This is a Special Civil Application challenging the removal of a Female Health Worker from services. The High Court, invoking extraordinary jurisdiction under Articles 226 and 227 Constitution of India, examined the evidence and concurrent decisions below and dismissed the petition as devoid of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/15953/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15953 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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2 To be referred to the Reporter or not ?
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MAJULABEN SHIVAJIBHAI WAGHELA
Versus
STATE OF GUJARAT
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Appearance:
MR KIRTIDEV R DAVE(3267) for the PETITIONER(s) No. 1 MR RAHUL K DAVE(3978) for the PETITIONER(s) No. 1 MR BHARGAV PANDYA, AGP for the RESPONDENT(s) No. 1 MR RAJESH CHAUHAN FOR MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 3,4,5
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 12/12/2018
ORAL JUDGMENT
1.The present petition under Articles 226 and 227 of
the Constitution of India is filed for the purpose of
seeking following reliefs :
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“A.Your Lordships be pleased to admit this
petition.
B.Your Lordships be pleased to issue writ of
certiorari or any other proper writ, direction
or order holding that the order of the
respondents terminating the services of the
petitioner are bad in law, ultravires and
unconstitutional and those be quashed and set
aside and further it be directed that the
petitioner be reinstated in service with full
back wages and all other consequential
benefits.
C.That Your Lordships be pleased to order
that the pending admission, hearing and
disposal of this petition the orders under
challenge be suspended .
D.Your Lordships be pleased to grant any
other relief/s as may be deemed fit in the
facts and circumstances of the case.”
2.It is the case of the petitioner that she was
working as Female Health Worker at Primary Health
Centre, Suvai. On account of some misbehavior,
attitude towards the fellow employees and
absenteeism, the respondent No.4 issued a show cause
notice on 20.8.1998 and after the inquiry, the Deputy
DDO submitted his report on 19.4.2002 holding the
petitioner responsible for all the four charges which
are proved during the course of inquiry. After
submission of inquiry report, for the purpose of
punishment, a notice was given on 3.5.2002 and after
taking into consideration the report of Dy.DDO, the
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respondent No.4 passed an order on 25.3.2003 removing
the petitioner from the service. Said removal was
challenged mainly on the premise that defence has not
been considered at all and the petitioner was not
heard and conveniently, prejudicial order is passed
contrary to the principles of natural justice. As
required, the petitioner feeling aggrieved by the
said order of removal, preferred an appeal before the
appellate forum i.e. before respondent No.3 and as
per the case of the petitioner, without any speaking
order, the said authority dismissed the appeal vide
order dated 6.3.2004 and this non-speaking order
since prejudicial, was made the subject matter of
further appeal before respondent No.5 i.e. the
Tribunal and the Tribunal by order dated 22.2.2006
was pleased to dismiss the appeal filed by the
petitioner. It is against these concurrent decisions
of three authorities, the present petition is brought
by invoking extraordinary jurisdiction of this Court.
3.This petition was entertained by this Court on
16.4.2007 by issuing Rule and after completion of the
pleadings, it has come up for final disposal before
this Court, in which Mr.K.R.Dave, learned advocate
has presented the petitioner and Mr.Rajesh Chauhan,
learned advocate for Mr.H.S.Munshaw, learned
advocate, has represented the respondent No.2.
4.Mr.K.R.Dave,learnedadvocateforthe
petitioner, has vehemently contended that the
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conclusion arrived at by all the authorities below,
is not well supported by any evidence and, therefore,
the conclusion apparently found to be perverse. It
has further been submitted that inquiry has been
conducted by a different officer than one who passed
an order which violates the principles of natural
justice. It has been submitted that misbehaving with
the staff is essentially an allegation against the
husband, for which he has been separately dealt with.
But in any case the charge qua the present petitioner
cannot be said to be proved even of preponderance of
probabilities and, therefore, substantially the
charge was against the husband, the petitioner has
been erroneously dealt with.
4.1Learned advocate for the petitioner has further
contended that the inquiry has been conducted not in
the manner in which the Rules are requiring and an
attempt is made to make the petitioner scapegoat of
misbehavior and misconduct of the husband against the
staff members. The order of penalty was carried in
appeal as well as before the Tribunal wherein
contentions have not been properly dealt with. As a
result of this, the relief prayed for deserves to be
granted. It has been contended that every exercise of
jurisdiction must be well supported by valid and
independent reasons and here is a case in which it
appears that orders have been passed under dictation
of superior authority and, therefore, since the
findings are not well supported by valid reasons, the
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order in question and consequential orders deserve to
be quashed and set aside. No other submissions have
been made.
5.To meet with the stand taken by learned advocate
for the petitioner, Mr.Rajesh Chauhan, learned
advocate for Mr.H.S.Munshaw, learned advocate
appearing for the respondent authority, has
vehemently opposed the petition mainly on the premise
that as many as four charges were levelled against
the petitioner and during the course of inquiry, all
these charges have been proved and established and
only thereafter, the order came to be passed. As a
result of this, in the absence of any material
irregularity, there is no question of interfering
with the penalty at the behest of the petitioner.
Learned advocate has further submitted that a
detailed report has been prepared by the Inquiry
Officer, who conducted the inquiry and the petitioner
has participated without any demur during the course
of entire inquiry and when the petitioner has
participated in the process of inquiry, now she
should be estopped from taking plea of technical
nature. On the contrary, a consistent absenteeism of
various periods has been analyzed and having found
that there is an incorrigible attitude, not likely to
be improved and such unauthorized absence has been
established, the disciplinary authority has thought
it fit to inflict a punishment of removal. The
inquiry report at length has been taken to the notice
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of the Court and by inviting the attention to various
paragraphs, it has been contended that the entire
staff was at peril on account of behaviour of the
petitioner as well as the husband. On the contrary,
all the witnesses who have been examined during the
course of inquiry have established the said charge
against the petitioner and when overall material is
taken into consideration and the conclusion is
arrived at, such conclusion may not be allowed to be
substituted, even if another view is possible.
Learned advocate has further submitted that entire
inquiry has been conducted in a just and proper
manner and more than adequate opportunity has been
given to the petitioner and that fact has been
examined at three stages; first when the order in
origin is passed and thereafter, in appeal and then
before the Tribunal and only after examining the
material, a detailed order is passed which cannot be
said to be laconic in any nature. A bare look at the
judgment passed by the Gujarat Civil Services
Tribunal clearly reflects that what has been found is
based upon the material and the arguments at length
has been considered and, therefore, the quantum of
punishment which has been inflicted upon by the
disciplinary authority, even the Tribunal could not
found it proper to substitute the penalty and,
therefore, since essentially the penalty aspect is
normally left to the discretion of the disciplinary
authority, the Court may not exercise extraordinary
jurisdiction. The authority has submitted a detailed
reply and on the basis of such, a request is made
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that against concurrent decisions of all the three
authority below, no petition be entertained. Learned
advocate has submitted that the orders have been
passed by the competent authorities and cannot be
said in any manner that there is any lack of
authority in passing of order of punishment.
Resultantly, the petition being devoid of merit,
deserves to be dismissed.
6.Having heard the learned advocates appearing for
the respective parties and having gone through the
material on record, the Court on the basis of
evaluation of material found that there is enough
material against the petitioner about the charges
which have been levelled. Several witnesses have been
examined and after considering the oral as well as
the oral as well as documentary evidence, a final
conclusion is arrived at after thorough inquiry and
when all the three authorities below have properly
examined the matter, in considered opinion of this
Court, this is not a fit case in which any
substitution of finding is possible, since there is
no material irregularity nor any perverse finding.
7.A bare perusal of the appellate order as well as
the order passed by the Tribunal is indicative of the
fact that proper opportunity has been given and after
examining the relevant record only, these orders have
been passed which in the opinion of this Court would
not fall within the purview of exercise of
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extraordinary jurisdiction. It is further noticed
from the material that an attention is tried to be
divulged by asserting that it is the misdeeds of
husband which ultimately led to a situation. But, in
fact, several witnesses have been examined during the
course of inquiry and in that process it has been
found in no uncertain terms that the petitioner in
the capacity as one of the co-employee has committed
a misconduct. Therefore, the authority has rightly
dealt with the issue and passed an order of removal.
8.A detailed affidavit-in-reply has been submitted
by the authority which has clearly indicated that in
what manner the decision-making process against the
petitioner has taken place. On the contrary, not only
the opportunity is given but, there were several
complaints lodged in respect of misbehavior and the
charges are found to be very serious and apart from
those charges, even there is an act of gross
indiscipline by remaining absent unauthorizedly on a
frequent time which timings have also culled out from
the material on record. Therefore, so long as the
authority has given a full opportunity to meet with,
there is hardly any reason for this Court to
substitute its view qua that of the disciplinary
authority.
9.It is settled position of law that the High
Court should not act as an appellate authority over
the decision of disciplinary authority since the
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punishment aspect is generally left it open for the
disciplinary authority and overall material on record
and the concurrent decisions which have been
delivered, found no case in favour of the petitioner.
Hence, the petitioner has miserably failed to make
out a case to grant any relief. Resultantly, keeping
in view the scope of Article 227 of the Constitution
of India, this Court is unable to exercise the
discretion. Accordingly, the petition being devoid of
merits, is dismissed hereby. Rule is discharged.
Interim relief, if any, granted earlier stands
vacated.
(A.J. SHASTRI, J)
V.J. SATWARA
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2 issues framed by the court
Whether the writ court should interfere with the removal order of the petitioner despite concurrent findings by three authorities.
Whether there is any material irregularity or perverse finding warranting exercise of extraordinary jurisdiction under Articles 226 and 227.
MAJULABEN SHIVAJIBHAI WAGHELA
STATE OF GUJARAT
A.J. SHASTRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court