Gujarat High Court
State Of Gujarat vs Kalavatiben Ratanlal Joshi on 15 December, 2021
Author: S.H.Vora
Bench: S.H.Vora
C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 706 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7821 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 706 of 2021
With
R/LETTERS PATENT APPEAL NO. 978 of 2021
In
SPECIAL CIVIL APPLICATION NO. 4472 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 978 of 2021
In
SPECIAL CIVIL APPLICATION NO. 4472 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KALAVATIBEN RATANLAL JOSHI
==========================================================
Appearance:
MR SOHAM JOSHI, AGP for the Appellants
for the Respondent(s) No. 2
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C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021
MR. JAVED S QURESHI(6999) for the Respondent No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 15/12/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE S.H.VORA)
1. Being aggrieved and dissatisfied by the common oral judgment dated 10.02.2020 passed by the learned Single Judge in Special Civil Application No.4472 of 2008 with Special Civil Application No.7821 of 2016, present appeals under Clause 15 of the Letters Patent is filed by the original respondent - State of Gujarat.
2. Brief facts leading to filing of both the petitions can be stated thus :-
2.1. The original petitioner - private respondent herein was serving as Mamlatdar in the Revenue Department and on the basis of decisions taken by the original petitioner - private respondent herein in violation of provisions of Tenancy Act and in contrary to the Circulars issued by the Revenue Department, State of Gujarat dated 22.10.1965 and 26.09.1967, charge sheet came to be issued on 01.06.2005. In pursuance to the charge sheet, full fledged departmental inquiry was conducted against the original petitioner. Prior to it, the original petitioner was placed under suspension on 08.10.2001 and subsequently, vide order dated 13.10.2003, original petitioner was reinstated in service by the State.Page 2 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022
C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 2.2. Vide order dated 18.10.2008, Inquiry Officer concluded proceedings against the original petitioner and exonerated her from all the charges. Since, Disciplinary authority did not agree with the findings of Inquiry Officer, show cause notice dated 20.10.2012 came to be issued calling upon the original petitioner to reply the said show cause notice, which accordingly was responded by the original petitioner.
2.3. The Disciplinary authority reached to the conclusion that charges levelled against the original petitioner was proved. It appears that pending departmental proceedings, the original petitioner reached age of superannuation and therefore, original petitioner stood retired from service with effect from 31.07.2009. As disciplinary authority concluded that charges levelled against the original petitioner stood proved, it inflicted punishment of withholding of Rs.2000/- per month from pensionary benefits for a period of five years. A proposal inflicting punishment was forwarded to GPSC and after considering overall case, GPSC concluded withholding of Rs.1000/- per month from the pensionary benefits for a period of three years. Accordingly, the State accepted the advise of GPSC and inflicted punishment of withholding of Rs.1000/- per month from pensionary benefits for a period of three years. Though the original petitioner filed Review application before the Additional Chief Secretary, Revenue Department, Gandhinagar, but same was not entertained.
3. Feeling aggrieved by the aforesaid proceedings and outcome of the proceedings, original petitioner filed Writ Petition being Special Civil Application No.7821 of 2016 seeking quashing of the order dated 09.01.2015 Page 3 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 passed by the Under Secretary, Revenue Department, State of Gujarat, by which the original petitioner is subjected to penalty of withholding of Rs.1,000/- p.m. from the pension of the petitioner for a period of three years and the decision of the Gujarat Public Service Commission (GPSC) dated 11.11.2014. Further, prayer was made for deemed date of promotion to the post of Deputy Collector with all consequential benefits and arrears of pay with effect from 24.07.2007 and also prayed for benefit of higher pay scale with effect from 01.06.2002 with all consequential benefits and arrears of pay.
4. The original petitioner has also filed Special Civil Application No.4472 of 2008 for direction against the State for granting her promotion to the post of Deputy Collector and set aside order dated 24.07.2008 passed by the respondent authority, by which her representation had been rejected.
5. The pleadings of the Writ Petition shows that the petitioner was initially appointed as Deputy Mamlatdar on 01.10.1977 and she was promoted as Mamlatdar on 16.03.1996 and superannuated on 31.07.2009. When original petitioner was serving as Mamlatdar, she was subjected to departmental inquiry for the alleged misconduct, inter-alia, alleging that while deciding cases under Gujarat Tenancy and Agricultural Lands Act, 1948 (for short 'the Tenancy Act') as a Mamlatdar and ALT, Nadiad, original petitioner had passed order declaring certain tenants as permanent tenants. It was alleged that decision rendered by the original petitioner were against the provisions of Section 43-1(B) of the Tenancy Act and contrary to the circulars issued by the Revenue Page 4 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 Department and because of which, State suffered loss of premium of Rs.64,86,600/-. Charge sheet was issued with respect to decision taken by the petitioner as quasi judicial authority between the period from 17.01.1998 to 19.10.2001. After taking into consideration facts and circumstances of the case, the learned Single Judge passed following final order as per paras 23, 24 and 25 in the both the petitions :-
"23. On the substratum of the aforesaid observations, the impugned order dated 09.01.2015 (in Special Civil Application No.7821 of 2016) is hereby quashed and set aside. The respondents are hereby directed to refund the amount, which is recovered from the petitioner, in view of the impugned order of punishment and to re-fix the pension of the petitioner.
Order in SCA No.4472 of 2008
24. It appears that the petitioner was not granted the promotion and higher pay -scale to the post of Deputy Collector, in view of the departmental inquiry, which were initiated by the charge-sheet dated 01.06.2005 and the order of punishment. Since the impugned order of punishment is set aside for the reasons recorded hereinabove, the respondents are directed to pay consequential benefits and to promote the petitioner from the date she was superseded by her juniors i.e. w.e.f. 24.07.2007. If the petitioner is denied the benefit of higher pay scale, the respondents are also directed to pay the same. The entire Page 5 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 exercise of conferring the benefits to the petitioner(s) and re-fixing the payment of retirement benefits shall be carried out within a period of three (03) months from the date of receipt of writ of this order.
25. Both the present writ petitions are allowed. Rule is made absolute."
6. Learned AGP while assailing the common oral judgment would submit that on account of decision taken by original petitioner under Section 43-1(B) of the Tenancy Act and violation of Circulars issued by the Revenue Department, the Government suffered huge loss and therefore, the original petitioner was subjected to Departmental inquiry and therefore, the State has rightly issued impugned show cause notice dated 20.10.2012 and the original petitioner was rightly inflicted punishment of withholding of Rs.1000/- per month from the pension of the petitioner for a period of three years pursuant to the advise of GPSC.
7. In order to justify show cause notice dated 20.10.2012, learned AGP would submit that there was no violation of principles of natural justice or Disciplinary authority was pre- determined and thus, learned Single Judge has committed error in reaching to the conclusion that show cause notice dated 20.10.2012 issued to original petitioner discloses pre- determination to inflict punishment. According to learned AGP, findings recorded in the show cause notice dated 20.10.2012 issued by the Disciplinary authority are tentative in nature and therefore, it had called original petitioner file reply to the show cause notice. According to learned AGP, Disciplinary authority Page 6 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 has adopted just and proper procedure in light of settled legal position and therefore, learned Single Judge has committed error in relying upon decision in the case of Zunjarrao Bhikaji Nagarkar v/s. Union of India reported in (1999) 7 SCC 409 and therefore, it is submitted by learned AGP to allow present appeals preferred by the State. Per contra, learned advocate for the private respondent adopted findings of fact and legal position enumerated in the impugned judgment as his submission for dismissal of appeals.
8. We have extensively heard learned AGP for the appellant and learned advocate for the private respondent, examined facts of the case and procedure adopted by the Disciplinary authority and ratio laid down in the precedent cited and referred before the learned Single Judge. Show cause notice dated 20.10.2012 clearly reveals that Disciplinary authority in cryptic manner while disagreeing with the report of Inquiry Officer held charges proved against the original petitioner and thus while issuing show cause notice to the original petitioner, the Disciplinary authority found and held that charges stood already proved and thus, impliedly reverse the findings of Inquiry Officer. Not only that there was no mention with regard to loss of premium to the public exchequer of Rs.64,86,600/- or any allegation of misconduct in dealing with the proceedings as quasi judicial authority in the show cause notice. It is settled principle of law that before finding of Inquiry Officer is reversed, the Disciplinary authority is required to give opportunity of hearing to the delinquent i.e. original petitioner. No such procedure is followed or steps taken in this regard.
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9. At this stage, it is fruitful to make reference of decision in the case of Zunjarrao Bhikaji Nagarkar (supra), wherein it is held that wrong interpretation of law cannot be ground for misconduct, if the same is not tainted with actual mala fide. In para 43 of the said judgment, Hon'ble Supreme Court has held as under :-
"43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any chargesheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge sheet is rendered illegal. The charge sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."
10. So it is noticed that if any charge sheet against quasi judicial authority is to be maintained, something more has to be alleged than a mere mistake of law. Here in the case on hand, no any mistake of law or fact is alleged in the show cause notice or it is case of Disciplinary authority that original petitioner acted mala fidely or with ulterior motive while passing order under the provisions of Tenancy Act. In absence of such allegation and mere error in the order passed by the Page 8 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 original petitioner while acting as quasi judicial authority does not fall within parameters of misconduct.
11. Apart from it, it is also fruitful to refer decision of the Hon'ble Supreme Court in the case of S.P.Malhotra v/s. Punjab National Bank reported in (2013) 7 SCC 251, wherein, it is held that in the event the Disciplinary authority disagrees with the findings recorded by the Inquiry Officer, it must record reasons and communicate the same to the delinquent. In the case on hand, no such reasons are recorded or communicated to the original petitioner and therefore, action of the State to inflict punishment when notice setting out tentative conclusion to the charged employee without hearing original petitioner would be futile exercise and against settled principle of law.
12. It appears that no notice at all was given before Disciplinary authority recorded its final conclusion qua the findings of fact recorded by the Inquiry Officer. The show cause notice was empty formality because while issuing show cause notice to the original petitioner, Disciplinary authority has already held that charges as proved by reversing findings of Inquiry Officer and no reasons are recorded for disagreeing with findings of Inquiry Officer.
13. Considering overall facts of the case, the procedure adopted by the disciplinary authority does not meet with the parameters enunciated by the Hon'ble Supreme Court in the aforementioned decisions and hence, the punishment order which is premised on such defective and illegal procedure cannot be sustained and therefore, learned Single Page 9 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022 C/LPA/706/2021 CAV JUDGMENT DATED: 15/12/2021 Judge has rightly allowed and accepted the Writ Petitions of the original petitioner.
14. In totality and considering the procedure adopted by the Disciplinary authority while issuing show cause notice dated 20.10.2012, we do not find any fault either on law or fact in accepting Writ Petitions of the original petitioner and therefore, no case is made out to interfere with the impugned common oral judgment passed by the learned Single Judge. We dismiss the Letters Patent Appeals being devoid of merits. Consequently, connected Civil Applications do not survive and accordingly, Civil Applications stand disposed of. Notice is discharged.
(S.H.VORA, J) (ANIRUDDHA P. MAYEE,J) SATISH C. VEMULLA Page 10 of 10 Downloaded on : Wed Jan 12 10:17:44 IST 2022