Gujarat High Court
Vijaykumar Govindlal Modi vs State Of Gujarat on 19 April, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/16041/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16041 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
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VIJAYKUMAR GOVINDLAL MODI
Versus
STATE OF GUJARAT
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Appearance:
MR. HARDIK J JANI(6497) for the PETITIONER(s) No. 1
MR VR JANI, AGP(1) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 19/04/2018
ORAL JUDGMENT
1. The petitioner, by way of present petition under Articles 14, 21, 226 Page 1 of 13 C/SCA/16041/2017 JUDGMENT and 227 of the Constitution of India, has prayed to issue appropriate writ, order or direction by quashing and setting aside the impugned order of punishment dated 12.06.2012 passed by the respondent - authority. It is further prayed that the respondent - authority may be directed to grant the consequential benefits in favour of the petitioner forthwith.
2. Heard, the learned advocate for the petitioner and the learned Assistant Government Pleader for the respondent - State.
3. The learned advocate for the petitioner submitted that the petitioner, after clearing the examination conducted by Gujarat Public Service Commission (GPSC), on 20.05.1999, was given appointment on the post of District Education Officer (DEO), Class-I on probation of two years by the Education Department and the petitioner assumed such post on 21.05.1999 and worked as DEO, Mahesana from 21.05.1999 to 08.12.2000. Thereafter, on 08.12.2000, the petitioner was transferred from Mahesana to Surendranagar on the post of District Primary Education Officer. The petitioner joined such office on 14.12.2000 and worked there from 14.12.2000 to 17.02.2002. During this period, the petitioner had made some transfers of primary Page 2 of 13 C/SCA/16041/2017 JUDGMENT teachers, either upon instructions from the superior authority or on account of administrative contingencies. Thereafter, the petitioner was transferred from Surendranagar to Ahmedabad as Lecturer, Production in Gujarat Institute of Education Technology on 08.02.2002. Thereafter, in the year 2003, the District Education Committee had cancelled the transfer orders of primary teachers which were made by the petitioner when he was working as DEO, Surendrangar. That, on 28.12.2006, the petitioner received Memo of Charge-sheet wherein, it was alleged that the transfers made by the petitioner during the period when he was DEO, Surendranagar were made arbitrarily by keeping aside the administrative requirements. It was alleged in the said charge-sheet that the petitioner had misused the powers by transferring some primary teachers when he was DEO, Surendranagar.
3.1 The petitioner filed detailed statement of defence on 14.02.2007. The inquiry was conducted and at the end of inquiry, the disciplinary authority, vide impugned order dated 12.06.2012 imposed the penalty and he was placed in the lowest grade in the eligible pay-scale from the date of his appointment till April 2010, without any increment with future effect. It is the case of the petitioner that the petitioner Page 3 of 13 C/SCA/16041/2017 JUDGMENT filed Review Application before the higher authority on 30.06.2012 but the same was rejected by the disciplinary authority on 12.06.2017. Being aggrieved by the said decision, the present petition is filed by the petitioner.
3.2 The learned advocate for the petitioner submitted that the impugned order dated 12.06.2012 is a non-speaking order and no reasons have been assigned by the disciplinary authority while imposing such penalty and that too, a major penalty by ordering the petitioner to be placed in the lowest grade from the date of his appointment till April 2010 with stoppage of increments with future effect and thereby, the disciplinary authority has failed to pass the order in consonance with the instructions contained in the Government Circular dated 06.01.1998. The petitioner submitted the Review Application on 30.06.2012 as aforesaid and requested the authorities concerned to review its decision but the respondent - authorities have failed to appreciate the facts and circumstances stated in the Review Application in its true and proper perspective. It is submitted that the petitioner tried to explain the respondent - authorities that on account of earthquake, many school buildings were damaged and the circumstances were such that transfers were required to be made in Page 4 of 13 C/SCA/16041/2017 JUDGMENT the administrative interest of the department. The explanation submitted by the petitioner was not accepted by the concerned authority and the Review Application came to be rejected. 3.3 The learned advocate for the petitioner submitted that the initiation of the departmental inquiry in the year 2006 itself is a belated action on the part of the respondent - authorities and the said decision to initiate departmental inquiry is against the spirit of the Government Circular dated 01.06.1971. It is submitted that after initiation of the inquiry, the inquiry is required to be completed within a reasonable period in light of the number of Government decisions but, in the instant case, the proceedings concluded when the final order inflicting the punishment came to be passed in the year 2012. It is further submitted that the Review Application was made immediately thereafter but the said application was also kept pending for a period of about five years and the final decision was given in June 2017. Thus, there is a gross delay in initiation as well as in conclusion of the inquiry and further delay in taking decision upon the Review Application. It is further submitted that in the affidavit filed by the respondent - State, the aspect of delay is not at all explained. The learned advocate for the petitioner, while referring the Government Page 5 of 13 C/SCA/16041/2017 JUDGMENT Circular dated 09.09.2009 issued by the General Administration Department (GAD) also submitted that, in a case where the increments are ordered to be stopped by the disciplinary authority, the same cannot be stopped with retrospective effect and the increment can be stopped with future effect only. It is submitted that in the instant case, the disciplinary authority, while imposing the punishment vide order dated 12.06.2012, has passed the order that the petitioner be placed in lowest pay-scale with effect from his initial date of appointment with stoppage of increments with future effect. It is submitted that the decision of the respondent - authority regarding imposition of punishment is contrary to the Government Circular dated 09.09.2009.
3.4 By referring the Government Resolution (GR) dated 31.03.2015, the learned advocate for the petitioner submitted that in view of the said GR, before imposition of the final penalty, the disciplinary authority is required to have consultation with the GPSC. It is submitted that admittedly, in the instant case, no such prior consultation was ever made and the petitioner was not intimated in this regard. 3.5 Thus, making above submissions, the learned advocate for the Page 6 of 13 C/SCA/16041/2017 JUDGMENT petitioner urged to allow the present petition and to quash and set aside the impugned order passed by the respondent - authority. In support of his case, the learned advocate for the petitioner has relied upon a decision rendered in the case of State of A. P. Vs. N. Radhakishan, reported in (1998) 4 SCC 154 and the decision rendered in the case of Girishkumar Rameshchandra Soni Vs. State of Gujarat and Others, reported in 2018 (1) GLR 673.
4. As against this, the learned Assistant Government Pleader for the respondent - State, while referring the affidavit-in-reply filed by the respondent - State, tried to justify the impugned order and the action taken by the concerned authority. It is submitted that the petitioner was given reasonable opportunity before passing the impugned orders. He further submitted that the impugned order came to be passed in the year 2012 and thereafter, the present petition is moved in the year 2017 and thereby, there is gross delay in preferring the present writ petition and the petitioner has not explained the said delay. It is further submitted that the contention raised by the learned advocate for the petitioner based on GR dated 31.03.2015 pertaining to prior consultation is required to be made with GPSC before imposition of the penalty is not applicable to the case of the petitioner Page 7 of 13 C/SCA/16041/2017 JUDGMENT as the disciplinary authority has passed the order regarding imposition punishment way back in 2012. While supporting the impugned order, the learned Assistant Government Pleader submitted that the impugned order passed by the respondent - authority is a speaking order and therefore, as such there is no contravention to circulars issued by the Government from time to time. It is also submitted that the inquiry was concluded within the reasonable time and therefore, it cannot be said that inordinate delay has been caused in concluding the inquiry. Making above submissions, he urged to dismiss the present petition being bereft of any merits.
4.1 In support of his case, the learned Assistant Government Pleader has referred to and relied upon following decisions:
i) The State of Kerala Vs. A. G. Gopakumar, reported in (2013) 11 SCC 606;
ii) Regional Manager Vs. N. Satyanarayana, reported in (2008) 1 SCC 210;
iii) Shivdas Vs. Union of India, reported in (2007) 9 SCC 274;
iv) State Bank of Indore Vs. Govind Rao, reported in (1997) 2 SCC 617;
v) State of Jammu and Kashmir Vs. R. K. Zalpuri, reported in (2015) 15 SCC 602;
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vi) Naresh Kumar Vs. Department of Atomic Energy, reported in
(2010) 7 SCC 525.
5. Regard being had to the submissions advanced by the learned advocates for there respective parties and considering the facts and circumstances of the present case and from the material placed on record, it is clear that the petitioner while serving as DEO, Surendranagar, had transferred few primary teachers between 2000 to 2002. It appears that the petitioner has given satisfactory explanation qua the allegations made against him in respect of transfer of such teacher, however, at a belated stage, in the year 2006, inquiry was ordered to be initiated against the petitioner. The inquiry, which was initiated in the year 2006, came to be concluded in the year 2012 to be precise on 12.06.2012 and thereafter, the Review Application preferred by the present petitioner was kept pending for a long period of about five years.
5.1 The transfer is a condition of service and being the head of the district in the capacity of the DEO, the petitioner passed the orders of transfers of the primary teachers considering the administrative contingency and that too, immediately after the period of natural calamity in the form of massive earthquake in the year 2001. It is Page 9 of 13 C/SCA/16041/2017 JUDGMENT also an admitted position that the said transfer orders were cancelled subsequently in the year 2003 itself and that the teachers were placed to the respective places. As such, there was no reason or any grave cause to initiate departmental inquiry for this issue, however, the respondent - authority thought it fit to initiate the departmental inquiry after 03 years thereafter, for which, no reasonable justification is forthcoming on record. It further appears that the inquiry was prolonged for a period of six years which is ex facie against the Government's own decision which has been referred to and relied upon by the learned advocate for the petitioner. Besides, the order passed by the respondent - authority appears to be non-speaking order and therefore also, the said order deserves to be set aside in light of the Government Circular dated 01.06.1971, which has been time and again reiterated by the GAD to the Secretaries and Heads of the Departments of the Governments. Not only that, there are catena of judicial pronouncements on this issue. The punishment inflicted by the disciplinary authority also appears to be against the principles of law and natural justice as the punishment effect is given from retrospective effect.
5.2 On going through the decision cited by the learned advocate for the Page 10 of 13 C/SCA/16041/2017 JUDGMENT petitioner, the same appears to be applicable to the facts of the present case. It is observed in para 19 of the said decision as under:
"It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently Page 11 of 13 C/SCA/16041/2017 JUDGMENT and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration."
5.3 The Court has also perused the decisions relied upon by the learned Assistant Government Pleader and in the opinion of the Court, the same would be of no help to the learned Assistant Government Pleader in the facts and circumstances of the case on hand. As per the ratio laid down by the Division Bench of this Court in the case of N. Radhakishan (supra), the departmental inquiry is required to be concluded within a reasonable period, even initiation of departmental inquiry at a belated stage is also deprecated by the Division Bench of this Court. Similar is the fact of the present case. The departmental inquiry was initiated in the year 2006 for the incident of 2000 to 2002. Thus, having regard to the facts and circumstances discussed herein above as well as the proposition of law as set out in the aforesaid decision relied by the learned advocate for the petitioner, this Court is of the view that the impugned order passed by the Page 12 of 13 C/SCA/16041/2017 JUDGMENT respondent - authority is required to be set aside.
6. In view of the aforesaid discussion, present petition is allowed. The impugned order dated 12.06.2012 passed by the respondent - authority is hereby set aside. The respondent - authority is directed to release the increments of the petitioner with arrears of pay within a period of four weeks from the date of receipt of copy of this judgment and order. Rule is made absolute accordingly. No order as to costs.
[ P. P. Bhatt, J. ] hiren Page 13 of 13