Gujarat High Court
State Of Gujarat vs G.A. Patel on 23 December, 1993
Equivalent citations: (1994)1GLR727
Author: B.N. Kirpal
Bench: Chief Justice
JUDGMENT B.N. Kirpal, C.J.
1. This is a Letters Patent Appeal filed against the writ petition of the respondent and quashing the minor penalty which was imposed upon him.
2. The respondent was serving in the office of the Mamlatdar, Gandhinagar in the year 1970. On account of charges of tampering with the Government records a memorandum was issued to him asking for explanation as to why any other penalty specified by Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 be not imposed on him. A detailed reply was submitted. But an Inquiry Officer was appointed who, after examining witnesses and considering oral and documentary evidence, submitted a report on 18-11-1979 holding that the charges against the respondent were not proved.
3. The appellant therein disagreeing with the findings of the Inquiry Officer but, without issuing any notice to the respondent or affording of any further opportunity of being heard, he came to the conclusion on 4-12-1979 that the charges against the respondent were true and on 12-12-1979 order was passed to the effect that he did not agree with the findings of the Inquiry Officer with regard to charge No. 2 and that minor penalty of withholding two annual increments without any future effect was imposed.
4. The aforesaid decision of the Disciplinary Authority was challenged in a petition under Art. 226 being Special Civil Application No. 825 of 1980. By the judgment dated 5-9-1990 the learned single Judge came to the conclusion that the principles of natural justice had been violated inasmuch as no opportunity of being heard was granted to the respondent before the Disciplinary Authority came to the conclusion which wad different from one which had been arrived at by the Inquiry Officer. In other words, the learned Judge held that before recording a finding that the charges were proved, a fresh opportunity should have been granted to the respondent. In arriving at the aforesaid conclusion the learned single Judge also relied on an identical decision of a single Bench of this Court in the case of Mahesh Prakash v. Union of India, S. C. A. No. 4362 of 1984 decided by S. L. Talati, J., (as he then was) on 20-9-1984.
5. In appeal the learned Counsel for the appellant has contended that there was no warrant for holding that when the Disciplinary Authority disagrees with the findings of the Inquiry Officer, then before recording findings to this effect, an opportunity of being heard be granted. The said Rules inter-alia provide for a penalty which may be imposed and the procedure to be followed. Rule 6 contains the minor penalties and major penalties which can be imposed and in the present case we are concerned with sub-rules (1), (2) and (3) of Rule 6 which prescribed the minor penalties which are imposed upon. Major penalties are provided for in sub-rules (4) to (8).
6. After the statement of charges and allegations are furnished to the delinquent officer and reply, if any, received the Disciplinary Authority may decide to institute inquiry proceedings. The Rules contemplates that the inquiry may be held either by the Disciplinary Authority or by an Inquiry Officer appointed by him. The inquiry may be conducted in the manner prescribed in Rule 9 of the said Rules. Where the Disciplinary Authority is not the Inquiry Authority and any inquiry report is prepared the Inquiry Authority forwards the records of the inquiry and the report to the Disciplinary Authority for further action.
7. Rule 10 of the said Rules deals with such a case where the Disciplinary Authority receives a report from an Inquiry Authority receives a report from an Inquiry Authority. Sub-rule (2) of Rule 10, which is material, reads as follows :
"The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose."
Sub-rule (3) of Rule 10 gives the Disciplinary Authority the power to impose penalties specified in items (1) to (3) of Rule 6, namely, minor penalties. Sub-rule (4) as it stood at the relevant time, contained the procedure to be followed by the Disciplinary Authority, if he is of the opinion that if any of the major penalties is to be imposed. This procedure contemplate furnishing to the Government servant a copy of the report of the inquiry held by the Inquiry Authority as also the Disciplinary Authority's reasons for disagreement with the same, if any. The penalty proposed is to be indicated by the Disciplinary Authority and the Government servant is allowed 15 days time to make a representation on the proposed penalty. Rule 11 also provides for procedure to be followed for imposing minor penalties. This also contemplates an inquiry being held and decision being taken thereafter.
8. It is evident that when the Disciplinary Authority itself holds an inquiry, the question of giving the Government servant an opportunity of being heard before recording the findings does not and cannot arise. Due opportunity is given to the officer concerned in the inquiry proceedings themselves.
9. Would the position be different if the inquiry is not held by the Disciplinary Authority, but is conducted by the Inquiry Officer duty appointed by the Disciplinary Authority?
10. Sub-rule (2) of Rule 10 specifically deals with the case of disagreement with the findings of the Inquiry Authority by the Disciplinary Authority. It states that the Disciplinary Authority, if it disagrees, should record its reasons for such disagreement and record its findings on such charge. When Rule 10 is read as a whole, it does not contemplate any opportunity of being heard being granted to the Government servant before the reasons for disagreement and findings are recorded by the Disciplinary Authority. It is only in the case where major penalties are to be imposed that the inquiry report as also findings of the Disciplinary Authority have to be given to the officer concerned. If in imposing major penalties no opportunity of hearing is to be granted by the Disciplinary Authority under sub-rule (2) of Rule 10 then, in our opinion, the question of granting any such opportunity when a minor penalty is to be imposed cannot arise.
11. It is true that even if a statute does not contain a provision requiring compliance of the principles of natural justice, but where civil consequences ensue such principles have to be complied with. Where, however, a statute or rules specifically provide for opportunity to be heard at different stages, then the procedure as laid down by those rules have to be followed. Rule 10 clearly postulates, in the case of imposition of major penalty, an opportunity being granted under sub-rule (4) of Rule 10 after the Disciplinary Authority has recorded its reasons of disagreement and findings in respect thereof, in the event of there being any disagreement with the findings of the Inquiry Officer.
12. Learned Counsel for the appellant states that when a representation is filed under sub-rule (4) of Rule 10 against the punishment which is proposed, it is open to the Government servant concerned to contend that the findings recorded by the Inquiry Officer or the Disciplinary Authority are not borne out from the evidence on record or are unwarranted. In other words, the correctness of the recording of the findings can be challenged with a view to persuade Disciplinary Authority not to impose any penalty. At this stage, therefore, in case where the Disciplinary Authority has disagreed with the findings recorded by the Inquiry Officer the Government servant will have an opportunity of bringing to the notice of the Disciplinary Authority the reasons as to why the findings recorded by him are not correct. In any case, Rule 10 does not contemplate any such opportunity being granted before the recording of the reasons for disagreement and the finding by the Disciplinary Authority under sub-rule (2) of Rule 10 of the said Rules.
13. In view of the fact that a minor penalty has been imposed in the present case, the proceedings under sub-rule (4) of Rule 10 was not required to be followed. This means that before the imposition of the said penalty it was not necessary for the Disciplinary Authority to forward to the Government servant copy of inquiry report and his findings. The learned Counsel for the appellant, nevertheless, submits that in all fairness when the Disciplinary Authority is differing with the findings recorded by the Inquiry Officer, who has recorded the evidence and examined the witnesses, it will be fair and proper that an opportunity is given to the government servant concerned before imposing minor penalty on him. We are in agreement with this submission. Strictly construed Rules 10(2) and (3) does not contemplate a fresh opportunity of being heard when imposing minor penalty. This is so even by reading Rule 11, which also contains the provision for imposing of minor penalty. Where the Inquiry Officer holds the charges to be proved and the Disciplinary Authority accepts the same, then question of affording any further opportunity of being heard will not and cannot arise. On the submission of the inquiry report the Disciplinary Authority can take action, without further notice and impose minor penalty, if the Inquiry Officer has come to the conclusion that charges are proved. Where, however, like the present case, the Inquiry Officer exonerated the Government servant, but the Disciplinary Authority comes to a contrary conclusion, then, in our opinion, principles of natural justice have to be read into sub-rule (3) of Rule 10 and the reasons for disagreement and the findings, after recording, therefore should be given to the officer concerned before penalty is imposed.
14. In the present case, no such opportunity was granted, and therefore, this appeal is dismissed but for the reasons state hereinabove. There will be no order as to costs.