Gujarat High Court
Bhailal Damabhai Nayak vs State Of Gujarat on 18 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9663/2011 ORDER DATED: 18/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9663 of 2011
=============================================
BHAILAL DAMABHAI NAYAK
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/07/2024
ORAL ORDER
1. Heard Mr. Bhavyaraj Gohil, learned advocate for Mr. A.J. Yagnik, learned advocate appearing for the petitioner and Ms. Pooja Ashar, learned AGP appearing for the respondent - State.
2. By way of present petition, the petitioner herein has challenged the order dated 08.01.2010 passed by the respondent authority imposing penalty of total pension permanently on petitioner and prayed for direction qua the respondent to refund the amount deducted from the pension of the petitioner at the rate of 12%.
3. Brief facts leading to the filing of the present petition read thus:
Page 1 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024
NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined 3.1 The petitioner herein was serving as Taluka Development Officer and retired on superannuation on 30.06.2006.
3.2 A chargesheet dated 26.06.2006 was issued to the petitioner by the respondent for holding a departmental inquiry into alleged irregularity committed by him in disbursing food grains towards the work of agricultural ponds which led to the excess payment of Rs.30,81,474/-. Pursuant thereto, the petitioner submitted defence statement on 12.09.2006.
3.3 An Inquiry Officer was appointed to hold the departmental inquiry who, after holding the same, by Inquiry report dated 14.06.2007 held the charges proved against the petitioner.
3.4 The respondent issued a show cause notice on 11.09.2007 calling upon the petitioner to show cause as to why the sum of Rs.23,52,981/- should not be recovered from the petitioner. It was stated in the said notice that out of Rs.30,81,474/-, the responsibility of the petitioner was to the extent of Rs.23,52,981/-.
3.5 The petitioner submitted representation on 07.12.2007.Page 2 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024
NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined On 08.01.2010, the respondent authority imposed the penalty of total pension cut on permanent basis on the petitioner along with the copy of advice dated 07.12.2009 of the Gujarat Public Service Commission. Being aggrieved by the impugned order dated 08.01.2010; having served copy of the order along with the report of the Gujarat Public Service Commission, the petitioner herein has approached this Court seeking the following reliefs:
"19. The petitioner, therefore, prays that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, direction of order:
A) Quashing and setting aside the order dt.8.1.2010 passed by the Respondent imposing penalty of total pension cut permanently on the petitioner, and directing the Respondent to refund the amount deducted from the pension of the petitioner, with 12% interest.
B) Quashing and setting aside the departmental inquiry initiated vide charge sheet dt.26.6.2006.
C) During the pendency and final disposal of this petition, the Respondent may be restrained from further implementing the order dated 8.1.2010.
D) To grant such and further relief as may be deemed fit and proper."
4. Mr. Bhavyaraj Gohil, learned advocate appearing for the petitioner, submitted that the impugned order dated 08.01.2010 duly served to the petitioner along with the copy of the advice of the Gujarat Public Service Commission dated 07.12.2009 is contrary to the ratio laid down by the Hon'ble Page 3 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined Apex Court in 2011 (4)SCC 589 in case of Union of India & Ors. vs. S.K. Kapoor wherein, it is observed by the Hon'ble Apex Court that if a copy of the advice of a Public Service Commission is not supplied in advance to the delinquent, it would amount to violation of the principles of natural justice. It is submitted that the impugned order of imposing penalty of total pension cut permanently on the petitioner, is liable to be set aside on the ground that the representation preferred by the petitioner dated 07.12.2007 pursuant to the show cause notice dated 11.09.2007, is not considered by the respondent authority. It is submitted that the impugned order is required to be interfered with for breach of Rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short 'Rules, 1971') under which the disciplinary proceedings were held. It is submitted that non-compliance of Rule 9(17) of the Rules, 1971 would render the penalty illegal. The petitioner had not examined himself at the inquiry and hence, it was obligatory to follow the aforesaid sub-rule. It is submitted that for the aforesaid grounds, the present petition is required to be allowed and the impugned order passed by the respondent authority dated 08.01.2010 imposing the penalty of total pension cut permanently on the petitioner, is required to be Page 4 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined quashed and set aside.
5. Ms. Pooja Ashar, learned AGP appearing for the respondent - State, submitted that no error could be said to have been committed by the respondent authority in passing the impugned order having taken into consideration the record of the case-in-question. It is submitted that while imposing penalty, the respondents have examined all the aspects involved in the matter. It is submitted that Rule 9(17) of the Rules, 1971 would fall within the purview of the Inquiry Officer. The petitioner never raised any objection separately during the inquiry and never made any application to examine himself during the inquiry proceedings and in view thereof, the contention raised by the petitioner, is not substantive to that extent. It is submitted that the petitioner himself has given the statement under Rule 9(8) of the Rules, 1971 and therefore, the question of following Rule 9(13) of the Rules, 1971, does not arise. It is submitted that it is open for the petitioner to prefer an appeal challenging the order of penalty under Rule 18 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, however, the petitioner has failed to avail the same. To substatiate the aforesaid contention, Ms. Ashar, learned AGP, Page 5 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined has relied on the statement of the petitioner whereby, in question No.3; the question being asked to the petitioner if the petitioner was inclined to produce any other documents, it was answered by the petitioner that except for the defence statement dated 31.08.2006, there were no other documents that the petitioner wanted to place on record. 5.1 In light of the aforesaid submissions, Ms. Ashar, learned AGP, submitted that the respondent authority has passed the impugned order of imposing penalty dated 08.01.2010 following due procedure and under Rules and Regulations of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971; which requires no interference.
6. Having heard the learned advocates appearing for the respective parties, it is an undisputed fact that the impugned order dated 08.01.2010 imposing penalty of total pension cut permanently on the petitioner, is duly served to the petitioner with the advice dated 07.12.2009 of the Gujarat Public Service Commission.
7. At this stage, it is apposite to refer to the ratio laid down in case of Union of India & Ors. vs. S.K. Kapoor reported in Page 6 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined 2011 (4)SCC 589.
"1. Heard learned counsel for the parties.
2. This Appeal has been filed against the impugned judgment and order dated 25th April, 2005 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.7201 of 2005.
3. It appears that the respondent had been charge sheeted for absence without leave and a dismissal order was passed against him on 01.11.2001.
4. The respondent approached the Central Administrative Tribunal, Ahmedabad Bench, which by its order dated 20th July, 2004 quashed the dismissal order and directed the authorities to proceed from the stage of making available a copy of the Report of the Union Public Service Commission.
5. Being aggrieved by the order of the Tribunal, the appellants herein filed a writ petition in the High Court of Gujarat at Ahmedabad being Special Civil Application No.7201 of 2005, which has been dismissed by the impugned order. Hence, this appeal.
6. We have perused the impugned order and find no infirmity in the same.
7. It is a settled principle of natural justice that if CIVIL APPEAL NO. 5341 OF 2006 any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
8. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785.
9. We do not agree.
10. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable.
11. There may be a case where the report of the Union Public Page 7 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the CIVIL APPEAL NO. 5341 OF 2006 same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.
12. This is also the view taken by this Court in the case of S.N.Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
13. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
14. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs."
7.2 Rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, reads thus:
"9(17): The Inquiry Authority may, after the government servant closes his case, and shall if the government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him."
7.3 It is also apposite to refer to the ratio laid down in Special Civil Application No.7862 of 2004 vide oral judgment dated 01.07.2010, which reads thus:
"3. Learned advocate Mr.Supehia has mainly raised a question about the departmental proceedings being defective on account of non-compliance of Rule 9(17) of the Gujarat Civil Services (Discipline Page 8 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined and Appeal) Rules, 1971, which runs as under:-
"9(17): The Inquiry Authority may, after the government servant closes his case, and shall if the government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him."
4. Factually, learned Assistant Government Pleader is not able to controvert this fact from the record. In the context of the above situation, decision of the Apex Court in the case of MONI SHANKAR versus UNION OF INDIA AND ANOTHER, (2008)1 SCC (L&S)819, and the decision of a coordinate Bench of this Court rendered in Special Civil Application No.10174 of 1994, on 2.3.2010, may profitably be referred to.
4.1 The say of the respondent is that compliance of Rule 9(17) of the Rules is not mandatory. However, the Apex Court in Moni Shankar(supra) has observed, "The High Court also committed a serious error in opining that Rule 9(21) was not imperative. The purpose for which this Rule has been framed is clear and unambiguous. --- --- -----".
4.2 The coordinate Bench of this Court in Special Civil Application No. 10174/1994 also held that compliance of Rule 9(17) is mandatory and allowed the petition. This Court is also of the same view.
5. In the result, this petition is disposed of with the following directions:-
(1) The impugned order of penalty dated 15.4.2004 is hereby set aside.
(2) It would be open for the Disciplinary Authority to proceed further with the departmental proceedings from the stage of following requirement of Rule 6(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and pass fresh order in accordance with law.
(3) The Disciplinary Authority shall also decide the question of crossing of Efficiency Bar by the petitioner."
8. In light of the facts as referred above, which are undisputed and the ratio laid down in case of Union of India & Ors. vs. S.K. Kapoor, it was incumbent upon the respondent authority to provide with a copy of the advice of the Public Page 9 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024 NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined Service Commission to the petitioner herein. Non- supply of the same would amount to violation of principles of natural justice. Further, considered the ratio laid down in Special Civil application No.7862 of 2004 vide oral judgment dated 01.07.2010 wherein, Rule 9(17) of the Rules, 1971 is held to be mandatory.
9. In light of the aforesaid, this is a fit case to exercise extra- ordinary jurisdiction under Article 226 of the Constitution of India. The impugned order dated 08.01.2010 imposing penalty of total pension cut permanently on the petitioner is hereby quashed and set aside. The matter is remanded back to the respondent authorities. Once the copy of the advice/report is supplied to the petitioner, the petitioner to make a representation to the respondent authority within a period of two weeks thereafter. The respondent authority to pass a fresh order within a further period of four weeks upon receipt of the said representation in accordance with law. It is open for the petitioner herein to raise the contention with respect to non- compliance of the Rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 at the time when the representation is preferred by the petitioner. Page 10 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024
NEUTRAL CITATION C/SCA/9663/2011 ORDER DATED: 18/07/2024 undefined
10. The present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) NEHA Page 11 of 11 Downloaded on : Wed Jul 24 20:37:40 IST 2024