J.S.Solanki vs State Of Gujarat on 17 January, 2014

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Gujarat High Court

J.S.Solanki vs State Of Gujarat on 17 January, 2014

1. This is a petition preferred under Articles 14 , 16 and 21 of the Constitution of India challenging the order passed by respondent authority dated 13.10.2006 by way of punishment of reducing the pension by Rs.200/- on permanent basis of the petitioner herein in the following factual background:-

2. The petitioner served in Sales Tax Department from 22.4.1959 and retired on 30.4.1997. 2.1 The petitioner was serving at Junagadh from 2.7.1994 to 26.7.1995 as a Sales Tax Officer. He was transferred to Surendranagar and hence, he handed over his charge on 26.7.1995 at District:Junagadh. It is a case of the respondent-State that while discharging his duties as Sales Tax Officer, Junagadh, the petitioner had done an erroneous assessment of M/s.Kiran Industries, Sodarda having registration No.67108876, which was completed (for the Assessment Year 1993-94) and it is alleged that he completed the assessment proceedings of the said assessment year in the case of M/s.Kiran Industries after his handing over the charge on 27.7.1995.

2.2 It is also alleged inter alia that in the case of Page 2 of 20 C/SCA/25768/2006 JUDGMENT M/s. Deepak Vegetable Oil Industries, Manavadar having registration No.66805573 (for the Assessment Year 1993-94), he completed the assessment on 17.7.1995 although the transfer of matter was on 10.7.1995 and despite there being huge turnover of the concerned assessee, for extraneous reasons, allegedly, such assessment was completed within a period of 7 days. 2.3 Soon before his date of retirement chargesheets were issued to the petitioner on 19.4.1997 as also on 29.6.1998. inquiry officer was appointed on 19.12.1998, who conducted Departmental Inquiry and furnished his report on 31.5.1999/29.6.1999. Such report of inquiry officer was not found acceptable by the respondent authorities for not having agreed with the findings of the inquiry officer and accordingly disagreement was communicated to the petitioner on 8.2.2000.

2.4 The petitioner responded to such communication on 26.2.2000 and after a lapse of about 6½ years, impugned order came to be passed on 13.10.2006, whereby the reduction of Rs.200/- from the pension amount has been directed, and therefore, the challenge by way of the present petition.

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C/SCA/25768/2006 JUDGMENT

3. Reasons put-forth in the affidavit-in-reply are to the effect that the department, in accordance with Rule 10, had taken actions after having disagreed with the findings of the inquiry officer. It was also necessary for the disciplinary authority to consult the Gujarat Public Service Commission("GPSC" for short). Record of inquiry also requires to be forwarded by the inquiry officer to the GPSC for its advice and rule provides that such advice shall be taken into consideration before making any order of imposing any penalty on the Government servant. It is, therefore, contended that the reason for delay in deciding the final representation before imposing the penalty on the petitioner is on account of the fact that the respondent had followed rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

Although frequent correspondences between the disciplinary authority and the GPSC are reflected in the Affidavit-in-reply where certain clarifications were sought by GPSC. It is indicated that the Commissioner of Sales Tax furnished requisite information/clarification quite belatedly on 27.6.2005 Page 4 of 20 C/SCA/25768/2006 JUDGMENT resulting into GPSC communicating its advice to the disciplinary authority vide its letter dated 26.9.2006.

4. Learned advocate Mr. Vaibhav Vyas appearing for the petitioner has forcefully submitted to this Court that charges levelled against the petitioner though have not been proved and the report of inquiry officer had substantially dealt with the same, the respondent chose to differ from such findings and for the reasons other than legal, they have imposed punishment, which is ex facie an act of illegality.

4.1 He further urged that the person cannot be punished for being efficient if the file handed over to him a week before his transfer was dealt with speedily despite there being huge turnover in the matter, that itself cannot act to his detriment. He further urged that once the order of assessment is passed by the Sales Tax Officer, the same passes through different channels for the dispatch of such order to the concerned assessee, over which the petitioner would have no control. And therefore, any dispatch done after his transfer, ex post facto by the staff members cannot be a ground to doubt the Page 5 of 20 C/SCA/25768/2006 JUDGMENT integrity of the petitioner. He also urged that the register, which maintains passing of all orders of assessment, clearly reflected that both the orders were passed prior to his handing over the charge at Junagadh.

5. Learned Assistant Government Pleader Mr.Gandhi appearing for the respondent-State has vehemently submitted that it is not desirable for this Court to intervene in the order passed by the respondent authority. He urged that in case of M/s.Kiran Industries, while being at Junagadh, during the period from 2.7.1994 to 26.7.1995, erroneous assessment has been done by the petitioner and that too, after handing over the charge. He assessed the sum of Rs.19,402/- less than what ought to have been assessed.

5.1 Learned Assistant Government Pleader also contended that in case of M/s. Deepak Vegetable Oil Industries, it was humanly impossible for anyone to complete the assessment of the said firm with huge turnover, and therefore, such act in haste on the part of the petitioner itself unequivocally speaks of his ill-intention and, therefore, not only this was the Page 6 of 20 C/SCA/25768/2006 JUDGMENT question of doubtful integrity, but also, the question of lack of devotion amounting to negligence. He having been chargesheeted for violation of sub-rules(1),(2) and (3) of the Gujarat Civil Services (Conduct) Rules, 1971, an inquiry officer was appointed. However, not having agreed with the findings of the inquiry officer, the second show cause notice was issued on 8.2.2000 and after considering his final representation of 26.2.2000, the respondents have passed an order in the year 2006. Learned counsel for the respondent-State urged that the impugned order under challenge calls for no interference.

6. Upon thus hearing both the sides and considering not only the chronology of events but also the material on record, at the outset, it requires to be noted that the order passed by the respondent authority after receiving the final representation pursuant to the issuance of second show cause notice in February, 2000, is much belated.

7. Before adverting to the facts in the instant case further, it would be apt to reproduce Rule 12 of the said Rules:-

"12.Communication of orders.-Orders made by Page 7 of 20 C/SCA/25768/2006 JUDGMENT the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiry,if any, held by the Disciplinary Authority and a copy of its findings on each article of charge or where the Disciplinary Authority is not the Inquiry Authority a copy of the report of the Inquiry Authority and a statement of the findings of the Disciplinary Authority together with brief reasons for its disgreement, if any,with the findings of the Inquiry Authority (unless they have been already supplied to him) and also a copy of the advice, if any, given by the Commission and, when the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance.

Considering the material on merits, it should be noted that the petitioner has served the department from April, 1959 before the State of Bombay was bifurcated into two States. As noted hereinabove, the petitioner served the department at Junagadh from 2.7.1994 to 26.7.1995 and handed over the charge when he was transferred to Surendranagar on 27.7.1995. 7.1 This rule thus makes it incumbent upon the disciplinary authority to communicate to the Government servant its order along with the copy of the report of the inquiry and a copy of the findings of each article/charge. Again, when the disciplinary authority is not the inquiry authority, findings of Page 8 of 20 C/SCA/25768/2006 JUDGMENT the disciplinary authority together with the brief reasons for its disagreement and also a copy of advice received from the Commission need to be supplied to the government servant.

8. Reliance is placed heavily by the learned advocate for the petitioner on the decision of the Apex Court in the case of Union of India and others vs. S.K. Kapoor reported in (2011) 4 SCC 589, where the order of dismissal was passed against the government servant without supplying report of UPSC. It was held by the Apex Court that if any material is to be relied upon in departmental proceedings, then its copy must be supplied in advance to charge-sheeted employee so that he may have chance to rebut such material. When the authority consulted UPSC and relied upon on its report for taking disciplinary action, furnishing of the report in advance was held a must to the employee concerned. In absence thereof, it is held that the same would amount to violation of principles of natural justice.

The first chargesheet was issued to the petitioner on 19.4.1997 when he was on the verge of retirement on 30.4.1997 and second chargesheet was Page 9 of 20 C/SCA/25768/2006 JUDGMENT served on 29.6.1998, nearly after a year of his retirement. Inquiry officer was appointed to look into the charges on 19.12.1998 and the report of the inquiry officer was received on dated 31.5.1999 which clearly established that none of the charges levelled in both the chargesheets has been held as proved. It is to be noted at this stage that both the charges framed against the present petitioner were to the effect that the erroneous assessment was carried out in case of M/s. Kiran Industries, which resulted into the loss of Rs.19,402/- to the Government and secondly in the case of M/s. Deepak Vegetable Oil Industries the assessment was done in haste and this unusual haste depicted his lack of devotion and integrity, and therefore, for violation of Sub-Rules (1),(2) and (3) of the Gujarat Civil Services (Conduct) Rules, 1971, these chargesheets were submitted.

9. Admittedly in the instant case, the copy of the report of the Commission (UPSC) not been furnished to the petitioner. Ordinarily, in such cases on account of breach of the principles of natural justice, such matter could be remanded by this Court for fresh consideration of the same on merits. Such option of Page 10 of 20 C/SCA/25768/2006 JUDGMENT remand however is not found acceptable in this case for the reasons recorded hereinafter.

10. When the report of the inquiry officer is briefly examined, one of the main allegations against the petitioner was that the assessment order passed by him was found to be after his transfer to Surendranagar, as the order was dispatched on 11.8.1995 and the same was served upon the advocate of the assessee on 22.8.1995. Thus, after having handed over the charge on 27.7.1995 when such copy is served subsequent to the period of 27.7.1995, it was alleged that this unusual act on the part of the petitioner was on account of extraneous consideration. The inquiry officer has noted that not only on the docket but also in the concerned register where the assessment order gets reflected, the date of 17.7.1995 is recorded. Its dispatch could be either on account of slip of pen or due to some administrative delay.

11. It is pointed out to this Court that once the Sales Tax Officer passes the order of assessment, it goes to the assessment branch thereafter, an entry is made in Register No.9 and thereafter the order goes to the dispatch Branch (Barnishee Shakha).It is not being Page 11 of 20 C/SCA/25768/2006 JUDGMENT disputed by the learned Assistant Government Pleader that Sales Tax Officer once passes the order of assessment, the service of assessment order on the assessee is the administrative function, which he does not need to follow personally. There is set mechanism for the purpose of such dispatch, and therefore, the inquiry officer is absolutely right in holding that once from the docket as well as from the concerned register it is clear that the order was passed on 17.7.1995, mere late dispatch of the order can never furnish the grounds to hold that the petitioner passed an order after handing over the charge on 27.7.1995.

12. There is no allegation nor any material worth the name to indicate that the petitioner never left the district or continued to retain the final files and other material to enable him to pass such order ex post facto.

13. The inquiry officer, therefore, on the basis of the substantiating documents held the charge not to have been proved.

14. With regard to the second chargesheet, where the charge contained is to the effect that in case of M/s. Deepak Vegetable Oil Industries, the assessment Page 12 of 20 C/SCA/25768/2006 JUDGMENT has been completed by the petitioner within 7 days although the turnover, nature of business, verification of forms etc. was voluminous and such unusual haste in completing the assessment soon before the transfer was questioned by the Department. It was alleged that the same is indicative of lack of integrity and also lack of devotion resulting into act of negligence.

Inquiry Officer noted the instructions issued by the Sales Tax Commissioner dated 12.1.1995 that cases of huge stakes are required to be expeditiously and speedily disposed of. It also includes those cases where the demand of tax is from the range of Rs.2 lakhs to Rs.5 lakhs and such cases were directed to be disposed of on or before 28.2.1995. Specific instructions also had been given by the Additional Commissioner of Sales Tax on 10.2.1995 to the petitioner.

15. In this regard yet another vital aspect had weighed with the inquiry officer. The dispatch of the order of assessment was on 3.8.1995 after he handed over the charge at Junagadh but mere dispatch of orders, being an administrative task this fact found Page 13 of 20 C/SCA/25768/2006 JUDGMENT no favour with the inquiry officer. It is also further noted by the inquiry officer that in this case in Appeal proceedings, the assessee succeeded in getting the refund of nearly Rs.4 lakhs and this is also clearly indicative of the fact that no favour was done to the assessee nor has the Commissioner indicated any error in the assessment proceedings carried out on the part of the petitioner. Therefore, it is held by the inquiry officer that in the interest of better administration when the matter had been decided expeditiously, second charge also does not get proved.

16. As is apparent from the note of disagreement, it appears to be a mere reiteration of the charges. In the chargesheet without taking into consideration, the evidence, which had been adduced before the inquiry officer, this disagreement reiterated that the orders of assessment, in both the cases are passed after the charge was handed over at Junagadh and the disciplinary authority has concluded against the petitioner the passing of the order in post 25th July period, basing the same on the dispatch date of such orders. Before this Court also, all along it has been emphasized that neither such verification of the Page 14 of 20 C/SCA/25768/2006 JUDGMENT forms, turnovers and other material was feasible in a short duration nor was it possible that such assessment could have been completed prior to his having handed over the charge.

17. It is apparent from such findings as also from the plain reading of the disagreement of the disciplinary authority that the same has been deduced without any sound basis and in complete disregard to the material on record, which therefore, also requires indulgence.

18. As noted hereinabove, after the report of the inquiry officer, the petitioner employee was availed an opportunity to submit the final representation not only on the contents of the inquiry officer but also on the findings of the Disciplinary Authority. The matter, thereafter, was referred to the Gujarat Public Service Commission for its advice as required under rule 10(4) which tendered its advice on 26.9.2006. It would be apt to reproduce clause (4) of rule 10.

"Rule 10(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in items (4) to (8) of rule 6 should be imposed on the Government servant, it shall make an order Page 15 of 20 C/SCA/25768/2006 JUDGMENT imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed.

Provided that in every case where it is necessary to consult the commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government servant."

19. Where the Disciplinary Authority imposed major penalty upon the delinquent it is also necessary for him to follow the procedure prescribed under sub-Rule(4). It is a must for the disciplinary authority to follow the principles of natural justice and afford an opportunity of hearing to the employee when he is exonerated of the charges by the inquiry officer as is laid down by the decision of this Court rendered in the case of State of Gujarat vs. G.A.Patel reported in 1994(1) GLR 727. In every case where it is necessary to consult the commission, it is incumbent upon the Disciplinary Authority to forward the commission a record of inquiry for its advice, such advice shall be taken into consideration before making an order imposing any penalty upon the Government servant.

20. Reference be made at this juncture to the rule 12 of the said Rules, wherein it required to communicate Page 16 of 20 C/SCA/25768/2006 JUDGMENT the order passed by the Disciplinary Authority along with the copy of the report of inquiry so also the order of disagreement and the brief reasons for its disagreement and also the copy of the advice given by the commission and brief statement of the reasons for such non-acceptance to the Government servant.

21. The Disciplinary Authority here has not provided the copy of the advice given by the Commission to the Government servant. Thus, combined reading of clause (4) of Rule 10 and Rule 12 would make it apparently clear that the employee has not been provided with the requisite opportunity as contemplated under the Rules. On 8.2.2000 when the opportunity for making the representation was granted to the petitioner, report of advice of commission was not available, which is mandatory for disciplinary authority to obtain prior to imposing any penalty upon the delinquent employee. It was after much delay of nearly six years such advice in the form of report of commission was obtained by the disciplinary authority.

22. As held by the Apex Court in the case of Union of India and others vs. S.K. Kapoor (supra), supply of such report of UPSC was a must and its non-supply Page 17 of 20 C/SCA/25768/2006 JUDGMENT needs to be regarded as breach of principles of natural justice. It is to be noted that Rule 15(3) of Gujarat Civil Services Rules and Rule 10 of Gujarat Civil Service Rules,1971 are identical. The cumulative examination of the entire material on the record surely makes this Court to conclude that there is a gross violation of principles of natural justice. Heavy reliance is placed on the report of GPSC and no copy has been supplied to the employee concerned, when expressly rules 10(4) and 12 warrant furnishing of the report coupled with the ratio of the Apex Court in the case of Union of India and others vs. S.K. Kapoor (supra) and giving an opportunity to the employee concerned to represent against the adverse report if any, not only the issue of delay, but also, the procedure adopted by the respondent in post 1999 period would lead this Court to quash and set aside the order impugned. Even otherwise, as noted hereinabove, on merits, the respondent has misdirected itself, which would not require any consideration for remanding the matter back to the disciplinary authority by once again availing the opportunity.

23. Much time has flown, person concerned has retired Page 18 of 20 C/SCA/25768/2006 JUDGMENT way back in the year 1997. Courts ordinarily would not enter into the question of merit and substitute its own decision for that of the inquiry officer or disciplinary authority. However, in exceptional circumstances, such exercise is made permissible by the judicial pronouncement on the subject. The Apex Court in the case of Punjab National Bank and others vs. Kunj Behari Misra reported in (1998) 7 SCC 84 while examining the very issue has held and observed thus:-

"21. Both the respondents superannuated on 31st December,1983. During the pendency of these appeals Misra died on 6th January, 1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs."

24. Petition deserves to be succeeded. Interim relief granted in favour of the petitioner deserves confirmation. Interim relief is confirmed by quashing and setting aside the impugned order dated Page 19 of 20 C/SCA/25768/2006 JUDGMENT 13.10.2006.The petitioner shall be granted all retiral benefits within 12 weeks of the receipt of this order. Rule is made absolute accordingly.

(MS SONIA GOKANI, J.) SUDHIR Page 20 of 20

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Gujarat High Court