Gujarat High Court
Parshottambhai Laljibhai Parmar vs State Of Gujarat on 6 April, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/2858/2020 JUDGMENT DATED: 06/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2858 of 2020
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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PARSHOTTAMBHAI LALJIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MS SURBHI BHATI, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 1, 2,3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 06/04/2022
ORAL JUDGMENT
1. Rule returnable forthwith. With the consent of the learned advocates for the parties, matter is taken up for final hearing. Heard Mr. Asthavadi, learned advocate appearing for the petitioner and Ms. Surbhi Bhati, learned AGP for the State.
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2. The short question for consideration of this court is whether the order imposing penalty of 100% cut in pension dated 10.12.2019 in case of the petitioner is in consonance with the principles laid down by the resolution of the Government dated 05.08.2003 read with resolution of the General Administration Department dated 18.03.1986.
3. The facts in brief would indicate that the petitioner was working as a Surveyor with the respondent department since 1973. A criminal case being C.R. No. 5 of 2004 was lodged on 17.03.2004 at the ACB Police Station, Surat. It was subsequently transferred and numbered as Special ACB Case No. 21 of 2004. By a judgement and order dated 05.12.2004, the petitioner was convicted under Sections 7, 13(1)(c) and 13(2) of the Prevention of Corruption Act, 1988. The case of the department is that the petitioner was convicted for having accepted a bribe of Rs.2500/- and was caught red-handed.
4. Mr. Asthavadi, learned counsel for the petitioner would assail the order of imposing 100% cut in pension essentially on the ground that it did not reflect application of mind. In support of his submission, Mr. Asthavadi would rely on the resolution dated 05.08.2003 of the General Administration Department. Emphasizing the fact that sub-clause 2 of para 2 of the resolution indicates that once an employee is convicted of an offence, while imposing a penalty, the disciplinary authority has to take into consideration the entire facts of the case, the nature of misconduct, the gravity of offence and the effect on the administration and considering these circumstances an order has to be passed on merits considering the decision and the judgement of the criminal court. The Page 2 of 6 Downloaded on : Fri Apr 08 21:07:47 IST 2022 C/SCA/2858/2020 JUDGMENT DATED: 06/04/2022 resolution of 05.08.2003 would refer to the circular of the General Administration Department dated 18.03.1986. Considering paragraphs no. 3 and 7 of the said circular, in short, Mr. Asthavadi would submit that perusal of the impugned order would indicate complete non application of mind and a mathematical exercise of passing an order of reduction of pension by 100% merely because the petitioner has been convicted.
4.1 In support of his submission, Mr. Asthavadi would rely on the decision rendered in Special Civil Application No. 9967 of 2018 dated 31.07.2018 wherein this court considering the decision of the Apex Court held that even if a summary procedure has to be followed of imposing penalty on conviction, principles of natural justice have to be followed. Reliance is also placed by Mr. Asthavadi on the decision of this court in Special Civil Application No. 766 of 2020 dated 24.01.2022. Relying on the decision in the case of Chairman, LIC of India & Others vs. A Masilamani reported in (2013) 6 SCC 530, Mr. Asthavadi would rely on para 11 thereof which interprets the word 'consider' and submit that the order impugned does not reflect intense application of mind with reference to the material available on record.
5. Ms. Surbhi Bhati, learned AGP would oppose the petition on the ground that the petitioner was convicted of a serious offence of corruption under the provisions of the Prevention of Corruption Act, 1988 inasmuch as he had accepted Rs.2500/- as bribe and was caught red- handed. He would therefore deserve no sympathy. She would also submit that in accordance with the provisions of the circulars, a show- cause notice was issued on 09.04.2019 to which the petitioner responded by filing a reply on 24.04.2019 and considering the reply so filed, the authority imposed a penalty of reduction of 100% pension. Falling back Page 3 of 6 Downloaded on : Fri Apr 08 21:07:47 IST 2022 C/SCA/2858/2020 JUDGMENT DATED: 06/04/2022 on the reply filed by respondent no. 3, Ms. Bhati would submit that in pursuance of the circular of the government dated 07.01.2010, the petitioner would not be entitled to pension due to the gravity of misconduct and the conviction. Ms. Bhati relies on a foreign case law rendered by the Supreme Court, New Jersey in the case of Uricoli vs. Board of Trustees, Police and Firemen's Retirement System reported in 449 A 2d. 1267 (N.J. 1982) and submits that the factors that have been considered by the disciplinary authority as enunciated in the decision have been considered which are set out in paras 1 to 10 of the decision.
6. Considering the submissions made by the learned counsel for the respective parties, what is evident from the perusal of the order is that the chronology of events that has been recorded in the order in the preface thereof is that the petitioner was arraigned in an offence under the provisions of the Prevention of Corruption Act, 1988. The case was registered and by a judgement of the criminal court dated 05.12.2014, the petitioner was convicted. The order further reflects that in accordance with the resolution of the government dated 05.08.2003 and 07.01.2010, a penalty of 100% pension cut was imposed as empowered under the Gujarat Civil Services (Pension) Rules, 2002. Reading of the resolution dated 05.08.2003 in light of the circular dated 18.03.1986 would indicate that when the disciplinary authority contemplates taking action against a government servant who has been convicted of a criminal charge, awareness of such a conviction alone will not suffice. The disciplinary authority must consider whether his conduct which has led to his conviction warrants imposition of penalty and if so what that penalty should be. For that purpose, the disciplinary authority will have to peruse the judgement of the Apex Court and consider all the facts and circumstances of the case. The circular further envisages that in Page 4 of 6 Downloaded on : Fri Apr 08 21:07:47 IST 2022 C/SCA/2858/2020 JUDGMENT DATED: 06/04/2022 considering the matter the disciplinary authority will have to take into account the entire conduct of the delinquent, the gravity of the misconduct, the impact likely to have on the administration and other extenuating circumstances or redeeming features.
7. Emphasis has been laid by the circular that while applying the provisions of Article 311(2) of the Constitution of India, the disciplinary authority should not give an impression that action appears to be arbitrary or was designed to avoid an inquiry which is in the case of dispensation of inquiry.
8. Perusal of the facts on hand would indicate that though principles of natural justice were complied with inasmuch as notice dated 09.04.2019 was issued to the petitioner, on a response being filed by the petitioner on 24.12.2019, reading of the order indicates that the parameters of application of mind as suggested in the circular dated 18.03.1986 have not been followed, particularly when an appeal against the conviction is filed and is pending before this court being Criminal Appeal No. 1430 of 2014.
9. Accordingly, the impugned order dated 10.12.2019 only on the ground of it having been passed without application of mind and the relevant circumstances as envisaged under the circular dated 18.03.1986 read with resolution dated 05.08.2003. This however does not preclude the respondent authority to pass a fresh order after considering the response already filed by the petitioner in response to the show-cause notice dated 09.04.2019. The entire exercise shall be completed within ten weeks from the date of receipt of the order. Since the order of reduction of pension is quashed, pending fresh consideration, the Page 5 of 6 Downloaded on : Fri Apr 08 21:07:47 IST 2022 C/SCA/2858/2020 JUDGMENT DATED: 06/04/2022 petitioner's pension shall be restored for the limited period till passing of the fresh order within the stipulated time. Petition is accordingly allowed. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 6 of 6 Downloaded on : Fri Apr 08 21:07:47 IST 2022