Gujarat High Court
Atul Rajendrabhai Zaveri vs State Of Gujarat on 28 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2242 of 2019
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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ATUL RAJENDRABHAI ZAVERI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.BHASKAR TANNA, LD. SENIOR ADVOCATE with MR.HARDEEP
MAHIDA, ADVOCATE for TANNA ASSOCIATES(1410) for the Petitioner(s)
No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/02/2022
CAV JUDGMENT
1. RULE.
2. In this petition under Article 226 of the Constitution of India, the petitioner, a retired employee has Page 1 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 challenged the order dated 03.01.2018 by which he has been imposed a punishment of cut in pension of Rs.1,000/- for a period of three years.
3. Facts in brief are as under:
3.1 The petitioner was working as a Trade Instructor at the ITI, Gorva, Vadodara. A charge-
sheet was issued on 13.09.2005. The charges in brief were as under:
Charge:1- That the petitioner took tuition fees for the period from July 2003 to January 2004 and did not deposit the same with the department and therefore he committed temporary misappropriation. Charge:2- The second charge against the petitioner was that during training on 17.11.2003, when there was recess from 12.30 to 1.00 pm, he came late at
4.25 pm and then behaved in a rude manner with the Senior Training Officer.
Charge:3 The third charge was that he used to remain absent from time to time and his remaining Page 2 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 absent from 06.08.2004 was taken as a misconduct. Charge:4 The fourth charge was that the petitioner had obtained a loan from Jamnagar Rajkot Rural Bank and since the same could not be repaid, the suit was filed by the bank in the Civil Court, Jamnagar, of which the petitioner did not inform the department and therefore there was breach of Rule 18(B) of the Conduct Rules.
4. Based on these charges, a departmental inquiry was started and by report dated 15.11.2006, a copy of which was given to the petitioner, on 04.12.2006 charge No.1 was held not proved whereas charge Nos.2 to 4 were held to be proved. On a detailed representation made by the petitioner on 02.01.2007, the Disciplinary Authority agreed with the Inquiry Officer's report and by an order dated 08.10.2007, the petitioner was dismissed from service. The petitioner challenged the order by filing an appeal before the Gujarat Civil Services Tribunal. By a judgment and order dated 11.12.2012, the Tribunal quashed and set aside the Page 3 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 order dated 08.10.2007 and directed that the inquiry should have been held afresh and therefore, directed the Inquiry Officer to give a fresh opportunity of cross examining the witnesses and especially on the ground that this order of dismissal was non-speaking order, the Tribunal directed to hold an inquiry afresh and the order dated 08.10.2007 was quashed and set aside.
5. On 24.12.2012 the petitioner wrote a letter to the Director of Employment and Training to implement the judgment and reinstate the petitioner. Only after a contempt was filed, the petitioner was reinstated in service on 29.11.2013. By the order of 29.11.2013, on reinstatement, the period from 2007 was treated as suspension and continued to be under suspension. He was posted with his headquarter with Industrial Training Institute at Vadodara. Two years thereafter, on 30.11.2015, the petitioner reached the age of superannuation when the inquiry had not even started. However, by the order of retirement, it was qualified that the inquiry Page 4 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 that was initiated pursuant to the charge-sheet of 2005 would continue by virtue of operation of Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002. Nothing was done pursuant to the directions of the Tribunal in 2012 despite several reminders by the petitioner to initiate the inquiry. On 19.03.2016 an Inquiry Officer was appointed. Hearings were fixed from time to time. As nothing was done, the petitioner was again constrained to file Special Civil Application No.21510 of 2016 which was disposed of by an order dated 28.12.2016 directing the authorities to complete the inquiry within a period of four weeks and also with a direction to pay difference of subsistence allowance. After the order was passed on 28.12.2016, inquiry proceeded and on 06.07.2017, an inquiry report was submitted wherein all the charges were held to be proved. By a letter dated 26.05.2017, the petitioner was asked to make a representation by 30.06.2017. A final representation was made by the petitioner on 28.06.2017. By the impugned order of 03.01.2018, a Page 5 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 penalty of cut of Rs.1000/- for 3 years was made in the pension which is under challenge.
6. Mr.Bhaskar Tanna learned Senior Advocate appearing with learned advocate Mr.Hardeep Mahida for the petitioner would submit that at every stage there was a delay. He would submit that the facts would indicate that there was a complete policy paralysis with the Government. For an incident of 2003, the charge-sheet was issued in September 2005. The Inquiry Officer proceeded to hold an inquiry and two years after the charge-sheet, an order dated 08.10.2007 was passed. He would submit that after the order of the Gujarat Civil Services Tribunal dated 11.12.2012, only after more than almost a year that on 29.11.2013, that the petitioner was reinstated in service. After having been reinstated in service, it took further three years right from the date of reinstatement for the Inquiry Officer to hold and complete an inquiry. He would therefore submit that though the direction was issued in the year 2012, it took four years for the Page 6 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 department to complete the inquiry and submit a report.
6.1 Referring to the charges made, Mr.Tanna would submit that it was a case where it cannot be held that the petitioner has caused financial loss to the Government and therefore penalty of cut in pension could not have been imposed after merely continuing the inquiry under Rule 24 of the Gujarat Civil Services (Pension) Rule 2002. Reliance was placed on the decision of the Supreme Court in case of Union of India v. J. Ahmed reported in 1979 (2) SCC 286 to submit that no misconduct was committed so as to warrant a penalty.
7. Mr.Kurven Desai learned AGP would vehemently oppose the petition and support the order passed by the respondent authority in cutting pension of Rs.1000/- for a period of three years. He would submit on reading the impugned order that there were four charges leveled against the petitioner; one being of temporary misappropriation of Rs.9000/-, Page 7 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 coming late to the institute and remaining absent from time to time and not informing the department of the suit against him of recovery. These were misconducts which were proved by a regular departmental inquiry and therefore, the order was justified.
8. Considering the issue at hand, certain relevant dates need to be considered.
9. During the course of his service, a charge-sheet was issued to the petitioner on 13.09.2005. A response was given by the petitioner on 28.01.2006. Once a response was given, the departmental inquiry proceeded and by a report dated 15.11.2006, the Inquiry Officer held charge-1 not proved and charge Nos.2 to 4 to be proved. On a representation being made on 02.01.2007, the Disciplinary Authority imposed an order of punishment on 08.10.2007. On a challenge being made to the order of dismissal, the Tribunal by a judgment dated 11.12.2012, passed an order granting the appeal of the petitioner quashing Page 8 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 and setting aside the order dated 08.10.2007, holding that the inquiry should have been held afresh and therefore the matter was remanded. The Tribunal in para 8 of the order observed that the first charge was not prima-facie proved.
10. The department after the order of the Tribunal seems to have sat over it until a contempt was filed and the Director was compelled to reinstate the petitioner almost a year after the order of the Tribunal. The Tribunal's order was of December 2012, whereas the petitioner was reinstated almost after a year on 29.11.2013. From 20.09.2013 till the petitioner superannuated on 30.11.2015, the inquiry proceedings did not commence and an ornamental order operating Rule 24 of the Gujarat Civil Services (Pension) Rules 2002 was passed, directing that since the charge-sheet is already issued, the inquiry would be continued against the petitioner.
11. Even after retirement in 2015, it was only four months thereafter that on 19.03.2016 an Inquiry Page 9 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 Officer was appointed and the inquiry report was submitted only after the petitioner approached this Court and directions were issued to complete the inquiry within a stipulated time. The Inquiry Officer submitted a report only on 06.05.2017. What therefore makes it evident that though there was a direction of the Tribunal in the year 2012 to hold an inquiry afresh, the department dragged its feet and took five years for the inquiry to complete where, in the meantime, the petitioner attained the age of superannuation. For the oblique purposes of enabling the inquiry to be conducted and continued, Rule 24 was invoked when the petitioner superannuated, therefore, it is writ large on the face of record that a purported and deliberate delay on the part of the respondent authorities happened in continuing the inquiry and dragging the same unnecessarily purely with a view to harass a retired employee. Decisions have been cited at bar by Mr.Tanna to submit that when the proceedings are delayed and the inquiry is held and dragged on Page 10 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 unnecessarily, an employee cannot be held to be responsible for such a malady and cannot be penalized.
12. The Court would have set aside the order of penalty only on the ground of delay but there are more reasons to do so.
13. If the charge-sheet is perused which is of the year 2005, the allegations against the petitioner are that in July 2003, he took certain amounts towards fees that he collected, but did not deposit the same. The second charge is that while he was on an assignment for training on 17.11.2003, during the recess from 12.30 to 1 he went out and came late at 4.25 p.m. The third charge is regarding he being absent on 06.08.2004. Charge No.4 relates to he being not keeping the department in confidence about the pendency of the Civil Suit filed by the bank to whom the petitioner owes a certain outstanding amount.
14. The petitioner had specifically replied that his work was connected with the educational institution and it Page 11 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 was not his responsibility as a Trade Instructor to collect fees. As far as the second charge is concerned, regarding coming late and that he behaved in the rude manner, the petitioner has replied on 17.11.2003 that he was sent for training at the industrial automation (numatic control) and therefore the Principal allowed him to go, to which, he joined the said duty. He was present at 1'O clock but the Senior Officer Shri Rao was not present and therefore, the Principal of the Training Institute was made aware of this and it was only suddenly that the Senior Officer Mr.Rao started abusing the petitioner. There was no breach of disciplinary rules which would entail invoking a rule of misconduct.
15. As far as leave is concerned, no action was taken against the petitioner for remaining unauthorizedly absent in the year 2004. The petitioner took extra lectures while he was absent and it is pointed out that the absence had to be because of his wife was suffering from cancer who ultimately succumbed to the disease. As far as charge no.4 is concerned Page 12 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 apparently not informing department about the pendency of Civil Suit would not entail a punishment of cut in pension of Rs.1000/-.
16. All these penalties conjointly would indicate that it was not a case where the petitioner could have been imposed a penalty of deduction or cut in pension because they were not the ones which would cause financial loss by negligence of the petitioner. In fact, the only purpose of invoking the Rule was to continue and facilitate an inquiry which was initially itself delayed and which dragged on for the incompetence and inaction of the department for five years even after a direction of the Tribunal.
17. On merits also, when the Inquiry Officer's report is examined, it appears that the witnesses which were shown in the subsequent inquiry, never turned up and these three of the witnesses viz. Shri Gor, Shri Rao and Principal Mr.Mehta never turned up nor Mr.Nai remained present. It was case of foisting an Inquiry Officer's report after a delay of five years to Page 13 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022 C/SCA/2242/2019 CAV JUDGMENT DATED: 28/02/2022 somehow aim the petitioner. Moreover the order of reduction of pension itself again is a non-speaking order.
18. For all these grounds, the order dated 03.01.2018 is quashed and set aside. The respondents are directed to release all the amounts of difference in salary and pensionary benefits as if the orders dated 03.01.2018 and 05.04.2018 had never been passed. The compliance of consequential benefits to the petitioner shall be done within a period of six weeks from the date of receipt of copy of this order.
19. Petition is allowed in the above terms. Rule is made absolute to the aforesaid extent with no order as to costs.
(BIREN VAISHNAV, J) ANKIT SHAH Page 14 of 14 Downloaded on : Mon Feb 28 23:26:51 IST 2022