Gujarat High Court
Sanjay Jagdishbhai Bhaty vs Kandla Port Trust on 29 October, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10925 of 2015
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 10925 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SANJAY JAGDISHBHAI BHATY Versus KANDLA PORT TRUST ========================================================== Appearance:
MR AK CLERK, MS G R VIJAYALAKSHMI(5047) for the Petitioner(s) No. 1 MR MIHIR JOSHI, SR. ADVOCATE, MR DHAVAL D VYAS(3225) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 29/10/2021 COMMON CAV JUDGMENT
1. Heard, learned Advocate Mr. A.K. Clerk assisted by the learned Advocate Ms. G.R. Vijayalakshmi and the learned Senior Advocate Mr. Mihir Joshi assisted by the learned Advocate Mr. Dhaval D. Vyas for the Respondent - Kandla Port Trust (in brief 'KPT').Page 1 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
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2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"7. ...
A. Your Lordships may be pleased to admit and allow the present Petition.
B. Your Lordships may be pleased to quash and set aside the impugned Order of Suspension dated 15.06.2015 passed by the Dy. Chairman, KPT against the present Petitioner.
"BB. YOUR LORDSHIPS may pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the proposed illegal and arbitrary order of removal from service passed during the pendency of Special Civil Application No.10925 of 2015, passed by the Chairman, Kandla Port Trust.
BBB YOUR LORDSHIPS may pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the order dated 14th February, 2017 No.: KPV/03-A/03-15/128 rejecting the plea made in the representation dated 17.01.2017; BBBB YOUR LORDSHIPS may be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the Order No.KPV/01-A/04
-15/477 dated 6" Jul 2017 passed by the Chairman, Kandla Port Trust whereby the petitioner is ordered to be removed from service.Page 2 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 BBBBB YOUR LORDSHIPS may be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the Articles of Charge contained in Memorandum No.KPV/01-A/04- 15/2227 dated 27" July 2015 issued by the Chairman, Kandla Port Trust as well as the Inquiry Report dated 24.11.2016 submitted by the Inquiry Officer.
BBBBBB. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction to hold and declare that the Chairman, Kandla Port Trust has no power, authority or competence or jurisdiction to pass a second order of dismissal against the petitioner and further be pleased to quash and set aside the Order No.KPC/4082-Vig/1524 dated 14.09.2018 passed by the Chairman, Kandla Port Trust whereby the petitioner is ordered to be dismissed from service and further be pleased to quash and set aside the Articles of Charge contained in Memorandum No.KPC/4028-Vig/158 dated 18.02.2016 issued by the Chairman, Kandla Port Trust as well as the Inquiry Report dated 05.11.2016 submitted by the Inquiry Officer.
C. Your Lordships may be pleased to quash and set aside the five show Cause Notices (Memorandums) issued by the Respondent to the present Petitioner on 29.05.2015.
CC YOUR LORDSHIPS may pleased to stay and suspend the implementation, execution and operation of the proposed order of removal from service passed by the by the Chairman, Kandla Port Trust during the pendency and final disposal of Special Civil Application Page 3 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 N-.10925 of 2015.
CCC YOUR LORDSHIPS may pleased to stay and suspend the implementation, execution and operation of the order dated 14th February, 2017 No.: KPV/03-A/03-15/128 rejecting the plea made in the representation dated 17.01.2017 during the pendency and final disposal of Special Civil Application No.10925 of 2015;
CCCC YOUR LORDSHIPS may be pleased to stay the operation _and implementation of the Order No.KPC/4082-Vig/1524 date 14.09.2018 passed by the Chairman, Kandla Port Trust and further restraining the respondent authorities from interfering with the discharge of duties by the petitioner as Trade Promotion & Public Relations Officer and Officer in charge -- B.D.C. CCCCC YOUR LORDSHIPS may be pleased to restrain the respondent authorities from passing any further order imposing any penalties and/or taking any punitive action against the petitioner pursuant to the enquiry reports submitted by the Inquiry Officer, Shri S.P.M. Tripathi during the pendency of SCA Ne. 10925 of 2015. D. Pending hearing and final disposal of the present Petition your Lordships may be pleased to stay the implementation and execution of the impugned Order of Suspension dated 15.06.2015 passed by the Dy. Chairman, KPT against the present Petitioner.
E. ..." Page 4 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 3. At the outset, learned Advocate Mr. Clerk assisted by the learned Advocate Ms.
Vijayalakshmi for the petitioner submitted that in this petition, the petitioner now prays for Prayers 7 BBBB, BBBBBB, DDDDD and CCCCC only, as the rest of the prayers have become infructuous by the efflux of time.
4. The brief facts of the case of the petitioner are as under;
4.1 The petitioner was appointed on 24th April, 1997 by the Respondent-KPT as Trade Promotion- cum-Public Relation Officer with effect from 10th April, 1997 in the General Administration Department of the Port. The petitioner discharged his functions on the post on which he was appointed in the year 1997 without any difficulty till the year 2014-2015.
4.2 It appears that the petitioner made a complaint on 2nd October, 2012, before the Chief Vigilance Commission (for short 'CVC') with the subject, "Petition for CBI inquiry against Mr. M.A. Bhaskarachara for fraud, cheating, criminal conspiracy and corruptions committed at the Kandla Port Trust to the tune of 1000 Crore in the Dredging Contract at Kandla, Goa, New Mangalore and Kolkata-Reg.".Page 5 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 4.3 After the petitioner made disclosure to the CVC about such alleged scam on 16th November, 2011, the CVC forwarded the complaint of the petitioner to the Respondent-KPT for taking necessary actions. The respondent-PKT by letter dated 27th December, 2012, called upon the petitioner to confirm that the complaint had been lodged by the petitioner or otherwise so as to verify the same as per the CVC norms. The petitioner was also asked to submit the material or the evidence in support of the allegations made by him and to appear in person to disclose any other matter related to the complaint of the Respondent-KPT before the CVC. The petitioner was also informed that the name and detail if any provided by him shall be kept strictly confidential.
4.4 The petitioner by letter dated 7th January, 2013 informed the Chief Vigilance Officer (for short 'CVO') of the respondent-KPT and confirmed the reiteration about the complaint was made by him before the respondent-CVC. The petitioner also confirmed during his personal meeting with the CVO of the respondent-KPT that he would also furnish relevant and further information / evidence which would be required for proper investigation of the matter.
Page 6 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 4.5 It is the case of the petitioner that the complaint made by the petitioner as a 'Whistle Blower' resulted into recovery of Rs.45.35/- Crore from the contractor and further detection of Rs.55.77/- Crore to be recovered and thus the total irregular payment of more than Rs.155/- Crore and Rs.1.29/- Crore could be saved from the ongoing works on contract.
4.6 It appears that the petitioner made as many as 72 complaints/reminders to various authorities against different officials of the respondent- KPT. Although most of the complaints were not entertained for lack of sufficient details and evidence in support of such complaints. However, the petitioner has relied upon the complaint made by him at Sr. No. 68 in the list for claiming the reward for such a complaint.
4.7 The petitioner also made disclosure on 18th August, 2014 and 31st October, 2014 about the alleged corrupt practices of Mr. P. Ramjee -the CVO of the respondent-KPT for causing heavy losses to the exchequer alleging corrupt practices at the respondent-KPT.
4.8 The reference was also made to the letter of the CVC dated 1st September, 2014 addressed to Page 7 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the petitioner, calling upon the petitioner to confirm within 30 days of the receipt of the said letter that the petitioner had sent the said complaint and to furnish certificate as per the form enclosed with the said letter that he had not made the similar / identical allegations of corruption, misuse of office to any other authority and to clarify the same as a Whistle Blower / complainant.
4.9 According to the petitioner, the CVC forwarded the complaints of the petitioner dated 18th August, 2014 and 31st August, 2014 to the CVO of the respondent-KPT, i.e. Mr. P. Ramjee, and on receipt of such complaints from the CVC, the CVO, Mr. P. Ramjee, of the respondent-KPT is alleged to have issued a letter in January, 2015 calling upon the petitioner to submit evidence or material in support of the complaint. The petitioner therefore, reported the same to the CVC by letter dated 4th May, 2015. The petitioner also filed a criminal complaint being Inquiry No. 322 of 2015 in the Court of the learned Chief Judicial Magistrate, at Gandhidham-Kachchh, against Mr. P. Ramjee under Section 406, 420, 467, 468, 471, 385, 389 and 506(2) of the IPC and Sections 13(1)(c)(d) (i, ii and iii) under the Prevention of Corruption Act.
Page 8 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 4.9.1 The Chief Judicial Magistrate (for short 'CJM') at Gandhidham-Kachchh, vide order dated 17th May, 2015, directed the Anti Corruption Bureau to register a complaint against Mr. P. Ramjee and to carryout investigation in the matter.
4.10 According to the petitioner, after the aforesaid order was passed by the learned CJM at Gandhidham-Kachchh on 27th May, 2015, the Chairman of the respondent-KPT issued five memorandums to the petitioner on 29th May, 2015 by which the petitioner was charged under the Kandla Port Employees (Conduct) Regulations. 1964 (for short 'Regulations,1964'). The petitioner was also called upon to adduce the original documents with regard to his educational / professional qualifications on the basis of which he was appointed with the respondent-KPT and to show- cause as to why the disciplinary proceedings should not be initiated against him for writing letters directly to the Ministry of Shipping by by-passing the CVO. The petitioner was also put to notice with regard to irregularities committed by him while discharging official duties.
4.11 The petitioner was also called upon vide memorandum dated 15th June, 2015 to give his explanation as per the details given in the Page 9 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 memorandum dated 29th May, 2015. The petitioner gave his reply on 19th June, 2015 and sought permission to leave Gandhidham from 24th June, 2015 to 29th June, 2015 for holding consultation with the legal practitioner and to extend the time to file reply to the show-cause notice issued to him.
4.12 Thereafter, the petitioner submitted his reply to each of the five memorandums on 7 th June, 2015 in view of the disciplinary proceedings initiated under Regulation 8 of Regulation 12 of the Kandla Port Trust Employees (Classification, Control & Appeal) Amendment Regulations, 2004 (for short, 'Regulations, 2004').
4.13 The respondent-KPT vide order dated 27th June, 2015 fixed the subsistence allowance of the petitioner. The petitioner was again placed under suspension on 14th September, 2015 as the earlier suspension order was renewed by the Disciplinary Authority of the respondent-KPT, as per Regulation 8 of the Regulations,2004 and the suspension period was accordingly extended.
4.14 The petitioner filed this petition on 7 th July, 2015 for quashing and setting aside the order of suspensions and for other interim reliefs.
Page 10 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 4.15 The petitioner was thereafter served with five charge-sheets dated 3rd November, 2015, leveling different charges against him pursuant to the show-cause notices issued to the petitioner on 29th May, 2015.
4.16 Pursuant to the charges issued against the petitioner, the Respondent-KPT appointed an ex-employee of the respondent-KPT namely Shri. S.P.M. Tripathi, Deputy Traffic Manager (Retired), as inquiry officer on 16th March, 2016, which was objected to by the petitioner vide representation dated 17th January, 2017 on the ground that the Regulations, 2004 do not provide for appointment of a retired official or any other official or the officer serving with the respondent-Trust as an inquiry officer. Thereafter, the petitioner also made other representations reiterating the contents of his earlier representation dated 17th January, 2017.
4.17 The respondent-KPT thereafter issued show-cause notice dated 18th February, 2016 calling upon the petitioner to show-cause for misconduct of getting confidential report in an inappropriate manner and misleading the Court of Page 11 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the learned CJM at Gandhidham-Kachchh by filing tampered or forged report in Criminal Inquiry No. 322 of 2015 on affidavit.
4.18 Then, the respondent-KPT appointed Shri S.P.M. Tripathi as Inquiry Officer on 21st March, 2016 to inquire into the charges leveled against the petitioner as per show-cause notice / memorandum dated 18th February, 2016. The Inquiry Officer submitted his report on 5th November, 2016.
4.19 Thereafter, the petitioner filed Civil Application No.1 of 2017 (Old No. 8093 of 2017) with a prayer to restrain the respondent-KPT from passing any order of penalty / taking punitive action against the petitioner pursuant to the inquiry reports and to revoke the suspension order passed by the respondent-KPT against the petitioner. However, during the course of hearing of the Civil Application on 13th July, 2017, the respondent-KPT placed on record a copy of the order dated 6th July, 2017 whereby the petitioner was removed from service. The order passed by this Court (Coram: Mr. Mohinder Pal, J.) on 13th July, 2017 reads as under:
"Learned counsel for the petitioner has moved draft amendment with a copy to the respondents. This amendment is allowed.Page 12 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Through this amendment, applicant has apprehended his dismissal / removal which is otherwise his prayer in the main petition.
A new development has taken place vide which the respondents have served upon the petitioner today in the Court an order dated 6th July, 2017 according to which, petitioner has been removed from service. Copy of this order is also produced before this Court.
Since the order of removal from service has been served upon the petitioner today in the Court, he may be required to amend his petition. Accordingly, amended petition, if any, be filed before the next date with advance copy to the respondents. Accordingly, final order on Civil Application (for direction) No.8093 of 2017 shall be passed after completion of the pleadings. However, operation of the order dated 6th July, 2017 vide which the applicant has been removed from service, is stayed.
To come up on 17th July, 2017."
4.20 In the meantime, the inquiry officer appointed by the respondent-KPT namely Shri S.P.M. Tripathi submitted inquiry report on 22nd December, 2016 and on 5th January, 2017 and the three articles of charges were held to be proved against the petitioner and as such, by order dated 14th September, 2018 of removal from Page 13 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 service, the petitioner was again dismissed from the service under Regulation 10 of the Regulations, 2004.
4.21 This Court (Coram: Mr. A.S. Supehia, J.) passed following order on 8th April, 2019, whereby, the Draft Amendment was allowed permitting the respondent-KPT to file reply to the amended petition keeping all the rights and contentions open of the either side;
"1. Learned advocate Mr. Dipen Sankhesara for learned advocate Mr.Dhaval D. Vyas for the respondent has chosen not to remain present.
2. Learned advocate Mr.Clerk appearing for the applicant has submitted that the draft amendment dated 27.07.2018 may be allowed.
3. Having regard to the averments made in the draft amendment and the contentions raised by the learned advocate for the petitioner, the same is allowed in terms of draft. Necessary amendment shall be carried out within a period of one week.
4. Learned advocate for the petitioner shall file memo of the amended petition.
5. It will be open for the learned advocate for the respondent to file reply to the amended petition. All contentions are left open for either of the side. Stand over to 25.04.2019."Page 14 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
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5. Learned Senior Advocate Mr. Joshi assisted by the learned Advocate Mr. Vyas raised following two preliminary objections:
(i) The orders dated 6.7.2017 (page 66/A) passed under Rule 9 (viii) and 14.09.2018 (Page 293) passed under Rule 9 (ix) of the Kandla Port Employees (CCA) Regulations, 2004 (Page 1832 of SCA) by the Chairman, KPT- the Disciplinary Authority, which have been challenged in the petition are appealable under Regulation 21(ii) before the Central Government which is the Appellate Authority as per Regulation 22(2)(a) (page 209) and therefore the present petition which involves disputed questions of facts, may not be entertained (2013) 2 SCC 740, Para 25). This Court has kept the objection in respect of availability of alternate statutory remedy open while issuing 'rule' in the petitioner vide order dated 16.09.2019.
(ii) The amended petition which challenges two separate orders passed by the Disciplinary Authority pursuant to independent inquiries undertaken for distinct charges, as also five different memorandums of charges and inquiry in respect of distinct charges, suffers from mis-joinder of cause of actions.
6. Learned Advocate Mr. Clerk assisted by learned Advocate Ms. Vijaya lakshmi in response Page 15 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 to the aforesaid two preliminary objections submitted that the appeal is not an absolute bar to entertain this petition as according to the petitioner, the petitioner approached this Court challenging the suspension order and during the pendency of this petition the respondent-KPT conducted the inquiry and passed the impugned order of dismissal from service of the petitioner without following the principles of natural justice.
6.1 Learned Advocate Mr. Clerk invited the attention of this Court to the conduct of the respondent-KPT and submitted that this Court vide order dated 13th July, 2017 stayed the operation and implementation of the dismissal order dated 6th July, 2017 and to overreach the process of this Court, the respondent-KPT against passed the order dated 14th September, 2018 of removal from service of the petitioner.
6.2 It was further submitted that the petitioner is victimized as the petitioner is a 'Whistle Blower' of the scams of the respondent- KPT of more than Rs.1,000/- Crore and the appeal against the order of dismissal would lie before the Secretary, Shipping and therefore it would be a futile exercise to relegate the petitioner to pursue the alternative remedy of appeal which Page 16 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 according to the petitioner is not an efficacious remedy.
6.3 In support of his submissions, learned Advocate Mr. Clerk relied on the following decisions:
(i) Union of India Vs. P.C. Ramakrishnayya1;
(ii) Union of India Vs. Alok Kumar2;
(iii) SBI Vs. Narendra Kumar Pandey3;
6.4 Learned Advocate Mr. Clerk on merits submitted that the charge-sheet dated 27th July, 2015 is issued with mala fide intention inasmuch as Article No.1 is not relating to the performance of the duty by the petitioner. It was submitted that on bare perusal of the charge- sheet, the same appears to be perverse and the same is issued only with a view to retaliate the bona fide action of the petitioner to expose the fraud and the scam committed by the officials of the respondent-KPT.
6.5 It was submitted that the second charge- sheet issued against the petitioner is also with 1 (2010) 8 SCC 644;
2 (2010) 5 SCC 349;
3 (2013) 2 SCC 740;
Page 17 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 mala fide intention as the said charge-sheet is issued only with a view to harass the petitioner, as the petitioner had submitted a report before the learned CJM as received from the Office of the respondent-KPT and the petitioner has not committed any forgery or tampered with such a report as alleged against him.
6.6 It was submitted that the petitioner was also not given an opportunity of hearing by the Inquiry Officer as the petitioner raised serious objections against the appointment of the inquiry officer Shri. S.P.M. Tripathi. However, the respondent-KPT tried to justify the appointment of the Inquiry Officer by relying upon the so called Scheme placed on record by the respondent- KPT on 30th August, 2017 during the pendency of the writ-petition though there is no provision under the Regulations,2004 to formulate the Scheme of appointing a retired person as the Inquiry Officer. It was submitted that the respondent-KPT formulated the Scheme to appoint a retired personnel, namely Mr. S.P.M. Tripathi, as the Inquiry Officer for the first time in the case of the petitioner. It was submitted that the Inquiry Officer Mr. S.P.M. Tripathi has thereafter conducted the inquiry in haphazard manner without following the due procedure and completed the same in unnecessary haste by Page 18 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 brushing aside the objections raised by the petitioner and submitted the inquiry report.
6.7 It was submitted that the scheme framed by the respondent-KPT is also not a part of the service rules / statute. Reliance in this regard was placed on the rules for empanelment of the retired employees of central / State government or autonomous body, central or state government undertakings or major ports as well as notification of the CVC dated 18th November, 2004 to submit that the respondent-KPT could not have appointed Shri. S.P.M. Tripathi as Inquiry Officer. It was also pointed out that in case of other port trusts which are constituted under the Major Port Trusts Act, 1963 have amended their corresponding employees regulations in respect of the disciplinary matters providing for appointment of retired officials as Inquiry Officer. However, the respondent-KPT has not amended its regulations till date.
6.8 Reliance in this regard was placed on the decision of the Orissa High Court in the case of 'Siba Kishore Pattanaik Vs Chief Engineer, Paradip Port Trust and Another', Dated:
28.04.1992, rendered in O.J.C. No. 1199 of 1992 wherein it is observed and held as under:
"4. The word 'authority' has not been Page 19 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 defined in the Regulations, It is, however, relevant that the 'appointing authority', 'disciplinary authority' are defined in regulation 2(b) and 2(d) of the Regulations respectively, authority', in our view, means a person deriving power from office or character or prestige. It means a person of body exercising a power or having a legal right to command and be obeyed, The meaning ascribed to the word in the #Webster's Universal Dictionary is person or body of person possessing authority, having right to govern, direct, control affairs, make laws etc,', Authority is the power, the legal right to command and to enforce obedience, A person who is relied upon, by reason of his 'special knowledge, experience, study, to give trustworthy testimony or a weighty and credible opinion on particular facts and events is an ' authority' . Authority is the power conferred by law to do something backed' by an implied, threat of some legal sanction, if the exercise-of the power is impeded, If the interpretation given to the word by the Port authorities is accepted, the use of the expression 'person' would have been sufficient; The use of the expression 'authority' cannot be said to be purposeless. It is not in dispute and is accepted that the disciplinary authority cannot be any person other than an official of the Paradip Port Trust, Therefore, in our considered opinion, it is not open to the Paradip Port authorities | to appoint any person other than any of its functionaries as the Page 20 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 inquiry officer. In view of the analysis made by us, the guidelines indicated by the Ministry of Personnel Public. Grievances and Pensions are of no consequence."
6.9 Learned Advocate Mr. Clerk also referred to the office memorandum dated 7th January, 2004 issued by the Ministry of Personnel, Government of India, in respect of suspension of the government servant / review of suspension and submitted that the same cannot be made applicable to the employees of the port unless and until the same are made a part of the statute by taking approval of the central government after notifying it in the official gazette under Section 132 of the Major Port Trusts Act, 1963. It was submitted that the minutes of the Board Meeting and the resolution passed by the respondent-KPT to that effect is available from Page Nos. 186 to 188. It was submitted that this Court (Coram: Mr. N.V. Anjaria, J.) in the decision dated 11th January, 2018, rendered in Special Civil Application No. 11091 of 2017 has observed and held as under:
"4.4 Responding to the petition and contention of the petitioner, on behalf of respondent - KPT, affidavit-in-reply came to be filed in which it was inter alia stated that for amending the Regulation of 2004, meeting of the Board was held on 18th Page 21 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 August, 2006 and as per the Resolution No.351 of the Board, the aforementioned sub-regulation (6) and sub-regulation (7) were sought to be inserted in Regulation
8. It is further stated that though the aforesaid Resolution came to be passed by the Board of Trustees of KPT deciding to amend Regulation 8 above, the implementation of the said Regulation was subject to approval of the Central Government. It is further stated that as per the records of the Department of Port Trust, the recommendations made by the Port of Trustees of Port at Kandla to amend Regulation 8 as above so as to insert sub-regulation (6) and sub- regulation (7) has not been accepted and approved by the Central Government.
5. The above facts unequivocally give out that Regulation 8 passed by the Board of Trustees of KPT was required to be approved by the competent authority but such approval is not granted. The approval is needed to be obtained under Section 124 read with Section 132 of the Major Port Trust Act, 1963. In other words, Notification dated nil July, 2006 sought to be relied on cannot come to any aid to the petitioner. Sub-regulation (6) and sub-regulation 97) in Regulation 8 have not been approved under the law to be part of the statute. Therefore, they do not have any operation. The entire premise of contention of the petitioner herein falls flat."
6.10 It was therefore submitted by the Page 22 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 learned Advocate Mr. Clerk that there cannot be two yardsticks by the respondent-KPT one for the petitioner and the other for other employees.
6.11 It was submitted that the scheme formulated by the Board of respondent-KTP on the recommendations of the Department of Personnel and Training on 31st July, 2013 which is relied on by the respondent-KTP to appoint Shri. S.P.M. Tripathi as Inquiry Officer cannot be made applicable to the employees of the respondent-KTP unless and until the same is approved and notified in the official gazette of the Ministry of Shipping. It was therefore submitted that the appointment of Shri. S.P.M. Tripathi as Inquiry Office is without jurisdiction and contrary to the Regulations,2004 and as such the inquiry against the petitioner is vitiated.
6.12 It was also submitted that the Central Government vide letter dated 20th September, 2019 categorically directed the major port trusts that the chairman and its Board has no powers to adopt the rules or guidelines of the central government without the prior approval of the Ministry of Shipping and the same has to be informed to the Courts in various ongoing court cases. It was therefore submitted that the respondent-KPT never informed this Court about such directions issued Page 23 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 by the Ministry of Shipping and instead an attempt was made to mislead the Court.
6.13 It was submitted that the second order of dismissal from service of the petitioner dated 14th September, 2018 is also an attempt on the part of the respondent-KPT to overreach the process of the Court as Inquiry Officer had already submitted all the seven reports in respect of the charges leveled against the petitioner, including the report dated 5th November, 2016 before 6th July, 2017, i.e. the date on which the first order of removal from service was passed by the respondent-KPT which was stayed by this Court vide order dated 13th July, 2017. It was therefore submitted that the Disciplinary Authority having considered all the reports, has chosen to pass the order of removal from service dated 6th July, 2017 on the basis of inquiry report dated 24th April, 2015 and therefore having already considered all the inquiry reports and having chosen to base the order of removal of the petitioner from service on the inquiry report dated 24th November, 2015 the second order of dismissal from service on the basis of the Inquiry Report dated 5th November, 2016, i.e. after two years from the date of submission, is illegal, arbitrary and without jurisdiction and without any authority of law. It Page 24 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 was submitted that the Disciplinary Authority had become the functus officio after passing the first order of dismissal dated 6th July, 2017. It was therefore, submitted that the Disciplinary Authority exceeded its powers as it had no jurisdiction to pass the second order of removal from service dated 14th September, 2018.
6.14 It was further submitted that the respondent-KPT without informing the Court or taking any permission of the Court has overreached the jurisdiction of this Court by passing the second order of dismissal from service dated 14th September, 2018, in as much as after the passage of period of two years from the date of receipt of inquiry report clearly shows the perverse conduct of the respondent-KPT and hence such order is mala fide and with ulterior motive as the petitioner is not being paid even any subsistence allowance since the year 2016 which was later on granted by this Court vide order dated 12th September, 2017. It was also submitted that the petitioner is not provided with any medical facilities in view of the second order of dismissal from service dated 14th September, 2018 and even the electric connection of the residential quarter allotted to the petitioner was disconnected, which was ordered to be restored by this Court.
Page 25 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 6.15 It was submitted that the petitioner is being victimized for discharging his duty as 'Whistle Blower' by issuing first order of removal from service. It was submitted that, after having verified his credentials and the experience required for the post, the petitioner was appointed by the respondent-KPT in the year 1997 and only with a mala fide intention and by hatching a conspiracy against the petitioner, after the period of almost 20 years, the respondent-KPT asked the petitioner to produce his credentials for verification. It was therefore submitted that there was no need to initiate a departmental inquiry as the respondent-KPT has the custody of the service record of the petitioner.
6.16 It was also submitted that the respondent-KPT has issued show-cause notice calling upon the petitioner to provide the documents for the verification after 20 years of service is without jurisdiction. It was submitted that the basis of the order of removal from service of the petitioner is illegal and without jurisdiction and as such the reliance placed by the Inquiry Officer upon the so called communication received through fax from "Barely" is biased as the police authority cannot verify Page 26 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the qualification merely on the basis of a communication. It was submitted that the respondent-KPT has not produced any document of any institution or university in respect of so called allegations made against the petitioner. It was therefore submitted that the order dated 6th July, 2017 passed by the respondent-KPT of removing the petitioner from service on the basis of the communication of a police officer from "Barely" is without jurisdiction and the same is liable to be quashed and set aside.
6.17 Learned Advocate Mr. Clerk submitted that the appointment of the petitioner was in the year 1997 and on successful completion of probation, services of the petitioner was confirmed by the respondent-KTP and therefore in view of the Regulation 14(e) of the Regulations, 1964, the decision of the Board of the respondent-KPT on the question whether a candidate does or does not satisfy any of the requirements or not was final and the same cannot be challenged by revisiting the same. It was therefore submitted that the order of removal from service of the petitioner which is based on the charge-sheet issued on 29th May, 2015 is also non-est and hence it was prayed that the same may be quashed and set aside and the petitioner be reinstated in the service.
Page 27 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 6.18 It was further submitted that the second order of removal from service dated 14th September, 2018 based upon the report dated 5th November, 2016, the petitioner is subject to penalty for the charges framed during the same period under the Regulations, 2004. It was therefore submitted that the respondent-KPT ought to have taken into consideration all the inquiry reports submitted till 25th November, 2016 by issuing first order of removal from service on 6th July,2017. It was submitted that however, the Respondent-KPT revisited the earlier inquiry reports for the purpose of passing the second order of dismissal from service more particularly when there was stay granted by this Court against the first removal order and hence the second order of removal from service is against the settled principles of law and hence the same is required to be quashed and set aside.
6.19 It was submitted that taking into consideration the conduct and the action of the respondent-KPT during the pendency of the petition before this Court, it is apparent that the respondent-KPT overreached the judicial process by acting in a manner which makes the respondent-KPT liable to be prosecuted for the contempt of Court. In this regard, the reliance Page 28 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 is placed on the decision of the Andhra Pradesh High Court in 'Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. N. Ramulu'4 to submit that there is unanimity of the judicial opinion that two punishments for the same misconduct cannot be imposed. The relevant observations of the Andhra Pradesh High Court reads thus;
"5. Our attention has been drawn to Part- IV of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, framed under Section 45(1) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), which contains, inter alia, the regulations as to discipline and penalties and enumerates in the list of the penalties "recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by an employee's negligence or breach of orders", as a minor punishment. It is not disputed before us that the Corporation has imposed the said punishment and recovery has been effected. A question has arisen before us, however, that once for the act of rash and negligent driving a decision is taken to impose a minor penalty, for the same act of alleged rash and negligent driving, can the employee be proceeded against and punished with the imposition of a major penalty. There are authorities which point out that recovery 4 1996 (2) CLR 666 (AP);Page 29 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 of a pecuniary loss by the employer from the employee is a civil action and it is within the competence and authority of the employer to recover from the employee any such loss in accordance with the contract of service or otherwise by a process in accordance with law. There is, however, unanimity of judicial opinion that two punishments for the same misconduct cannot be imposed. Learned counsel for the employer-Corporation has endeavored before us and persuaded us to take notice of the commentaries and instructions issued from time to time by different employers, including the Central Government to its undertakings, as to the procedure and mode of recovery of any amount of pecuniary loss from the employee, as respects which they appear to say that apart from the disciplinary action for the alleged misconduct, loss can always be recovered by the employer from the employee. She has, however, not been able to bring to our notice any case in which the recovery from pay of the whole or part of any pecuniary loss has been ordered as a minor punishment and besides the recovery, another punishment - whether major or minor - has been imposed. One of the settle principles of law is that no one can be subjected to two punishments for the same misconduct or offence. There appears to be an error committed by the employer - Corporation in this behalf and obviously it has been done in ignorance of the provisions in Part-IV of the Classification, Control and Appeal Regulations."Page 30 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 6.20 It was therefore submitted that any employee can sue the government or its officials in its private capacity where if the situation warrants for such recourse to the Court of law and as provided by the office memorandum dated 26th November, 1963, issued by the Ministry of Home Affairs, Government of India. Relying on the said Office Memorandum it was submitted that for approaching the Court of law against an illegal and criminal action of the private individuals, i.e. P. Ramjee, the petitioner as a private individual had taken recourse to the official remedy which cannot be construed as the misconduct of the petitioner as alleged and therefore the petitioner could not have been charged with violation of Regulation 3(8) of the Regulations, 1964 for adopting judicial recourse by filing a private complaint and hence none of the actions of the petitioner would fall in any of the clause of the Regulations of 1964 and the petitioner could not have been again dismissed from service when the first order of removal from service was under the scrutiny of this Court.
6.21 It was submitted by learned Advocate Mr. Clerk that the documents which were in the custody of the Court of the learned CJM at Page 31 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Gandhidham-Kachchh, have been misused by the respondent-KPT for passing the order of dismissal from service of the petitioner by overreaching the process and jurisdiction of the Court. It was therefore pointed out that the allegations against the petitioner and the charge-sheet in question that the petitioner has forged report of Dr. G.S. Rao is not true because the so called confidential report was never prepared or approved by the respondent-KPT. It was therefore submitted that when there is no report prepared and submitted to the CVC, there was no tempering and submission of report before the Court of law.
6.22 It was submitted that Regulations, 2004 clearly spells out the misconduct under Regulation 3(9) thereof and the charges leveled against the petitioner vide charge-sheets under Regulation 3(a)(i) to (iv) are not capable of being pursued under the disciplinary rules as none of them were pertaining to the duty of the petitioner. It was submitted that the charges framed against the petitioner are under the similar conduct of Regulations 3(a) (i) to (iv) where the proceedings were instituted under the major penalty in six cases whereas in one case under the minor penalty, which makes it clear that the charges were leveled against the petitioner with the clear intention of removing Page 32 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the petitioner from service under the one or the other pretext.
6.23 It was therefore submitted that the misconduct spelt out under the similar regulations in different charge-sheets cannot be dealt with under the major and minor penalty proceedings, simultaneously.
6.24 It was submitted that the impugned charge-sheets issued against the petitioner is nothing but a retaliation against the action of the petitioner of discharging his duty as a 'Whistle Blower', only because of the ill- intention on the part of the respondent-KPT.
6.25 Learned Advocate Mr. Clerk therefore submitted that there is no allegation against the petitioner on the basis of which it can be said that the petitioner has committed any misconduct. The reliance was placed on the decision of the Apex Court in the case of 'Inspector Premchand Vs. Government Of N.C.T. Of Delhi & Others5' and in 'State of Punjab Vs. Ram Singh, Ex-Constable'6 where, the Apex Court held thus:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus :-
5 (2007) 4 SCC 566;
6 (1992) 4 SCC 5;Page 33 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 "A transgression of some established an definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence but not negligence or carelessness."
Misconduct in office has been defined as :
"Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
P. Ramanatha Aiyar's the Law Lexicon, Reprint Edition 1987 at p.821 `misconduct' defines thus:-
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral Page 34 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law.
Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is necessarily in definite.
Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
Thus it could be seen that the word `misconduct' though not capable of precise Page 35 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, if must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act,a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
6.26 Learned Advocate Mr. Clerk also relied on the decision of the Apex Court in 'Glaxo Laboratories Vs. the Presiding Officer, Labour Court Meerut & Others'7 and in the decision of this Court 'A.L. Kalara Vs. The Project & Equipment Corporation of India Limited'8.
7 AIR 1984 SC 505;
8 (1984) 3 SCC 316;
Page 36 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 6.27 Learned Advocate Mr. Clerk thereafter submitted that the punishment is disproportionate as out of the seven charges leveled against the petitioner, none of the charges can be said to be falling under the major penalty proceedings. It was submitted that the charges leveled against the petitioner are false, frivolous and vexatious, as the petitioner has made complaints against the rampant corruption prevailing in the respondent-KPT.
6.28 It was submitted that the penalty imposed on an official by the respondent-KPT, namely Mr. Mukesh Balani, Traffic Manager, for possessing the disproportionate assets to the tune of Crore of rupees and expensive jewelry and prime value land / plot, he was merely censured, whereas, in the case of the petitioner, efforts of whom resulted in recovery of Rs.100.55/- Crore is awarded with the penalty of removal from service and instead of rewarding him by exemplary award for the courageous act of his of saving government exchequer, showing biased attitude towards the petitioner. In support of this submission, the reliance is placed on the decision of the Apex Court in 'Rathin Ghosh Vs. West Bengal State Electricity Distribution Page 37 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Company Ltd. & Others'9, where, the Apex Court observed that the punishment to be imposed on a delinquent employee has to be proportionate to the charge and in the event the punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article 14 of the Constitution of India and the test as has been approved is that Court can interfere with the punishment imposed by the disciplinary authority when it shocks the conscience of the Court.
6.29 It was therefore submitted that none of the so called misconducts alleged to have been committed by the petitioner as stipulated in the charge-sheets are part of any of the misconducts mentioned under Regulations, 2004. It was therefore submitted that the petition is required to be allowed in the interest of justice considering the long service rendered by the petitioner and the condition of family of the petitioner which consists two school going children and his wife who is a chronic patient and is undergoing treatment for various diseases. It was therefore submitted that the removal of the petitioner from service would result into economic death of the petitioner as well as the social stigma will adversely affect his remaining 9 2019 (7) JT 588;
Page 38 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 life.
7. On the other hand, learned Senior Advocate Mr. Joshi assisted by the learned Advocate Mr. Vyas submitted that this petition requires to be rejected only on the ground of preliminary objections raised by the respondent-KPT. It was submitted that the present proceedings are vitiated inasmuch as the petitioner has chosen not to join Mr. P. Ramjee-CVO as a party- respondent against whom a criminal complaint has been filed by the petitioner. In this regard the reference was made to the order dated 27th May, 2015 passed by the learned CJM at Gandhidham- Kachchh. It was submitted that as such the respondent-KPT has issued seven different charge- sheets for seven distinct charges against the petitioner, the details of which are produced at Page Nos. 93 to 96 of the present petition. It was submitted that this petition is filed for setting aside the five show-cause notices issued by the respondent-KPT on 29th May, 2015 and then the order of suspension was passed by the respondent-KPT and the reliance was placed on the criminal case filed by the petitioner against Mr. P. Ramjee-CVO who is not made a party in this proceeding.
7.1 It was reiterated that the contention of Page 39 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the petitioner of mala fide against Mr. P. Ramjee cannot be looked into as he has not been joined as the party-respondent in this petition. In this regard, the reliance is placed on the decision of the Apex Court in the case of 'Purshottam Kumar Jha Vs. State of Jharkhand'10, where, the Apex Court held as follows in Paragraph-23:
"23. It is well settled that whenever allegations as to mala fides have been leveled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In absence of material particulars, the court is not expected to make 'fishing' inquiry into the matter. It is equally well-established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is 'very heavy'. Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be 'made than made out' and hence it is necessary for courts to examine it with extreme care, caution and circumspection. It has been rightly described as 'the last refuge of a losing litigant'. [Vide Gulam Mustafa v. State of Mahrashtra, (1976) 1 SCC 800; Ajit Kumar Jog v. Indian Oil 10 (2006) 9 SCC 458;Page 40 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Corporation, (2005) 7 SCC 764).
and the observations in the case of 'Medley Minerals India Ltd. VS. State of Orissa'11.
7.2 It was submitted that the vague allegations of bias has been denied by the respondent-KPT in the affidavit-in-reply as such allegations are not supported by any substantive or independent record.
7.3 It was also submitted that the allegations of bias, illegality or mala fide in the course of departmental proceedings are largely the question of facts which cannot be decided on the basis of assertions made by the petitioner. The reliance was placed on the observations of the Apex Court in Paragraph-6 in the case of 'Kamini Kumar Das Choudhary Vs. State of W.B.'12.
7.4 It was submitted that pursuant to the case registered on 27th January, 2015, as per the Vigilance Manual, the disciplinary authority had ordered initiation of the proceedings as per the regulations against the present petitioner. The reliance was placed on the following averments made in the affidavit-in-reply filed for and on behalf of the respondent-KPT;
11 (2004) 12 SCC 390;
12 (1972) 2 SCC 420;Page 41 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 "12. On incriminating facts suggesting involvement of the petitioner having being received by the answering respondent, case was registered as per the procedure laid down in the Vigilance Manual on 27.1.2015 and taking note of the investigation report, the Disciplinary Authority has ordered for initiation of major / minor penalty proceedings as per the Annexure-R- 5 for the following misconduct:
(i) Suspicion of using RTI for pecuniary benefits.
(ii) The alleged irregularities in performance of official tours and the claim.
(iii) Making frivolous complaints regularly against various officials and addressing the same to the various authorities.
13. The investigation was split and conducted issue wise:
(i) Allegation of impersonation as IAS Officer and alleged financial irregularities.
(ii) Allegation of not possessing the essential qualification (experience, educational qualification, caste certificate etc).
14. After issuance of the Show Cause Page 42 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Memorandum No.KPV/01-A/04-15 dated 29.05.2015, the Disciplinary Authority ordered for suspension of the petitioner vide Suspension Order No.KPV/01-A/045/1970 dated 15.06.2015 which has subsequently fen followed by initiation of major penalty Proceeding vide charge-sheet Memorandum No. N0-KPV/01-A/04-15/2227 dated 27.07.2015 under Regulation 12 of the Kandla Port Employees (CCA) Amendment Regulations, 2004. The period of suspension has however been reviewed and it has been decided by the Disciplinary Authority to extend the period of suspension of the petitioner for a further period of 90 days or till further orders, whichever is earlier. Annexed hereto and marked as Annexure R-6 is the copy of charge sheet dated 27th July, 2015 and Annexure R-7 is the copy of communication dated 14.09.2015.
15. In the humble submission, the disciplinary proceedings have been initiated against the petitioner in view of serious incriminating facts having come to the notice of the authority. The answering respondent emphatically denies that the disciplinary proceedings against the petitioner has been taken as a result of or is influenced by the fact that complaints were made by the petitioner against Shri Ramjee. At all stages of the proceedings, the answering respondent, being uninfluenced by any other consideration, has followed the procedure under the regulations and assures to conduct the proceedings strictly in Page 43 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 accordance with the law."
7.5 With regard to the stand of the petitioner that he is a whistle blower and his complaint has resulted into exposing the dredging scam of the respondent-KPT, it was submitted that series of articles were published from 16th September, 2012, highlighting that a vessel had run aground in the access channel of the port pursuant to which the vigilance scrutiny of the dredging work had been undertaken by the Vigilance Department and upon inquiry, a report thereafter has been submitted on 19th October, 2013 which is available at Page- 621 of the petition.
7.6 It was submitted that the complaint made by the petitioner on 2nd October, 2012 to CVC seeking inquiry against Mr. M.A. Bhaskarachara for his involvement in the alleged dredging scam and another complaint was made on 31st October, 2014 and on 18th August, 2014 to CVC alleging involvement of CVO, KPT in indulging in corrupt practices, the respondent-KPT responded to the various complaints / representation of the petitioner vide communications dated 27th December, 2012, 24th June, 2014, 15th July, 2014, 23rd July, 2014, 11th August, 2014, 19th September, 2014, 28th October, 2014 and 3rd November, 2014, which are available at Page Nos. 314 & 341 to 358 on the record of this petition and the petitioner Page 44 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 was called upon to provide confirmation, as to whether he had actually sent such complaints to the authorities and he was also called upon to substantiate the allegations made along with the relevant material. However, it was submitted that the representations / complaints made by the petitioner were not taken cognizance of and not acted upon in absence of any material substantiating the allegations made by the petitioner. It was submitted that the petitioner has made more than one hundred complaints / RTI applications against officers of KPT to various authorities viz. President of India, PMO, Human Rights Commission, CVC etc. which have not been substantiated by him by submitting documents and evidences. It was therefore submitted that the complaints / representations of the petitioner at no point of time were taken cognizance, however, the petitioner seeks credit to himself for the inquiry undertaken by the respondent-KPT only with a view to discredit the disciplinary actions taken against him.
7.7 With regard to the contention of the petitioner of appointment of an ex-employee by the Chairman as the Inquiry Officer, stating that the Chairman is not an authority contemplated under Regulation 12 and therefore the inquiry proceedings are vitiated, it was submitted that Page 45 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Regulation 12 authorizes the Disciplinary Authority to delegate an inquiry to an authority, which includes a retired employee of the respondent-KPT and the same cannot be read narrowly as a public servant on duty only. The reliance was placed on the decision of the Supreme Court in the case of 'Union of India Vs. P.C. Ramakrishnayya' (Supra) and 'M.S. Patil (Dr.) Vs. Gulbarga University'13 and Union of India Vs. Alok Kumar' (Supra).
7.8 It was submitted that the scheme for empanelment of retired officers which has been approved by the Board of Trustees of the respondent-KPT provides for regulating the procedure and modalities for appointment and it is not the source of power to appoint an authority under Regulation 12(2).
7.9 With regard to the contention raised on behalf of the petitioner that the termination order dated 6th July, 2017 do not relate to the charges of misconduct during the discharge of duties and that the penalty of dismissal from service is disproportionate to the misconduct alleged and the inquiry relates to the appointment made in the year 1997 which is belated, it was submitted that the petitioner was appointed as Trade Promotion-cum-Public Relation 13 (2010) 10 SCC 63;
Page 46 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Officer on the basis of the declaration of qualifications made in the attestation form of the petitioner which clearly notes that if any declaration or information furnished by the petitioner proves to be false, he shall be liable to be removed from service.
7.10 It was submitted that the Government of India, Ministry of Shipping, directed all the major port trusts to verify from the service record of all the officers holding Class-I post whether they satisfy the conditions pertaining to educational qualification, experience etc. as per the recruitment rules vide communication dated 4th July, 2012 and therefore the responded-KPT had initiated the procedure for verifying the educational and other qualifications of all Class-I officers, including the petitioner. It was submitted that the petitioner was requested to provide the certificates and the original documents which were referred as Sr. Nos. 1 to 12 in Clause-3 of the note enclosed with the letter to provide the filled-up personal data form attached therewith. It was submitted that the petitioner failed to provide the personal data in the Form and therefore the departmental proceedings were instituted against the petitioner. On scrutinizing the record produced by the petitioner, the Inquiry Officer came to Page 47 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the conclusion that there is inconsistency and contradictions in the statement and therefore the petitioner did not give complete and correct information in the attestation Form.
7.11 It was submitted that the appointment of the petitioner as Trade Promotion- cum- Public Relation Officer was conditional and the appointment letter clearly stipulates that if any declaration or information furnished by the petitioner proves to be false or if he is found to have suppressed any material information, the petitioner shall be liable to be removed from the service and all such other actions as the respondent-KPT may deem necessary.
7.12 It was pointed out that in the disciplinary inquiry it was established that the appointment of the petitioner was contrary to the requisite qualifications as per the recruitment rules and therefore the appointment of the petitioner was void and hence the responded-KPT cannot be legally prevented from or to have waived the right to inquire into and to take steps against the petitioner. In support of this submission reliance was placed on the decision of the Apex Court in the case of 'M.P. Agro Industries Development Corporation Ltd. Vs. S.C. Pandey14', where, in Paragraph-23, it is observed 14 (2006) 2 SCC 716;
Page 48 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 as under:
"23. The Industrial Court as also the High Court applied the principles of estoppel on the finding that the respondent was transferred from Morena to Gwalior. If his appointment was void, being contrary to regulations, in our opinion, the procedural provisions like estoppel or waiver were not applicable. If an appointment made by the Branch Manager was wholly without jurisdiction, the order of appointment itself was void. Furthermore, the contention of the appellant had been that in terms of Regulation 16 of 1976 Regulations only the Managing Director of the Corporation could issue an offer of appointment. It has not been found by the Industrial Courts or the High Court that the Branch Manager and the Regional Manager were authorized to make such appointments. The appointment of the respondent, thus, must be held to have been made only to meet the exigencies of services and not in terms of the service regulations. The appointment of the Respondent, thus, could not have been made for filling up a regular vacancy for the purpose of invoking Rule 2 of the Standing Orders."
7.13 It was submitted that the petitioner even with his service duration cannot seek equity Page 49 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 for continuing to occupy a public post to which he was not eligible under the Regulations. In this regard, the reliance was placed on the observations made by the Apex Court in Paragraphs- 15 to 17 in the case of 'M.S. Patil (Dr.)' (Supra), which reads thus:
"15. Once the facts of the case are narrated, there remains hardly anything to adjudicate upon. The facts of the case lead to only one conclusion that the appellant was wrongly appointed to a post that was reserved for `Group B' category. The High Court has also found that the appellant's selection for appointment to the post was tainted by the participation of the Head of the Department of Kannada, who was related to him, in the selection process. In those facts and circumstances, all that is needed is to dismiss the appeal without further ado.
16. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and Page 50 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 from where he had resigned to join to this post.
17. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour."
7.14 With regard to the contention of the petitioner of overreaching the process of Court by passing the second order of termination of service dated 14th September, 2018 by the respondent-KPT more particularly when the earlier order dated 6th July, 2017 was passed to remove the petitioner from service, the second order of the dismissal from service of the petitioner is without jurisdiction, it was submitted that the charges against the petitioner of tampering with the confidential report of Chief Operations Manager-Off-Shore Oil Terminal(for short "COM- OOT") at 32 places and producing such a fabricated report before the Court in the criminal proceedings filed by the petitioner, has Page 51 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 been established by comparing the original report of COM with the report as produced by the petitioner in the Court in the disciplinary proceedings. It was also pointed out that during the course of disciplinary proceedings the author of the said report has confirmed that the report purported to be of COM as produced by the petitioner in the Criminal Court was not prepared by him. It was further pointed out that the petitioner did not lead any evidence nor has substantiated his defense during the disciplinary proceedings and on being asked as to how the petitioner was in possession of a confidential report made by COM-OOT, the petitioner responded stating that "as the matter is pending before the High Court of Gujarat it is improper on my party to divulge details since it is sub-judice".
7.15 It was submitted that the inference drawn by the petitioner in respect of each of independent departmental proceeding taken for distinct charges deemed to have been considered by the disciplinary authority while passing the order dated 6th July, 2017 is clearly misplaced. It was further submitted that the order dated 6th July, 2017 is confined to the charges for which the petitioner was issued memorandum on 27th July, 2015 and which has been established against the petitioner in the departmental proceedings.
Page 52 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 7.16 It was submitted that both the departmental proceedings were separate inquiries in respect of different charges of misconduct and there is no bar in law in conducting two separate inquiries against a public servant and for concluding the said proceedings by passing two separate orders of dismissal and removal one after another and one would operate while another is rendered ineffective. The reliance was placed on following observations made in the decision of this Court dated 26th July, 2017, rendered in Special Civil Application No. 1697 of 2017:
"4.00. Ms. M.A. Gogia, learned advocate has appeared on behalf of the petitioner and Mr. Parth Bhatt, learned advocate has appeared on behalf of the respondent department.
4.01 In so far as challenge to the impugned judgment and order passed by the learned tribunal passed in O.A. No.320 of 2012, confirming the order of removal / dismissal dated 13/4/2007 is concerned, Ms. Gogia, learned advocate appearing on behalf of the petitioner has vehemently submitted that as earlier vide order dated 20/12/2006, the petitioner was already dismissed / removed from service and therefore, subsequently when the order of dismissal dated 13/4/2007 was passed removing the petitioner from service, Page 53 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the petitioner was not in service and after 20/12/2006, there was no employer and employee relation and therefore the order dated 13/4/2007 removing the petitioner from service deserves to be quashed and set aside.
4.02. By making above submissions and relying upon the decision of the Punjab and Haryana High Court in the case of Union of India Vs. Burma Nand, reported in 1980 Lawsuit (P&H) 481; decision of the Hon'ble Supreme Court in the case of Employee in relation to Versus Their Workmen, reported in (1996) 3 SCC 267 and the decision of the Andhra Pradesh High Court in the case of Ramarao A. Versus Deputy General Manager, Canara Bank and others, reported in 2001(III) LLJ (Suppl) 1128, it is requested to admit present petitions.
XXX XXX XXX 5.01. Mr.Bhatt, learned advocate appearing on behalf of the respondents has vehemently submitted that as such on merits, the learned tribunal has confirmed the order of dismissal / removal dated 13/4/2007. It is submitted that as such there is no bar to hold two inquiries simultaneously. It is submitted that in the present case first departmental inquiry was initiated vide Memorandum of Charges dated 9/3/2004 and during the Page 54 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 pendency of the said inquiry, another departmental inquiry was initiated vide Memorandum of Charges dated 24/27.3.2006. it is submitted that thereafter in the first departmental inquiry, the petitioner came to be removed from service vide order dated 20/12/2006 and subsequently in the second departmental inquiry, the petitioner came to be removed from service vide order dated 13/4/2007. it is submitted that therefore when there were two separate departmental inquiries, two orders of removal came to be passed. It is submitted that if the submission on behalf of the petitioner is accepted, in that case, it would nullify the subsequent order of dismissal dated 13/4/2007 though the learned tribunal has on merits confirmed the order of removal dated 13/4/2007. It is submitted that in the facts and circumstances of the case, none of the decisions relied upon by the learned advocate appearing on behalf of the petitioner shall be applicable to the facts of the case on hand.
XXX XXX XXX 6.01. Now so far as challenge to the impugned order passed by the learned tribunal in O.A. No.320 of 2012 is concerned, it is required to be noted that while passing the impugned Page 55 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 judgment and order passed in O.A. NO.320 of 2012, the learned tribunal has confirmed the order of removal dated 13/4/2007. The impugned judgment and order passed by the learned tribunal is assailed mainly on the ground that when the order of removal came to be passed on 13/4/2007 vide order dated 20/12/2006, the petitioner was already removed from service and therefore, subsequent order of dismissal dated 13/4/2007 is bad in law. According to the petitioner there cannot be two orders of dismissal. In support of above submission, the learned advocate appearing on behalf of the petitioner has relied upon the aforesaid decisions.
However, it is required to be noted that first departmental inquiry was initiated pursuant to the Memorandum of Charge dated 9/3/2004. While the said departmental inquiry was pending, the petitioner committed another misconduct and therefore another separate departmental inquiry was initiated pursuant to the Memorandum of Charges dated 24/27.3.2006. Both the departmental inquiries were septate departmental inquiries with respect to different charges / misconduct. Even in the case of Burma Nand (supra) which has been relied upon by the learned advocate appearing on behalf of the petitioner, Punjab Page 56 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 and Haryana High Court has specifically observed and held that there is no bar for two separate inquiries against public servant to conclude one after other. It is further observed and held that there is no bar for recording two separate orders for dismissal as a result of culmination of two separate inquiries. However, according to the Punjab and Haryana High Court, at one point of time, only one order can operate and not both orders, as an employee cannot be dismissed twice from service and there cannot be dismissal of an already dismissed servant. The aforesaid observations are required to be considered considering the controversy in the case before the Punjab and Haryana High Court. Before the Punjab and Haryana High Court, there were two separate departmental inquiries and two separate dismissal orders were passed. By observing the aforesaid, thereafter Punjab and Haryana High Court allowed the appeal preferred by the Union of India and held that second order of removal could be passed by the authority but it could not be pressed into operation during the subsistence of the earlier operated order of dismissal. Therefore, as such the aforesaid decision of the Punjab and Haryana High Court shall not assist the petitioner but can assist the respondent.Page 57 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 6.02. Now, so far as the reliance placed uopn the decision of the the Hon'ble Supreme Court in the case of Employer in relation to Versus Their Workmen (supra) is concerned, on facts, the said decision shall not be applicable to the facts of the case on hand. In the case before the Hon'ble Supreme Court, the workmen were working in the canteen and their dismissal came to be challenged and they claimed to be employees of the Reserve bank of India. To that, the Hon'ble Supreme Court observed that there was no relationship of employer and employee, as the persons employed in the canteen were not subject to the rigour and discipline of the rules and methods of selection of Reserve Bank of India.
XXX XXX XXX 6.04. Considering the aforesaid, when there were two different separate departmental inquiries and two different orders of removal /dismissal came to be passed, at the most it can be said that both the orders of dismissal cannot be permitted to be operated simultaneously. However, in case of one departmental inquiry, order of removal is set aside and in case of second departmental inquiry, order of dismissal / removal is confirmed, thereafter the same shall be Page 58 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 permitted to be operated. Under the circumstances, we see no reason to interfere with the impugned judgement and order passed by the learned tribunal in O.A. No.320 of 2012. We confirmed the impugned judgement and order passed by the learned tribunal in O.A. No.320 of 2012. Hence present Special Civil Application No. 1697 of 2017 deserves to be dismissed."
7.17 It was submitted that the petitioner has preferred this petition for setting aside the show-cause notice dated 29th May, 2015 and the order of suspension dated 15th June, 2015. However, in the affidavit-in-reply filed for and on behalf of the respondent-KPT the reference is made to various inquiries against the petitioner and specifically pointed out the disciplinary proceedings in respect of the tampered / forged report purportedly of COM-OOT of the respondent- KPT filed by the petitioner in the criminal proceedings. It was submitted that there is no challenge to the memorandum and the other proceedings initiated by the respondent-KPT pursuant to the charges leveled against the petitioner for tampering / forged report of COM- OOT, which reads thus;
" Kandla Port Trust Page 59 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 GENERAL ADMN DEPTT ADMINISTRATIVE OFFICE Secretary's Office Post Box No. 50 Website: www.kandlaport.gov.in GANDHIDHAM Fax: (02836) 233172 (KUTCH) Tel No.: (02836) 233172 (GUJARAT) PIN 37021 No. KPT/4028/VIG/158 Speed Post MEMORANDUM It is proposed to hold an inquiry against Shri Sanjay Bhaty, TP&PRO, working in the
G.A. Department, under Regulation-12 of the Kandla Port Employees (Classification, Control & Appeal) Amendment Regulations, 2004. The substance of the imputations of misconduct in respect of which the inquiry is proposed to be held is set out in the enclosed statement of Articles of Charge (Annexure-J). A Statement of the imputations of misconduct in support of each article of charge is enclosed (Annexure-III). A list of documents by which the articles of charge is proposed to be substantiated is also enclosed (Annexure-II). A list of Witnesses through which the documents are to be substantiated is enclosed as Annexure-IV.
2. Shri. Sanjay Bhaty, TP&PRO, is directed to submit within 15 days of the receipt of this Memorandum a written statement of his defence and also to state whether he desires to be Page 60 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 heard in person.
3. Shri. Sanjay Bhaty, TP&PRO, is informed that an Inquiry will be held only in respect of those articles of charge which are not admitted. He should, therefore, specifically admit or deny each article of charge.
4. Shri. Sanjay Bhaty, TP&PRO, is further informed that if he does not submit his written.statement of defence within the period specified in para-2 above, or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the: provisions of Regulation-12 of the Kandla Port Employees (Classification, Control & Appeal) Amendment Regulations, 2004, or the orders/directions issued in pursuance of the said Rule/Regulation, the Inquiring Authority may hold the inquiry against him ex parte.
5. Attention of Shri Sanjay Bhaty, TP&PRO, is invited to Regulation 17 of the Kandla Port Employees (Conduct) Regulations, 1964, under which no Port employee shall bring or attempt to bring any political or outside influence to bear upon any Superior Authority to further his interests in respect of matters pertaining to his service-under the Port Trust. If any representation is received on Page 61 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 his behalf from any other person in respect of any matter dealt with in these proceedings, it will be-presumed that Shri Sanjay Bhaty is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Regulation-17 of the Kandla Port Employees (Conduct) Regulations, 1964.
6. The receipt of this Memorandum may be acknowledged.
Encl: As above Chairman & Disciplinary Authority Shri Sanjay Bhaty (Through Secretary KPT) TP&PRO, KPT (Under Suspension), General Administration Department, C-33, Gopalpuri Colony, Gandhidham-Kutch-370240.
Copy to: The CVO, KPT
XXX XXX XXX
Statement-I
STATEMENT OF ARTICLES OF CHARGE FRAMED
AGAINST SHRI SANJAY BHATY, TP& PRO, KANDLA PORT TRUST Page 62 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 _________________________________________ Article --I Shri Sanjay Bhaty, while functioning as TP&PRO, KPT, has filed a private complaint against Shri P. Ramjee, Chief Vigilance Officer, KPT, in the Hon'ble Court of Additional Chief Judicial Magistrate, vide Criminal Inquiry No.322/2015, without seeking permission of the Competent Authority.
Article -- II Shri Sanjay Bhaty, TP&PRO, submitted a report in the matter of Case No.322/2015 in the Court of Additional Chief Judicial Magistrate, Gandhidham, on affidavit, claiming to be a report of Dr. G.S. Rao, COM OOT Vadinar in the contract of Dredging work, carried out. by M/s Jaisu Shipping Company Pvt. Ltd. during the period from 27.12.2010 to 26.01.2013, alongwith other documents without any 'authority.
Article --III Shri Sanjay Bhaty, TP&PRO, filed a tampered / forged report claiming to be the report of Page 63 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Dr. G.S. Rao, COM, OOT Vadinar, KPT, on Affidavit in the matter of Case No.322/2015 before the Hon'ble Court of Additional Chief Judicial Magistrate, Gandhidham, with a view to mislead the court and malign the image of Shri P. Ramjee, CVO, KPT, and the KPT Management.
Article --IV Shri Sanjay Bhaty, TP&PRO, misused his position by tampering/forging an official report of Dr. G.S. Rao, COM, OOT Vadinar, KPT claiming to be prepared by Dr G.S. Rao, in connecion with the contract of Dredging Work, carried out by M/s. Jaisu Shipping Company Pvt. Ltd. during the period from 27.12.2010 to 26.1.2013, which is a confidential one, and submitted before the Hon'ble Court of Additional Judicial Magistrate, Gandhidham, unauthorizedly.
Chairman &
Disciplinary Authority
XXX XXX XXX
Annexure-II
STATEMENT OF-IMPUTATIONS OF MISCONDUCT OF
Page 64 of 143
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C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021
SHRI SANJAY BHATY, TP & PRO, IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST HIM AT ANNEXURE-I] Article -- I Shri Sanjay Bhaty, while functioning as TP & PRO, filed a private complaint against Shri P. Ramjee, CVO, KPT, in the Hon'ble Court of Additional Chief Judicial Magistrate, Gandhidham, vide Crimina] Inquiry No.322/2015, unauthorizedly and acted in a manner prejudicial to the interest of the Port. The above act on the part of Shri Sanjay Bhaty, TP&PRO, KPT, is unbecoming of an officer of Kandla Port Trust and constitutes a serious misconduct under Regulation 3 (8) Ga), 3 (8) (iv), 3 (8) (vi) & Regulation - 8 of the Kandla Port Employees' (Conduct) Regulations, 1964.
Article -- II Shri: Sanjay Bhaty, TP&PRO, while functioning as TP&PRO, KPT, "submitted a report in the matter of Case No.322/2015 in the Hon'ble Additional Chief Judicial Magistrate, Gandhidham(Kutch), on affidavit, claiming to be a report of Dr. GS Rao, COM, OOT Vadinar, KPT, in the contract of Dredging work, carried out by M/s Jaisu Shipping Company Page 65 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Pvt. Ltd., during the period from 27.12.2010 to 26.01.2013 without any Authority. Such an act on the part of Shri Sanjay Bhaty, TP&PRO, KPT, is unbecoming of an officer of Kandla Port Trust and constitutes a serious misconduct under Regulation 3 (8) (i), 3 (8)
(iv), 3(8)(v), 3 (8)(vi) & Regulation 8 of the Kandla Port Employees (Conduct) Regulations, 1964.
Article -- III Shri Sanjay Bhaty, TP&PRO, while functioning as TP&PRO, KPT, filed a tampered / forged report, claiming to be the report of Dr. G.S. Rao, COM, OOT Vadinar, KPT, on Affidavit in the matter of Case No.322/2015 before the Hon'ble Court of Additional Chief Judicial Magistrate, Gandhidham(Kutch). Such an act of Shri Sanjay Bhaty, TP&PRO, KPT, to mislead the Hon'ble Court has not only maligned the image of Shri P. Ramjee, CVO, KPT, but also brought discredit to the KPT Management and unbecoming of an officer of Kandla Port Trust, it constitutes 4 serious misconduct under Regulation 3 (8) (i), 3 (8) (iv) 3 (8)
(v), 3 (8) (vi) & Regulation 8 of the Kandla Port Employees' (Conduct) Regulations, 1964.
Article-IV Page 66 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Shri Sanjay Bhaty, TP&PRO, while functioning as TP&PRO, KPT, misused his position and tampered / forged the report by claiming it to be the official report of Dr.G,S. Rao, COM, OOT Vadinar, KPT, prepared in connection with contract of Dredging work carried out by M/s Jaisu Shipping Company Pvt. Ltd., during the period from 27.12.2010 to 26.1.13, which is a confidential document, and submitted before the Hon'ble Court of Additional Chief 'Judicial Magistrate, Gandhidham, unauthorizedly in the matter of Case No.322/2015. Such an act on the part of Shri Sanjay Bhaty, TP&PRO, KPT, is unbecoming of an officer of Kandla Port Trust and constitutes a serious misconduct under Regulation 3 (8) (i), 3 (8) (rv), 3 (8) (vi) & Regulation 8 of the Kandla Port Employees' (Conduct) Regulations, 1964 Chairman & Disciplinary Authority XXX XXX XXX Annexure-III LIST OF DOCUMENTS TO BE RELIED UPON TO SUBSTANTIATE THE ARTICLES OF CHARGE FRAMED AGAINST SHRI SANJAY BHATY, TP & PRO, KANDLA PORT TRUST Page 67 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 ____________________________________________
1. A certified copy of the report on the matter of Dredging work by M/s Jaisu Shipping Company Pvt. Ltd. carried out during the period from 27.12.2010 to 26.1.2013 and other documents filed by Shri Sanjay Bhaty, TP&PRO, in the matter of Case No.322/2015 before the Hon'ble Court of Additional Chief Judicial Magistrate, Gandhidham.
2. A copy of the original report prepared and submitted by Dr. G.S. Rao, COM, OOT, to KPT in the matter of Dredging work by M/s Jaisu Shipping Company Pvt. Ltd. carried out during the period from 27.12.2010 to 26.1.2013.
3. A Statement of Comparison of Dr. G.S. Rao, COM, OOT "Report in the matter of Dredging Work by M/s Jaisu Shipping Company Pvt. Ltd, carried out during the period from 27.12.2010 to 26.1.2013, vis-a-vis Certified Copy of the report obtained from the Hon'ble Court of Additional Chief Judicial Magistrate, Gandhidham, filed by Shri Sanjay Bhaty, TP&PRO, in the matter of Case No.322/2015 claiming to be the report of Dr. G.S.Rao.
4. Any other documents as may be required during the course of inquiry proceedings. _____________________________________________ Page 68 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Annexure-IV LIST OF WITNESSES TO BE RELIED UPON TO SUBSTANTIATE THE ARTICLES OF CHARGE FRAMED AGAINST SHRI SANJAY BHATY, TP&PRO, KANDLA PORT TRUST _____________________________________________
1. Dr. G.S.Rao, COM, OOT Vadinar, KPT
2. Shri G.Suresh, ex-Dy CVO, KPT
3. Shri Nemichand, Vigilance Inspector
4. Any other witness (s) / document (s) that may be required during the course of inquiry proceedings.
Chairman & Disciplinary Authority"
7.18 It was submitted that till the order dated 14th September, 2018 was passed by the respondent- KPT, there was no challenge either to the show- cause notice or the charge-sheets issued for the said charges by the petitioner and the same was not subject-matter of this petition. It was therefore submitted that the respondent-KPT did not try to overreach the process of this Court in any manner. It was also submitted that assuming to the contrary, the Court may examine the validity of the order closely and in the facts of the case no interference may be made with the order dated 14th September, 2018 which has been passed after providing the due opportunity of hearing to the petitioner and after following the Page 69 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 procedure prescribed under the Regulations in due consideration of the gravity of the charges and the misconduct which has been established against the petitioner during the course of departmental inquiry.
7.19 It was therefore submitted that the pendency of this petition by itself would be no bar as is sought to be canvassed against the proceedings unless and until specific prayer in this regard is made and the order was passed by the Court. The reliance was placed on the decision of the Apex Court in the case of 'Madan Kumar Singh (D) Through Legal Representative Vs. District Magistrate Sultanpur & Others15', where it is held that;
"20. It is trite to say that mere filing of a Petition, Appeal or Suit, would by itself not operate as stay until specific prayer in this regard is made and orders thereon are passed.
21. There is nothing on record to show that any stay was granted in favour of any party, restraining the respondents not to deliver the papers of the truck to the appellant. It would go to show that respondents were unlawfully holding back the papers with them, 15 (2009) 9 SCC 79;Page 70 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 for which, otherwise they were not entitled to do so."
8. In rejoinder learned Advocate Mr. Clerk submitted that in so far as the reliance placed on the decision in the case of this Court in Special Civil Application No. 1697 of 2017 is concerned, said decision would not be applicable in the facts of this case on hand as the petitioner in the said case was alleged to have committed violation of Rules 133(1) and 134(4) of Branch Post Office Rules 6th Edition of Postal Department and in another case the petitioner was charged for temporary misappropriation of the government funds whereas in the present case, there is no allegation leveled against the petitioner and all the seven inquires were conducted simultaneously and reports were submitted during November, 2016 and the inquiry officer / disciplinary authority chose the inquiry report dated 24th November, 2016 amongst all inquiry reports, to pass the termination order dated 6th July, 2017. It was therefore submitted that none of the charges are relating to the performance of the duty or the duty performed by the petitioner inasmuch as the first charge-sheet was issued on 27th July, 2015 and five charge-sheets were issued on 5th November, 2015 and the last charge-sheet was issued on 18th Page 71 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 February, 2016. It was therefore submitted that the averments made on behalf of the respondent- KPT are far from the truth and only with a view to mislead the Court.
8.1 With regard to the averments made in relation to the submission of the confidential report before the learned CJM at Gandhidham- Kachchh, it was submitted that such averments made by the respondents are not sustainable and it is only the counter-blast to the action taken against Mr. P. Ramjee and the disclosure made against him long back in the year 2014. It was pointed out that on the very next day of the order passed by the learned Chief Judicial Magistrate, at Gadhidham-Kachchh, all the daily newspapers of the region published the articles and therefore the show-cause notices were issued to the petitioner on 29th May, 2015.
8.2 It was submitted that the subsequent charge-sheet is the outcome of vengeance on the part of officers of the respondent-KPT as Mr. P. Ramjee had verified educational qualification from the Bhopal University and from "Barely" on 24th April, 2015 and thereafter the letter was written to Superintendent of Police, "Barely" for verification of the Diploma Course on 12th April, 2015 and the communication dated 28th April, 2015 Page 72 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 issued by the police is carrying altogether a different information. It was therefore submitted that it is only Mr. P. Ramjee who was twisting the facts to his advantage and using the government machinery. It was submitted that the decision relied on by the respondent-KPT with regard to the disputed questions of facts and raising the contention of not making accused a party in the proceedings is not applicable as Mr. P. Ramjee is made an accused in the criminal complaint, it was submitted that the disclosure made by the petitioner in respect of Mr. M.A. Bhaskarachara and Mr. P. Ramjee, however, unfortunately CVC did not forward the disclosure to Mr. P. Ramjee without investigation for which the petitioner is being victimized and hence the penalty of removal from service for making disclosure is very harsh.
8.3 It was further submitted that the averments made by the respondent-KPT, referring to Page Nos. 621 and 622 of this petition, are vague and manipulated.
8.4 With regard to the appointment of the inquiry officer, it was reiterated that the respondent-KPT could not have appointed the retired employee unless such regulation is approved and notified in the gazette of the Page 73 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Ministry of Shipping.
8.5 With regard to the reference to the verification of the educational qualifications of the officers of Class-I ranks pursuant to the directions received from the Ministry of Shipping, it was submitted that there is no record available for appointment of the officers with the respondent-KPT and the respondent-KPT has not verified the educational qualifications of any of the officers during the period from 2012 to 2021. It was therefore submitted that issuance of various charge-sheets under the Regulations of misconduct are illegal and bad in law.
8.6 It was also submitted that the petitioner has not made any complaint but has made disclosures in the public interest and in the interest of public exchequer at large, which are being termed as 74 complaints by the respondent- KPT inasmuch as such disclosures were pertaining to four irregularities and the rest were only reminders. It was therefore submitted that both the orders of removal and dismissal from service along with the charge-sheets were challenged and therefore draft amendment was also moved, which is allowed by this Court and therefore, the reliance placed on the decision of the Supreme Page 74 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Court in the case of 'SBI Vs. Narendra Kumar Pandey' (Supra) is not applicable in the facts of the case.
8.7 It was submitted that the entire inquiry was at the behest of Mr. P. Ramjee and as it is evident from the letter that CVC has not signed the same on the basis of which the inquiry was carried out against the petitioner and therefore it was submitted that the so called vigilance inquiry initiated against the petitioner was at the behest of Mr. P. Ramjee having vengeance against the petitioner as the petitioner filed criminal complaint against him.
8.8 It was therefore, submitted that this petition requires to be allowed by quashing and setting aside the charge-sheets and inquiry reports as well as order of removal from service dated 6th July, 2017 and the order of dismissal from service dated 14th September, 2018.
9. Having heard the learned Advocates for the respective parties and having gone through the material on record, it appears that after joining the services by the petitioner with respondent- KPT in the year 1997 till 2010-2011, the petitioner discharged his duties without any issue. However, from the year 2012-2013, the petitioner had some problems with the higher Page 75 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 officials of the respondent-KPT and taking advantage of the dredging scam of the respondent- KPT, the petitioner started making complaints / disclosures before various authorities, including the CVC. The petitioner has also filed a criminal complaint against Mr. P. Ramjee who was CVO of the respondent-KPT. It is pertinent to note that the petitioner has not joined Mr. P. Ramjee as a party respondent in this petition, though; the allegations are made against him in this petition for mala fide as well as of ulterior motive. Therefore, the allegations of conduct or mala fide on the part of Mr. P. Ramjee in the disciplinary proceedings cannot be looked into in this petition in view of the decision of the Apex Court in the case of 'Purshottam Kumar Jha' (Supra), wherein it is held as under;
"22. As to mala-fide exercise of power, the High Court held that neither sufficient particulars were placed on record nor the officers were joined as party respondents so as to enable them to make the position clear by filing a counter affidavit. In the absence of specific materials and in absence of officers, the Court was right in not upholding the contention that the action was mala-fide."Page 76 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 And in case of 'Medley Minerals India Ltd.' (Supra), it is held as under:
"16. We are unable to accept the contention of the learned counsel for the 4th respondent that the action of the State Government was vitiated by malafides. It is trite that plea of malafides has to be specific and demonstrable. Not only this, but the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged was contravention of the Rules and, consequently, legal malafides and nothing beyond that. The argument of malafides must therefore fail. Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Page 77 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Jitendra Kumar Lohia could not have enured to the benefit of the appellant company. According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, the assumption of the State Government, that the application for renewal of the quarry lease could be treated as a continuation of Jitendra Kumar Lohia's application, was erroneous and unsustainable in law. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enuring for the benefit of the appellant company. If the State Government had treated them to be separate legal entities, there was no question of imposing a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie this contention of the learned counsel for the fourth respondent. It cannot be accepted."
9.1 It is also pertinent to note that the Page 78 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 allegations of bias against the petitioner has been denied by the respondent-KPT in the affidavit-in-reply filed and such allegations are not supported by any substantial or independent record. It is the settled legal position that the allegations of bias or ill-will or mala fide in the course of departmental proceedings are largely a question of facts and the same cannot be decided merely on the basis of assertions made in the affidavit filed by the petitioner as is held by the Apex Court in 'Kamini Kumar Das Choudhary' (Supra)as under:
"6. In the case before us, we find that at least the following questions on which both sides made conflicting assertions in affidavits before the Court, were seriously disputed : (1) Was the appellant denied due opportunity to adduce any relevant evidence or to cross-examine witnesses? (2) Did the Deputy Commissioner of Police, who had passed the dismissal order, become a complainant or a necessary witness in the case so that be could not award punishments simply because he had passed the order which the appellant was shown to have disobeyed ? (3) Was there any actual bias on the part of the dismissing authority, or, in other words, Page 79 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 was the order of dismissal vitiated by malafides? Perhaps, it was for this reason, as the Division Bench had observed, that the appellant did not press his case on disputed questions of fact before the Single Judge. Although, the appellant raised these points in appeal, yet, the Division Bench was only impressed by the submission that the Deputy Commissioner of Police was in the position of a complainant who could not act as a Judge. But we find that the actual violation of the order of the Deputy Commissioner was detected by other officers. It is true that the Enquiring Officer had made certain charges against the appellant when he found him returning from somewhere, one furlong removed from the place where, according to orders given, the appellant should have been present then, yet, he had merely collected evidence against the appellant and made a report. It could more properly be said that he and not the Deputy Commissioner of Police was the accusing officer. In such cases it is undoubtedly just and proper that the enquiry and punishment proceedings should both be entrusted to other officers who may appear to be more Page 80 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 unbiased and independent. Nonetheless, the questions whether there was bias, ill- will, malafide, or a due opportunity to be heard or to produce evidence, given in the course of departmental proceedings, are so largely questions of fact that it is difficult to decide them merely on conflicting assertions made by affidavits given by the two sides. The mere fact that the Deputy Commissioner's orders were alleged to have been disobeyed did not make him a complainant and a witness. We, therefore, think that, quite apart from the ground of delay in filing the Writ Petition, the assertions and counter- assertions made on merits were of such a nature that, in accordance with the rule laid down by this Court in Union of India v. T. R. Varma(1) the Writ Petition could have been dismissed on the ground that it is not the practice of Courts to decide such disputed questions of fact in proceedings under Article 226 of the Constitution. Other proceedings are more appropriate for a just and proper decision of such questions."
9.2 It is also disclosed by the respondent- KPT that the case is registered on 27th January, Page 81 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 2015 as per the Vigilance Manual and the disciplinary authority ordered initiation of proceedings as per the Regulations against the petitioner and as such it is not true on the part of the petitioner to say that the show-cause notices were issued in retaliation to the order dated 27th May, 2015 passed by the learned Chief Judicial Magistrate, at Gandhidham-Kachchh. The petitioner has not denied in affidavit-in- rejoinder the fact of initiation of disciplinary proceedings against him in January, 2015. Further, the petitioner has not answered the aforesaid facts asserted by the respondent-KPT in Paragraphs- 12 to 15 of the affidavit-in-reply.
9.3 However, in view of the facts which have been narrated herein above, the same requires to be revisited to deal with the preliminary objections raised for and on behalf of the respondent-KPT to recapitulate that the petitioner filed this petition challenging the show-cause notices dated 29th May, 2015 and the order of suspension dated 15th June, 2015 and during the pendency of this petition the respondent-KPT issued two orders, i.e. one of removal from service of the petitioner dated 6th July, 2017 and the second order of dismissal from service of the petitioner dated 14th September, 2018, and therefore, it would not be in the Page 82 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 interest of justice to relegate the petitioner to avail alternative remedy of filing appeal under the Regulations, 2004, and therefore, the objections raised by the respondent-KPT are overruled.
9.4 With regard to the contention of the petitioner that the disciplinary proceedings initiated are biased since the same were instituted by Mr. P. Ramjee, CVO of the respondent-KPT, against whom the petitioner has filed a criminal complaint dated 10th April, 2015 is concerned, it is pertinent to note that the petitioner has not joined Mr. P. Ramjee as the party-respondent in this petition so as to answer the allegations leveled against him in his personal capacity with regard to the mala fide and ulterior motive attributed to him and as observed earlier, this Court is not inclined to look into such allegations of mala fide and ulterior motive in his absence. In absence of any specific material and in absence of Mr. P. Ramjee, no findings can be arrived at that the action of issuing show-cause notices against the petitioner by the respondent-KPT was mala fide.
9.5 It is not in dispute that the petitioner has made various complaints / disclosures as a whistle blower for the the dredging scam. However, it is also pertinent to note that no Page 83 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 action is taken by any authority on the basis of the complaints / disclosures, which have been made by the petitioner from the year 2012 onwards. The petitioner was time and again asked to substantiate such claims / disclosures with material by the CVC as well as CVO of the respondent-KPT. The petitioner has failed to place on record any material or evidence in support of his so called complaints / disclosures made to the CVC and other authorities. It appears that the petitioner failed to give any prima facie material or evidence as the basis of such complaints / disclosures. Reliance placed by the petitioner on the recovery made by the respondent-KPT is not due to the complaints / disclosures made by the petitioner and the petitioner is taking such a credit without any basis to justify such action on the part. In this regard it would be pertinent to note the averments made on oath for and on behalf of the respondent-KPT in the affidavit-in-reply filed by it which reads as under;
"5. Without prejudice, it is humbly submitted that the petitioner is a habitual complainant and has time and again made frivolous and baseless complaints against the officials of the Port of Kandla with an ulterior motive. It Page 84 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 also appears that the petitioner has instituted proceedings / applications with a view to derive pecuniary benefits.
6. The petitioner appears to have made as many as 73 complaints to various authorities against different officials of the Kandla Port. Most of the complaints have not been entertained since the petitioner had not provided sufficient details and evidences in support of the complaints. Annexed hereto and marked as ANNEXURE R.1 is the copy of list of complaints.
7. The petitioner has filed as many as 13 complaints with the National Human Rights Commission, all of which have been dismissed by the National Human Rights Commission. Annexed hereto and marked as ANNEXURE R.2 is the copy of the list of complaints.
8. The petitioner had also preferred a petition before the Central Administrative Tribunal, New Delhi, challenging the initial appointment of the then Deputy Chairman, Kandla Port Trust, alleging that Page 85 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 initial appointment of the respondent therein with the New Mangalore Port Trust in the year 1992-93 was illegal. The learned Bench of the Central Administrative Tribunal vide its order dated 10.01.2014, dismiss the petition by imposing the cost of Rs. 1 lac on the applicant therein - petitioner herein for filing a frivolous litigation. Annexed hereto and marked as ANNEXURE R.3 is the copy of order dated 10.01.2014.
9. The petitioner suffers from a blemish service track record and there are departmental proceeding/s commenced in the past also against the petitioner.
(i) First Stage Advice by the Central Vigilance Commission for initiation of major penalty proceeding against petitioner for charges of illegal gratification, favoritism and demanding commission / gratification from various newspapers publication / agency in the year 2009. The charge of gratification against the officers issued, vide charge sheet dated 9.12.2009. One of the charges established by the Page 86 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Commissioner for Departmental Inquiries, the view of the Disciplinary Authority for imposing penalty to be awarded has been sent to the Central Vigilance Commission seeking second stage advice, which is pending.
(ii) Charge sheet was issued for
disobedience leading to undue
expenditure in the year 2001.
(iii) Charge Sheet issued for making direct reference / representation to the authorities like the President of India, the Prime Minister, Sitting Minister's of Union of India, without forwarding it through the proper channel.(Year 2010)"
9.6 Thus, from the above averments it is clear that the petitioner is not having any unblemished record as projected in this petition but the petitioner is trying to take advantage of the dredging scam.
9.7 On perusal of the entire inquiry proceedings with respect to the charge-sheets issued against the petitioner, it appears that the petitioner has not been able to demonstrate Page 87 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 or substantiate his defense, but, he is avoiding the disciplinary proceedings by filing vague replies and highlighting his status as a whistle blower.
9.8 So far as the contention of the petitioner with regard to the appointment of an ex-employee of the respondent-KPT as Inquiry Office is concerned, Regulation 12(2) of the Regulations, 2004 defines the authority and reads as under:
"Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into truth of any imputation of misconduct or misbehavior against the board employee, which may itself inquire into or appoint under this regulation an authority to inquire into the truth thereof."
9.9 From the above provision, it is clear that Regulation 12 of Regulations, 2004 authorizes the Disciplinary Authority or delegate authority and the term 'Authority' includes a retired employee of the respondent-KPT and it cannot be read narrowly as 'a public servant on duty' only, as is held by the Apex Court in the case of 'Union of India & Others Vs. P.C. Page 88 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Ramkrishnayya'16 wherein it is observed and held as under:
"16. In Alok Kumar this Court considered in great detail, the meaning of the word "authority" occurring in Rule 9(3) and came to find and hold that a retired officer could also be vested with the delegated authority of the Disciplinary Authority (see paragraphs 26-62) to hold the inquiry. It may also be noted that in Alok Kumar, this Court also considered the decision in Ravi Malik vs. National Film Development Corporation Ltd. (2004) 13 SCC 427 and distinguished it by pointing out that it was in the context of Rule 23 (b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. In paragraph 45 of the judgment, the Court observed as follows:
"45. Reliance placed by the respondents upon the judgment of this Court in Ravi Malik is hardly of any assistance to them. Firstly, the facts and the rules falling for consideration before this Court in that case were entirely different. Secondly, the Court was 16 (2010) 8 SCC 644;Page 89 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 concerned with the expression "public servant" appearing in Rule 23(b) of the Service Rules and Regulations,1982 of the National Film Development Corporation. The Court expressed the view that "public servant" should be understood in its common parlance and a retired officer would not fall within the meaning of "public servant", as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9(2) as well as Section 3 of the Act have used a very different expression i.e. "other authority" and "person/persons". In other words, the absence of the words "public servant" of the Government are conspicuous by their very absence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the common parlance."
And in the case of 'Union of India Vs. Alok Kumar' (Supra), where, the Apex Court held thus:
"29. We have already clarified it above, Page 90 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 that the provisions of the Act are applicable to a very limited class of persons i.e., the officers who are removable or liable to be dismissed from service only with the sanction of the Government. The Rules, as framed, are applicable to non-gazetted officers and officials of the Department of Railways except Grade-A officers specified under Schedule 3 of the Rules. Thus, under the scheme of the Rules and the Act and particularly, keeping in view the preamble of the Act, it is not correct to say that absolute discretion is vested in the authorities concerned to subject a person to departmental inquiries in terms of the Rules or the Act. They have to exercise the power in accordance with the provisions of the relevant statute. Such an approach is amply indicated even in the language of Rule 9(2).
30. The Rules require the disciplinary authority to form an opinion that the grounds for inquiry into the truth of imputations of misconduct or misbehaviour against the railway servant exists. Further, that they have enquired into the matter. Then, such inquiry may be Page 91 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 conducted by the disciplinary authority itself or it may appoint under the Rules a Board of Inquiry or other authority to enquire into the truth thereof. Formation of such an opinion is a condition precedent for the disciplinary authority, whether it intends to conduct the inquiry under the Rules or under the Act as the case may be. The expression "as the case may be" clearly suggests that law which will control such departmental inquiry would depend upon the class of officers/officials whose misconduct or misbehaviour subject them to such inquiry. If the employee is covered under the Act, the disciplinary authority shall have to appoint an inquiry officer and proceed with the inquiry under the provisions of the Act, whereas if he is covered under the Rules, the procedure prescribed under the Rules will have to be followed.
31. Other important feature in the language of the Rule is appoint under this Rule a Board of Inquiry or other Authority. What shall be the constitution of the Board of Inquiry and how the same would proceed further with the inquiry has been stated in sub-rules 3, 4 and 5 of Page 92 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Rule 9 of the Rules. The expression "other authority" has neither been explained nor defined under the Rules. In terms of Rule 2(1) (2), the words which have not been defined under these Rules shall be deemed to have been assigned the same meaning as assigned under the Indian Railway Act, 1890.
32. Even the Indian Railway Act does not define the term "authority" though this expression has been used in conjunction with other words in the Rules as well as the Act. In absence of any specific definition or meaning we have to rely upon understanding of this expression in common parlance. In common parlance, the word `authority' is understood to be, power to exercise and perform certain duties or functions in accordance with law. Authority may vest in an individual or a person by itself or even as a delegatee. It is the right to exercise power or permission to exercise power. Such permission or right could be vested in an individual or a body. It can also be in conferment of power by one person to another. This expression has been used differently in different statutes and can Page 93 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 be given a different meaning or connotation depending upon the context in which it is used. The purpose and object of using such expression should be understood from the provisions of the relevant law and the purpose sought to be achieved.
33. The word `authority' is derived from the latin word auctoritas, meaning intention, advice, opinion, influence or command which originate from an auctor, indicating that authority originates from a master, leader or author, and essentially is imposed by superior upon inferior either by force of law (structural authority) or by force of argument (sapiential authority)
34. Farlex Free Dictionary explains the word `authority' as follows:
"Authority n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to Page 94 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority including "apparent authority" when a principal gives an agent various signs of authority to make others believe he or she has authority, "express authority"
or "limited authority" which spell out exactly what authority is granted (usually a written set of instructions), "implied authority"
which flows from the position one holds, and "general authority" which is the broad power to act for another.
35. Oxford Dictionary explains the word as under:
"1. (a) The power to enforce laws, exact obedience, command, determine, or judge.
(b) One that is invested with this power, especially a government or body of government officials : land titles issued by the civil authority.
2. Power assigned to another;
authorization: Deputeis were given authority to make arrests.
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36. Merrium Webster's Law Dictionary, 1996 explains the word as under :
"Authority plties
1. an official decision of a court used esp. as a precedent.
2. (a) a power to act est. over others that derives from status, position, or office. Example : the authority of the president.
(b) the power to act that is officially or formally granted (as by statute, corporate bylaw, or court order).
3. .......
4 (a) a government agency or corporation that administers a revenue-
producing public enterprise.
Example : the transit authority
(b) a government agency or public office responsible for an area of regulation. Example : should apply for a permit to the permitting authority."
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37. In Law Lexicon, 2nd Edition, 1997 pg. 171, the word `authority' has been explained and elucidated as follows :
"A person or persons, or a body, exercising power of command; generally in the plural: as, the civil and military authorities. Power or admitted right to command or to act, whether original or delegated: as the authority of a prince over subjects and of parents over children ; the authority of an agent to act for his principal. An authority is general when it extends to all acts, or all connected with a particular employment, and special when confirmed to a single act.
'Authority, is nothing but a power to do something; it is sometimes given by word, and sometimes by writing; also it is by writ, warrant, commission, letter of attorney & c. and sometimes by law. The authority that is given must be to do a thing lawful: for if it be for the doing anything against law, as to beat a man, take away his goods, or disseise him of his lands this will not be a Page 97 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 good authority to justify him that doth it.:
Authority (In contracts) the lawful delegation of power by one person to another.
Authority(In administrative law) is a body having jurisdiction in certain matters of a public nature.
Authority. Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over;
jurisdiction. Often synonymous with
power. The power delegated by a
principal to his agent. The lawful
delegation of power by one person to another. Power of agent to affect legal relations of principal by acts done in accordance with principal's manifestations of consent to agent."
38. It is clear from above that there is some unanimity as to what meaning can be given to the expression `authority'. The authority, therefore, should be understood on its plain language and without necessarily curtailing its scope. It will be more appropriate to understand this Page 98 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 expression and give it a meaning which should be in conformity with the context and purpose in which it has been used. The `other authority' appearing in Rule 9(2) is intended to cover a vast field and there is no indication of the mind of the framers that the expression must be given a restricted or a narrow meaning. It is possible that where the authority is vested in a person or a body as a result of delegation, then delegatee of such authority has to work strictly within the field delegated. If it works beyond the scope of delegation, in that event it will be beyond the authority and may even, in given circumstances vitiate the action.
39. Now, we have to examine the argument of the respondents before the court that the expression `other authority' shall have to be construed to cover only the persons who are in the service of the railways. In other words, the contention is that the expression `person' used under Section 3 of the Act and expression `authority' used under Rule 9(2) contemplates the person to be in service and excludes appointment of an inquiry Page 99 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 officer (authority) of a retired railway officer/official.
40.. Heavy reliance was placed by the
respondents upon the judgment of this
Court in the case of Ravi Malik v.
National Film Development Corporation Ltd. & Ors. [2004 (13) SCC 427]. We have already discussed at some length the scheme of the Rules. As already noticed, we are not required to discuss in any further elaboration the inquiries taken under the Act, inasmuch as none of the respondents before us have been subject to public departmental inquiry under the provisions of the Act. Rule 9 (2) requires the authority to form an opinion, whether it should hold the inquiry into the truth of imputation of misconduct or misbehaviour against the railway servant itself or should it appoint some other authority to do the needful. Thus, there is an element of discretion vested in the competent authority to appoint `other authority' for the purposes of conducting a departmental inquiry.
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41. It is a settled principle of interpretation that exclusion must either be specifically provided or the language of the rule should be such that it definitely follows by necessary implication. The words of the rule, therefore, should be explicit or the intent should be irresistibly expressed for exclusion. If it was so intended, the framers of the rule could simply use the expression like `public servant in office' or `an authority in office'. Absence of such specific language exhibits the mind of the framers that they never intended to restrict the scope of `other authority' by limiting it to the serving officers/officials. The principle of necessary implication further requires that the exclusion should be an irresistible conclusion and should also be in conformity with the purpose and object of the rule.
42. The learned counsel appearing for the respondents wanted us to accept the argument that provisions of Rule 9 (2) have an implicit exclusion in its language and exclusion is absolute. That is to say, the framers have excluded appointment of Page 101 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 former employees of Railway Department as other authority (inquiry officer) under these provisions. We find no merit in this contention as well.
43. An exclusion clause should be reflected in clear, unambiguous, explicit and specific terms or language, as in the clauses excluding the jurisdiction of the court the framers of the law apply specific language. In some cases, as it may be, such exclusion could be read with reference to irresistible implicit exclusion. In our opinion the language of Rule 9(2) does not support the submission of the respondents. Application of principle of exclusion can hardly be inferred in absence of specific language. Reference in this regard can be made to the judgment of this Court in the case of New Moga Transport Co. v. United India Insurance Co. Ltd..
44. In the present case, neither of these ingredients appear to be satisfied. Ultimately, what is the purpose of a departmental inquiry? It is, to put to the delinquent officer/official the charges or Page 102 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 article of charges and imputation and seek his reply in the event of there being no substance to hold an inquiry in accordance with the rules and principles of natural justice. The inquiry officer appointed by the disciplinary authority is a delegatee and has to work within the limited authority so delegated to him. The charges and article of charges and imputations are served by the disciplinary/competent authority. The inquiry report is submitted again to the competent authority which is expected to apply its mind to the entire record and then decide whether any punishment should be imposed upon the delinquent officer or not. Thus, all substantive functions are performed by the disciplinary or the specified authority itself. It is only an interregnum inquiry. It is conducted by the delegatee of the said authority. That being the purpose and specially keeping in mind the language of Rule 9 (2), we are unable to accept the contention that `other authority' has to be a person in service alone. Thus, it is not only the persons in service who could be appointed as inquiry officers (other authority) within the meaning of Rule 9(2).
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45. Reliance placed by the respondents upon the judgment of this Court in the case of Ravi Malik (supra) is hardly of any assistance to them. Firstly, the facts and the Rules falling for consideration before this Court in that case were entirely different. Secondly, the Court was concerned with the expression `public servant' appearing in Rule 23 (b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that public servant should be understood in its common parlance and a retired officer would not fall within the meaning of public servant, as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9 (2) as well as Section 3 of the Act have used a very different expression i.e. `other authority' and `person/persons'. In other words, the absence of the word public servant of the Government is conspicuous by its very absence. Thus, both these expressions, even as per the dictum of the Court should Page 104 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 be interpreted as understood in the common parlance.
46. Another factor which we may notice is that the definition of the public servant appearing in the Indian Penal Code (for short `the Code'), reliance upon which was placed by the respondents, was not brought to the notice of the Court while dealing with the case of Ravi Malik (supra). In terms of Section 21 of the Code a public servant denotes a person falling under any of the descriptions stated in the provision. While it refers to a different kind of persons it also brings within its ambit every arbitrator or every person to whom any cause or matter has been referred for decision or report by any court or any other competent public authority. Furthermore, as per the 12th clause of inclusion, in this very section, even "every person" can be a public servant. In fact, in terms of Section 21 (a) a person who is in service of the Government or remunerated by fees or commission for the purpose of any public duty of a Government is also a public servant.
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47. Thus, a person who is engaged by a competent authority to work on a fee or a fixed remuneration can be a public servant. We fail to understand then how a person engaged for the purposes of performing a delegated function in accordance with law would not be `other authority' within the meaning of the Rule 9(2). The Rule has not specified any qualifications or pre-requisites which need to be satisfied before a person can be appointed as an inquiry officer. It has been left to the discretion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simplicitor.
48. Another aspect of the matter which would require deliberation of the Court is that, the competent authority in the Department of Railways as well as the Railway Board, Ministry of Railways, Government of India has issued certain circulars, specifically contemplating preparation of a panel of former officers/ employees of the railway department, who Page 106 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 can be appointed as inquiry officers to conduct the departmental inquiry as the disciplinary/competent authority. Firstly, the circular is stated to have been issued on 16th July, 1998 wherein it has been noticed by the authorities that a large number of cases are coming up before the Vigilance Department. These cases relate to corruption and other serious irregularities. Number of such cases pertain to non-gazetted staff. An inquiry is essentially conducted before imposition of major penalty in terms of Rule 9(2). Number of cases have been pending at the inquiry stage for a considerable time and cannot be disposed of because of non- completion. So, in order to liquidate the large outstanding position of department cases expeditiously, it was felt necessary to empanel certain retired senior-scale and JA Grade officers who would be relatively free to undertake the inquiries. This further led to the criteria of eligibility, remuneration and the work expected to be performed by the former employees to be appointed as inquiry officers. Again a circular is stated to have been issued on 16th October, 2008 on the same lines and taking Page 107 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 a view that the former employees could be appointed as inquiry officers. Of course, the circular of 2008 may not be of great relevancy before us as the charge sheet was served upon the delinquent officer/official much prior to the implementation of this circular. However, the circular of 1998 is relevant.
49. The contention raised before us is that the circular issued by the appellants is in contradiction to the language of Rule 9(2). It is a settled rule that a circular cannot supersede the provisions of the Rules and thus appointment of the former employees of the railway department as inquiry officer is impermissible and the appellants had no jurisdiction to issue such circular. On the other hand, it is contended on behalf of the appellant, that special instructions can be issued by the department for dealing with its affairs and such circulars are permissible. It is also submitted that, the circular being in furtherance to the provisions of law would even prevail over the Rules without having been issued for a specific purpose. Reliance is placed upon the judgment of this Court in the case Page 108 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 of Union of India & Ors. v. Virpal Singh Chauhan & Ors..
50. Firstly, we are unable to see any conflict, much less the contradiction between the language of Rule 9(2) and the circular of 1998 issued by the appellants. Under Rule 9(2), the disciplinary authority has the discretion to appoint a `Board of Inquiry' or `other authority' to conduct inquiry against the delinquent officer/official. The circular only aids it further while saying that in the interest of the administration and in consonance with the Rules, the former/retired officers of the railway department who satisfy the eligibility criteria can be appointed as inquiry officer and submit their report to the disciplinary authority in accordance with law. It is clear that the circular issued is only supplementing Rule 9(2) and is in no way in conflict with the language or spirit of Rule 9(2).
51. The argument advanced on behalf of the respondents is that in the event of clear conflict between circulars and the Page 109 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 statutory rules, the circular cannot be permitted to prevail. This argument would be of worth consideration only if the respondents are able to demonstrate before the Court without ambiguity that it is a case of conflict and the circular issued is in terms contrary to the language of the statute.
52. We are unable to see any such conflict or contradiction. When a circular is issued for the purposes of supplementing the removal of ambiguity in the Rule or to achieve the purpose of the Rule more effectively, it can hardly be said that there is a conflict between the two. The matter shall certainly be on a different footing, where the Rule by a specific language or by necessary implication makes such exclusion or provides that a particular class of persons cannot be appointed as authority (inquiry officer). It may also be true in the case where the Rule itself makes it mandatory for the disciplinary authority to appoint a particular class of persons and no other as inquiry officers. While examining the provisions of vesting of discretion, it cannot be said that they Page 110 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 should be interpreted in a manner which would take away the discretion contemplated under the Rule. Rather it would be appropriate to adopt an interpretation which would further the object of such rule.
53. In the case of Virpal Singh Chauhan (supra), this Court was concerned with the circular/letters providing for reservation in favour of SC & ST and their operation on the subject of seniority as between reserved and general category candidates. Certain instructions had been issued and after perusing the facts of that case this Court took the view that, the Railway Board circulars which are provided specifically for such a situation and are not being violative of the constitutional provisions, should prevail and given effect to. In that case also it was not brought to the notice of the Court that the letter/circular was in any way inconsistent with the provisions of any law, as in the present case the respondents have failed to demonstrate that the circular issued is in conflict with or opposed to any specific rule enacted under proviso to Article 309 of Page 111 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the Constitution or any other constitutional protection. Once there is no conflict, then the Rule and the circular should be harmoniously read.
54. Another indication under the Rules which is suggested, is non- application of the Rule of strict construction to the provisions with regard to appointment of an Inquiry Officer and where the expressions Appointing Authority, Disciplinary Authority and Appellate Authority have been duly explained and provided for, either under the Rules or in the schedule to these Rules. As0. already noticed, the Schedule specifies the powers of the respective authorities to take disciplinary action against the delinquent officer, either in certain terms or even by interpretation, it does not suggest which class of persons should or should not be appointed as inquiry officers. On the contrary, Rule 9 (2) specifically empowers the Disciplinary Authority to inquire into the matter itself or appoint another authority to conduct the inquiry. In other words, the functions of the Inquiry Officer are that of a delegating nature and this delegation ex facie, is Page 112 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 limited delegation. An Inquiry Officer is not even entitled to suggest the punishment unless the Rule so requires specifically, which is not the case here. It is a settled rule that the provisions of an Act/Rule should be examined in their entirety along with the scheme before a particular meaning can be given to an expression or sentence used in a particular language. Thus we must examine the Rules in their entirety along with the conditions of the Schedule and not merely look at Rule 9 (2) in isolation.
55. Still another aspect of the case can be that, the expression "public servant"
cannot be equated to the term "other authority". Both these expressions cannot be treated as inter-changeable or synonymous. They have different connotations and meaning in law. "Public servant" is a term which is well defined and explained in the field of law, while "authority" is a generic term and is used in different places with different meanings and purposes. `Authority' thus is an expression of wide magnitude and is frequently used not only in legal jurisprudence but also in administrative Page 113 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 and executive field. Therefore, it is to our mind not permissible to permit restricted meaning of this term.
56. It was also contended on behalf of the respondents that the competent authority exercising power under Rule 9 (2) is vested with a choice whether to take action under these Rule or under the Act. Emphasis is laid on the language of Rule 9 (2) while submitting that the expression "other authority" would have to be read ejusdem generis to the earlier part of Rule 9 (2) and that they must take colour from the earlier part of the Rule. While reliance is placed upon the judgment of this Court in the case of Commissioner of Income Tax, Udaipur, Rajasthan Vs. Mcdowell and Company Limited [2009 (10) SCC 755] to contend that the Rules and the provisions of the Act contemplate other authority' only as the persons in service.
57. We are not impressed with either of these submissions. Firstly, the general rule stated in the case of Mcdowell and Company (supra) is a matter relating to fiscal laws, the interpretation of which Page 114 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 is controlled by the rule of strict construction. We have already discussed at some length that it is not possible for this Court to apply the rule of strict construction to the provisions in question before us. Applicability of such doctrine to the rules of procedure under the service jurisprudence can hardly be justified.
58. The rule of ejusdem generis is applied where the words or language of which in a section is in continuation and where the general words are followed by specific words that relates to a specific class or category. This Court in the case of Mcdowel and Company Ltd. (supra) while discussing this doctrine at some length held as under: (SCC pp. 762-63, para 20) "20. The principle of statutory interpretation is well known and well settled that when particular words pertaining to a class, category or genus are followed by general words are construed as limited to things of the same kind as those specified. This rule Page 115 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 is known as the rule of ejusdem generis. It applies when:
(1) the statute contains an enumeration of specific words;
(2) the subjects of enumeration constitute a class or category;
(3) that class or category is not
exhausted by the enumeration;
(4) the general terms follow the
enumeration; and (5) there is no
indication of a different legislative intent.
59. The maxim ejusdem generis is attracted where the words preceding the general word pertains to class genus and not a heterogeneous collection of items in the case of Housing Board, Haryana (supra).
60. The language of Rule 9(2), on its plain reading shows that the words are disjunctive and therefore, this principle of interpretation would be hardly applicable to the facts of the present case. It is also incorrect to suggest, much less to argue, that under Rule 9 (2) a discreet choice is vested under the Page 116 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 authority concerned. We have already indicated that the Act is applicable to a special class of persons while Rules are applicable to other class of persons including Grade - A to Grade - D. Once the provisions of the Act are attracted, a public inquiry has to be held in accordance with the provisions of the Act. The Rules and the Act, as self- contained codes within themselves, operate in a way without impinging upon the field of the other. There is hardly any discretion vested in the competent authority, it is only for the purposes of conducting an inquiry personally or through some other appointed authority that the discretion is vested. In the event of delegation by the competent authority, the delegatee authority has to function within the limit of the authority delegated to it. At the cost of repetition we may notice that neither in the Rules nor in the provisions of the Act which are independent in their application, there is any requirement or even suggestion that appointment of an authority or Board has to be essentially of a person in service, even a former employee could be appointed so.
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61. It will be useful to apply the rule of contextual interpretation to the provisions of Rule 9. It would not be permissible to import any meaning or make additions to the plain and simple language of Rule 9(2) in relation to "other authority." The rule of contextual interpretation requires that the court should examine every word of statute in its context, while keeping in mind the preamble of the statute, other provisions thereof, pari material statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries.
62. It is also a well established and cardinal principle of construction that when the rules and regulations have been framed dealing with different aspects of the service of the employees, the Courts would attempt to make a harmonious construction and try to save the provision, not strike it down rendering the provision ineffective. The Court would normally adopt an interpretation which is in line with the purpose of such regulations. The rule of contextual Page 118 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 interpretation can be purposefully applied to the language of Rule 9 (2), particularly to examine the merit in the contentions raised by respondent before us. The legislative background and the object of both the Rules and the Act is not indicative of any implied bar in appointment of former employees as inquiry officers. These principles are well established and have been reiterated with approval by the courts, reference can usefully be made to the judgments of this court in the cases of Gudur Kishan Rao v. Sutirtha Bhattachaarya, [(1998) 4 SCC 189], Nirmal Chandra Bhattacharjee v. Union of India, [1991 (Supp (2) SCC 363], Central Bank of India v. State of Kerala, [(2009) 4 SCC 94], Housing Board of Haryana v. Haryana Housing Board Employees Union."
9.10 The reliance placed on by the respondent- KPT on the scheme of empanelment of the retired officers which has been approved by the Trustees of the respondent-KPT provides for regular procedure and modalities for appointment and is not a source of power to appoint authority under the Regulation 12(2) of Regulations of 2004. Therefore, even if such regulations are not Page 119 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 notified and such scheme is not published in the official gazette the same only refers to the procedure of appointment of an authority to inquire into or to conduct an inquiry. Under the circumstances, the appointment of Mr. S.P.M. Tripathi cannot be said to be without jurisdiction.
9.11 With regard to the contention of the petitioner of overreaching the process of Court by the respondent-KPT and during the pendency of this petition by passing the order of removal from service in the year 2014 is concerned, all the inquires were conducted simultaneously and therefore the respondent-KPT ought to have considered all the inquiry reports together while passing the order or removal from service of the petitioner. But, in the facts of this case when the impugned order dated 6th July, 2017 is perused the same pertains to the charges mentioned in the charge-sheet which was served upon the petitioner on 5th November, 2015 only, whereas, the order dated 14th September, 2018 refers to the charge- sheet which was submitted later on for totally different charges or the misconduct committed by the petitioner by submitting false and fabricated report of the COM-OOT of the respondent-KPT before the learned Chief Judicial Magistrate, at Gandhidham-Kachchh in the pending criminal Page 120 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 proceedings.
9.12 Under the circumstances, the respondent-KPT ought to have approached this Court before passing any order of dismissal from service of the petitioner more particularly when this Court had already stayed the first order dated 6th July, 2017 of removal of petitioner from service.
9.13 The contention raised on behalf of the respondent-KPT that the validity of the order dated 14th September, 2018 is required to be considered by the Court on merits then in such circumstances when both the orders dated 6th July, 2017 and 14th September, 2018 pertain to removal from service and dismissal from service, the petitioner could not have been removed or dismissed from the service twice.
9.14 It is pertinent to note that the order dated 6th July, 2017 of removal from service of the petitioner is not quashed and set aside by this Court by order dated 13th July, 2017, but, the operation of the same was stayed during the pendency of the petition, therefore, in fact, the order dated 6th July, 2017 is in existence but is kept in abeyance as per the order of this Court. Therefore, mere mention of the stay granted by this Court in the order dated 14th September, 2018, would not entitle the respondent-KPT to Page 121 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 pass the second order of dismissal of the petitioner from service. It also appears from the record that all the inquiry reports were placed before the Disciplinary Authority prior to the passing of the first order dated 6th July, 2017 and after considering the same, the Disciplinary Authority passed the order of removal from service of the petitioner on 6th July, 2017. Therefore, after passing the order of removal from service in the year 2017, the respondent-KPT again could not have passed the order of dismissal from service of the petitioner in 2018 after the period of more than two years from the date of submission of inquiry reports in the year 2016.
9.15 It is also pertinent to note that there is nothing on the record to show that the petitioner has committed any misconduct or has filed any complaint against any official of the respondent- KPT after the year 2015 when he is placed under suspension. The respondent-KPT, therefore, ought to have approached this Court for early hearing of the matter or ought to have requested this Court for final hearing of the matter, but, instead the respondent-KPT adopted the shortcut by again passing the order of dismissal in the year 2018 which is nothing but an attempt on the part of respondent-KPT to overreach the judicial Page 122 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 process of Court. It is therefore not proper on the part of the respondent-KPT to submit that the order dated 14th September, 2018 pertains to totally different charges and the different charge-sheets of misconducts alleged against the petitioner, but, at the same time, it is to be noted that such an order is passed during the pendency of the writ-petition filed by the petitioner before this Court, more particularly when this Court had already stayed the operation of the order dated 6th July, 2017of removal from service of the petitioner.
9.16 In view of the above, assuming for a while that the findings of the Inquiry Officer are to the effect that the charges leveled against the petitioner are proved, it is pertinent to note that the charge-sheets issued by the respondent- KPT against the petitioners are with regard to submission of the confidential report by the petitioner in the criminal complaint filed by him against Mr. P. Ramjee. Further, Mr. P. Ramjee was ,though, CVO of the respondent-KPT neither he nor Dr. G.S. Rao were examined by the respondent-KPT before the inquiry officer.
9.17 The inquiry officer in the inquiry report dated 5th November, 2016, pursuant to the charges dated 18th February, 2016 has made assessment / analysis of evidence in respect of the charges Page 123 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 leveled against the petitioner as under:
"5. Assessment / Analysis of evidence in respect of each Article of Charges:
5.1 Article II Though, the C.O. has said in his defence that he never submitted any report on affidavit, claiming to be the report of Dr. G.S. Rao, COM, OOT Vadinar, KPT in the matter of Case No. 322/2015 in the Hon'ble Court of Addl. Chief Judicial Magistrate, Gandhidham as alleged in the Statement of Imputations, he has himself confirmed to the question of the Inquiry Officer that Exh. P-1 is the document submitted as 'Enclosure-B' to the application filed by the C.O. in criminal inquiry no. 322/2015.
The WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD. DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013." ends with 'COM' written as signatory. The title of the document and the 'COM' at the end indicate that the report is an official report prepared by Dr. G.S. Rao who was the COM OOT Vadinar, at the time when Exh. P-1 was submitted before the court.
5.1.1 The C.O. has made argument in his Written Brief dated 30/08/2016 in the last para of Page-2 that " As regards, Exh. P- 1, it is submitted that the C.O. never made any mention about the same in the body of application filed before the Hon'ble Court. The Court also did not go into the minute details of the enclosed Page 124 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 document. ... ... ..... And nowhere it is mentioned that the same is prepared by Dr. G.S. Rao." This argument in no way support the defence taken by the C.O., and does ot even challenge or contradict the alleged act of submission of the document claiming it to be report of Dr G.S. Rao COM OOT Vadinar in the Statement of Imputations The C.O. himself has admitted vide last para of penultimate page of written Defence Brief that Exh. P-1 is part of the Exh D-3 (the complaint/application of the C.O.).
5.1.2 In accordance with the provision of Regulation 8 of the Kandla Port Employees (Conduct) Regulations 1964, "No employee shall, except in accordance with any general or special order of the Board or in the performance of good faith, of the duties assigned to him, communicate directly or indirectly any official cocument or information to any person to him he is not authorized to communicate such documents or information." The C.O. is not authorized to communicate the report to anyone and, therefore he has submitted an official report unauthorisedly. It becomes more clear by 'Explanation' to Regulation 8 given in the said Kandla Port Employees (Regulations) 1964, which read as, "If an employee quotes or copies in his representation, appeal, etc circulars and instructions of the Board or any other Major Port Trust or Government including those marked secret, notes and other information from files which they are ordinarily not expected to Page 125 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 have seen or to have retained, the action will be construed as noton! mproper but also is involving contravention of this regulation." Article Ill Dr. G.S. Rao PW- 1, in his deposition has confirmed that Exh P-2 is the report prepared by him. The Exh P-2 has title exactly similar to Exh P-1, i.e. " REPORT ON THE MATTER OF DREDGING WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD. DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013." One can find out easily that Exh P-1 looks apparently similar to Exh P-2 in plain reading but, on careful reading, differences are visible in the body of texts. Sri Nemichand Kaler, PW-2 has deposed that he prepared comparative statement in form of chart (Exh P-3) showing that text of Exh P-1 differs from Exh. P-2 at 32 places. There are some places. where data and text are conveniently replaced. And there are places, where lines/ even para is deleted and there are places, where some words/lines are added. This clearly signifies that Exhibit P-1 is prepared by meddling with the text of Exhibit P-2 and is a tampered/forged document 5.2.1 The C.O. has himself admitted, vide sentence in bold letters in the last para of Page-2 of Written Brief dated 30/08/2016, that he has presented the document Exh P-1 with a title "Fabricated report prepared by the accused to save those involved in the Dredging Scam of 1000 crores.", in the 'List of Documents' submitted along with application in the Criminal inquiry no. 322/2015. In this way, though the tampered/forged document is with the Page 126 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 correct title, "REPORT ON THE MATTER OF DREDGING WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD. DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013," the title shown in the List of Document along with the application (page 13 of Exh D-3) is different and false, i.e. "Fabricated report Prepared by the accused to save those involved in the Dredging Scam of 1000 Crores,"
5.2.2 In order to analyse the issue, | have carefully read the Exhibit D-3 submitted oy C.0. in his defence. Exh D-3 is the application presented by the C.O. in the Court of Addl. Chief Judicial Magistrate. The C.O., in his application / petition (=xh D-3), has Slated that Shri P. Ramjee, the then C.V.O. and other officers of Kandla Port was associated with corruption and criminal activities and also in a dredging scam of crores Of rupees. He has mentioned Sri P. Ramjee as 'Accused' at many places. He has not Substantiated any act of crime, but has requested the Addl. Chief judicial Magistrate to initiate action to register a criminal case u/s 406, 420, 467, 468, 471 385, 389 and 506(2) of IPC and 13(1)
(c) (d)(i, ii, tii) of the Anti Corruption Act and to take legal action into the matter. Therefore, wrong title as "Fabricated report prepared by the accused to save those involved in the Dredging Scam of 1000 crores." speaks a lot, and is to mislead the court that the fabricated document was prepared by Shri P. Ramjee.
Therefore the same has been submitted in Page 127 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the court, with an intention to malign the image of Sri P. Ramjee and to implicate him in a criminal investigation. The text of application (Exh D-3) is also full of the contents to malign the image of Sri Ramjee and to bring discredit to the Kandla Port.
5.2.3 Any person who is approaching court of Addl. Chief Judicial Magistrate or any other court of law is supposed to submit true copy or Xerox of the documents as enclosure to his Application/Petition also with correct title of the document. Such an act of submission of document by the C.O., where text of the document submitted in court has been meddled with at 32 places and has been listed as enclosure with the wrong title is not desirable and can't be justified by any extent of imagination. The C.O. has taken defence that changes/variation in the text are not substantial. This defence does not justify submission of the document with changed text at the place of Xerox or 'true copy' of the official document, in the court of law.
5.3 Article IV At the stage of inspection of documents of the inquiry proceedings, this has been found that Exh P-2 is an official document classified as 'Confidential'. The PW-1, in his deposition has confirmed that Exh P-2 is a Confidential document and he did not forward this report to anybody. Therefore, the C.O. is not supposed to have access to Page 128 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the Exh P-2. Exh P-1, is the tampered/forged document prepared by meddling with (changes made in) the text of Exh P-2 at 32 places.
5.3.1 The C.O. has tried to explain vide para 2 & 3 of Page -5 of written Defence Brief, as how Exh P-1 comprises of 106 pages by showing some possibilities. When asked by 0. as to ' Please clarify, how did you have access to Exh P-1? And how did you get this document?" The reply of C.O. was, "As the matter is pending before Hon'ble High Court of Gujrat, it is not proper on my part to divulge the details, since it is subjudice." It IS crystal clear that his reply to the |.O. was false and he avoided to disclose as to how he got the document. Therefore, these facts indicate that C.O. got access to the document not by fair means. These facts establish that, the C.O. got access to the document by misusing his position as TP & PRO in KPT and prepared Exh P-1 my Making changes in the text (tampering) of Exh P-2 at 32 places..
5.3.2 As analysed in para 5.1.2 above, the C.O. is not authorized to submit the copy or extract of the official document P-2, the C.O. submitted the document before Addl. Chief Judicial Magistrate, Gandhidham, unauthorizedly."
9.18 On the basis of the above analysis, the inquiry officer arrived at the following findings:
Page 129 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 "6. Findings:
Findings on each Articles of Charge with reasons are given as under:
6.1 Article I As stated in Para 2.3 (supra), Article| of the Articles of charge of the present Charge Sheet, is the same charge, which is being inquired in another case initiated vide Memorandum No. GA/PS/SB/2015/2607 dated 03/11/2015. And there can't be two inquiry for the same Charge. Therefore, the present inquiry has been held into the matter of Article Il, Article Ill and Article IV only and not about the Article-
I. 6.2 Article II There are two issues/questions to be answered to give any finding on the Article of Charge :
i) Whether, the C.O., while serving as Trade Promotion & Public Relations Officer, submitted a report in the matter of Case NO. 322/2015 in the court of Addl.
Judicial Magistrate, Gandhidham on affidavit claiming it to be a report of Dr. G.S. Rao, COM, OOTVadinar KPT in the contract of dredging work carried out by M/s Jaisu Shipping Company Pvt. Ltd. during the period from 27/12/ 2010 to 26/01/2013 without any authority? And, Page 130 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 il) Whether, the act of submitting the document unauthorisedly is unbecoming of officer of Kandla Port and in violation of Regulations 3 (8)(i), 3(8) (iv) 3(8)(vi) and 8 of the Kandla Port Employees (Conduct) Regulations 1964 ?
Answers of the both the issues/questions based on the assessment of evidence are affirmative.
REASONS: :
a) The beginning of the
application/petition of the Criminal inquiry no. 322/2015 before the Addl. Chief Judicial Magistrate(Exh D-3) starts that "the complainant is serving as Trade Promotion and Public Relation Officer in Kandla Port ... ... " Page 11 of the Exh D-3 is the affidavit of the C.O. certifying that whatever is submitted in the court is true.
b) As analysed in the para 4.5.1 above, the C.O. has himself confirmed to the question of the Inquiry officer that Exh. P-1 is the document submitted as 'Enclosure-B' to the application filed by the C.O. in criminal inquiry no. 322/2015. The text of Exh. P-1 begins with its title as, " REPORT ON THE MATTER OF DREDGING WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD. DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013." ends with 'COM' written as signatory..
Page 131 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 The title of the document and the 'COM ' at the end indicate that the report is an official report prepared by Dr. G.S. Rao who was the COM OOT Vadinar, at the time, when Exh. P-1 was submitted before the court.
c) In the matter of P. Khajakhan vs. Post Master General A.P. , 1975 (2) 417, it was held that 'The words"do nothing which is unbecoming of Government Servant" may be either in relation to his duties of office as well to his private life. This rule enjoins upon Government servant at all times, whether in office or outside, to do nothing which is improper or inappropriate or unsuited to his position as Government Servant.' On the same analogy, any act done by the Port officer, which is improper or inappropriate or unsuited to his position as officer of Kandla Port is to be taken as act of unbecoming of an officer of the Kandia Port. Therefore, the act of submitting the document unauthorisedly by the C.O. is tantamount to act of unbecoming of Port Officer.
d) In view of the Explanation given below Regulation 8 of the Kandla Port Employees ( Conduct) Regulations 1964, If an employee quotes or copies in his representation, appeal, etc ... ... ... and other information from files, which they are ordinarily not expected to have seen or to have retained, the Page 132 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 action will be construed as not only improper but also is involving contravention of this regulation." Therefore the act of submission of the ExhP-1 with his application is in violation of the Regulation 8 of the Kandla Port Employees ( Conduct) Regulations 1964.
e) In view of the assessment of evidence made in Para 4 above, the submission of the document is with intention to implicate ShriP.Ramjee, the then CVO in criminal investigation / case and malign his image and to bring discredit to the KandlaPort . Therefore, the submission of the document Exh P-1 tantamount to an act in a manner prejudicial to the interest of the Kandla Port , act subversive of discipline and insubordination and therefore is in violation of the Regulation 3(8)(i), 3(8)(iv) and 3(8)(vi) of the Kandla Port Employees (Conduct) Regulations 1964.
In view of the above, Article II of the Articles of Charge is found as PROVED.
6.3 Article III There are three issues/questions to be answered to give finding on the Article of arge :
i) Whether, the C.O., while functioning as Trade Promotion & Public Relations Page 133 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Ofticer, filed a tampered / forged report in the matter of Case No. 322/2015 in the Court of Addl. Judicial Magistrate, Gandhidham on affidavit claiming it to be a report of Dr. G.S. Rao, COM, OOT Vadinar KPT in the contract of dredging work carried out by M/s Jaisu Shipping Company Pvt. Ltd. during the period from 27/12/ 2010 to 26/01/2013 without any authority?
ii) Whether the act of submission of the tampered / forged report was to mislead the court and to malign the image of ShriP.Ramjee and to bring discredit to the Kandla Port. And
iii) Whether, the act of submitting the tampered/ forged document is unbecoming of officer of Kandla Port and in violation of Regulations 3 (8)(i), 3(8) (iv) 3(8)(v), 3(8)(vi) and 8 of the Kandla Port Employees (Conduct) Regulations 1964 ?
Answers of all the three issues/questions, based on the assessment of evidence are affirmative , except that the act is not in violation of Regulation 3(8)(v) of the Kandla Port Employees (Conduct) Regulations 1964.
REASONS:
a) The C.O. has not submitted the Xerox or true copy of the official document in the court. He has shown as Xerox of the official document, but the text of the document (Exh P-1) submitted in the Page 134 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 court differs witr the official document (Exh P-2) at 32 places. This indicates that the text of official document was first meddled with at 32 places and then produced before the court. Therefore the document submitted before the court is tampered/ forged document . The justification given by the C.O. that variations are not substantial is not convincing as ne is not supposed to do any changes in the document.
b) The correct title of the document is "REPORT ON THE MATTER OF DREDGING WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD.
DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013." But the document is presented before the court with false title shown in the List of Document along with the application /petition i.e. "Fabricated report prepared by the accused to save those involved in the Dredging Scam of 1000 crores."The C.O., in his application / petition (Exh D-
3), has stated that Shri P. Ramjee, the then C.V.O. and other officers cf Kandla Port was associated with corruption and criminal activities and also i1 a dredging scam of crores of rupees. He has mentioned Sri P. Ramjee as Accused' at many places. He has not substantiated any act of crime, but has requested the Addl. Chief judicial Magistrate to initiate action to register a criminal case u/s 406, 420, 467, 468, 471, 385, 389 and 506(2) of IPC and 13(1)(c) (d)(i, ii, iil) of the Page 135 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Anti Corruption Act and to take legal action in to the matter. Therefore, false title as "Fabricated report prepared by the accused to save those involved in the Dredging Scam of 1000 crores." speaks a lot, and is to mislead the court that the fabricated document is prepared by Shri P. Ramjee with an intention to malign the image of Sri P.Ramjee and to implicate him in a criminal investigation/case. The text of application (Exh D-3), is also full of the contents to malign the image of Sri Ramjee and to bring discredit to the Kandla Port.
c) Any act done by the Port officer, which is improper or inappropriate or unsuited to his position as officer of Kandla Port is to be taken as act of unbecoming of an officer of the Kandla Port. Therefore, , the act of submitting the tampered/ forged document before the court by the C.O. is tantamount to act of unbecoming of Port Officer.
The other reasons are Sub para d) and
e) and are the same as given in Sub para d) and e) of Para 5.1 above.
f) There are nothing to show in the evidence brought in the inquiry proceeding that there is Abetment or attempt to abet any act which amounts to misconduct . Therefore there is no violation of Regulation of Exh 3(8)(v) Page 136 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 of Kandla Port Employees (Conduct) Regulation 1964.
In view of the above, Article III of the Articles of Charge is found as PROVED, with a noting that there is no violation of Regulation 3(8)(v).
6.4 Article IV There are two issues/questions to be answered to give finding on the Article of Charge :
i) Whether, the C.O., while functioning as Trade Promotion & Public Relations Officer, misused his position and tampered / forged official report prepared by Dr. G. S. Rao, COM, OOT, Vadinar, K.P.T., and claimed the same to be official report prepared in connection with contract of Dredging work carried out by M/s Jaisu Shipping Company Pvt. Ltd. during the period from 27/12/ 2010 to 26/01/2013, which is a confidential document and submitted the same unauthorisedly before the Court of Addl. Judicial Magistrate, Gandhidham in the matter of Case No. 322/2015 ?
ii) Whether, the act of submitting the tampering/ forging the confidential document by misusing of position and submitting the same before the court is unbecoming of officer of Kandla Port and in violation of Regulatios 3 (8)(i), 3(8)
(iv) 3(8)(vi) and 8 of the Kandla Port Employees (Conduct) Regulations 1964 ?Page 137 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022
C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 Answers of the both the issues/questions based on the assessment of evidence affirmative.
REASONS:
a) It is established by the inspection of documents and by the deposition of the PW-
1 that Exh P-2 is the official document with title "REPORT ON THE MATTER OF DREDGING WORK BY M/S JAISU SHIPPING COMPANY PVT. LTD. DURING THE PERIOD FROM 27.12.2010 TO 26.01.2013" and is 'Confidential' document.
b) When asked by 1.0. as to ' Please clarify, how did you have access to Exh P1? And how did you get this document?"
The reply of C.O. was, "As the matter is pending before Hon'ble High Court of Gujrat, it is not proper on my part to divulge the details, since it is subjudice." It is crystal clear that his reply to the 1.0. was false and he avoided to disclose as to how he got the document. Therefore, these facts indicate that C.O. got access to the document not by fair means. These facts establish that, the C.O. got access to the document by misusing his position as TP & PRO in KPT and prepared Exh P-1 my making changes in the text (tampering) of Exh P-2 at 32 places.
c) Any act done by the Port officer, which is improper or inappropriate or unsuited Page 138 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 to his position as officer of Kandla Port is to be taken as act of unbecoming of an officer of the Kandla Port. Therefore, act of tampering/ forging the confidential document by misusing of his position and submitting the same before the court by the C.O. is tantamount to act of unbecoming of Port Officer.
The other reasons are the Sub para d) and
e) and are the same as given in Sub para
d) and e) of Para 5.1 above. In view of the above, Article IV of the Articles of Charge is found as PROVED.
CONCLUSION :
Inquiry into the Article-i of Articles of Charge has not been held as the same is a repeated charge of another Charge-Sheet vide Memorandum No. GA/PS/SB/2015/2607 dated 03/11/2015.
All the three Charges Article Il, Article I and Article IV are found as PROVED, with a noting that there is no violation of Regulation 3(8)(v) of the Kandla Port Employees ( Conduct) Regulations 1964)."
9.19 On perusal of the above reasoning given by the inquiry officer pursuant to the charges leveled against the petitioner, it appears that the submission of the confidential report of Dr. G.S. Rao in the Court is different than that of the report which was produced on record before Page 139 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 the inquiry officer by the presiding officer.
Moreover, the petitioner has never produced such report along with affidavit nor the Court has taken into consideration such report for arriving at a conclusion as can be seen from the order dated 25th July, 2015 passed by the learned Chief Judicial Magistrate, at Gandhidham-Kachchh, directing the Police Inspector, Anti Corruption Bureau, to register a complaint. Therefore, placing of report of by the petitioner on record before the learned Chief Judicial Magistrate, at Gandhidham-Kachchh, in the complaint filed by him against Mr. P. Ramjee in his individual capacity cannot be considered as a violation of any of the regulations for which the major and harsh penalty of removal or dismissal from service can be imposed on the petitioner. There is prima facie no proof to show that the petitioner tampered with the confidential report. It is also not clearly emerging from the record that the petitioner forged the report to be placed before the learned Chief Judicial Magistrate, at Gandhidham-Kachchh, with any ulterior motive.
9.20 From the above findings arrived at by the inquiry officer to the effect that the petitioner has violated Regulations 3(8)(i), 3(8)
(iv), 3(8)(vi) and 8 of the Regulations, 1964 cannot be accepted. Therefore, considering the Page 140 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 above Regulations, the responded-KPT could not have imposed the major penalty / punishment upon the petitioner under Regulation 9 of Regulations, 2004 by passing the order of removal / dismissal from service which shall act as a disqualification from future employment. Considering more than 20 years of service of the petitioner put-up with respondent-KPT, at the best the petitioner could have been imposed the minor punishment or penalty, such as withholding of annual or yearly increment as per Clause 9(xv) of the Regulations, 2004.
10. In view of the above discussion, in the facts of the present case, the respondent-KPT could not have passed the order of dismissal from service of the petitioner dated 14th September, 2018, after passing the order of removal from service dated 6th July, 2017. Therefore, the impugned order dated 14th September, 2018 is required to be quashed and set aside and the matter is required to be remanded back to the Disciplinary Authority to reconsider the case of the petitioner to impose the minor penalty / punishment as indicated herein above of withholding of annual / yearly increment of the petitioner with future effect.
10.1 Similarly, the respondent-KPT also could Page 141 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 not have passed the order dated 6th July, 2017 imposing the major punishment of removal from service of the petitioner considering the charges leveled against the petitioner more particularly when the services of the petitioners were regularized on completion of probation period after the verification of the relevant documents pertaining to educational qualification submitted by the petitioner and considering that the petitioner discharged his duties on the post of Trade Promotion-Cum-Public Relation Officer from 1997 till 2015, i.e. for more than 18 years.
10.2 In view of foregoing reasons the order dated 6th July, 2017 is also required to be quashed and set aside and the matter is required to be remanded back to the Disciplinary Authority to impose the minor punishment or penalty under Regulation 9(xv) of Regulations, 2004 of withholding annual / yearly increment of the petitioner with future effect.
10.3 While so doing, the petitioner is directed to discharge his duties diligently with the respondent-KPT and is cautioned not to act as a 'Whistle Blower' without any basis.
10.4 The petitioner is also precluded from making any complaint / disclosure against the officers of the respondent-KPT in future Page 142 of 143 Downloaded on : Mon Jan 17 05:03:10 IST 2022 C/SCA/10925/2015 CAV JUDGMENT DATED: 29/10/2021 without any substantive material or evidence in his possession.
11. With the aforesaid observations and directions this petition is accordingly partly allowed and both the impugned orders dated 6th July,2017 and 14th September,2018 are hereby quashed and set aside and the matter is remanded back to the respondent-KPT to pass an order for minor penalty and to reinstate the petitioner in service with continuity of service without back wages as the petitioner is liable to be punished with minor penalty on his original post or any other suitable post within a period of twelve weeks from the date of receipt of this order. The respondent-KPT is also directed to pass order to levy minor penalty upon the petitioner simultaneously after giving opportunity of hearing. Rule is made absolute to the aforesaid extent.
(BHARGAV D. KARIA, J) UMESH/-
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