Gujarat High Court
Hemantkumar Chitranjan Raval vs State Of Gujarat on 25 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5580 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HEMANTKUMAR CHITRANJAN RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MS.VRUNDA SHAH, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 25/03/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Ms.Vrunda Shah learned AGP waives service of notice of Rule on behalf of the respondent State.
2. With the consent of learned advocates for the respective parties, the petition is taken up for final Page 1 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner who was working as a Mamlatdar, has challenged the order of the State dated 17.02.2021, by which, the State, the Disciplinary Authority has imposed a cut in pension of Rs.2000/- p.m. with permanent effect.
4. Facts in brief would indicate that at the relevant point of time, Mamlatdar, Veraval, District:Junagadh, had issued notice under Sections 39A, 43 and 61 of the Bombay Land Revenue Code to the Gujarat Siddhi Cement Ltd as according to Mamlatdar, the company was unauthorizedly removing limestone from Survey No.511 paiki of Village:Krishnavada. Pursuant to the notice so issued, the Mamlatdar on 24.12.1997 after an inquiry, passed order directing the company i.e. Siddhi Cement to pay Rs.7,55,56,600/- towards the value of the limestone removed. On an appeal filed by the company before the Deputy Collector, the Deputy Collector, vide his order dated 09.03.1999, Page 2 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 confirmed the order of the Mamlatdar.
5. The company has challenged the order of the Deputy Collector before the Gujarat Revenue Tribunal by filing Revision Application No.TEN/BR-13/1999. The Gujarat Revenue Tribunal ('GRT' for short) allowed the Revision in part. The orders of the Deputy Collector and the Mamlatdar were quashed and set aside and the matter was remanded to the Mamlatdar, Veraval, for a fresh inquiry. The order was passed by the GRT on 22.04.2009. Pursuant to the remand order of the GRT, the Mamlatdar, heard the matter. Be it noted that at the relevant point of time in remand, the petitioner was working as a Mamlatdar, Sutrapada. Pursuant to the directions of remand, the petitioner heard the matter in accordance with the directions of the Tribunal and by an order dated 25.11.2013 held in favour of the company.
6. The Deputy Collector, in exercise of suo-motu powers took the order of the Mamlatdar in revision Page 3 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 and passed an order on 09.12.2013 suspending the order of the Mamlatdar dated 25.11.2013. Aggrieved by the order of stay passed by the Deputy Collector, the company again went in revision before the Gujarat Revenue Tribunal. The Tribunal by its order of 07.02.2014, granted an order of status-quo. The District Collector applied before the Tribunal for vacating the status-quo order which the Tribunal did not entertain and by an order of 27.08.2014, rejected the application of the District Collector.
7. In the meantime, the State on 29.11.2013, issued a charge-sheet to the petitioner. By the aforesaid charge-sheet, the imputation against the petitioner was that while exercising powers as a Mamlatdar on, undertaking to reexamine the issue pursuant to the remand order of Gujarat Revenue Tribunal, the petitioner had exceeded his jurisdiction inasmuch as, he did not carry out the cross-verification and the order on remand dated 25.11.2013 could not have been passed. The petitioner responded to the charges and an Inquiry Officer on being appointed Page 4 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 carried out departmental proceedings. The Inquiry Officer submitted report on 04.07.2014 holding that the imputation leveled against the petitioner was misconceived and it may not be said to be a misconduct. The Inquiry Officer held that only because the petitioner agreed with the findings of the Tribunal, such could not be termed as a misconduct against the Gujarat Civil Services (Conduct) Rules 1971.
8. On 08.08.2014, the Disciplinary Authority disagreed with the findings of the Inquiry Officer and held the charge to be proved and asked the petitioner to show cause as to why the authority should not accept the Inquiry Officer's report. To this the respondent responded by way of a communication dated 25.08.2014.
9. Thereafter, a fresh notice was issued on 08.01.2021 reiterating the same stand of the authority as was done in 28.08.2014. In addition thereto, however, a tentative decision was taken of which the petitioner was asked to show cause as to why a penalty of Page 5 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 reduction in pension of Rs.2,000/- with permanent effect be not imposed. Based on a response, the penalty order of 17.02.2021 was passed.
10. Mr.Premal Joshi learned counsel for the petitioner would submit that the petitioner not committed any misconduct. The history of the litigation would suggest that when a notice was issued to the company for paying an amount pursuant to extraction of limestone and on the order being challenged before the GRT, when the Tribunal remanded the proceedings, the petitioner was Mamlatdar. In exercise of his powers as quasi- judicial authority, the petitioner opined in line with the directions of the Tribunal and held in favour of the company. It is not the case of the department that the order was passed on extraneous considerations. It cannot be termed as a misconduct, for which, a penalty of stoppage of an amount of Rs.2,000/- with permanent effect can be imposed.
11. Mr.Joshi would also submit that even otherwise, Page 6 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 the inquiry proceedings stood vitiated on account of delay inasmuch as, after the departmental inquiry was concluded in the year 2014, and the Inquiry Officer submitted his report on 04.07.2014, the department did not initiate any action for a period of seven years and only in the year 2021 did they issue a notice to impose a penalty and consequentially did so. He would rely on the decision in case of Union of India v. Govindbhai Bhagat Son Of Baldevdas T. Bhagat reported in 2015 JX (Guj) 1267 in support of his submission that when an officer exercises his quasi-judicial functions, it is not open to hold a departmental inquiry. He relied on the decision in case of G.H.Chakraverty v. State of Gujarat reported in 2004 (4) LLJ 138 to support his submission that the order of penalty was an unreasoned order.
12. On the aspect of delay in the departmental proceedings and whether negligence would amount to misconduct, Mr.Joshi relied on the decision in case of K.V.Shah v. State of Gujarat reported in Page 7 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 2016 JX (Guj) 1533. He would also rely on the decision of the coordinate bench of this Court in case of Kiritbhai Shankar Patel v. State of Gujarat reported in 2019 (2) GLR 1079.
13. On the ground of order being unreasoned, Mr.Joshi relied on the decision in case of K.C.Mehta Since Deceased Through His Heir And Legal Representatives v. State of Gujarat reported in 2017 JX (Guj) 746.
14. Ms.Vrunda shah learned AGP opposed the petition firstly on the preliminary ground of the petitioner having an alternative remedy. She would submit that since the order of penalty was passed under the Gujarat Civil Services (Discipline and Appeal) rules, 1971, an appeal shall lie to the State Government. In other words, since the petitioner was working as a Mamlatdar, an appeal could be filed before the Gujarat Civil Services Tribunal.
15. Reiterating the factual details preceding the order of penalty, she would submit that once the order of Page 8 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 Gujarat Revenue Tribunal, remanded the matter to the Mamlatdar for fresh consideration and observed that the documents at pages 107 to 113 be allowed to be cross-examined by the company's representatives, the Mamlatdar, was bound to follow the due process of law. She would submit that the Mamlatdar decided the remand case without following the due process of law and the directions given by the Tribunal. The petitioner did not examine all the witnesses/officers who had put the signature on Panch Rojkam. Out of 11 witnesses, only three were examined. She would further submit that the contention of delay on behalf of the petitioner was misconceived. The respondent was waiting for the final outcome of the decision of the Tribunal and since it did not happen, they thought it fit to take a decision after more than five years. It was in this background that a show cause notice dated 08.01.2021 was issued. Thereafter, the order of penalty of 17.02.2021 was passed.
16. The chronology of facts as argued by the learned Page 9 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 counsel for the respective parties would indicate that the Mamlatdar, Veraval, (at the relevant time not the petitioner) passed an order on 24.12.1997, pursuant to a notice issued under Sections 39A, 43 and 61 of the Bombay Land Revenue Code, 1879, against Siddhi Cement asking them to pay certain amount for removal of limestone. That order was challenged by the company before the Deputy Collector who confirmed the order of the Mamlatdar. The Company went in appeal before the GRT. In such proceedings, the Tribunal on 22.04.2009, remanded the proceedings to the Mamlatdar. While remanding the matter, the Tribunal gave certain directions. The directions read as under:
"9. We, however, come to the conclusion that the site inspection which has been made on 15.3.1997 as a result of which a Panch Rojkam has been drawn and the details of the pits dug recorded and a map prepared are concerned, these are in order. These documents are available at pages 107 to 113 of the Mamlatdar's record and where the signatures of Mines Manager of the applicant as well as its Geologist apart from the circle officer, Talati and other officers of the departments of Mining and Geology appear. We, therefore, pass the Page 10 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 following order:
ORDER Revision Application No.TEN.B.R. 13/99 partly succeeds. The orders of both the lower courts below are quashed and set aside. The matter is remanded back to the Mamlatdar, Veraval, for fresh inquiry and decision as per law. The documents at pages 107 to 113 may be allowed to be cross examined by the representative of the present application."
17. Unfortunately for the petitioner, on remand, it was he who was the Mamlatdar, Sutrapada. Pursuant to the remand proceedings as is evident from reading the order passed on remand dated 25.11.2013, that he examined such witnesses. Mr.Premal Joshi learned counsel for the petitioner has extensively taken the Court through the order of remand. The remand proceedings were concluded after several dates of adjournments where notices were issued to the Geologists and mines supervisor, Junagadh, to depose where they chose not to appear.
18. After the order of remand within four days thereafter on 29.11.2013, the petitioner was issued the charge-sheet in question, imputing that in Page 11 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 deciding the matter on remand, the petitioner had exceeded his jurisdiction. The order of the Mamlatdar on remand was taken in suo-motu revision by the District Collector, Junagadh, on 09.12.2013 and was stayed. The company had challenged the order of the District Collector of staying the order of Mamlatdar, the Tribunal by an interim order on 07.02.2014 granted status-quo.
19. The application for vacating the stay filed by the District Collector also failed. It is in this back- ground that imputation of misconduct against the petitioner has to be viewed. The allegation/imputation is that in discharge of his duties, the petitioner as a Mamlatdar, exceeded his jurisdiction in not deciding the proceedings before him in accordance with the directions of the Tribunal.
20.Two things need to be noted. Assuming for the sake of argument that the Mamlatdar has not decided the proceedings on remand in accordance with the Page 12 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 directions of the Tribunal, what is evident is that his order in suo-motu exercise by the Collector was stayed. The company on being aggrieved by the order of status-quo, granted by the District Collector challenged it before the Gujarat Revenue Tribunal by filing an appeal which is still pending. The Tribunal on 07.02.2014 granted status-quo. The request of the District Collector of vacating the order was also rejected. All these are a strong pointer to the fact that in course of exercise of quasi judicial powers, the Mamlatdar had acted and passed an order. If in the perception of the Disciplinary authority, the orders were wrong, they were tested before the District Collector and the appeal before the GRT is still pending.
21.In the back-ground of these facts, one needs to consider the decision of the Division Bench of this Court in case of Govindbhai Bhagat Son Of Baldevdas T. Bhagat (supra) wherein a Division Bench of this Court while examining the role of an Income-tax Officer who in discharge of his quasi Page 13 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 judicial functions had passed certain orders which had become a subject matter of departmental proceedings. Considering the judgments of the Supreme Court in case of Union of India v. K.K.Dhavan reported in 1993 (2) SCC 56, the Division Bench observed as under:
"14. If this much is clear, it immediately emerges that the only role of the delinquent was to make suitable recommendation on the application of the assessee for release of the documents. The ultimate decision was taken not by him but by the CIT. Whatever be his recommendations, he cannot be blamed for even an erroneous order passed by the competent authority. Had there been some misrepresentation or withholding of the relevant material in such recommendation, there would be some possibility of proceeding against the charged officer. However, these were not the allegations made by the department. For merely making a recommendation without there being anything further, the delinquent could not have been held guilty of any misconduct.
15. It is undoubtedly true that a quasi judicial officer or even a judicial officer can be called upon to answer the allegations of misconduct if there is sufficient material to suggest that the quasi judicial or judicial order was passed with extraneous consideration or some such allegation. This much is clear from the decision of the Supreme Court in the case of K.K.Dhawan (supra). It was held that an officer taking decision in exercise of quasi judicial function is not immune from disciplinary Page 14 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 proceedings. However, it was provided as under:
"19. The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi-judicial powers provided:
i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or
ii) there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or
iii) the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power."
16 In the case of Zunjarrao Bhikaji Nagarkar (supra), the Supreme Court held and observed that a mere mistake of law or wrong interpretation of law cannot be the basis for initiation of departmental proceedings against a quasi judicial authority. In the said case, the petitioner was discharging his duty as Collector of Central Excise. He was served with a chargesheet for not imposing penalty on an assessee under rule 173Q of the Central Excise Rules, 1944. He challenged the initiation of departmental proceedings. Supreme Court held as under:
"42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis Page 15 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."
17 In the case of P.C.Joshi (supra) in the context of a judicial officer granting bail to an accused for which departmental proceedings were initiated against him, the Supreme Court referred to and relied upon a decisions in the case of K.K.Dhawan and in the case of Ishwar Chand Jain (1988) 3 SCC 370 and held and observed as under:
"........That there was possibility on a given act of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material,which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate Court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently of Page 16 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 fearlessly. Indeed the words of caution are given in K. K. Dhawan's case (1993 AIR SCW 1361 : AIR 1993 SC 1478 : 1993 Lab IC 1028) (supra) and A. N. Saxena's case (1992 AIR SCW 1336 : AIR 1992 SC 1333 :
1992 Cri LJ 1940) (supra) that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case."
18 Under the circumstances, we do not find that the Tribunal committed any error in holding that both the charges were held to have been proved by the Disciplinary Authority. 19 There is one more aspect of the matter, namely, rule 9 of the CCS (Pension) Rules, 1972 reserving right to withdraw pension. Sub- rule (1) thereof provides that the President reserves to himself the right of withholding of pension or gratuity or both, either in full or in part, or withdrawing pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service. In the present case, even going by the account of the Inquiry Officer as concurred by the Disciplinary Authority, there was no case of grave misconduct. Cut in pension, even a portion thereof, for a limited period results into serious penalty to a retired Government servant. For example, in the present case, the charged officer would be deprived of 15% of his Page 17 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 pensionary benefits for a period of ten years which would undoubtedly cause considerable monetary loss to a retired Government servant. Such penalty could not have been imposed on charges which were not established."
22. From the aforesaid paragraphs, what is culled out is that the law on the point is that, even if it is the case of the department that an officer in exercise of quasi-judicial functions carries out certain acts which can be called misconduct, there has to be sufficient material to suggest that the officer has passed such orders with extraneous considerations or some such allegations. Reading of the charge- sheet in question, does not indicate such an imputation. What is more important in the facts of the present case is that even the Inquiry Officer in his report dated 04.07.2014, specifically and unequivocally opined that the allegation did not amount to misconduct at all. This is one sufficient ground on which the order of penalty can be quashed and set aside.
23. But there is more reason than the one that is discussed herein above. After the issuance of a Page 18 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 charge-sheet on 29.11.2013 and after conclusion of the departmental proceedings in the petitioner's favour, when the Inquiry Officer exonerated the petitioner by his report dated 04.07.2014, the Disciplinary authority disagreed with the report. A show cause notice was issued on 08.08.2014. To the show cause notice so issued, the petitioner responded by the representation dated 25.08.2014. The Disciplinary authority went into a mode of suspended animation and did not act for seven years based on the response filed by the petitioner. The defense in the affidavit is that they waited for the outcome of the proceedings before the Gujarat Revenue Tribunal and therefore did not take a final call. If that be so, then the issuing of the charge- sheet in the year 2013 itself was a step a which was misconceived.
24. The coordinate bench of this Court in case of Kiritbhai Shankar Patel (supra) has considered the aspect of delay in inquiry proceedings at every stage and where such delay would vitiate the inquiry Page 19 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 proceedings. Considering the various decisions of the Supreme Court in paragraph nos.5 and 6, the Court observed as under:
"5. Noticing the details of the departmental inquiry proceedings against the petitioner so as to appreciate the sole ground of delay raised by the petitioner to assail the inquiry and the punishment order, which are undisputed facts, charges were levelled against the petitioner in respect of alleged misconduct said to have occurred in year 1989-90. Inquiry was initiated in the year 2001 after a yawning gap of 10 years. The inquiry report came to be submitted by the inquiry officer in the year 2003, whereunder, as noted above, the petitioner came to be exonerated. The second show-cause notice regarding penalty was issued in the year 2010, since the disciplinary authority disagreed with the findings of the inquiry officer. In other words, it took 07 years between the inquiry report and the second show-cause notice asking the petitioner to show cause about the penalty. Finally, the order of penalty was passed imposing the cut in pension of Rs.300/- per month for six month was passed on 15th May, 2013. Therefore, three years delay occurred at this juncture also. The petitioner by the time had reached the age of superannuation to retire with effect from 31st December, 2012.
5.1 In Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515] the Supreme Court observed in paragraph 14 with regard to belated conduct of inquiry that whether the court would be inclined to quash the departmental proceedings on the ground of delay would depend upon the facts and circumstances of the case. It was observed that though ordinarily the court should not set aside Page 20 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 the departmental inquiry or quashed the charges on the ground of delay in initiation in the proceedings, the test of prejudice caused by delay may be a overriding consideration. The court must weigh all the facts to finally make up its mind.
5.2 In M.V. Bijlani v. Union of India [(2006) 5 SCC 88] the issue of belated commencement of departmental inquiry was dealt with by the Apex Court. It was observed in the facts of the case that the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years. It was stated that thus initiation of the disciplinary proceedings as also continuation thereof after such a long time evidently prejudiced the delinquent officer.
5.3 The Supreme Court in State of M.P. v. Bani Singh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, "The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to thing that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage."
(Para 4) Page 21 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 5.4 In P.V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636] the Supreme Court considered the aspect of delay of 10 years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the departmental proceedings on such distance of time would be very prejudicial to the appellant. It was observed that the appellant already suffered enough on account of inordinate delay. 5.5 Quashing the charge memo issued against the appellant and putting the departmental inquiry to an end, the Supreme Court observed thus, "The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95. But, Section 118of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 of the said Act relates to annual audit of account. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay." (Paras 8 to 10) 5.5.1 It was held that protracted action against government employee would operate prejudicial to him and has to be avoided, "Under the circumstances, allowing the respondent to proceed further with the departmental proceedings at this distance of Page 22 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer." (Para
12)
6. In the case of the petitioner, vice delay in the inquiry proceedings is manifest at every material stage. The allegations pertain to the year 1989-90 while the inquiry was initiated after delay of a decade. It took three years in completion of inquiry in which the petitioner was found not guilty in respect of charges levelled against him. The disciplinary authority took seven years in expressing disagreement with the findings of the inquiry officer. Travelled further were three years before final order of penalty was passed. Counting the total period of delay at each stage, it was after 20 long years that the petitioner was subjected with penalty in cut in the pension for Rs.300/-. By virtue of the factor of delay itself, the inquiry stood vitiated. The petitioner suffered a prejudice.
Page 23 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 6.1 Therefore, the impugned order of penalty is required to be set aside on the aforesaid ground of delay in the inquiry. Consequently, the petitioner would be entitled to the second higher pay-scale as the penalty would stand obliterated."
25. Admittedly, in the facts of this case, after having issued a show-cause notice, the disciplinary authority disagreed with the findings of the Investigating Officer's report of year 2014 for seven years. The department did not do anything purportedly under the guise of waiting for the final outcome of the Tribunal. On 08.01.2021, a show- cause notice was issued asking the petitioner to show cause as to why the penalty of reduction in pension by an amount of Rs.2,000/- with permanent effect be not imposed. As per the law laid down which is referred to herein above, this is the second ground on which the order of penalty has to be quashed and set aside.
26. Reading the order of penalty dated 17.02.2021 indicates that after extensively reproducing the chronology of litigation and thereafter the case of Page 24 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022 C/SCA/5580/2021 JUDGMENT DATED: 25/03/2022 the department and the petitioner, the explanation is not accepted and that is the other ground on which the order of penalty is set aside. No reasons are assigned why the order of penalty was sought to be imposed. Therefore, in accordance with the decisions in case of K.C.Mehta (supra), the order of punishment suffers from non-application of mind and exhibits defects of unreasonable orders.
27. For all these grounds, the order of penalty dated 17.02.2021 reducing the pension of the petitioner by Rs.2,000/- per month with permanent effect is quashed and set aside. The respondents are directed to see that the pension of the petitioner is revised with a consequential effect as if the order of penalty was not passed and the pension be revised within a period of 10 weeks from the date of receipt of copy of this order.
28. The petition is allowed. Rule is made absolute.
(BIREN VAISHNAV, J) ANKIT SHAH Page 25 of 25 Downloaded on : Thu Mar 31 20:28:27 IST 2022