Gujarat High Court
C.H. Karia vs State Of Gujarat & on 24 January, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/7658/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7658 of 2008
WITH
Civil Application No.12576 of 2013
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS JUSTICE SONIA GOKANI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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C.H. KARIA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
MR JAIMIN GANDHI, LD.ASST.GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA
GOKANI
Page 1 of 18
C/SCA/7658/2008 JUDGMENT
Date : 24/01/2014
COMMON ORAL JUDGMENT
1. This petition is preferred by the petitioner under Articles 14, 16 and 311 of the Constitution of India challenging the order of punishment passed by the respondent on June 20, 2005, whereby the punishment of forfeiture of 100% pension and pensionary benefits is levied upon the petitioner in the following factual background :
1.1 The petitioner joined service with the respondentHealth and Family Welfare Department in the year 1975 as a ClassIII employee and in the year 1983, he was promoted to ClassII post. The petitioner continued to serve the respondentDepartment and thereby the society, for nearly 21 years. From June 10, 1996 to July 25, 1996, he sought for commuted leave for 46 days, which came to be sanctioned on September 19, 1996. He thereafter once again applied for leave for a period of one year commencing from September 20, 1996 to September 18, 1997 on the Page 2 of 18 C/SCA/7658/2008 JUDGMENT ground of illness of his father, who later on passed away during the illness. From September 19, 1997 to May 18, 1998, he once again requested for eight months' leave on the ground of illness of his mother due to demise of his father and also on the basis of the medical certificate of his wife. In the intervening period, on December 23, 1996, the petitioner was given a show cause notice to show cause as to why the Departmental proceedings should not be initiated for such unauthorized absence of the petitioner. On November 30, 1996, after receiving the reply of the petitioner, he was held to be absent unauthorisedly from service from July 26, 1996 to March 09, 1998. On March 31, 1998, the District Development Officer held such unauthorized leave to be treated as "leave without pay". Thereafter, one Mr.P.H. Panchal was appointed as an Inquiry Officer, who submitted his report in the month of January, 2003, holding the charges levelled against the petitioner as proved. In the inquiry report forwarded by the Government to Page 3 of 18 C/SCA/7658/2008 JUDGMENT the petitioner along with communication dated September 22, 2003, it was reflected therein that the Government had agreed with the findings recorded by the Inquiry Officer. He responded to such inquiry report on October 06, 2003. For more than 1½ year, nothing had happened and on June 20, 2005, the Government imposed major penalty upon the petitioner of forfeiture of his entire pension and pensionary benefits.
1.2 The petitioner in the meantime had already made an application to the respondentauthority on June 01, 2005 for grant of adhoc pension as well as other retiral benefits inasmuch as he reached the age of superannuation on May 31, 2003. However, when the petitioner received the order of major penalty, the appeal was preferred for reconsideration of the impugned order of punishment, which is an order imposing major punishment of denying 100% pension and pensionary benefits by way of forfeiture. Page 4 of 18
C/SCA/7658/2008 JUDGMENT 1.3 Consultation of the Gujarat Public Service Commission (hereinafter referred to as 'the GPSC') was also required and was done. The advice of the GPSC to the Disciplinary Authority was given on June 04, 2005. The decision in the present case was taken by the respondentauthority on June 20, 2005. On various counts, such decision has been challenged. It is urged before this Court that the petitioner was not supplied with the advice of the GPSC dated June 04, 2005 before passing the impugned order and, therefore, he has been deprived of his right to make a representation to the Disciplinary Authority. He further urged that nonsupply of such advice is illegal and is in gross violation of principles of natural justice. He has also relied upon the decision of Division Bench of this Court in the case of Bharat Sanchar Nigam Limited v. T.V. Patel dated December 30, 2004 rendered in Special Civil Application No.17027 of 2004 as well as the decision dated December 08, 2004 in the case of Union of India v. Avinash Kumar Page 5 of 18 C/SCA/7658/2008 JUDGMENT Srivastava while dealing with Special Civil Application No.15316 of 2004. He also urged that Rule 15(3) of the CCS Rules and Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as 'the Rules'), are paramateria identical. Thus, not only the very initiation of the inquiry is challenged as illegal and arbitrary, but violation of the principles of natural justice has also been contended. It is further urged that assuming without admission that the entire case is duly proved against the petitioner, then also the punishment is disproportionate to the guilt alleged against the petitioner.
2. For and on behalf of the respondent, an affidavitinreply has been filed on October 18, 2008, inter alia contending therein that the charge sheet issued upon the petitioner was after the expiry of a period on July 25, 1996. The action under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 was initiated against the petitioner. The charges levelled Page 6 of 18 C/SCA/7658/2008 JUDGMENT against the petitioner since have been proved and they are of serious nature, in consultation process with the GPSC, the decision has been taken of 100% forfeiture of the pension and pensionary benefits, which is not at all harsh.
Such punishment is based on the findings of Inquiry Officer, with which the Disciplinary Authority has also agreed to. Resultantly, the same would be required to be given effect to. Considering the overall facts and circumstances of the present case, where the respondent working on a responsible post of Medical Officer chose not to attend his duty on expiry of his leave and went on seeking extension of leave, not only such action amounts to negligence on the part of the petitioner, but looking to the gravity of his actions and their consequences on the general public, the punishment imposed does not require any reconsideration.
3. Both the sides have been heard at length and the Court also needs to place on record the application of fair approach adopted by the Page 7 of 18 C/SCA/7658/2008 JUDGMENT learned advocate Mr.D.G. Shukla for the respondent No.2 in assisting this Court. 3.1 At this stage, it is required to be mentioned that the principal challenge in the present petition is to the imposition of disproportionate punishment. Although other challenges have been made in the present petition, they do not assume much relevance. 3.2 Admittedly, after having successfully competed 21 years of service as a Medical Officer, ClassIII and thereafter, as ClassII officer, the petitioner had chosen to avail commuted leave for a period of 46 days. At his such request, eight weeks' leave was granted. However, thereafter thrice his requests for grant of leave for long period though had not been sanctioned, he chose not to resume the duty. As is also borne out from the record that in the intervening period, he was served with a show cause notice to explain as to why he continued to be absent from the duty Page 8 of 18 C/SCA/7658/2008 JUDGMENT unauthorisedly. The Department has, therefore, chosen to conduct inquiry against him, where the Inquiry Officer held charges to have been proved against him.
3.3 It is not in dispute that the petitioner was served with a copy of the inquiry report, however, advice sought for from the GPSC by the Disciplinary Authority, which is a must under the Rules, when came to the Disciplinary Authority, the same was at no point of time furnished to the petitioner.
3.4 The Supreme Court in the case of State Bank of India v. B.C. Agrawal, reported in AIR 1993 SC 1997, has held that nonsupply of the report of the GPSC before taking final decision would amount to breach of principles of natural justice. This Court also following the decision of the Supreme Court and also keeping in view the provisions under the Rules, concluded that nonsupply of advice of the GPSC would tantamount to not having followed the Page 9 of 18 C/SCA/7658/2008 JUDGMENT principles of natural justice and that would also amount to not observing the statutory Rules.
3.5 At this stage, it would be also profitable to reproduce the relevant portion of the decision rendered in the case of Bharat Sanchar Nigam Limited (supra), which reads as under :
"The question whether UPSC advice is to be furnished along with penalty order or before passing the order of punishment has been considered by us in Special Civil Application No.15316 of 2004 Union of India v. Avinash Kumar Srivastava decided on 8.12.2004. It has been held that UPSC advice is obtained under Rule 15 of CCS Rules, 1964. Proviso to subrule 3 requires that in every case where it is necessary to consult the Commission, report of inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. Therefore, there is requirement of consulting the Commission. Page 10 of 18
C/SCA/7658/2008 JUDGMENT Consequently, advice of Commission cannot be sought by way of formality. It has to be taken into consideration by the competent authority before making any order imposing any penalty on the Government servant. Obviously, a copy of the advice of the Commission has to be supplied to the delinquent to enable him to represent. In case it is supplied after the order of punishment is passed, there is no need to supply the same because it is of no use to the delinquent at that stage. The question is violation of fair procedure by relying on material which is not supplied to the delinquent. The purpose of supply of document is to contest its veracity or give explanation. It is at this stage that there is violation of principles of natural justice vitiating inquiry. We are not concerned with it nor we intend to examine validity of Rule 32 except making simple observation that supply of UPSC advice after passing the order of punishment is of no use to the delinquent. While examining the principle earlier, reliance was placed on Apex Court decision in State Bank of India and others v. D.C.Aggarwal and another (AIR 1993 SC 1197) followed by us in Special Civil Application No.17549 of 2003 - Union of India v. N.M.Raichura, decided on 12.1.2004. This being exactly similar case, Page 11 of 18 C/SCA/7658/2008 JUDGMENT UPSC advice has been supplied to the respondent with the punishment order and not before that.
Consequently, we find no merit in this petition and the same is dismissed."
3.6 The Apex Court in the case of State Bank of India (supra) upheld the order of the High Court which had quashed the order of the Disciplinary Authority on the ground of procedural error. The Bank had turned down the request of supply of report of the Central Vigilance Commission as a privileged document. The Apex Court held that even if the Disciplinary Authority records its own findings which may coincide with the reasons and basis of CVC report, but the said report when was obtained behind the back and the employee was not supplied the copy thereof, action of employer was vulnerable.
3.7 This has been also ingeminated in case of Union of India v. S.K. Kapoor, reported in (2011) 4 SCC 589, where also true copy of Page 12 of 18 C/SCA/7658/2008 JUDGMENT report of UPSC was not made available to the delinquent in advance. Of course in this case direction was to put the clock back at the stage of supplying the copy of commission to the delinquent.
3.8 In the present case, as noted hereinabove, contrary to the requirement of the Rules and also decision of this Court as well as that of the Apex Court, a copy of the advice has not been furnished to the petitioner prior to the passing of final order by the respondent. It is to be held that the requisite copy has not been provided to the petitioner prior to imposition of punishment of forfeiting 100% pension and pensionary benefits. Considering the long span of not only service of the petitioner, but also of the long drawn litigation coupled with the fact it would not be desirable to remand the matter to the concerned authority, instead the disproportionality of the punishment alleged in the present petition shall have to be regarded, considering this as one of the rarest matters Page 13 of 18 C/SCA/7658/2008 JUDGMENT as held by the Apex Court in the case of Punjab National Bank v. Kunj Bihari Mishra, reported in (1998) 7 SCC 84.
4. This Court is of the opinion that even if the charges levelled against the petitioner have been proved in the inquiry report accepted by the Disciplinary Authority, the authority could not have been oblivious of the unblemish record of the petitioner for a period of 21 years. The petitioner joined service with the respondent Department in the year 1975 and till the year 1996, when he made a request for commuted leave for a period of eight weeks, followed by other requests, on the ground of illness of his father, thereafter his mother and also of his wife, nothing adverse is reported against the petitioner. It is not even the case of the respondentState that there are any repetitive acts of indiscipline or defaults made by the petitioner making his case vulnerable to such major penalty. It is also to be noted that the reason for his unauthorized absence is the Page 14 of 18 C/SCA/7658/2008 JUDGMENT requirement of a person in his family. His father aged 93 years old required great care during his illness and it is a matter of record that the father of the petitioner died in December, 1996 because of such illness. The medical certificate of the poor mental condition of his mother and also serious issue of health of his mother and that of his wife, including that of his own ill health, have come on record. It is not the case of the respondent that on account of lethargy or inertia or because of enjoyment of life at the cost of his duty that he had chosen to remain absent without sanction of the leave. 4.1 Reiteratively, it was questioned to the learned Assistant Government Pleader as to whether during this period, when the petitioner is held guilty of having been on unauthorized leave, any endemic or epidemic had necessitated the presence of the petitioner being a Medical Officer and whether his absence in any manner had jeopardized the health of the community; to which, the answer is in negation. It is also to Page 15 of 18 C/SCA/7658/2008 JUDGMENT be noted that the record does not speak of presence of only one Medical Officer at Jamnagar during the tenure of the petitioner as a Medical Officer, ClassII. Even if that was the case, his absence as a Medical Officer surely would have an effect on the flow of the patients visiting the Government hospital. 4.2 It is also pertinent to note here that the petitioner had periodically sent the requests for leave to his superiors and the inquiry report is also indicative of the fact that his reasons seeking leave and his attempts to get the leave sanctioned were justifiable, however, only on the ground that as he was a professional Medical Officer, he could not have neglected his duty and at least once he ought to have reported for duty to get the leave sanctioned, the aforesaid punishment has been imposed upon the petitioner. It is also required to be noted that the petitioner had also made an application for voluntary Page 16 of 18 C/SCA/7658/2008 JUDGMENT retirement on May 18, 1998, which was also not rejected by the authority.
5. In wake of the discussion hereinabove and considering the entire gamut of facts as well as the Rules and regulations, this Court is of the opinion that the major punishment imposed upon the petitioner of forfeiture of 100% pension and pensionary benefits is surely ex facie disproportionate to the guilt proved.
6. Considering the overall facts and circumstances of the case, it would subserve the purpose if such punishment is reduced to forfeiture of 10% of total pension with permanent effect.
7. For the foregoing reasons, the present petition is partly allowed. The impugned order of punishment dated June 20, 2005 passed by the Government of Gujarat, Health and Family Welfare Department and its subsequent confirmation order dated August 05, 2006, passed by the Government of Gujarat, is reduced and modified to the extent Page 17 of 18 C/SCA/7658/2008 JUDGMENT that there shall be forfeiture of 10% of total pension with permanent effect. The respondent authority is directed to make payment of pension and pensionary benefits as well as other retiral admissible dues to the petitioner within a period of twelve (12) weeks from the receipt of this order (treating his service from July 26, 1996 to March 09, 1998 as continuous service) with 6% interest thereon from the date of his superannuation till the date of actual realization of amount by the petitioner. Rule is made absolute accordingly. There shall be, however, no order as to costs. In view of disposal of the main petition, the connected Civil Application does not survive and the same stands disposed of accordingly.
(MS SONIA GOKANI, J.) Aakar Page 18 of 18