Gujarat High Court
J.S. Pathan vs Gujarat Agricultural University And ... on 1 December, 1994
Equivalent citations: (1995)1GLR668
JUDGMENT Rajesh Balia, J.
1. This petition raises the issue about the fairness in holding the inquiry against the petitioner under the Gujarat Agricultural University Act, 1969 and the Rules and Regulations framed thereunder.
2. The petitioner was appointed as peon in the Gujarat Agricultural University on or about 9-10-1973 and, thereafter, the petitioner was promoted as Junior Clerk by order dated 15-12-1976. Thereafter, the petitioner was promoted as Senior Clerk by order dated 28-4-1982. At the relevant time, the petitioner was appointed in the Aspee College of Nutritional Science, a college of Home Science and Food Technology, Gujarat Agricultural University, Sardar Krushi Nagar, Dantiwada. The petitioner was served with a charge-sheet on 18-6-1985 stating that the petitioner has remained absent without leave; that he has tampered with the University record concerning his leave and that he is in habit of leaving the office premises during office hours without permission. It was stated, in the charge-sheet that if the charges levelled against the petitioner are proved, he may appropriately be punished under the provisions of the aforesaid Rules. However, proposed penalty, minor or major, was not specified. He was required to submit his reply to the said charge-sheet. After holding the inquiry, the petitioner was found guilty of the charges and he was given a notice dated 28-1-1986 against the proposed punishment of dismissal under Rule 7.2 calling upon the petitioner to show cause against the proposed penalty and, finally, by order dated 8-5-1986, the petitioner was dismissed from service.
3. Two contentions have been put forth by the learned Counsel for the petitioner. Firstly, it was contended by the learned Counsel that the inquiry itself is vitiated inasmuch as it has been held in breach of the principles of natural justice. His grievance is that he has not been afforded adequate opportunity of defending himself; that the inquiry officer has pre-determined guilt of the petitioner; that the petitioner was not allowed access to some of the relevant documents and that the witnesses were not examined in his presence and he was not allowed to cross-examine those witnesses.
In the second place, it was contended that even if inquiry is held to be valid, the order of punishment imposed upon the petitioner in pursuance of the show cause notice dated 28-1-1986 is vitiated inasmuch as the same has been made without considering the reply submitted by the petitioner and irrelevant factors were taken into consideration which goes to show the non-application of mind of the respondents to the question of measure of punishment to be imposed on the charge proved.
4. Learned Counsel for the respondent-University vehemently contest, the submissions made by the learned Counsel for the petitioner.
5. I have carefully gone through the grounds urged before me and the material on record. So far as the first contention of the learned Counsel for the petitioners is concerned in my opinion it is not substantiated from the record of the case. It may be relevant to refer to the return, particularly para 2 of the reply affidavit in which the details of proceedings have been stated on oath. Careful reading of the allegations made in that regard in the petition and the reply contained in para 2 of the affidavit-in-reply goes to show that at the initial stage of the inquiry, the petitioner was shuttling between Dantiwada Head Quarter where he was required to stay during enquiry and Ahmedabad, as a result of which, the Inquiry Officer has often had to resort to make effort of serving the petitioner at both the places, notwithstanding the fact that the petitioner was required to remain at Dantiwada during the period of suspension and a number of times, even communication addressed to the petitioner in response to his communication from Ahmedabad have returned with an endorsement "not found". Thereafter, on 10th Sept. 1985, after the petitioner was afforded inspection of the record of the documents demanded by him, he raised certain objections to the holding of inquiry and stated that he has nothing more to state and no written reply was desired to be submitted. However, on 11th Sept. 1985, that is the next day, the petitioner appeared and demanded booklet containing rules of inquiry which was supplied to him. Then, the petitioner requested for ten days' time to file written statement which was given to him. The petitioner, thereafter, filed his written reply on 20th Sept. 1985 raising various objections against the inquiry including that the witnesses were not examined in his presence and that he was not allowed to cross-examine the witnesses and that the record was not placed before him and that the reasonable opportunity was not given to him. This was replied by the Inquiry Officer on 23rd Sept. 1985 informing him that the witnesses will be examined in his presence and he shall be given opportunity to cross-examine them and that he shall also be allowed to examine all the documents and he was asked to remain present in the office immediately. This reply was admittedly received by the petitioner. Thereafter, evidence was recorded on 23rd Sept. 1985, 4th and 5th November, 1985. On 7th November, 1985 the petitioner was informed that he may remain present through his next friend, for which demand was made by the petitioner earlier also, on 28th, 29th and 30th November, 1985. However, he did not remain present on those days. These averments in return have not been denied by the petitioner. In view of the above factual position, it is abundantly clear that even inspite of the fact that the petitioner has stated on 10th September, 1985 that he does not want to submit any written reply and the Inquiry Officer can proceed with oral submissions made by him about the conduct of inquiry on 11-9-1985, on the very next day when me petitioner demanded copy of the rules and an opportunity to file written statement, it was afforded to the petitioner unaffected by his previous statement. Thereafter, keeping in view the objections of the petitioner about the conduct of inquiry, his grievance was sought to be redressed by the Inquiry Officer in all respects by calling the witnesses to be examined in his presence with a permission to cross-examination and was also permitted to have access of the documents. He was also allowed to represent through next friend. Yet, die petitioner if at any stage failed to avail such opportunity, he cannot say that the inquiry was vitiated on account of breach of any principles of natural justice in that regard.
6. However, there is sufficient force in the second submission which is apparent m the order itself. Under the Rules of discipline referred to above, procedure prescribed for imposing major penalty has been stated in Rule 7.2 and it reads as under:
Rule 7.2:
In the case of major penalties as specified in item (4) to (8) of Rule 6.1 above, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges and communicated to the employee concerned together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The employee charged shall be required to put in a written statement of his defence within three weeks from the date of receipt of the communication by him alongwith documentary evidence, if any. Upon receipt of the statement of defence, or on the expiry of three weeks given for submission of the statement of defence, or on the expiry period not exceeding two weeks as may be extended, the authority concerned may, after examination of relevant facts and circumstances, either drop the case or decide to proceed further. If it is decided to proceed further, a formal enquiry shall be held informing the employee concerned of the penalty provisionally proposed to be imposed on him and asking him to be present at the enquiry, if he so desires and to produce further evidence, if any, in support of the defence. The authority concerned shall thereafter take decision on the findings of enquiry. If, however, it is decided to impose a penalty higher than what was communicated to the employee at the stage of the formal enquiry, another opportunity will be given to him to submit a written defence against the higher penalty within weeks from the date of his receipt of the communications in this respect and if considered necessary, a fresh enquiry will be made and findings of such enquiry will be taken into account before final orders are passed.
7. Bare perusal of the Rule 7.2 goes to show that the Rules of University require show cause notice before imposing major penalty in case where the major penalty is not proposed in the order communicating charge-sheet or where the major penalty is provisionally proposed in case the charges are proved, higher penalty is sought to be imposed, by issuing show cause notice disclosing, proposed punishment on the basis of the allegations proved against him. It was in pursuance of these provisions that the notice was issued to the petitioner on 28-1-1986. He was required to furnish reply to the said show cause notice by 18-2-1986. From the order, it is apparent that the reply was not submitted on 18-2-1986 but was submitted on 25-2-1986 about a week after expiry of the time fixed for submitting reply. The order was passed some time two and half months thereafter on 8-5-1986. The fate of the reply submitted by the petitioner against the proposed penalty has been dealt with by the disciplinary authority in the following manner:
Literally translated it means that reply filed beyond time cannot be considered. It is otherwise meaningless repetition. Further, the petitioner has approached law Courts more than once.
The Inquiry Officer has found it convenient to reject the written reply by not taking into consideration having been filed about a week after the period referred to in the show cause notice though same was filed almost two and half months before the final decision was taken in that regard. Time prescribed in the show cause notice for submitting reply, in the absence of any rule, cannot be taken to be of such a mandatory character so as to permit exclusion from considering the reply filed to the show cause notice which has come before the authority concerned much before he actually considered the matter. This exclusion was obviously contrary to the scheme of the rules which confers right on the incumbent to be heard before imposition of the major punishment which is not proposed along with the charge-sheet. For such delay, the incumbent cannot be penalised by keeping the submissions against the proposed penalty out of consideration. Rules of procedure are handmade to advance justice and not tools of punishment to use as an excuse to brush aside the duty to act fairly. Secondly, the aforesaid reasons recorded by the Disciplinary Authority for rejecting the written submissions made in response to the show cause notice clearly discloses approach of the disciplinary authority to the right of citizen to approach the Court of law seeking redressal of his grievance against any wrong. The fact that one of the reasons for not considering or rejecting the written submissions is that the petitioner has approached the Court more than once in this regard goes to show that the petitioner is penalised for ventilating his grievance before the Court of law against the action taken by the respondents. It is not the case of the respondents that any Court of law has found against the petitioner that he is persuing frevolous or false litigation mala fide. As a matter of fact, it may be noticed in the first instance when the petitioner was asked to proceed on leave without pay before the charge-sheet was furnished, purported to be in exercise of the power under Rule 8.1 (b)(iii), it was clear attempt on the part of the University to resort to these provisions to proceed with the enquiry without taking burden of paying the petitioner subsistence allowance which he would have otherwise been entitled had he been suspended under Rule 8.1 and when the said matter came up before the Court, the Court ordered that the petitioner should be treated on suspension and shall be paid subsistence allowance until the departmental enquiry is concluded and other ancillary directions were given. It appears that even thereafter, subsistence allowance was not paid. Again, the petitioner had to move this Court by filing Civil Application No. 442 of 1985 and when the matter came up before the Court, learned Counsel appearing for the University stated that the petitioner should approach the University Authorities and the Authorities shall decide the application for payment of subsistence allowance before 5th December 1985 and in view of that statement, the University was left to decide the claim of subsistence allowance before that date. If these approaches to the Court can be considered by the Disciplinary Authority for not taking into considering the written submission made by the petitioner though late by about a week, it clearly goes to show closed mind of the Disciplinary Authority to inflict maximum punishment on the petitioner for the alleged misconduct, perhaps, not for the grievance of misconduct but because of the petitioner's audacity to seek redress from the Courts of law. This alone is sufficient to vitiate the impugned order of punishment imposed on the petitioner. Annexure "X" dated 8-5-1986
8. In ordinary course, matter of imposition of penalty would have been left to the Disciplinary Authority by directing them to decide the matter afresh. However, looking to the fact that the matter has been pending here for long and the petitioner has been already out of job without any pay for almost eight years, and grant of charges proved, I deem it just, proper and expedient to dispose of this petition by quashing the order Annexure "X" and directing the respondents to reinstate the petitioner in service forthwith. The ends of justice would be met if the petitioner is awarded penalty of stoppage of four increments with cummulative effect. Moreover, as the petitioner has not been exonerated of the charge of misconduct, he shall not be entitled to full pay of the period of absence from duty as a result of the order of punishment, but shall be paid emoluments for such period equal to the subsistence allowance treating him as if he has remained under suspension until his reinstatement. He shall also be allowed any other dues. Rule is made absolute in terms indicated above. No order as to costs.