IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL No 1475 of 1982
For Approval and Signature:
Hon'ble MR.JUSTICE A.M.KAPADIA
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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MADHUKAR HARISHANKER TRIPATHI
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
1. First Appeal No. 1475 of 1982
MR RN SHAH for Petitioner No. 1
MS TANUJA KACHCHI FOR MR MG NAGARKAR for Respondent No.1
MR SN SHELAT for Respondent No. 2
NOTICE SERVED for Respondent No. 3
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CORAM : MR.JUSTICE A.M.KAPADIA
Date of decision: 10/01/2002
ORAL JUDGEMENT
1.Challenge in this appeal is the judgment and
decree dated December 23, 1981 passed in Civil Suit No.
168 of 1978 by the learned Judge, 4th Court of the City
Civil Court, Ahmedabad whereby the suit filed by
appellant, who is the original plaintiff, came to be
dismissed.
2.Appellant has been serving in the Municipal
School Board since a number of years. He was promoted
vide order dated August 30, 1974 as Assistant
Administrative Officer. Respondent No.3, Administrative
Officer, served upon the appellant a charge-sheet dated
November 17, 1976 wherein several allegations including
dereliction of duty, neglecting work, not attending to
the duty punctually, exercising powers not vested in him
and misusing the powers, etc., were levelled against him.
By order dated December 31, 1976, respondent No.3
appointed one Mr. A.G. Shaikh as an inquiry officer to
hold inquiry in respect of the charges levelled against
the appellant. During the inquiry, the said charges were
proved and, therefore, the inquiry officer submitted his
report on May 17, 1977 to respondent No.3 and on the said
report respondent No.3 tentatively agreed with the
finding of the inquiry officer and issued show cause
notice for proposed punishment to the appellant and after
considering the reply of the appellant to the show cause
notice vide order dated November 28, 1977 reverted the
appellant from the post of Assistant Administrative
Officer to his original post of Supervisor and respondent
No.2, Municipal School Board, further ordered that the
appellant should not be given promotion for three years.
3.Aggrieved by the said finding and order of
punishment, the appellant filed a suit challenging the
order dated November 28, 1977 passed by respondent No.3.
It was contended in the plaint by the appellant that the
said order was malicious and it was passed against him
with a view to harass him as he was not amenable to the
illegal order of his superior. It was also contended
that the Administrative Officer who issued charge-sheet
was not the competent authority so far as the appellant
was concerned as the appellant was an employee of the
Municipal Corporation governed by the provisions of the
Bombay Provincial Municipal Corporations Act, 1949 and,
therefore, he was entitled to the protection of the
provisions conferred under the said Act and since the
said provisions were not followed by the competent
authority, inquiry held against him was vitiated. It was
also alleged that the inquiry was held almost exparte.
According to the appellant, respondent No.3 had no power
to delegate any authority to Mr. Shaikh to hold any
inquiry. It was also alleged that the inquiry officer
had not summoned some of the persons named by the
appellant like Administrative Officer, Deputy
Administrative Officer and the retired Office
Superintendent to examine as witnesses. It was also
alleged that the principles of natural justice were not
observed while conducting the inquiry and, therefore, by
filing the suit the appellant prayed for declaration that
the said inquiry and the final order is illegal and void.
The appellant also prayed to declare that he continues in
service on the post of Assistant Administrative Officer.
The appellant also prayed for a decree for the difference
of salary with 12% interest on it from the respondents.
4.The respondents appeared and contested the suit
by filing written statement at Ex.14 denying the
allegation of malafide, violation of principles of
natural justice, etc. According to the respondents, the
appellant had preferred an appeal against the impugned
order passed on basis of the inquiry and that appeal,
except for a small modification in the period of
promotional bar, was dismissed and the period of
promotional bar was reduced to two years from three years
and, therefore, the suit wherein the challenge was made
against the order dated November 28, 1977 reverting the
appellant from the post of Assistant Administrative
Officer to his original post of Supervisor was not
maintainable. It was also denied that Mr. AG Shaikh was
not a proper officer to hold inquiry since he was an
Assistant Administrative Officer and was of the same rank
of the appellant. So far as the allegation with respect
to non-summoning of the witnesses was concerned, the same
was denied. According to the respondents, the inquiry
officer had no power to compel the attendance of
witnesses and the inquiry authority was not responsible
if the persons summoned did not remain present before the
inquiry officer. Lastly it was contended that as an
exhaustive procedure of inquiry and appeal has been
provided for in the Education Act and the Rules, the
Civil Court will have no jurisdiction to hear and decide
the suit and ultimately urged to dismiss the suit.
5.On the pleadings of the parties, learned
predecessor-in-office of the trial Judge had framed
issues at Ex.18.
6.The parties have not led any oral evidence. The
respondents have produced the entire record of the
inquiry held against the appellant before the Court. The
learned trial Judge on appreciation and evaluation of the
evidence produced before him and the submissions advanced
at the bar by the learned advocates appearing for the
parties, came to the conclusion that the Civil Court has
jurisdiction to try and decide the suit and further held
that the inquiry held against the appellant was not
illegal and it was binding to the appellant.
Resultantly, the learned trial Judge has dismissed the
suit leaving the parties to bear their own costs. It is
this judgment and decree by which the appellant’s suit
came to be dismissed is on the anvil before this Court in
this appeal filed under section 96 of the Code of Civil
Procedure (‘the Code’ for short).
7.Mr. R.N. Shah, learned advocate for the
appellant, contended that the order dated November 28,
1977 passed by respondent No.3 by which the appellant was
reverted from the post of Assistant Administrative
Officer to the post of Supervisor was not proper in view
of the fact that the charges levelled against him are
very general in nature. What is stressed by the learned
counsel is that the officer who issued the charge-sheet
to the appellant was not the competent authority and
therefore also the order passed for holding departmental
inquiry was vitiated. It is emphatically contended by
the learned counsel that appointment of Mr. Shaikh as
inquiry officer was not proper inasmuch as the appellant
was working as Assistant Administrative Officer and the
inquiry officer Mr. Shaikh was also an Assistant
Administrative Officer who was junior to the appellant.
Lastly it is contended by the learned counsel that the
inquiry officer had not summoned some of the persons
named by the appellant like Administrative Officer,
Deputy Administrative Officer, retired Office
Superintendent and, therefore, principles of natural
justice were violated while conducting inquiry and
therefore also the inquiry was bad in law. On the
aforesaid premises, the learned counsel urged that the
judgment and decree of dismissal of the suit is bad in
law which is required to be quashed and set aside by
allowing the appeal and thereby to allow the suit by
granting prayer as prayed for in the plaint.
8.Ms. Tanuja Kachchi, learned advocate for
respondent No.1, supported the judgment of the trial
court throughout. She contended that though the inquiry
officer appointed to hold inquiry against the appellant
was of equal rank of the appellant he conducted the
inquiry in accordance with law by following the rules and
regulations of the Education Act as well as the Rules.
She has also contended that the officer who issued the
charge-sheet was the competent authority to issue
charge-sheet. She has maintained that the inquiry
officer was not bound to summon irrelevant persons as
witnesses though the inquiry officer in this case had
issued summons to all the persons named by the appellant
but some of them remained absent for which the inquiry
officer cannot be blamed saying that he had not followed
the principles of natural justice. She, therefore, urged
that there is no substance in this appeal and therefore
same deserves to be dismissed with costs and thereby to
confirm the judgment and decree which is impugned under
appeal.
9.I have considered the submissions advanced by the
learned advocates for the parties. I have perused the
judgment and award impugned in this appeal and also the
evidence produced on the record of the case.
10.At the outset it may be appreciated that there is
a provision to file departmental appeal against the order
passed by the inquiry officer under various provisions of
the Education Act and the Rules. There is catena of
decisions that finding recorded in departmental inquiry
can be challenged in a suit or in a petition filed under
Article 226 of the Constitution provided that the finding
recorded by the inquiry officer is based on irrelevant
consideration or misappreciation of evidence. Therefore
the scope of judicial review is limited and neither the
High Court nor the Civil Court can sit in appeal over the
finding recorded by the inquiry officer in a departmental
inquiry. However, in a given case High Court or Civil
Court can interfere if the penalty imposed is
disproportionate to the guilt of the delinquent and
shocks and conscience of the Court. Therefore, in my
view, the learned trial Judge has very rightly held that
the Civil Court has jurisdiction to decide the suit.
11.The first contention of Mr. Shah that reversion
of the appellant from the post of Assistant
Administrative Officer to his original post of Supervisor
in view of the fact that the charges levelled against him
were proved was not proper, has no substance. It may be
noted that the appellant was charged with the allegations
of dereliction of duty, neglecting work, not attending to
the duty punctually, exercising powers not vested in him
and misusing the powers, etc., and they were proved. The
inquiry officer Mr. Shaikh examined witnesses and on
proof thereof he came to the finding that charges
levelled against the appellant were proved and therefore
respondent No.3 tentatively agreed with the said findings
and issued show cause notice for the proposed punishment.
On considering the reply given by the appellant,
respondent No.3, Administrative Officer reverted him
whereas respondent No.2 had passed a further order that
the appellant should not be given promotion for three
years. The appellant had challenged this order. The
appellant had simultaneously filed departmental appeal
against the said order and in the said appeal order of
promotional bar was modified by reducing to two years
from three years. Therefore the appellant ought to have
challenged the appellate order before the Civil Court as
during the pendency of the Civil Suit the said order was
passed by the appellate authority. However, the
appellant elected not to amend the plaint and therefore
the learned trial Judge has very rightly held that the
order passed by respondent No.3 was merged into the
appellate order and the appellant is not entitled to any
relief as prayed for in the suit. It is settled position
of law and there is catena of decisions about doctrine of
merger and according to it, the order of the lower
authority shall merge with the order of appellate
authority.
12.The second contention that the officer who issued
charge-sheet to the appellant was not the competent
authority, therefore, inquiry was vitiated has also no
substance. The learned trial Judge has very exhaustively
considered the relevant provisions of the Education Act
and the Rules in paras 13 and 14 of his judgment and more
particularly in view of section 21 of the Education Act
the Administrative Officer is the Chief Executive Officer
of the Board having powers and duties as may be
prescribed. Therefore, the Administrative Officer has
got power to make appointment as well as to impose
punishment. By virtue of section 22 the authorized
municipality can appoint administrative officer and by
virtue of Section 24 the Administrative Officer can
exercise powers over the School Board staff. Therefore,
the learned trial Judge has rightly held that the
Administrative Officer has right to issue charge-sheet to
the appellant and since I am in complete agreement with
the finding recorded by the learned trial Judge in this
regard, the said contention advanced by Mr. Shah is
rejected.
13.The third contention of Mr. Shah that Mr.
Shaikh was not a proper officer to hold departmental
inquiry against the appellant as he was also an Assistant
Administrative Officer which was the same rank of the
appellant and he was junior to the appellant has also no
substance. It appears from the provisions of the
Education Act and the rules that the Assistant
Administrative Officer is an officer next below in rank
to the Administrative Officer. The proviso attached to
clause (b) of sub-rule (2) of Rule 63 makes it clear that
when an inquiry has to be held in the conduct of a staff
member, the Administrative Officer may, himself hold the
same or may authorize any other person, to hold such an
inquiry. In view of the aforesaid statutory provisions,
there was no bar to appoint Mr. Shaikh to conduct the
inquiry against the appellant. Therefore, this
contention of Mr. Shah is also devoid of merit and is
rejected.
14.The last contention of Mr. Shah that the inquiry
officer had not summoned some of the persons named by the
appellant like Administrative Officer, Deputy
Administrative Officer and retired Office Superintendent
has also no substance. It may be noted that the
proceedings of departmental inquiry are quasi judicial
proceedings and therefore strict proof of evidence cannot
be adhered to. If names of irrelevant persons are given
by the delinquent to examine them as witnesses it is not
necessary for the inquiry officer to summon them.
However, in the instant case the inquiry officer had
summoned the persons named by the appellant but they did
not turn up. Besides this, the record shows that the
inquiry officer had asked the appellant as to what was
the relevance of the evidence of those witnesses but the
appellant was not in a position to satisfy the inquiry
officer about the relevance and real need of summoning
those officers and, therefore, the inquiry officer did
not summon them.
15.It is well settled principle that appreciation of
evidence is within the purview of the domestic tribunal
and the civil court cannot sit in appeal over such
appreciation of evidence in the suit. The civil court
also cannot go into the question of sufficiency of
evidence. The only ground on which the civil court can
enter into the grievance against the order of the
domestic tribunal is that the order was passed on no
evidence. It is not the case in this case that there was
no evidence. Several documents were produced and several
witnesses were examined and several documents received in
evidence were considered by the inquiry officer and the
inquiry officer after giving sufficient opportunity to
the appellant to defend his case found him guilty of the
charges levelled against him. The competent authority,
that is, respondent No.3 before imposing punishment had
also issued show cause notice and after considering the
reply submitted by the appellant imposed the punishment
on him.
16.In view of the aforesaid state of affairs, I am
of the opinion that there is no infirmity or illegality
in conducting the departmental inquiry and therefore the
learned trial Judge has very rightly dismissed the suit.
17.Seen in the above context, there is absolutely no
merit in this appeal which is deserved to be dismissed.
18.For the foregoing reasons, the appeal fails and
accordingly it is dismissed with no order as to costs.
(A.M. Kapadia, J.)
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