Gujarat High Court
Abhesinh Madubai Roz vs State Of Gujarat on 24 October, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14510/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14510 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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ABHESINH MADUBAI ROZ
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HR LATHIGARA(423) for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP (1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 24/10/2019
CAV JUDGMENT
Heard learned advocate Mr.H.R. Lathigara for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for the respondent No.1 - State and learned advocate Mr.H.S. Munshaw for respondent No.2.
Page 1 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019 C/SCA/14510/2018 CAV JUDGMENT2. By filing the present petition under Article 226 of the Constitution, petitioner has prayed to set aside the inquiry report dated 17th June, 2016. He further prayed to quash the subsequent order dated 30th July, 2018 whereby the penalty was imposed against the petitioner of deduction of Rs.2,500/- from the pension of the petitioner.
3. The basic facts are that petitioner was Taluka Development Officer at Kadana, District Panchmahal during the period from 22nd September, 2007 to 19th February, 2009. The construction work of Panghat was carried out at Village Dhingalwada and further construction of 240 toilets under the Nirmal Gram Vikas Scheme was also undertaken. It appears that some application in the form of complaint was received in respect of irregularities in the said construction work. In the said complaint dated 16.10.2008 it was stated that the Panghat was constructed in the Khet Talavadi instead of on the wall of the dam where it was supposed to be constructed. It was also alleged that only 113 toilets instead of 214 were constructed.
3.1 It appears that inquiry was undertaken pursuant to the complaint and report was submitted. Upon receiving of the report of the inquiry, the Gram Vikas Agency communicated to the District Development Officer to take disciplinary action against the Talati-cum-Mantri and Sarpanch of the village panchayat who were, as per the averments of the petitioner, found liable in the inquiry for Page 2 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019 C/SCA/14510/2018 CAV JUDGMENT misappropriation. They were asked to pay the sum of Rs.01,94,438/- which were the alleged amount of misappropriation. The Talati-cum-Mantri and the Sarpanch deposited the amount.
3.2 On the basis of above inquiry report, it appears that the petitioner was served with chargesheet dated 26th May, 2015 alleging that the petitioner was guilty in relation to the irregularities in the construction work in question alleging lack of supervision on part of the petitioner. When the chargesheet was issued, the petitioner had already retired on 30th April, 2015.
3.3 Inquiry officer was appointed after reply of the petitioner by order dated 20th January, 2016, amended by order dated 31st March, 2016. Inquiry was held against the petitioner and two charges levelled against him were held partly proved. Report of the inquiry was supplied to the petitioner on 29th July, 2018 and was given opportunity to respond. Finally, the impugned order dated 30th July, 2018 imposing penalty as above came to be passed by the competent authority.
4. The petitioner has assailed the impugned inquiry and the resultant punishment order by pressing into service Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002. The petition and the prayers however were contested by the respondents by filing affidavit-in-reply raising various grounds to defend the action.
Page 3 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019 C/SCA/14510/2018 CAV JUDGMENT5. Rule 24 of the Rules, 2002 reads as under.
"24. Right of Government to withhold or withdraw pension :
(1) ... ... ...
(2)(a) ... ... ...
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment -
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) ... ... ..."
5.1 The above Rule 24(2)(b)(ii) in terms states that the departmental proceedings will not be permissible in respect of any events which took place more than four years before the institution.
5.2 Recollecting the facts of the case, chargesheet against the petitioner was issued on 26th May, 2015. The petitioner had retired on 30th April, 2015. The charges related to the construction work undertaken in the year 2006-07 and 2007-08 which was admittedly before four years from the date of institution of the inquiry. The issuance of chargesheet marks the starting point of the inquiry.
5.3 In K.B. Desai v. State [1984 (1) GLR 556] this Court considered Rule 189A of the Bombay Civil Service Rules which was pari materia to the aforesaid Page 4 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019 C/SCA/14510/2018 CAV JUDGMENT Rule 24(2)(b)(ii) of the Pension Rules, 2002. The Court observed, "A departmental enquiry can be said to have been initiated when the show-cause notice is served upon the delinquent officer. By provisions of explanation clause (a) it leaves no doubt that the proceedings can be said to have been instituted when the statement of charge is issued to the delinquent officer or pensioner as the case may be. In the instant case there is no doubt that the charge sheet was issued after four years." (Para 8)
6. Furthermore, it was after a period of nine years from the date of alleged events of irregularities, the chargesheet was issued. Delay itself becomes prejudicial to the rights of the petitioner. The Supreme Court in P.V. Mahadevan v. M.D. T.N. Housing Board [(2005) 6 SCC 636], in M.V. Vijlani v. Union of India [(2006) 5 SCC 88] and in Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515], in which cases the inquiry was initiated belatedly after seven to ten years, it was observed that allowing the respondents to proceed further with the inquiry after such a long time would be very prejudicial to the delinquent. The principle was followed by this Court in Kiritbhai Shankar Patel v. State of Gujarat [2019 (2) GLR 1079] as also in Rajesh Chamanlal Tank v. Narmada Water Resource and Kalpsar Department being Special Civil Application No.13733 of 2018 decided on 30th September, 2019.
6.1 Thus, the inquiry against the petitioner and the consequential punishment order suffered from twin-vices. In respect of the events occurred prior to four years, the inquiry proceedings were Page 5 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019 C/SCA/14510/2018 CAV JUDGMENT incompetent or impermissible in view of Rule 24(2)(b)
(ii) of the Rules of 2002. On the second count, the delay by itself operated prejudicial. On both the counts, the inquiry and the resultant order is liable to be set aside.
7. For the discussion and reasons as above, the inquiry proceedings leading to the inquiry report dated 17th June, 2016 as well as the consequential order dated 30th July, 2018 of penalty against the petitioner are hereby set aside.
Petition stands allowed. Rule is made absolute.
(N.V.ANJARIA, J) Anup Page 6 of 6 Downloaded on : Sat Oct 26 01:09:56 IST 2019