1. In the present writ petition, the petitioner is seeking quashing and setting aside of the order dated 05.03.2004 by which he has been terminated from the service.
2. The petitioner was appointed by the order dated 04/07.07.2000 passed by the respondent No.2 - Board on a probation for one year. There is a chequered history of the service of the petitioner. Initially, the petitioner was appointed as a Deputy Executive Engineer on probation basis in the Gujarat State Construction Corporation Ltd. on 25.01.1990. It appears that thereafter there were various deputation orders passed for appointing the petitioner in the Gujarat Water Supply and Sewerage Board, i.e., respondent No.2 - Board. In the meantime, he has also served with the Gujarat Maritime Board Subdivision, Veraval. It is not necessary to refer to all the earlier services as they have no bearing on the issue. Ultimately, he was appointed by the aforesaid order. The petitioner was posted at Balasinor as a Deputy Executive Engineer, Public Health and Sanitary Sub-Division and he worked on the said post between 07.07.2000 to 30.11.2000. After he was relieved from Balasinor on 30.11.2000, the dome of the water tank, which was being constructed and supervised by the petitioner, collapsed on 15.12.2000 after 15 days of his relieving from Balasinor. The collapse of dome resulted into eight deaths of the labourers. Thereafter, two Chief Executive Engineers namely, Shri P.K. Shah and Shri R.J. Suthar visited the site along with the other officers and submitted a preliminary report and the same was forwarded to the Vigilance Commissioner, Gujarat State, along with the communication dated 18.09.2001. The Vigilance Commission addressed a letter dated 27.06.2002 instructing the Board to take necessary penal actions against the petitioner and two other engineers and, thereafter, a charge sheet was issued on 07.08.2002 to the aforesaid delinquents including the present petitioner. Inquiry Officer namely, Mr.S.K. Shah, was appointed for presiding over the inquiry. After a detailed inquiry, the Inquiry Officer furnished his inquiry report dated 14.07.2003 holding the charges as proved.
2.1 In the meantime, the petitioner approached this Court by filing Special Civil Application No.2805 of 2004 seeking quashing and setting aside of the departmental inquiry. The aforesaid petition was disposed of by the order dated 05.03.2004 directing the disciplinary authority to consider the representation / final reply, which would be submitted by him to the disciplinary authority and it was directed that the authority shall take a decision after considering the contentions raised by the petitioner in his reply.
2.2 Thereafter, by the impugned order dated 05.03.2004, the petitioner is terminated from the service. The same is the subject matter of challenge in the present writ petition.
3. The first submission advanced by the learned advocate Mr.Asthavadi appearing for the petitioner is that the inquiry is required to be vitiated since the same is held by a non-technical person. He has submitted that for holding the inquiry of collapsing the dome, the inquiry officer should have been well conversant with the technicalities and since the Inquiry Officer, Mr.S.K. Shah, was not aware about the technicalities, the petitioner objected to the same. In support of his submissions, learned advocate Mr.Asthavadi has placed reliance on the circular dated 28.03.1999 and the Resolution dated 02.07.2001. He has submitted that as per the said Resolution and circular, the Board should have employed a person, who was having a technical knowledge instead of the retired employee, Mr.S.K. Shah. Thus, he has submitted that on this ground, the inquiry is required to be vitiated.
(i) Learned advocate Mr.Asthavadi has secondly, contended that a specific request was made to the Inquiry Officer to supply the relevant documents as mentioned in his communication dated 23.08.2002, 28.04.2003 and 27.05.2003, however, the most relevant documents mentioned alongwith the chargesheet, i.e., document at Serial No.1 - the contract and the document at Serial No.4 - drawing No.2 were not supplied. However, he has admitted that the document at Serial No.1 was not relied upon by the Inquiry Officer, but he has placed reliance upon the drawing No.2 and the same was required to be supplied to the petitioner. Mr.Asthavadi has submitted that by the communication dated 08.04.2003, the petitioner requested the Inquiry Officer to further supply the additional documents, which would be necessary for his defence, however, the same were not supplied by the Inquiry Officer.
(ii) The third submission advanced by the learned advocate Mr.Asthavadi is that as per the report of the technical experts annexed with the communication dated 18.09.2001, the concerned contractor was responsible for the collapse of the dome and not the petitioner. He has submitted that thus, once the experts have opined that the dome has not fallen down because of the act of the petitioner, the liability of the petitioner towards the misconduct cannot be fixed and hence, the impugned order is required to be set aside.
(iii) The fourth submission advanced by the learned advocate Mr.Asthavadi is that no witnesses are examined in the inquiry and the misconduct has been approved on the basis of the documentary evidence. It is submitted that the inquiry is held in violation of the principle of natural justice and hence, the departmental inquiry is required to be set aside.
3.1 Learned advocate Mr.Asthavadi has submitted that the impugned order suffers from non-application of mind and also is non-speaking order since the final defence statement of the petitioner dated 05.09.2003 is absolutely ignored by the authorities despite the orders of this Court passed in Special Civil Application No.2805 of 2004. He has submitted that this Court had directed the respondent authorities to consider all the contentions raised by the petitioner in his reply, however, while passing the impugned order, the same are absolutely ignored and hence, the same may be set aside. Thus, he has submitted that the petitioner may be reinstated with full back wages.
3.2 In support of his aforesaid submissions, learned advocate Mr.Asthavadi has placed reliance on the judgments of the Supreme Court in the case of State of UP and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772; in the case of Kashinath Dikshita Vs. Union of India and Others, (1986) AIR SC 2118; in the case of State of U.P. Vs. Shatrughan Lal and Another, (1998) 6 SCC 651; in the case of Allahabad Bank & Ors. Vs. Krishna Narayan Tewari, (2017) 2 SCC 308; in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) And Others, (2013) 10 SCC 324 .
3.3 Finally, learned advocate Mr.Asthavadi has further submitted that the criminal prosecution was filed against the contractor as well as his son and two employees of the board being Mr. H.S. Shaikh, Assistant Engineer and Mr. M.K. Jain, Work Charge Clerk were booked for the offences under Section 337, 338, 304A and 114 of the Indian Penal Code, 1860 and by the judgment and order dated 19.04.2006, the Judicial Magistrate First Class, Lunawada acquitted the said employees in the Criminal Case No.401 of 2001. Thus, he has submitted that the petitioner cannot be fastened with any misconduct.
3.4 Learned advocate Mr.Asthavadi has placed reliance on the Rule 9 sub-rule 3 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, ("the Rules").
4. Per contra, learned advocate Mr.Munshaw appearing for the respondent No.2 - Board has submitted that the departmental inquiry as well as the impugned order do not require any interference since the petitioner was appointed on a probation by the order dated 04.07.2000 and within a short span, he has indulged himself into the misconduct. He has submitted that the various notices / communications were issued to the petitioner during the period, he served at Balasinor between 07.07.2000 to 30.11.2000, for his irregularity in work. He has submitted that despite the aforesaid communications, the petitioner did not supervise the work and being a Deputy Executive Engineer, it was his duty to see that the construction of the dome was done in a proper manner by using proper material.
4.1 Learned advocate Mr.Munshaw has submitted that after the petitioner was relieved on 30.11.2000, the construction of the dome, which was being supervised by the petitioner, collapsed on 15.12.2000 resulting into death of eight labourers and immediately, two Chief Engineers namely, Shri P.K. Shah and Shri R.J. Suthar visited the site alongwith the other officers and submitted a preliminary report and it was forwarded to the Vigilance Commissioner, Gujarat State alongwith the letter dated 18.09.2001. He has submitted that the aforesaid committee was constituted of expert persons comprising of Chief Engineers namely, Shri R,J. Suthar and Shri P.K. Shah. He has submitted that the petitioner was given an ample opportunity in the preliminary inquiry and during the inquiry, the statements were recorded. He has invited the attention of this Court to the statement of the petitioner recorded on 22.02.2001 by the Committee in which he has admitted that he is occasionally visiting the site and he has not verified the measurements. Learned advocate Mr.Munshaw has also submitted that as per his statement, it is admitted that he did not maintain any monthly diary and log book and hence, in view of the aforesaid statement before the Committee, the petitioner, who was serving as a Deputy Executive Engineer, has been precisely removed from service in view of the misconduct. Thus, he has submitted that since the preliminary inquiry was held by the experts, there was no need to appoint an expert as an Inquiry Officer since the petitioner was also afforded the full opportunity in the preliminary inquiry. He has submitted that as per the Resolution dated 31.03.2001, several senior retired Government Officers were appointed on the panel of the Government and one of them was Mr.SK Shah, who was appointed by the Board to hold the departmental inquiry. He has submitted that the inquiry cannot be vitiated on this ground.
4.2 With regard to the submissions of non-supplying of the relevant documents, learned advocate Mr.Munshaw has submitted that, in fact, all the documents, as requested by the petitioner, were supplied to him. He has submitted that the document Nos.1 and 4, which were annexed alongwith the chargesheet, are not relied by the Inquiry Officer and hence, the non-supply of such documents will not vitiate the inquiry.
4.3 As regard the contention with regard to the non-consideration of defence statement of the petitioner dated 05.09.2003, learned advocate Mr.Munshaw has submitted that it was considered by the Inquiry Officer, which was forwarded to the disciplinary authority. He has submitted that thereafter, the original order of penalty was modified by issuing an impugned order dated 09.03.2004, in which the reference made in serial no.6 specifying that the final defence statement dated 28.06.2003, shall be considered as 05.09.2003. Thus, he has submitted that the impugned order dated 05.03.2004 should be read as if the defence statement of the petitioner dated 05.09.2003 has to be considered instead of 28.06.2003 as there was a mistake in incorporating the same.
4.4 Learned advocate Mr.Munshaw has further submitted that the Inquiry Officer's report was considered by the Board and the Committee while passing the Resolution dated 11.09.1998 and accordingly, after considering all the aspects of the matter, it was decided to terminate the services of the petitioner. Thus, he has submitted that no illegality is committed in terminating the service of the petitioner. It is submitted that the committee comprising of five members met on 29.10.2003 which recommended penalties to various delinquents and accordingly, it was recommended that the petitioner should be terminated from the service since his culpability was established.
4.5 Learned advocate Mr.Munshaw has finally submitted that due to collapse of the overhead tank, eight laborers have lost their lives. No leniency can be shown to the petitioner since he was appointed as Deputy Chief Engineer for looking to the technical administration of the construction of the overhead tank. He has submitted that it has come on record that the petitioner was very much negligent and lethargic in discharging his duties and also remained absent during his tenure. He has invited the attention of this Court to the various notices issued to the petitioner and the report of the expert body.
4.6 Learned advocate Mr.Munshaw has submitted that it cannot be said that only the contractor is responsible for the collapse of the tank, but the Committee has also found that the petitioner and other co-delinquents have committed grave negligence while supervising the work of the overhead tank and hence, the disciplinary proceedings may not be quashed.
4.7 Learned advocate Mr.Munshaw has further submitted that since the petitioner has not alleged any violation of the statutory rules, the judicial review in such matters is very limited, as held by the Supreme Court in various decisions. Thus, he has submitted that the present writ petition may not be entertained.
5. I have given thoughtful consideration to the arguments advanced by the learned advocates for the respective parties. The relevant reports as well as the documents are also perused by this Court.
6. During the course of the hearing, it was suggested by this Court to the learned advocate for the petitioner to take sense of the petitioner whether he would like to be reinstated in the service without back wages and to face the inquiry from the stage of defect, however, on the instructions of the petitioner, learned advocate Mr.Asthavadi has reported that the petitioner would like to invite the orders on merits by examining the validity of departmental proceedings instead of remand. He has placed reliance on the judgment of Apex Court in the case of Allahabad Bank and Ors vs Krishna Narayan Tiwari, (2017) 2 SCC 308 , and has submitted that since long time has elapsed, the matter may not be remanded to the authorities. This Court after hearing the prolix arguments of both the learned advocates has examined the departmental proceedings.
7. The petitioner was appointed on probation by the order dated 04.07.2000 on the post of Deputy Executive Engineer, Public Health and Sanitary Sub-Division and he was posted at Balasinor to supervise the work of the overhead tank. The petitioner worked at Balasinor from 07.07.2000 to 30.11.2000 as he was transferred on 29.11.2000 to Rajkot. After his transfer, within 15 days, the dome of water tank collapsed on 15.12.2000 resulting into death of eight labourers. Immediately, two Chief Engineers, namely, Shri P.K. Shah and Shri R.J. Suthar visited the site alongwith the other officers and held a preliminary inquiry and submitted their report to the Vigilance Commissioner vide communication dated 18.09.2001. The statement of the petitioner was also recorded by the Committee comprising of two experts; (1) Mr.P.K. Shah, Chief Engineer and; (2) Mr. R.J. Suthar, Chief Engineer. The preliminary report was prepared by the experts, who were well conversant with all the technicalities. The experts have given their reasons for the collapse of the tank in the report as well as in the communication dated 18.09.2001. The same reveals that the overhead tank collapsed because of the negligence of the contractor, who carried out the work. The report also reveals that prior to collapse of dome on 15.12.2000, on 12.12.2000 the Superintending Engineers had warned them not to do the alteration, but the son of the contractor carried out the same. The findings of the experts of the Committee also reveal that the petitioner was transferred on 30.11.2000 and after his transfer, on 12.12.2000, the said instructions were given by the Superintending Engineers to the son of the contractor restraining him to carry out rennovation.
8. It is opined by the expert committee that the contractor was primarily responsible for the collapse of such dome, however, the petitioner, who was working as Deputy Executive Engineer alongwith Mr. H.K. Rathod, Assistant Engineer as well as Mr. M.B. Makwana, Work Charge Clerk were also equally responsible.
9. The committee had recorded the statement of the petitioner on 22.02.2001. It would be relevant to incorporate the statement of the petitioner given before the Committee. It is stated by him that when he was handed over the charge, at that time, the construction was totally stopped by the contractor and the same was restarted in September, 2000. The petitioner has also stated that he used to occasionally visit the site. He has submitted that during the visit, the Site Supervisor or the Executive Engineer was with him. It is also admitted by him that when the straining wall was being constructed, he has not taken any measurement of the concrete as well as iron. It is admitted by the petitioner that when the work of construction was going on, he has not measured the concrete as well as the iron and also did not approve the same since the Supervisor as well as the Executive Engineer did not use to work as per his instructions and such alteration was made by the Executive Engineer. However, it is also admitted by him that no written instructions with regard to the same was given by him. It is further submitted that the Contractor, Supervisor, Executive Engineer had grudge against him since he was posted at Balasinor. Lastly, it is admitted by him that he did not maintain any monthly diary. From the statement of the petitioner, it is revealed that he was not regular in observing his duties.
10. In the considered opinion of this Court, since in the preliminary inquiry, the petitioner was already afforded ample opportunity of hearing by the Committee comprising of two experts, it was not necessary to further appoint an Inquiry Officer, having technical knowledge while holding the regular departmental inquiry. Thus, the contention raised by the petitioner with regard to setting aside the departmental inquiry on the ground that it not conducted by an Inquiry Officer, who was not an expert, does not merit acceptance.
10. As regards non-supply of the documents along with the charge sheet is concerned, the charge sheet reflects to five documents. The petitioner by his letter dated 08.04.2003 has submitted that he has received the documents mentioned at Serial No.2, 3, 5, 6 and 7 of the charge sheet, however, he was not supplied the documents mentioned at Serial Nos.1 and 4.
11. As noted hereinabove, learned advocate Mr.Asthavadi appearing for the petitioner has fairly admitted that the document No.1, which pertains to the contract, was not placed reliance by the Inquiry Officer. Thus, the grievance only survives to non-supply of document No.2. However, non-supplying of the document No.2 - drawing No.2 is concerned, this Court has perused the Inquiry Officer's report and from the report, it is revealed that the Inquiry Officer has called upon the petitioner to tender his explanation with regard to the discrepancy in the drawing. The Inquiry Officer has recorded the defence of the petitioner in the proceedings, more particularly, in paragraph No.(d) at page No.87. The petitioner has stated in his defence that before concreting, it was the responsibility of the sub-division to point out any discrepancy in constructing which is carried without following the drawing and such attention is required to be drawn to the contractor by the sub-division office. He has submitted that no such notice was received by him. It is further submitted in his defence that the Assistant Engineer as well as Work Charge Clerk used to regularly visit the site and they should have stopped the construction work, if the same was not being carried as per the drawing. Thus, before the Inquiry Officer, the petitioner has not pleaded any prejudice of non-supplying of the document No.2 and hence, as per the decision of the Supreme Court in the case of Syndicate Bank & Ors. Vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150, the enquiry cannot be vitiated.
The Apex Court has held thus:
"6. In our view, non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."
Thus, the Supreme Court has held that the non-supply of the documents on which the reliance is not placed by the Inquiry Officer would not cause any prejudice to the delinquent and even those documents which are not supplied and are relied upon then the delinquent has to establish that non-supply of such documents has caused prejudice to him. It further held that to sustain the allegation of violation of principles of natural justice, one has to establish that prejudice has been caused. In the present case, the petitioner has raised his defence with regard to the document (drawing), and he has not established that any prejudice has been caused due to non-supply of such document. Hence, the disciplinary proceedings cannot be vitiated in absence of any violation of principles of natural justice. The contention of the petitioner with regard to the non-supply of the additional documents does not merit acceptance, since it is established that such documents are not relied upon by the Inquiry Officer during the inquiry and hence, it would be said that no prejudice is caused to him.
12. The reliance placed on the judgment of Shatrughan Lal (Supra) by the petitioner with regard to the submissions of no supply of the copies of the documents, the same would not apply since in the facts of the case before the Supreme Court, no documents were supplied and the employees therein were directed to inspect those documents. Thus, it cannot be said that principles of natural justice are violated.
13. Similarly, in the case of Kashinath Dikshita (Supra), the Supreme Court had set aside the order of dismissal on the ground of violation of principles of natural justice as the documents on which reliance was placed were not supplied.
14. In such circumstances, the provisions of Rule 9(3) of the Rules cannot be said to have been vitiated. It is not in dispute and it is established from the record that after the inquiry was over and the inquiry Officer submitted his report, the petitioner approached this Court by filing Special Civil Application No.2802 of 2004 seeking quashing and setting aside the departmental inquiry and to reinstate him in service with all consequential benefits. This Court in the aforesaid petition by the order dated 05.03.2004 has observed thus:
"Heard learned advocate Mr.Dave for the petitioner. Undisputedly the Inquiry Officer has submitted the report and the petiitoner has filed his final reply thereto. The deicsion by the Disciplinary is awaited. The apprehension shown by the petitioner is not indicated to be founded on any concrete or contemporaneous material. The petition, therefore, at this stage cannot be entertained on a presumption that the Disciplinary Authority will not consider the contentions raised in the final reply submitted by the petitioner. It can legitimately be expected that the authority shall take a decision after considering the contentions that are raised by the petitioner in reply. This court is therefore not entertaining this petition at this stage. The petition stands disposed of."
15. This court by the aforesaid order had specifically directed the disciplinary authority to consider the contentions raised in the final reply submitted by the petitioner and it was also observed that it is legitimately expected that the authority shall take a decision after considering the contentions raised by the petitioner in his reply. Thus, a specific direction was issued to the respondent disciplinary authority to take a decision in his final defence statement. Accordingly, the petitioner filed his final defence statement on 05.09.2003.
16. This Court has considered the documents supplied by the learned advocate Mr.Munshaw appearing for the respondents during the course of hearing. The same refers to the impugned order dated 09.03.2004 as well as one communication written by the Inquiry Officer, wherein the final defence statement of the petitioner was referred. Such documents are ordered to be taken on record.
17. A bare perusal of the impugned order dated 05.03.2004 reveals that no reference of defence statement of the petitioner is found in the impugned order and in Item No.6 of the said order under the reference, the letter dated 28.06.2003 has been incorporated. It appears that the letter dated 28.06.2006 is filed by the petitioner in response to the brief of the Presenting Officer (Annexure-I). The petitioner has filed almost 12 pages reply raising all his contentions to the brief of the presenting officer. Subsequently, a case is made out by the respondent Board that the aforesaid Item No.6 of the reference in the impugned order dated 05.03.2004 has been amended by the order dated 09.03.2004, (which is supplied today), the reference of Item No.6 has been altered from the letter dated "28.06.2003" to "05.09.2003". Thus, the Board has tried to establish that in fact the final defence statement dated 05.09.2003 is considered before imposing the final penalty. The aforesaid submission is required to be highly deprecated and deserves to be rejected. The impugned order dated 05.03.2004 refers to the reply dated 28.06.2003 as a final defence statement, however, the same is the representation made by the petitioner to the brief of the Presenting Officer and not his final defence statement. Thus, assuming that the aforesaid reference of 28.06.2003 is incorrect and is a mistake and the same is to be read as "05.09.2003" instead of "28.06.2003". The impugned order suffers grave illegality since despite the directions issued by this Court dated 05.03.2004 to the respondents to deal with the contentions raised in final defence statement, the respondent Board had totally ignored the contentions raised by the petitioner in his defence statement.
18. When such attention was invited to the learned advocate Mr.Munshaw, he has tried to justify the action of the Board, by stating that, in fact, his representation was considered by the Board. He has submitted that the order dated 05.03.2004 removing the petitioner is only a formal order as the removal was passed by the authority after the decision of the Board, which is referred at Item No.7 of the impugned order. He has submitted that. in fact, the Board has considered the reply of the petitioner dated 05.09.2003 and accordingly, it was held that the petitioner should be imposed the punishment of removal. Such an approach of the Board is in violation of principles of natural justice since no such decision of the Board was supplied to the petitioner and the petitioner is only communicated the impugned order of punishment.
19. The documents which is returned by the Inquiry Officer to the Board reveals that he has referred to the contents of the final defence statement dated 05.09.2003 and the same is sent to the Board. Thus, there is no final adjudication or application of mind to the final defence statement dated 05.09.2003. Nothing has been produced on record nor it is conveyed to this Court by learned advocate Mr.Munshaw about the reasons observed by the Board or by the authority while imposing punishment of removal ignoring the final defence statement dated 05.09.2003 filed by the petitioner. As a disciplinary authority, the respondent Board or the Member Secretary, who has passed the order, was duty bound to act in a good faith and abide by the directions issued by this Court in the order dated 05.03.2004 passed in Special Civil Application No.2805 of 2004 by dealing with all the contentions raised by the petitioner in his final defence statement. In the present case, assuming the authorities have incorrectly considered the reply dated 28.06.2003 filed by the petitioner to the brief of the Presenting Officer, then also the contentions raised by the the petitioner in his defence statement should have been reflected in the order of punishment.
20. In this view of the matter, the impugned order suffers from absolute non-application of mind and is passed ignoring the directions of this Court in the order dated 05.03.2004 passed in Special Civil Application No.2805 of 2004. Thus, the impugned order dated 05.03.2004, being a non-speaking order and bereft of the necessary findings of the Inquiry Officer as well as the defence statement of the petitioner could have been quashed and set aside as per settled proposition of law vide Shri Anant R.Kulkarni Vs.Y.P.Education Society, (2013) 6 SCC 515 and the matter was required to be remanded to the disciplinary authority for passing fresh order as suggested by this Court, but the same is not set aside on the insistence of the petitioner since he wanted this Court to examine the matter on merits.
21. Since the petitioner has insisted to invite the order of this Court by examining the disciplinary proceedings on merits, it would be apposite to refer to the observations made by the Supreme Court in the case of Union of India and Others Vs. P.Gunasekaran, (2015) 2 SCC 610 . The Supreme Court has laid down the parameters with regard to the exercise of powers by the High Court under Articles 226 and 227 of the Constitution of India while dealing with the disciplinary proceedings. The Supreme Court has held thus:
"13. Under Article 226 /227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, many of the above principles have been discussed and it has been concluded thus:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
22. Thus, it is directed by the Supreme Court that under Articles 226 and 227 of the Constitution, the High Court shall not (i) reappreciating the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience. It is not established that any of the provisions of Rule 9 of the Gujarat Discipline a
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nd Appeal Rules, 1971 has been violated by the inquiry officer or the disciplinary authority. 23. Thus, this Court cannot re-appreciate the evidence or go into the adequacy or reliability of the evidence. As noted hereinabove, this Court does not find any illegality or infirmity in the departmental proceedings. The petitioner was only appointed on a probation by the order dated 04.07.2000 and within a period of five months, he was indulged into such negligence, which led to collapse of the water dome resulting into the death of eight labourers. 24. As noted herein above, since the petitioner has refused to accept the proposition of this Court, directing his reinstatement by setting aside the impugned order of punishment as the same is nonspeaking order and to face the fresh reasoned order; no useful purpose will be served to remand the matter to the disciplinary authority, since the petitioner has invited the observations of this Court on the findings of the disciplinary authority and the role of the petitioner in the entire episode. This Court after hearing the prolix arguments of both the learned advocates has examined the departmental proceedings, and it is found that the same are not tainted with any mala fide or procedural infirmity or violation of principles of natural justice. It is pertinent to note that the petitioner was serving on probation and was not yet confirmed on the post. The respondents have given him substantial opportunity of hearing both in the preliminary inquiry and the regular departmental inquiry to defend his case. The learned Advocate Mr.Asthavadi appearing on behalf of the petitioner has placed reliance on the decision of the Apex Court in the case of Krishna Narayan Tewari (supra) for refusing the proposition of this Court. The law enunciated by the Apex Court in said case will not apply to the instant facts since in the case before the Apex Court, the delinquent had retired from superannuation and he was rendered physically disabled due to stroke. In the present case, the petitioner has still got number of years to reach superannuation, and there is no physical disability pointed out to this Court. Thus, the petitioner cannot compare his case with the case of the delinquent who was before the Apex Court. 25. Since, the petitioner has invited this Court to examine the involvement of the petitioner in the miscoduct, and the findings of the inquiry officer, the Court has examined the same. The misconduct which is alleged against the petitioner is very serious in nature, since it is proved that his negligence has resulted into collapse of water dome leading to the death of 8 labourers. 26. This Court has also perused the various notices issued to the petitioner during the his period of probation for his irregularity in attending his duties and also for negligence. Thus, the impugned order dated 05.03.2004, though suffers from grave illegality of not considering the defence statement dated 05.09.2003 filed by the petitioner and, the same could have been quashed and set aside by directing the respondents to pass a final order after considering the defence statement, however, since the petitioner has chosen not to accept the order of remand by inviting the order on merits and after examining the entire matter on merits, this Court finds no illegality in the departmental proceedings. The impugned order of punishment is maintained. Thus, even if the order was set aside for the aforesaid illegality committed by the Board, in passing the final order without considering the defence statement; the remand would be a futile exercise as the petitioner has chosen to invite the order of this Court by examining the merits. 27. The writ petition fails. Rule discharged.