State of
Gujarat Vs. Anand
Acharya @ Bharat Kumar Sadhu [2007] Insc 189 (22 February 2007)
C. K. Thakker & Lokeshwar Singh Panta
[Arising out of S. L. P. (C) No.9290 of 2005] Lokeshwar Singh Panta, J.
Special leave granted.
The appellant-State of Gujarat, challenging the order dated 25.11.2004 of
the High Court of Gujarat at Ahmedabad in LPA No. 2477 of 2004 in Special Civil
Application No.2479 of 2001, has filed this appeal, whereby the Division Bench
of the High Court has affirmed the judgment and order dated 20th March, 2001
passed by the learned Single Judge modifying the delinquent order of penalty
imposed on the respondent by the Disciplinary Committee.
The relevant facts giving rise to the filing of this appeal are as under:
Anand Acharya alias Bharat Kumar Sadhu, respondent herein, joined the
services of the appellant-State and has been serving as a Deputy Collector
since 30.03.1993. On 16.12.1995, the respondent was served with a charge sheet
on various grounds, which are mentioned below:
-
That, while discharging duties as a Cartographer in School Text Book
Board, Gandhinagar, Gujarat, which is under the State Government and during the
subsistence of his marriage with Bhavanaben Dave, he entered into immoral
relations with his wife's sister, i.e., his sister-in-law, Smitaben Dave, from
whom a daughter was born on 13.02.1989, thereby committed an act of moral
turpitude in terms of Rule 3(1)(3) and Rule 26 of the Gujarat Civil Services
(Conduct) Rules, 1971. Though, no evidence of marriage between the respondent
and Smitaben was led on record of the departmental proceedings, yet the name of
the respondent is entered to be the father of the girl.
-
That, since the respondent on his own
did not inform the Government about the Criminal Miscellaneous Application No.
184 of 1992 pending in the Court of the Metropolitan Magistrate at Ahmedabad
and Criminal Case No. 5094/1992 in the Court of the Judicial Magistrate (First
Class) at Gandhinagar thereby he committed breach of Rule 18 of the Gujarat
Civil Services (Conduct) Rules, 1971.
-
It was also made clear in the charges framed against the respondent, that
he, after getting divorce from his wife Bhavanaben and his illicit continuing
relationship with Smitaben, he married Priyaben and from that wedlock, a girl
child was born on 08.12.1994.
In the statement of imputation and the charge sheet served on the respondent
on 16-12-1995, detailed charges were framed vide Government Memorandum, Revenue
Department dated 16.12.1995 mentioned at (1) in the Preamble and after giving
an opportunity to file the reply within a period of 30 days to the charges
levelled against the respondent for violation of various Rules of the Gujarat
Civil Services (Conduct) Rules, 1971, he was subjected to departmental inquiry.
The Inquiry Officer was appointed on 03.01.1998.
The Inquiry Officer found charge [1(a)] not proved, charge [1(b)] having
been proved and charge [2] fully proved against the respondent. The Competent
Authority, after considering the Inquiry Report and agreeing with the findings
of the Inquiry Officer, served a show-cause notice on the respondent asking him
to submit a written explanation to the charges proved against him. The written
explanation/submission filed by the respondent was found unsatisfactory and not
acceptable. Thereafter, considering the seriousness of the charges, the
Government in consultation with the Gujarat Public Service Commission, took the
decision of removal of the respondent from the Government Service and,
accordingly, removed him by Order dated 22.10.1999.
The respondent challenged the order of dismissal by way of a Special Civil
Application No. 9487/1999 in the High Court of Gujarat at Ahmedabad. During the
pendency of the writ application, the respondent filed a Review Application before
the appellant-State on 22.10.1999, which could not be decided by the
appellant-State as the matter was sub-judice before the High Court. The
respondent withdrew the Special Civil Application No.9487/1999 on 13.09.2000
with a view to get his Review Application decided. The State Government finally
rejected the Review Application of the respondent on 05.01.2000.
The respondent again filed a Special Civil Application No.
2479 of 2001 on 20.03.2001 before the High Court of Gujarat in which he
challenges the order of dismissal from service dated 22.10.1999 and subsequent
order dated 05.01.2001 whereunder his Review Application came to be rejected.
The parties went to trial before the learned Single Judge of the High Court and
filed their reply and counter reply. The learned Single Judge vide order dated
23.07.2004 partly allowed the Special Civil Application and set aside the
impugned orders dated 22.10.1999 and 05.01.2001. The learned Single Judge
concluded that as the respondent has not disclosed the fact about the criminal
proceedings, which were pending before the Criminal Court in the year 1992,
such act would warrant some punishment and a penalty of stoppage of two
increments with future effect was ordered to be imposed upon the respondent.
The appellant-State was directed to reinstate the respondent in service with
continuity of service but without backwages on or before 01.09.2004, failing
which the respondent shall be entitled to the salary from that date.
Aggrieved by the order of the learned Single Judge, the State of Gujarat
filed a Letters Patent Appeal No. 2477/2004.
A Division Bench of the High Court dismissed the appeal in limine on
25.11.2004 and upheld the order of the learned Single Judge.
Now, the appellant-State is before this Court by means of this appeal.
We have heard learned counsel for the parties and perused the material on
record.
Mr. R. P. Bhatt, learned Senior Advocate appearing on behalf of the
appellant-State, contended that the High Court has failed to appreciate the
basic and important fact that the respondent was guilty of suppression of facts
inasmuch as he had failed to disclose the pendency of criminal proceedings
against him in 1994 in the Court of Judicial Magistrate (First Class) and
non-disclosure of the said pending proceedings amounted to violation of the
provisions of the Gujarat Civil Services (Conduct) Rules, 1971 governing the
service conditions of the respondent. He next contended that the reasoning
recorded by the learned Single Judge of the High Court that mere giving the
name of the respondent to be father of the girl in the birth certificate born
from his alleged illicit relationship with his sister-in-law Smitaben during
the subsistence of his first wife is sufficient evidence to prove that the
respondent was the father of the girl. He then contended that the Inquiry
Officer found the respondent guilty of misconduct because he again married one
Priyaben and from that wedlock one baby girl was born on 08.12.1994.
According to the learned senior counsel, the conduct of the respondent
constitutes moral turpitude and in violation of the provisions of the Conduct
Rules for which he was properly dealt with in departmental proceedings and
suitably punished by the Authority by imposing punishment of his dismissal from
service. The learned Senior Advocate contended that the High Court, in exercise
of its judicial reviewjurisdiction, has not given adequate and cogent reasons
to interfere with the quantum of punishment imposed on the respondent by the
Competent Authority.
Per contra, Mr. E. S. Saiyad, Advocate appearing on behalf of the respondent
has sought to support the judgment of the learned Single Judge which came to be
affirmed by a Division Bench of the High Court. He contended that this Court in
exercise of its jurisdiction and powers under Article 136 of the Constitution
of India should not interfere with the findings recorded by the High Court.
We have given our careful consideration to the respective contentions of the
parties and perused the relevant material on record.
The well-settled proposition of law that a court sitting in judicial review
against the quantum of punishment imposed in the disciplinary proceedings will
not normally substitute its own conclusion on penalty is not in dispute.
However, if the punishment imposed by the disciplinary authority or the
appellate authority shocks the conscience of the court, then the Court would
appropriately mould the relief either by directing the disciplinary/appropriate
authority to reconsider the penalty imposed or to shorten the litigation it may
make an exception in rare cases and impose appropriate punishment with cogent
reasons in support thereof [see Bhagat Ram v. State of H. P. (1983) 2 SCC 442;
Ranjit Thakur v. Union of India (1987) 4 SCC 611; and U. P. State Road
Transport Corporation and Anr. v. Mahesh Kumar Mishra &
Ors. (2000) 3 SCC 450].
Applying the said principles laid down by this Court in the cases noted
hereinbefore, we see that the Inquiry Officer had not found the respondent
guilty of having married Smitaben during the subsistence of first wife. The
department has not established on record that the respondent had married
Smitaben, except showing his name as father of the girl child allegedly born
out of his illicit relationship with Smitaben entered in the birth certificate.
The only allegation having been proved against the respondent by the Inquiry
Officer was non-disclosure of the criminal proceedings pending against him in
which the respondent was ultimately acquitted.
However, we do not agree with the finding of the learned Single Judge that
non-disclosure of the criminal proceedings pending against the respondent was
not of such a serious nature, which would call for removal of service on the
ground of moral turpitude. This finding cannot be sustained. The charge itself
shows that the respondent deliberately had concealed this fact for any
collateral consideration and at the most it could be an act of negligence. The
disciplinary authority, while considering the quantum of punishment, came to
the conclusion that the misconduct of the nature alleged against the respondent
should be viewed very seriously to prevent such actions in future, therefore
deterrent punishment of the respondent from the removal of service was imposed
on him.
It has come on record before the Inquiry Officer that the respondent had
divorced his first wife Smt. Bhavanaben on 12.12.1989. Smitaben, sister-in-law
of the respondent, filed an application before the Metropolitan Magistrate,
Gandhinagar claiming maintenance from the respondent fo her daughter Sweetu.
The Metropolitan Magistrate awarded Rs.350/- towards maintenance in favour of
Sweetu and against the respondent. In the said proceedings, Smitaben produced a
birth certificate dated 09.04.1992 issued by the Public Health Department of
the Government of Gujarat, in which registration of birth of a baby girl in
Gandhinagar was made at Serial No.307 dated 14.02.1989 giving the names of
mother as Smitaben and father Anandbhai Acharya residing in Block 759/3, Sector-24,
Gandhinagar. The respondent submitted an application on 24.02.1994 before the
Judicial Magistrate (First Class), Gandhinagar, for his discharge in these
proceedings.
The Division Bench of the High Court declined to interfere with the order of
the learned Single Judge as the learned Single Judge contained cogent reasons
in reducing the penalty. Hence, having considered the basis on which the
punishment of dismissal was imposed on the respondent and the facts and
circumstances of the case in hand, we are not inclined to interfere with the
findings recorded by the learned Single Judge and affirmed by the Division
Bench of the High Court modifying the order of punishment imposed on the
respondent by the disciplinary authority and substitution of the punishment of
withholding of two increments with future effect and directing the
appellant-State to reinstate the respondent in service without back wages.
For the above-said reasons, this appeal is dismissed.
Parties are left to bear their own costs.
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