SA/261/2007 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 261 of 2007 ====================================== PRATAP .J. THAKUR Versus STATE OF GUJARAT THRO' SECRETARY AND ANOTHER ====================================== Appearance : MR RC KAKKAD for Appellant. None for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 07/07/2008 ORAL ORDER
1. By
way of this Second Appeal, the appellant – original plaintiff has
challenged judgment of the appellate Court dated 17th
February 2007, whereby the appellate Court allowed the appeal of the
State Government and set aside the decree passed by the trial Court.
2. The
facts in brief, as emerging from record, are as under:
3. It
is the case of the plaintiff that he has filed the suit before the
learned Civil Judge, Senior Division, Gondal to declare the order
No.SB/6-7-90 dated 27-02-1990 passed by defendant no.2 retiring
plaintiff compulsorily, as a result of departmental inquiry, as
unconstitutional, illegal, arbitrary, violative of principles of
natural justice, null and void and not enforceable at law and sought
permanent injunction restraining the defendants from enforcing the
said order. The plaintiff has also sought declaration that he is
entitled to be continued in service and also entitled to draw all the
amounts, pay etc. It was alleged against the plaintiff that on
13-8-1988 while he was on duty in Punjab at Ludhiyana on Bag Sufiya
Naka at 06:00 p.m., without permission of the commander, he had left
his duty arbitrarily and intoxicated himself and thereafter, he
misbehaved with transport operators and used abusive language. The
plaintiff averred that he did not do so yet charge sheet of
misbehaviour was issued against him; and inquiry officer was
arbitrarily changed by the defendants and that principles of natural
justice were not followed during the departmental inquiry. He also
averred that there was no evidence to establish that the plaintiff
had consumed alcohol and witnesses also did not support the
defendant’s case, even then inquiry officer held the plaintiff guilty
and a notice dated 20-1-1990 was given to him, which was replied by
the plaintiff on 16-2-1990. Thereafter, he was served with order
dated 27-2-1990, which was challenged before the trial Court.
4. After
service of summons, the defendants appeared before the trial Court
and filed written statement at Exh.20, wherein it was contended that
the plaintiff is appointed in S.R.P. Group No.VIII, Gondal since
9-11-1968. It was contended by the defendants that the plaintiff has
misbehaved on duty on 13-8-1988, for which he was given charge sheet
and the plaintiff was given reasonable opportunity to defend himself
and principles of natural justice were also followed. Accordingly,
defendants denied any arbitrariness and prayed for dismissal of the
suit with costs. After hearing both the parties and after
considering the documents on record, the trial Court decreed the suit
in favour of the plaintiff by its judgment dated 31-12-1994. Against
said judgment, an appeal was preferred by the State Government, which
was allowed by the appellate Court by its judgment dated 17-2-2007.
The appellate Court has observed as under in paragraphs 9, 10 and 11
of its judgment.
ýS9. First
of all, if we consider the findings recorded by the Learned Trial
Court then it is required to be noted that the original plaintiff in
the Departmental Inquiry in question never objected that
Mr.P.N.Gohil, the Commandant, S.R.P.Gr.No.VIII, Gondal cannot preside
over as a Presiding Officer for the Departmental Inquiry in question.
After punishment order in the Departmental Inquiry, the original
plaintiff has also filed Departmental Appeal which has also been
rejected by Nayab Mukhya Police Adhikari [Armed Unit], Gujarat
Police, Ahmedabad i.e. Additional I.G.P. While, perusing entire
records of Regular Civil Suit No.74/1990, the original plaintiff has
got all the opportunities and the original plaintiff appeared in the
Departmental Inquiry and resisted all the charges framed against him.
So, one could not say that the Principles of Natural Justice is
violated so far as the facts of this case is concerned.
10. If
we go through from the decision reported in 1964 A.I.R. [A.P.]
407 in the case of Abdul Rahim Vs. Chief Executive Officer, Andhra
Pradesh, then
first of all it is required to be noted that this decision has not
rendered by the Full Bench of Hon’ble High Court of Madhya Pradesh.
But this judgment has been delivered by the Division Bench of Hon’ble
High Court of Andhra Pradesh. The Hon’ble High Court of Andhra
Pradesh in cited decision in Head Note-B held that ýSThe
Enquiry Officer to whom actual conduct of enquiry is delegated is not
entrusted with the power of imposing the punishment. His duty
commences and ends with finding the fact. In other words, he is
merely a fact-finding authority. Therefore, the question as to
whether the Enquiry Officer was capable of arriving at independent
conclusions being a subordinate officer does not rise in such a case.
11. The
aforesaid principle holds good but the Learned Trial Court has
misinterpreted and misconstrued it so far as the case on hand is
concerned. It is not in dispute that the Commandant, S.R.P.Gr.
No.VIII, Gondal is an Appointing Authority and Appointing Authority
is capable of arriving at an independent conclusion and has power to
pass any punishment upon the gravity and nature of charges proved
against the delinquent. It is also required to be mentioned that in
the present case, the Enquiry Officer’s duty is merely not limited as
the fact-finding authority. Here in the present case, the
Commandant, S.R.P.Gr.No.VIII, Gondal has all the powers to conduct
the inquiry and is also entrusted with the powers of imposing the
punishment. Hence, the reasons recorded by the Learned Trial Court
for deciding issue No.1 in the affirmative is illegal, arbitrary, bad
in law, unconstitutional and against the Principle of Natural
Justice. Hence, the finding recorded by the Learned Trial Court is
required to be disturbed and the judgment and decree passed in
Regular Civil Suit No.74/1990 dated 31/12/1994 is required to be
disturbed. Therefore, this appeal is required to be allowed, as the
Learned Trial Judge has not considered the gravity and magnitude of
the charges and unnecessarily committed an error of facts and law in
decreeing the suit of the original plaintiff. Hence, for the reasons
recorded by this court hereinabove, the impugned judgment and decree
passed in Regular Civil Suit No.74/1990 dated 31/12/1994 by the
learned Trial Judge is required to be set aside. Hence, I decide
points No.1 and 2 in the affirmative and as such I pass the following
order.ýý
/
/ ORDER \ \
Present
appeal is hereby allowed with costs.
Impugned
Judgment and Decree passed by the Learned Civil Judge, Senior
Division, Gondal in Regular Civil Suit No.74/1990 on dated
31/12/1994 is hereby quashed and set aside.
Respondent-Original
plaintiff to pay costs of this appeal as well as the suit to the
respondents ý Original defendants and shall bear his own costs.
Record
and proceedings of Regular Civil Suit No.74/1990 be immediately sent
to the Trial Court with one copy of this judgment.
Decree
to be drawn accordingly.ýý
4. Accordingly,
appellate Court allowed the appeal by the impugned judgment. Being
aggrieved by it, appellant has filed this appeal.
5. I
have considered the submissions made on behalf of the appellant and
also gone through the judgment of the appellate Court and other
relevant documents. I am in complete agreement with the reasonings
given and view taken by the by the appellate Court. No substantial
question of law has arisen in this appeal. Therefore, I do not find
any reason to interfere with the impugned judgment.
6. For
the reasons stated herein above, the appeal deserves to be dismissed
and the same is dismissed with no order as to costs.
(K.S.Jhaveri,
J.)
/malek