T.P.Viradiya vs State Of Gujarat & on 4 July, 2016

[Cites 13, Cited by 1]

Gujarat High Court

T.P.Viradiya vs State Of Gujarat & on 4 July, 2016

HC-NIC Page 1 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner - a dismissed Taluka Development Officer, has prayed for the following reliefs:

"8 (A).Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order NO.FRS/222000/1142/M dated 22.11.2004 issued by respondent no.1 at Annexure.A to this petition and further be pleased to direct the respondents, their agents, servants and subordinate officers to reinstate the petitioner in service to his original post with all consequential benefits including the continuity in service, arrears of pay, seniority and further promotional benefits to the next higher post as if the order of respondent no.1 dt. 22nd November 2004 produced at Annexure.A to the petition is not passed.

(B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay and suspend further implementation and/or operation and/or execution of the order at Annexure.A and further be pleased to permit the petitioner to hold the post of Taluka Development Officer as if the impugned order at Annexure.A to the petition has not been passed and grant all other consequential benefits to the petitioner.

(C) Your Lordships be pleased to grant any other and further reliefs as may be deemed fit and proper in the interest of justice."

2 The facts of this case may be summarized as under:

2.1 The petitioner was appointed to the post of 'Extension Officer (Agriculture)' in the Panchayat services. Thereafter, he was promoted to the post of Taluka Development Officer. On 30th December 2012, he was served with a departmental chargesheet containing the following charges:

(1) Although the petitioner had received a complaint as regards the inferior quality of construction undertaken at the primary school of village : Kotamoi, yet he sanctioned an amount of Rs.56,894/ towards its first running bill instead of getting the quality of the work undertaken at the school inspected.

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HC-NIC Page 2 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT (2) Under the grant of the Member of the Parliament, an amount of Rs.1,99,700/ was sanctioned for the construction of the internal road of the village : Amratvel, and although the specification of the said work was not done, yet without any scrutiny by the Technical Officer, an amount of Rs.1,88,460/ was paid to the contractor.

2.2 The two specific charges referred to above are found in the departmental chargesheet.

2.3 There is a third charge to the effect that the petitioner, in collusion with one Shri Rathod, the Deputy Executive Engineer, paid a sum of Rs.50,000/ to Shri Ghanshyam Patel for the purpose of withdrawing his complaint or with a view to influencing him for the purpose of saving himself from the charges.

2.4 The State Government appointed one Shri V.D. Naik, who is a retired Deputy Secretary, as the Inquiry Officer. The Inquiry Officer, at the end of the inquiry, reached to the conclusion that none of the charges framed against the petitioner were established. The inquiry report dated 27th May 2002 makes it very clear that the entire case against the petitioner was disbelieved.

2.5 No sooner the Inquiry Officer filed his report stating that the charges were not held to be established, then the State Government as a disciplinary authority passed an order dated 10th June 2003 stating that all the charges are believed to be proved.

2.6 The petitioner was provided with a copy of the Inquiry Officer's report and the order dated 10th June 2003 of the State Government.


         2.7    The   petitioner   filed   an   exhaustive   reply   dated   16th  June   2003 


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explaining that all the allegations levelled against him were baseless and false.

2.8 The State Government, thereafter, proceeded further to pass the impugned order dated 22nd November 2004 dismissing the petitioner from service.

2.9 Hence, this writ application.

3 Mr. Oza, the learned senior advocate appearing for the petitioner submits that the State Government committed an error in passing the impugned order dismissing his client from service. He submitted that even if the Inquiry Officer fully exonerates the delinquent, it is always open for the disciplinary authority to disagree with the findings recorded by the Inquiry Officer, but for that purpose, the disciplinary authority is obliged to record his reasons for such disagreement. He would submit that such reasons for disagreement are to be supplied to the delinquent so that he can file an appropriate reply in that regard before the final order is passed.

4 Mr. Oza invited my attention to Rule 10 (2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 in this regard.

5 Mr. Oza submitted that so far as the present case is concerned, although there is an order dated 10th June 2003, yet the same, by any stretch of imagination, cannot be termed as one assigning reasons for disagreeing with the findings recorded by the Inquiry Officer. He submitted that there is not an iota of reason in the communication dated 10th June 2003. Mr Oza pointed out that all that has been stated in the communication dated 10th June 2003 is that all the charges are held to be established.


         6         In   such   circumstances   referred   to   above,   Mr.   Oza,   the   learned 


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senior advocate prays that only on this alone ground, the inquiry should be said to have been vitiated rendering the impugned order of dismissal illegal.

7 Mr. Oza, in support of his submissions, has placed strong reliance on the decision of the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra [AIR 1999 SC 3734]. Mr. Oza submitted that the principles of natural justice also could be said to have been violated in the present case. According to him, number of documents, the reference of the same could be found not only in the departmental chargesheet, but also in the communication 10th June 2003 were not supplied to his client, despite making a specific request for the supply of those documents.

8 The next submission of Mr. Oza is that before passing the order of dismissal, the State Government sought the advice of the Gujarat Public Service Commission, and it seems that the Gujarat Public Service Commission, by its communication dated 9th November 2004, guided the State Government. According to him, the copy of the advice of the Commission has not been provided to his client. Mr. Oza has lastly pointed out that his client attained the age of superannuation in the year 2006. He remained under suspension from 2002 till the time the impugned order of dismissal came to be passed. According to Mr. Oza, the impugned order deserves to be quashed and the State Government be directed to sanction the retiral benefits in favour of his client, he would have otherwise received, but for the departmental inquiry and the consequential order of dismissal from service.

9 Mr. Oza submits that although his client wanted to work, yet he was not able to work, and therefore, his client is entitled to the salary for Page 5 of 20 HC-NIC Page 5 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT the period between 2002 and 2006.

10 On the other hand, this writ application has been vehemently opposed by Mr. Krutik Parikh, the learned Assistant Government Pleader appearing for the respondents. Mr. Parikh submitted that no error, not to speak of any error of law could be said to have been committed by the State Government in passing the impugned order of dismissal. He submitted that there is no merit in the contention of the learned counsel appearing for the petitioner that no reasons have been recorded by the disciplinary authority for the purpose of disagreeing with the findings recorded by the Inquiry Officer. According to him, the communication dated 10th June 2003 itself could be said to be the reasons for the disagreement with the findings recorded by the Inquiry Officer. According to him, there is no breach of Rule 10(2) of the Rules, 1971.

11 The learned Assistant Government Pleader submits that there is no merit even in the contention that the relevant documents referred to in the chargesheet as well as in the communication dated 10th June 2003 were not supplied to the petitioner although demanded. Mr. Parikh would submit that it is not obligatory in all cases to provide a copy of the advice given by the Gujarat Public Service Commission. According to him, it is obligatory to provide the copy of the advice of the G.P.S.C. only if the State Government deems fit not to enhance the penalty in accordance with the recommendations or the advice of the Commission. According to him, as the proposed punishment of dismissal was accepted by the Commission, there was no need to provide a copy of such advice.

12 Mr. Parikh submitted that the allegations levelled against the petitioner are quite serious.



         13     Mr. Parikh, the learned Assistant Government Pleader has placed 


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reliance on the following averments made in the affidavitinreply filed on behalf of the State Government dully affirmed by the Under Secretary

- Panchayat, Rural Housing and Rural Development Department:

"14 It is submitted that the inquiry officer was appointed and inquiry officer has given his inquiry report on 26.05.2003, and it was submitted to the concerned authority. And Inquiry Officer has come to the conclusion that the charges are not proved and petitioner was found guilty of breach of the rules 3(1)(1), 3(1)(2) and 3(2) of the Gujarat Civil Services (Conduct) Rules 1971.

15 I humbly say and submit that the disciplinary officer has not agreed with the findings of inquiry officer and disciplinary officer believed charges against the petitioner proved.

16 I humbly say and submit that disciplinary authority who is Secretary Panchayat and Rural Housing Development Department has recorded reasons as to why he has not agreed with the report of Departmental Inquiry and accordingly by communication dated 10.06.2003 the present petitioner was issued a notice to submit reply against the notice issued by disciplinary authority.

17 I humbly say and submit that against the communication dated 10.06.2003, present petitioner has filed his final statement and denied all the charges. A copy of the final defense statement is already annexed by the petitioner.

18 I humbly say and submit that the petitioner has not denied single word regarding the bribe amount.

19 I humbly say and submit that the considering the final defense statement by the petitioner respondent authority written a communication dated 13.09.2004 to GPSC stating that the petitioner is to be punished under the Rule 6(8) (i.e. Dismissal from service) of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971 and therefore necessary opinion is to be received from GPSC.

20 It is respectfully submitted that the GPSC written communication dated 09.11.2004 agreeing with proposal of the State Government in dismissing the petitioner.

21 Considering the proposal made by the respondent authority and opinion of GPSC, respondent authority has passed order dated 22.11.2004 dismissing the petitioner from the services which is legal, proper and valid.




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              22        It is submitted that the petitioner has worked against the conduct

of the government employee, he was required to maintain the conduct and by his behaviour his integrity was doubted and when any government employees' integrity is doubted, it is necessary on the part of the respondent authorities to take strict actions. It is pertinent to note from the statement of Dr. Kanubhai Kalsariya and Ghanshyam Patel. It is crystal clear that the present petitioner and one Mr. Rathod had given bribe of Rs.50,000/ to Ghanshyam Patel to send it Dr. Kanubhai Kalshariya. It is also mentioned in the statement of the Ghanshyam Patel that the present petitioner has informed Ghanshyam Patel that they need more time to give other amount of Rs.50,000/ back and when it was found that the work is not proper, the present petitioner in collusion with the other officer decided to give an amount of Rs. 1 lac to Mr. Ghanshyam Patel. Thus, when the petitioner who was working as a TDO has behaved in a manner that his integrity is doubted and therefore, also the present petition is required to be dismissed.

23 It is submitted that even Dr. Kanubhai who was MLA and has also supported the statement of Mr. Ghanshyam Patel. It is further submitted that, Dr. Kanubhai Kansariya has also given statement before the Collector, Bhavnagar on 11.02.2002 that the petitioner and Deputy Executive Engineer Mr. Rathod has sent an amount of Rs.50,000/ through Ghanshyam Patel and he has stuck to his statement before the inquiry officer. Looking to the above facts and circumstances, the present petitioner has worked against his integrity and conduct of the government employee and therefore, punishment passed by the authority is legal, proper and valid.

24 It is further submitted that the petitioner has relied upon and claimed parity with the case of Mr. Rathod, who are Deputy Executive Engineer (incharge) but, true fact is that Mr. Rathod was also issued a chargesheet dated 26.04.2002 and Mr. Rathod retired on 30.04.2002 and therefore, no other punishment can be imposed on Mr. Rathod other then cut in pension. The FIR was lodged against Mr. Rathod and other persons in the year 2002 which was lodged as FIR No.29/2002. A copy of the FIR is annexed herewith and marked as AnnexureR3.

25 It is submitted that Misc. Civil Application No.147 of 2002 is pending at Mahuva Court and necessary punishment order will be passed against Mr. Rathod. Thus, the say of the petitioner is that Mr. Rathod is not given punishment is not true and correct. Looking to the facts and circumstances when it is an admitted fact that the petitioner has worked against his integrity no sympathy can be given to the petitioner and as it has resulted into financial loss to the State Government, the present petition is required to be dismissed."

14 Having heard the learned counsel appearing for the parties and having Page 8 of 20 HC-NIC Page 8 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT considered the materials on record, the only question that falls for my consideration is whether the authority concerned committed any error in passing the impugned order.

15 Before adverting to the rival contentions on either sides, let me look into the Rule 10 of the Rules, 1971:

"10. Action On The Inquiry Report : (1) The Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further inquiry and report and the Inquiry Authority shall there upon proceed to hold the further inquiry according to the provisions of rule 9, as far as may be.

(2) 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 finding on such charge if the evidence on record is sufficient for the purpose.

(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in* items (1) to (3) of rule 6 should be imposed on the Government servant, it shall not withstanding anything contained in rule 11 make an order imposing such penalty : Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant. *[Item (1) deleted vide GN/GAD/No. GS/12/CDR/1095/539/Inq. Cell,dated 1605 1996 and reinserted videGN/GAD/NoGS200045CDR1095539Inq. Cell dt. 1 12 2000] ** (4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed : Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government Servant.

** [Substituted vide GN/GAD/No. GS/86/17/CDR1084/565/Inq. Cell, Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT dated 16 04 1986.]"

16 Thus, the statutory rules make it clear that if the disciplinary authority disagrees with the findings of the inquiry authority on any article of charge, it shall record its reasons for such disagreement and record its own finding on such charge. Indisputably, the Inquiry Officer exonerated the delinquent in toto. I have gone through the report of the Inquiry Officer. It is selfexplanatory. All relevant aspects of the matter have been considered threadbare. The Inquiry Officer has also considered the oral evidence of the three witnesses referred to in his report. At the end of it, he came to the conclusion that none of the charges could be said to have been established. Now comes the moot question i.e. whether the disciplinary authority recorded his own reasons for such disagreement. I have no hesitation in accepting the contention of the learned counsel appearing for the petitioner that the communication dated 10th June 2003, by any stretch of imagination, cannot be termed as reasons for the disagreement. There is not an iota of reason assigned by the disciplinary authority. The disciplinary authority has not stated a word why he is disagreeing with the findings of the Inquiry Officer. It is not just sufficient to say for the purpose of complying with the Rule 10(2) of the Rules, 1971 in true perspective that, the charges are believed to be proved. If that would be so, then it would render Rule 10(2) absolutely redundant. There is a rational in Rule 10 of the Rules, 1971. If the Inquiry Officer says that the charges are not established, then the findings may not be binding to the disciplinary authority, but the at the same time, if the disciplinary authority wants to disagree, then he has to record his reasons and bring them to the notice of the delinquent so that the delinquent will get an opportunity to make good his case that the findings of the Inquiry Officer deserves to be accepted. If there are no reasons, then in what Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT manner the delinquent would make good his case that the Inquiry Officer's findings should be accepted.

17 The law in this regard is well settled. The Supreme Court in Yoginath Bagde (supra) has explained in details the manner in which the disciplinary authority should proceed, if he disagrees with the findings recorded by the Inquiry Officer. I may quote the observations as contained from paras 27 to 36 as under:

"27. What action would be taken on this report and in what manner will this report be dealt with is indicated in Rule 9. Relevant portions of this Rule are quoted below :

"9. Action on the inquiry report. (1) The Disciplinary Authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report, and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 8 of these rules as far as may be. (2) The disciplinary authority shall if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. If it disagrees with the findings of the inquiring authority on any article of charge, it shall record its reasons for such disagreement.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) (i) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the major penalties should be imposed on the Government servant, it shall

(a) furnish to the Government servant, a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge expressly stating whether or not it agrees with the findings of the inquiry authority, together with brief reasons for its disagreement, if any, with the findings of the inquiring authority; and

(b) give to the Government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he Page 11 of 20 HC-NIC Page 11 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 8 of these Rules.

(ii) (a) . . . . . . . .. . . . . . . . . . . . . . . . . . . ..

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under clause (i)(b) of this subrule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the inquiry held under Rule 8 and make such order as it may deem fit."

28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent, and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Inquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.

29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any Page 12 of 20 HC-NIC Page 12 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.

30. Recently, a threeJudge Bench of this Court in Punjab National Bank v. Kunj Behari Mishra (1998) 7 SCC 84 : AIR 1998 SC 2713 : (1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009), relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit (1964) 2 SCR 1 : AIR 1963 SC 1612; Institute of Chartered Accountants of India v. L. K. Ratna (1986) 4 SCC 537 : (AIR 1987 SC 71) as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad v. B. Karunakar (1993) 4 SCC 727 : (1994 AIR SCW 1050 : AIR 1994 SC 1074 : 1994 Lab IC 762) and the decision in Ram Kishan v. Union of India (1995) 6 SCC 157 : (1995 AIR SCW 4027 : AIR 1996 SC 255), has held that (AIR 1998 SC 2713 : 1998 AIR SCW 2762 : 1998 Lab IC 3012 :

1998 All LJ 2009, para 17) :

"It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of Page 13 of 20 HC-NIC Page 13 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT ultimate importance is the finding of the disciplinary authority."

31. The Court further observed as under (AIR 1998 SC 2713 : 1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009, para 18) :

"When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."

32. The Court further held that the contrary view expressed by this Court in State Bank of India v. S. S. Koshal, 1994 Supp (2) SCC 468 : (1994 AIR SCW 2901) and State of Rajasthan v. M. C. Saxena (1998) 3 SCC 385 : (1998 AIR SCW 965 : AIR 1998 SC 1150 : 1998 Lab IC 1038) was not correct.

33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.

34. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (Enquiry Officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to showcause why he should not be dismissed from service. It is true that along with the showcause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)(a) and (b). He was called upon to showcause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21st June, 1993 which provide as under : "Decision : Discussed.

For the reasons recorded in Annexure "A" hereto, the Committee disagrees with the finding of the Enquiry Officer and finds that the charges levelled against the delinquent Judicial Officer have been proved.

It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service.

Let notice, therefore, issued to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.

Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee."





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These minutes were recorded after the Disciplinary Committee had considered the Enquiry Report and differed with the findings and recorded its final opinion in para 10 of the reasons as under : "10. The Disciplinary Committee is of the opinion that the findings recorded by the Enquiry Officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a Judicial Officer who has failed to maintain the absolute integrity in discharge of his judicial duties."

35. Pursuant to the above minutes, a notice dated 24693 was issued to the appellant which after reproducing the minutes of the Meeting of the Disciplinary Committee proceeded to say as under : "As required by the Disciplinary Committee I issue this notice calling upon you to showcause why the penalty of dismissal from service should not be imposed upon you in view of the charges held established. Time of 15 days, from the date of receipt of this notice, is given to you for submitting your reply, failing which it shall be presumed that you do not wish to make any representation regarding the penalty.

A copy of the report of the Enquiry Officer dated 211292 and a copy of Annexure 'A' are enclosed herewith for ready reference.

Yours faithfully, Sd/ Registrar"

36. Along with the showcause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to showcause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee."

18 The observations of the Supreme Court, in para - 36 referred to above, are very relevant even for our purpose. In Yoginath Bagde (supra), along with the show cause notice, a copy of the findings recorded by the Inquiry Officer as also the reasons recorded by the Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT disciplinary authority for disagreeing with those findings were communicated to Mr. Bagde. The Supreme Court took the view that it was a Memorandum as he was required to showcause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. In this case, there may not be any reference in the communication dated 10th June 2003 to show cause against the punishment, but at the same time, the authority in no uncertain terms has said that the charges are proved. It was not indicated to him that the disciplinary authority had come only to a "tentative" decision and that he could show cause against that too.

19 Thus, the lapse on the part of the disciplinary authority as regards Rule 10(2), in my view, has a serious repercussion so far as the legality and validity of the impugned order is concerned. In my view, the lapse has definitely led the order of dismissal not tenable in law.

20 I am at one with the learned counsel appearing for the petitioner as regards his grievance that although his client insisted for the supply of certain documents, which were in fact referred to in the chargesheet itself and also in the communication dated 10th June 2003, yet were not supplied to the petitioner. This issue stands covered by the decision of the Supreme Court in the case of the State Bank of Patiala v. S.K. Sharma [AIR 1996 SC 1669].

21 Indisputably, even the copy of the advice given by the G.P.S.C., as could be found from the affidavitinreply itself, was not provided to the petitioner.





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HC-NIC                                      Page 17 of 20     Created On Sat Jul 09 00:16:49 IST 2016
                   C/SCA/16957/2004                                                   JUDGMENT



         22     I have noticed one more infirmity in the matter. The impugned

order, in my view, is a nonspeaking order. No reasons worth the name are to be found in the impugned order. In fact, there is no discussion why the findings recorded by the Inquiry Officer are not correct or acceptable. I am of the view that in a case where the delinquent has been fully exonerated by the Inquiry Officer, then not only at the stage of complying with Rule 10(2) referred to above, but the authority owes a higher degree of responsibility by passing the final order. Except, incorporating the charges and few other details relating to the inquiry, there is no discussion at all in the impugned order.

23 In view of the above, the next question that falls for my consideration is what relief could be granted to the petitioner.

24 The petitioner was placed under suspension in the year 2002. He remained under suspension till the impugned order of dismissal came to be passed in the year 2004, but for the departmental inquiry, and the consequential order of dismissal, he would have otherwise attained the age of superannuation in the year 2006. Ordinarily, if the Court finds a procedural lapse of a serious nature, then the matter can be remitted to the authority concerned for the purpose of undertaking a fresh exercise from the stage of Rule 10(2) of the Rules, 1971. I could have adopted the same course, but, having regard to the fact that the petitioner has retired from service, it will be too much to once again ask the petitioner to undergo the ordeal of a fresh round of the departmental proceedings. I am taking this view not just considering the fact that the petitioner has retired from service, but also keeping in mind the findings which are recorded by the Inquiry Officer.





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                    C/SCA/16957/2004                                                        JUDGMENT



         25     Legal importance of the reasons in an order was explained by the

Supreme Court in Daya Ram v. Raghunath [(2007) 11 SCC 241] in the following words.

Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking order.

26 Recording of reasons is an aspect of natural justice. The reasons properly recorded in support of an order is the natural justice duly complied with in that part. The principle that the reason in an order is an ingredient of natural justice becomes clear from the following judgment of the Supreme Court in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla & Bros., [(2010) 4 SCC 785], the Apex Court observed as under:

The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities....... (Para 14) 27 For all these reasons, I have reached to the conclusion that this is not a case which should be remitted, but the chapter should be closed over here only.

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HC-NIC Page 19 of 20 Created On Sat Jul 09 00:16:49 IST 2016 C/SCA/16957/2004 JUDGMENT 28 In the result, this writ application succeeds and is allowed. The impugned order passed by the State Government dated 22nd November 2004 is hereby ordered to be quashed.

29 The State Government shall treat the petitioner as if he was in service till the date of his superannuation. The State Government shall calculate the retiral benefits accordingly, and pay to the petitioner within a period of two months from the date of receipt of this order. The period between 2002 and 2006 shall be treated as notional for the purpose of retiral benefits. So far as the suspension period is concerned, the authority concerned shall pass appropriate orders in accordance with the rules and regulations whether the same should be treated on duty or not. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.) chandresh Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Jul 09 00:16:49 IST 2016

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