Full Judgment Text
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CASE NO.:
Appeal (civil) 897 of 2007
PETITIONER:
State of Gujarat
RESPONDENT:
Anand Acharya @ Bharat Kumar Sadhu
DATE OF JUDGMENT: 22/02/2007
BENCH:
C. K. Thakker & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
[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:
a) 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.
b) 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.
c) 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
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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
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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
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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.