Gujarat High Court
Natvarlal Motilal Chavda vs State Of Gujarat on 1 May, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/185/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 185 of 2017
In SPECIAL CIVIL APPLICATION NO. 14975 of 2005
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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NATVARLAL MOTILAL CHAVDA
Versus
STATE OF GUJARAT
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Appearance:
MR GM JOSHI(370) for the PETITIONER(s) No. 1
MS SANGEETA VISHEN, ASST GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 01/05/2018
CAV JUDGMENT
Page 1 of 49
C/LPA/185/2017 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. This Letters Patent Appeal arises out of an oral judgement dated 05.10.2016 passed by the learned Single Judge. The appellant was the original petitioner who filed the writ petition before the learned Single Judge being Special Civil Application No. 14975 of 2005 challenging an order of imposition of penalty pursuant to departmental proceedings held against him. The learned Single Judge while quashing the order of penalty, remitted the matter to the State Government for fresh consideration under Rule 10(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. According to the learned Single Judge, the disciplinary authority ought to have given reasons for disagreement so as to give an opportunity to the petitioner to make good his case on the Inquiry Officer's findings. A further direction was issued to the State Government to look into the report of the Inquiry Officer and assign cogent and appropriate reasons for disagreement, if any, with the report of the Inquiry Officer.
2. The undisputed facts which give rise to the present appeal, as recorded in the impugned judgment passed by the learned Single Judge, are as under:
2.1 The writ applicant was directly recruited as a Mamlatdar in 1977 and then promoted as the Deputy Collector in 1983 in the Class-I cadre of the Gujarat Administrative Service (G.A.S.). Thereafter, he was promoted as the Additional Collector in 1995 and transferred and posted as the Secretary, Slums and Clearance Board on 20th February 2003. On 22nd September 2003, the State Government Page 2 of 49 C/LPA/185/2017 CAV JUDGMENT forwarded a proposal to the Union Public Service Commission (U.P.S.C.) and the Department of Personnel and Training, Government of India along with the list of prospective candidates for the selection and appointment in the I.A.S. cadre and that list included at Serial No.6, the name of the writ applicant herein. By Notification dated 15th June 2004 of the Government of India and its Department of Personnel and Training (GOI, for short), ten members of the State Civil Service of Gujarat were appointed in the Indian Administrative Service against the vacancies of the year 2003, on probation with immediate effect, until further orders, under Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 read with Sub-Regulation (1) of Regulation 9 of the Indian Administrative Service (Appointment and Promotion) Regulations 1955 and Rule 3 of the Indian Administrative Service (Probation) Rules 1954.
That particular list omitted the name of the writ applicant even though by the Notification of the same date i.e. 15th June 2014, the select-list of eleven State Civil Service Officers, including the writ applicant, was notified. That select-list was approved by the U.P.S.C. and prepared by the selection committee in its meeting held on 18th November 2003.
2.2 Thus, it appears from the above that the name of the writ applicant herein was duly forwarded by the State Government for induction in the I.A.S. cadre. The U.P.S.C. considered the name and selected eleven persons from the State Civil Service Officers. In this list, vide the Notification dated 15th June 2004, the name of the writ applicant was included as the Page 3 of 49 C/LPA/185/2017 CAV JUDGMENT U.P.S.C. thought him fit for appointment in the I.A.S. cadre. However, in another Notification of the even date, the name of the writ applicant was excluded from appointment.
2.3 The reason assigned was that the State Government had informed the U.P.S.C. vide its letter dated 18th December 2003 that it had decided to withdraw the integrity certificate in respect of the writ applicant by another letter dated 27th May 2004. The State Government also informed the U.P.S.C. that a chargesheet was issued to the writ applicant. On that basis, the U.P.S.C. sent a letter dated 11th June 2004 to the Central Government pointing out that it had approved the recommendations of the selection committee meeting held on 18th November 2003 with the modification that the inclusion of the name of the writ applicant in the select-list would be provisional and subject to the clearance of the disciplinary proceedings pending against him and grant of integrity certificate by the State Government.
2.4 The writ applicant herein challenged his exclusion by approaching the Central Administrative Tribunal in the form of the Original Application filed under Section 19 of the Administrative Tribunals Act, 1985. Having taken note of the aforesaid developments, the Tribunal did not interfere with the decision of the State Government and the only direction issued was to expeditiously conclude the two inquiries proceedings initiated against the writ applicant.
2.5 Feeling dissatisfied with the order passed by the Central Page 4 of 49 C/LPA/185/2017 CAV JUDGMENT Administrative Tribunal, the writ applicant herein challenged the same before this Court by way of the Special Civil Application No.2210 of 2005.
2.6 A Division Bench of this Court, vide judgment and order dated 18th December 2012, partly allowed the writ application. The Division Bench thought fit to quash and set aside the decision of the Central Administrative Tribunal to the extent it held that the inclusion of the writ applicants name in the select-list was provisional in view of the later developments. The State Government was directed to pay to the writ applicant compensatory cost of Rs.1,00,000/- (Rupees One Lac only) with liberty to the writ applicant to claim such further benefits and reliefs, as may be found to be just on the basis of result of the present writ application. The Division Bench also observed that it would be open for the writ applicant to claim such benefits as consequential relief by moving an amendment in the present writ application or file a fresh petition.
2.7 The State Government, being dissatisfied with the judgment and order passed by the Division Bench of this Court, preferred the Special Leave Petition (Civil) No.27982 of 2013 before the Supreme Court. The Supreme Court, vide its judgment and order dated 12th August 2014, disposed of the Special Leave Petition in the following terms:
"Having regard to the aforesaid legal position emerging from the reading of the relevant Regulations, the High Court was of the opinion that promotion of respondent no. 1 should not be withheld merely because of the Page 5 of 49 C/LPA/185/2017 CAV JUDGMENT reason that much after the meeting of the Selection Committee, a charge-sheet was served upon him. Position in this respect is summed up by the Court in the following manner:-
As seen above, admittedly, the integrity certificate in respect of the petitioner was not withheld, but it was sought to be withdrawn after one month of the meeting of the Selection Committee on 18.11.2003, and the charge-sheet having been issued to the petitioner as late as on 25.5.2004, inclusion of the petitioner in the list prepared by the Committee could not legally be treated as provisional under the proviso to Regulation 5(5). Thus, the intimation by the State Government for withdrawing the integrity certificate could not legally result, at the first stage, into treatment or inclusion of the petitioners name in the list as provisional. The second stage for deeming inclusion of the petitioners name to be provisional came under Regulation 7(3) only after 11.6.2004 when the UPSC approved recommendation of the Selection Committee with the modification that inclusion of the petitioner in the select list shall be provisional. Assuming that all the formalities and procedure prescribed under Regulations 6, 6-A and 7(2) were duly complied with by the UPSC, the name of the petitioner in the select list could be deemed to be provisional only if, after inclusion of his name in the select list, a chargesheet were issued. That being not the case and charge-sheet having already been issued on 25.5.2004 prior to approval and finalization of the select list on 11.6.2004, the provisions of Regulation 7(3) could not be pressed into service to deny to the petitioner appointment on the promotional post under the mandatory provisions of Regulation 9(1). It is not the case of the respondent that the Central Government had exercised its powers under Regulation 10 and the mandatory provisions for consulting the UPSC were complied with. In that view of the matter, it would clearly appear that the State Government had made an imperfect and preemptive attempt at provisionalising the name of the petitioner, after his selection by the Selection Committee consisting, inter alia, of three of very senior civil Page 6 of 49 C/LPA/185/2017 CAV JUDGMENT servants, including the Chief Secretary, and examination by the Committee in particular of the aspect of integrity of the petitioner as required by GOIs decision under Regulation 3. The notifications dated 15.6.2004 notifying the select list and making appointments and the subsequent corrigendum dated 16/19.7.2004 also strengthen the inference that initial withdrawal of the integrity certificate, issuance of charge-sheet dated 25.5.2004 and intimation thereof on 27.5.2004 were aimed at excluding the petitioner from the list of appointees, even as it is not established that the charges leveled against the petitioner had a bearing on the suitability of the petitioner for promotion and the Central Government was satisfied that investigation into the charges was essential. In fact, the State Government has sought to prop up its objections to promotion of the petitioner by confusing withholding of the integrity certificate with its withdrawal, on the basis of something adverse against him coming to notice of the Government after recommendation of his name by the Selection Committee; and compliance with Explanation-II to proviso to Regulation 5(5) is not even pleaded. In any case, the notification dated 15.6.2004 under Regulation 7(3) notifying that the petitioner was included in the final select list approved by the UPSC could not have legally been made provisional under Regulation 7(3) as discussed hereinabove and the conditions contained in Regulation 7(4) could not legally be imposed as was sought to be done by the corrigendum dated 16/19.7.2004. Therefore, the conclusion arrived at in the impugned order of CAT that &the latter developments could have been taken into consideration for making his name provisional and there was an administrative error in including the name of the applicant in the select list without showing the word provisional was superficial, erroneous and illegal and hence required to be set aside.
It is in the aforesaid circumstances that the High Court took the view that the decision of the petitioner herein withdrawing the integrity certificate and that of the Page 7 of 49 C/LPA/185/2017 CAV JUDGMENT UPSC which was accepted by the Union of India in making the promotion of respondent no. 1 herein provisional was bad in law and not permissible under the extant regulations.
Even while setting aside the decision of the Central Administrative Tribunal, in the writ petition which is filed by respondent no. 1 against the penalty imposed pursuant to the departmental proceedings held against him, the High Court has clearly stated that respondent no. 1 herein would claim such benefits as consequential relief only in case he is exonerated fully in the departmental inquiry. Thus, the effect of the aforesaid direction giving him the relief only in case he is exonerated under the departmental inquiry would be that respondent no. 1 would be entitled to promotion, and the consequential benefit in case the penalty imposed against him stands. In view of that, it may not be necessary to entertain this petition in exercise of our jurisdiction under Article 136 of the Constitution of India. We may record at this stage that respondent no. 1 had filed special leave petition against the aforesaid judgment apportioning the relief portion. Respondent no. 1 wanted to get the benefit of promotion irrespective of the outcome of the writ petition pursuant to the departmental proceedings against him. That SLP has been dismissed by this Court. However, learned counsel for the petitioner has two apprehensions in mind. In the first instance, it is argued that in the writ petition which is filed by respondent no. 1 challenging the imposition of penalty, the observations made by the High Court in the impugned judgment may not come in the way of the petitioner. It is further argued that, according to the petitioner, the High Court has not dealt with the regulations appropriately and the interpretation given by the regulations is incorrect and the impugned judgment may not be cited in future. Insofar as first submission is concerned, Mr. Sanjoy Ghose, learned counsel for respondent no. 1 fairly submits (there cannot be any exception thereto even otherwise) that the writ petition which is filed by respondent no. 1 against the departmental proceedings, has to be dealt with by the High Court on its own merits Page 8 of 49 C/LPA/185/2017 CAV JUDGMENT uninfluenced by the observations made in the impugned judgment as the subject matter of the impugned judgment was entirely different.
Insofar as second aspect is concerned, Mr. Sanjoy Ghose, learned counsel again stated that he has no objection if the question of law, that is, the question relating to the interpretation of the regulations, is kept open. It is ordered accordingly.
As respondent no. 1 has already retired from service, we request the High Court to decide the writ petition filed by respondent no. 1 as expeditiously as possible preferably within six months."
3. As is evident from the above stated facts, the appellant's chance of being nominated to the Indian Administrative Service cadre got marred as a result of the withdrawing of integrity certificate. Such integrity certificate was withdrawn as a result of a charge-sheet dated 25.05.2004, which was served on the petitioner levelling seven charges against him. The learned Single Judge in the order impugned herein has reproduced the entire charge-sheet and therefore the same is not again reproduced here so as to avoid repetition.
3.1 The appellant, in detail, filed a response to the charge- sheet on 19.06.2004. After an appropriate departmental inquiry, the Inquiry Officer by a letter dated 28.03.2005 furnished the findings of the Inquiry Officer to the appellant and invited the appellant's representation to such Inquiry Officer's report. The final conclusions drawn by the Inquiry Officer in his inquiry report are as under:
Charge-1:
The charge for first bill remains unproven. The charge for second bill is partly proved.Page 9 of 49 C/LPA/185/2017 CAV JUDGMENT
The charge for third bill is partly proved. The charge for fourth bill remains unproven. The charge for fifth bill remains unproven.
Charge-2:
Overall, out of 9 clauses, in 3 clauses, the charge is proved and in 6 clauses, charge is not proved.
Charge-3 : The charge is partly proved.
Charge-4:
He was absent in his office till 4.00 p.m. on 3-7-01, the charge for this is proved and remaining charges remain unproved.
Charge-5 : The charge is partly proved.
Charge-6 : The charge is partly proved.
Charge-7: The charge is partly proved.
4. Conscious of the fact that while sitting in an intra-court Appeal over an order of the Learned Single Judge passed in exercise of jurisdiction under Article 226 of the Constitution of India, we ought to be slow in re-appreciating the findings of the Inquiry Officer, it would be in the fitness of the things to briefly appreciate the charge and the related findings to such a charge in the Inquiry Officer's report.
4.1 CHARGE - I - (1) This charge pertains to five bills in respect of filling diesel in the vehicle of the Project Page 10 of 49 C/LPA/185/2017 CAV JUDGMENT Administrator, Rajpipla, the post which the appellant was holding. According to the imputation, it was the case of the department that the appellant had shown lack of integrity and dereliction in performance of duty, inasmuch as he had sanctioned bills relating to filling of diesel at the places where the vehicle was not taken. The department, therefore, was of the opinion that the appellant had committed embezzlement of government funds. Perusal of the Inquiry Officer's report would suggest that the Inquiry Officer as per the charge-sheet had suggested such improprieties in five bills. The bills were relating to :
(a) Kabir Petroleum, Rajpardi dated 25.04.2001 for an amount of Rs.563.18. According to the department, on the basis of the log book, it was their case that on 25.04.2001, there was no entry of any travel by such vehicle. The car, therefore, had not gone to Rajpardi.
The driver Shri Tadvi was examined. Based on the evidence on record, the meter reading on 24.04.2001 was 1648 and on 26.04.2001, it remained the same. Based on the appellant's diary, it was found that on 25.04.2001, he was at Rajpipla. Therefore, the diesel bill worth Rs.563.18 was not genuine. After an extensive appreciation of evidence, when each bill was scrutinized on 5 issues, the Inquiry Officer found that as far as the genuineness of the bill is concerned based on the meter reading, it was found that in fact no diesel could have been filled in as the car did not move out. The Inquiry Officer held the charge to be not proved.
(b) The bill dated 22.07.2001 from Vijay Automobiles, Gandhinagar for 26 liters of diesel worth Rs.501/-. Here Page 11 of 49 C/LPA/185/2017 CAV JUDGMENT too, on the basis of the evidence i.e. the log book it was the case of the department that the car had travelled to Umarva, Rajuvadia, Sisoda and back to Rajpipla for 67 kms. Presumption of the department, therefore, was that since the car had not gone to Gandhinagar, the bill from such a petrol outlet was fictitious. Based on the evidence of one Shri Rohit, the Inquiry Officer held that the car had not travelled to Gandhinagar. The Inquiry Officer referred to the explanation rendered by the appellant. According to the appellant, on 21.07.2001 at 10 in the night, he had left from Gandhinagar and reached Rajpipla at 5 in the morning. The diesel fill was done late on the night of 21.07.2001. Hence, the date on the bill of 22.07.2001. According to the appellant, there was some mistake in writing the timing on the bill. The Inquiry Officer brushed aside this defence on an irrelevant account suggesting that though the time to travel from Gandhinagar to Rajpipla would be seven hours, the traffic at night would make such travel possible within a shorter time of five hours and therefore it was difficult to believe the defence of the appellant that the diesel was filled from Gandhinagar at 10 at night and that the slip in the writing of timing of 10 pm to 5 pm instead of 5 pm (1700) to 10 pm (2200) could not be believed. According to the Inquiry Officer, though there was no ill-intention for raising such a bill, the Inquiry Officer held the charge to be partly proved.
(c) The third bill pertained to Shraddha Petroleum, Kapurai dated 22.10.2001. According to this charge, a bill was raised for 11 liters of diesel for Rs. 214.28. The Page 12 of 49 C/LPA/185/2017 CAV JUDGMENT case of the department was that the log book suggested that on 22.10.2001 there was an entry of 8 kms of travel. The car had not gone to Kapurai. According to the driver, he had no information that the entry in the log book was incorrect. The explanation of the appellant was that since the two cars of the Commissioner had met with an accident, he had utilised a jeep. The Ambassador car in question was sent to Gandhinagar for the use of the officers who had come from Delhi. The driver on 22.10.2001 had brought back the car from Gandhinagar to Rajpipla and it was then that 11 liters of diesel was filled in. The date in the log book was entered as 19.10.2001 instead of 22.10.2001. The Inquiry Officer surprisingly reasoned that since there was no charge of the car having gone from Rajpipla to Gandhinagar, the explanation that it returned from Gandhinagar to Rajpipla and therefore there was no case of embezzlement cannot be believed. After a minute scrutiny of such bill, as done in other cases, the Inquiry Officer held the charge on the third bill to be partly proved.
(d) This charge was in respect of a bill dated 05.11.2001 of Yogeshwar Petroleum. According to the department, on 05.11.2001 as in the previous charge, the car had not travelled outside Rajpipla. The appellant, in his defence, stated that on 04.11.2001 he had left for Gandhinagar and on 05.11.2001, he had filled diesel on the Baroda Highway but there was an omission of writing the date. On the basis of the evidence, the Inquiry Officer held that the intention to write a wrong date was proved and Page 13 of 49 C/LPA/185/2017 CAV JUDGMENT that it was difficult to believe that if the car had gone from Rajpipla to Gandhinagar on 02.11.2001 and it did return on 03.11.2001 and went back on 05.11.2001 was an argument difficult to digest. The charge of the fourth bill was held to be not proved on account of the fact that the mistake attributed in writing the date in the log book was genuine.
(e) The charge of this bill was also not proved. It pertained to a bill dated 02.12.2001 of Shraddha Petroleum, Kapurai for 10 liters worth Rs. 199.92/-. Based on the same set of evidence, the charge was held to be not proved.
4.2 The disciplinary authority by a communication dated 28.03.2005 prior to the passing of the penalty order impugned in the petition recorded its reasons for disagreement on certain bills with regard to charge - I. With regard to bill (b) which was in respect of Vijay Automobiles for Rs.501/-, the disciplinary authority merely in recording its disagreement did not give out any new reason but suggested that since the car was with Shri Chavda - the appellant, the action of raising a false bill itself was a grave misconduct and therefore the gravity of the charge was serious and could not be held to be partly proved. With regard to bill (d) dated 05.11.2001 for Rs.199/- Yogeshwar Petroleum, when it was the defence of the appellant that the entry of the dates in the log book was by mistake, the only cause of disagreement that the disciplinary authority recorded was that since it was an admission, the charge was serious and ought to be held as proved. No special reason for disagreement was recorded by Page 14 of 49 C/LPA/185/2017 CAV JUDGMENT the disciplinary authority. With regard to bill (e) dated 02.12.2001 of Shraddha Petroleum for Rs. 199.92, the disciplinary authority recorded a one line disagreement only on the basis of the entry in the log book and no other new ground was recorded. Based on such disagreement, as far as Charge - I is concerned, the disagreement was recorded.
4.3 Charge - II - This charge was with respect to the capacity of the diesel tank of the official car. This was based on the statement of the driver Shri Tadvi dated 23 & 24th March 2004. According to the imputation, the charge was that the capacity of the diesel tank was 35 litres. On a holiday, the driver would drop the vehicle at the residence of the appellant. The car would then be collected on the first working day over the weekend. The driver noticed difference in the meter reading. Normally, the appellant on Saturday and Sunday would visit Gandhinagar. The driver further stated that he would keep a rough note in his diary whereas the log book of the car was written by the Assistant Project Officer Shri Rohit. Shri Rohit in his statement suggested that the discrepancies noted in the log book were as under:
(a) For the period from 06.08.2001 to 17.08.2001, the car had travelled for 664 kms and no diesel was filled in during that period.
(b) For the period from 20.10.2001 to 31.10.2001 the car had travelled 735 kms where also there was no bill for the diesel.
4.4 Several other instances of various dates and the diesel filled was part of the imputation. It is not necessary to get Page 15 of 49 C/LPA/185/2017 CAV JUDGMENT into the details of the charges split into various particulars under this head. The Inquiry Officer, in minute detail, has on the examination of the witnesses suggested that the tank capacity of the car was 42 litres and not 35. For the period from 06.08.2001 to 17.08.2001, the Inquiry Officer on the assessment of evidence went into the minute details of the diesel filled in prior to such period, assessed the mileage that the car would give based on conjectures and surmises that on the basis of a 20 liter diesel fill the car could have travelled 320 kms; that on 31.07.2002 the closing diesel capacity in the tank was 17 liters and if 20 liters of diesel was filled in on 01 st |August the total diesel would be 37.08 liters and presuming that the car would give a mileage of 16 kms/liter it could have travelled 592 or 604 kms and therefore it cannot be believed that the car travelled 664 kms on the basis of 20 liters diesel filled in.
4.5 The only purpose of briefly referring to such charge, which though not fully proved is to suggest the mindset of the disciplinary authority in taking particular care to engineer a charge and somehow prove the same.
4.6 Charge - III - This charge pertains to an imputation that the appellant during the period from 15.12.2000 to 10.02.2003 travelled without the permission of his superior authority on 46 occasions. It was the case of the department that on 06 occasions, the appellant had not filed a leave report and that the leave report's office copy was a got up document. It was the case of the department that the appellant had travelled without the permission of the Commissioner except on 11 occasions. The case of the appellant was that he had so Page 16 of 49 C/LPA/185/2017 CAV JUDGMENT travelled for attending seminars, for implementation of projects and therefore permission of the superior authority was not necessary particularly when he was the project administrator. On the basis of the evidence on record, the Inquiry Officer opined that for 15 occasions it was necessary for the appellant to seek permission and the charge was therefore partly proved.
4.7 As far as the charge with regard to travelling without sanctioned leave is concerned, it was held not proved. The disciplinary authority in the disagreement notice under challenge before the learned Single Judge and in the subsequent disagreement notice dated 01.05.2017 has not recorded its disagreement and therefore nothing much revolves around this charge.
4.8 Charge - IV - This charge pertains to the tenders for various repairing trades namely for repairing of clocks and electrical equipments. According to the charge, it was the case of the department that there were several irregularities in the tender process made with a view to favour certain contractors. It is the case of the department that when the tender was to be opened on 30.07.2001, the appellant did not come to the office till 3 pm. He did so without permission of the superior authority. According to the tender conditions, every party had to fill in the price bid in the tender form. Inspite of such conditions one Rajendra Madhiwala did not fill in the forms of particular items. Similarly, with regard to the clock repairing tender of Natraj Cutlery Store which was sanctioned, according to the department, the columns in items 4, 9 and 12 were subsequently filled in. For the tender of Page 17 of 49 C/LPA/185/2017 CAV JUDGMENT electric trade, it was imputed that several alterations and improvements were made in the document of Shri R.C. Vasava and inspite of this, the tender was accepted.
4.9 Based on the evidence on record that was assessed by the Inquiry Officer, and the defence of the appellant on the basis of the statement of Shri Rohit, the Inquiry Officer held that the fact that on 28.07.2001 and 29.07.2001 which was a Saturday and Sunday, the appellant had left the headquarter and returned late which stands proved on the statement of the Assistant Project Officer. No intimation to his immediate subordinate was given.
4.10 The Inquiry Officer held that on examination of record, the tender of Shri Madhiwala was found incomplete and several columns were left blank. On examination of the witnesses and on examination also of the tender of Natraj Cutlery Store, the Inquiry Officer found that some items and columns were left blank and a decision ought to have been taken accordingly. Had Shri Madhiwala's tender been considered, it could have been found to have had a lower bid. As far as Natraj Cultery's tender is concerned, the Inquiry Officer found that a separate pen/ink was used. However, whether it was subsequently inserted was not coming on record for the lack of substantial evidence. Therefore, there is no evidence on record to prove that such tender process was done with a view to help Madhiwala.
4.11 As far as the electric tender of Shri Vasava is concerned, Shri Vasava specifically denied having made corrections subsequently. Even the presenting officer was unsure Page 18 of 49 C/LPA/185/2017 CAV JUDGMENT whether such corrections were made later. The Inquiry Officer held that there was no evidence to show that changes were made later in point of time. Nothing had come on record that a special favour was made to Shri Madhiwala and there was no evidence to suggest that the tender of Natraj Cutlery, was tampered with with subsequent insertions and as far as Shri Vasava's tender is concerned, there was no evidence to suggest that the alterations were made subsequently.
4.12 To this, in the first disagreement notice impugned before the learned Single Judge the disciplinary authority disagreed with the Inquiry Officer's finding of the charge being partly proved. The single shot reason advanced without any reason was that such tender process was done with a view to favour a contractor.
4.13 Even in the subsequent disagreement notice in pursuance of the implementation notice of the order of the learned Single Judge, the only ground for disagreement is that there was 'partiality' to prove malafide intention of the accused (the extract of the disagreement notice has been reproduced hereinabove and therefore not extensively repeated).
4.14 Charge - V - This charge was held as partly proved to which the disciplinary authority on both occasions i.e. in the impugned notice before the learned Single Judge and the subsequent notice in compliance of the order of the learned Single Judge, has not recorded any disagreement. However, a brief reference to the charge would suggest that the charge pertained to implementation of projects under the project Page 19 of 49 C/LPA/185/2017 CAV JUDGMENT pertaining to Tribal Agriculture. The Inquiry Officer on a detailed scrutiny of this charge has held such charge to be partly proved.
4.15 Charge - VI - This charge is with regard to imparting training to tribal youth in motor driving. It was the case of the department that the motor driving schools which were approved were requested to send their quotations by 12.10.2001. 5 such motor driving schools had accordingly sent their quotations. Quotations of the four institutions were opened on 11.10.2001 whereas that of one was opened on 06.10.2001. The quotation of Adivasi Co-operative Sahakari Mandali and Regal Motor Training which quoted the same price as that of Sumeet Motors was approved. Sumeet's quotation though of the same price band was not accepted. Nothing was shown by comparative process as to for what reasons it was not accepted. Moreover, these quotations were opened before the date of 12.10.2001. The Inquiry Officer, on examination of the file notings found that, quotations of Adivasi Cooperative Mandali and Regal Motors were approved and sent to the Collector and that from such notings it was found that they were opened a day before the actual opening date and the other four were opened six days before on 06.10.2001. According to the defence, it was under the instructions of the government that proper training was given for jeep driving by the Adivasi Mandali. The Inquiry Officer held that if such tenders are opened before the stipulated date, the process would get vitiated. The defence of the appellant that Sumeet Motor Driving School had no jeeps was not believed. However, the Inquiry Officer opined and found that the charge of the appellant's corrupt motive was not Page 20 of 49 C/LPA/185/2017 CAV JUDGMENT proved and therefore the only omission on the part of the delinquent was that he had not carried out comparative assessment while rejecting the quotation of Sumeet.
4.16 The disciplinary authority in the impugned notice before the learned Single Judge as well as the subsequent notice recorded its disagreement holding the charges completely proved solely on the ground that there was dereliction of duty and lack of devotion to duty.
4.17 Charge - VII - This charge pertains to an imputation that the appellant used government vehicles for personal use and would not deposit the amount immediately but would do so after 4-8 months. The Inquiry Officer after assessment of evidence held that the charge was partly proved. According to the Inquiry Officer, the appellant had committed carelessness in depositing money and that he had shown lack of loyalty and honesty. The charge was held as partly proved and no disagreement was recorded in either of the notices.
4.18 Based on the Inquiry Officer's report and the disagreement notice dated 07.03.2005, the appellant replied in detail by a communication dated 28.03.2005. Taking into consideration the response, the respondent by an order dated 21.05.2005, impugned in the petition before the learned Single Judge, imposed a penalty of reduction in pay scale with future effect. This was the subject matter before the learned Single Judge.
4.19 Pursuant to the matter being remanded by the learned Single Judge to the disciplinary authority, asking to give Page 21 of 49 C/LPA/185/2017 CAV JUDGMENT reasons for disagreement so as to give an opportunity to the petitioner to make good his case on the Inquiry Officer's findings, a fresh exercise was undertaken. The disciplinary authority gave a fresh finding/disagreement vide communication/disagreement notice dated 01.05.2017 on the Inquiry Officer's report, which we feel would be useful to be reproduced hereinbelow:
"With reference to above subject and in view of the punishment order No.KTP/142004/92-G-1 Cell dated 21.05.2005 of this Department issued against you, and against which you have preferred Special Civil Application No.14975 of 2005 before the Hon'ble Gujarat High Court, and in view of the order dated 05.10.2016 passed by the Hon'ble Gujarat High Court, this is to inform you that the State Government has complied with the order passed by the Hon'ble Gujarat High Court with regard to departmental enquiry in question and therefore, as per Rule 10(2) of the Gujarat State Services (Discipline and Appeals) Rules, 1971 and considering the enquiry report submitted by the Department Enquiry Officer through his letter dated 01.02.2005, the case of departmental inquiry is remanded to the State Government and the State Government has carefully considered the enquiry report submitted by the Departmental Enquiry Officer. Upon careful consideration of the said enquiry report and to agree/ disagree/ partly agree with the findings of the said enquiry report, the Disciplinary Officer has taken the following decision (Where the Disciplinary Officer is disagree or not completely agree for any reason with the findings of the enquiry report, there he has given written reasons, which are produced herewith).
Char Finding of Finding Reasons for agree/
ge Enquiry of disagree given by the
No. Officer Disciplina Disciplinary Officer
ry Officer
1 2 3 4
Page 22 of 49
C/LPA/185/2017 CAV JUDGMENT
1 The Agre There is no
charge ed- question.
for the The
first charg
bill is e for
not the
proved. first There is no
bill is question.
not
prove
The d.
Charge
for the Agre
second ed- There is no
bill is The question.
partly Char
proved. ge
for
the
secon
The d bill The Enquiry
Charge is Officer has held
for the partl Shri Chavda
third y responsible for
bill is prove making wrong
partly d. entry in the
proved. logbook, it is not
Agre proper to accept
ed- completely the
The finding given by
The Char the Enquiry
charge ge Officer for not
for the for proving the
fourth the charges against
bill is third him.
not bill is
proved. partl There is no
y question.
prove
d.
Partl
The y
charge disag
for the reed-
Page 23 of 49
C/LPA/185/2017 CAV JUDGMENT
fifth The
bill is charg
not e for
proved. the
fourt
h bill
is
partl
y
prove
d.
Agre
ed-
The
charg
e for
the
fifth
bill is
not
prove
d.
2 The Agre Agreed with the
Part-1 issue ed- findings of the
of Part- enquiry report in
discrep 1 is view of all the
ancies prove issues of Part-1 to
betwee d. 9 of the Charge
n the No.2, therefore,
actual there is no
consu question of giving
mption any reason about
Part-2 of disagreement.
diesel
and
kilomet
ers Agre
travell ed-
ed is Part-
proved. 2 is
not
The prove
Part-3 charge d.
Page 24 of 49
C/LPA/185/2017 CAV JUDGMENT
of
discrep
ancies
Part-4 betwee
n the
actual
Part-5 consu
mption Agre
of ed-
diesel Part-
and 3 is
kilomet not
ers prove
travell d.
ed is
not Agre
Part-6 proved. ed-
Part-
The 4 is
charge prove
Part-7 is not d.
proved.
Agre
ed-
Part-8 The Part-
charge 5 is
is not prove
proved. d.
Part-9
The
issue
of
discrep
ancies
betwee
n the
actual Agre
consu ed-
mption Part-
of 6 is
diesel not
and prove
kilomet d.
ers
travell Agre
Page 25 of 49
C/LPA/185/2017 CAV JUDGMENT
ed is ed-
proved. Part-
7 is
The not
charge prove
is not d.
proved.
Agre
ed-
The Part-
charge 8 is
is not not
proved. prove
d.
The Agre
charge ed-
is not Part-
proved. 9 is
not
prove
The d.
charge
is not
proved.
3 The Agre There is no
charge ed- question.
is The
partly charg
proved. e is
partl
y
prove
d.
4 The Disag Out of the two
charge ree- tenders mentioned
is The in the enquiry
partly charg report, the
proved. e is accused officer
On comp has accepted one
30.01.2 letely tender and did not
001 till prove accept another
4.00 d. tender because it
p.m. was not dully
Page 26 of 49
C/LPA/185/2017 CAV JUDGMENT
accuse filled up. As per
d Shri the opinion of the
Chavda Enquiry officer,
was same decision was
absenc to be taken in
e in the both the tenders.
office Therefore, by not
withou taking same
t any decision in similar
permis circumstances,
sion the tendency of
and doing partiality
further proves the
the malafide intention
decisio of the accused.
n of Therefore, It is
rejecti proper to disagree
ng the with the finding of
tender Enquiry report
of Shri regarding the
Madhi charge of malafide
wala intention is not
for the proved.
reason
of not Similarly, on
giving verifying one
comple tender of electric
te tread of Shri
rates is Vasava, it was
not found some
proper. amendment/
This changes and
charge against which,
is there is sign of
proved, Shri Vasava. It
wherea was the finding of
s the the Enquiry
other Report that in
charge absence of any
s are evidence that such
not changes were
proved permitted to be
and made afterwards,
therefo the said charge is
re, the not proved.
Page 27 of 49
C/LPA/185/2017 CAV JUDGMENT
charge Therefore, it is
no.4 is submitted that
partly though the said
proved. tender was having
amendment/
changes, it was
accepted, this fact
itself proves that
by doing favour of
Shri Vasava his
tender was
accepted and
therefore, it is
proved that Shri
Vasava was
permitted to make
changes
afterwards. The
witness of the
accused Shri Patel
in his deposition
stated that "yes"
for the said
changes the
signatures were
taken, that means
the said
signatures were
obtained
afterwards.
Therefore, it is
proper to disagree
with the said
finding of the
enquiry report on
this issue and it is
also proper to
believe that the
said issue of the
charges is proved.
Thus, on the basis
of enquiry report
the Disciplinary
Officer has
believed that the
Page 28 of 49
C/LPA/185/2017 CAV JUDGMENT
charge No.4 is not
partly proved but,
it is proved
completely.
5 The Agre There is no
charge ed- question.
is The
partly charg
proved. e is
partl
y
prove
d.
6 The Disag It is proper to
Charge reed- agree with the
is The finding of the
partly charg Enquiry Officer
proved. e is with regard to
comp both the issues
letely mentioned in the
prove charges, where
d. serious
irregularities have
been found,
however the
Enquiry Officer
has not accepted
both the
irregularities as
malpractices.
Meaning thereby,
it was proved and
accepted that Shri
Chavda has done
serious
irregularities, and
thus, he has
shown that there
is absence of
sincerity and
honesty and he
has not accepted
the said charge as
proved. Therefore,
it is not proper to
Page 29 of 49
C/LPA/185/2017 CAV JUDGMENT
agree with him.
Because, both the
irregularities,
which are proved,
which prove
absence of
administrative
transparency and
when there is
absence of
transparency in
any proceedings,
in that case, it
cannot be believed
that there is any
bonafide mistake
or irresponsible
approach in the
said proceedings.
Thus, both the
proved serious
irregularities on
the part of Shri
Chavda show
absence of any
honesty and
sincerity.
Therefore, I am
disagree with the
finding of the
Enquiry Officer
about the charge
is partly proved,
whereas, the
Disciplinary
Officer has
believed that
Charge No.6 is
completely
proved.
7 The Agre There is no
charge ed- question.
is The
partly charg
proved. e is
Page 30 of 49
C/LPA/185/2017 CAV JUDGMENT
partl
y
prove
d.
2. With the above details the copy of the enquiry report is also enclosed herewith, and considering the details mentioned by the Enquiry Officer and details of allegations mentioned in para No.1 (Where the Enquiry Officer is disagree or not completely agree for any reason with the findings of the enquiry report, there he has given written reasons), you are requested to submit you written statement of defense within 15 days to this Department from the date of receipt of this letter. The statement of defense produced by you will be considered during the proceedings of final hearing of this matter.
3. Further, the above referred order passed by the Hon'ble High Court has been received to this Department through Deputy Registrar on 16.12.2016, and as per the direction of the Hon'ble High Court with regard to denovo hearing in case of enquiry report submitted by the Enquiry Officer is to be completed within six months i.e. 15.06.2016, therefore, you are specifically requested to provide your final written statement of defense within aforesaid period of 15 days."
4.20 Perusal of the show cause notice as aforesaid and having undertaken an exercise of comparing it with the notice pre the imugned judgement, we have found no substantial difference in the mindset of the disciplinary authority. Both these notices indicate no change of stance and only exhibit a repetition. Since the disagreement was produced with the Civil Application, we had requested learned Assistant Government Pleader, Ms. Vishen to address on the issue of the fresh notice, however, what is suggested is that the notice is entirely within the domain of the disciplinary authority and once the appellant responds to it, an appropriate decision will be taken.
Page 31 of 49 C/LPA/185/2017 CAV JUDGMENT5. According to Mr. G.M. Joshi, learned advocate appearing on behalf of the appellant, the learned Single Judge, rather than remitting the matter to the State Government ought to have decided the issues raised in the petition on merits particularly in view of the fact that the petitioner had retired on 30.06.2010 and remission of the case was therefore unjust. By the judgement impugned in this appeal, the learned Single Judge in the submission of Shri G.M. Joshi, fell short in quashing the order and remitted the matter to the disciplinary authority. The prayers of holding and declaring that the inquiry is malafide, wrongly and illegally conducted were not granted.
5.1 Shri G.M. Joshi, learned advocate appearing on behalf of the appellant invited our attention to the gist of submissions that he made before the learned Single Judge and which he reiterated before us. Paragraph 8 of the order of the learned Single Judge reproduces such submissions and it would be therefore correct to reproduce the same in order to avoid duplicity.
(1) The Government, right from the inception, proceeded against the writ applicant with bias. The case is one of malice in law as well as malice in fact.
(2) The decision to initiate a departmental inquiry on flimsy, frivolous and vexatious allegations was nothing, but a mala fide act on the part of the State Government.
(3) Many relevant documents, although demanded, were not supplied, thereby causing serious prejudice to the Page 32 of 49 C/LPA/185/2017 CAV JUDGMENT writ applicant.
(4) The writ applicant was denied an opportunity to examine the other witnesses causing serious prejudice.
(5) The State Government could not have initiated the departmental inquiry in view of two previous reports, practically, exonerating the writ applicant from all the charges. No explanation worth the name has been put- forward as to why those two reports were not taken into consideration, more particularly, when, at no point of time, they were rejected.
(6) The reasons assigned by the disciplinary authority for disagreeing with the findings recorded by the Inquiry Officer are flimsy. In fact, they cannot be termed as reasons. Whatever has been observed by the disciplinary authority in the form of disagreement is nothing, but reiteration of the allegations.
(7) Even otherwise, the penalty imposed is shockingly disproportionate having regard to the nature of the allegations.
(8) Although the Gujarat Public Service Commission was consulted by the State Government, yet the copy of the advice of the G.P.S.C. was not supplied to the writ applicant.
(9) The case is one of No Evidence. Mr. Joshi, in support of his submissions, has placed reliance on the decision of Page 33 of 49 C/LPA/185/2017 CAV JUDGMENT the Supreme Court in the case Yoginath D. Bagde vs. State of Maharashtra [AIR 1999 SC 3734] and the decision of this Court in the case of T.P. Viradiya vs. State of Gujarat [Special Civil Application No.16957 of 2014 decided on 4th July 2016].
5.2 Special emphasis was laid by Shri Joshi, learned advocate appearing on behalf of the appellant on the fact that if the entire factual circumstances preceding the inquiry and the penalty following is appreciated, it was a case where the appellant was a victim of malice in law and malice in fact. That the allegations were frivolous, vexatious and mala fide. That no inquiry could have been initiated in view of two previous reports practically exonerating the applicant from all charges. Nothing had come on record as to why the reports were not taken into consideration. That the reasoning assigned by the disciplinary authority for disagreeing with the findings recorded by the Inquiry Officer are flimsy and cannot be termed as reasons. In the form of disagreement, there is nothing but reiteration of the allegations. That it was a case of no evidence.
6. Ms. Sangeeta Vishen, learned Assistant Government Pleader appeared for the respondents and supported the order of the learned Single Judge. Ms. Vishen for the State extensively took us through the charge-sheet, the Inquiry Officer's report, the discussion that the Inquiry Officer held to hold the charges to be proved and contended that the charges were serious enough to warrant the punishment that was imposed.
Page 34 of 49 C/LPA/185/2017 CAV JUDGMENT6.1 According to Ms. Vishen, that the appellant could earn a nomination to the Indian Administrative Service and had a clean record would not in any manner dilute the sanctity of the charge-sheet and the departmental proceedings held subsequent to such a charge-sheet, particularly, when it was not the case of the appellant that the proceedings before the inquiry were flawed.
6.2 Ms. Vishen invited our attention to paragraph 17 of the order of the learned Single Judge and suggested that what the learned Single Judge had done was to remit the matter to the disciplinary authority to assign proper reasons for disagreeing with the findings recorded by the Inquiry Officer. This was done with the purpose of complying with Rule 10(2) of the Rules and merely because the learned Single Judge had done so, it cannot be said that it was done with a view to give the State an opportunity to fill in the gaps.
6.3 In Ms. Vishen's perception there was nothing wrong for the State to have one more opportunity in giving a fresh notice with proper reasons in compliance of Rule 10. According to Ms. Vishen there was no malice in law or fact. The writ petitioner was assigned duties as a Project Administrator of a tribal area. Serious irregularities, even ignoring the ones in Charge I, would suggest that the tender process was tinkered with to favour certain contractors.
7. Authorities were cited before us by Mr. Joshi to suggest that apart from a veiled pay back by the authorities who thwarted his nomination to IAS, the fact that even if the Page 35 of 49 C/LPA/185/2017 CAV JUDGMENT charge-sheet and the Inquiry Officer's report is seen and taking into consideration the fickleness of the charges and in view of the fact that the appellant has retired on superannuation on 30.06.2010 remitting the case for a fresh show cause notice was cumbersome and unjust. Mr. Joshi relied on a judgement of the Supreme Court in the case of Narinder Mohan Arya vs. United India Insurance Company Limited and Others reported in (2006) 4 SCC
713. Special emphasis has been made on paragraph 49 of the judgement. Before the Supreme Court, an officer of the insurance company had been charge-sheeted in reference to certain cover notes issued in favour of a firm. Departmental proceedings were held and the Inquiry Officer gave his findings. The Supreme Court considering the facts, finding that the disciplinary proceedings were pending for long, rather than remitting the matter back to the disciplinary authority and looking to the suffering rather than remitting it quashed the orders. Para 49 of the judgement on which reliance is placed reads as under:
"49. For the foregoing reasons the impugned judgements cannot be sustained which are set aside accordingly. Although, the consequence of setting aside of the said orders would have been to remit the matter back to the disciplinary authority for consideration of the matter afresh on merit, but having regard to the fact that the disciplinary proceedings were initiated against the appellant as far back in 1976, we refrain ourselves from doing so. He, indisputably, has suffered a lot. However, the question which arises is what relief should be granted to the appellant. The appellant shall be reinstated in service. We, however, while directing reinstatement of the appellant, keeping in view the fact that no work had been taken from him direct that only 50% of the backwages shall be payable.Page 36 of 49 C/LPA/185/2017 CAV JUDGMENT
The appeal is allowed with the abovementioned directions."
7.1 Mr. Joshi also relied on a decision in the case of State of Gujarat and Another vs. T.P. Viradiya (Letters Patent Appeal No. 1392 of 2016) to support that it was a case of no evidence. According to Shri Joshi, when the charge-sheet and the Inquiry Officer's report is appreciated, apparent it was that the charges were got up solely with a view to see that his career is marred. Having achieved that purpose, the Court ought to have looking to the Inquiry Officer's report in context of the charges held that it was definitely a case of no evidence.
8. Ms. Vishen relied on a decision in the case of Chairman, Life Insurance Corporation of India and Others vs. A. Masilamani reported in (2013) 6 SCC 530. Emphasis was made to paragraphs no. 16 to 22 of the judgement. According to Ms. Vishen, as held by the Supreme Court, it is a settled legal proposition that once the Court sets aside an order of punishment on the ground that the inquiry was not properly conducted the Court cannot reinstate an employee. It must remit the case concerned to the disciplinary authority for it to conduct the inquiry from the point that it stood vitiated. According to Ms. Vishen, therefore, what the learned Single Judge had done was just and proper.
9. Before we embark on assigning reasons, subsequent events pending this appeal need to be considered. Pursuant to the directions of the learned Single Judge, on remission of the matter before the disciplinary authority, on Page 37 of 49 C/LPA/185/2017 CAV JUDGMENT 01/03.05.2017, the State issued a fresh show cause notice giving fresh reasons for disagreement. Prompted by such notice, the appellant filed Civil Application No. 9374 of 2017 praying for interim relief requesting that since the learned Single Judge's order was impugned in the appeal, subsequent proceedings pursuant to this notice of 01/03.05.2017 needs to be stayed. We have, after inviting the learned counsel to address us on this show cause notice, too thought it fit to take into consideration the subsequent notice, though which was not a subject matter before the learned Single Judge. For the reasons that we assign hereinafter we have taken this notice for adjudication and we render the decision accordingly.
10. The events that unfolded preceding the charge-sheet dated 25.05.2004 need to be listed chronologically.
18.11.2003 Meeting of the Selection Committee wherein selection list consisting of eleven names, including the name of the petitioner, was prepared.
18.12.2003 The State Government stated that they have decided to "withdraw" the integrity certificate in respect of the petitioner.
20.01.2004 GOI accepted the recommendations of the Selection Committee with the request to the UPSC to take further action, keeping in view the decision of the State Government to withdraw the integrity Page 38 of 49 C/LPA/185/2017 CAV JUDGMENT certificate in respect of the petitioner.
27.05.2004 The State Government informed the UPSC that a charge-sheet dated 25.05.2004 has been issued to the petitioner and a departmental enquiry has been initiated;
and requested the UPSC to treat inclusion of his name in the select list as provisional/ deemed provisional.
11.06.2004 The UPSC informed GOI that it has approved the recommendations of the Selection Committee with the modification that inclusion of the petitioner in the select list shall be provisional, subject to clearance of disciplinary proceedings pending against him and grant of integrity certificate by the State Government.
15.06.2004 Notification of GOI in terms of Regulation 7(3) declaring approval by the UPSC of the select list prepared by the Selection Committee, which included the name of the petitioner at serial No.6 - without stating that inclusion of his name was provisional.
15.06.2004 Notification of GOI appointing 10 other officers, excluding the petitioner, in the Administrative Service on probation with Page 39 of 49 C/LPA/185/2017 CAV JUDGMENT immediate effect.
16/19.7.2004 Corrigendum issued by GOI to the above notification dated 15.6.2004 to add the paragraph to the notification dated 15.6.2004 that: "Name of Shri N M Chavda (SC) at serial No.6 in the select list shall be provisional, subject to the disciplinary proceedings pending against him and grant of integrity certificate by the State Government."
10.1 These events suggest that the appellant was on the threshold of being nominated to the All India Service when his integrity certificate was 'withdrawn'. A notification dated 15.06.2000 was issued listing his name for selection which was subsequently withdrawn by a notification of even date. It was a subject matter of challenge before this Court in Special Civil Application No. 2210 of 2005. The matter went up to the Supreme Court by way of a Special Leave Petition. We are responsive of the observation of the Supreme Court in its judgement dated 12.08.2014 while disposing of the Special Leave Petition. It will be relevant to quote the observations of the Supreme Court in context of the disciplinary proceedings which were subject matter of challenge before this Court in the petition, from which this appeal arises. The relevant portion of the order of Supreme Court reads as under:
"Even while setting aside the decision of the Central Administrative Tribunal, in the writ petition which is filed by respondent no. 1 against the penalty imposed pursuant to the departmental Page 40 of 49 C/LPA/185/2017 CAV JUDGMENT proceedings held against him, the High Court has clearly stated that respondent no. 1 herein would claim such benefits as consequential relief only in case he is exonerated fully in the departmental inquiry.
Thus, the effect of the aforesaid direction giving him the relief only in case he is exonerated under the departmental inquiry would be that respondent no. 1 would be entitled to promotion, and the consequential benefit in case the penalty imposed against him stands. In view of that, it may not be necessary to entertain this petition in exercise of our jurisdiction under Article 136 of the Constitution of India. We may record at this stage that respondent no. 1 had filed special leave petition against the aforesaid judgment apportioning the relief portion. Respondent no. 1 wanted to get the benefit of promotion irrespective of the outcome of the writ petition pursuant to the departmental proceedings against him. That SLP has been dismissed by this Court.
However, learned counsel for the petitioner has two apprehensions in mind. In the first instance, it is argued that in the writ petition which is filed by respondent no. 1 challenging the imposition of penalty, the observations made by the High Court in the impugned judgment may not come in the way of the petitioner. It is further argued that, according to the petitioner, the High Court has not dealt with the regulations appropriately and the interpretation given by the regulations is incorrect and the impugned judgment may not be cited in future.
Insofar as first submission is concerned, Mr. Sanjoy Ghose, learned counsel for respondent no. 1 fairly submits (there cannot be any exception thereto even otherwise) that the writ petition which is filed by respondent no. 1 against the departmental proceedings, has to be dealt with by the High Court on its own merits uninfluenced by the observations made in the impugned judgment as the subject matter of the impugned judgment was entirely different.Page 41 of 49 C/LPA/185/2017 CAV JUDGMENT
Insofar as second aspect is concerned, Mr. Sanjoy Ghose, learned counsel again stated that he has no objection if the question of law, that is, the question relating to the interpretation of the regulations, is kept open. It is ordered accordingly.
As respondent no. 1 has already retired from service, we request the High Court to decide the writ petition filed by respondent no. 1 as expeditiously as possible preferably within six months."
10.2 Reading the order indicates that the petition before this Court had to be dealt with on its own merits uninfluenced by the observations made in the judgement of the Division Bench considering his question of nomination. While certainly not being influenced by the observations of the Division Bench in the judgement in Special Civil Application No. 2210 of 2005, we cannot shut our eyes to the events as reproduced hereinabove which led to the issuance of charge-sheet and the subsequent penalty order which was subject matter of challenge in the present context.
11. For what we hold hereinafter, the preceding events fortify our conclusion to hold, that we do, that the charge sheet was engineered and the events preceding to such issuance which have been reproduced hereinabove lend support to our conclusion.
11.1 Mr. Joshi's submissions when taken note of suggest that it was the case of the petitioner - appellant herein that the initiation of departmental inquiry was on flimsy, frivolous and vexatious allegations. That the reasons assigned by the disciplinary authority for disagreeing with the findings Page 42 of 49 C/LPA/185/2017 CAV JUDGMENT recorded by the Inquiry Officer are flimsy. In fact they cannot be termed as reasons.
12. We have extensively in the earlier part of the judgement essentially for this purpose in view reproduced the charges and the findings of the Inquiry Officer. Reading of the charge- sheet and the findings of the Inquiry Officer would indicate two glaring features
(a) Though the charges are 7 in number minute breaking up of each charge into sub-charges has been undertaken by the Inquiry Officer.
(b) Reading of the officer's report prima facie suggests that the officer indulged in nit picking into each charge in a microscopic exercise undertaken. For instance Charge I pertained to five bills of a small amount of diesel filled in the official car. The Inquiry Officer, through the eyes of the disciplinary authority, has gone into minute details of how the car travelled from a particular point, the time taken including the traffic position during the morning hours and the night hours. At one stage, when the explanation was that the car had travelled from Rajpipla to Gandhinagar, that was believed, however, a somewhat ironical stand taken that a trip from Rajpipla to Gandhinagar would necessarily not entail a return trip back to Rajpipla is a fallacious ground for believing a charge to be proved/partly proved.
13. Instances have been noticed while reading the Inquiry Page 43 of 49 C/LPA/185/2017 CAV JUDGMENT Officer's report and going through it minutely, though not with a view to re-appreciate the evidence, suggesting that the Inquiry Officer has gone into the fuel capacity of the car's tank, the mileage that the car would give, the particular amount of diesel filled in context of the charge of the bills concerned and the same shows the mindset of the disciplinary authority reflected through the Inquiry Officer to suggest the shallowness of the charge that is sought to be proved.
14. Conscious we are that this Court should be loath to interfere or sit in appeal over the departmental proceedings under Article 226 of the Constitution of India. Well known it is that the charges in a departmental inquiry can be proved on the basis of 'preponderance of probabilities'. A cursory glance at the Inquiry Officer's report would suggest that even on such parameters in context of the nature of the charges, the Inquiry Officer has proceeded to hold the charges as proved/partly proved on a mere ipse dixit. Mr. Joshi is not wrong in his submission that it was certainly a case of 'no evidence' and based on such principles, constricted though we are, we cannot but hold that not only are the charges vexatious and frivolous but the findings of the Inquiry Officer fail the test of even being proved 'beyond reasonable doubt'.
15. It is in this context that now even the subsequent exercise of the two disagreement notices that is the one pre impugned judgement and the one post the judgement need to be scanned. Both the notices when seen in light of the entire evidence on record and the charge-sheet would suggest that the reasons assigned by the disciplinary authority terming them as 'disagreement' is nothing but a mere reiteration of Page 44 of 49 C/LPA/185/2017 CAV JUDGMENT allegations which pass off as that of reasons for disagreement. Where the Inquiry Officer had held the charges as partly proved, except of adding a few lines imputing malice, mala fide or lack of integrity in the disagreement reasons, for instance in the case of tender process nothing substantial has come forth. Whatever has been observed in the form of disagreement, therefore, is nothing but reiteration of the allegations. Merely because in the perception of the disciplinary authority a different view is possible, it cannot be termed to stand the test of being recorded as a disagreement.
15.1 In other words, therefore, the perusal of the disagreement notice dated 28.03.2005, when compared to the one dated 01/03.05.2017 would suggest that even in that subsequent notice nothing different is purported to have been brought out. The subsequent notice has been brought on record by virtue of the Civil Application which we have referred to hereinabove and therefore applying the same yardstick as we have done to the show cause notice dated 28.03.2005, we are of the opinion that such reasons cannot be termed as disagreement.
16. The question therefore would arise is should we fall short of quashing the entire proceeding or agree with the view that the learned Single Judge has taken of remitting the matter to the disciplinary authority. Averments in the petition would indicate that with regard to the questions regarding the conduct of the appellant, complaints on two occasions were gone into and reports were filed in such two inquiries holding that the complaints of the tenderers Shri Vasava and Shri Madhiwala were found to be incorrect. Moreover, at the cost Page 45 of 49 C/LPA/185/2017 CAV JUDGMENT of repetition, keeping in view the events preceding the charge-sheet which led to the appellant's career growth being stalled and looking to the fact that the charge-sheet in question was of the year 2003 and the appellant has retired on superannuation on 30.06.2010, we are inclined to accept the submissions of learned advocate appearing on behalf of the appellant that on a conjoint appreciation of such events, the learned Single Judge ought to have gone into the merits and held that the departmental inquiry was initiated on flimsy, frivolous and vexatious allegations which was nothing but a malafide act on the part of the government. Further in our opinion, the State Government could not have initiated the departmental inquiry in view of the two previous reports practically exonerating the appellant.
17. It is trite that in cases where the Court finds the inquiry to be deficient either procedurally or otherwise, the proper course always is to remand the matter to the concerned authority to hold the same afresh. That course has already been undertaken in the present case by the learned Single Judge. The matter was remanded to the Disciplinary Authority for a fresh report/order which has not yielded any fresh result. The Disciplinary Authority in the subsequent disagreement notice has merely reiterated the allegations and has not recorded adequate reasons as discussed above. We are aware that, the option of remanding the matter to the authority is not the only course open in a given situation and therefore we are also not oblivious of the fact that because of a long time gap and other supervening circumstances, even otherwise it will be unfair as well as unnecessary to now once again direct a fresh inquiry by the competent authority.
Page 46 of 49 C/LPA/185/2017 CAV JUDGMENT17.1 Keeping these facts in mind and the fact that the directions of the learned Single Judge to remit the matter to the State Government has already prolonged the suffering of the appellant who has now superannuated and also sufficient damage has been done to the career of the appellant by stalling his nomination to the Indian Administrative Service based on his charge-sheet, we are not inclined to remand the matter. Apart from the timing of such a charge-sheet, reading of the charges and the Inquiry Officer's report and the two show cause notices suggest of a foisting of a proceeding to prolong the agony of a man who has retired in the year 2010 after having suffered the ignominy of losing his nomination. We, therefore, have no hesitation in allowing the appeal and setting aside the orders of penalty which was the subject matter of the petition but also the subsequent notice dated 01/03.05.2017 which was issued in compliance of the order impugned before us of the learned Single Judge.
18. We, therefore, deem it fit to set aside the direction of the learned Single Judge in remitting the matter to the State Government and the subsequent action in issuance of the notice dated 01/03.05.2017 and we hold that the entire proceedings which have culminated into the issuance of the disagreement notice dated 01/03.05.2017 is nothing but a mala fide and an illegal action of the department and therefore declare that such proceedings be quashed and the appellant's agony be set at rest. Order accordingly. Letters Patent Appeal is allowed accordingly.
19. In view of the order in the Letters Patent Appeal, Civil Page 47 of 49 C/LPA/185/2017 CAV JUDGMENT Application shall not survive and is accordingly disposed of.
20. At this stage, Mr. G.M.Joshi, learned counsel for the appellant requests for consequential benefits of allowing the appeal and setting aside the order of learned Single Judge be conferred upon the appellant, including that of seniority, promotion, pension, gratuity, retiral dues, pension, difference of salary, etc. within stipulated time. Considering the facts of the case, we are inclined to direct the respondent - Government of Gujarat to release all such consequential benefits to the appellant within a period of 4 weeks from today.
21. Ms. Vishen, learned A.G.P. submits that the respondent - State of Gujarat, would like to approach the higher forum and prays for stay of this order.
22. Considering the overall facts and circumstances, including earlier round of litigation in which the appellant was subjected to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India when his nomination from the panel of I.A.S. was withdrawn by the authority and upon a challenge in a writ petition such action was quashed and et aside by imposing costs of Rs.1,00,000/-, which attained finality up to the Apex Court.
23. In this appeal also, no doubt, learned Single Judge has quashed and set aside the notice for disagreement and remitted the matter to the disciplinary authority for taking final decision in this regard. Thereafter, during the pendency of this appeal, a new / fresh notice was issued in which Page 48 of 49 C/LPA/185/2017 CAV JUDGMENT reasons for disagreement are shown, but the same are either repetition or do not reveal any application of mind, which is quashed and set aside by assigning reasons. Further, for no reason, the appellant has undergone rigmarole of litigation in view of malafide action on the part of respondent - State authorities, which reveal litigatious perseverance on the part of the State Government. Accordingly, we reject the request to stay this order with costs of Rs.10,000/-.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) DIVYA Page 49 of 49