Gujarat High Court
N R Makwana vs Gujarat on 16 August, 2000
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
N R MAKWANA....Petitioner(s)V/SGUJARAT WATER SUPPLY AND SEWERAGE BOARD C/SCA/8493/2001 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8493 of 2001 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ====================================== 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, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
====================================== N R MAKWANA Versus GUJARAT WATER SUPPLY AND SEWERAGE BOARD AND ANOTHER ====================================== Appearance:
MR AI SUPEHIA with MR IS SUPEHIA, ADVOCATE for the Petitioner.
MR BHARAT T RAO, ADVOCATE for the Respondents.
====================================== CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/03/2013 CAV JUDGEMNT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner, a former employee of respondent no.1 Gujarat Water Supply and Sewerage Board, seeks to challenge the order of dismissal from service dated 16th August 2000 as well as the order dated 15th January 2001 passed by the appellate authority confirming the order of dismissal passed by the disciplinary authority.
2. The facts shortly stated may be summed up thus:
3. The petitioner was appointed as an English Typist by the respondent Board on 12th March 1982. In the year 1989, the petitioner was promoted to the post of Senior Clerk. While holding the post of Senior Clerk, he was reverted in 1994 and he served as such till he came to be dismissed from service by the order impugned dated 16th August 2000. On 11th June 1999, a charge sheet was served on the petitioner for the purpose of holding a departmental inquiry on two charges, (i) the petitioner had cheated many persons by extorting money from them with a promise to secure jobs in the Board by showing a letter dated 30th March 1996 purported to have been written by the Chief Engineer of the Board and (ii) the petitioner had misbehaved with the staff members and the officers of the Board and had administered threats.
4. One Mr.S.K.Shah was appointed as an inquiry officer to hold the departmental inquiry. On conclusion of the departmental inquiry, the inquiry officer gave his report dated 3rd April 2000 holding that the charges against the petitioner were established and proved.
5. Vide letter dated 8th June 2000, one Shri M.N.Randive (Presenting Officer), Inquiry Officer sent a copy of the inquiry report to the petitioner calling upon him to make his final representation within 15 days.
6. In response to the letter dated 8th June 2000 referred to above, the petitioner sent his representation dated 7th July 2000 to the Inquiry Officer .
7. After considering the representation of the petitioner dated 7th July 2000, the Member Secretary of the Board, vide order dated 16th August 2000 dismissed the petitioner from service.
8. Being dissatisfied with the order of dismissal, the petitioner preferred an appeal dated 21st September 2000 before the appellate authority of the Board.
9. Vide letter dated 17th January 2001, the Chief Administrative Officer informed the petitioner that his appeal to the Chairman of the Board was dismissed.
10. Being dissatisfied by the order of dismissal from service dated 16th August 2000 and the order dated 17th January 2001 of dismissal of his appeal, the petitioner has come up with the present petition.
11. The common order-sheet reveals that notice was made returnable on 15th October 2001. Thereafter, the matter was adjourned to 14th December 2001. On 14th December 2001, the learned Single Judge of this Court passed the following order:
Heard learned advocate Mr.Supehia for the petitioner. In response to the notice issued by this Court on 28/9/2001, respondents have appeared and on their behalf learned advocate Mr.B.T.Rao has filed appearance. But till this date, respondents have not filed any reply. Not only that though the matter was called out twice the learned advocate, Mr.Rao has not remained present on both the occasions. The petitioner was dismissed from service on 16th August 2000 and thereafter appeal filed against dismissal has been dismissed on 15/1/2001. Hence, the matter would require consideration. Hence Rule returnable in first week of March 2002.
12. The order-sheet further reveals that the matter thereafter was adjourned from time to time.
13. On 13th January 2012, the matter was placed before me for hearing and on that date a request was made on behalf of Mr.Rao to adjourn the matter and accordingly the matter was once again notified for hearing on 29th August 2012. On 29th August 2012, this Court passed the following order:
The matter is called out twice. On both the occasions, Mr.B.T.Rao, the learned counsel appearing for the respondents, is not present. I have heard Mr.A.I.Supehia, the learned counsel appearing for the petitioner at length.
As a last opportunity, the matter is adjourned to 31st August 2012 at 5:00 pm. To be treated as part-heard.
14. On 31st August 2012, this Court passed the following order:
This matter was notified for final hearing on 29th August 2012. On 29th August 2012, this Court passed the following order :
The matter is called out twice. On both the occasions, Mr.B.T.Rao, the learned counsel appearing for the respondents, is not present. I have heard Mr.A.I.Supehia, the learned counsel appearing for the petitioner at length.
As a last opportunity, the matter is adjourned to 31st August 2012 at 5:00 pm. To be treated as part-heard.
Pursuant to the order passed by this Court dated 29thAugust 2012, the matter was notified on today's board of 4:50 pm. This Court waited for the learned counsel for the respective parties till 5:10 pm. However, none remained present. The matter has been notified for 41 times till this date and is of the year 2001. In the past also, on number of occasions the matter was adjourned on request being made on behalf of the learned counsel Mr.Bharat T.Rao appearing for the respondents. Hearing concluded. C.A.V.
15. In the circumstances referred to above, I didn t had the benefit of hearing the submissions of Mr.Rao, the learned advocate appearing on behalf of the respondent Board. However, I could understand the stance of the respondent Board on the strength of the averments made in the affidavit-in-reply filed by the Board.
16. Mr.Supehia, the learned advocate appearing for the petitioner submitted that the departmental proceedings stood vitiated since the petitioner was not allowed to engage an advocate during the departmental inquiry.
According to Mr.Supehia, his client vide letter dated 29th September 1999 had requested the inquiry officer, Shri S.K.Shah, to permit him to engage an advocate to defend him at the departmental inquiry. Mr.Supehia submitted that vide letter dated 13th October 1994, the Chief Engineer of the Board refused to grant such permission to his client to engage an advocate on the ground that according to the Circular dated 27th May 1986 issued by General Administration Department, only a retired government servant could assist the delinquent and not an advocate. Mr.Supehia further submitted that subsequently the petitioner was permitted to be assisted by a retired government servant at the departmental inquiry. According to Mr.Supehia, denial or refusal on the part of the authorities in not permitting his client to be defended through an advocate is in violation of Rule 9, Clause (5), Sub-clause (c) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. Mr.Supehia submitted that on plain reading of Rule 9, Clause (5), Sub-clause (c) of the Rules, 1971 would suggest that it is the disciplinary authority who has to take a decision whether an employee should be permitted to engage a legal practitioner having regard to the facts and circumstances of the case. However, according to Mr.Supehia, in the present case such decision was not taken by the disciplinary authority but the same was taken by the Chief Engineer who refused the permission to engage an advocate.
17. Mr.Supehia submitted that his client was facing a departmental inquiry wherein very serious charges of misconduct were levelled and as many as 20 witnesses were to be examined. In such circumstances, the authorities ought to have considered the request of the petitioner for engaging an advocate and the refusal on their part, more particularly, in violation of Rule-9, Clause (5), Sub-clause (c) of the Rules 1971 has vitiated the entire departmental proceedings.
18. Mr.Supehia, elaborating his submission, further submitted that the presenting officer appointed by the Board was a highly qualified and experienced officer, as against that, the petitioner was permitted to be assisted by a retired government servant, who was no match to a trained qualified and experienced person of the status of a Deputy Manager. Inasmuch as the presenting officer, Mr.M.N.Randive, in the past had also acted as a disciplinary authority in many cases.
19. Mr.Supehia submitted that the inquiry is also vitiated on the ground of breach of mandatory provisions of Sub-rule (17) of Rule 9 of the Rules 1971. According to Mr.Supehia, Sub-rule (17) of Rule 9, provides that the inquiry authority may after the government servant closes his case and shall if the government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence to explain any circumstances, appearing in the evidence against him. According to Mr.Supehia Sub-rule (17) of Rule 9 is para materia to Section 313 of the Criminal Procedure Code. Mr.Supehia submitted that it was obligatory on the part of the inquiry officer to have put the incriminating circumstances appearing on record of the case to the petitioner so as to give the petitioner an opportunity to explain all such incriminating circumstances and the failure on the part of the inquiry officer in giving such opportunity has rendered the impugned order of dismissal liable to be set aside. In support of such submission, Mr.Supehia relied on a decision of the Supreme Court in the case of Moni Shankar v. Union of India (2008) 3 SCC 484 and a judgment rendered by learned Single Judge of this Court in the case of Faridaben Ahmedhusen Qureshi v. State of Gujarat, in Special Civil Application No.7317 of 2004 decided on 1.7.2010.
20. Mr.Supehia, thereafter, submitted that the impugned order of dismissal deserves to be set aside also on the ground that of breach or violation of Rule 10 of the Rules, 1971. According to Mr.Supehia, there is a twofold breach of Rule 10. First, the inquiry officer, Mr.S.K.Shah sent his inquiry report to the disciplinary authority and at that stage it was for the disciplinary authority to consider the inquiry report and state whether it agreed with the findings of the inquiry officer or not or whether it was necessary to remit the case to the inquiry officer, and secondly such statutory duties are required to be performed by the disciplinary authority. However, according to Mr.Supehia, it is evident from letter dated 8th June 2000 addressed by Shri M.N.Randive, the inquiry officer who was the presenting officer that both the above referred statutory obligations were performed by him only. According to Mr.Supehia, it is always the disciplinary authority who has to consider the inquiry report and not the presenting officer.
21. Mr.Supehia submitted that there is also a violation of Sub-rule (4) of Rule 10, as the disciplinary authority failed to record any finding on all or any of the articles of charge as referred thereunder.
22. Mr.Supehia further submitted that the impugned order is also liable to be set aside for the reason that various points raised by his client in his representation dated 7th July 1999 have not been dealt with in the impugned order. According to Mr.Supehia the impugned order of dismissal only states that final defence statement dated 7.7.1999 was considered carefully. According to Mr.Supehia, this was not the final defence statement but it was the representation made against the findings of the inquiry officer to which the disciplinary authority was obliged to apply his mind.
23. Mr.Supehia lastly submitted that the appellate authority also failed to decide the appeal of his client in accordance with Rule 21 of the Rules. According to Mr.Supehia none of the aspects as enumerated in Rule 21 were considered by the appellate authority and the dismissal of the appeal could be termed as mechanical without application of mind.
24. On the other hand, it appears from the affidavit-in-reply filed on behalf of the respondent Board that the order of the disciplinary authority dismissing the petitioner from service and confirmed by the appellate authority in appeal is just, proper and in accordance with the provisions of Gujarat Civil Service (Discipline and Appeal) Rules, 1971. The stance taken in the affidavit-in-reply is that charges against the petitioner were very serious and the petitioner has been rightly dismissed from service. It is also the stance of the respondent Board that in a departmental inquiry strict rules of evidence are not applicable and the findings of the inquiry officer which are accepted by the disciplinary authority as well as the appellate authority should not be disturbed in exercise of powers under Article 226 of the Constitution of India. It is also the stance of the respondent Board that ample opportunity was given to the petitioner to defend himself, and therefore, the complaint of violation of various provisions of the Rules is without any basis. In the affidavit-in-reply it has been stated that in such circumstances the petition deserves to be dismissed with costs.
25. I have bestowed my anxious thought and considerations to the submissions canvassed by Mr.Supehia appearing on behalf of the petitioner and the averments made in the affidavit-in-reply filed by the respondent-Board.
Having heard the learned counsel appearing for the petitioner and having gone through the materials on record, the only question that falls for my consideration is whether the order of dismissal from service passed against the petitioner deserves to be quashed and set aside.
Indisputably, as held by the Supreme Court in Roop Singh Negi v. Punjab National Bank and Others reported in (2009) 2 SCC 570, that a departmental proceeding is a quasi judicial proceeding.
The inquiry officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The inquiry officer has a duty to arrive at a finding upon the charges taking into consideration the material brought on record by the parties. Although the provisions of the Evidence Act are not applicable in the departmental proceedings, however, the principles of natural justice are required to be complied with. Furthermore, the order of the disciplinary authority as also the appellate authority must be supported by the cogent reasons as orders passed by them have severe civil consequences.
28. I shall deal with first submission of Mr.Supehia as regards Rule 9, Clause (5), Sub-Clause (c) of the Rules 1971. Rule 9, Clause (5), Sub-clause (c) reads as under:
9.
................
(5)(a) ........
(b) .......
(c) The Disciplinary Authority may nominate any person hereinafter referred to as the Presenting Officer to present the case in support of the charge before itself if it itself is to enquire into the charges or before the Inquiry Authority. [The Government servant may present his case with the assistance of any other Government Servant approved by the Inquiry Authority, but may not engage a legal practitioner for the purpose unless the Disciplinary Authority having regard to the circumstances of the case so permits].
On plain reading of the Rule, it is clear that a delinquent is entitled to make a request to engage a legal practitioner with the permission of the disciplinary authority. In the present case, such permission was prayed for by the petitioner, having regard to the serious nature of the charges levelled against him as well as the voluminous record which was being used against him. It appears and the same has not been denied by the respondent Board in its affidavit-in-reply that such decision refusing permission to engage an advocate was not taken by the disciplinary authority who is the Member Secretary of the Board but the same was refused by the Chief Engineer. However, I am of the opinion that on such ground alone, it could not be said that the entire inquiry stood vitiated. The reason is that after such permission was refused the petitioner could have challenged the same before the higher forum but it appears that he did not challenge and continued with the departmental inquiry. In such circumstances, I am not impressed with this submission of Mr.Supehia.
I may only state in the aforesaid context that violation could be of a procedural provision which may be of a mandatory character or may not be of a mandatory character. As held by the Supreme Court in State Bank of Patiala and Others v. S.K.Sharma reported in AIR 1996 SC 1669 that an order passed imposing a punishment on an employee consequent upon a disciplinary/departmental inquiry in violation of the rules/regulations/statutory provisions governing such inquiries should not be set aside automatically. The Court or the Tribunal should inquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. A substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position as explained by the Supreme Court in State Bank of Patiala (Supra) is : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the inquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for.
31. Again as explained by the Supreme Court in State Bank of Patiala (supra) that in case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including setting aside of the order of punishment). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
32. In the present case, as discussed above, the petitioner waived the provision by proceeding ahead with the inquiry without challenging the decision communicated to him by the Chief Engineer rejecting his request to engage an advocate.
33. I shall now deal with the submission as regards breach of Sub-rule (17) of Rule 9. Sub-rule (17) of Rule 9 reads as under:
9.
................
(17) The Inquiry Authority may, after the Government servant closes his case, & shall if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
34. So far as this submission is concerned, it has not been denied by the respondent-Board in its affidavit-in-reply that the inquiry officer while conducting the inquiry did not comply with the requirement of Rule 9, Clause(17) of the Rules 1971. As held by the Supreme Court in Moni Shankar (supra) and by this High Court in Faridaben (supra) that non-compliance of Rule 9, Clause (17) would amount to denying the opportunity to explain the circumstances appearing against the delinquent. This omission on the part of the inquiry officer would certainly vitiate the departmental proceedings.
35. I may quote with profit paragraph 28 of Moni Shankar (supra) as under:
The High Court also committed a serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied the said opportunity .
36. I may also quote the observations made by learned Single Judge of this High Court in Faridaben (supra).
4. Rule 9(17) runs thus :
The Inquiry Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
5. The provision is more or less similar to Section 313 of Cr PC, which would provide an opportunity to a person facing charges to explain the circumstances which may be used against him.
6. In this context, reference may be made to the decision of the Apex Court in the case of Moni Shankar vs. Union of India, (2008) 1 SCC (L&S)
819. There the Apex Court observed in para 28 that, The High Court also committed a serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied the said opportunity .
7. Learned AGP Mr Raval has drawn the attention of this Court to the affidavit-in-reply. He submitted that the submission that non-compliance of provision contained in Rule 9(17) is only a defence taken. In fact, the petitioner has been given ample opportunity during inquiry proceedings and at no point of time the petitioner has raised any objection during the course of inquiry proceedings for not giving any opportunity of making a final statement after the defence of the petitioner was closed. If at all the petitioner wanted to be heard as per the provision contained in Rule 9(17), then the petitioner ought to have requested the Inquiry Officer for recording his statement, as claimed by him. It is also contended that even otherwise the said provision is not mandatory inasmuch as the said provision clearly reflects the discretion given to the Inquiry Officer in giving an opportunity to the delinquent employee after closing the defence.
8. Having regard to the rival contentions, it is factually not disputed that the respondent authorities while conducting the inquiry did not comply with the requirement of Rule 9(17). Noncompliance of this has been held by the Apex Court to be denying an opportunity to explain the circumstances appearing against the delinquent. This would certainly vitiate the departmental proceedings and would affect the right of the petitioner to defend himself in a material way. Under the circumstances, the impugned order imposing the penalty deserves to be set aside.
9. The petition thus stands allowed. The order dated 3.5.2004 impugned in this petition is quashed and set aside. Rule is made absolute. No costs.
37. In such circumstances, I am left with no other option but to hold that the departmental inquiry stood vitiated for non-compliance of Rule 9, Sub-Rule (17) of the Rules 1971.
38. I shall now deal with the submission as regards violation of Rule 10 of the Rules 1971. Rule 10 reads as under:
10. Action in the inquiry report.- (1) The Disciplinary Authority if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 9, as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in items (1) to (3) of rule 6 should be imposed on the Government servant it shall notwithstanding anything contained in rule 11 make an order imposing such penalty.
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
[(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 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.]
39. The contention on behalf of the petitioner as regards Rule 10 is that the obligation is cast upon the disciplinary authority to consider the inquiry report and state whether it agreed with the findings of the inquiry officer or not or whether it was necessary to remit the case to the inquiry officer. In the present case, according to Mr.Supehia, the inquiry officer, Mr.S.K.Shah had forwarded his inquiry report to the disciplinary authority but the same was not considered by the disciplinary authority but was considered by Shri M.N.Randive, the Presenting Officer, as is evident from the letter dated 8th June 2000. I am not impressed with this submission of Mr.Supehia, for the simple reason that it is no doubt true that letter dated 8th June 2000 has been addressed by Mr.M.N.Randive calling upon the petitioner to send his representation, if any, within 15 days failing which it would be construed that the petitioner had nothing to say as regards the report of the inquiry officer and further proceedings would be undertaken, however, from such a letter, it should not be construed that the inquiry report was considered by Mr.Randive and not by the disciplinary authority. Ultimately, the final order of dismissal dated 16th August 2000 would indicate that the inquiry report was considered by the disciplinary authority and the disciplinary authority agreed with the findings recorded by the inquiry officer and accordingly ordered dismissal of the petitioner from service.
40. I shall now deal with the last submission canvassed on behalf of the petitioner as regards violation of Rule 21 of the Rules. I am of the opinion that this submission of Mr.Supehia merits consideration. Rule 21 reads as under:
21. Consideration of Appeals. -
(1) In case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6, or enhancing any penalty imposed under the said rule, the appellate authority shall consider-
(a) Whether the procedure prescribed in these Rules has been complied with:
(b) Whether such non-compliance, if any, has resulted in any material irregularity or illegality so as to result in miscarriage of justice;
(c) Whether the findings are justified, and
(d) Whether the penalty imposed is excessive, adequate or inadequate, and, after consultation with the Commission if such consultation is necessary in the case, pass orders-
(i) setting aside, reducing, confirming or enhancing the penalty, or
(ii) remitting the case to the authority which imposed the penalty or to any other authority for further inquiry or with such direction as it may deem fit in the circumstances of the case:
Provided that-
(i) The appellate authority shall not so enhance the penalty as to inflict a penalty which neither such authority nor the authority which made the order appealed against is competent to impose in the case under appeal;
(ii) no order for enhancing the penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty, and
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in item (4) to (8) of rule 6 and an inquiry under rule 9 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 11, itself hold such inquiry in accordance with the provisions of rule 8 and thereafter on consideration of the proceedings and record of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit.
(3) In the case of an appeal against any order specified in rule 14 the appellate authority shall consider all the circumstances of the case and pass such order as it deems just and equitable.
41. It is apparent on plain reading of the order dated 15th January 2001 dismissing the appeal that the same is a non-speaking order. The appellate authority is obliged in law to consider the aspects referred to in sub-clause (2) (a) (b) (c) (d). I have gone through the appeal memo which is at Annexure-F to the petition. In the appeal memo, the petitioner had raised various grounds of challenge including violation of Rule 9, Sub-rule (13), Rule 9, Sub-rule (17) as well as Rule 6. However, there is no reference worth the name of the same in the order passed by the appellate authority dated 15th January 2001. I have no doubt in my mind that the order of the appellate authority is a non-speaking order and on such ground alone the order deserves to be set aside. Further the order dismissing the appeal dated 15th January 2001 is also communicated through the Chief Officer. There is no material on record to indicate as to how the appeal was dealt with by the appellate authority. Even the affidavit-in-reply filed by the respondent Board is silent about the same.
42. In the aforesaid context, I may quote with profit a decision of the Supreme Court in Chairman, Disciplinary Authority, Rani Lakshmibai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Others reported in (2009) 4 SCC 240.
In this case, the Court took the view that an order of affirmation need not contain as elaborate reasons as an order of reversal but that does not mean that the order of affirmation need not contain any reasons whatsoever. The observations made in paragraph nos.5, 6, 7, 8, 9 and 10 are quoted herein below.
5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case(supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
The view we are taking was also taken by this Court in Divisional Forest Officer vs. Madhusudan Rao, JT 2008 (2) SC 253. (vide para 19), and in Madhya Pradesh Industries Ltd. vs. Union of India, AIR 1966 SC 671, Siemens Engineering and Manufacturing Co. Ltd. vs. Union of India, AIR 1976 SC 1785 (vide para 6), etc. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind.
The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S. N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
9. No doubt, in S. N. Mukherjee's case (supra), it has been observed (vide para 36) that :
"36..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority.
10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide para 15) has also to be understood as explained by us above.
I have also noticed one another infirmity in the order of dismissal passed by the disciplinary authority going to the root of the matter. In the order of dismissal dated 16th August 2006, although there is a reference of defence statement of the delinquent dated 7th July 2000 but I hardly find any discussion of any of the grounds raised by the delinquent in his representation dated 7th July 2000, Annexure-D to this petition. On plain reading of the order of dismissal passed by the disciplinary authority it is very apparent that in the first two paragraphs, the disciplinary authority has stated about the charges and in paragraph 2, 3 and 4 there is some discussion as to how the inquiry proceeded and in paragraph 5 straightway it has been stated that the defence statement is rejected and accordingly the order of dismissal was passed.
44. A Division Bench of this High Court in Letters Patent Appeal No.1006 of 2006 in Special Civil Application No.3948 of 2006 decided on 22nd November 2011 held that the disciplinary authority is obliged in law to consider the reply given by the delinquent to the show cause notice prior to passing of the impugned punishment order. The Court proceeded to hold that the disciplinary authority is required to record some reasons and consider the points raised in the representation before passing the order of punishment. In absence of any reasons the impugned order of dismissal being a non-speaking order cannot be maintained.
It has also been brought to my notice by Mr.Supehia that in the criminal prosecution which was initiated against the petitioner for the same charges, the petitioner was acquitted vide judgment and order dated 29th April 2010 passed by Chief Judicial Magistrate, Patan.
For the reasons recorded above, I am of the opinion that the order of dismissal dated 16th August 2000 passed by the disciplinary authority as well as the order dated 15th January 2001 passed by the appellate authority deserves to be quashed and set aside.
However, the next question for my consideration is whether I should quash the impugned orders and remit the matter to the authorities for fresh consideration or whether I should put an end to this litigation. I am of the opinion that since the order of punishment passed by the respondent Board is vitiated due to violation of the statutory Rules and the principles of natural justice, I may have remitted the matter to the respondent Board with a direction to consider various aspects which I have referred to in my judgment and take a fresh decision in the matter, however, keeping in view the fact that the petitioner was removed from service more than 14 years ago, I do not consider it proper to adopt that course. In taking this view, I take support of the decision of the Supreme Court in the case of Ms.G.Vallikumari v. Andhra Education Society and Others reported in AIR 2010 SC 1105.
The observations made in paragraph 15 are relevant so far as this issue is concerned.
15. Since the order of punishment passed by the Chairman of the Managing Committee is vitiated due to violation of the statutory rules and the principles of natural justice, we may have remitted the matter to the Tribunal with a direction to consider whether or not the penalty of removal from service imposed upon the appellant was disproportionate to the misconduct found against her or the action taken by the management was wholly arbitrary or unjust but keeping in view the fact that the appellant was removed from service more than 13 years ago, we do not consider it proper to adopt that course. In Superintendent (Tech.I) Central Excise I.D.D. Jabalpur and others v. Pratap Rai, 1978 (3) SCC 113 : (AIR 1978 SC 1244), this Court held that if an order passed by the disciplinary authority is annulled on a technical ground, the concerned authority is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge. In Shri Bhagwan Lal Arya's case (2004 AIR SCW 2288), a somewhat similar approach was adopted by this Court by recording the following observations :
"Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment." (Emphasis supplied) I am of the opinion that ends of justice will be met by substituting the punishment of dismissal from service imposed on the petitioner with the penalty of stoppage of three increments without cumulative effect and directing that the petitioner shall be paid only 50% of back wages during the intervening period.
In the result, the petition is partly allowed. The impugned order passed by the disciplinary authority dated 16th August 2000 and the order passed by the appellate authority dated 17th January 2001 are quashed and set aside. The punishment of dismissal from service imposed on the petitioner is substituted with penalty of stoppage of three increments without cumulative effect. I also direct that instead of full back wages, the petitioner shall be entitled to 50% of the salary and allowances for the period between the dates of dismissal from service and this order. The respondent Board is directed to pay the requisite amount towards 50% of the back wages and other allowances within a period of four weeks from today. The respondent nos.1 and 2 are directed to reinstate the petitioner without delay.
Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
(J.B.PARDIWALA, J.) *malek Page 25 of 25