Gujarat High Court
Babubhai Somchandbhai Kadia vs State Of Gujarat on 28 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15931 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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BABUBHAI SOMCHANDBHAI KADIA
Versus
STATE OF GUJARAT
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Appearance:
MANOHAR H SONAR(8251) for the Petitioner(s) No. 1
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/07/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent State.
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2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 18.08.2021, by which, a penalty of cut in pension of Rs.7,000/- for 30 months has been imposed on the petitioner.
4. Facts in brief would indicate that the petitioner was working as an Assistant Engineer where he was appointed on 25.07.1980. During the course of his service, he was promoted. He retired as Executive Engineer on superannuation on 30.11.2014. Almost three years after his retirement on 16.06.2017, a charge-sheet was issued levelling certain allegations/imputations pursuant to a departmental proceedings held in Page 2 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022 C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022 which the charges were proved, the petitioner was inflicted with the penalty impugned in this petition.
5. Mr.Sonar learned counsel for the petitioner would submit that the order of penalty dated 18.08.2021 should be set aside on the ground that by virtue of operation of Rule 24(2)(b)(ii), the charge-sheet was beyond the stipulated period of time.
6. Mr.Sonar would submit that if the charge-sheet is perused, it is dated 16.06.2017 and the imputation of misconduct would indicate that the date of incident for which the charge-sheet was issued was for the period between 14.08.2012 to 15.01.2013. He would therefore submit that the charge-sheet itself was barred by virtue of Rule 24(2)(b)(ii). Reliance was placed on the decision Page 3 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022 C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022 in case of Special Civil Application No.14510 of 2018 in case of Abhesinh Madubai Roz v. State of Gujarat and Anr.
7. Mr.Utkarsh Sharma learned AGP vehemently opposing the petition would submit that the petitioner was working as an Executive Engineer and for as many as 8 charges he was held responsible which were proved during the course of departmental proceedings based on the findings of the Inquiry Officer which was accepted by the Disciplinary Authority and the order of penalty dated 18.08.2021 was passed. The Court in exercise of powers under Article 226 of the Constitution of India would not sit over the order of penalty based on findings arrived at by the Inquiry Officer as, the Court cannot look at the order in exercise of judicial review as if it was exercising an Appellate Authority.
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8. Mr.Sharma would also distinguish the judgment of this Court in Abhaysingh (supra) to submit that the case of K.B.Desai (supra) which was relied upon by this Court in its judgment indicated that not even a show cause notice was issued to the petitioner of that case.
9. Considering the submissions made by the learned counsel for the respective parties, it will be in the fitness of things to reproduce Rule 24 of the Gujarat Civil Services Pension Rules which reads as under:
"24. Right of Government to withhold or withdraw pension :
(1) ... ... ...
(2)(a) ... ... ...
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment -
(i) shall not be instituted save with the sanction of the Governor, Page 5 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022 C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) ... ... ..."
10. Rule 24(2)(b)(ii) indicates that in case a departmental proceedings is not instituted while the Government employee is in service, it shall not be so instituted in respect of any event which took place more than four years before such institution. Considering this Rule, the Court in case of Abhay Singh (supra) has held as under:
"4. The petitioner has assailed the impugned inquiry and the resultant punishment order by pressing into service Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002. The petition and the prayers however were contested by the respondents by filing affidavit-in-reply raising various grounds to defend the action.
5. Rule 24 of the Rules, 2002 reads as under.
"24. Right of Government to withhold or withdraw pension :
(1) ... ... ...
(2)(a) ... ... ...Page 6 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022
C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment -
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) ... ... ..."
5.1 The above Rule 24(2)(b)(ii) in terms states that the departmental proceedings will not be permissible in respect of any events which took place more than four years before the institution.
5.2 Recollecting the facts of the case, chargesheet against the petitioner was issued on 26th May, 2015. The petitioner had retired on 30th April, 2015. The charges related to the construction work undertaken in the year 2006-07 and 2007-08 which was admittedly before four years from the date of institution of the inquiry. The issuance of chargesheet marks the starting point of the inquiry.
5.3 In K.B. Desai v. State [1984 (1) GLR 556] this Court considered Rule 189A of the Bombay Civil Service Rules which was pari materia to the aforesaid Rule 24(2)(b)(ii) of the Pension Rules, 2002. The Court observed, "A departmental enquiry can be said to have been initiated when the show-cause notice is served upon the delinquent Page 7 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022 C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022 officer. By provisions of explanation clause
(a) it leaves no doubt that the proceedings can be said to have been instituted when the statement of charge is issued to the delinquent officer or pensioner as the case may be. In the instant case there is no doubt that the charge sheet was issued after four years." (Para 8)
6. Furthermore, it was after a period of nine years from the date of alleged events of irregularities, the chargesheet was issued. Delay itself becomes prejudicial to the rights of the petitioner. The Supreme Court in P.V. Mahadevan v. M.D. T.N. Housing Board [(2005) 6 SCC 636], in M.V. Vijlani v. Union of India [(2006) 5 SCC 88] and in Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515], in which cases the inquiry was initiated belatedly after seven to ten years, it was observed that allowing the respondents to proceed further with the inquiry after such a long time would be very prejudicial to the delinquent. The principle was followed by this Court in Kiritbhai Shankar Patel v. State of Gujarat [2019 (2) GLR 1079] as also in Rajesh Chamanlal Tank v. Narmada Water Resource and Kalpsar Department being Special Civil Application No.13733 of 2018 decided on 30th September, 2019.
6.1 Thus, the inquiry against the petitioner and the consequential punishment order suffered from twin-vices. In respect of the events occurred prior to four years, the inquiry proceedings were incompetent or impermissible in view of Rule 24(2)(b) (ii) of the Rules of 2002. On the second count, the delay by itself operated prejudicial. On both Page 8 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022 C/SCA/15931/2021 JUDGMENT DATED: 28/07/2022 the counts, the inquiry and the resultant order is liable to be set aside."
11. In the present case, evidently, the petitioner retired on 30.11.2014 and the charge-sheet was issued on 16.06.2017 when the petitioner was not in service, having retired on superannuation. The incident for which the charge-sheet was issued also was for the period from 14.08.2012 to 15.01.2013 and beyond the period of four years on the date when the charge-sheet was issued. Clearly therefore, the order of penalty based on such a charge-sheet which could not have been issued should fail the test of legality.
12. Accordingly, the order dated 18.08.2021 is quashed and set aside. The petitioner shall be entitled to the pensionary benefits consequential to the order being quashed as if the order was never passed. Petition is allowed. Rule is made absolute.
(BIREN VAISHNAV, J) ANKIT SHAH Page 9 of 9 Downloaded on : Sat Jul 30 20:18:02 IST 2022