Dhirubhai Naranbhai Patel, J. - (1.) THIS Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 3936 of 2003 dated 5th August, 2009, whereby, the petition preferred by the appellant (original petitioner) was dismissed by the learned Single Judge and the order of dismissal passed by the respondent authority has been upheld and therefore, the original petitioner has preferred this Letters Patent Appeal.
(2.) FACTUAL Matrix. • On 22nd May, 2001, a letter was written by one complainant that this appellant and another Police Constable had received illegal gratification for issuance of the passport. These facts were verified and ultimately, chargesheet was issued upon this appellant on 20th August, 2001 (Annexure -2 to the memo of this L.P.A). • Enquiry Officer was appointed, a detailed enquiry was conducted, witnesses were examined and Enquiry Officer gave report on 16th April, 2002 (Annexure -4 to the memo of this L.P.A) and Enquiry Officer came to the conclusion that charges levelled against this appellant -delinquent have been proved. • Against this appellant, criminal charges were also levelled against him under Sections 420, 465, 467 to be read with Section 34 of the Indian Penal Code and as the complainant had turned hostile, order of acquittal was passed on 10th March, 2003. • Before this order of acquittal, on 16th October, 2002 on the basis of the enquiry officer's report and after giving adequate opportunity of being heard, dismissal order was already passed by the disciplinary authority, which was confirmed by the appellate authority vide order dated 29th May, 2004 (Annexure -7 to the memo of this L.P.A.). • As this appellant has been acquitted by the trial Court in the criminal proceedings vide order dated 10th March, 2003, writ petition was preferred bearing W.P.(S) No. 3936 of 2003 for quashing and setting aside the order of dismissal passed by the respondent. • This writ petition was dismissed by the learned Single Judge vide order dated 5th August, 2009 and hence, the appellant (original petitioner) of the writ petition has preferred the present Letters Patent Appeal. Arguments canvassed by the counsel for the Appellant (original petitioner). • Counsel appearing for the appellant submitted that the charges levelled against this appellant on a civil side is exactly matching with the charges levelled against him on a criminal side and as there is order of acquittal by the trial court in the criminal matter dated 10th March, 2003, the order of dismissal deserves to be quashed and set aside. • Counsel appearing for the appellant has relied upon a decision rendered by the Hon'ble Supreme Court, reported in : (2006) 5 SCC 446. • Counsel appearing for the appellant further submitted that there is a violation of principles of natural justice because during departmental enquiry, this appellant was in a judicial custody and hence, no adequate opportunity of being heard was given to the appellant. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, the judgment and order delivered by the learned Single Judge in the writ petition deserves to be quashed and set aside. • Counsel appearing for the appellant has further submitted that the quantum of punishment inflicted upon this appellant is also shockingly disproportionate or is unreasonably excessive and hence also, the judgment and order, delivered by the learned Single Judge, in W.P.(S) No. 3936 of 2003 dated 5th August, 2009 deserves to be quashed and set aside.
(3.) ARGUMENTS canvassed by the learned counsel for respondents. • It is submitted by the counsel for the respondent -State that no error has been committed by the learned Single Judge in dismissing the writ petition preferred by this appellant and in confirming the order of dismissal passed by the respondent dated 16th October, 2002. • The charges levelled against this appellant -delinquent in disciplinary proceedings are different than those of criminal charges levelled against him in the criminal matter. Moreover, in the criminal trial, the complainant has turned hostile, whereas in a departmental proceedings the complainant, namely, Sheela Singh has not turned hostile. This is a major aspects of the matter. The amount was received by this appellant for issuance of the passport. • It is further submitted by the counsel for respondents that in a criminal trial the allegations must be proved beyond reasonable doubt, whereas in a departmental proceedings the standard of the evidences based upon a principle of "preponderance of probabilities". These matters have been properly appreciated by the learned Single Judge. • Counsel for the respondents submitted that this Court is not sitting in an Appeal against the Enquiry Officer's report. Charges levelled against this appellant has been proved as per the Enquiry Officer's report, which is based upon the evidences on record. So far as quantum of punishment is concerned, it is submitted by the counsel for the respondents that looking to the nature of the misconduct the punishment of dismissal cannot be said to be unreasonably excessive or shockingly disproportionate. For issuance of passport, the amount was received by this appellant as an illegal gratification. • Counsel for the respondents has also relied upon the decisions rendered by the Hon'ble Supreme Court in: (a), 2006 AIR SCW 1958; (b) : AIR 2008 SC 2862; (c) : AIR 2014 SC 766 & (d) : AIR 2015 SC 545. On the basis of the aforesaid decisions, it is submitted by the counsel for the respondents that very limited is the jurisdiction of the High Court, when an Enquiry Officer has given a report in the departmental proceedings. These guidelines have been stated in paragraph No. 13 of the last judgment as stated hereinabove and it is submitted that the aforesaid principles have been properly appreciated by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court.;