Gujarat High Court
Sandeep Vinodkumar Nathwani vs State Of Gujarat on 16 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/2033/2022 ORDER DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2033 of 2022
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SANDEEP VINODKUMAR NATHWANI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR.ISHAN JOSHI, ADVOCATE for SINGHI & CO(2725) for the Petitioner(s)
No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/09/2022
ORAL ORDER
1. Draft amendment is granted. To be carried out forthwith.
2. By way of this Petition under Article 226 of the Constitution Of India the Petitioner has prayed that the Petitioner be reinstated as an Assistant Professor (Class-III) after quashing and setting aside the order dated 11.11.2021 and grant benefits of continuity of service and back-wages.
3. By the amended petition the petitioner has also Page 1 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 challenged the communication dated 02.03.2022 by way of which his representation to be reinstated is rejected. The rejection is on the ground that the conviction in the pending Appeal before this Court is not stayed hence the Petitioner cannot be reinstated.
4. Facts in brief would indicate that the Petitioner was appointed as an Assistant Professor in the year 2010. By an order dated 11.11.2021 the Petitioner came to be removed from service on the basis of a conviction in a criminal case, bearing Sessions Case No.53 of 2018 decided on 18.06.2021.
5. It is the case of the Petitioner that a Criminal Appeal has been preferred by the Petitioner before this Court and the same is pending and by an order dated 23.12.2021 his application for suspension of sentence has been allowed. Page 2 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022
6. It is his case therefore that the Petitioner be reinstated as the sentence has been suspended.
7. The only legal submission made by Mr.Ishan Joshi appearing for the Petitioner is that the Order of removal has been passed on the basis of the GPSC Advice given by the GPSC on 27.10.2021. The Order of removal states that the order has been passed on the basis of the GPSC Advice which has been accepted by the Government. Though the order of removal states that the copy of the GPSC Advice is annexed to the order of removal, the copy thereof has not been served and even if it is the same is served with the copy of the order of penalty. The order of removal has to be set aside as the employee is entitled to receive a copy of the Advice before the order of penalty has been passed. This submission according to Mr.Joshi is based on a Page 3 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 decision of the Supreme Court in the case of the Supreme Court in the case of Union Of India vs. S.K.Kapoor reported in (2011) 4 SCC 589.
8. Mr.Joshi would also rely on the judgement of this Court in the case of B.J.Jadav Vs. State Of Gujarat reported in 2005 (3) GLR 2650.
9. Mr Joshi would also rely on an Oral Judgement dated 26/09/2017 passed in Special Civil Application No.4999 of 2010.
10. Mr.Kurven Desai learned AGP would submit that the GPSC Advice was served to the petitioner alongwith the order of penalty. He would rely on the advice annexed to the affidavit-in-reply and read the same, to which Mr.Joshi had reservations in as much as once the copy of the advice is not supplied it cannot be relied upon as a part of the affidavit-in-reply. Page 4 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022
11. Mr.Desai would submit that the Petitioner was convicted on 18.6.2021 and the only penalty that could and would have been imposed is that of dismissal. The non-service of the GPSC Advice would not have made any difference to the case of the petitioner as, even otherwise he would have been removed from service. Therefore no prejudice has been caused to the Petitioner if the Advice has not been served on the petitioner.
12. In support of his submissions Mr.Desai would rely on the decision in the case of Dharampal Satyapal Limited Versus Deputy Commissioner Of Central Excise, Gauhati and Others reported in (2015) 8 SCC 519. He would submit that there cannot be any strait jacket formula for application of principles of natural justice and in the event when it has not caused prejudice to the Petitioner it is not Page 5 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 necessary that the order of penalty be set aside only on the ground of non-service of the GPSC advice. He would rely on the concept of "useless formality theory".He would submit that on a factual basis if only one conclusion is possible then the Court need not issue a Writ merely because there is violation of the principles of natural justice. In support of this submission Mr.Desai would rely upon a decision in the case of M.C.Mehta vs. Union Of India and Ors. reported in (1999) 6 SCC 237.
13. Mr.Joshi in rejoinder would submit that under Article 320 of the Constitution of India, in disciplinary matters the consultation of the Public Service Commission is mandatory and the fact that the Commission is consulted on the issue of penalty irrespective of it causing prejudice it is the Constitutional mandate and Page 6 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 therefore there is no "useless formality theory"
concept that can be brought in and even in the case of M.C.Mehta (supra) in Para 23 had specifically observed that the Supreme Court does not express any opinion on the correctness of the "useless formality" theory as the facts of that case were showing admitted and undisputed facts.
14. What is evident on reading the order of penalty and the reason therefor indicates that the order was passed not after a disciplinary proceedings and a full fledged departmental inquiry held on the basis of a charge sheet and a inquiry report after leading evidence before him and then the consideration of the report by the disciplinary authority.
15. Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules provides a special procedure Page 7 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 in certain cases. Reading the Rule would indicates that where a penalty is to be imposed on a Government servant on the ground of the conduct which has led to his conviction on a criminal charge, the procedure under Rule 8 or 9 need not be followed. Rule 14 reads as under:
14. Special Procedure In Certain Cases :-
(1) Nothing contained in rules 8 or 9 shall apply-
(i) where a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, or
(iii) where the Government is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure.
(2) In cases to which the provision of sub-rule (1) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it Page 8 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 deems fit :
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.
16. Though the proviso of the Rule contemplates consultation with the Commission, it is needless to say that the advise of the Commission even if not supplied or if the consultation preceding that is undertaken, the only order that the Disciplinary Authority would pass is that of dismissal. Non-service of the advise therefore, would not render any prejudice to the petitioner warranting a ground to set the same aside on the ground of violation of principles of natural justice.
17. In the case of B.J.Jadav (supra) after referring to the judicial pronouncements the Court observed that after the amendment pursuant to the Forty- Page 9 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 Second Amendment Act where it is proposed after such inquiry to impose a penalty on the basis of evidence adduced before such inquiry and it shall not be necessary to give any such person an opportunity of making representation on the penalty proposed. The advice of the GPSC therefore would be evidence adduced during such inquiry and if such penalty is imposed on the basis of such evidence, it must be disclosed to the Government Servant before the same can be relied upon.
18. Reading Paras 18 and 19 of the decision in the case of B.J.Jadav (supra) which reads as under:
"18. From the above judicial pronouncement, it can be seen that though after the Constitution Forty-second Amendment, the delinquent Government servant no longer has a right to make a representation with respect to the proposed punishment, his right of representation before the Disciplinary Authority concludes Page 10 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 the issue of his guilt and imposes suitable punishment is not taken away. The right of the delinquent Government servant to make his representation with respect to the charges levelled against him as well as punishment to be imposed upon him as one single integrated exercise is still available and not altered in any manner by the constitutional changes in Article 311 of the Constitution. Prior to Forty-second Amendment in the Constitution, the delinquent Government servant had the right to make a representation on the proposed punishment before the Disciplinary Authority could conclude the issue of quantum of punishment also. After the Forty-second Amendment, this right has been taken away. Does that mean, however, that the Government can seek and take into account some other material not disclosed to the delinquent Government servant and decide the quantum of punishment to be imposed upon him? As noted earlier, Article 311(2) after its amendment pursuant to the Forty-second Amendment Act provides that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. The advice of the the GPSC therefore would be evidence adduced during such inquiry and if penalty is imposed on the basis of such evidence, it must be disclosed to the Government servant before the same can be relied upon.Page 11 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022
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19. As noted earlier, the Government under the statutory rules was under obligation to consult the GPSC and seek its advice before imposing any punishment upon the petitioner. Such an advice was in fact, sought from the GPSC. The Constitution requires that when advice of GPSC is disregarded by the Government, the same needs to be tabled before the State Legislature together with reasons for disagreeing with the advice of the GPSC. In the present case, not only was the advise taken into consideration, but the proposed punishment was enhanced pursuant to the advice of the GPSC. Thus, the advise of the GPSC formed a vital material which the Government took into consideration before imposing punishment on the petitioner. Under no circumstances, withholding of such an advice from the delinquent Government servant can be countenanced. The advice of the GPSC would carry formidable weight with the Government."
19. The above indicates that the question of the advice is important material when during the process of consultation with the Commission,the Commission is apprised of the Charge;the Inquiry Officer's report, the findings thereon and the view of the Disciplinary Authority after taking into consideration its stand on the basis of Page 12 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 the response of the delinquent on his views called by the Disciplinary Authority on the notice asking for his views on supply of the Inquiry Officer's report. This entire material is then is placed before the Commission with the view of the Disciplinary Authority on the question of penalty and the Commission is consulted. The "consultation" here is based on the entire materials on the disciplinary proceedings and material such as evidence adduced before the Inquiry Officer. Based on appreciation of this material would the Commission opine on the quantum of penalty on the assessment of evidence in light of the charges.
20. Here is a case where a delinquent does not undergo the rigmarole of inquiry. There is a conviction and the natural consequence thereof is the procedure of imposing penalties under Page 13 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 Rule 9 of the Gujarat Civil Services (Discipline And Appeal) Rules, 1971 is bypassed. There is no other material before the Disciplinary Authority except the judgement of the Criminal Court convicting the Petitioner. The conviction therefore would result in dispensing with the procedure of complying with the principles of natural justice envisaged and inbuilt in departmental proceedings.
21. The GPSC in the opinion of this Court need not even be consulted or even if consulted would only consider the stand of the disciplinary authority that the delinquent was convicted, the judgement is on record and then therefore the only penalty is that of dismissal. There is no debate or "decision-making" exercise except that of the a empty formality of bringing it to the notice of the GPSC as a mechanical exercise and Page 14 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 therefore consulting the GPSC in matters where there is conviction and no disciplinary proceedings would not make any difference.
22. The decision in the case of M.C.Mehta (supra) paras 15 to 21 read as under:
"15. It is true that, whenever there is a clear violation of principles of natural justice, the courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this court because the orders of the department were consequential to orders of this court. Question, however, is whether the court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise discretion on facts or on the ground that no de facto prejudice is established. On the facts of this case, can this court not take into consideration the fact that any such declaration regarding the 10.3.1999 order will restore an earlier order, dated 30.7.1997 in favour of Bharat Petroleum Corporation which has also been passed without notice to HPCL and that if the order, dated 10.3.1999 is set aside as being in breach of natural justice, Bharat Petroleum will be getting two plots rather than one for which it has no right after the passing of the later order of this court, dated 7.4.98 ?Page 15 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022
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16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the court's discretion to refuse even though rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party.
17. We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Gadde Venkateswara Rao v. Government of Andhra Pradesh and others 1966 (2) SCR
172. There the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25.8.1960 to locate a primary health centre at Dharmajigudem. Later, it passed another resolution on 29.5.1961 to locate it at Lingapalem. On a representation by villagers of Dharmajigudem, Government passed orders on 7.3.1962 setting aside the second resolution, dated 29.5.1961 and thereby restoring the earlier resolution, dated 25.8.1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders, dated 7.3.62, no notice was given to the Panchayat Samithi. This court traced the said order of the Government, dated 7.3.1962 to section 62 of the Act and if that were so, notice to the Samithi under section 62(1) was mandatory. Later, upon a review petition being filed, Government passed another order on 18.4.1963 cancelling its order, dated 7.3.1962 and accepting the Page 16 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem in the High Court. On appeal by the said villagers to this court, it was held that the later order of the Government, dated 18.4.1963 suffered from two defects : it was issued by Government without prior show cause notice to the villagers or Dharmajigudem and Government had no power of review in respect of Government orders passed under section 62(1). But that there were other facts which disentitled the quashing of the order, dated 18.4.63 even though it was passed in breach of principles of natural justice. This court noticed that the setting aside of the later order, dated 18.4.1963 would restore the earlier order of Government, dated 7.3.62 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution, dated 29.5.1961 passed by the Panchayat Samithi. This court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, j., as he then was, observed (page 189) as follows :
"Both the orders of the Government, namely, the order, dated 7 March, 1962, and that of, dated 18 April, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power Page 17 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 under section 72 of the Act to review an order made under section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village."
His Lordship concluded as follows :
" In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government, dated 18 April, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
The above case is clear authority for the proposition that it is not always necessary for the court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order, if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law. Page 18 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022
18. We would next refer to another case, where, though there was no breach of principles of natural justice, this court held that interference was not necessary, if the result of interference would be the restoration of another order which was not legal. In Mohammad Swalleh and others v. Third Additional District Judge, Meerut, and another 1988 (1) SCC 40, which arose under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of section 43(2)(rr) of the Act. The District Court entertained an appeal by the landlord and allowed the landlord's appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. This was a correct plea. But the High Court refused to interfere. On further appeal by the tenant, this court accepted that though no appeal lay to the District Court, the refusal by the High Court to set aside the order of the District Judge was correct as that would have restored the order of the prescribed authority, which was illegal.
19. Learned senior counsel for Bharat Petroleum contended that once natural justice was violated, the court was bound to strike down the orders and there was no discretion to refuse relief and no other prejudice need be proved.
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20. It is true that in Ridge v. Baldwin [1964] A.C. 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this court in several cases, but we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S. L. Kapoor v. Jagmohan 1980 (4) SCC
379. After stating (page 395) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification (page 395) as follows :
"As we said earlier, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs."
21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice."
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23. What is therefore evident is the because the Petitioner has been convicted the only penalty that can be imposed is that of removal and therefore there is no "exchange of views" or "consultation" on the quantum of penalty between the disciplinary authority and the Commission as except the judgement of conviction there is no other material which is perused.
24. There is no prejudice therefore caused to such a delinquent whose penalty order is based upon an outcome of a criminal conviction because there is no "other view" on a the quantum of penalty except removal or dismissal and therefore following the principles of natural justice a "useless formality". The decision otherwise also would be the same irrespective of the Page 21 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 consultation with the Commission.
25. In the case of S.K.Kapoor (supra) the Supreme Court held as under:
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee.
However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N.Narula vs. Union of India."
26. On this ground therefore the submission of the Learned Advocate for the Petitioner that the non- Page 22 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022 C/SCA/2033/2022 ORDER DATED: 16/09/2022 service of the advice of the GPSC in accordance with the law laid down in the case of S.K.Kapoor (supra) and B.J.Jadav (supra) are clearly distinguishable as in those cases the exercise of imposing a penalty was pursuant to departmental proceedings and not merely based on the sole material of an order of conviction. The law laid down therein therefore would not apply to the facts of the present case.
27. The Petition is therefore dismissed.
(BIREN VAISHNAV, J) ANKIT SHAH Page 23 of 23 Downloaded on : Sat Sep 17 20:31:32 IST 2022