Gujarat High Court
R J Solanki vs State Of Gujarat & on 3 February, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/11298/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11298 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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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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R J SOLANKI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AS SUPEHIA FOR MR IS SUPEHIA, ADVOCATE for Petitioner(s) No. 1
MR JANAK RAVAL,ASST.GOVERNMENT PLEADER for Respondent No.1- 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 03/02/2016
ORAL JUDGMENT
1. This petition under Article226 of the Constitution of India has been preferred, interalia, with a prayer to quash and set aside the order dated 26.09.2000, imposing a penalty of cut in the pension of the petitioner of Rs.1,000/ per month for a period Page 1 of 12 HC-NIC Page 1 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT of ten years, and to refund the amount deducted, with 12% interest.
2. Briefly stated, the relevant facts are that the petitioner was working as Assistant Commissioner of Sales Tax at Junagadh. He retired for service on 31.03.2000, upon attaining the age of superannuation. A chargesheet dated 09.02.1996 was issued to the petitioner by respondent No.1, for the purpose of holding a departmental inquiry against him in respect of four articles of charge, as under:
"(A) M/s.Shrinathji Industries, Shahpur, District Junagadh, was having registration numbers under the State and Central Sales Tax Acts.
By the letter dated 04.03.1995 the Assistant Commissioner of Sales Tax had informed the petitioner to cancel the registration immediately. However, instead of cancelling the registration immediately the same was cancelled on 15.07.1995.
(B) Similar letter dated 04.03.1995 was issued in respect of M/s.Umiya Industries, Vathali, District Junagadh, but the same was cancelled in September 1995 instead of cancelling the same immediately. In respect of both these Industries, a loss of Rs.5,87,30,882/ was caused to Government.
(C) Certain forms and books were found missing
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between the period from 17.05.1994 to 21.05.1994 due to ineffective inspection of the records by the petitioner in the office of sales tax officer Unit No.1, Junagadh. (D) Certain forms and Books and loose papers were either misplaced or found missing in the general office of Sales Tax, the inspection whereof was done between 27.07.1994 to 30.07.1994 by the petitioner, which happened due to his ineffective inspection." 2.1 The petitioner filed a detailed written statement of defence to the chargesheet. By a memo dated 11.09.1997, the chargesheet was amended and the petitioner was called upon to file a fresh written statement of defence, which he did on 01.12.1997. Thereafter, an Inquiry Officer was appointed to hold the inquiry. The inquiry was held against the petitioner and one Shri K.J.Pandya, who is not before this Court. Insofar as the petitioner is concerned, charges Nos.1 and 2 were held to be proved against him, to the extent that, instead of cancelling the registration immediately, the petitioner had taken time of four months. As regard the financial loss caused to the Government, it was stated that it is not possible to state what loss was caused. In respect of Page 3 of 12 HC-NIC Page 3 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT charges Nos.3 and 4, it was found that necessary care was not taken by the petitioner at the time of inspection. In the conclusive part of the Inquiry Report, a finding was recorded that the petitioner had not done anything intentionally, either for his own personal gain, or to confer gain upon any other person, and that there was no lack of devotion to duty or integrity on the part of the petitioner. 2.2 The respondentState Government agreed with the Inquiry Report and issued a letter dated 25.05.1999, calling upon the petitioner to make his representation against the same. The petitioner submitted his representation on 22.06.1999. After taking into consideration the representation of the petitioner and after consultation with the Gujarat Public Service Commission ("GPSC", for short), the State Government passed the impugned order dated 26.09.2000, imposing the abovementioned penalty upon the petitioner. Aggrieved thereby, the petitioner has approached this Court.
3. At this stage, Mr.A.S.Supehia, learned advocate for Mr.I.S.Supehia, learned counsel for the Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT petitioner, has laid emphasis only on one aspect, namely, that before the implementation of the recommendation of the GPSC and passing the final order of penalty against the petitioner, he was not granted an opportunity of hearing, as the advise of the GPSC was never communicated to him. It is only after the final order had been passed that the advise of the GPSC was communicated to him, along with the order of penalty.
3.1 Learned counsel for the petitioner has placed reliance upon the judgments of the Supreme Court in Union of India and others Vs. S.K.Kapoor, reported in (2011) 4 SCC 589, S.N.Narula Vs. Union of India and others, reported in (2011) 4 SCC 591 and Union of India and others Vs. R.P.Singh, reported in (2014) 7 SCC 340, in support of his submission that it was incumbent upon the respondentState Government to forward a copy of the advise/recommendation of the GPSC to the petitioner and afford him an opportunity of hearing in respect of the same, before passing the final order of penalty.
4. Mr.Janak Raval, learned Assistant Government Page 5 of 12 HC-NIC Page 5 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT Pleader has submitted, after taking instructions, that the advise of the GPSC was forwarded to the petitioner along with the impugned order dated 26.09.2000, after the passing of the said order, on 27.09.2000.
5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and other documents on record. This Court has also considered the judgments cited at the Bar.
6. In S.N.Narula Vs. Union of India and others (Supra), the Supreme Court has taken the view that failure to communicate the report of the UPSC before passing the final order would amount to a violation of the principles of natural justice, as the delinquent would not be afforded an opportunity to make an effective representation on the quantum of punishment, prior to the imposition thereof. The relevant extract of the above judgment is reproduced hereinbelow :
"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 Page 6 of 12 HC-NIC Page 6 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT 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 nonspeaking 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.
6. We heard the learned counsel for the appellant and the learned counsel for the Page 7 of 12 HC-NIC Page 7 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT 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."
7. In Union of India and others Vs. S.K.Kapoor (Supra), the same principle is reiterated, in the following terms :
"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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT 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 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 Page 9 of 12 HC-NIC Page 9 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT 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."
8. In the later judgment in the case of Union of India and others Vs. R.P.Singh (Supra), the Supreme S.N.Narula Court, after referring to the judgments in Vs. Union of India and others and Union of India and others Vs. S.K.Kapoor, has stated thus :
"12. We will be failing in our duty if we do not take note of the submission of Mr.W.A.Qadri that the decision in S.N.Narula case is not an authority because the Tribunal had set aside the order of the disciplinary authority on the ground that it was a nonspeaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr.Qadri. The said decision in S.N.Narula case is an authority for the proposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment."Page 10 of 12
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9. Considering the principles of law enunciated by the Supreme Court in the above judgments, it is very clear that it is now an established proposition of law that if the advise of the Public Service Commission of the Union, or State, is sought and accepted, it has to be communicated to the concerned employee before the imposition of the recommended punishment in order to enable the delinquent employee to effectively represent against the penalty proposed. Failure to do so would amount to a violation of the principles of natural justice.
10. The above three judgments are squarely applicable to the facts of the present case, as it is an accepted position that the advise/recommendation of the GPSC was not communicated to the petitioner before the order dated 26.09.2000, imposing penalty, was passed. It was communicated only thereafter, on 27.09.2000. Under the circumstances, the impugned order of penalty cannot stand the scrutiny of law. Hence, it deserves to be quashed and set aside.
11. Accordingly, the impugned order dated 26.09.2000, Page 11 of 12 HC-NIC Page 11 of 12 Created On Tue Feb 09 00:49:18 IST 2016 C/SCA/11298/2000 JUDGMENT passed by respondent No.1, imposing the penalty of a monthly cut of Rs.1,000/ from the pension of the petitioner for a period of ten years, is hereby quashed and set aside.
12. The matter is remanded to respondent No.1 to formally communicate the recommendation of the GPSC to the petitioner and thereafter, grant him a full and adequate opportunity of hearing before passing any final order.
13. It is made clear that this Court has dealt with this aspect of the matter only and all other legal contentions available to the petitioner are left open.
14. The petition is allowed, to the aforesaid extent. Rule is made absolute, accordingly.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 12 of 12 HC-NIC Page 12 of 12 Created On Tue Feb 09 00:49:18 IST 2016