Heard Ms. Chitaliya, learned AGP, for the petitioner – State. 2. The petitioner – State has brought under challenge the order dated 8.8.2011 passed by the Gujarat Civil Services Tribunal whereby the tribunal has set aside the order dated 2.9.2009 passed by the Collector against present respondent.
3. The facts giving rise to present petition are that, the respondent herein was visited with show-cause notice on the basis of reported misconduct. In pursuance of the notice, departmental inquiry/proceedings were conducted. Upon conclusion of the departmental inquiry, the Inquiry Officer submitted his report dated 21.7.2009. After taking into account the said report of the Inquiry Officer holding the respondent guilty of the charge of misconduct levelled against him, the disciplinary authority passed order dated 2.9.2009 whereby the respondent herein was visited with penalty of reduction in pay scale on permanent basis and denying benefit of future increments.
3.1 Feeling aggrieved by the said order dated 2.9.2009, the respondent herein approached Gujarat Civil Service Tribunal. The appeal was registered as Appeal No.177 of 2009. After considering the rival contentions of the contesting parties, the tribunal relying on the provisions under Gujarat Civil Service (Pay) Rules, 2002, particularly note No.2 of sub-rule (2) of Rule 26, has set aside the order dated 2.9.2009 passed by the Collector against present respondent.
3.2 The tribunal relying on the said provision, held that the order reducing respondent's pay scale to lowest stage and with further direction that there shall not be any increments for future period, could not have been passed in view of the said provision and that therefore, the tribunal has set aside the order dated 2.9.2009.
3.3 Aggrieved by the said decision of the tribunal, the petitioner – State has preferred present petition.
4. Ms. Chitaliya, learned AGP, has submitted that the findings of the Inquiry Officer are against present respondent and the respondent has been found to be guilty of the misconduct, which was charged against him and that therefore, the tribunal ought to have allowed the petitioner to pass appropriate order and the penalty imposed by the competent authority / disciplinary authority was found to be in consonance with the relevant provisions, i.e. sub-rule (2) of Rule 26 and the note appended thereto.
5. Mr. Chaudhari, learned advocate for the respondent, has submitted that the tribunal is justified in setting aside the order dated 2.9.2009 inasmuch as the said order is not in consonance with the applicable rules.
6. Having regard to the facts and circumstances of the case and upon considering the submissions by learned counsel for the contesting parties, it emerges that the tribunal found that the order of penalty was not in consonance with Rule 26(2) and the note appended thereto.
6.1 Learned AGP for the petitioner – State submitted that when the tribunal found that the order of penalty was not in consonance with Rule 26(2) and the note thereunder, the tribunal ought to have allowed the disciplinary authority to pass appropriate order in consonance with the applicable rules. However, the tribunal is not justified in simply setting aside the said order without allowing the disciplinary authority to pass appropriate order.
6.2 The submission made by learned AGP for the petitioner – State sounds attractive at first blush, however, it is devoid of merits in view of the fact that the tribunal has in para 7.2 and 7.3 of the order observed and has come to the conclusion that the charge levelled against the respondent herein cannot be said to have been proved. So far as the first charge is concerned, the tribunal has taken note of the fact that even the Inquiry Officer found the explanation given by the respondent herein as sustainable and therefore, question of any penalty, so far as first charge is concerned, did not arise. The said conclusion of the tribunal does not warrant any interference.
6.3 So far as the second charge as per the notice / charge-sheet is concerned, specific conclusion has been recorded by the tribunal in para 7.2 and 7.3 and the tribunal has recorded that in light of the material available on record and the delinquent's explanation, the said charge cannot be said to have been proved. Differently put, the tribunal has found that the finding of the Inquiry Officer were not in consonance with the evidence available record so far as the second charge is concerned. Under the circumstances, the tribunal has found that there was no justification for passing any order against the delinquent and/or to impose any penalty.
6.4 The reference to the provision under Rule 26(2) appears to be another and additional ground for setting aside the order passed by the Collector. However, the fact remains that the tribunal has also recorded the conclusion that the second charge levelled against the delinquent cannot be said to have been proved.
7. In that view of the matter, particularly when the petitioner – State has not shown any material from record of present petition that the conclusion arrived at by the tribunal is contrary to weight of evidence on record of the departmental proceedings and/or that the tribunal's findings are perverse, there is no justification to interfere with the findings of fact recorded by the tribunal. It is not within the scope of judicial review, under Articles 226 or 227 of the Constitution of India for this Court, to reappreciate the evidence, however, it was well within the powers and scope of the tribunal to reappreciate the evidence and to come to its own conclusion. When the tribunal has recorded findings of fact, this Court would not reappreciate the evidence and examine, in the process of judicial review, the material on record of department proceedings, so as to test the findings recorded by the tribunal.
out.
kdc Any ground to interfere with the tribunal's order is not made The petition does not deserve to be entertained.
The petition fails and stands disposed of accordingly.
(K.M.Thaker, J.)