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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.