STATE OF GUJARAT Vs. VINUBHAI MAGANLAL THAKKER

JUDGEMENT

(1.) This Appeal is directed against the judgment passed by the learned single Judge on 22/11/1989 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 23/12/1986, 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, reported in AIR 1959 SC 308, 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 23/12/1986 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 Ministerin- 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. 500.00 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-incharge 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. 500.00 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 Art. 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 Art. 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, reported in AIR 1991 SC 207. 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. 500.00 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., reported in AIR 1990 SC 1744. 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, reported in AIR 1964 Calcutta 68. 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 Art. 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.