Gujarat High Court
Sadevant Manilal Brahmbhatt vs State Of Gujarat & 2 on 24 April, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/492/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 492 of 2013
In SPECIAL CIVIL APPLICATION NO. 2461 of 2001
With
CIVIL APPLICATION NO. 3882 of 2013
In
LETTERS PATENT APPEAL NO. 492 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SADEVANT MANILAL BRAHMBHATT....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Appellant(s) No. 1
Page 1 of 15
C/LPA/492/2013 JUDGMENT
MR NJ SHAH AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 24/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. By way of this appeal, the appellant has challenged the judgment and order of the learned Single Judge dated 6.11.2012 passed in Special Civil Application No. 2461 of 2001, whereby, the petition preferred by the appellant has been dismissed.
2. The genesis of the dispute arises and reverted back in the year 1996 when the appellant was placed under suspension. The department enquiry was conducted against him. In the departmental enquiry, the Inquiry Officer who submitted his report holding the appellant not guilty of the sole charge as the same having been not proved. The Disciplinary Authority, after one year disagreed with the report of the Inquiry Officer, and that too, after the appellant had retired from service, which was communicated Page 2 of 15 C/LPA/492/2013 JUDGMENT to the appellant, vide order dated 24.8.1998 Annexure-F to the petition, directing the appellant to show cause as the Disciplinary Authority had disagreed with the Inquiry Officer's report as the charge levelled against the appellant was partially proved. There is a mistake in the order itself as the case was of single charge and the Deputy Secretary, in his order wanted to see that the appellant is harassed and deprived of his legal dues after his retirement. The appellant has immediately filed his reply on 5.9.1998 and this very officer, after a period of more than two years, more particularly, on 31.1.2000 just by a cryptic order held him guilty but the finding of the Inquiry Officer were verbatim from para 4 to 6 and then again in internal page9, again by a cryptic order held that the charge is partly proved. In operative portion held that as the appellant has already retired from service and the charge was not grave, he cannot be punished under sec. 189(A) and, therefore, he dropped the inquiry proceedings.
3. Thereafter, again a notice is issued by the very same officer dated 31.8.2000 directing the appellant to show cause as to why the period of suspension should not be considered as such. He replied to the same immediately on 28.9.2000 and without Page 3 of 15 C/LPA/492/2013 JUDGMENT considering any of the authoritative pronouncements relied by the appellant in para-9.1, again passed a cryptic order on 6.2.2001 taking a stand that suspension is regulated by section 152(5) of the Bombay Civil Services Rules, 1959 (for short 'The Rules'), and passed an order holding that, as he was held guilty in the disciplinary proceedings, his period of suspension cannot be regularised.
4. Mr. N.J. Shah learned AGP relied on affidavit-in-reply and the judgment of the learned Single Judge interpreting the decision of this court in the case of K.D. Desai vs. High Court of Gujarat, reported in 2009(3) GLH 631, has submitted that the finding of the disciplinary authority that he was guilty, the period of suspension cannot be regularised and has rightly not been treated the suspension period as spent on duty. Mr. Shah has extensively taken us to the provisions of section 152 of the Rules. Mr. Shah has urged that the decision in the of K.D. Desai vs. High Court of Gujarat (supra), on which reliance is placed by the learned Single Judge would apply to the present case and the appeal requires to be dismissed. It is not find favour with us. The ratio laid down in the said case is not applicable to the facts of Page 4 of 15 C/LPA/492/2013 JUDGMENT this case for the reason that once the entire disciplinary proceeding is dropped, there is nothing remains on the basis of which the salary during the suspension period could be curtailed or stopped. In the said case, the charges were not proved on insufficiency of evidence and benefit of doubt was given to the delinquent. In this case, the respondents have dropped the enquiry, and therefore, they could have counted the period of suspension as the period spent on duty.
5. The issue arises is whether this Court can have a judicial review of the disciplinary proceedings held against the appellant, and if the answer is yes, to what extent. The answer to this issue is readily found in the decision of the Hon'ble Apex Court in the case of Roop Singh Negi vs. Punjab National Bank & Ors., reported in (2009)2 SCC 570, wherein, in para- 15, the Hon'ble Apex Court has held as under:
"15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have Page 5 of 15 C/LPA/492/2013 JUDGMENT been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."
6. The contours of service jurisprudence will permit us to delve into the issue whether the quasi-judicial authority had passed the order with full evidence and application of mind and whether the order though was lengthy, was a reasoned order. The length cannot be substituted by reasons.
7. On this touch-stone, when the issue is considered, the disciplinary authority had taken undue time to decide and differ with the inquiry officer's well reasoned order. The reasons given by the disciplinary authority does not show that he had delved into the material which was there and to a subjective finding of fact that the charge levelled against the present appellant was proved. This is not a case where he hold that the charge is dropped as not proved. The inquiry under section 189-A of the Rules, the case was not such where major penalty could be inflicted. We have gone through the order passed by the Page 6 of 15 C/LPA/492/2013 JUDGMENT disciplinary authority where he has said that the charge was partly proved. We have examined the order as well as inquiry report. He has merely reported in the inquiry report in one line that the charge was proved without assigning any reasons as to how the charge was proved or partially proved. Therefore, once holding him guilty, the subsequent order cannot be sustained with the aid of section 152(5) of the Rules. However, we also propose to examine section 152(5) of the Rules because it is relating to the suspension period and regularisation. Section 152 of the Bombay Civil Services Rules, reads as under:
"152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to or the reinstatement shall consider and make a specific order.-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub-rule(1) is of opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly Page 7 of 15 C/LPA/492/2013 JUDGMENT unjustified the government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.
(3) In other case, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.
Provided that the payment of allowances under clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose."
8. On going through the said provision, one thing emerges that what would have been the punishment which would have been imposed on the appellant if the disciplinary authority did not agree with the report of the Inquiry Officer. What would have been consequence of the order once he held that the this is not a Page 8 of 15 C/LPA/492/2013 JUDGMENT case of major penalty, and therefore, dropped the proceedings. The consequence would have been that had the appellant been in service, it would have been a case of minor penalty and that being so, could the Government invoke section 152 of the Rules, the answer is no.
9. While discussing the aforesaid issue, three things emerge; firstly, the decision on which the learned Single Judge has arrived at the conclusion holding that the petition has to be dismissed cannot enure for the benefit of the respondent because the departmental enquiry in this case was based on no evidence and the disciplinary authority has erred in recording finding of guilt without any material. We have held that the disciplinary authority was over biased, and; secondly, that when the enquiry officer's report was not accepted without any reasons and when we have held it edifice false, can it be said that the period of suspension has to be considered as period of suspension on the touch-stone of para-18 of the decision in the case of K.D. Desai vs. High Court of Gujarat (supra). The said decision cannot be pressed into service because in this case, it cannot be said that the charges were not proved on account of inefficiency of evidence or benefit of doubt. The Disciplinary Authority without assigning any reasons passed the said order even after Page 9 of 15 C/LPA/492/2013 JUDGMENT the enquiry was dropped. He could have inflicted punishment, if the Disciplinary Authority after disagreeing with the Inquiry Officer's report, could have deducted the amount of pension which would have been in the realm of punishment, and then, it would have been justified not to consider the period of suspension under section 152(5) of the Rules. In this case, the third issue is section 152(5) could not have been invoked, and therefore, error apparent on the face of the record which calls interference even in the limited jurisdictional spear of this Court in a writ petition challenging the disciplinary action. Hence, in view of the decision in the case of Roop Singh Negi vs. Punjab National Bank & Ors., (supra), we cannot uphold the judgment of the learned Single Judge.
WHETHER THE SUSPENSION ORDER LAPSES WITH FINAL ORDER:
10. It is a law laid down in the case of Om Prakash Gupta v. State of UP, reported in AIR 1955 SC 600 that the order suspension against a civil servant is an interim order and when the final a order is passed against a civil servant, the order of suspension lapses with the passing of the final order and it is very clearly held in the case of H.L. Mehra v. Union of India, reported in AIR 1974 SC 1281 Page 10 of 15 C/LPA/492/2013 JUDGMENT that the order of suspension which would lapse does not revive after the dismissal order is set aside by a court. Therefore, the next question which now emerges is that the disciplinary authority himself has dropped the enquiry, just by observing that he has already retired, no major penalty could be imposed upon him. Rule 189 of Bombay Civil Services Rules, reads as under:
"189. Good conduct is an implied condition of every grant pension. Government may withhold or withdraw a pension or any part of it is the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed."
[189-A. The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including services rendered upon re-employment after retirement.] Page 11 of 15 C/LPA/492/2013 JUDGMENT [189-B. (1) Where any departmental or judicial proceeding is instituted under Rule 189-A, or where a departmental proceeding is continued under clause (a) of the proviso, there to against compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under
suspension on the date of retirement up to the date immediately proceeding the date on which he was placed under suspension; but no gratuity or death- cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.
(2) Payment of provisional pension made under clause (i) shall be adjusted against the final retirement benefits sanctioned to such Government servant upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than provisional pension or the pension is reduced or withheld either permanently or for a specified period.]
11. Therefore, the issue which emerges before us is what is the right of the employee when Page 12 of 15 C/LPA/492/2013 JUDGMENT the penalty itself is set aside. In this case, there is no penalty inflicted, secondly, the charges were dropped not on technical ground as in the case of K.D. Desai vs. High Court of Gujarat (supra). Right for salary during suspension when penalty is set aside. When the order of dismissal is set aside by the court, the civil servant is entitled to his salary as if he was on duty during the period of suspension and he is entitled to claim arrears of salary minus the subsistence allowance already drawn. It may be open to the authorities to deny him full salary during the period of suspension when the order imposing the penalty is set aside by the higher departmental authorities after setting aside an order of dismissal, removal or suspension. But the said rules do not apply when an order in the disciplinary proceedings is quashed by the court. If a civil servant had been discharged by the criminal court and he is reinstated in the service consequently, he is entitled to full salary and allowance for the period during which he was kept under suspension. We are supported in our view by the decision of the Hon'ble Apex Court in the case of Devendra Pratap v. State of UP, reported in AIR 1962 SC 1334, and therefore, the order of the learned Single Judge holding that as his case is covered by the decision in the case of K.D. Desai vs. High Court of Page 13 of 15 C/LPA/492/2013 JUDGMENT Gujarat (supra), cannot be sustained on the touch-stone of the principle enunciated by the Hon'ble Apex Court and on interpretation of the Rules themselves and the fact that the disciplinary action against the appellant is quashed.
12. Therefore, even on the sequence of events, the order holding that the suspension period has to be considered as period of suspension, cannot be sustained. It goes without saying that suspension at any stage of life casts a stigma not only against the employee alone but against the family, and in catena of decisions, it has been held that the employer/Government should not pass the order of suspension unless there are serious charges against the employee. In this case, the disciplinary authority held that the charge was not that serious to inflict major penalty of complete forfeiture of pension. Hence, the present appeal deserves to be allowed.
13. In the result, this appeal is allowed. The impugned judgment and order dated 6.11.2012 passed in Special Civil Application No. 2461/2001 is quashed and set aside. The order dated 6.2.2001 passed by the Government is also quashed and set aside. All consequential benefits shall be calculated within a period of three months from today.
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14. As the main appeal is allowed, Civil
Application No. 3882/13 stands disposed of
accordingly.
(V.M.SAHAI, J.) (K.J.THAKER, J)
mandora
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