental inquiry and when the disciplinary authority has imposed the punishment, the Civil Court has no jurisdiction to interfere with the order of punishment imposed by the disciplinary authority as if the Civil Court is siting as an appellate authority against the order passed by the disciplinary authority and the same can be set aside only on the ground that same is in breach of principles of natural justice and / or it is based on no evidence.
6.0. Learned advocate for the plaintiff is not in a position to satisfy the Court how the impugned judgment and order passed by the learned Appellate Court is erroneous and / or learned Appellate Court has committed any error and / or illegality in quashing and setting aside the judgment and decree passed by the learned trial Court. The learned advocate for the appellants-original plaintiffs is also not in a position to satisfy the Court how the Civil Court would have any jurisdiction to consider the question with respect to Page 7 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined proportionality of punishment imposed by the disciplinary authority and / or to consider whether the order of punishment imposed by the disciplinary authority is just and disproportionate or not. Even this Court is also of the opinion that Civil Court has no such jurisdiction to consider the proportionality of the punishment imposed by the disciplinary authority, once the misconduct of misappropriation etc. has been proved in a departmental inquiry which is held to be legal and valid. As rightly observed by the learned Appellate Court /Civil Court is not sitting as an appellate authority against the order of punishment passed by the disciplinary authority. As rightly observed by the learned Appellate Court / Civil Court has no jurisdiction to interfere with the order of punishment imposed by the disciplinary authority except on the ground that the same is in principles of natural justice and / or same is based on no evidence. The Civil Court has no other jurisdiction to interfere with the order of punishment imposed by the disciplinary authority once the misconduct is held to be proved in the departmental inquiry and departmental inquiry is held to be legal and valid.
7.0. Even otherwise, on merits also the learned trial Court was not justified in interfering with order of dismissal passed by the disciplinary authority when it was proved that the plaintiff has committed misconduct of misappropriation i.e. not issuing the tickets thought the fare was collected. It is also required to be noted that even in the past also the plaintiff has committed similar misconducts. Under the circumstances also, the learned trial Court was not justified in interfering with the order of dismissal passed by the competent authority and the same is rightly interfered with by the learned Appellate Court. No illegality has been committed by the learned Appellate Court to allow the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. On the contrary, it appears that learned Appellate Court is absolutely justified in interfering with the judgment and decree passed by the learned trial Court and quashing and setting aside the same."
12. Recently, the Hon'ble Supreme Court in case of Muzaffar Husain vs. State of Uttar Pradesh and another - AIR 2022 SC Page 8 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined 2216, held that the power of the judicial review on the constitutional Court is not that of an appellate authority but is confined only to the process of decision making. The Hon'ble Supreme Court limits interference with the decision of the departmental authority on the ground that the proceedings if are conducted in violation of the principle of natural justice or in contravention of the statutory regulation, it is succinctly held by the learned Appellate Court that the Court would and should not act as appellate court and reassessed the evidence led in the domestic inquiry. The relevant finding of the Hon'ble Supreme Court reads as under :
"8. It is trite to say that the power of judicial review conferred on the constitutional Court is not that of an appellate authority but is confined only to the decision- making process. Interference with the decision of departmental authorities is permissible only if the proceedings were conducted in violation of the principles of natural justice or in contravention of statutory regulations regulating such proceedings or if the decision on the face of it is found to be arbitrary or capricious. The Courts would and should not act as an appellate Court and reassess the evidence led in the domestic enquiry, nor should interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly conducted, and the findings are based on evidence, the adequacy of the evidence or reliability of evidence would not be a ground to interfere with the findings recorded in the departmental enquiries.
9. In the High Court Of Judicature At Bombay Vs. Shashikant S. Patil And Anr. - (2000) 1 SCC 416, this Court held :-
"The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, Page 9 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
(2000) 1 SCC 416.
10. Again, in the State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya - (2011) 4 SCC 584, it was observed in para 7 as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."Page 10 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024
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13. Reverting back to the facts of the case on hand, let refer the issue framed by the learned Trial Court at Exhibit-14. They read as under :1 "(1) Whether the plaintiff proves that impugned order of his dismissal dated 02.01.1992 by the D.S.P. Junagadh as confirmed in departmental appeal by the Appellate Authority in null and void and inoperative against him? And therefore he should be declared to be in continuous service with all the benefits irrespective of break caused by the impugned order?
(2) Whether the defendants proves that even though plaintiff was acquitted of the blame by Criminal Court of competent jurisdiction in respect of allegations covered by the chargesheet, since fresh evidence was available after the judgment and therefore they were justified in holding the departmental enquiry and passing the impugned order?
(3) Whether plaintiff is entitled for all or any of the relief as prayed for?
(4) What order and decree?"
14. Issue No.1 and 3 are answered in negative. Issue No.2 is answered in affirmative which led to dismissal of the suit. It is admitted fact that the appellant - plaintiff for his dereliction of duty was suspended on 02.01.1989 but he was reinstated in service on 31.07.1989. The departmental proceeding was started against him by framing charge on 13.12.1991 and the departmental proceeding was completed and concluded and the order of dismissal was passed on 02.01.1992. The departmental appeal was preferred by the appellant - plaintiff which came to be dismissed on 27.08.1992 and the order of the dismissal was confirmed. The charge against the appellant - plaintiff in departmental proceedings was that when he was on duty along Page 11 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined with some other Police Constables in General Hospital, Junagadh, the Junagadh City Police Inspector has made surprise checking and found that some of the accused detained in hospital ward were in inebriated stage. The dereliction of duty of the appellant - plaintiff was found to that extent that during his service the accused was detained in hospital ward was found in inebriated stage and as stated hereinabove, the appellant - plaintiff was firstly suspended and pursuant to the departmental proceedings he was dismissed from the service. The orders are produced on record at Exhibit-31 and 32. The appellant was plaintiff in the suit. During the trial, he did not lead evidence to the effect that decision making process of the departmental inquiry is faulted with non-observation of principle of natural justice. Learned Civil Court has observed the said aspect very elaborately.
15. As far as submission of learned advocate Mr.Ashish Dagli that the joint disciplinary inquiry was conducted would breach the principle of natural justice is concerned, it could be answered that holding of joint departmental inquiry was never questioned by the appellant before appropriate forum or by departmental appeal and therefore such issue cannot be raised first time in the civil suit. Secondly, it is submitted that the Guard Commander, Musa Noormohammad was exonerated even without departmental inquiry and therefore, it is proved that the department was biased against the present appellant- plaintiff as the role of the appellant - plaintiff is lesser than role of the Guard Commander, Musa Noormohammad. Learned Civil Court in its judgment in internal page 7 discussed this issue and held that the order passed by the department with regard to Guard Page 12 of 14 Uploaded by GAURAV J THAKER(HC00951) on Tue Sep 17 2024 Downloaded on : Tue Sep 17 20:41:33 IST 2024 NEUTRAL CITATION C/SA/66/2001 ORDER DATED: 11/09/2024 undefined Commander, Musa Noormohammad was on sympathetic ground as he was to be superannuated on 30.11.1989. Therefore, that order would not apply to the case of the present appellant - plaintiff. According to this Court, the learned Trial Court has not committed any error much less error of facts or understanding the provisions of law. Lastly it was submitted by learned advocate Mr.Ashish Dagli that in case of co-delinquent Mahendra Babulal, learned Civil Court upturned the finding of the inquiry authority as well as disciplinary authority and restored his service. The said order passed by the Civil Court was approved upto Gujarat High Court and therefore, the principle of res judicata would also apply in the case on hand as both delinquents were placed in a similar situation by joint disciplinary proceedings. The submission canvassed by the learned advocate Mr.Dagli is totally misconceived and this Court does not find it impressive. The facts and circumstances pleaded in one case by co-delinquent could not ipso facto be the facts and circumstances for the present appellant. Both cases are different. The judgment arrived at in case of co-delinquent is on some different consideration but it would not operate as res judicata for present appellant. In the present case learned Court below passed the judgment and decree on true reading of the evidence. Learned advocate Mr.Dagli has failed to point out misreading of evidence or to mark any perversity in the impugned order that no reasonable person of ordinary petulance can arrive at such conclusion. All the questions framed by the appellant - plaintiff are on factual aspect and they cannot be treated as substantial question of law. In the second appeal, no perversity is found.
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16. In P. Chandrasekharan & Others vs S. Kanakarajan & Others - AIR 2007 SC 2306, it has been observed that "what is prohibited for the High Court while exercising this jurisdiction under Section 100 of CPC is to interfere with a finding of fact. This limited jurisdiction, inter alia, would become exercisable when the findings are based on misreading of evidence or so perverse that no reasonable person of ordinary prudence could take the said view." In the present case essentially the appellant has failed to plead any substantial question of law. Learned Civil Court and the learned Appellate Court have discussed the issue in depth in context to the evidence on record and therefore, this second appeal deserves no consideration and is dismissed accordingly. Record and proceedings, if any, be sent back to the concerned Court.
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