Gujarat High Court
Sg Malek Dy.Accountant (Retired) vs State Of Gujarat & 2 on 17 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1578/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1578 of 2004
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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SG MALEK DY.ACCOUNTANT (RETIRED)....Petitioner(s)
Versus
STATE OF GUJARAT & 2....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 , 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
RULE NOT RECD BACK for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/06/2016
ORAL JUDGMENT
1. By this writ application under Article 226 of the Page 1 of 12 HC-NIC Page 1 of 12 Created On Thu Jun 23 00:59:05 IST 2016 C/SCA/1578/2004 JUDGMENT Constitution of India,the petitioner, a retired Deputy Accountant, has prayed for the following reliefs;
"(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 22.12.2003 ordering to deduct Rs. 500 p.m. From the pension of the petitioner for a period of 10 years., at Annexure A 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 22.12.2003 at Annexure A to the petition and direct the respondents not to deduct a sum of Rs. 500/- p.m. from the amount of pension paid to the petitioner for a period of 10 years.
(d) Be pleased to pass appropriate orders, imposing heavy cost of the respondents;
(e) Be pleased to pass any other and further order as may be deemed fit and proper in the interest of justice."
2. The facts of this case may be summarized as under;
3. The petitioner, while serving as a Deputy Accountant with the District Panchayat, Surendranagar, was served with a departmental charge-sheet dated 3rd October, 2000, containing the following charges;
1. Cheque number-773105, dated - 12.6.98 got clearance and amount was withdrawn, Rs. 680/- was to be paid to Shri Kalubhai Harjibhai as wages for sweeping but, out of such amount he has taken Rs.1,680/- as "paid by" under the serial number - 172 of acquaintance. Thus, obtained Rs. 1,000/-
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additionally and committed misappropriation.
2. Amount of Rs. 27,555/- and Rs. 23364/- totaling Rs. 51,119/- has been withdrawn on 29.12.98 by voucher number- 358 and voucher number-359. But, actual amount of bill was Rs. 50919/- was to be withdrawn. Thus, Rs. 200/- (Rs. Two Hundred only) has been withdrawn extra and kept with him. It has been deposited on 29.6.99. Thus, temporary misappropriation has been committed by keeping Rs. 200/- with himself.
3. Rs. 1200/- has been withdrawn on 29.4.98 by voucher number - 39. It has been mentioned in acquaintance roll to pay it to the then Taluka Development Officer Shri G.N.Gohil. But, signature of Shri. G.N.Gohil acquaintance roll does not match with his other signature. Thus, it has not been proved to have signature of Shri Gohil. Because, in voucher number -39 firstly endorsement of "pass for payment" has been done in endorsement of "passing" and signature of Taluka Development Officer and endorsement has been cancelled therein and other endorsement has been done, both signatures have been differing.
4. Signature of the Taluka Development Officer does not match in support of amount of Rs. 3000/- out of withdrawn amount on 15.5.98 vide voucher number- 67, and signature of the Taluka Development officer was not obtained which was to be taken at the end of the day.
5. You have put up false T.A. Bills for transportation for the duty of bank balance and cash balance and other functions, you have marked presence in office during the travelling days and performed duties like clearance of cheque and payment and accessed false T.A. Bills and obtained money. Details thereof are enclosed with in schedule-1.
6. Balance of amount at unit level and bank balance has to be tallied every month despite that it has not been counted till 31.3.99. As a result of it, there is a difference of Rs. 2,00,684.06 N.P. between close balance of Bank balance and cash book balance dated - 31.3.98 and opening balance dated - 1.4.98. Difference of such amount could not be adjusted though time and again travelling has been done to meet with the details mentioned in para 5 for the purpose.
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7. Account was adjusted by showing expenses of Rs. 22,000/- under the "Balika Smruddi Yojna" in the year - 97-98 though any expenditure was not done and account was adjusted by calculating balance zero on 31.3.98 due to not tallying with the bank. But, actually any expenditure was not done under the head of "Balika Smruddhi Yojna" and so, illegible balance cannot be zero despite that zero balance has been shown.
8. Competent Officer i.e. Taluka Development Officer has to execute signature in any bill - pay order. But, Shri Malek has authorized bills and executed signatures in pay orders vide numbers - 21, 23 to 29, 33 to 34, 41, 52, 54, 58,67, 107 to 111, 116, 152 and 153 in the year 98-99 despite that Shri Malek has made payment though, there was no any signature in pay orders and committed misappropriation.
9. Stamp receipt is require in support of payment of voucher no. - 21, 22, 35, 39, 47, 51 61, 62, 64, 69, 77, 169 paid in the year -1998-99. Shri Malek has not obtained it and thus, committed financial misappropriation.
10. Expenditure has been done in the year - 1998-99 vide voucher number -89 and 172 but, bills (sub vouchers) has not been enclosed with it. It means expenditure has been done without bills.
11. Registers of the Account Branch are very essential to be maintained 1. Cheque book and receipt book stock register and 2. Advance register and 3. Deposit register has not been maintained.
According to above mentioned details Shri Malek has committed serious financial misappropriation and show gross negligence and lack of sincerity and dishonesty in performing duties and committed breach of Rule 3 of Gujarat Panchayat (conduct) Rules, 1998. He is responsible for it. "
4. The petitioner filed his written statements dated 5.11.2000 and 7.8.2001 respectively. An inquiry officer was appointed, and on conclusion of the inquiry, he filed his report in the month of October, 2001. The Inquiry Officer held all the Page 4 of 12 HC-NIC Page 4 of 12 Created On Thu Jun 23 00:59:05 IST 2016 C/SCA/1578/2004 JUDGMENT eleven charges to be established.
5. It appears that the petitioner attained superannuation on 31.12.2000. In such circumstances, the District Development Officer, Surendranagar, sought the advice of the Gujarat Panchayat Service Selection Board for the purpose of imposing the penalty of cut in the pension. The Board, by its written advise dated 4.12.2002, recommended a cut of Rs.500/- from the pension for a period of ten years by way of penalty. On the strength of the advice of the Board, the District Development Officer forwarded a proposal dated 30th April, 2003 addressed to the Commissioner, and the Commissioner, in turn, forwarded the proposal to the State Government in its Panchayat Department. Finally, the State Government, in its Panchayat Department, passed the impugned order.
6. Mr. Patel, the learned counsel appearing for the petitioner submitted that in the affidavit-in-reply filed on behalf of the respondent No.2, it has been stated that the Gujarat Panchayat Service Selection Board was consulted, and its advice was sought so far as the issue of penalty is concerned under the provisions of the Gujarat Panchayat Act, 1993 and the rules framed thereunder. The Board recommended the penalty of cut of Rs.500/- from the pension payable to the petitioner for a period of ten years. According to Mr. Patel, a copy of the advice of the Board was not supplied in advance to his client. He submitted that no opportunity of hearing was given to his client before the State Government acted on such advice.
7. According to him, on this ground alone, the impugned order deserves to be quashed.
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8. I take note of the following averments made in the affidavit-in-reply filed on behalf of the respondent No.2;
"1. The respondent No. 2 most respectfully craves leave to deny all the averments and allegations made against him and humbly states that the same are far from truth. It is stated that the petitioner who was born on 18/12/1942 joined the service of Surendranagar District Panchayat on 22/4/1966. It is stated that while the petitioner was working as Deputy Accountant on deputation to District Rural Development Agency, Surendranagar, he was found involved in serious financial irregularities when he was posted at Halvad. It is stated that the Director of District Rural Development Agency looked into the matter and obtained a report from the Account Officer of the Agency and thereupon forward a Confidential Report on 03/03/2000 to the District Development Officer at Surendranagar and a copy of the same is annexed herewith and marked as Annexure-A. It is humbly stated that thereafter the petitioner was issued a charge sheet on 30/09/2000 and a copy of the charge sheet is annexed herewith and marked as Annexure - B. The respondent No. 2 states that the Accounts Officer of Surendranagar District Panchayat, a Class-I Officer of the State Government was appointed as Departmental Inquiry Officer and pending the inquiry as the petitioner attained the age of superannuation, an order was passed on 22/12/2000 permitting him to retire on 31/12/2000 subject to provisions of Rule 189-A of Bombay Civil Service Rules and a copy of the order is annexed herewith and marked as Annexure -C. It is humbly stated that the Departmental Inquiry Officer has held a detailed and full fledged departmental inquiry against the petitioner and furnished his report and as serious charges leveled against the petitioner were found true, the petitioner was issued a Second Show Cause Notice along with the inquiry on 8th March/April 2002 and a copy of the same is annexed herewith and marked as Annexure-D. It is humbly stated that the petitioner filed his reply on 06/05/2002 and admitted certain charges in his reply and a copy of reply is annexed herewith and marked as Annexure - E. Thereafter, the respondent No. 2 approached the Gujarat Panchayat Service Selection Board at Ahmedabad through a letter dated 15/18-06-
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2002 and sought the opinion on the issue of penalty under the provision of Gujarat Panchayat Act, 1993 and the Rules framed there under. The Board considered the issue and opined that a penalty of cut of Rs. 500/- from the pension payable to the petitioner for a period of 10 year be imposed and a copy of the opinion is annexed herewith and marked as Annexure - F. Ultimately through letter dated 30/4/2003 the proposal for penalty was forward to the Development Commissioner of the Government of Gujarat Gandhinagar and a copy of the same is annexed herewith and marked as Annexure G. It is stated that the respondent No. 1 being the competent authority and passed an order on 22/12/2003 imposing penalty of deduction of Rs. 500/- per month from the pension payable of deduction of Rs. 500/- per month from the pension payable to the petitioner for a period of 10 years and the said order is under challenge before this Hon'ble Court."
9. Thus, indisputably, the District Development Officer, had sought the advice of the Gujarat Panchayat Service Selection Board for the purpose of imposition of penalty and the Board, accordingly, gave its advice which was acted upon.
10. It is not in dispute that the copy of the advice of the Board was not supplied to the petitioner.
11. This issue, in my view, is squarely covered by a decision of this Court delivered in the case of R.R. Kacha vs. State of Gujarat & Ors., 2016 Part II GLR 1428. In this case, the issue was with regard to the supply of the copy of the advise of the Board. The learned Single Judge observed as under;
"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.
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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.
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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Thu Jun 23 00:59:05 IST 2016 C/SCA/1578/2004 JUDGMENT 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 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 Page 9 of 12 HC-NIC Page 9 of 12 Created On Thu Jun 23 00:59:05 IST 2016 C/SCA/1578/2004 JUDGMENT 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.
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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-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."
12 I propose to follow the dictum as explained in the Page 11 of 12 HC-NIC Page 11 of 12 Created On Thu Jun 23 00:59:05 IST 2016 C/SCA/1578/2004 JUDGMENT aforesaid decision.
13. As a result, this petition is partly allowed. The impugned order is hereby ordered to be 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 Board 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 the writ of the order. It is clarified that while passing this order, the Court has only dealt with the legal contention raised by the learned counsel appearing for the petitioner regarding the lack of opportunity of hearing before passing of the impugned order, upon the advice of the Board. All the other contentions raised by the petitioner have not been entered into and would remain open. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 12 of 12 HC-NIC Page 12 of 12 Created On Thu Jun 23 00:59:05 IST 2016