Gujarat High Court
Mr. N.K.Desai vs Gujarat Industrial ... on 9 September, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1714 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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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 ?
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MR. N.K.DESAI
Versus
GUJARAT INDUSTRIAL DEVELOPMENTCORPORATION & 1 other(s)
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Appearance:
MR VISHAL B MEHTA(5319) for the Petitioner(s) No. 1
MR. MAYUR V. DHOTARE, ADVOCATE for M/S TRIVEDI & GUPTA(949) for
the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 09/09/2022
ORAL JUDGMENT
[1] This petition under Article 226 of the Constitution of India is filed challenging the order passed by the Disciplinary Authority dated 28.03.2006 and by the Appellate Authority dated 01.06.2006 inflicting the order of punishment upon the petitioner after inquiry. Page 1 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022
C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 [2] By the impugned order, the punishment is inflicted of stepping
down of Additional Assistant Engineer and withholding of two increments with future effect.
[3] Learned advocate for the petitioner submitted that initiation of inquiry against the petitioner was on a ground which was completely non-existent. It is submitted that the petitioner was proceeded against on the ground that the petitioner had recommended of application made by one M/s. Rubi Coach Builders for drilling of bore pump which was within the radius of 200 meters of the existing bore of Gujarat Industrial Development Corporation (for short "GIDC"), whereas the policy of the GIDC is to permit drilling of such bores without there being any limit of 500 or 200 meters, however the area of Vatva was exempted from such condition.
[3.1] It is submitted that the petitioner was not the final authority to permit such installing of bore pump, but his superior officer has granted such permission and therefore, the petitioner cannot be proceeded against as if the petitioner had granted the permission. It is submitted that in the year 2005, GIDC itself has given the permission to M/s. Rubi Coach Builders and therefore, the petitioner is being made scapegoat. As a result of this, the petitioner is suffering huge financial loss as he has to suffer loss of increment as well as being stepped down to the basic pay of Additional Assistant Engineer.
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C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 [3.2] Learned advocate submitted that the petitioner is made a scapegoat which is evident from the fact that the inquiry has been initiated after a long time and therefore, delay should be treated as fatal to the inquiry. It is submitted that the respondent has not suffered any financial loss.
[4] As against this, learned advocate appearing for the respondent-GIDC submitted that the petitioner was given a charge- sheet and after due inquiry and following the principle of natural justice, has been punished. It is submitted that the the departmental inquiry was made of three specific charges of which two charges were held to be partly proved and therefore, the major penalty of dismissal was not inflicted, but punishment of stepping down and withholding and increment has been inflicted. Therefore, learned advocate submitted that as the petitioner is not challenging the procedural aspect of it, the interference of the Court is therefore limited to examine wether punishment is sufficient or not. It is submitted that two charges were partly proved and therefore, the punishment inflicted cannot be considered to be shockingly disproportionate to as to warrant interference of this Court under Article 226 of the Constitution of India. Learned advocate further submitted that charge against the petitioner was not with regard to grant of permission to drill a bore pump to a applicant namely M/s. Rubi Coach Builders, but was the act of the petitioner to travel Page 3 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 beyond the scope of his duty and proposed a recommendation to the superior officer who was misled into the grant of permission and therefore, argument of the petitioner that the policy of the respondent-GIDC to grant permission to drill a bore pump within the radius of 500 meters or 200 meters, is of no consequence. It was lastly submitted that it was on account of misleading representation by the petitioner in the year 2005 that the applicant M/s. Rubi Coach Builders took advantage and before giving final decision at appropriate level, the bore was already dug and therefore, in the year 2005, the GIDC had to grant permission post-facto. [4.1] Reliance is placed upon on the decision of Supreme Court in the case of Union of India and others v/s. P. Gunasekaran, reported in (2015) 2 SCC 610 to emphasis the submission of scope and interference in service matters in exercise of Article 226/227 of the Constitution of India.
[5] In rejoinder, learned advocate for the petitioner submitted that though the claim of the respondent is that out of three charges, two have been partly proved, but the charge-sheet issued to the petitioner incldues only two charges and there was no third charge mentioned and hence, the entire inquiry is required to be vitiated. [6] As a counter, learned advocate for the respondent was permitted to submit on the issue raised regarding the third charge not being part of the charge-sheet served upon the petitioner, to Page 4 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 which he has submitted that such ground was not raised by the petitioner. Not only that the petitioner was aware of the third charge on account of various communications made petitioner has answered such a charge and therefore has not been prejudicially affected by non-mentioning of the third charge. It is submitted that the GIDC has not suffered financial loss though the charge was framed as such, but the inquiry has held that the charge not been proved and therefore, only the punishment inflicted is with regard to the stepping down and withholding of increment and no major penalty of dismissal etc. [7] The Court has heard learned advocates for the parties and perused the documents placed on record. By way of additional affidavit which is placed on record by the petitioner, certain documents which include the relevant note which is the root of initiating proceedings, such note has been placed at Annexure-III alongwith the additional affidavit.
[8] The petitioner was working as Additional Assistant Engineer with GIDC and at that stage apparently application was received from one M/s. Rubi Coach Builders for drilling of bore-well within its premises. It is not in dispute that the authority to grant such permission for digging a bore-well lies with head office of the GIDC and not with any Divisional Office, whereas on the basis of application made by M/s. Rubi Coach Builders Company and Page 5 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 reminder given thereafter, the petitioner has initiated proposal and in the notings made by him, he has recommended to immediate superior, Executive Engineer that in anticipation of permission from GIDC, conditional permission for drilling a bore-well can be given to the applicant M/s. Rubi Coach Builders. Apparently, such permission was given by the Executive Engineer and therefore, the charge against the petitioner was that despite the authority to grant permission for a bore-well in M/s. Ruby Coach Builders, Naroda, Plot No.55 to 60, Naroda lies with the Head Office, the petitioner presented the remark, in which, the petitioner made representation to grant temporary permission while the head office decides for the permission and despite the proposed private bore-well was to be constructed at a distance of 200 metre from the existing bore-well of GIDC, the petitioner recommended a temporary permission and misled the Executive Engineer. hence, despite the authority to grant this permission lies with the Vice-Chairman and Managing Director as per Circular No.74/91 dated 11/04/1991, the petitioner violated the circular of the Head Office and obtained permission from the Executive Engineer against the rules and regulations of GIDC and thereafter, have not undertaken any process to obtain permission of the Head Office, which shows indiscipline and deliberate action by the petitioner.
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C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 [9] In this connection, the petitioner was given a charge-sheet
dated 21.06.2001 and was given a period of 30 days to give his response. The petitioner submitted his response on 27.08.2001, where his basis contention was that the permission was given not by him, but his superior officer and that he had made a recommendation for giving conditional permission in an anticipation of such permission being given by the head office. With regard to the second charge of financial loss, it was pointed out that the private bore was installed by the applicant company within its premises at their own cost and therefore, there is no question of any financial loss to the GIDC. It appears from the record that as the response of the petitioner did not satisfy the respondent-GIDC, an order dated 22.07.2005 was passed for initiating inquiry, wherein three charges were ordered to be inquired. This order was communicated to the petitioner and the third charge in the aforesaid order was that the petitioner had committed a clear breach of Sections-24, 25 and 26 of the (Staff) GIDC Regulations - 1963y by such ultra vires action.
[10] It appears that the inquiry was duly concluded and an order dated 28.03.2006 came to be passed, wherein two charges were held to be partly proved and the charge of monetary benefit was not proved. Accordingly, by aforesaid order, the punishment came to be inflicted by which the petitioner was held guilty and imposed Page 7 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 penalty of stepping down the petitioner to minimum basic pay of Additional Assistant Engineer (Rs.5500-175-9000), i.e. Rs.5500/- and stoppage of two increments with future effect.
[11] The appeal came to be preferred by the petitioner departmentally and by an order dated 01.06.2006, the order of punishment was confirmed and assigned certain reasons and upon satisfaction by the appellate authority.
[12] The main argument of the petitioner is that ultimately in the year 2005, the permission was given by the head office for the purpose of bore-well vindicates the stand of the petitioner. However, the charge against the petitioner was not with regard to the grant of permission to drill a bore within a particular radius, but the charge against the petitioner was to initiate proceedings for grant of permission without any authority. From the evidence, it was held that it was the petitioner who had made a note/remark on the application of M/s. Rubi Coach Builders, wherein the petitioner has recommended grant of conditional permission in an anticipation of final permission by the head office. Therefore, it is clear that the authority to grant such permission led with the head office, whereas on account of the proposal made by the petitioner on the application cleverly wording in such a fashion so as to mislead his immediate superior officer to grant such a permission without there being any authority. This conduct during the course of inquiry is Page 8 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 apparently proved however, the petitioner has not brought anything on record that such a finding is perverse finding and not in consonance with the evidence on record. The post-facto permission given in the year 2005 cannot be considered to be a fact which would exonerate the petitioner for the misconduct for which he has charge-sheeted.
[13] With regard to the submission made by the learned advocate regarding financial loss occurred to GIDC, it is already on record that though the petitioner was facing with such charge during the course of inquiry and such charge is not held to be proved and therefore, only penalty to limited extent has been inflicted. [14] Learned advocate has argued that the entire inquiry is to be vitiated on the ground that the charge-sheet did not contain the third charge which was also to be partly proved. Perusal of the charge-sheet thus indicates that the charge mentioned only two charges however, it would be pertinent to note that the order of initiating inquiry dated 22.07.2005 served upon the petitioner specifically mentioned all the three charges for which inquiry is to be initiated. The petitioner being aware of such all the three charges had participated in the inquiry and at no stage raised such a contention and even before this Court, no such contention is pleaded and therefore, in the opinion of the Court, no prejudice is caused to the petitioner merely on account of absence of one Page 9 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 charge in the charge-sheet.
[15] With regards to the contention of delay, the reliance is placed upon the decision of this Court in case of G.M.Gohil, Deputy Executive Engineer, Bharuch v/s. Gujarat Housing Board, reported in 2019 (4) GLR 3251 it would be appropriate to observe that delay in the aforesaid case was of nine years in completing proceedings after the service of charge-sheet and the charge-sheet was served after two and half years after the incident. Not only that the Court has also taken into consideration the fact that the Inquiry Officer had conducted the inquiry in biased manner for which reason the inquiry was held to be vitiated. In the present facts of the case, notings made by the petitioner which has led to this inquiry was on 15.12.1998, based on which the proposal travelled till the Executive Engineer, who has forwarded proposal on 21.12.1998 at the same time granting conditional permission. However, the entire episode came to light later on and thereafter, immediately the petitioner has been issued with the charge-sheet in the year 2001. The Court does not find that there was a gross delay in initiating inquiry against the petitioner.
[15] In so far as the jurisdiction of this Court to undertake judicial review in departmental inquiry proceedings, the Apex Court in case of P. Gunasekaran (Supra) has laid down the principal which would read as under:-
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C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;Page 11 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022
C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
[16] At this stage, it would be pertinent to refer to the Gujarat Industrial Development Corporation (Staff) Regulation, 1963, wherein Regulation No.40 provides for penalties. Regulation 40 defines minor penalties as Censure, Fine, Withholding of increment or promotion, Recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders, whereas major penalties are reduction in rank including reduction to a lower post or time scale or to a lower stage in time scale, compulsory retirement, removal from service not disqualifying for future employment, and lastly dismissal from service disqualified from future employment. In the opinion of the Court, the inquiry was initiated on the basis of one incident and different phases of the same incident were broken into three charges for which the inquiry was conducted and punishment was inflicted. The punishment thus inflicted is firstly to step down the petitioner to the basic pay of Additional Assistant Engineer and the second part of withholding of two increments with future effect. In the opinion of the Court, these two punishments are clearly defined under Regulation 40 as two separate independent punishments, one Page 12 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022 C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022 punishment is falling in minor penalty, whereas other falling in manor penalties. In the opinion of the Court, for one inquiry initiated against the petitioner for charges arising out of one incident, two punishments could not have been inflicted and therefore, in the opinion of the Court, the impugned punishment order is inflicting dual punishment. It is observed that there is no clarification in the order of Disciplinary Authority as well as Appellate Authority that two separate punishments are inflicted by treating each charge as substantive charge capable of being punished individually. In the absence of any such explanation on record, in the order as well as in the pleadings, the Court deems it fit to modify the order of punishment by quashing and setting aside of the impugned order of punishment to the extent of minor penalty of withholding of two increments with future effect. The remaining part of the impugned order by the Disciplinary Authority as well as Appellate Authority stands confirmed.
[17] With the aforesaid observations, the petition stands partly allowed. Rule is made absolute to the aforesaid extent.
(A.Y. KOGJE, J) SIDDHARTH Page 13 of 13 Downloaded on : Fri Sep 16 20:08:28 IST 2022