Gujarat High Court
Kiritbhai Shankar Patel vs State Of Gujarat on 27 December, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/19766/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19766 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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KIRITBHAI SHANKAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR GM JOSHI(370) for the PETITIONER(s) No. 1
NOTICE SERVED(4) for the PETITIONER(s) No. 1
MR VISHRUT JANI, AGP (1) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/12/2018
CAV JUDGMENT
The petitioner served as Additional Assistant Engineer under the Narmada Water Resource Department of the State Government, who retired on superannuation with effect from 31st December, 2012.
Page 1 of 9 C/SCA/19766/2015 CAV JUDGMENTThe petitioner was granted first higher pay-scale from 07th August, 1987 by order dated 08th November, 1993. He became eligible for second higher pay-scale with effect from 07th August, 2002. Petitioner's case for second higher pay-scale was recommended but ultimately the same was denied on the ground that a major penalty was imposed on the petitioner pursuant to a departmental inquiry.
2. In the context of above basic premise, the petitioner has prayed to grant the second higher pay- scale and has further prayed to set aside the punishment order dated 15th May, 2013, as a consequence of which the second higher pay-scale came to be denied.
3. It appears that though the Superintending Engineer had recommended for grant of second higher pay-scale to the petitioner, the request was not acceded to by citing Finance Department Resolution dated 31st March, 2005 which provided that if an employee is imposed with a major penalty, no higher pay-scale could be granted. It was by letter dated 07th August, 2014 that the aforesaid denial was communicated. By letter dated 25th February, 2015 petitioner requested the respondent to reconsider his penalty and grant him the higher pay-scale. The request in this letter was again rejected by the respondent as per communication dated 15th July, 2015. The petitioner has prayed to set aside aforesaid communications dated 07th August, 2014 and 15th July, 2015 reflecting the impugned decision.
Page 2 of 9 C/SCA/19766/2015 CAV JUDGMENT3.1 It appears that departmental proceedings were initiated against the petitioner for the allegation in respect of making wrongful payments by accepting bills which contained erroneous measurement in the various construction works, which were supervised by the petitioner. It was also the allegation that basic data were not provided in the measurement book, yet the payments were made. In the said departmental inquiry undertaken under the Gujarat Civil Services (Discipline and Appeals) Rules, 1971, the inquiry officer upon consideration of material before him, found the petitioner to be not guilty and exonerated the petitioner from the charges. The disciplinary authority however disagreed with the inquiry officer's report under Rule 10(2) of the Rules. The petitioner was ultimately imposed punishment of cut to the extent of Rs.300/- per month for a period of six month from his pension amount under the provisions of the Gujarat Civil Services (Pension) Rules, 2002, by order dated 15th May, 2013.
4. In the petition as originally filed, the petitioner has prayed for setting aside the denial of grant of second higher pay-scale contending inter alia that cut in pension could not have been treated as major penalty to deny the second higher pay-scale. Order dated 15th May, 2013 imposing penalty of cut in pension was not challenged, which however came to be challenged by amending the petition. Learned advocate for the petitioner harped on the said challenge against the penalty order to submit that since the penalty itself was liable to be set aside on the Page 3 of 9 C/SCA/19766/2015 CAV JUDGMENT ground of delay in the inquiry, benefit of second higher pay-scale would automatically ensue thereafter.
4.1 The respondents filed affidavit-in-reply and contested the petition.
4.2 Heard learned advocate Mr.Gautam Joshi for the petitioner and learned Assistant Government Pleader Mr.Vishrut Jani for the respondent-State and its authorities.
5. Noticing the details of the departmental inquiry proceedings against the petitioner so as to appreciate the sole ground of delay raised by the petitioner to assail the inquiry and the punishment order, which are undisputed facts, charges were levelled against the petitioner in respect of alleged misconduct said to have occurred in year 1989-90. Inquiry was initiated in the year 2001 after a yawning gap of 10 years. The inquiry report came to be submitted by the inquiry officer in the year 2003, whereunder, as noted above, the petitioner came to be exonerated. The second show-cause notice regarding penalty was issued in the year 2010, since the disciplinary authority disagreed with the findings of the inquiry officer. In other words, it took 07 years between the inquiry report and the second show-cause notice asking the petitioner to show cause about the penalty. Finally, the order of penalty was passed imposing the cut in pension of Rs.300/- per month for six month was passed on 15th May, 2013. Therefore, Page 4 of 9 C/SCA/19766/2015 CAV JUDGMENT three years delay occurred at this juncture also. The petitioner by the time had reached the age of superannuation to retire with effect from 31st December, 2012.
5.1 In Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515] the Supreme Court observed in paragraph 14 with regard to belated conduct of inquiry that whether the court would be inclined to quash the departmental proceedings on the ground of delay would depend upon the facts and circumstances of the case. It was observed that though ordinarily the court should not set aside the departmental inquiry or quashed the charges on the ground of delay in initiation in the proceedings, the test of prejudice caused by delay may be a overriding consideration. The court must weigh all the facts to finally make up its mind.
5.2 In M.V. Bijlani v. Union of India [(2006) 5 SCC 88] the issue of belated commencement of departmental inquiry was dealt with by the Apex Court. It was observed in the facts of the case that the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years. It was stated that thus initiation of the disciplinary proceedings as also continuation thereof after such a long time evidently prejudiced the delinquent officer.
5.3 The Supreme Court in State of M.P. v. Bani Page 5 of 9 C/SCA/19766/2015 CAV JUDGMENT Singh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, "The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to thing that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage." (Para 4) 5.4 In P.V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636] the Supreme Court considered the aspect of delay of 10 years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the departmental proceedings on such distance of time would be very prejudicial to the appellant. It was observed that the appellant already suffered enough on account of inordinate delay.
5.5 Quashing the charge memo issued against the appellant and putting the departmental inquiry to an end, the Supreme Court observed thus, "The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year Page 6 of 9 C/SCA/19766/2015 CAV JUDGMENT 2000, came to light in the audit report for the second half of 1994-95. But, Section 118of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 of the said Act relates to annual audit of account. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay." (Paras 8 to 10) 5.5.1 It was held that protracted action against government employee would operate prejudicial to him and has to be avoided, "Under the circumstances, allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer." (Para 12)
6. In the case of the petitioner, vice delay in the inquiry proceedings is manifest at every material stage. The allegations pertain to the year 1989-90 while the inquiry was initiated after delay of a decade. It took three years in completion of inquiry Page 7 of 9 C/SCA/19766/2015 CAV JUDGMENT in which the petitioner was found not guilty in respect of charges levelled against him. The disciplinary authority took seven years in expressing disagreement with the findings of the inquiry officer. Travelled further were three years before final order of penalty was passed. Counting the total period of delay at each stage, it was after 20 long years that the petitioner was subjected with penalty in cut in the pension for Rs.300/-. By virtue of the factor of delay itself, the inquiry stood vitiated. The petitioner suffered a prejudice.
6.1 Therefore, the impugned order of penalty is required to be set aside on the aforesaid ground of delay in the inquiry. Consequently, the petitioner would be entitled to the second higher pay-scale as the penalty would stand obliterated.
7. In view of the above discussion and reasons, the petition deserves to be allowed. The order dated 15th May, 2013 passed by the disciplinary authority and Deputy Secretary, Narmada Water Resource and Kalpsar Department imposing penalty on the petitioner of cut of Rs.300/- in pension for six months is hereby quashed. As a result of setting aside of the penalty as above, the petitioner would stand entitled to the second higher pay-scale. Therefore, communications dated 07th August, 2014 and 15th July, 2015 reflecting the decision to deny the second higher pay-scale are set aside. The petitioner shall be extended the benefit of second higher pay-scale with effect from 07th August, 2002 and the arrears Page 8 of 9 C/SCA/19766/2015 CAV JUDGMENT which may arise thereby shall be availed and paid to the petitioner within a period of eight weeks from the date of receipt of writ of the order of Court.
Petition stands allowed accordingly. Direct service is permitted.
(N.V.ANJARIA, J) Anup Page 9 of 9