Gujarat High Court
Naranbhai Ramprasad Pardeshi vs State Of Gujarat on 7 November, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/15014/2022 ORDER DATED: 07/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15014 of 2022
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NARANBHAI RAMPRASAD PARDESHI
Versus
STATE OF GUJARAT
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Appearance:
SWAPNESHWAR GOUTAM(9051) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for Respondent State
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/11/2023
ORAL ORDER
1. Heard learned Advocate Mr.Swapneshwar Goutam for the petitioner and learned AGP Mr.Trivedi for the respondent State.
2. Rule returnable forthwith. Learned AGP waives service of rule for respondent State.
3. The facts of this case clearly would portray the total non-application of mind on behalf of the State Authorities and would also reflect the lackadaisical approach on behalf of the State Authorities in understanding the decisions of this Court and complying with the same. The petitioner, who had been working with the State Government and had reached the age of superannuation in the year 2002 on the post of Medical Officer, had been issued with a charge-sheet on 31.3.2002 alleging misconduct and whereas, it would appear that the departmental inquiry pursuant to such charge-sheet had culminated in order dated 10.8.2005, whereby the respondents had imposed penalty on 100% cut Page 1 of 5 Downloaded on : Fri Nov 10 20:53:13 IST 2023 NEUTRAL CITATION C/SCA/15014/2022 ORDER DATED: 07/11/2023 undefined in pension of the present petitioner.
3.1. It would appear that the said order had been challenged by the petitioner by preferring SCA No.18962 of 2005 and whereas a learned Coordinate Bench, vide judgement dated 27.9.2016 had been pleased to set aside the order imposing penalty upon the present petitioner, more particularly on account of the advice of the Gujarat Public Service Commission not being provided to the petitioner before the impugned decision had been passed.
3.2. The learned Coordinate Bench had further reserved liberty in favour of the respondent authorities to proceed further from the stage of supply of copy of advice of GPSC to the petitioner and after getting an appropriate representation from the petitioner with regard to the same. It would appear that the respondent authorities had supplied a copy of the advice of GPSC dated 6.7.2005 i.e. co- relatable with the impugned order set aside by the learned Coordinate Bench and whereas the respondent authorities had thereafter passed the order dated 5.5.2018 imposing punishment of placing the petitioner in the lowest scale of pension i.e. at Rs.9,000/- per month. The petitioner has challenged the said order before this Court by way of present petition and whereas amongst other things, it is the contention of the petitioner that the respondent authorities had not provided a copy of the advice of GPSC, which is co-relatable with the order dated 5.5.2018 before passing of such order.
3.3. On 26.10.2023 when this Court was hearing the present matter, a dispute had arisen more particularly since diverse stands were being taken by learned Advocates i.e. learned Advocate for the petitioner and learned AGP as regards providing a copy of the advice of GPSC Page 2 of 5 Downloaded on : Fri Nov 10 20:53:13 IST 2023 NEUTRAL CITATION C/SCA/15014/2022 ORDER DATED: 07/11/2023 undefined and whereas under such circumstances, this Court has directed a Senior Officer of the State to file an affidavit as to whether the advice of GPSC was provided to the petitioner or not.
4. Today, learned AGP Mr.Trivedi would supply copies of certain documents to this Court and would submit that on account of paucity of time, more particularly since documents were to be gathered, affidavit- in-reply could not be filed and whereas one Mr.V. M. Patel, Under- Secretary, Health and Family Welfare Department, State of Gujarat is present in this Court and whereas the said officer would make a statement that before issuing the order dated 5.8.2018, the advice of GPSC i.e. referred to at Sr. No.11 of reference matter in the said order dated 22.2.2018 had not been provided to the petitioner before passing of such order.
5. As noted herein above, the fact of the respondents not providing a copy of second advice as co-relatable to order dated 5.5.2018 to the present petitioner, is reflective of the non-serious approach of the officers of the State and also reflects the absolutely lackadaisical approach of the respondents in understanding and implementing the orders of this Court in its true letter and spirit, even if the order were for the benefit of the State itself. It requires mention here that in the first round of litigation, when this Court had set aside the impugned order of punishment on the ground that the advice of the GPSC had not been provided to the petitioner and whereas the matter had been relegated back to the respondents to start afresh from the said stage, it required no gain-saying that the respondent authorities before passing order dated 5.5.2018 were required to provide to the petitioner the advice of the GPSC concurring with the contemplated decision of the State of imposing penalty upon the present petitioner. The respondents having not provided a copy of Page 3 of 5 Downloaded on : Fri Nov 10 20:53:13 IST 2023 NEUTRAL CITATION C/SCA/15014/2022 ORDER DATED: 07/11/2023 undefined the advice of GPSC to the petitioner, the necessary consequence i.e. of setting aside of the impugned order would follow.
6. At this stage, the observations of the learned Coordinate Bench in the first round of litigation would be apposite and whereas paragraph No.5 being relevant for the present purpose is reproduced for benefits:-
"5. Several contentions have been raised in this petition. However, this petition can be decided on the short ground raised herein that while imposing penalty of pension cut vide impugned order dated 10.08.2005, the respondents have relied upon an advice of the Gujarat Public Service Commission which has not been served to the petitioner before passing the impugned order dated 10.08.2005. The petitioner has with the petition produced a judgement of this court in the case of B.J. Jadav vs. State of Gujarat, 2005(2) GLH 334 wherein this court taking into consideration the provisions of Article 311(2), 323 and the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 had observed that from the rule position, it can be seen that before imposing a penalty, the Gujarat Public Service Commission (hereinafter referred to as 'the GPSC') is to be consulted. Under sub-rule (4) of Rule 10 of the said Rules, it is incumbent upon the Government to take into consideration the advice of the GPSC in every case where it is necessary to consult the commission before imposing any punishment on the Government Servant. Therefore, it is apparent that the advice of the GPSC would carry substantial persuasive value with the Government and form an important factor for the Government in arriving at the conclusion regarding the guilt or otherwise of the Government servant and the punishment to be imposed upon him. This court taking into consideration this rule position, therefore, held that the advice of the GPSC forms a vital material which the Government took into consideration before imposing the punishment on the petitioner and held that therefore in accordance with the judicial pronouncements it was incumbent upon the authorities to supply a copy of the advice of the GPSC so as to meet with the tenets of principles of natural justice."
7. The above observations of this Court more particularly with regard to non-supply of advice of GPSC would apply with all force to the facts of the present facts also. As such, while this Court is inclined to consider Page 4 of 5 Downloaded on : Fri Nov 10 20:53:14 IST 2023 NEUTRAL CITATION C/SCA/15014/2022 ORDER DATED: 07/11/2023 undefined the request made by learned Advocate Mr.Goutam to set aside the impugned order, this Court is disinclined to consider the submissions on behalf of learned AGP that the matter may be relegated to the State Government once again.
8. In the considered opinion of this Court, the State having been given an opportunity to correct their mistake and to take appropriate action against the petitioner after providing the advice of the GPSC to the petitioner having failed to comply with the said direction, now at this stage, approximately after two decades of the petitioner having retired and the petitioner now being aged around 78 years, this Court deems it appropriate more particularly relying upon decision of the Hon'ble Apex Court in case of Punjab National Bank Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 not to remand the matter back to the dsciplinary authority.
8.1. Having regard to the above observations, the following directions are passed :-
a) The impugned order dated 5.5.2018 is hereby quashed and set aside;
b) All necessary consequences of quashing and setting aside of order dated 5.5.2018 shall be provided to the petitioner within a period of 4 weeks from the date of receipt of this order.
9. The petition is disposed of as allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 5 of 5 Downloaded on : Fri Nov 10 20:53:14 IST 2023