Gujarat High Court
N A Gandhi vs State Of Gujarat & 2 on 19 January, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/9736/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9736 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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N A GANDHI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
MR ROBIN MOGERA, AGP for the Respondent(s) No. 1 - 2
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 3
MR SK PATEL, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 19/01/2017
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 impugned punishment order dated 07.01.2003 (Annexure-A) to the petition. It is further prayed that Page 1 of 15 HC-NIC Page 1 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT the necessary directions may be issued upon the respondents to grant all consequential benefits.
2. After preliminary hearing at the time of admitting the petition, considering the contentions raised before this Court, ad-interim relief was granted in terms of Para-8(D) till the final disposal of the petition vide order dated 03.03.2004.
3. The brief facts giving rise to the present petition are as under:
3.1 The petitioner was working as Head Clerk under the Administrative Control of Commissioner of Transport, Gujarat State, Ahmedabad. The petitioner retired on 30.11.1998 on attaining the age of superannuation. On the date of retirement itself, the petitioner was issued chargesheet for the incident, wherein an RTO agent had committed fraud with the department. According to the petitioner, he was not only responsible officer/employee as he was not even concerned with the said work. According to the petitioner, the said agent paid the disputed amount to the department with penalty and interest. However, the respondents-authorities initiated and continued with the inquiry even after his retirement. It is the case of the petitioner that there are many faults in the inquiry and the inquiry officer has not followed the procedure as prescribed in the Gujarat Civil Services (Discipline and Appeal) Rules, Page 2 of 15 HC-NIC Page 2 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT 1971 (hereinafter referred to as "the said Rules" for short) more particularly the procedure prescribed in Rule 9(17) of the said Rules. Not only that the petitioner was not supplied the relevant documents and material though it was specifically requested and demanded by the petitioner. At the end of inquiry, the disciplinary authority imposed punishment of reducing the basic monthly pension by Rs.1,000/- for ten years. It is the case of the petitioner that before imposition of penalty, the Government consulted the Gujarat Public Service Commission (hereinafter referred to as "the GPSC" for short) in respect of proposed penalty to be imposed upon the petitioner, but copy of opinion/report given by the GPSC was not supplied to the delinquent-petitioner though it has been relied upon by the disciplinary authority. According to the petitioner, the inquiry was conducted in an illegal and arbitrary manner and there has been gross violation of principles of natural justice and the impugned punishment order is also illegal, arbitrary and discriminatory.
4. Mr.Vaibhav A. Vyas, learned advocate appearing for the petitioner has made following submissions:
(i) That the impugned order has been passed in gross violation of principles of natural justice as the relevant materials and documents were not supplied to the petitioner though specifically requested and demanded by the petitioner during the course of Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT inquiry.
(ii) That the procedure prescribed under the said Rules and more particularly the procedure prescribed in Rule 9(17) of the said Rules is not followed by the inquiry officer though specific contention was raised by the petitioner in this regard.
(iii) That copy of the advise given by the GPSC was not supplied/provided to the petitioner before the order of punishment passed against the petitioner, and therefore, the petitioner had no prior opportunity to represent his case in pursuance to the advise given by the GPSC.
(iv) That the disciplinary authority is the Commissioner of Transport (i.e. respondent no.2 herein) and reduction in pension was imposed by him, but under Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002 (hereinafter referred to as "the Pension Rules" for short), the State Government is the Competent Authority to pass such order, but in the instant case, the respondent no.2-Commissioner of Transport has passed an order imposing penalty in reduction in pension which is contrary to the provisions made in Rule 24 of the Pension Rules.
(v) That the petitioner has served for a period of about 35 years as Head Clerk in different capacity under the Administrative Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT Control of Commissioner of Transport, Gujarat State, Ahmedabad.
The petitioner retired on 30.11.1998 on attaining the age of superannuation and on the same day i.e. on the date of retirement itself, the petitioner was issued chargesheet for the incident, wherein an RTO agent had committed the fraud with the department. According to learned advocate for the petitioner, the petitioner was not only responsible officer for the alleged misconduct and the petitioner was not aware about manipulation made in the transaction. However, without taking into consideration the various points raised by the petitioner before the inquiry officer, the inquiry officer has recorded its finding against the petitioner, and thereafter, the disciplinary authority proceeded further on the basis of the finding recorded by the inquiry officer and decided to impose punishment of reduction in pension. It is also submitted that before imposition of such penalty, the disciplinary authority has also failed in taking into consideration the various factors which ought to have been taken into account by the disciplinary authority before imposition of such penalty such as overall service record of the petitioner and the effect of penalty upon the delinquent and his family.
(vi) Learned advocate for the petitioner, in support of his submissions, has referred to and relied upon the following case Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT laws:
(1) Union of India and others Vs. S.K. Kapoor reported in (2011) 4 SCC 589;
(2) B. J. Jadav Vs. State of Gujarat reported in 2005(2) G.L.H. 334;
The aforesaid two decisions are cited on the point/issue that non- supply of copy of advise of GPSC amounts to non-observance of principles of natural justice.
(3) G.R. Parmar Vs. H. C. Jain or Successor and two given by the Coordinate Bench of this Court vide its judgment dated 02.03.2010 in Special Civil Application No.10174/1994 and H.M. Shah Vs. State of Gujarat given by the Coordinate Bench of this Court vide its judgment dated 19.03.2010 in Special Civil Application No.15128/2005, wherein it is held that the requirement prescribed under Rule 9(17) of the said Rules is mandatory in nature and the disciplinary authority is required to follow the procedure as prescribed under Rule 9(17) of the said Rules.
(vii) While concluding the submissions, learned advocate for the petitioner submits that the order passed by the disciplinary Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT authority is ex facie bad in law, arbitrary and contrary to the principles of natural justice, and therefore, the same may be quashed and set aside.
5. Mr.Robin Mogera, learned Assistant Government Pleader appearing for the respondent-State, while opposing this petition, tried to justify the order passed by the disciplinary authority and submits that the inquiry proceedings were conducted by the inquiry officer in accordance with the said Rules. It is also submitted that the disciplinary authority has also passed an order inflicting punishment of reduction in pension after following due process of law. It is further submitted that there is no breach of Rule 24 of Pension Rules. Learned AGP further submits that the order passed by the disciplinary authority is in consonance with the provisions contained in Rule 24 of the Pension Rules as approval of the State Government was taken by the disciplinary authority prior to final order of punishment is passed. It is submitted that in fact, on the basis of decision, which was conveyed by the State Government, the final order of punishment came to be passed by the disciplinary authority. Learned AGP further submits that all the relevant documents have been supplied to the petitioner during the course of inquiry except some of the documents which were not available with the office of RTO, but the petitioner was informed about it and the said documents were not relied Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT upon in the inquiry proceedings. Learned AGP further submits that the petitioner has approached this Court without availing an efficacious alternative remedy provided under the said Rules. It is submitted that the petitioner was required to approach the Gujarat Civil Services Tribunal against the impugned decision taken by the disciplinary authority, but instead of approaching the Gujarat Civil Services Tribunal, the petitioner has directly approached this Court, and therefore, on this ground also, the present petition may be dismissed.
6. Mr.Premal R. Joshi, learned advocate appearing for the respondent- Gujarat Public Service Commission submitted that GPSC has given its advise and concurred with the proposal, which was sent by the State Government with regard to proposed penalty. It is submitted that it is not mandatory for the GPSC as well as the State Government to supply copy of such advise as the penalty proposed by the State Government was not enhanced or rather advise was not given to enhance the said punishment. It is submitted that the decisions referred to and relied upon by the learned advocate for the petitioner are not applicable to the facts and circumstances of the present case. The report/opinion of the GPSC is required to be provided in cases where the punishment proposed by the State Government is not accepted and advise for enhancement punishment was rendered by the GPSC, but in the instant case, the Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT punishment proposed by the State Government was concurred by the GPSC, and therefore, such advise is not required to be supplied by the delinquent.
7. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioner has served for about 35 years in different capacity under the Administrative Control of Commissioner of Transport, Gujarat State, Ahmedabad. The petitioner retired as Head Clerk from the services on 30.11.1998 on attaining the age of superannuation. It appears that on the same day i.e. on the date of retirement itself, the petitioner was served with the chargesheet for the incident, wherein an RTO agent had committed fraud with the department. The petitioner being a Head Clerk had made stamping on the papers received by him, and therefore, he was served with the chargesheet for committing alleged misconduct while deciding his official duty. It appears that subsequently, the said agent paid the disputed amount to the department with penalty and interest as stated in Para-4.1 of the petition. Learned advocate for the petitioner has mainly raised the grounds for quashing and setting aside the impugned order that the relevant documents and materials, though demanded by the petitioner, were not supplied to him. In this context, it appears that the documents/materials were supplied to the petitioner except those Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT documents which were not in possession of the Regional Transport Office, but it appears that the said material was not referred to and relied upon in the inquiry proceedings and therefore, chance for causing prejudice to the delinquent for non-supply of such material does not arise. Another ground canvassed by the learned advocate for the petitioner is with regard to non-observance of requisite procedure as prescribed under Rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. For ready reference, aforesaid Rule is reproduced hereinbelow:
"9 (17) The Inquiry Authority may, after the Government Servant closes his case, and shall if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him."
8. On perusal of the above mentioned Rule, it appears that the inquiry authority, after the Government Servant closes his case generally, required to question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him. But in the instant case, as it reveals from the material on record that the petitioner has submitted his detailed representation and raised specific contentions with regard to non-observance of Rule 9 (17) of the Gujarat Gujarat Civil Services (Discipline and Appeal) Rules, 1971, but no such Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT opportunity was given by the inquiry authority. Learned AGP tried to justify from the material on record and more particularly from Para-7 of the order passed by the disciplinary authority that in substance, the requirement of Rule 9(17) of the said Rules has been followed by the inquiry authority. On perusal of Para-7 of the order passed by the disciplinary authority, it appears that the inquiry authority has taken into consideration the certain admissions made by the delinquent during the course of preliminary inquiry on 05.06.1999. In Para-7, it is also stated that since the delinquent has submitted explanation on 17.01.1998, during the course of inquiry, wherein he has admitted certain facts and thereafter, he has not raised any objection with respect to the admission made by him during the course of preliminary inquiry. Thus, it appears that the material, which was taken into consideration for the purpose of compliance of Rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, is not sufficient. It was the duty of the inquiry officer/authority to offer an opportunity for examining delinquent himself as a witness in respect of admission/material, which has come against him during the course of inquiry. From the inquiry proceedings as well as from the order passed by the disciplinary authority, nowhere it is mentioned that such an opportunity was ever given to the petitioner during the course of inquiry. Thus, it appears that the provision, as contained in Rule 9(17) of the Gujarat Civil Services (Discipline and Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT Appeal) Rules, 1971, has not been complied with or followed by the inquiry officer. In this context, the judgments delivered by the Coordinate Bench of this Court, which are referred to and relied upon by the learned advocate for the petitioner given in the case of G.R. Parmar Vs. H. C. Jain or Successor and two (supra) and H.M. Shah Vs. State of Gujarat (supra), are applicable to the facts and circumstances of the present case. So far as another ground raised by the petitioner with respect to non-supply of opinion rendered by the GPSC is concerned, it appears from the material on record that the opinion rendered by the GPSC has been referred to and relied upon by the disciplinary authority in its order. But copy was supplied for the first time along with the order of punishment. Prior to that, no such copy was ever supplied to the petitioner. In this context, in the judgments cited by learned advocate for the petitioner in the case of B.J. Jadav Vs. State of Gujarat (supra) and Union of India and others Vs. S.K. Kapoor (supra), ratio laid down in the judgments is required to be considered by this Court. In this context, the contention raised by Mr.Premal Joshi, learned advocate that the opinion given by the GPSC was not required to be supplied in the instant case because the commission has not proposed or opined any enhancement in the punishment proposed by the State Government, and therefore, no prejudice has been caused to the petitioner delinquent on account of non-supply of the said opinion. According to Mr.Premal Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT Joshi, learned advocate, in cases cited by the learned advocate for the petitioner, the GPSC has given opinion to enhance the punishment proposed by the State Government, and therefore, the view was taken by the Hon'ble Supreme Court as well as this Court that copy of such opinion is required to be supplied to the delinquent during the course of inquiry proceedings, and therefore, according to Mr.Premal Joshi, learned advocate, the judgments referred to and relied upon by the petitioner will not be applicable in the instant case. The above contention raised by Mr.Premal Joshi, learned advocate cannot be accepted for simple reason that the opinion of the GPSC carries weightage before any decision is taken by the State or any disciplinary authority before imposition of penalty in a departmental proceedings. It is an admitted fact that the opinion given by the GPSC has been referred to and relied upon by the disciplinary authority at the time of inflicting punishment and therefore, it was mandatory to supply such report in view of the ratio laid down by the Hon'ble Apex Court as well as Coordinate Bench of this Court in its judgment given in the case of Union of India and others Vs. S.K. Kapoor (supra) B.J. Jadav Vs. State of Gujarat (supra). Therefore, non-supply of copy of opinion given by the GPSC amounts to violation of principles of natural justice and the ground raised by learned advocate for the petitioner is required to be appreciated in light of the above- referred two judgments. So far as the last ground raised by learned Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT advocate for the petitioner with regard to non-compliance of Rule 24 of the Pension Rules is concerned, it reveals from the material on record that prior approval of the State Government is taken by the disciplinary authority before imposition of penalty. On perusal of material on record, this Court is of the view that mainly on the ground of non-observance of Rule 9(17) of the said Rules and non-supply of copy of opinion given by the GPSC, the impugned order deserves to be quashed and set aside and the matter is required to be remitted to the stage of inquiry. But it appears that by now, the petitioner has attained the age of about 75 years and the amount is also paid by the concerned agent with interest and as such there is no financial loss to the Government. The petitioner has rendered services under the control of respondent-Commissioner of Transport for a period of about 35 years and except this solitary incident, there is no other adverse remarks or entry in the service record, and therefore, this Court is of the view that the matter is required to be referred to the disciplinary authority with a direction to reconsider the case of the petitioner sympathetically for imposition of some lesser punishment, considering the nature and gravity of charge when amount is already recovered and as such there is no financial loss caused to the Government and also keeping in mind his overall service record and present stage of his retired life. If the disciplinary authority upon reconsideration decides in favour of the petitioner by inflicting some lesser punishment then in Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Aug 12 15:47:30 IST 2017 C/SCA/9736/2003 JUDGMENT that case, the amount if any deducted from the pension by now shall be refunded to the petitioner.
9. Accordingly, the present petition is disposed of with the above directions. Rule is made absolute to the aforesaid extent.
10. It is excepted from the disciplinary authority that the petitioner is a senior citizen aged about more than 75 years. The disciplinary authority shall conclude the proceedings within a period of three months from the date of receipt of the judgment and order.
(P.P.BHATT, J.) rakesh Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Aug 12 15:47:30 IST 2017