{"id":114213,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/first-appeal-no-1475-of-1982-vs-ms-tanuja-kachchi-for-mr-mg-on-2-august-2011"},"modified":"2017-03-17T02:39:35","modified_gmt":"2017-03-16T21:09:35","slug":"first-appeal-no-1475-of-1982-vs-ms-tanuja-kachchi-for-mr-mg-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/first-appeal-no-1475-of-1982-vs-ms-tanuja-kachchi-for-mr-mg-on-2-august-2011","title":{"rendered":"First Appeal No. 1475 Of 1982 vs Ms Tanuja Kachchi For Mr Mg … on 2 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
First Appeal No. 1475 Of 1982 vs Ms Tanuja Kachchi For Mr Mg … on 2 August, 2011<\/div>\n
Author: A.M.Kapadia,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     FIRST APPEAL No 1475 of 1982\n\n\n\n\n     For Approval and Signature:\n\n\n\n              Hon'ble MR.JUSTICE A.M.KAPADIA\n\n\n     ============================================================\n<\/pre>\n
    1. Whether Reporters of Local Papers may be allowed      : NO
\n       to see the judgements?\n<\/p>\n
    2. To be referred to the Reporter or not?                    : NO<\/p>\n
    3. Whether Their Lordships     wish to see the fair copy     : NO
\n       of the judgement?\n<\/p>\n
    4. Whether this case involves a substantial question         : NO
\n       of law as to the interpretation of the Constitution
\n       of India, 1950 of any Order made thereunder?\n<\/p>\n
    5. Whether   it is to be circulated to the Civil Judge?      : NO<\/p>\n
     ————————————————————–<\/p>\n
\n     MADHUKAR HARISHANKER TRIPATHI\nVersus\n     AHMEDABAD MUNICIPAL           CORPORATION\n<\/pre>\n
     ————————————————————–
\n     Appearance:\n<\/p>\n
     1. First Appeal No. 1475 of 1982
\n          MR RN SHAH for Petitioner No. 1<\/span>
\n          MS TANUJA KACHCHI FOR MR MG NAGARKAR for Respondent No.1
\n          MR SN SHELAT for Respondent No. 2<\/span>
\n          NOTICE SERVED for Respondent No. 3<\/span><\/p>\n
     ————————————————————–\n<\/p>\n
              CORAM : MR.JUSTICE A.M.KAPADIA<\/p>\n
     Date of decision: 10\/01\/2002<\/p>\n
ORAL JUDGEMENT\n<\/p>\n
     1.Challenge in this appeal is the judgment and
\n     decree dated December 23, 1981 passed in Civil Suit       No.
\n 168 of 1978 by the learned Judge, 4th Court of the City
\nCivil Court, Ahmedabad whereby the suit      filed   by
\nappellant, who is the original plaintiff, came to be
\ndismissed.\n<\/p>\n
2.Appellant has been serving in the Municipal
\nSchool Board since a number of years. He was promoted
\nvide order dated     August   30,   1974   as   Assistant
\nAdministrative Officer.   Respondent No.3, Administrative
\nOfficer, served upon the appellant a charge-sheet dated
\nNovember 17, 1976 wherein several allegations including
\ndereliction of duty, neglecting work, not attending to
\nthe duty punctually, exercising powers not vested in him
\nand misusing the powers, etc., were levelled against him.
\nBy order dated December 31, 1976, respondent         No.3
\nappointed one Mr.   A.G. Shaikh as an inquiry officer to
\nhold inquiry in respect of the charges levelled against
\nthe appellant. During the inquiry, the said charges were
\nproved and, therefore, the inquiry officer submitted his
\nreport on May 17, 1977 to respondent No.3 and on the said
\nreport respondent No.3 tentatively agreed with        the
\nfinding of the inquiry officer and issued show cause
\nnotice for proposed punishment to the appellant and after
\nconsidering the reply of the appellant to the show cause
\nnotice vide order dated November 28, 1977 reverted the
\nappellant from the post of Assistant Administrative
\nOfficer to his original post of Supervisor and respondent
\nNo.2, Municipal School Board, further ordered that the
\nappellant should not be given promotion for three years.\n<\/p>\n
3.Aggrieved by the said finding and order of
\npunishment, the appellant filed a suit challenging the
\norder dated November 28, 1977 passed by respondent No.3.
\nIt was contended in the plaint by the appellant that the
\nsaid order was malicious and it was passed against him
\nwith a view to harass him as he was not amenable to the
\nillegal order of his superior.      It was also contended
\nthat the Administrative Officer who issued charge-sheet
\nwas not the competent authority so far as the appellant
\nwas concerned as the appellant was an employee of the
\nMunicipal Corporation governed by the provisions of the
\nBombay Provincial Municipal Corporations Act, 1949 and,
\ntherefore, he was entitled to the protection of the
\nprovisions conferred under the said Act and since the
\nsaid provisions were not followed by the competent
\nauthority, inquiry held against him was vitiated. It was
\nalso alleged that the inquiry was held almost exparte.
\nAccording to the appellant, respondent No.3 had no power
\nto delegate any authority to Mr.    Shaikh to hold any
\ninquiry.   It was also alleged that the inquiry officer
\nhad not summoned some of the persons named by the
\n appellant    like     Administrative   Officer,    Deputy
\nAdministrative    Officer   and   the   retired    Office
\nSuperintendent to examine as witnesses.       It was also
\nalleged that the principles of natural justice were not
\nobserved while conducting the inquiry and, therefore, by
\nfiling the suit the appellant prayed for declaration that
\nthe said inquiry and the final order is illegal and void.
\nThe appellant also prayed to declare that he continues in
\nservice on the post of Assistant Administrative Officer.
\nThe appellant also prayed for a decree for the difference
\nof salary with 12% interest on it from the respondents.\n<\/p>\n
4.The respondents appeared and contested the suit
\nby   filing   written statement at Ex.14 denying the
\nallegation of malafide, violation of principles        of
\nnatural justice, etc. According to the respondents, the
\nappellant had preferred an appeal against the impugned
\norder passed on basis of the inquiry and that appeal,
\nexcept for a small modification in the period          of
\npromotional   bar,   was dismissed and the period of
\npromotional bar was reduced to two years from three years
\nand, therefore, the suit wherein the challenge was made
\nagainst the order dated November 28, 1977 reverting the
\nappellant from the post of Assistant Administrative
\nOfficer to his original post of Supervisor was not
\nmaintainable. It was also denied that Mr. AG Shaikh was
\nnot a proper officer to hold inquiry since he was an
\nAssistant Administrative Officer and was of the same rank
\nof the appellant. So far as the allegation with respect
\nto non-summoning of the witnesses was concerned, the same
\nwas denied. According to the respondents, the inquiry
\nofficer   had no power to compel the attendance of
\nwitnesses and the inquiry authority was not responsible
\nif the persons summoned did not remain present before the
\ninquiry officer.    Lastly it was contended that as an
\nexhaustive procedure of inquiry and appeal has been
\nprovided for in the Education Act and the Rules, the
\nCivil Court will have no jurisdiction to hear and decide
\nthe suit and ultimately urged to dismiss the suit.\n<\/p>\n
5.On   the   pleadings  of the parties, learned
\npredecessor-in-office of the trial Judge had framed
\nissues at Ex.18.\n<\/p>\n
6.The parties have not led any oral evidence.   The
\nrespondents have produced the entire record of the
\ninquiry held against the appellant before the Court. The
\nlearned trial Judge on appreciation and evaluation of the
\nevidence produced before him and the submissions advanced
\nat the bar by the learned advocates appearing for the
\nparties, came to the conclusion that the Civil Court has
\n jurisdiction to try and decide the suit and further held
\nthat the inquiry held against the appellant was not
\nillegal and    it   was   binding   to   the   appellant.
\nResultantly, the learned trial Judge has dismissed the
\nsuit leaving the parties to bear their own costs. It is
\nthis judgment and decree by which the appellant’s suit
\ncame to be dismissed is on the anvil before this Court in
\nthis appeal filed under section 96 of the Code of Civil
\nProcedure (‘the Code’ for short).\n<\/p>\n
7.Mr. R.N.       Shah, learned advocate for the
\nappellant, contended that the order dated November 28,
\n1977 passed by respondent No.3 by which the appellant was
\nreverted   from the post of Assistant Administrative
\nOfficer to the post of Supervisor was not proper in view
\nof the fact that the charges levelled against him are
\nvery general in nature. What is stressed by the learned
\ncounsel is that the officer who issued the charge-sheet
\nto the appellant was not the competent authority and
\ntherefore also the order passed for holding departmental
\ninquiry was vitiated. It is emphatically contended by
\nthe learned counsel that appointment of Mr. Shaikh as
\ninquiry officer was not proper inasmuch as the appellant
\nwas working as Assistant Administrative Officer and the
\ninquiry officer Mr.      Shaikh was also an     Assistant
\nAdministrative Officer who was junior to the appellant.
\nLastly it is contended by the learned counsel that the
\ninquiry officer had not summoned some of the persons
\nnamed by the appellant like Administrative Officer,
\nDeputy    Administrative     Officer,   retired    Office
\nSuperintendent and, therefore, principles of natural
\njustice   were violated while conducting inquiry and
\ntherefore also the inquiry was bad in law.        On the
\naforesaid premises, the learned counsel urged that the
\njudgment and decree of dismissal of the suit is bad in
\nlaw which is required to be quashed and set aside by
\nallowing the appeal and thereby to allow the suit by
\ngranting prayer as prayed for in the plaint.\n<\/p>\n
8.Ms.    Tanuja    Kachchi,   learned advocate for
\nrespondent No.1, supported the judgment of the trial
\ncourt throughout.    She contended that though the inquiry
\nofficer appointed to hold inquiry against the appellant
\nwas of equal rank of the appellant he conducted the
\ninquiry in accordance with law by following the rules and
\nregulations of the Education Act as well as the Rules.
\nShe has also contended that the officer who issued the
\ncharge-sheet was the competent authority        to   issue
\ncharge-sheet.     She has maintained that the inquiry
\nofficer was not bound to summon irrelevant persons as
\nwitnesses though the inquiry officer in this case had
\n issued summons to all the persons named by the appellant
\nbut some of them remained absent for which the inquiry
\nofficer cannot be blamed saying that he had not followed
\nthe principles of natural justice. She, therefore, urged
\nthat there is no substance in this appeal and therefore
\nsame deserves to be dismissed with costs and thereby to
\nconfirm the judgment and decree which is impugned under
\nappeal.\n<\/p>\n
9.I have considered the submissions advanced by the
\nlearned advocates for the parties. I have perused the
\njudgment and award impugned in this appeal and also the
\nevidence produced on the record of the case.\n<\/p>\n
10.At the outset it may be appreciated that there is
\na provision to file departmental appeal against the order
\npassed by the inquiry officer under various provisions of
\nthe Education Act and the Rules.    There is catena of
\ndecisions that finding recorded in departmental inquiry
\ncan be challenged in a suit or in a petition filed under
\nArticle 226 of the Constitution provided that the finding
\nrecorded by the inquiry officer is based on irrelevant
\nconsideration or misappreciation of evidence.   Therefore
\nthe scope of judicial review is limited and neither the
\nHigh Court nor the Civil Court can sit in appeal over the
\nfinding recorded by the inquiry officer in a departmental
\ninquiry. However, in a given case High Court or Civil
\nCourt   can   interfere   if   the   penalty imposed is
\ndisproportionate to the guilt of the delinquent and
\nshocks and conscience of the Court. Therefore, in my
\nview, the learned trial Judge has very rightly held that
\nthe Civil Court has jurisdiction to decide the suit.\n<\/p>\n
11.The first contention of Mr. Shah that reversion
\nof   the   appellant   from   the   post   of   Assistant
\nAdministrative Officer to his original post of Supervisor
\nin view of the fact that the charges levelled against him
\nwere proved was not proper, has no substance. It may be
\nnoted that the appellant was charged with the allegations
\nof dereliction of duty, neglecting work, not attending to
\nthe duty punctually, exercising powers not vested in him
\nand misusing the powers, etc., and they were proved. The
\ninquiry officer Mr. Shaikh examined witnesses and on
\nproof thereof he came to the finding that charges
\nlevelled against the appellant were proved and therefore
\nrespondent No.3 tentatively agreed with the said findings
\nand issued show cause notice for the proposed punishment.
\nOn   considering   the reply given by the appellant,
\nrespondent No.3, Administrative Officer reverted him
\nwhereas respondent No.2 had passed a further order that
\nthe appellant should not be given promotion for three
\n years. The appellant had challenged this order. The
\nappellant had simultaneously filed departmental appeal
\nagainst the said order and in the said appeal order of
\npromotional bar was modified by reducing to two years
\nfrom three years. Therefore the appellant ought to have
\nchallenged the appellate order before the Civil Court as
\nduring the pendency of the Civil Suit the said order was
\npassed by the appellate authority.         However,   the
\nappellant elected not to amend the plaint and therefore
\nthe learned trial Judge has very rightly held that the
\norder passed by respondent No.3 was merged into the
\nappellate order and the appellant is not entitled to any
\nrelief as prayed for in the suit. It is settled position
\nof law and there is catena of decisions about doctrine of
\nmerger and according to it, the order of the lower
\nauthority shall merge with the order of         appellate
\nauthority.\n<\/p>\n
12.The second contention that the officer who issued
\ncharge-sheet to the appellant was not the competent
\nauthority, therefore, inquiry was vitiated has also no
\nsubstance. The learned trial Judge has very exhaustively
\nconsidered the relevant provisions of the Education Act
\nand the Rules in paras 13 and 14 of his judgment and more
\nparticularly in view of section 21 of the Education Act
\nthe Administrative Officer is the Chief Executive Officer
\nof the Board having powers and duties as may           be
\nprescribed.   Therefore, the Administrative Officer has
\ngot power to make appointment as well as to impose
\npunishment.   By virtue of section 22 the authorized
\nmunicipality can appoint administrative officer and by
\nvirtue of Section 24 the Administrative Officer can
\nexercise powers over the School Board staff.   Therefore,
\nthe learned trial Judge has rightly held that the
\nAdministrative Officer has right to issue charge-sheet to
\nthe appellant and since I am in complete agreement with
\nthe finding recorded by the learned trial Judge in this
\nregard, the said contention advanced by Mr.      Shah is
\nrejected.\n<\/p>\n
13.The third contention of Mr.       Shah that Mr.
\nShaikh was not a proper officer to hold departmental
\ninquiry against the appellant as he was also an Assistant
\nAdministrative Officer which was the same rank of the
\nappellant and he was junior to the appellant has also no
\nsubstance.   It appears from the provisions of        the
\nEducation   Act   and   the   rules that the Assistant
\nAdministrative Officer is an officer next below in rank
\nto the Administrative Officer. The proviso attached to
\nclause (b) of sub-rule (2) of Rule 63 makes it clear that
\nwhen an inquiry has to be held in the conduct of a staff
\n member, the Administrative Officer may, himself hold the
\nsame or may authorize any other person, to hold such an
\ninquiry.   In view of the aforesaid statutory provisions,
\nthere was no bar to appoint Mr. Shaikh to conduct the
\ninquiry against   the   appellant.      Therefore,   this
\ncontention of Mr. Shah is also devoid of merit and is
\nrejected.\n<\/p>\n
14.The last contention of Mr. Shah that the inquiry
\nofficer had not summoned some of the persons named by the
\nappellant    like    Administrative    Officer,    Deputy
\nAdministrative Officer and retired Office Superintendent
\nhas also no substance.      It may be noted that the
\nproceedings of departmental inquiry are quasi judicial
\nproceedings and therefore strict proof of evidence cannot
\nbe adhered to. If names of irrelevant persons are given
\nby the delinquent to examine them as witnesses it is not
\nnecessary   for the inquiry officer to summon them.
\nHowever, in the instant case the inquiry officer had
\nsummoned the persons named by the appellant but they did
\nnot turn up. Besides this, the record shows that the
\ninquiry officer had asked the appellant as to what was
\nthe relevance of the evidence of those witnesses but the
\nappellant was not in a position to satisfy the inquiry
\nofficer about the relevance and real need of summoning
\nthose officers and, therefore, the inquiry officer did
\nnot summon them.\n<\/p>\n
15.It is well settled principle that appreciation of
\nevidence is within the purview of the domestic tribunal
\nand the civil court cannot sit in appeal over such
\nappreciation of evidence in the suit.   The civil court
\nalso cannot go into the question of sufficiency of
\nevidence. The only ground on which the civil court can
\nenter into the grievance against the order of the
\ndomestic tribunal is that the order was passed on no
\nevidence. It is not the case in this case that there was
\nno evidence. Several documents were produced and several
\nwitnesses were examined and several documents received in
\nevidence were considered by the inquiry officer and the
\ninquiry officer after giving sufficient opportunity to
\nthe appellant to defend his case found him guilty of the
\ncharges levelled against him. The competent authority,
\nthat is, respondent No.3 before imposing punishment had
\nalso issued show cause notice and after considering the
\nreply submitted by the appellant imposed the punishment
\non him.\n<\/p>\n
16.In view of the aforesaid state of affairs, I am
\nof the opinion that there is no infirmity or illegality
\nin conducting the departmental inquiry and therefore the
\n learned trial Judge has very rightly dismissed the suit.\n<\/p>\n
17.Seen in the above context, there is absolutely no
\nmerit in this appeal which is deserved to be dismissed.\n<\/p>\n
18.For the foregoing reasons, the appeal fails and
\naccordingly it is dismissed with no order as to costs.\n<\/p>\n
(A.M. Kapadia, J.)\n<\/p>\n
—<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court First Appeal No. 1475 Of 1982 vs Ms Tanuja Kachchi For Mr Mg … on 2 August, 2011 Author: A.M.Kapadia, 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 ============================================================ 1. Whether Reporters of Local Papers may be allowed : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-114213","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nFirst Appeal No. 1475 Of 1982 vs Ms Tanuja Kachchi For Mr Mg ... on 2 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/first-appeal-no-1475-of-1982-vs-ms-tanuja-kachchi-for-mr-mg-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"First Appeal No. 1475 Of 1982 vs Ms Tanuja Kachchi For Mr Mg ... on 2 August, 2011 - 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