Gujarat High Court
Vl Raval vs State Of Gujarat & on 17 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2852/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2852 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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VL RAVAL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRADEEP PATEL, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/06/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the petitioner, a retired Additional Assistant Engineer, has prayed for the following reliefs:
Page 1 of 11HC-NIC Page 1 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT "(a) Be pleased to admit this petition;
(b) Be pleased to issue appropriate writ, order or direction in the nature of mandamus quashing and. setting aside the impugned order dated 24-1-03 ordering to deduct Rs.300 pm. from the pension of the petitioner for a period of 3 years, at Annexure E to the petition, by declaring the same as arbitrary, violative of principles of natural justice, illegal, unreasonable, discriminatory and violative of Art.14 of the Constitution;
(c) Pending admission, hearing and final disposal of this petition, your lordships may be pleased to pass appropriate orders, staying implementation, operation and execution of the order dated 24-1-03 at Annexure E to the petition and direct the respondents not to deduct a sum of Rs.300/- p.m. from the amount of pension paid to the petitioner.
(d) Be pleased to pass appropriate orders, imposing heavy cost on the respondents;
(e) Be pleased to pass any other and further order as may be deemed fit and proper in the interest of justice."
While the petitioner was serving as an Additional Assistant Engineer at Surendranagar, he was served with a departmental charge-sheet dated 22nd January 1996. The departmental action was taken for the acts of misconduct alleged to have been committed between 1972-74 in connection with the famine relief work. After the charge-sheet dated 22nd January 1996 was served upon the petitioner in the year 1998 an Inquiry Officer was appointed. On 20th March 1998, the petitioner filed his defence statement. The Inquiry Officer tendered his report dated 30th October 2000, stating that the charges against the petitioner were partly proved. The petitioner was served with a second show-cause notice dated 27th July 2001 as regards the punishment and the same was replied by him vide reply dated 5th September 2001. The Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT impugned order imposing the penalty of cut in the pension of Rs.300=00 per month for the period of three years came to be passed on 24th January 2003.
Being dissatisfied, he has come up with this writ- application.
Mr.Patel, the learned counsel appearing for the petitioner, while assailing the impugned order, made the following submissions :
(i) gross delay in initiating the departmental inquiry and also in completing the departmental inquiry.
(ii) joint inquiry with the other co-delinquents has caused serious prejudice to the petitioner.
(iii) copy of the advise of GPSC as relied upon the State Government was not supplied and no opportunity of hearing was given to the petitioner before acting on such advise.
In support of this submission, the learned counsel has relied on the recent pronouncement in the case of R.R.Kacha v. State of Gujarat and others, (2016)2 GLR 1428 as well as M.R.Shaikh v. State of Gujarat, (1999)1 GLH (UJ) 8. He also submitted that the impugned order could be termed as a non- speaking order.
This writ-application has been vehemently opposed by Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT the learned AGP appearing for the State. The learned AGP would submit that no error, not to speak of any error of law, could be said to have been committed in passing the impugned order. He submitted that the State Government, after due consideration of the Inquiry Officer's report, thought fit to impose the penalty of cut in the pension for a period of three years. The findings recorded by the State Government are on the basis of the materials on record and also the findings recorded by the Inquiry Officer. The learned AGP would submit that this Court may not reappreciate the findings and disturb the same. The learned AGP has relied on the affidavit-in-reply filed on behalf of the State Government, wherein it has been stated as under :
"With regard to para-2, I say and submit that when the petitioner was working as Additional Assistant Engineer at Surendranagar, the Government started inquiry against him for misappropriation in relief works of the drought in the year 1980.
I further say and submit that the petitioner was served with a charge sheet on 31.12.1994. After the replies of the charge sheet, the Government appointed inquiry officer for further inquiry on 3.7.1998. The inquiry report was received on 9.11.2000 and in the report charges against the petitioner were partly proved. The Government accepted the report and the petitioner was served with show cause notice on 27.7.2001 alongwith the copy of the inquiry report. The petitioner represented on 5.9.2001, the Government in consultation with General Administration Department and Gujarat Public Service Commission imposed punishment to cut pension only Rs.300/- per month for three years with office orders dated 24.1.2003. I further say and submit that proper procedures have been followed and the punishment is justifiable."
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT State Government committed any error in passing the impugned order.
I have no hesitation in accepting the very first submission of the learned counsel appearing for the petitioner that there was a gross, inordinate and unexplained delay on the part of the State Government in initiating the departmental action. For the acts of misconduct alleged to have been committed sometime in the year 1972-74, the charge-sheet came to be issued on 22nd January 1996. It took two years for the Government to appoint the Inquiry Officer. It took two years thereafter to complete the inquiry and three years to pass the impugned order after the Inquiry Officer filed his report. On the face of it, the inquiry could be said to have been vitiated.
This petition deserves to be allowed also on the contention, which is squarely covered by a decision of this Court in the case of R.R.Kacha (supra). I may quote the following observations made by the learned Single Judge as contained from paragraphs 7 to 18 :
"7. It is an accepted position that after the Inquiry Report was submitted, the State Government had proposed that the penalty of reduction of pay by three stages for one year without future effect, be imposed upon the petitioner. The proposal for this penalty was sent by the State Government to the GPSC on 13.07.2007, seeking its advise. The GPSC, vide communication dated 16.04.2008, did not agree with the proposed punishment and recommended the penalty of dismissal from service. It is not disputed that the State Government, thereafter, straight away proceeded to pass the impugned order dismissing the petitioner from service, on 01.11.2008. The State Government did not forward a copy of the recommendation of the GPSC to the petitioner before passing the order of dismissal. Neither did it grant the petitioner any opportunity of hearing before the said order was passed. This state of affairs is evident from the averments Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT made in paragraph-16 of the affidavit-in-reply filed by the State Government, wherein it is stated that a copy of the letter/advise of the GPSC dated 16.04.2008 was supplied to the petitioner along with the copy of the penalty order dated 01.11.2008.
8. It is at this stage that the flaw has crept into the procedure followed by the State Government, which has resulted in the violation of the principles of natural justice and caused severe prejudice to the petitioner.
9. The settled position of law in this regard is reflected in the two judgments of the Supreme Court and one of this Court, relied upon by learned counsel for the petitioner, which may now be referred to.
10. In S.N.Narula Vs. Union of India and others (Supra), the Supreme Court has held as below :
3. It is to be noticed that the advisory opinion of the Union Public Service Commission was not communicated to the appellant before he was heard by the disciplinary authority. The same was communicated to the appellant along with final order passed in the matter by the disciplinary authority.
4. The appellant filed OA No.1154 of 2002 before the Central Administrative Tribunal, New Delhi and the Tribunal held that there was violation of the principles of natural justice and the following direction was issued :
"We are of the considered opinion that this order is a non-speaking one and as such we are of the view that the same cannot be sustained and is liable to be quashed. Accordingly, we quash the impugned order and remand the case back to the disciplinary authority to pass a detailed reasoned and speaking order within a period of 3 months from the date of receipt of a copy of this order in accordance with instructions and law on the subject."
5. This order was challenged by the Union of India by way of writ petition before the High Court of Delhi and by the impugned judgment the High Court interfered with that order. The writ petition was partly allowed and it was directed that the matter be again considered by the Tribunal. Against that order the appellant has come up in appeal by way of special leave petition.
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6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in para 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.
11. In Union of India and others Vs. S.K.Kapoor (Supra), the Supreme Court has reiterated this position of law in the following manner :
"5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge-sheeted employee so that he may have a chance to rebut the same.
6. Mr.Qadri, learned counsel for the appellant submitted that the copy of the report of the Union Public Service Commission was supplied to the respondent employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India v. T.V.Patel. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT aforesaid decision in T.V. Patel case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N.Narula v. Union of India.
(emphasis supplied)
12. In B.J.Jadav Vs. State of Gujarat (Supra), this Court had occasion to deal with a similar issue and arrived at the following conclusion :
"21. As mentioned above, the Government had initially proposed the punishment of reverting the petitioner to the lower post for a period of two years which punishment was enhanced upon acceptance of the advice of the GPSC. The prejudice to the petitioner by non-supply of the copy of the GPSC advice is writ large on the face of the record. The impugned order of punishment, therefore, shall have to be quashed and set aside."
(emphasis supplied)
13. A similar situation prevails in the present case where the proposed penalty has been enhanced after consultation with the GPSC and a copy of the recommendation of the GPSC in this regard has not been supplied to the petitioner.
14. From the principles of law enunciated by the Supreme Court and this Court in the above-quoted judgments, it is clear that if the State Government intended to rely upon the advise of the GPSC, it was incumbent upon it to supply a copy of the said advise to the petitioner and grant him a full and adequate opportunity of hearing before passing the order of penalty. By not doing so, the State Government has caused immense prejudice to the petitioner apart from committing a gross violation of the principles of natural justice. This aspect becomes even more grave as it is the very livelihood of the petitioner that is affected.
15. Learned Assistant Government Pleader has submitted that the petitioner was granted an opportunity of hearing throughout the course of the inquiry, as stated in the affidavit-
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in-reply.
16. The respondents seem to have missed the vital point being canvassed by the petitioner. It may be kept in mind that the stage prior to implementing the advise of the GPSC regarding the enhanced penalty is not relevant in this matter. Moreover, it is not the case of the petitioner that he was not granted an opportunity of hearing during the course of the inquiry. The only submission advanced on behalf of the petitioner is regarding the failure of the State Government in supplying a copy of the advise of the GPSC to the petitioner and granting him an opportunity of hearing before imposing the penalty of dismissal from service as per the said recommendation of the GPSC. The petitioner has been deprived of an opportunity of representing his case with regard to the enhanced penalty. The affidavit-in-reply does not deal with this contention at all. Merely because the petitioner was heard in the Review Petition filed by him against the order of dismissal, would not cure the defect that has taken place at a stage prior thereto.
17. Taking into consideration the admitted facts of the case and the settled position of law, this Court has no hesitation in arriving at the conclusion that the impugned order passed by respondent No.1 dated 01.11.2008, as well as the impugned order dated 14.09.2009, passed in the Review Petition, are unsustainable in law and deserve to be quashed and set aside.
18. Accordingly, both the above-mentioned orders are hereby quashed and set aside. The matter is remanded to the Competent Authority with a direction to grant a full and adequate opportunity of hearing to the petitioner regarding the recommendation of the GPSC and, thereafter, pass an appropriate order, in accordance with law. The needful shall be done within a period of four months from the date of the receipt of a copy of this order."
The learned AGP has fairly conceded before this Court that the advise of the GPSC which was sought by the State Government was not supplied to the petitioner at any point of time. I am not convinced even with the manner in which the impugned order has been passed. It could definitely be termed as a non-speaking order.
I take notice of the fact that in the decision of this Court Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT referred to above, although the impugned order was quashed, yet the matter was remanded to the competent authority with a direction to grant a full and adequate opportunity of hearing regarding the recommendations of the GPSC and, thereafter, to pass an appropriate order in accordance with law.
I could have adopted the same procedure in the present case also, but as discussed above, this petition deserves to be allowed not only on this ground alone, but also on the ground of inordinate or unexplained delay in initiating the inquiry as well as on the ground that the impugned order could be termed as a non-speaking order.
The petitioner has undergone the ordeal of this proceeding past 20 years. Any fresh proceeding will be nothing but mockery of justice. In such circumstances referred to above, this petition succeeds and is hereby allowed. The impugned order of cut in the pension by way of penalty is hereby ordered to be quashed and set-aside.
I take notice of the fact that the impugned order of penalty stood stayed from its operation right from day one. I take notice of the fact that on 23rd April 2003 Rule was issued and interim relief in terms of para 18(C) was granted.
In such circumstances, no consequential orders are required to be passed.
Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Jun 22 01:42:46 IST 2016 C/SCA/2852/2003 JUDGMENT Rule made absolute. (J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Jun 22 01:42:46 IST 2016