L.S. Saiyed vs State Of Gujarat & on 22 April, 2016

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Gujarat High Court

L.S. Saiyed vs State Of Gujarat & on 22 April, 2016

Bench: J.B.Pardiwala

                     C/SCA/22/2014                                                     ORDER




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          SPECIAL CIVIL APPLICATION NO. 22 of 2014

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                                   L.S. SAIYED....Petitioner(s)
                                            Versus
                             STATE OF GUJARAT & 1....Respondent(s)
         ==========================================================
         Appearance:
         MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
         MR. SWAPNESHWAR GAUTAM, ASSTT.GOVERNMENT PLEADER for the Respondent(s) No. 1
         MR CHAITANYA S JOSHI, ADVOCATE for the Respondent(s) No. 2
         ==========================================================

          CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                             Date : 22/04/2016


                                               ORAL ORDER

By this writapplication under Article 226 of the Constitution of India, the petitioner, a retired House Master, ClassII has prayed for the following reliefs: A) To quash and set aside the impugned punishment order dated 26.9.2013 Annexure "A" to the petition;

B) To quash and set aside the report of the Inquiry Officer dated 19.10.2011, Annexure "H" to the petition and consequently quash and set aside all subsequent proceedings;

C) Pending admission and final disposal of the petition, to stay the operation, implementation and execution of the impugned punishment order dated 26.9.2013;

2. The facts of this case may be summarized as under: 2.1 The petitioner joined the services of the respondent authority in the year 1982 on the post of Assistant Social Welfare Officer. Thereafter, he came to be promoted on the post of House Master, ClassII, which is equivalent to the post of Social Welfare Officer, ClassII. The petitioner has retired from service with Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER effect from 31.10.2008 upon attaining the age of superannuation.

2.2 It appears that almost after four years i.e. on 24.5.2011, a Departmental chargesheet was issued levelling allegations of misconduct for the period between 2007 and 2008 while the petitioner was holding an additional charge of the District Backward Welfare Officer. The sum and substance of the allegations are that while the petitioner was holding the additional charge of the District Backward Class Welfare Officer, he accorded sanction for disbursement of grant in favour of four private aided schools, more particularly when all those private aided schools were ordered to be closed.

2.3 The Inquiry Officer held the charge to be established. The Disciplinary Authority accepted the report of the Inquiry Officer and proposed penalty of deduction of Rs. 3,000 from his pension for a period of five years. Upon consultation with the Gujarat Public Service Commission, the Commission recommended that appropriate punishment should be deduction of Rs. 3,000 for a period of eight years.

3. Being dissatisfied, the petitioner has come up with this writapplication.

4. The following facts are not in dispute. In fact, the learned counsel appearing for the petitioner made himself very clear that his client, while holding the additional charge of District Backward Class Welfare Officer, had sanctioned the grants in favour of four private aided schools, but it was not within his knowledge when the grants were sanctioned that those schools were ordered to be closed.

5. It appears that the Department concerned also thought fit to file a First Information Report. It also appears that the persons responsible for submitting the necessary proposal for sanctioning of the grant have been arraigned as accused. There is no criminal prosecution against the petitioner herein. The Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER defence of the petitioner is that the files were processed by other officers and they used to be placed before him for necessary approval.

6. On behalf of the State Government, an affidavitinreply has been filed, duly affirmed by the Under Secretary, Social Justice and Empowerment Department, interalia stating as under: "6. It is submitted that the petitioner had joined the services of the respondent authority in the year 1982 on the post of Assistant Social Welfare Officer. It is further submitted that the respondent authority has issued charge-sheet dated 24.5.2011 to the petitioner for misconduct alleged to have been committed by the petitioner in the year 2007 while the petitioner was working as In-charge District Backward Class Welfare Officer, Class-I from 21.7.2007 to 31.8.2007. The petitioner had committed procedural irregularity while sanctioning scholarship to four private schools.

7. It is further submitted that vide charge-sheet KTP/102011/351566/D.E dated 24.5.2011 in aforesaid charge-sheet the petitioner has issued a bogus scholarship of amount Rs. 4,81,675/- to bogus students. It is also submitted that the petitioner has violated Gujarat Civil Service (Conduct) Rules, 1971, more particularly Rules 3(1) sub-rule 1 and 2 and also intimated by way of charge-sheet to petitioner on the certain disciplinary inquiry is conducted against the petitioner as per Rule 9 and 10 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

8. It is respectfully submitted that the petitioner has replied on 7.6.2011 the petitioner submitted that in the year 2007 and 2008 the petitioner was handed over the charge of the District Backward Class Welfare Officer, from 21.7.2007 to 31.8.2007 i.e. for a period of one month and ten days. During the said period, the petitioner was already holding the regular charge of the post of House Master, Class II and also holding the charge of Vigilance Officer, Class-I. It is in view of committed responsibility of the charge of two Class-II and one Class-I post. Over and above the responsibility of the regular charge, the petitioner cannot be expected to do all the work himself and he is to rely upon the subordinate staff members. It is further submitted that the petitioner excused were not acceptable by the respondent because it is the duty to do his work with proper clarification, sincerity and as per the rules but the petitioner has failed in all. Therefore, the respondent has sent the charge-sheet along with the petitioner's reply to the Special Officer of Departmental Inquiry vide order dated 12.7.2011 A copy of the order dated 12.7.2011 is attached as Annexure R-1. The Special Officer of Departmental Inquiry has called the petitioner to represent his case before Departmental Inquiry and the Special Officer has called petitioner on 30.8.2011 but the petitioner was not present on 30.8.2011.

9. It is further submitted that presenting officer has sent the brief to the Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER petitioner on 14.9.2011. The petitioner has replied the aforesaid letter dated 14.9.2011 by filing his reply on 28.9.2011.

10. It is respectfully submitted that in the present petition the petitioner has also alleged that he has not given a chance as per Rule 9(17) of Gujarat Civil Service (Discipline and Appeal) Rules, 1971. It is humbly submitted that the respondent has given a chance to the petitioner as per aforesaid Rules because by letter dated 15.9.2011 the respondent intimated the petitioner that as per the brief of the Departmental Inquiry proceedings and as per Rule 9(17) Gujarat Civil Service (Discipline and Appeal) Rules, 1971, petitioner has given a chance to file his reply before 1.10.2011.

11. It is respectfully submitted that the Special Officer of Departmental inquiry has sent his inquiry report to the disciplinary authority by letter dated 19.10.2011. A copy of letter dated 19.10.2011 is attached as Annexure R-5 where the Special Officer has decided that the charge levelled against the petitioner is proved.

12. The respondent has sent the aforesaid report of Special Officer of Departmental Inquiry to the petitioner by letter dated 28.11.2011.

13. It is respectfully submitted that with effect from letter dated 28.11.2011 the petitioner has submitted his defence on 15.12.2011 where he was again stated the similar contention which he was contended in the reply of the charge-sheet. It is humbly submitted that there is no clear defence by the petitioner. Therefore, respondent No.1 has sent the whole brief of the Departmental proceedings held against the petitioner for consultation to GPSC vide letter dated 14.5.2012.

14. It is respectfully submitted that GPSC has recommended to impose major punishment of reduction in pension by Rs. 3000 per month for the period of 8 years upon the petitioner. The GPSC has given aforesaid advice and his recommendation to department on 28.5.2013. It is submitted that as per final consideration and advice of the GPSC dated 28.5.2013, the copy of aforesaid advice is already given to petitioner on 5.7.2013. It is further submitted that the petitioner has replied of letter dated 5.7.2013 on 19.7.2013 by way of Special defence reply. It appears that the petitioner has given a special chance to represent himself properly before the respondent but the petitioner was not able to clarify himself in aforesaid special chance of defence. Therefore the respondent No.1 has passed the final punishment order dated 26.9.2013, whereby major punishment of reduction in pension by Rs. 3000 per month for period of 8 years imposed upon the petitioner. It is humbly submitted that the petitioner's misconduct is depriving the children by right to education and due to petitioner's major misconduct the correct amount of scholarship to the scholar students has not been given and such misconduct also decrease the chance of the bright students to show their knowledge. The petitioner has also given ample chance to represent him before the respondent though such allegation made by the petitioner is not to be sustained because the respondent has to follow the proper procedural establishment."

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7. Mr. Swapneshwar Gautam, the learned Assistant Government Pleader appearing for the State respondents and Mr. Chaitanya Joshi, the learned advocate for the respondent No.2 submitted that there is no merit in the writ application and the same be rejected.

8. Having heard the learned counsel appearing for the petitioner and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to any of the reliefs prayed for in this writapplication.

9. There is no doubt that the petitioner could be said to have been negligent in discharge of his duties. It was his duty to verify before sanctioning the Grant whether the schools are in operation or not. Of course, it is his case that the District Education Officer concerned had not informed to the office of the District Backward Class Welfare Officer that the four schools in question were ordered to be closed. This again has been disputed by the learned AGP appearing for the State.

10. Be that as it may, even if I believe that the petitioner was negligent in discharge of his duties, I am of the view that the punishment which has been imposed is quite harsh and disproportionate. It is true that the Disciplinary Authority proposed penalty of deduction of Rs. 3,000 from pension for a period of five years, whereas the GPSC, upon consultation recommended deduction of Rs. 3,000 for a period of eight years.

11. In Om Kumar Vs. Union of India AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

"28. By 'proportionality' we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties, or interests of persons keeping in mind the purpose which they were intended to serve. The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality."

"29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were 'necessary' - within Arts. 8 to 11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art. 14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp.677-866)."

"66. It is clear from the above discussion that in India where administrative action is challenged under Art. 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority."

"67. But where, an administrative action is challenged as 'arbitrary' under Art. 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p. 111 :(AIR 1991 SC 1153 at . 1165), Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the Administrator under Art. 14 in the context of Administrative Law has to be judged from the stand point of Wednesbury rules. In Tata Cellular V. Union of India (1994) 6 SCC 651 at Pp. 679-680: (1994 AIR SCW 3344 and at Pp. 3369-70: AIR 1996 SC 11);

Indian Express Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691 : (AIR 1986 SC 515 at Pp.542-43): Supreme Court Employees' Welfare Association V. Union of India (1989) 4 SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC 324 at p.358) and U.P. Financial Corporation V. GEM CAP (India) Pvt.Ltd. (1993) 2 SCC 299, at p. 307: (1993 SC 1435 at p.1439), while judging whether the administrative action is 'arbitrary' under Art. 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always."

"71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Art. 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art. 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. Only in rate cases Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment."

In Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

"The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go in to the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331, the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed:

"Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works."

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12. The above noted decisions give a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose a particular penalty on the delinquent employee. The Supreme Court as well as this Court has repeatedly emphasised that the Court should not exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the Disciplinary Authority. The Supreme Court in the case of Om Kumar Vs. Union of India (supra) has taken the view that the Court, while reviewing punishment, if it is satisfied that the Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in extreme and rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, can the court substitute its own view as to the quantum of punishment. Having regard to the length of service and also taking into consideration the fact that the petitioner retired and four years thereafter, the Departmental inquiry came to be initiated and further taking into consideration the allegation of negligence, I am of the view that the matter deserves to be remitted to the Disciplinary Authority for a fresh decision as to the quantum of punishment.

13. In the result, this application is allowed in part. The matter is remitted to the Disciplinary Authority to consider and take a fresh decision as regards the quantum of punishment. I expect the authority concerned to take a fresh decision as to the quantum of punishment within a period of two months from today. While taking a fresh decision as regards the quantum of punishment, the Disciplinary authority shall also look into the service record of the petitioner.

14. If the petitioner is dissatisfied in any manner with the fresh decision of the disciplinary authority, it shall be open for him to seek appropriate legal remedy before the appropriate forum in accordance with law.

With the above observations and directions, this writapplication is Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Apr 26 01:48:33 IST 2016 C/SCA/22/2014 ORDER disposed of. Direct service permitted.

(J.B.PARDIWALA, J.) Mohandas Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Apr 26 01:48:33 IST 2016

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