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M.L. Makwana Vs. Registrar, High Court of Gujarat - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR796
AppellantM.L. Makwana
RespondentRegistrar, High Court of Gujarat
Cases ReferredTara Chand Khatri v. Municipal Corporation of Delhi and Ors.
Excerpt:
.....side of the high court in passing the impugned order. he concurred with the opinion of the inquiry officer that the evidence of the witnesses examined on behalf of the presenting officer was unreliable and confirmed the finding recorded by the inquiry officer that the petitioner was entitled to be exonerated. if an accused has been acquitted by a sessions court and an appeal challenging the order of acquittal has been carried to the high court and if the accused is merely told to show cause why the order of acquittal should not be set aside, one cannot reasonably expect the accused concerned to effectively show cause. it would be futile to expect the accused concerned to support the order passed in his favour effectively unless he is made aware of the alleged infirmities. says..........class, khambhalia. charge-sheet as per annexure 'a' dated october 6, 1976 was served on him. the inquiry officer, by his reasoned order, on an appreciation of evidence of the witnesses who were examined at the enquiry, exonerated the petitioner as per order at annexure 'd' dated january 31, 1977. the report of the inquiry officer came up for consideration before the learned sessions judge of jamnagar in his capacity as the disciplinary authority. he concurred with the opinion of the inquiry officer that the evidence of the witnesses examined on behalf of the presenting officer was unreliable and confirmed the finding recorded by the inquiry officer that the petitioner was entitled to be exonerated. more than an year thereafter, on september 27, 1978, the high court on its.....
Judgment:

M.P. Thakkar, J.

1. Even Homer nods is the moral of this petition challenging an order passed by the Administrative side of the High Court. If a person is asked by an appellate authority to support a reasoned judgment passed in his favour without being told one word about what is wrong with it, can he effectively defend himself Can he avail of the opportunity meaningfully The point is brought home by this petitioner who has been removed from service from his post of Clerk in the Court of the Judicial Magistrate, First Class, Khambhalia by way of a disciplinary measure inasmuch as on admitted facts it is manifest that principles of natural justice have been violated by the administrative side of the High Court in passing the impugned order.

2. In connection with an incident relating to delivery of muddamal articles to the accused persons in a criminal case a departmental enquiry was instituted against the petitioner, who was at the material time employed as a Junior Clerk in the Court of the Judicial Magistrate, First Class, Khambhalia. Charge-sheet as per Annexure 'A' dated October 6, 1976 was served on him. The Inquiry Officer, by his reasoned order, on an appreciation of evidence of the witnesses who were examined at the enquiry, exonerated the petitioner as per order at Annexure 'D' dated January 31, 1977. The report of the Inquiry Officer came up for consideration before the learned Sessions Judge of Jamnagar in his capacity as the disciplinary authority. He concurred with the opinion of the Inquiry Officer that the evidence of the witnesses examined on behalf of the Presenting Officer was unreliable and confirmed the finding recorded by the Inquiry Officer that the petitioner was entitled to be exonerated. More than an year thereafter, on September 27, 1978, the High Court on its administrative side issued a show cause notice as per Annexure 'D' dated September 27, 1978 and called upon the petitioner to show cause why the finding recorded by the disciplinary authority exonerating him in respect of the charges levelled against him should not be set aside and why the petitioner should not be removed from service as in the opinion of the administrative side of the High Court the finding recorded by the disciplinary authority was 'not just having regard to the circumstances of the case'. The petitioner made a written representation. The administrative side of the High Court was of the opinion that personal hearing was not necessary but even so the petitioner would be heard personally if he wanted to be heard. Ultimately the petitioner did not remain present on the appointed day and the High Court on its administrative side by the impugned order as per Annexure 'E' dated March 12, 1979 removed the petitioner from service. It is this order which has been challenged by way of the present petition under Article 226 of the Constitution of India by the petitioner on the following three grounds:

(1) It was not open to the High Court to invoke powers under Rule 22 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 inasmuch as these powers of review could only be invoked by the Government and not by the High Court.

(2) Assuming that the High Court was justified in invoking powers under Rule 22, the impugned order was vitiated on the ground that action was initiated after undue delay viz. more than one year from the date of the order of exoneration passed by the disciplinary authority.

(3) The impugned order is a nullity having regard to the fact that it was passed in violation of principles of natural justice inasmuch as the petitioner was never told what infirmity, if any, was detected in the order passed by the disciplinary authority exonerating him of all the charges levelled against him.

3. Inasmuch as the petitioner is entitled to succeed on the third ground, it is not necessary to examine the validity or otherwise of the first two submissions urged on behalf of the petitioner.

4. Some facts are not in dispute namely:

(i) The petitioner was exonerated of the charge against him as per order at Annexure 'B' passed by the Inquiry Officer on January 31, 1977 wherein the Inquiry Officer has discussed the evidence of the three principal witnesses, namely, (1) Osman Ali, (2) Gani Musa and (3) Noormamad Umar.

(ii) The Inquiry Officer has given several reasons and has relied on several circumstances for disbelieving the evidence of these three witnesses.

(iii) The disciplinary authority, the Sessions Judge of Jamnagar, has concurred with the assessment of evidence made by the Inquiry Officer and has exonerated the petitioner as per order at Annexure 'C' dated August 12, 1977.

(iv) The petitioner has never been told as to how and in what respect the Inquiry Officer and the disciplinary authority had committed an error in exonerating the petitioner.

(v) The petitioner has never been made aware of infirmities, if any, in the aforesaid order of exoneration passed in his favour by the competent authorities as per Annexures 'B' and 'C'.

5. The High Court on its administrative side issued a notice as per Annexure 'D' on September 27, 1978 about one year after the order of exoneration passed by the competent authority. In the said show cause notice at Annexure 'D' all that the petitioner was told was that the Chief Justice and the Judges of the High Court were of the opinion that the order passed by the competent authority at the conclusion of the departmental enquiry against him was 'not just' having regard to the circumstances of the case. The petitioner could not have realised what was meant to be conveyed to him by the High Court in conveying to him that the High Court did not consider the order passed by the disciplinary authority in his favour to be 'just.' The question was not whether the order was just or not. The question was whether or not the order of exoneration was legal and/or correct. Even if the appellant was told that the order was illegal, erroneous, and contrary to record, (he has not been told so), he could not have successfully availed of the opportunity to show cause against the proposed action of removal from service for he would not know what was the alleged infirmity in the order passed in bis favour by the competent authority. All that the petitioner had to say was contained in the order of exoneration passed by the competent authority whereby a finding of 'not guilty' was recorded in his favour on appreciation of evidence. Unless reasons were communicated to him for taking the view that the order of exoneration was erroneous in some respect or suffered from some infirmity pointed out to the petitioner, the petitioner could not have shown cause against the proposed action. An illustration will make the position clear. If an accused has been acquitted by a Sessions Court and an appeal challenging the order of acquittal has been carried to the High Court and if the accused is merely told to show cause why the order of acquittal should not be set aside, one cannot reasonably expect the accused concerned to effectively show cause. It is only when some grounds are specified in the memo of appeal pointing out the errors committed by the Sessions Court or the infirmities which had crept into the order of the Sessions Court that the accused would have some notice in regard to the alleged infirmities or faults in the order which was in his favour. Unless some grounds were mentioned in the memo of appeal and unless some grounds were urged on behalf of the State in his presence and hearing, he could scarcely show cause against the proposal to reverse the order of acquittal. Visualise a case where an acquittal appeal is filed where no memorandum of appeal containing the grounds of challenge to the impugned order is filed and where the learned Public Prosecutor appearing for the State does not utter a single word in support of the appeal and where the Presiding Judge also keeps his mouth shut and does not communicate to the accused what in his opinion are the infirmities in the order passed in his favour. What cause can he show? Against what does he show cause? Against the tentative conclusion? In order to assail the order of acquittal somebody must identify the errors. Only when the accused is told what is wrong, he can show that what is considered to be the error is not an error at all. By analogy the same reasons would apply to the case of an employee being proceeded against in a departmental inquiry. It would be futile to expect the accused concerned to support the order passed in his favour effectively unless he is made aware of the alleged infirmities. It is, therefore, evident that the accused has been denied any opportunity to, show cause against the proposed action much less a reasonable opportunity.

6. Observations made by the Supreme Court in Tara Chand Khatri v. Municipal Corporation of Delhi and Ors. : (1977)ILLJ331SC , lend support to the contention of the petitioner in this behalf. Says the Supreme Court in paragraph 19 of its judgment-

In this connection, we would like to make it clear that white it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, if would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons.

(Emphasis supplied)

Rule 10(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 also reinforces the argument though it is attracted in a case where the disciplinary authority differs from an Inquiry Authority and not to a Case of a reviewing authority which differs from the disciplinary authority. The said rule provides:

(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

This rule affirms the principle canvassed on behalf of the petitioner though the rule itself is not applicable strictly speaking. What matters, however, is the principle embodied therein which is unexceptionable.

7. The impugned order must, therefore, be unhesitatingly quashed and set aside. It is declared that the impugned order removing the petitioner from service as per Annexure 'E' dated March 12, 1979 passed by 'the High Court on its administrative side is violative of principles of natural justice and is a nullity. The respondent shall treat the impugned order as non-existent and the petitioner shall be paid his salary for the period between the date of his removal from service and the order of his reinstatement. The petitioner will be reinstated latest by February 15, 1980 and will be paid salary for the intervening period on or before February 15,1980. It will be open to the competent authority to indicate the reasons for the tentative conclusion that the order of exoneration passed in favour of the petitioner is erroneous and to pass an appropriate order in accordance with law after affording reasonable opportunity in this behalf subject to the right of the petitioner to contend that the proceedings are vitiated by reason of the delay of more than one year in invoking powers under Rule 22. The petition is allowed. Rule is made absolute to the aforesaid extent with costs.


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