Gujarat High Court
I.M. Madiya vs Gujarat Maritime Board, Thro Chief ... on 19 November, 2019
Equivalent citations: AIRONLINE 2019 GUJ 536
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/17218/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17218 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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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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I.M. MADIYA
Versus
GUJARAT MARITIME BOARD, THRO CHIEF EXCECUTIVE OFFICER AND
& 2 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 3
MS DHARMISHTA RAVAL(1046) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 19/11/2019
CAV JUDGMENT
1. The present petition has been filed for nd quashing and setting-aside the order dated 2 April/May 2011 passed by the respondent No.1 i.e. Page 1 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT Chief Executive Officer & Vice Chairman, Gujarat Maritime Board, Gandhinagar (hereinafter referred to as "the Chief Executive Officer") and also the order dated 16th August 2011 passed by the Appellate Authority - Chairman, Gujarat Maritime Board, Gandhinagar.
2. Brief facts, as culled out from the petition, are thus: -
2.1 The petitioner joined the service of the respondent Gujarat Maritime Board ("the Board"
for short) as Additional Assistant Engineer (Mechanical) in the year 1994. During the year 2010, the petitioner was given additional charge of Deputy Executive Engineer (Mechanical).
2.2 On 27th February 2010, Criminal Complaint came to be registered with Morbi Taluka Police Station against the driver Ashok Mahadev Suvariya for the offences punishable under the provisions of Sections 66(1)(b), 65(a)(e), 116B, 98, 99, 81 of the Bombay Prohibition Act, 1949 (now Gujarat Prohibition Act, 1949). Apropos the said complaint, the petitioner was arrested on 25th March 2010 and was released on bail on the same day. On 1st April 2011, the Chief Executive Officer of the Board, placed the petitioner under suspension for his alleged involvement in the incident which had taken place on 26th/27th February 2010.Page 2 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT
2.3 Thereafter, on 5th May 2010, the Chief Executive Officer of the Board issued a show- cause notice to the petitioner calling upon him to show cause as to why proceedings should not be initiated against him under the provisions of The Gujarat Civil Services (Discipline & Appeal) Rule, 1971 (hereinafter referred to as the "Rules of 1971"). The petitioner responded to the said show-cause notice vide his reply dated 2nd June 2010 inter alia stating that on 26th February 2010, after attending a meeting and completing his work at Bedi Port Jamnagar, he returned to his head office at Morbi around 22.30 hours and had released the Jeep Car No.GJ-3-G-1573 (hereinafter referred to as "the official vehicle"). The said official vehicle was with the driver Shri Ashok Mahadev Suvariya, since watchmen were supposed to be taken to the Navlakhi Port on the next day, that is, 27th February 2010, early in the morning.
2.4 Thereafter, the petitioner was served with the chargesheet dated 21st July 2010 wherein, four charges were levelled against the petitioner. One of the charges was that the petitioner, has used the official vehicle for illegal activities and has done the act, tarnishing the prestige of the Board; thus, the petitioner has committed a misconduct under the provisions of clause (iii) of sub-rule (1) of Rule 3 of the Gujarat Civil Page 3 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT Services (Conduct) Rules, 1971 (hereinafter referred to as "the Conduct Rules"). It is further the case of the petitioner that upon receipt of the chargesheet, the petitioner submitted his detailed reply dated 13th September 2010, offering his explanation, against each and every charges.
2.5 According to the petitioner while issuing the chargesheet, the Chief Executive Officer, though offered the documents mentioned along with the chargesheet, did not furnish the list of the witnesses, who were examined by the respondent No.1 during the inquiry proceedings. Upon receipt of the written brief dated 25th November 2010 of the Presenting Officer, the petitioner submitted a detailed reply dated 8th December 2010 dealing with each and every aspect of the proceedings. After the completion of the inquiry, the Inquiry Officer submitted his inquiry report dated 24th December 2010 inter alia holding that the charges levelled against the petitioner are proved. The said inquiry report, was forwarded to the petitioner vide letter dated 7th January 2011 and in response whereof the petitioner submitted his reply on 27th January 2011. Thereafter, on 2nd April/May 2011, the Chief Executive Officer of the Board passed the order dated 2nd April/May 2011, inter alia of reduction to a lower stage in the time scale of pay with future effect.Page 4 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT
3. The petitioner since aggrieved by the said order dated 2nd April/May 2011, preferred an appeal before the Chairman - the Appellate Authority. After hearing the petitioner, the Chairman i.e. the Appellate Authority, vide order dated 16th August 2011 rejected the appeal and thus, the order dated 2nd April/May 2011 passed by the Chief Executive Officer of the Board stood confirmed.
4. As against this, the Board has filed affidavit-in-reply, wherein, it is the case of the Board that the petitioner has been afforded ample opportunity to put forth his case and it is only after observing the provisions of Rules of 1971, that the order dated 2nd April/May 2011 was passed. The request of the petitioner to hold the joint inquiry against the petitioner and the driver Shri Ashok Mahadev Suvariya, could not be accepted, inasmuch as there is no provision in law or requirement under the rules for conducting joint inquiry, against the two employees. It is further the case of the Board that merely because the joint inquiry was not conducted, that by itself would not render the inquiry, illegal or bad. It is also the case of the Board that in fact, the petitioner did not request for joint inquiry against himself or the driver Shri Ashok Mahadev Suvariya and hence the said ground is not available to the petitioner.Page 5 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT
4.1 According to the Board the petitioner had been given an opportunity to examine all the witnesses of the Board and that the proceedings of the Inquiry Officer bear ample proof to the fact that the Inquiry Officer, has taken into consideration the statement of witnesses and that an opportunity to cross-examine all the witnesses was provided to the petitioner. Thus, there is no infraction in the conduct of the inquiry proceedings inasmuch as, not only sufficient opportunity has been afforded to the petitioner, but the rules governing the inquiry have been observed to the fullest extent.
4.2 The allegation of the petitioner that the petitioner was subjected to unfair treatment has been denied by the Board on the ground that, except making a bare allegation, nothing has been produced on the record to substantiate the same. The Board has stated that the punishment imposed, cannot be construed to be harsh punishment or that the order under challenge has been passed in violation of the provisions of the Rules of 1971. It has been stated by the Board that the departmental proceedings and criminal proceedings are conducted for different purposes and the acquittal in criminal proceeding does not mean that departmental proceedings should be set aside as being void and illegal.Page 6 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT
5. Heard, Ms. Harshal Pandya learned advocate for the petitioner, Ms. Dharmishta Raval learned advocate for the respondent No.1 and Mr. Meet Thakkar learned Assistant Government Pleader for the respondent - State of Gujarat.
6. Ms. Harshal Pandya learned advocate for the petitioner, submitted that the order dated 2nd April/May 2011, is passed in contravention of the provisions of the Rules of 1971 and thus is illegal. It is further submitted that the petitioner, requested for joint inquiry of the petitioner as well as that of the driver Shri Ashok Mahadev Suvariya; however, the said request was not accepted and separate inquiry was conducted of the petitioner.
6.1 Learned counsel for the petitioner further submitted that the chargesheet dated 21st July 2010 was issued to the petitioner and along with the chargesheet, the statement of evidence was annexed, indicating 17 documents. Though all the documents mentioned in the statement of evidence were furnished to the petitioner; however, the list of witnesses was not supplied to the petitioner. While inviting the attention of the court to sub-clause (b) of clause (ii) of sub- rule (3) of Rule 9 of the Rules of 1971, it is submitted that the said rule makes it obligatory upon the authorities to draw inter alia a Page 7 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT statement of imputations of misconduct and shall contain a list of documents by which and list of witnesses by whom the articles of charges are proposed to be sustained. Further attention of the Court has been invited to sub-rule (4) of Rule 9 of the Rules of 1971 to submit that the same makes it obligatory upon the authorities to supply the copy of the list of witnesses.
6.2 To substantiate the aforesaid contention reference is made to page 57 of the report of the Inquiry Officer wherein, at Sr. No.5, the names of the witnesses of the Board have been mentioned. Learned counsel for the petitioner further submitted that though Shri P.M. Aghara, Chowkidar and Shri H.D. Katara, Assistant Port Officer were examined as witnesses, the petitioner was not provided with the list of those two witnesses. It is submitted that the two witnesses were examined on behalf of the Board and on the basis whereof, the Inquiry Officer has given his findings.
6.3 It is further submitted that the Board ought to have examined the driver Shri Ashok Mahadev Suvariya the main accused; however, the Board did not do it. Thus it is submitted that the petitioner was not given fair trial either by the Inquiry Officer or by the disciplinary authority and thus the proceeding also suffer from the vice Page 8 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT of unfairness. It is also contended that the present is the case of no evidence against the petitioner.
6.4 Learned counsel for the petitioner further submitted that the petitioner, has been acquitted for the offences under the provisions of Bombay Prohibition Act, 1949. It is further submitted that if perused the paragraph 5 of the order dated 15th March 2011, acquitting the petitioner; it clearly reveals that it was the driver of the official vehicle, who was caught by the police personnel in the drunken state and not the petitioner. In fact, the petitioner was not even present. That the petitioner was arrested on the basis of the statement of the driver of the official vehicle Shri Ashok Mahadev Suvariya and that the petitioner was not at all connected with the said incident.
6.5 Ms. Pandya, learned counsel for the petitioner, while inviting the attention of the court to the statement dated 6th March 2010 of the watchman - Shri P.M. Aghara, submitted that he has seen the vehicle leaving the colony at around 23.00 hours and in the said vehicle, the driver Shri Ashok Mahadev and the petitioner were present. However the watchman has categorically stated that there is no practise of maintaining register, recording the details of the visitors Page 9 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT visiting the colony. The said statement has not been substantiated by any documentary evidence inasmuch as no register was produced as regards entry and exit of visitors. In the absence of any register being maintained, such statement, cannot be given any credence.
6.6 Learned Counsel for the petitioner further submitted that if perused the report of the Inquiry Officer, it does not give any reasoning and has simply set-out the charges and the conclusions of the charges. Learned counsel for the petitioner while drawing the attention of the court to paragraph 9 of the inquiry report, submitted that the findings cannot be said to be supported by reasons and that they are merely reproduction of the charges.
6.7 Referring to the penalty order it is further submitted that even the order imposing penalty, does not specify the time limit and the petitioner, has been reduced to lower stage in the time scale of pay with future effect which, goes against the provisions of the Rule 26 of the Gujarat Civil Services (Pay) Rules, 2002. It is further submitted that while effecting the reduction to the lower stage in the time scale of pay, the respondent - Authorities, ought to have provided a specified time limit. Learned counsel for the petitioner then invited the attention to Page 10 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT the Civil Application No.1 of 2018 filed in the year 2018. It is submitted that filing of the Civil Application, was a result of the order dated 24th April 2018 passed by the Deputy Secretary, Gujarat Maritime Board wherein, it has been observed that though as per the punishment order dated 2nd April/May 2011, the authorities should not have released the increment; however, increment has been released in favour of the petitioner. It is further submitted that the increment which was allowed to the petitioner after the order under challenge, has been directed to be recovered. That the said Civil Application was heard by this court and this court, was pleased to pass an order dated 9th May 2018 wherein, the parties were directed to maintain status-quo. It is further submitted that the punishment order, is not in accordance with the Rules of 1971.
6.8 While concluding, the learned counsel for the petitioner submitted that the inquiry is vitiated on the grounds; firstly the petitioner has not been provided with the list of witnesses; and secondly while imposing punishment of reduction to a lower stage in time scale of pay, no time has been specified, which is in contravention of the provisions of the Rules of 1971. It is urged that since there is an infraction in the conduct of the inquiry, the order dated 2nd April/May 2011 Page 11 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT passed by the Chief Executive Officer is vitiated and deserves to be quashed and set aside and that the petitioner be extended all the consequential benefits, as if the order dated 2nd April/May 2011 was never passed.
7. Per contra, Ms. Dharmishta Raval, learned advocate for the Board invited the attention of the Court to the chargesheet and more particularly, page 29 with a pointed attention to page 30, wherein, in the chargesheet itself it has been indicated that the statement-Exh.2 of Shri P.M. Aghara, the watchman was recorded on 6th March 2010. According to the said statement, on 26th February 2010, the petitioner and the driver Shri Ashok Mahadev Suvariya both left the colony around 23.00 hours in the official vehicle. It is further submitted that as per the statement of Shri Ashok Mahadev Suvariya, the driver, it was at the instance of the petitioner, that the petitioner along with the official vehicle had gone to Village: Khakhrala, which was at a distance of 12 Kms. from the head office at Morbi and that too without taking the permission of the Port Officer.
7.1 Ms.Dharmishtha Raval, learned counsel for the Board submitted that the charges levelled against the petitioner are to the effect that the petitioner has used the official vehicle for the Page 12 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT illegal activities which, has tarnished the image of the Board and thus, the petitioner has committed the misconduct under clause (iii) sub- rule (1) of Rule 3 of the Conduct Rules. Second charge against the petitioner is that the petitioner has not taken any steps to ensure that the vehicle which was detained by the police personnel is released at the earliest, petitioner being an in-charge head of the Technical Department. It is further submitted that though the petitioner was arrested by the police personnel for the said incident, the petitioner did not inform the Board about the same. By not doing so, the petitioner committed a misconduct under the provisions of clause (a) of Rule 18 of the Conduct Rules.
7.2 It is submitted that the petitioner, intentionally switched-off his mobile phone, when the police personnel had called from the mobile phone of the driver of the official vehicle. It is further submitted that it was not befitting of the petitioner to have switched-off his mobile phone after the incident and not taking any action for release of the official vehicle detained by the Police Officer. The petitioner had also remained absent unauthorisedly and while short absent, has switched-off his mobile phone and thus, while evading his responsibility, committed misconduct under the provisions of Page 13 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT clause (ii) of sub-rule (1) of Rule 3 of the Conduct Rules. While referring to the order dated 2nd April/May 2011, the learned counsel for the respondent Board submitted that it is undisputed that the petitioner acted in an irresponsible manner, inasmuch as, when the response was sought from the petitioner, the petitioner by simply saying that there are no instructions which obliges the petitioner to take any permission, denied the charge.
7.3 Ms. Raval, learned counsel for the Board, further submitted that it is not that the petitioner was not aware about the statements, both dated 6th march 2010, of Shri P.M. Aghara, watchman and Shri H.D. Katara, in-charge Port Officer. It is further submitted that the language of the Rule 9 titled "Procedure for imposing major penalty", carries the expression "as far as may be" and that it is not mandatory that the list of witnesses should be invariably provided to the incumbent. Even otherwise, everything was provided along with the chargesheet to the petitioner and that the petitioner was made aware about the statement of the said two witnesses as well. That the inquiry cannot be vitiated only on the ground of non- furnishing of the list of witnesses. It is further submitted that not only the documents were provided, but the petitioner, through his Page 14 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT representative, was provided sufficient opportunity to defend his case and thus, it is not open for the petitioner to argue that the proceedings suffer from violation of principles of natural justice.
7.4 Ms. Raval, learned counsel for the Board while reiterating, submitted that there is no infraction in conducting the inquiry proceedings and thus, it cannot be said that the same is in violation of the principles of natural justice. It is submitted that the Inquiry Officer, has given sufficient reasons in the report which are self-explanatory. It is further submitted that merely because the reasons have not been given at the end of the report, does not mean that the inquiry report is silent and that there is non- application of mind on the part of the Inquiry Officer. It is further submitted that sufficient reasons have been given under the respective headings. Inquiry report is required to be seen as a whole. Picking up one portion and to term it as unreasoned report, is impermissible.
7.5 It is next contended that it is not that the petitioner was acquitted in the Criminal Case No.757 of 2010 after adjudication on the merits, but the petitioner was given benefit of doubt and was acquitted. Thus, the petitioner cannot take recourse or aid of the said order to substantiate Page 15 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT that the petitioner was not guilty of the misconduct.
7.6 It is further submitted that when it came to the notice of the head-office that the Officers, at the Bhavnagar office has wrongly extended the increments; which, otherwise was not envisaged in the order dated 2nd April/May 2011, necessary instructions were issued vide order dated 24th April 2018 to stop the payment of increments and to recover the same. Thus, there is nothing wrong th in the order dated 24 April 2018 passed by the Deputy Secretary of the Board, Gandhinagar.
7.7 It is submitted that this court may not like to interfere with the decision dated 2nd April/May 2011, unless it is shown that the decision was taken mala fide or that it was without jurisdiction or that the same was in violation of principles of natural justice. Considering the gravity of misconduct, committed by the petitioner, it cannot be said that the penalty is harsh or disproportionate to the misconduct and that it will shake the conscience of the Court.
7.8 For the proposition of the scope and ambit of power of the High Court in service matter, reliance has been placed on the judgment of the Apex Court in the case of Deputy Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. J.Hussain reported in (2013)10 SCC 106, and it is submitted Page 16 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT that this court while exercising the powers of judicial review may not like to re-appreciate the evidence and act as an Appellate Authority.
7.9 For substantiating the contention as regards furnishing the list of witnesses, reliance has been placed on the judgment in the case of S.B. Mandlik Vs. State of Gujarat reported in 2009(0) GLHEL-HC 223018 to contend that this court while interpreting the provisions of Rule 9 of the Rules of 1971 has held that it is not mandatory to provide the list of documents and witnesses simultaneously with the chargesheet. Reliance has also been placed on the judgment of the Apex Court in the case of State Bank of India & Ors. Vs. Narendra Kumar Pandey reported in(2013)2 SCC 740 to contend that the Apex Court, has categorically observed that fair procedure does not mean giving of copies of the documents or list of witnesses along with chargesheet.
7.10 Similarly for the proposition as regards quantum of penalty, reliance has been placed on the judgment of the Apex Court in the case of Damoh Panna Sagar Rural Regional Bank & Anr. Vs. Munna Lal Jain reported in (2005)10 SCC 84 and is submitted that the Apex Court in the said case has held that interference by the court in the matter of punishment is called for only when it is so disproportionate so as to shake the Page 17 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT judicial conscience. It is further submitted that the penalty imposed in the present case commensurates the misconduct and thus the penalty is not such, which would shake the conscience of the court, warranting interference.
7.11 While concluding it is submitted that the Board, has followed the procedure strictly in accordance with law and it is only after offering sufficient opportunity to the petitioner, that the order dated 2nd April/May 2011 has been passed imposing penalty of the reduction to lower stage in the time scale of pay. It is submitted that the Authorities are not obliged to provide for specifying the period, for, it will be discretion of the authorities while imposing penalty to withhold the monetary benefit, if the situation so warrants.
8. Ms. Harshal Pandya, learned counsel for the petitioner in rejoinder, drew the attention of the Court to Rule 26 of Gujarat Civil Services (Pay) Rules 2002 to submit that the explanation under the "Notes" provides that every order, passed by the competent authority imposing on a Government employee, the penalty of reduction to a lower stage in a time scale, should indicate the date from which it shall take effect and the period in terms of years and months, for which penalty shall be operative. It is further Page 18 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT submitted that the Note clearly indicates that reduction to a lower stage in a time scale, is not permissible either for an unspecified period or as a permanent measure. Thus, it is submitted that the order dated 2nd April/May 2011 imposing penalty of reduction to a lower stage in the time scale of pay, without stipulating the specific period, is illegal and bad. It is submitted that it is not open to the authorities to impose the punishment which is not provided under the rules.
8.1 Learned counsel for the petitioner, relied upon the judgment of the Apex Court in the case of Vijay Singh Vs Union of India and Others reported in (2007)9 SCC 63, to contend that in the case of violation of mandatory provision of law the proceedings are infracted and deserves to be quashed.
9. Considered, the arguments advanced by the rival parties and also the material available on the record of the captioned petition.
10. The edifice on which the petition has been inter alia filed is firstly, infraction of sub- rule (4) of Rule 9 inasmuch as, the list of witnesses has not been supplied to the petitioner; secondly, the main accused i.e. Shri Ashok Mahadev Suvariya the driver has not been examined by the Board; thirdly, though request was made, the authorities did not held joint Page 19 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT inquiry of the petitioner and that of the driver Shri Ashok Mahadev Suvariya and lastly, the penalty imposed , neither specifies the period of punishment nor clarifies regarding the increment during the period of punishment.
11. The inquiry proceedings are governed by the Rules of 1971. Rule 9 whereof, relevant for the present, is set out hereunder.
"9. Procedure for imposing major penalties.-(1) No order imposing any of the penalties of the penalties specified in items (4) to (8) of rule 6 shall be passed except after an inquiry, held as far as may be, in the manner provided in this rule and rule 10 or in the manner provided by the Public Servants (Inquiry) Act, 1860 where such inquiry is held under that Act. (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or of any culpable act or omission, against a Government servant, it may itself inquire into or appoint under this rule or under the provisions of the Public Servants (Inquiry) Act, 1850 as the case may be, an authority to inquire into the truth thereof (hereinafter referred to as the Inquiry Authority).
Explanation.- Where the disciplinary authority itself holds the inquiry, any reference in these rules to the Inquiry Authority shall be construed as a reference to the Disciplinary Authority.
(3) Whether it is proposed to hold an inquiry against a Government servant under this rule or rule 10, the Disciplinary Authority shall draw up or cause to be drawn up-
(i) the substance of the imputations or misconduct or misbehaviour or of any culpable act or omission into definite and distinct article of charges:
(ii) a statement of the imputations of the imputations of misconduct or Page 20 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT misbehaviour or of any culpable act or omission in support of each article of charges, which shall contain:-
(a) a statement of all relevant facts including any admission or confession made by the Government servant; and
(b) a list of document by which, and a list of witness by whom the articles of charges are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charges, the statement of the imputations of misconduct or misbehaviour or of any culpable act or omission and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5) x x x x
(a) On receipt of the written statement of defence the Disciplinary Authority may itself inquire into such of the article of charges as are not admitted or, if it considers it necessary, so to do appointment, under sub-rule (2) an Inquiry Authority for the purpose and whether all the articles of charges have been admitted by the Government Servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 10.
(b) If no written statement of defence is submitted by the Government servant, the Disciplinary Authority may itself inquire into such articles or may, if it considers it necessary to do so, appoint, under sub-rule (2), an Inquiry Authority for the purpose.
(c) The Disciplinary Authority may nominate any person hereinafter referred to as the Presenting Officer to present if it itself is Page 21 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT to enquire into the charges or before the Inquiry Authority. (The Government servant may present his case with the assistance of any other Government Servant approved by the Inquiry Authority, but may not engage a legal practitioner for the purpose unless the Disciplinary Authority having regard to the circumstances of the case so permits.) [Note:- The Government Servant may also take the assistance of a retired Government Servant to present the case on his behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time.]"
12. It is required to be noted that sub-rule (4) of Rule 9 amongst other things provides for the supply of list of witnesses by which each article of charge is proposed to be sustained. It also requires the government servant to submit within such time as may be specified, a written statement of his defense and to state as to whether it deserves to be heard in person.
13. The grievance of the petitioner that there is an infraction of sub-rule (4) of Rule 9 of the Rules of 1971 for, the list of witnesses has not been provided to the petitioner, is concerned, it is well settled that it is not mandatory to provide the list of witnesses along with the chargesheet. In this behalf, the judgments cited by the learned counsel for the Board are worth referring to.
14. This Court in the case of S.B. Mandlik Vs. State of Gujarat (supra), while interpreting the Page 22 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT very sub-rule(4) of Rule 9, observed and held that the intention behind the sub-rule (4) of Rule 9 is to see that before or during the departmental inquiry and before any major penalty is imposed, a government servant gets proper opportunity to examine the documents and witnesses by which each article of charge is proposed to be sustained. Relevant paragraph 16 is reproduced hereunder for ready reference: -
"16.Rule 9 of the Discipline and Appeal Rules, 1971 is required to be read and considered as a whole. Sub-rule (4) of Rule 9 is part of Rule 9 providing the procedure to be followed by the Disciplinary Authorities while imposing the major penalties. It appears that intention is to see that before or during the departmental inquiries and before any major penalty is imposed, a Government servant gets a proper opportunity to examine the documents and witnesses by which, each article of charge is proposed to be sustained. It appears that the intention is to see that before a Government employee is condemned and is punished, principles of natural justice are followed and adequate opportunities are given to the Government servant to defend the case. As such, on fair reading of Sub-rule (4) of Rule 9 as well as Rule 9 as a whole, Sub-rule (4) provides that Government servants shall be given an opportunity to submit a written statements of his defence and before he submits the written statements of his defence, he shall be delivered a copy of the articles of charge, statement of imputations of misconduct along with list of documents and witnesses by which, each article of charge is proposed to be sustained. As such, it does not provide that the Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct and list of documents and witnesses simultaneously together along with articles of charge / charge-sheet.Page 23 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT
What is provided is that the Government servant shall be provided a copy of the articles of charge, the statement of imputations of misconduct, list of documents and witnesses and the disciplinary authority shall require a Government servant to submit written statement of his defence and thereafter, further procedure as provided under Sub-rule (5) is to be followed before imposing the major penalties. Therefore, initiation of departmental inquiry is not required to be set aside on the ground that along with the charge- sheet, the statement of imputations of misconduct, a list of documents and witnesses have not been supplied. The aforesaid documents are required to be supplied before proceeding with departmental proceedings further and thereafter, the petitioner is required to be given an opportunity defend his case and to submit written statement of his defence before proceeding further departmental inquiry. Only in a case where major penalty is imposed upon the petitioner without delivering a copy of articles of charge, the statement of imputations of misconduct and list of documents and witnesses by which, each article of charge is proposed to be sustained and without giving an opportunity to petitioner to submit a written statement of his defence then and then only the petitioner can make a grievance. Under the circumstances, on the aforesaid ground, the initiation of the departmental proceedings by charge-sheet dated 27.1.2009, the departmental inquiry is not required to be quashed and set aside as contended on behalf of the petitioner."
This Court, while dismissing the petition held that initiation of departmental inquiry is not required to be set aside on the ground that along with the chargesheet the statement of imputation of misconduct and the list of witnesses has not been supplied.
15. In the judgment in the case of State Bank of Page 24 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT India & Ors. Vs. Narendra Kumar Pandey (supra), the Apex Court while dealing with almost similar rules, held that the chargesheet need not contain all the documents or the names of the witnesses proposed to be examined to prove the charges alleged, unless there is specific provision to that effect. The Apex Court has further observed that the chargesheet in other words is not expected to be a record of evidence and fair procedure does not mean giving of copies of documents or list of witnesses along with the chargesheet. Paragraph 20 of the said judgment is reproduced hereinbelow:
"20. We are of the view that the High Court has committed an error in holding that the charge- sheet should have mentioned about the details of the documents and the names of the witnesses which the Bank proposed to examine and a list to that effect should have been appended to the charge sheet. We may point out that the charge- sheet need not contain the details of the documents or the names of the witnesses proposed to be examined to prove the charges or a list to that effect unless there is a specific provision to that effect. Charge- sheet, in other words, is not expected to be a record of evidence. Fair procedure does not mean giving of copies of the documents or list of witnesses along with the charge-sheet. Of course, statement of allegations has to accompany the charge-sheet, when required by the Service Rules."
16. Thus, so far as the grievance raised by the petitioner that the list of witnesses was not supplied does not deserve acceptance, for, there Page 25 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT is a sufficient compliance in terms of sub-rule (4) of Rule 9. Pertinently, the Yadi was issued on 21st July 2010 along with the articles of charges. The statement of evidence was annexed thereto wherein, the statements, both dated 6th March 2010 of Mr.P.M. Aghara, the watchman as well as of Shri H.D. Katara, in-charge Port Officer, were supplied to the petitioner; followed by the letter dated 6th October 2010, addressed to the petitioner to remain present in the preliminary inquiry, scheduled to be held on 20th October 2010. The record further reveals that on 20th October 2010, the petitioner was supplied with the questionnaire. In the said questionnaire, the petitioner was asked, if the petitioner was desirous of having his witnesses to which, the petitioner, has unequivocally informed that he will do it at the time of inquiry proceedings, if needed. In the said questionnaire, another question was as to whether the petitioner accepts the charges, in reply the petitioner refuted the charges. On the very same day a Rojkam dated 20th October 2010 was drawn wherein, it was recorded that since the petitioner having denied the charges, the proceedings in terms of Rules 9 and 10 of the Rules of 1971 are required to be conducted. On the same day, the petitioner was informed that the hearing of the inquiry proceedings, is Page 26 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT scheduled to be held on 15th November 2010.
17. Thereafter and very importantly on 25th October 2010, the Inquiry Officer had addressed a communication to the two witnesses viz. Shri P.M. Aghara, watchman and Mr. H.D. Katara, Port Officer, copy whereof was endorsed to the petitioner. Thus, on 25th October 2010, i.e. before the inquiry the petitioner was informed about the witnesses who were to be examined by the Board.
18. Even if the names of the witnesses were not disclosed to the petitioner along with the chargesheet dated 21st July 2011, but as discussed herein above, on 25th October 2010 the names of the two witnesses were very much known to the petitioner i.e. well before the hearing before the Inquiry Officer. Further, the representative of the petitioner, has examined one of the above referred, two witnesses without any protest and rightly so. In the aforesaid background, it cannot be said that the petitioner was not offered the list of witnesses or that sub-rule (4) of Rule 9 has been violated.
19. Quite apart, one more aspect needs to be considered is that the petitioner has raised the specific ground that the petitioner was not provided with the list of witnesses; however, the petitioner, for the reasons best known to him, Page 27 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT chose not to produce on record of the writ petition various communications received by him for this purpose and has vehemently raised the contention of non-supply of the list of witnesses. It was expected of the petitioner to have produced on record the documents viz. 20th October 2010, that is, the questionnaire of preliminary hearing which has been duly signed by the petitioner followed by the Rojkam dated 20th October 2010 duly signed by the petitioner; and the communication dated 25th October 2010 duly received by the petitioner. In fact, the aforesaid documents go to the root of the matter inasmuch as, the said communications clearly suggest that the petitioner was not only provided with the list of witnesses well in advance, but was offered an ample opportunity to examine and / or cross-examine the said witnesses during the inquiry proceedings; and thus, no prejudice can be said to have been suffered by the petitioner.
20. Adverting to the issue of joint inquiry, the record reveals and as has been rightly pointed out by the Board that in the first place, the petitioner did not make any request for the joint inquiry of the petitioner and that of the driver of the official vehicle Shri Ashok Mahadev Suvariya. As is evident from the record, what has been requested by the petitioner in his subsequent reply dated 8th December 2010 is to the Page 28 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT effect that Board ought to have conducted joint inquiry but the same has not been done; however, if any favourable material discerns out from the inquiry proceeding of driver Shri Ashok Mahadev Suvariya, the same may be considered in the inquiry of the petitioner. By no stretch of imagination such averment can be construed to mean that the petitioner requested for holding of joint inquiry of the petitioner and the driver Shri Ashok Mahadev Suvariya and that by not acceding to the said request the inquiry is vitiated on the ground of violation of principles of natural justice.
21. Moreover, though contention has been raised; however, the petitioner has failed to point out as to under which rule it was incumbent on the part of the authorities to accede to the said request. In the absence of any rules in this behalf, making it obligatory on the part of the authorities to accede to such a request, such contention does not merit acceptance. Moreover, it is the sole discretion of the departmental authorities to conduct an inquiry in accordance with the prescribed rules, and which has been done in the present case.
22. Another ground raised is that the driver Shri Ashok Mahadev Suvariya of the official vehicle i.e. the main accused and against whom also the Page 29 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT departmental inquiry was initiated, was not examined during the entire proceedings. In this behalf, it is pertinent to note that it will be solely the discretion of the Board to decide their witnesses. Further, if the Board had not examined the driver Shri Ashok Mahadev Suvariya as its witness, then it was very much available to the petitioner to have examined the driver Shri Ashok Mahadev Suvariya. Pertinently, when the petitioner on 20th October 2010 was asked as to whether the petitioner desires to have his own witnesses, the petitioner categorically stated that he will do it at the time of inquiry proceedings, if needed. However, the petitioner chose not to examine the driver Shri Ashok Mahadev Survariya as his witness. Thus, it was not that the petitioner was not offered any opportunity to examine the driver Shri Ashok Mahadev Suvariya as his own witness to dislodge the misconduct against him. Having chosen not to examine the driver Shri Ashok Mahadev Suvariya, the main accused, it will not be open to the petitioner at this distance of time to raise the contention that the driver Shri Ashok Mahadev Suvariya, main accused was not examined during the entire proceeding by the Board.
23. Coming to the charges, in the present case, the Board has passed an order imposing penalty for the charges to the following effect, levelled Page 30 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT against the petitioner and were proved after full fledged inquiry.
(i)Charge No.1: - The official vehicle i.e. the Jeep Car No.GJ-3-G-1573 under the Deputy Executive Engineer, Navlakhi Port has been used for illegal activities and thereby the reputation of the Board has been tarnished, resulting into misconduct as prescribed under sub-rule (iii) of Rule 3 of Gujarat Civil Services (Conduct) Rules, 1971.
(ii) Charge No.2: - That no steps were taken by the petitioner, as in-charge head, for the release of the official vehicle i.e. the Jeep Car No.GJ-3-G-1573 for the period from 27th February 2010 to 5th March 2010 i.e. for 7 days, which was detained by the police and hence, the petitioner has shown negligence towards his duty.
(iii) Charge No.3: - Disregarding the instructions of Port Officer/Executive Engineer (Technical) and without obtaining any permission, the petitioner has remained unauthorisedly absent. Moreover, the petitioner switched off his mobile phone and thus, has committed misconduct as envisaged under sub-rule (ii) of Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971.
(iv) Charge No.4: - The petitioner did not inform the Board about the registration of the First Page 31 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT Information Report with the Morbi Taluka Police Station as well as his arrest and filing of the chargesheet and thus, has committed a misconduct under the provisions of Clause(a) of Rule 18 of the Gujarat Civil Services (Conduct) Rules, 1971.
24. So far as the charge as regards the usage of the official vehicle for illegal activities and tarnishing image of the Board is concerned, the said charge has been proved. The Inquiry Officer, while considering the deposition of the watchman Shri P.M. Aghara has clearly come to the conclusion that after returning from work around 10:30 p.m. the petitioner and the driver Shri Ashok Mahadev Suvariya left the colony precinct around 11 p.m. Pertinently, in the cross examination of Shri P.M. Aghara pointed question was raised by the representative of the petitioner, wherein it has been categorically stated by Shri P.M. Aghara, watchman that around 11.00 p.m., he had seen the petitioner and Shri Ashok Mahadev Suvariya in the official vehicle i.e. the Jeep Car No.GJ-3-G-1573 leaving the colony. However, the the representative of the petitioner failed to dislodge the said statement of Shri P.M. Aghara, watchman.
25. It is well settled proposition of law that in the disciplinary proceedings, standard of proof required is preponderance of probability and Page 32 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT proof of beyond reasonable doubt is not required. In the present case, it is the petitioner who could not dislodge the assertion of the watchman Shri P.M. Aghara. The Inquiry Officer, in his report has categorically stated that considering the deposition of Shri P.M. Aghara and Shri H.D. Katara, the charges levelled against the petitioner stands proved. The Inquiry Officer has further observed that the representative of the petitioner has shown his willingness not to cross examine another witness Shri H.D. Katara, Port Officer of the Board. On the basis of the material, the Inquiry Officer, has come to the specific finding that the Charge No.1 against the petitioner stands proved inasmuch as, the petitioner has not been able to dislodge the fact that the petitioner along with the driver, left the colony around 11 p.m. in the official vehicle i.e. the Jeep Car No.GJ-3-G-1573. The said aspect is further strengthened by the fact that, the petitioner was arrested followed by filing of chargesheet. Pertinently, the petitioner has not been able to dislodge the said aspect also except contending that the petitioner has been acquitted by the Additional Chief Judicial Magistrate vide order dated 15th March 2011. However, one cannot lose sight of the fact that the petitioner has been acquitted not on the merits but by giving benefit of doubt.
Page 33 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT26. So far as charge No.2 is concerned, it is undisputed that the official vehicle i.e. the Jeep Car No.GJ-3-G-1573 remained detained by the police officials from 27th February 2010 to 5th March 2010. The Inquiry Officer, has observed that the petitioner was aware about the incident which had taken place on 27th February 2010 and the petitioner immediately did not inform about the said incident to the Port Officer. The Inquiry Officer, has further observed that disregarding the instructions issued by the Port Officer of the Board for release of the vehicle, the petitioner without taking any permission unilaterally absented himself. Despite being the incharge of the said division, the petitioner did not take any action for release of such vehicle. Thus, the Inquiry Officer has on the basis of material available on the record concluded that the charge is proved.
27. So far as charge of remaining unauthorisedly absent from the duty and keeping his mobile on switched off mode is concerned, the Inquiry Officer, while dealing with the said charge, has dealt with the said aspect, the Inquiry Officer has come to the conclusion that the petitioner has remained absent without taking any permission.
28. Similarly, so far as non-disclosure of the Page 34 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT aspects of (i) registration of First Information Report, (ii) filing of the chargesheet and (iii) the factum of arrest, are concerned, concededly, the petitioner did not inform the Board about the aforesaid aspects and thus, has not observed the provisions of Clause (a) of Rule 18 of the Conduct Rules. The Inquiry Officer, has also come to the conclusion that as per the documentary evidence, the petitioner was arrested and thereafter was released on bail and thereafter a chargesheet was filed against the petitioner. The said factum substantiates the charge against the petitioner.
29. In the present case, it is proved that the official vehicle was used for such activities by the petitioner inasmuch, the petitioner has failed to prove that the petitioner was not involved. The enormity of the misconduct committed by the petitioner namely usage of official vehicle for illegal means and then not putting any attempts for release of the official vehicle from the custody of police coupled with the fact of shirking his responsibility by proceeding on unauthorized leave and keeping the mobile phone on switched off mode; and non- disclosure of the criminal proceedings to the authorities, speaks volume.
30. From the facts recorded hereinabove, it is Page 35 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT evident that the petitioner has failed to point that the inquiry proceedings was infracted resulting into violation of the principles of natural justice or that the authorities have considered irrelevant material and left out the relevant material or that the findings of the Inquiry Officer are perverse. Clearly, the conclusions arrived at by the Inquiry Officer are based upon the findings of fact recorded after appreciating the material on record. As discussed hereinabove, it is not possible to state that the findings of fact recorded by the Inquiry Officer are in any manner perverse to the material on record. The learned counsel for the petitioner, is not in a position to point out that the Inquiry Officer, has placed reliance upon any irrelevant material or that any relevant material has not been considered in findings of fact recorded by the Inquiry Officer. In the present case, the petitioner has failed to point out any infraction of any of the provisions of the Rules of 1971. The record reveals that the petitioner was offered sufficient opportunity and that the respondent Board, has scrupulously observed the provisions of the Rules of 1971 and thus, it cannot be said that any cause has been made out by the petitioner, warranting interference by this Court, with the inquiry proceedings.
31. The sole ground which requires interference Page 36 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT is that the penalty order is not passed in tune with sub-rule(4) of Rule 6 of the Rules of 1971. For appreciating the said contention, sub-rule (4) of Rule 6 of the Rules of 1971 as well as Rule 26 of the Gujarat Civil Services (Pay) Rules, 2002 are worth referring to:
"6. Nature of Penalties:-
Without prejudice to the provisions of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any Member of the State, Subordinate or [Inferior Service] namely.
Minor Penalties
(1) xxx
(2) xxx
(3) xxx
(4) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increment of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of pay.
(5) ....xxx"
"26. Reduction of pay as a measure of penalty:
(1) Where the pay of a Government employee is reduced as a measure of penalty to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be and whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent.
(2) Whether the Government employee is reduced Page 37 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT as a measure of penalty to a lower service, grade or post or to a lower time-scale, the authority ordering such reduction may or may not specify the period for which the reduction shall be operative; but where the period of reduction is specified, that authority shall also order whether, on restoration, the period of reduction shall operate to postpone future increments and, if so to what extent.
Notes 1: The authority ordering the reduction shall expressly state in the order that the period of reduction shall be exclusive of any span of period spent on leave before the period of reduction is completed 2: The exact interpretation of sub-rule(1) is clarified as follows: -
(a) Every order passed by a competent authority imposing on a Government employee the penalty of reduction to a lower stage in a time-scale should indicate
(i) the date from which it shall take effect and the period in terms of years and months for which the penalty shall be operative:
(ii) the stage of pay in the time scale (in terms of rupees) to which the Government employee is reduced, and,
(iii) the extent (in terms of years and months) if any, to which the period referred to at (i) above shall operate to postpone future increments.
It should be noted that such reduction to a lower stage in a time-scale is not permissible either for an unspecified period or as a permanent measure under the rules. Also when a Government employee is reduced to a particular stage of pay in Page 38 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT a time scale, his pay shall remain constant at that stage for the entire period of reduction. The period to be specified under(iii) should in no case exceed the period specified in (i).
(b) The question as to what should be the pay of a Government employee on the expiry of the period of reduction shall decided as follows
(i) If the order of imposing penalty of reduction lays down that the period of reduction shall not operate to postpone future increments, the Government employee shall be allowed to draw the pay which he would have drawn in the normal course but for his reduction.
(ii) If the order specifies that the period of reduction was to operate to postpone future increments for any specified period, the pay of the Government employee shall be fixed in accordance with (i) above but the period for which the increment were to be postponed shall not be counted as incremental period for the purpose of releasing future increments.
(c) With a view to achieving the object underlying in sub rule (1) of not allowing increments during the period of reduction it should be ensured,that everyorder passed by a competent authority imposing on a Government employee the penalty of reduction to a lower stage in a time-scale invariably specifies that stages in terms of rupees to which the Governmentemployee is reduced as in thefollowing form:-
The ______________ has decided that Shri_____________ should be reduced to pay of Rs_________ in the times scale of Rs_________ Page 39 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT (for a period of ____________ with effect from___________"
32. Pertinently, sub-rule (4) of Rule 6 provides for reduction to a lower stage in the time scale for a specified period with further direction as to whether or not the Government servant will earn increment during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of pay. The expression "for a specified period"
coupled with the expression "earn increment during the period of such reduction" further coupled with the expression "expiry of such period the reduction will or will not have the effect", reading of all the expressions in juxtaposition unequivocally suggests that the order of penalty of reduction to a lower stage in the time scale is to be for a specified period.
33. The aforesaid interpretation is further strengthened by the cumulative reading of sub- rule (1) of Rule 26 and Notes appended to the Rule 26 of the Gujarat Civil Services (Pay) Rules, 2002, which clearly suggests that every order by the Competent Authority imposing on a Government employee the penalty of reduction to a lower stage in the time scale is required to indicate:
Page 40 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT(i) the date from which it shall take effect and period (in terms of years and months)for which the penalty shall be operative;
(ii) the stage in the time scale (in terms of rupees) to which the government servant is reduced; and
(iii)the extent (in terms of years and months) if any, to which period referred to at item
(i) above should operate to postpone future increments.
34. The said provision further clarifies that such reduction to a lower stage in a time scale is not permissible either for unspecified period or as a permanent measure under the rules. Moreover, with a view to providing clear understanding the Notes appended to Rule 26 of the Gujarat Civil Services (Pay) Rules, 2002 also explains how and what contents the order should carry. In such an eventuality, it was not permissible for the authorities to have passed the operative order by merely mentioning that the petitioner has been reduced to a lower stage in a time scale with future effect.
35. Thus, the operative portion of the order dated 2nd April/May 2011 imposing penalty, could not have confined the penalty of reduction to a lower stage in a time scale with future effect. In the absence of any specifications as regards period, the operative portion of the penalty order dated 2nd April/May 2011, is against the spirit and language of the sub-rule (4) of Rule 6 of the Rules of 1971 and sub-rule(1) of Rule 26 Page 41 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019 C/SCA/17218/2011 CAV JUDGMENT of the Gujarat Civil Services (Pay) Rules, 2002.
36. While sustaining the order dated 2nd April/May 2011, only the operative portion of the order dated 2nd April/May 2011 and the appellate order dated 16th August 2011 insofar as it confirms the operative portion of the penalty order dated 2nd April/May 2011; are set-aside, with a direction to the respondent No.1 to consider the case of the petitioner for passing the appropriate punishment order in accordance with the Rules of 1971 read with the Gujarat Civil Services (Pay) Rules, 2002, within a period of one month from the date of this judgment.
37. For the foregoing reasons, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 42 of 42 Downloaded on : Thu Nov 21 05:57:38 IST 2019