Gujarat High Court
Bharatkumar Mahendraprasad Bhatt vs State Of Gujarat Through The Secretary on 23 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12773 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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BHARATKUMAR MAHENDRAPRASAD BHATT
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 2 other(s)
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/03/2022
CAV JUDGMENT
1 In this petition under Article 226 / 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order of dismissal dated 12.05.2008, the order of compulsory retirement dated 11.08.2008 and the judgment of the Gujarat Civil Services Tribunal dated Page 1 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 09.06.2011. Pending the petition, the petitioner has superannuated on 30.11.2017.
2 Facts in brief are as under:
2.1 The petitioner was appointed as a Surveyor under the Settlement Commissioner & Directorate & Director of Land Records in the year 1981. He was promoted as Maintainance Surveyor in the year 2002. A charge sheet dated 04.06.2006 was issued to the petitioner for holding a departmental inquiry into certain irregularities alleged to have been committed by him during the year 2006. An Inquiry Officer was appointed and after holding the inquiry, the Inquiry Officer submitted a report on 25.10.2007 holding the charges levelled against the petitioner as proved. The Disciplinary Authority agreed with the findings of the Inquiry Officer. A notice dated 05.01.2008 was issued for the petitioner to make a representation, which the petitioner made on 19.02.2008. Based on the representation, the petitioner was dismissed from service on 12.05.2008.
2.2 On the petitioner filing an appeal against the order of dismissal, by an order dated 11.08.2008, the penalty of dismissal was modified to that of compulsory retirement. On a challenge to the order of the penalty of compulsory retirement, the Tribunal vide its judgement and order dated 09.06.2011 dismissed the appeal. Hence, the petition. Page 2 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022
C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 3 Ms.Kruti Shah, learned advocate for the petitioner taking the Court
through the charges levelled against the petitioner would submit that the charge against the petitioner was with regard to not maintaining certain entries for the period from 01.08.2005 to 28.08.2006. That he had again not made certain entries in the 'Barnishi Register' and that such entries were not reported to his superior. This conduct amounted to lack of efficiency and negligence for which the petitioner was held liable and based on the Inquiry Officer's Report, the petitioner was dismissed from service.
3.1 Ms. Shah, learned advocate, would submit that the Inquiry Officer's Report when perused would indicate that the proceedings were vitiated on account of non compliance of the rules. Reliance was placed on sub-rule 17 of Rule 9 of the Gujarat (Discipline & Appeal) Rules, 1971. She would submit that in accordance with Rule 9(17) during the course of inquiry, the inquiring authority, after the government servant closes his case, if he has not examined himself generally questions him on the circumstances appearing against him in the evidence for the purpose of explaining the circumstances. In the case, the petitioner had not examined himself and hence it was obligatory on the part of the Inquiry Officer to put the evidence to the petitioner and ask for his explanation. Reliance was also placed on Rule 9(13) of the rules to Page 3 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 submit that no oral or documentary evidence is produced by the department, no witness was examined and the documents were produced by the inquiry officer on the date fixed for hearing. This was in violation of Rule 9(13) of the rule and the entire proceedings therefore deserves to be quashed and set aside.
3.2 Ms. Shah, learned advocate, would further submit that if the rojkam of the inquiry proceedings is considered, within five sittings which commenced on 28.11.2006, the departmental inquiry was concluded, written brief was filed and the Inquiry Officer's Report was finalized.
3.3 Ms. Shah, learned advocate,would submit that one of the charges was that no action was taken by the petitioner in respect of barnishi cases from serial nos. 1 to 222. The table attached to the charge sheet was not given to the petitioner and therefore the petitioner demanded such a copy for preparation of his defense. The copies were not supplied and there is a breach of rules and the orders of penalty therefore must be quashed and set aside.
3.4 On the aspect of quantum of penalty, Ms.Shah, learned advocate, would submit that in absence of any corruption or misappropriation charge, the charge being only lack of efficiency, the penalty of compulsory retirement after 27 years of service depriving the benefits of pension and all other benefits was excessive and harsh. Page 4 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022
C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 4 Mr.Meet Thakkar, learned AGP for the State would submit that the
petitioner who was serving as a Maintainance Surveyor was found negligent towards his duty for which a charge sheet was served on 04.06.2006. Based on the Inquiry Officer's Report he was rightly dismissed from service which penalty was modified in appeal to that of compulsory retirement. That penalty having found favour with the Gujarat Civil Services Tribunal, this Court should not interfere and interject inasmuch as, no illegality is committed by the Tribunal and in fact, the order of dismissal has been reduced to that of compulsory retirement.
4.1 On the Inquiry Officer's Report Mr.Thakkar, learned AGP, would submit that the rojkam clearly stated that the petitioner was given five adjournments to produce his oral or written submissions but he chose to remain absent. There is no violation of Rule 9 of the Gujarat Civil Services (Discipline & Appeal) Rules, as the petitioner was informed by the authority and he also admitted in the chart of the rojkam that is produced that there was no violation of principles of natural justice. 5 Considering the submissions made by the learned counsels for the respective parties, what needs to be seen is the four charges which are levelled against the petitioner.
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C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 5.1 Charge one against the petitioner is that while he was discharging
his duties as Maintainance Surveyor, Patan, for the period from 01.08.2005 to 28.02.2006, the petitioner had made entries, however had not got them sanctioned by the Superintendent. Moreover, the charge was that he had not made entries in the property card or in the register after 28.02.2006.
5.2 Charge two was that the petitioner had made entries from number 90121293 but had not proceeded consequentially and disposed them and had therefore shown negligence.
5.3 Charge three was that in the rectification register, he had put serial numbers but had not shown any description as to the rectification made and therefore, he had committed an irregularity.
5.4 Charge four was with regard to barnishi entries from serial nos. 1 to 222 inasmuch as the petitioner has not made out any entries or carried out consequential proceedings with regard to such entries. 6 Perusal of the Inquiry Officer's Report would indicate that on the basis of the charge sheet, a preliminary hearing was held on 28.11.2006. The petitioner was furnished the relevant documents and that was admited by the petitioner as recorded in the Inquiry Officer's Report. No demand for any other documents was made. The petitioner pointed out that he did not want to present any witnesses for his defense. Inquiry Page 6 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 Officer reports that after oral submissions, the Inquiry Officer concluded the hearing on 08.06.2007, and stipulated a time limit for the purposes of exchange of written briefs. The charges therefore are only proved on the basis of the presentation by the Presenting Officer as is evident from the proceedings recorded in the Inquiry Officer's Report. No evidence was laid by the department to substantiate as to what was the misfeasance or misconduct that the petitioner had been guilty of.
6.1 It is under this background that the context of Rule 9(17) of the Rules need to be considered. The defense of the petitioner in the inquiry was that since the petitioner had a lot of work load, the entries were possibly not made and therefore, the petitioner ought to have been pardoned. The Inquiry Officer on 25.10.2007 submitted the report holding that the charges are proved inasmuch as the petitioner had shown lack of efficiency and negligence. An order of dismissal was passed which was a subject matter of challenge in appeal before the competent authority. Reading the order of the Appellate Authority would indicate that the Appellate Authority had proceeded to opine on the context of misconduct holding that it did no agree with the perception of the petitioner that he had sufficient work load and that he should be forgiven for he having rendered 27 years of service and this was his first ommission to carry out duties. While converting the order of dismissal to that of compulsory retirement, it is worthwhile to observe that though the Page 7 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 Appellate Authority came to conclusion that the petitioner was not attributed the charge or the motive of being corrupt, however, what was observed by the Appellate Authority was that in not making the entries so in the register, the conduct of the petitioner reflected malice and ill conceived motive. This obviously was not the charge levelled against the petitioner. The observations of the Appellate Authority while holding the petitioner guilty and therefore modifying the order of penalty to that of compulsory retirement was beyond the charge that was levelled against the petitioner and proved in the departmental proceedings. 7 Perusal of the order of Tribunal would also indicate that the Tribunal on the question of proving of the charge except on holding that the Inquiry Officer had proved the charge and therefore a reasoned order was passed did not really get into the aspect of appreciating the arguments of the petitioner.
8 On the quantum of penalty, the Tribunal opined that while exercising power of judicial review, it could not substitute its own conclusion on the penalty unless it is proved that the punishment was intentionally or malafide imposed and is in defiance of logic. The Tribunal observed that in view of the observations of the Disciplinary Authority that the lapses were not minor, and the fact that the quantum of Page 8 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 penalty was reduced from that of dismissal to compulsory retirement, the Tribunal thought fit not to interfere with the punishment. 9 Mr.Meet Thakkar, learned AGP, has also relied on the decision of the Hon'ble Supreme Court in the case of Dy.General Manager, Appellate Authority & Ors. vs. Ajay Kumar Srivastav, reported in 2021 (2) SCC 612, relating to the jurisdiction of the Court under Article 226 of the Constitution of India in matters of judicial review of disciplinary proceedings.
10 Considering the entire evidence and the Inquiry Officer's Report in context of the charges on record, what is evident is that the charges if read wholly in the context of the misconduct, what was attributed to the petitioner was that he did not make a few entries in the property card or got them sanctioned by the Superintendent. That certain entries in the rectification register showed serial numbers but the rectifications were not shown. At best therefore the charge against the petitioner as is evident was lack of efficiency. It was not the case of the department that these lapses reflected wanting of the integrity of the petitioner or that such lapses were carried out with the motive of corruption. In fact, the Appellate Authority in its order unequivocally agrees with the submission of the petitioner that these charges were not charges which attributed Page 9 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 corrupt motive.
11 Having rendered 27 years of service, merely modifying the order of dismissal to that of compulsory retirement was not justified inasmuch as, looking to the charges, by holding the petitioner responsible and imposing the penalty of compulsory retirement, deprived the petitioner of the terminal benefits for the services that he had rendered. It has been pointed out by Ms. Shah, learned counsel for the petitoner that had the penalty of dismissal and of compulsory retirement not been imposed, the petitioner would have retired on superannuation on 30.11.2017. Even when the petitioner was dismissed from service on 12.05.2008, the petitoner had rendered 27 years of service without any charge or any misconduct particularly when it is not disputed that his career earlier was sullied except for the charges for the present.
12 As held by the Supreme Court in the case of Union of India vs J. Ahmed, reported in AIR 1979 SC 1022 when the misconduct at best is negligence which cannot be said to be misconduct of the kind which would warrant a punishment of compulsory retirement and deprivation of pensionary benefits, only on the ground of the penalty having been not commensurate with the misconduct, the order of penalty is quashed and set aside.
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C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 Accordingly, the order of dismissal dated 12.05.2008, the order of compulsory retirement dated 11.08.2008 and the judgement of the Gujarat Civil Services Tribunal dated 09.06.2011 are quashed and set aside.
13 The order of the Gujarat Civil Services Tribunal dated 09.06.2011 is quashed and set aside. The order of dismissal dated 12.05.2008 which was modified to that of compulsory retirement vide order dated 11.08.2008 is modified. The petitioner shall be treated to have been in service from the date of the order of dismissal till the date of superannuation, namely, 30.11.2017. On and from 12.05.2008, a penalty of withholding of 9 increments without future effect shall be imposed on the petitioner. Based on this order of penalty, the petitioner shall not get any salary for the period from the date of reinstatement till the date of superannuation i.e. 30.11.2017 on the basis of 'No work, No pay'.
Since the order of dismissal is set aside, the petitioner will be entitled to pensionary benefits which shall be calculated on the basis of he having faced penalty of withholding of 9 increments from 12.5.2008 and pensionary benefits as on the date of the superannuation shall be counted on this basis. The petitioner shall be entitled to all terminal benefits as if the petitioner had superannuated with effect from 30.11.2017. On the basis of the order of penalty of stoppage of 9 increments from 12.5.2008 Page 11 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022 C/SCA/12773/2011 CAV JUDGMENT DATED: 23/03/2022 all terminal benefits shall be calculated on this basis and be paid to the petitioner within a period of 12 weeks from the date of receipt of copy of this order.
(BIREN VAISHNAV, J) Bimal Page 12 of 12 Downloaded on : Wed Mar 23 22:08:14 IST 2022