Gujarat High Court
Nagarsinh Kasanabhai Palas vs State Of Gujarat on 16 February, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/7916/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7916 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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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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NAGARSINH KASANABHAI PALAS....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1
MR ROBIN MOGHERA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 16/02/2017
ORAL JUDGMENT
1. The petitioner, by way of the present petition under Article 226 of the Constitution of India, has prayed for issuance of appropriate writ/order for quashing and setting aside the order dated 04.06.2003 passed by the Disciplinary Authority, whereby the major punishment of Page 1 of 12 HC-NIC Page 1 of 14 Created On Sun Aug 13 16:49:55 IST 2017 1 of 14 C/SCA/7916/2003 JUDGMENT dismissal from services was inflicted upon the petitioner.
2. Heard learned advocate for the petitioner as well as learned Assistant Government Pleader for the respondent-State.
3. The petitioner was served with a chargesheet dated 19.05.1998 alleging misconduct on his part. The allegation against the petitioner was that though he was married, without giving divorce to his wife, established relationship with other lady, and thereby, committed an act which is not befitting to an officer serving under the State. After receipt of the chargesheet, the petitioner submitted his explanation before the Inquiry Officer, who conducted fullfledged inquiry in respect of charges levelled against him and recorded its findings. The charges levelled against the petitioner were proved. Thereafter, the second show-cause- notice was issued upon the petitioner-delinquent as to why the major punishment of dismissal should not be inflicted upon him and in response to the said show-cause-notice, the petitioner submitted his explanation. Thereafter, the Disciplinary Authority passed an order dated 04.06.2003 and inflicted punishment of dismissal from the services.
4. According to learned advocate appearing for the petitioner, the petitioner was not given a reasonable opportunity to put forward his case Page 2 of 12 HC-NIC Page 2 of 14 Created On Sun Aug 13 16:49:55 IST 2017 2 of 14 C/SCA/7916/2003 JUDGMENT before the Inquiry Officer as the certain documents having bearing on the inquiry were not supplied to him. In this context, learned advocate for the petitioner invited the attention of this Court with respect to letter dated 03.07.1998 addressed to the Deputy Secretary, Home Department by the petitioner. It is submitted that though specific demand was made to supply the documents mentioned in the said letter, request was turned down vide communication dated 14.07.1998 inter alia stating that the petitioner has been supplied the relevant documents in respect of charges levelled against him at the time when the chargesheet was served upon him, and therefore, documents other than the documents which were supplied along with the chargesheet are not required to be supplied and he was asked to submit his explanation within seven days. According to learned advocate for the petitioner, the documents were demanded by the petitioner in respect of Criminal Inquiry No.181/1994 conducted by the Police Inspector, Vejalpur Police Station where the husband of Pallavi Shah made private complaint against Pallavi Shah and the present petitioner. The documents collected during the course of investigation of the said inquiry case are relevant for the purpose of defence in the inquiry proceedings, and therefore, request was made by the petitioner for supply of those documents. It is submitted that the allegation against the present petitioner was to the effect that he was having extramarital relationship with lady viz. Pallavi Shah, and therefore, the material collected during Page 3 of 12 HC-NIC Page 3 of 14 Created On Sun Aug 13 16:49:55 IST 2017 3 of 14 C/SCA/7916/2003 JUDGMENT Inquiry Case No.181/1994 is relevant for the purpose of inquiry initiated against the present petitioner. However, the said documents were not supplied, and therefore, the inquiry proceedings are vitiated on the ground of non-observance of principles of natural justice. It is submitted that the said aspect was highlighted before the Disciplinary Authority in response to the second show-cause-notice, but the Disciplinary Authority has also not taken into consideration the legitimate demand put forward by the present petitioner and reached to the conclusion that findings recorded by the Inquiry Officer are in accordance with law and based on relevant material. Learned advocate for the petitioner, while concluding his submissions, submits that the order passed by the Disciplinary Authority is required to be quashed and set aside as before imposition of major punishment of dismissal, the Disciplinary Authority is required to take into consideration certain important factors viz. length of service, his past service record, effect of such major punishment upon the petitioner and his family and whether the proposed punishment amounts to economic death of a person and his family, before imposition of any major penalty. It is submitted that in the present case, said factors are not taken into consideration by the Disciplinary Authority while imposing such major penalty. Learned advocate lastly submits that the present petitioner crossed the age of superannuation and now he is residing with the first wife and the children. It is submitted that if the order of dismissal of Page 4 of 12 HC-NIC Page 4 of 14 Created On Sun Aug 13 16:49:55 IST 2017 4 of 14 C/SCA/7916/2003 JUDGMENT service passed by the Disciplinary Authority is maintained, it will result into economic death of the petitioner and his family members. It is submitted that the family members are not at all responsible for the act committed by the petitioner. However, they will also have to suffer on account of the alleged misconduct on the part of the petitioner. It is submitted that the order of dismissal is disproportionate to the charges levelled against him, and therefore, the impugned order may be quashed and set aside and the matter may be remitted to the Inquiry Officer for conducting the de novo inquiry.
5. Learned Assistant Government Pleader appearing for the respondent-State, while opposing the petition, submits that the order passed by the Disciplinary Authority is in accordance with law and no irregularity or illegality committed by the Disciplinary Authority while passing the order. It is further submitted that the petitioner was served with the chargesheet on account of alleged misconduct and the charges levelled against the petitioner were serious in nature and unbecoming of a Government Servant, and therefore, looking to the gravity of the charges levelled against him, the Inquiry Officer has recorded its findings based on material on record. It is submitted that the Inquiry Officer has given reasonable opportunity to the petitioner during the course of inquiry and Page 5 of 12 HC-NIC Page 5 of 14 Created On Sun Aug 13 16:49:55 IST 2017 5 of 14 C/SCA/7916/2003 JUDGMENT there is no procedural lapse on the part of the Inquiry Officer. It is submitted that before imposition of major punishment, the second show- cause-notice as required under law was also issued upon the petitioner, and thereafter, the petitioner was given reasonable opportunity to put forward his case. It is submitted that the Disciplinary Authority has taken into consideration the defence put forward by the petitioner and the submissions made by the petitioner in respect of findings recorded by the Inquiry Officer, and thereafter, reached to the conclusion that the petitioner is required to be dismissed from the services and accordingly, the said punishment was inflicted upon the petitioner. Learned AGP submits that the documents in connection with Inquiry Case No.181/1994 were not relevant for the purpose of conducting inquiry against the present petitioner. Whatever material were relevant for the propose of conducting inquiry against the petitioner, have been supplied along with the chargesheet and the documents demanded by the petitioner, was only an attempt to delay the inquiry proceedings. It is submitted that the material pertaining to Inquiry Case No.181/1994 is in respect of private complaint, and therefore, if at all the petitioner wants to refer to and rely upon any of the documents from the Competent Authority, he could not produce the said documents by seeking permission of the Inquiry Officer. It is submitted that for non-supply of the aforesaid documents, inquiry proceedings cannot be vitiated or on this ground, the order passed by the Page 6 of 12 HC-NIC Page 6 of 14 Created On Sun Aug 13 16:49:55 IST 2017 6 of 14 C/SCA/7916/2003 JUDGMENT Disciplinary Authority may not be quashed and set aside. While concluding submissions, the learned AGP submits that there is no infirmity with the order passed by the Disciplinary Authority and therefore, the said order may not be disturbed in the present proceedings.
6. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioner was served with the chargesheet dated 19.05.1998 for committing misconduct as alleged in the chargesheet. The allegation against the petitioner was that he kept extramarital relationship with other lady without giving divorce to the first wife. As per the chargesheet, the conduct of the petitioner was not befitting to the Government Servant, and therefore, the petitioner was asked to submit explanation in respect of charges levelled against him. The petitioner submitted his explanation before the Inquiry Officer and tried to explain that the allegations levelled against him are not correct. It also appears that the petitioner has asked for certain additional documents vide letter dated 03.07.1998. On perusal of the said letter dated 03.07.1998 which is annexed to the petition vide Annexure-L, it appears that the petitioner has demanded about 11 documents mentioned therein.
7. Likewise, the petitioner has also demanded the following Page 7 of 12 HC-NIC Page 7 of 14 Created On Sun Aug 13 16:49:55 IST 2017 7 of 14 C/SCA/7916/2003 JUDGMENT documents vide letter dated 03.10.1998:
(i) Checklist
(ii) Chargesheet issued against the petitioner
(iii) Chargesheet issued against Pallavi Shah
(iv) Defence submitted by Pallavi Shah
(v) The documents submitted in connection with the aforesaid reply The aforesaid communication dated 03.10.1998 was replied after a period of one year by the Inquiry Officer on 13.10.1999 by stating that the relevant documents for the purpose of conducting inquiry have been supplied along with the chargesheet, and therefore, there is no need to supply any other material as prayed for by the petitioner-delinquent.
8. The said request was turned down by the Deputy Secretary, Home Department vide its communication dated 14.07.1998 by stating that whatever material was relevant for the purpose of conducting inquiry has been supplied along with the chargesheet and additional material as prayed for by the petitioner is not required to be supplied and if he wants to submit his explanation, he may submit within a period of seven days failing which no further time will be granted for the purpose of submitting his explanation. After receipt of the said communication, the Page 8 of 12 HC-NIC Page 8 of 14 Created On Sun Aug 13 16:49:55 IST 2017 8 of 14 C/SCA/7916/2003 JUDGMENT petitioner had no other option, but to submit explanation on the basis of whatever material was supplied to him along with the chargesheet, and therefore, he submitted his explanation before the Disciplinary Authority dated 20.07.1998 and tried to explain before the Disciplinary Authority that there is no substance in the allegation levelled against him and the petitioner is required to be exonerated. It appears that the Disciplinary Authority, after taking into consideration the findings recorded by the Inquiry Officer, passed the impugned order dated 04.06.2003, and thereby, inflicted major punishment of dismissal against the petitioner.
9. On perusal of the material on record and especially on perusal of the aforesaid two request letters submitted by the petitioner demanding certain documents, it appears that the said documents are in respect of complaint made against Pallavi Shah by her husband. The allegation against the petitioner was to have extramarital relationship with Pallavi Shah, and therefore, Inquiry No.203/1994, Inquiry No.181/1994 conducted by Vejlapur Police Station and the application filed by Pallavi Shah i.e. Special Criminal Application No.700/1995 and other papers mentioned in the said letter including the chargesheet issued against Pallavi Shah and the defence submitted by Pallavi Shah are concerning about the subject matter of the inquiry, and therefore, the Inquiry Officer ought to have granted some more time to submit his statement of defence Page 9 of 12 HC-NIC Page 9 of 14 Created On Sun Aug 13 16:49:55 IST 2017 9 of 14 C/SCA/7916/2003 JUDGMENT and in the meantime, this document could have been supplied or some more time could have been granted to procure the documents by the delinquent and he could have intimated in this regard that the said documents are not available with the Inquiry Officer or with the department and he may apply before the Competent Authority for obtaining the documents pertaining to private complaint. It appears that the letter dated 03.10.1998 demanding certain documents was replied by the Inquiry Officer after a period of one year on 13.10.1999. Thus, it is evident that the Inquiry Officer has taken one year time in replying the aforesaid demand raised by the petitioner, but the additional time prayed for by the petitioner for submission his statement of defence after receipt of the documents was not granted or rather extended and he was asked to submit the explanation within a period of seven days. It further appears that the petitioner has raised this point before the Disciplinary Authority that adequate opportunity was not given to him and the documents specifically demanded by him were not supplied and he was not given any additional time to submit his statement of defence after examining the documents mentioned in his application. It appears that the said detailed submission has not been properly appreciated and taken into consideration by the Disciplinary Authority. Moreover, looking to the order passed by the Disciplinary Authority, it appears that the major punishment from dismissal of services was inflicted upon the petitioner.
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C/SCA/7916/2003 JUDGMENT
While inflicting such major punishment, the Disciplinary Authority ought to have considered certain important factors such as length of service rendered by the present petitioner and the past service records of the petitioner, as also the effect of imposition of such major punishment, which may result into economic death of a person. The petitioner, in response to the second show-cause-notice, has also pointed out before the Disciplinary Authority that he is residing with the first wife and children, and if the major punishment, as proposed, will be inflicted upon him, it will have adverse effect upon the family members, as the petitioner does not have any other financial source except the present one. It appears that no such factors have been taken into consideration, and therefore, on this count also, the order passed by the Disciplinary Authority is required to be set aside and the matter is required to be remitted for de novo inquiry.
10. In view of the foregoing discussions pertaining to non-supply of relevant documents during the course of inquiry which has resulted into violation of principles of natural justice, and therefore also, on this count, the impugned order dated 04.06.2003 passed by the Disciplinary Authority against the petitioner is required to be quashed and set aside. The petitioner has retired from the services and therefore, instead of remitting the case to the Inquiry Officer for conducting de novo inquiry in respect of charges levelled against him. The punishment order is required Page 11 of 12 HC-NIC Page 11 of 14 Created On Sun Aug 13 16:49:55 IST 2017 11 of 14 C/SCA/7916/2003 JUDGMENT to be modified as by passage of time, the issues which were subject matter of the inquiry have been resolved and both the families have settled in their social life and no fruitful purpose would be served to reopen such sensitive issue which has bearing on family as well as social life. Taking into consideration the totality of facts and circumstances of the present case, the order of dismissal passed by the Disciplinary Authority is modified and converted into compulsory retirement so that the petitioner can avail some some retiral benefits. Accordingly, the present petition stands partly allowed. Rule is made absolute to the aforesaid extent.
(P.P.BHATT, J.) rakesh Page 12 of 12 HC-NIC Page 12 of 14 Created On Sun Aug 13 16:49:55 IST 2017 12 of 14 C/SCA/7916/2003 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7916 of 2003 [On note for speaking to minutes of order dated 16/02/2017 in C/SCA/7916/2003 ] ========================================================== NAGARSINH KASANABHAI PALAS....Petitioner(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1 MR K L PANDYA, AGP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE P.P.BHATT Date : 31/07/2017 ORAL ORDER
1. The present Note for Speaking to Minutes has been filed by the learned advocate for the petitioner praying to modify the Para 10 of the judgment and order dated 16.02.2017, passed by this Court in Special Civil Application No.7916 of 2003, as according to him error of transcription has been crept in it.
2. Having considered the Note for Speaking to Minutes and having heard the learned advocate for the petitioner, this Court is of the view that the Note for Speaking to Minutes deserves to be allowed. Therefore, Para 10 of the judgment and order dated 16.02.2017, passed by this Court in Special Civil Page 1 of 2 HC-NIC Page 13 of 14 Created On Sun Aug 13 16:49:55 IST 2017
13 of 14 C/SCA/7916/2003 ORDER Application No.7916 of 2003 is modified to be corrected and read as under :
"10. In view of the foregoing discussions pertaining to non-supply of relevant documents during the course of inquiry which has resulted into violation of principles of natural justice, and therefore also, on this count, the impugned order dated 04.06.2003 passed by the Disciplinary Authority against the petitioner is required to be quashed and set aside. Accordingly, the impugned order dated 04.06.2003 passed by the Disciplinary Authority is hereby quashed and set aside and the matter is remitted to the Disciplinary Authority for conducting a de novo inquiry in respect of charges levelled against the petitioner from the stage of supply of the documents demanded by the petitioner. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent."
3. The Note for Speaking to Minutes is disposed of accordingly. The other part of the judgment and order shall remain intact.
Registry is directed to issue fresh writ.
(P.P.BHATT, J.) BD Songara Page 2 of 2 HC-NIC Page 14 of 14 Created On Sun Aug 13 16:49:55 IST 2017 14 of 14