State of Gujarat vs D.M. Khristi

D.H. Waghela, J.—Invoking Clause 15 of the Letters Patent, Commissioner of Transport has appealed against order dated 28.03.2000 of learned single Judge of this Court in SCA No. 1503 of 2000. That petition was filed by the Appellant to challenge order dated 29.11.1999 of Gujarat Civil Services Tribunal in Appeal No. 467 of 1998, whereby order dated 19.09.1998 to remove the Respondent from service as senior clerk in the office of Regional Transport Officer was set aside. The Respondent was charged with serious acts of misconduct in obtaining and producing a fraudulent driving licence of his own and in demanding bribe and accepting illegal gratification. Taking a serious view of lack of integrity and of behaviour not befitting a government servant, on the basis of facts established at a departmental inquiry, the Transport Commissioner had issued order of immediate removal of the Respondent from service. While making that order, the Commissioner had considered the defences taken by the Respondent at the inquiry held under the Gujarat (Discipline and Appeal) Rules, 1971 and the findings recorded in the Inquiry Report dated 27.03.1998. Having considered the evidence led during inquiry in light of the defence taken by the Respondent and his written statement, the Commissioner had come to the conclusion that both the charges levelled against the Respondent were proved and the person guilty of such misconduct could not be continued in service.

1.1 When the aforesaid elaborate order dated 19.08.1998 was challenged before the Tribunal, it re-appreciated the whole evidence and contradicted the findings of inquiry with the observation that the Inquiry Officer must come to a categorical finding and cannot report that the delinquent appeared to have committed acts of misconduct alleged against him. He added his own reasons to mitigate the seriousness of the alleged misconduct and concluded that the inquiry was not properly conducted, the delinquent was not given copies of documents and opportunity of hearing, the findings were based on assumptions and presumptions and the punishment was also not in consonance with the alleged acts. On such basis, the appeal of the Respondent was allowed, order dated 19.09.1998 was quashed and he was ordered to be reinstated with the direction that the the period of his absence from service on account of removal should be treated as leave.

When the aforesaid order of Tribunal was challenged before this Court in SCA No. 1503 of 2000, learned single Judge quoted a few material paragraphs from the impugned order of the Tribunal and concluded that all the points raised in the petition involved appreciation of facts, which exercise was already undertaken by the Tribunal; and hence the Court found no reason to interfere with the order of Tribunal. Being aggrieved by that order, the Appellants have preferred this appeal, mainly on the grounds that the judgment of the Tribunal was perverse and re-appreciation of evidence by the Tribunal was without jurisdiction. It was submitted by the Appellants that there was cogent evidence and material on record supporting the findings of Inquiry Officer and justifying the order removing the Respondent from service. There was no procedural irregularity and no prejudice was caused to the Respondent by the alleged non-supply of documents. Under such circumstances, learned single Judge was required to apply his mind and quash the order of Tribunal impugned before him, according to the submission.

Arguing for the Appellants, learned A.G.P. relied upon the order in Commissioner and Secretary to the Govt. and Others Vs. C. Shanmugam, to submit that the Tribunal was not right in re-appreciating the evidence and coming to a conclusion that in absence of independent evidence, the inquiry report could not be accepted. In absence of a finding that there was no evidence to sustain the impugned order, the Tribunal could not have legally quashed the order of removal.

3.1 She also relied upon the relevant observations made in Government of Tamil Nadu and another Vs. A. Rajapandian, to submit that the Tribunal fell into patent error in appreciating and going into the sufficiency of evidence. It is settled by string of authorities of the Supreme Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different findings than that of the disciplinary authority, particularly when no fault could be found with the proceedings held by the inquiring authority. Putting it tritely, the Apex Court observed that the Tribunal had no jurisdiction to sit as an appellate authority over the findings of the inquiring authority.

Learned A.G.P. also relied upon Commandant, T.N. Special Police, 9th Battalion and Anr. v. D. Paul 1999 SCC (L&S) 789 for the same proposition.

It was contended for the Respondent that since the Gujarat Civil Services Tribunal was constituted to substitute the appellate authority to whom departmental appeal could be addressed, its order cannot be challenged by the Government itself. Replying to that, learned AGP relied upon following observations made by learned single Judge of this Court [Ms. R.M. Doshit, J., as Her Ladyship then was,] in Bhanumatiben D. Soni v. State of Gujarat and Anr. 2003 (4) GLR 2808:

As to the locus standi of the State Government to challenge the order made by the Tribunal, I had an occasion to consider similar argument in the matter of State of Gujarat v. Faiyazali Saiyedali Kadri Special Civil Application No. 5291 of 1991:: Decided on 12th July, 2001]. It has been held that, "...It is true that it is the Government Officer i.e., the Secretary to the Government, Revenue Department, who has been designated to act as the Urban Land Tribunal to hear appeals u/s 33 of the Act. Nonetheless, the order made by such officer shall be an order of the Tribunal and not of the Government Officer, in his official capacity as the Secretary. While acting as the Tribunal, he is exercising statutory power conferred u/s 33 of the Act and the order made by him can be subjected to challenge by any aggrieved party, including the State Government." Following the said judgment, I hold that the State Government has a right to challenge the order of the Tribunal made in exercise of the appellate power conferred u/s 33 of the Act....

The above view is buttressed by decision dated 16.10.2006 of the Apex Court in Collector, Rajkot and Ors. v. Bavabhai Karshanbhai Patel and Anr. in Special Leave to Appeal (Civil) No. 3449/2006, wherein an appeal was preferred by Collector of Rajkot on the express direction given by the Ministry of Revenue; and the Supreme Court expressed the view that, when an illegality was committed, it was open to the Collector to challenge the same to protect the interest of the State. Therefore, both the learned single Judge and the Division Bench of this Court were not correct in saying that the Collector cannot challenge the order passed by the Secretary to the State Government. After the judgment being reserved (CAV), learned Counsel for the Respondent has submitted written arguments to elaborate the issue of maintainability of the appeal as also locus standi of the Appellant in the main petition. However, in view of the fact that the original petition of the Appellant did invoke both Articles 226 and 227 of the Constitution to pray for a writ of certiorari and the learned single Judge has not exclusively exercised the powers under Article 227, the appeal is entertained on merit. The judgment of another learned single Judge in SCA No. 9957 of 2000, dated 14.11.2008, relied upon by the Respondent cannot have any effect in view of the categorical pronouncement of law on the subject by the Apex Court as seen hereinabove.

In the facts and for the reasons discussed hereinabove, the order of the Tribunal is held to be illegal, the appeal is allowed and the impugned order dated 28.3.2000 in SCA No. 1503 of 2000 as well as the order dated 29.11.1999 of the Gujarat Civil Services Tribunal in Appeal No. 467 of 1998 are set aside, with no order as to costs. The civil applications and the special civil application No. 5560 of 2000 cannot survive in view of the above decision and, therefore, stand disposed accordingly.