Gujarat High Court
V P Jinjuwadia vs State Of Gujarat & on 17 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3181/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3181 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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V P JINJUWADIA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRADEEP PATEL, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/06/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Page 1 of 18 HC-NIC Page 1 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT Constitution of India, the petitioner, a retired Government servant, has prayed for the following reliefs:
"(a) Be pleased to admit this petition;
(b) Be pleased to issue appropriate writ, order or direction in the nature of mandamus quashing and. setting aside the impugned order dated 12-2-2002 ordering to deduct Rs.200 pm. from the pension of the petitioner for a period of 5 years, at Annexure E to the petition, by declaring the same as arbitrary, violative of principles of natural justice, illegal, unreasonable, discriminatory and violative of Art.14 of the Constitution;
(c) Pending admission, hearing and final disposal of this petition, your lordships may be pleased to pass appropriate orders, staying implementation, operation and execution of the order dated 12-2-2002 at Annexure E to the petition and direct the respondents not to deduct a sum of Rs.200/- p.m. from the amount of pension paid to the petitioner.
(d) Be pleased to pass appropriate orders, imposing heavy cost on the respondents;
(e) Be pleased to pass any other and further order as may be deemed fit and proper in the interest of justice."
The petitioner had joined the services of the State Government almost 39 years before the date of filing of this writ-application. He retired from service in the year 1996. In the year 1986, the authorities concerned took a decision to initiate a departmental inquiry on certain alleged acts of misconduct said to have been committed by him in the year 1980-81 while he was serving as a Deputy Executive Engineer, Chotila Panchayat Sub-Division. In all, the charge-sheet with Page 2 of 18 HC-NIC Page 2 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT six charges was served upon the petitioner on 29th October 1986.
By and large, the charges relate to the inferior quality of work undertaken of a dam. On 7th February 1987, the Inquiry Officer was appointed. On 3rd July 1991, the statement of defence was filed by the petitioner. On 5th June 1992, the Inquiry Officer filed his report, stating that the charge nos.1, 2, 3, 5 and 6 were not held to be established, whereas, the charge no.4 was held to be partially established.
It appears from the show-cause notice dated 15th June 1998 issued upon the petitioner that the State Government accepted the findings recorded by the Inquiry Officer so far as the charge nos.2, 4 and 6 were concerned. However, the Government disagreed with the findings recorded by the Inquiry Officer so far as the charge nos.1, 3 and 5 were concerned. The State Government called upon the petitioner to show-cause as to why the charge nos.1, 3 and 5 should not be held to be established. Thus, it appears that although the petitioner attained superannuation in the year 1996, yet by a deeming fiction he continued to be in service for the purpose of the departmental inquiry.
The disciplinary authority, i.e. the State Government, by order dated 12th February 2002, imposed a penalty of cut of Rs.200=00 per month from the pension for a period of five years.
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Being dissatisfied, the petitioner has has come up with this writ-application.
Mr.Patel, the learned counsel appearing for the petitioner, vehemently submitted that the State Government committed a serious error in passing the impugned order of deduction of Rs.200=00 per month from the pension for a period of five years by way of penalty.
He submitted that the inquiry itself could be said to have been vitiated on the ground that for the acts of misconduct alleged to have been committed in the year 1980-81, the departmental charge-sheet came to be issued on 29th October 1986. According to him, there was a gross delay in initiating the departmental action against his client. In support of this submission, he placed reliance on the decision of this Court in the case of M.N.Mevada v. State of Gujarat, (1976)2 SLR 666, and also the decision reported in the case of Chaturbhuj A.Sahu v. State of Gujarat and another, (2006)3 GLR 2007.
His second submission is that the joint inquiry conducted by the Inquiry Officer caused a serious prejudice to the petitioner as the defence of the petitioner was altogether different and contrary to the other co-delinquents. In support of this submission, he placed reliance on two decisions; (i) K.K.Shukla and others v. District Judge, Kutch at Bhuj, (1984)1 GLR 117 and (ii) Tejaji Ravaji Vihol v. State of Gujarat and another, (1980)2 GLR 179.
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His third submission is that the affidavit-in-reply filed on behalf of the State Government would indicate that before passing the order of penalty, an independent agency was consulted and only after the approval of the independent agency, the impugned order came to be passed. According to me, the independent agency referred to in the reply of the State Government means the Gujarat Public Service Commission. There could not have been any other independent agency. His contention is that if the GPSC was consulted so far as the imposition of penalty is concerned, and if the State Government acted upon the advice of the GPSC, then in such circumstances the advice of the GPSC ought to have been provided to the petitioner and an opportunity should have been given to him to meet with the report or the advice of the GPSC. He submits that since no opportunity was given to him and the advice of the GPSC was also not provided, the same has caused prejudice. In support of this submission, he has relied on a very recent pronouncement of this Court in the case of R.R.Kacha v. State of Gujarat and others, (2016)2 GLR 1428 as well as M.R.Shaikh v. State of Gujarat, (1999)1 GLH (UJ) 8. He also submitted that the impugned order could be termed as a non-speaking order.
His last submission is that if the State Government as a disciplinary authority thought fit to disagree with some of the findings recorded by the Inquiry Officer, then in such circumstances it was obligatory on the part of the State Government to have assigned reasons for such disagreement and an opportunity should have been given to the petitioner to meet with such reasons of disagreement. In the absence of the Page 5 of 18 HC-NIC Page 5 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT same, rule 10(2) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, could be said to have been infringed.
In support of this submission, he has relied on the decision of the Supreme Court in the case of Yoginath D.Bagde v. State of Maharashtra and another, AIR 1999 SC 3734.
In such circumstances referred to above, Mr.Patel prays that there being merit in this writ-application, the same may be allowed and the impugned order be quashed.
This writ-application has been vehemently opposed by the learned AGP appearing for the State. He submitted that no error, not to speak of any error of law, could be said to have been committed in passing the impugned order.
The learned AGP pointed out that in the show-cause notice dated 15th June 1998, there is a reference of the reasons for disagreement with the findings recorded by the Inquiry Officer so far as certain charges are concerned. According to the learned AGP, the fact that there is a reference of the same in the show-cause notice would indicate that alongwith the show-cause notice, a copy containing separate reasons for disagreement was attached and provided to the petitioner. The grievance as voiced would not survive.
The learned AGP submitted that although the inquiry was joint, i.e. along with the other co-delinquents, yet that by itself Page 6 of 18 HC-NIC Page 6 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT is not sufficient to show that the inquiry stood vitiated so far as the petitioner is concerned. He submitted that there was no delay as such in issuing the departmental charge-sheet. According to the learned AGP, delay by itself is not sufficient to vitiate the action if the charges are otherwise serious and grave. He submitted that the impugned order cannot be termed as a non-speaking order. He has placed reliance on the affidavit-in-reply which has been filed on behalf of the State Government duly affirmed by the then Under Secretary. He has placed reliance on the following averments :
"9. With reference to para 4 of the petition, I say and submit that the petitioner was issued charge sheet on 21/10/86. This is a case of joint inquiry involving 19 delinquents including the petitioner. The petitioner submitted his reply on 28/11/86. The Inquiry Officer was appointed on 7/2/87 who presented his report on 5/6/92. The report was submitted for approval of the Government on 10/3/93. The papers were submitted to the Government for approval on 29/9/93. For providing information to Panchayati Raj Committee, the papers were called back on 26/10/93 and again sent on 30/10/93. The papers were returned to the Department on 1/2/94 with instructions to obtain opinion of Chief Engineer (Q.C.) of the Department. The papers were sent to C.E. (Q.C.) for opinion on 16/2/94. The papers were returned from C.E. (Q.C.) on 24/6/96. Again, with the opinion of the C.E. (Q.C.) the papers were moved to the Government for acceptance of the report on 2/7/96. The papers were returned to the Department with some instructions on 24/9/96. For compliance, the papers were handed over to C.E. (Q.C.) on 28/11/96. The C.E. (Q.C.) returned the proposal to the Department on 2/12/96 with opinion, which was again submitted, but the Secretary of the Department on 31/3/97 instructed to put up exhaustive note to the proposal. After preparing the note, the papers were submitted on 8/5/97 to the Government through Secretary on 17/7/97. The proposal of the Department was accorded by the highest authority in Government on 29/11/97. Thereafter on 15/6/98, the petitioner was issued second show cause notice along with the report of Inquiry and reasons for not agreeing with the conclusions of Inquiry Officer regarding charge No.1,3 and 5. The petitioner was provided time limit of 15 days but the petitioner had not presented his final reply. The whole case, along with the replies of some other delinquents was submitted to the Government for decision of punishment on 21/8/99. The papers were Page 7 of 18 HC-NIC Page 7 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT returned to the Department with some instructions on 16/9/99. In lieu of the comments of the Government, the Department considered upon this and submitted for the decision of punishment on 13/3/2000. The proposal was accorded by the highest authority in Government on 18/6/2000. I say and submit that before passing orders of punishment to the petitioner and some other officers, the proposal was submitted on 18/10/2000 to Independent Agency for advice as per rules. The proposal of the Department was accorded by Independent Agency with advice and the Department was intimated on 23/4/2001. The papers were again submitted to the Government on 16/5/2001 for acceptance of advice of Independent Agency, which was accepted by the Government on 28/11/2001. Thereafter the orders or punishment have been issued on 12/2/2002.
10. With reference to para 5 of the petition, I say and submit that this was a case of joint enquiry involving 19 persons including the petitioner. The Department had to move the papers to the Government and Independent Agency for approval, at specific stages. All the rules and instructions in this behalf have to be complied with. It is submitted that the petitioner was supplied a copy of the Inquiry report and reasons of not agreeing with the conclusions of the Inquiry Report thereof on 15/6/98. I say and submit that the letter dated 22/6/98, annexed as Annexure-D to the petition, has not been addressed to this Department and also not received in the Department.
11. With reference to para 6 of the petition, I say and submit that the Departmental proceedings against any person who has not retired can be initiated at any time during the service of a person for the irregularities. In the case of petitioner, it. is submitted that the proceedings were likely to continue even after his superannuation as per Rule 189 of B.C.S.R.
12. With reference to para 7 of the petition, I say and submit that the order of punishment is passed after following procedures and rules of inquiry. Approvals at appropriate levels have also been obtained. It is submitted that the Government have not agreed with the conclusions of the report of inquiry wherein only charge No.4 was proved partially. Upon considering the report and after obtaining the opinion of C.E. (Q.C.) and under the powers under Rule 10(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 the Conclusions of the Inquiry Officer were not agreed to and the Disciplinary Authority, after abstracting the reasons thereof, Page 8 of 18 HC-NIC Page 8 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT has issued show cause notice to the petitioner along with the reasons for not ageing and with inquiry report on 15/6/98, annexed as Annexure-C to the petition.
13. With reference to para 8 of the petition, I say and submit that the decision of punishment to the petitioner had been taken considering the all charges which had been proved. It is submitted that the charges No.1,3 and 5 stood proved fully while charge No.4 partially. Considering the gravity of all the charges proved or partially proved, the Department has taken a decision of punishment and the same, after obtaining the approval of Independent Agency as well as highest in the Government, came to be issued on 12/2/2002."
According to the learned AGP, there being no merit in this writ-application, the same may be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the State Government committed any error in passing the impugned order.
Let me deal with the contention as regards the breach of rule 10(2) of the Rules, 1971. Rule 10 reads as under :
"10. Action on the Inquiry Report :
(1) The Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further inquiry and report and the Inquiry Authority shall there upon proceed to hold the further inquiry according to the provisions of rule 9, as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on Page 9 of 18 HC-NIC Page 9 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT such charge if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in items *[(1)], (2) to (3) of rule 6 should be imposed on the Government servant, it shall not withstanding anything contained in rule 11 make an order imposing such penalty :
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant.
**(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed :
Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government Servant."
* Item (1) deleted vide GN/GAD/No.GS/12/CDR/1095/539/Inq. Cell, dated 16-05-1996 ** Substituted vide GN/GAD/No.GS/86/17/CDR-1084/565/Inq. Cell, dated 16-04-1986.
It is not in dispute that according to the Inquiry Officer's report, the charge nos.1, 2, 3, 5 and 6 stood not established, whereas the charge no.4 stood partially established. The State Government, as the disciplinary authority, disagreed with the findings recorded by the Inquiry Officer as regards the charge nos.1, 3 and 5 are concerned, whereas it agreed with the findings of the Inquiry Officer so far as the charge nos.2, 4 and 6 are concerned. Thus, there was a disagreement. The question at this stage is, whether the State Government Page 10 of 18 HC-NIC Page 10 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT assigned any reasons for such disagreement and whether those reasons were supplied to the petitioner with a view to giving him an opportunity to meet with the same.
It appears from the show-cause notice dated 15th June 1998 (which is at p.27, Annexure-'C') that in the same there is a reference of the reasons assigned by the State Government for such disagreement and it would further indicate that such reasons were separately attached with the show-cause notice and sent to the petitioner. The document containing the reasons assigned by the State Government for disagreement with the findings recorded by the Inquiry Officer is not on record. Neither the petitioner nor the State Government has been able to produce. It appears that this contention has not been even raised in this writ-application. Probably, that is the reason why the same has not been dealt with in the affidavit- in-reply. When there is a clearcut reference of the same in the show-cause notice, I have no reason to disbelieve the State Government. Thus, this contention of the petitioner should fail.
The second contention as regards the joint inquiry being conducted causing serious prejudice to the petitioner has also not appealed to me. In my view, the conduct of the joint inquiry by itself would not vitiate the departmental inquiry. The petitioner has not been able to show any serious prejudice caused to him going to the root of the matter. This contention also fails and is hereby rejected.
What has appealed to me is the contention that the impugned order is a non-speaking order. I take note of the fact Page 11 of 18 HC-NIC Page 11 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT that in the impugned order there is a reference of the six charges. Then there is a reference of the defence statement filed by the petitioner and then there is a reference of the show-cause notice dated 15th June 1998. Thereafter, the final order. There is no discussion worth the name as such in the impugned order.
What has also appealed to me is that for the acts of misconduct alleged to have been committed sometime in 1980-81, the departmental charge-sheet came to be served upon the petitioner in the year 1986. The proceedings came to an end after a period of 16 years. In 1996, the petitioner retired from service. Even from the date of superannuation, it took six years to complete the inquiry. There is nothing on record to show that the petitioner himself was responsible for this delay in the conclusion of the proceedings.
The above takes me to deal with the last submission so far as providing of the opinion expressed by the GPSC as consulted by the State Government before passing the order of penalty is concerned.
It has been fairly conceded before me by the learned AGP that the GPSC was consulted in this case by the State Government, and after obtaining its advice, the impugned order was passed. He fairly conceded that the copy of the advice of the GPSC was not supplied to the petitioner and no opportunity of hearing was given to the petitioner before the Government acted on such advice.
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In view of such statement made by the learned AGP, the issue is squarely covered by a decision of this Court in the case of R.R.Kacha (supra). I may quote the following observations made by the learned Single Judge as contained from paragraphs 7 to 18 :
"7. It is an accepted position that after the Inquiry Report was submitted, the State Government had proposed that the penalty of reduction of pay by three stages for one year without future effect, be imposed upon the petitioner. The proposal for this penalty was sent by the State Government to the GPSC on 13.07.2007, seeking its advise. The GPSC, vide communication dated 16.04.2008, did not agree with the proposed punishment and recommended the penalty of dismissal from service. It is not disputed that the State Government, thereafter, straight away proceeded to pass the impugned order dismissing the petitioner from service, on 01.11.2008. The State Government did not forward a copy of the recommendation of the GPSC to the petitioner before passing the order of dismissal. Neither did it grant the petitioner any opportunity of hearing before the said order was passed. This state of affairs is evident from the averments made in paragraph-16 of the affidavit-in-reply filed by the State Government, wherein it is stated that a copy of the letter/advise of the GPSC dated 16.04.2008 was supplied to the petitioner along with the copy of the penalty order dated 01.11.2008.
8. It is at this stage that the flaw has crept into the procedure followed by the State Government, which has resulted in the violation of the principles of natural justice and caused severe prejudice to the petitioner.
9. The settled position of law in this regard is reflected in the two judgments of the Supreme Court and one of this Court, relied upon by learned counsel for the petitioner, which may now be referred to.
10. In S.N.Narula Vs. Union of India and others (Supra), the Supreme Court has held as below :
3. It is to be noticed that the advisory opinion of the Union Public Service Commission was not communicated to the appellant before he was heard by the disciplinary authority. The same was communicated to the appellant Page 13 of 18 HC-NIC Page 13 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT along with final order passed in the matter by the disciplinary authority.
4. The appellant filed OA No.1154 of 2002 before the Central Administrative Tribunal, New Delhi and the Tribunal held that there was violation of the principles of natural justice and the following direction was issued :
"We are of the considered opinion that this order is a non-speaking one and as such we are of the view that the same cannot be sustained and is liable to be quashed. Accordingly, we quash the impugned order and remand the case back to the disciplinary authority to pass a detailed reasoned and speaking order within a period of 3 months from the date of receipt of a copy of this order in accordance with instructions and law on the subject."
5. This order was challenged by the Union of India by way of writ petition before the High Court of Delhi and by the impugned judgment the High Court interfered with that order. The writ petition was partly allowed and it was directed that the matter be again considered by the Tribunal. Against that order the appellant has come up in appeal by way of special leave petition.
6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in para 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.
11. In Union of India and others Vs. S.K.Kapoor (Supra), Page 14 of 18 HC-NIC Page 14 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT the Supreme Court has reiterated this position of law in the following manner :
"5. It is a settled principle of natural justice that if 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.
6. 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 v. T.V.Patel. We do not agree.
7. 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 case is clearly distinguishable.
8. There may be a case where the report of the Union Public 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 employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N.Narula v. Union of India.
(emphasis supplied)
12. In B.J.Jadav Vs. State of Gujarat (Supra), this Court had occasion to deal with a similar issue and arrived at the following conclusion :
"21. As mentioned above, the Government had initially proposed the punishment of reverting the petitioner to the lower post for a period of two years which punishment was enhanced upon acceptance of the advice of the GPSC. The Page 15 of 18 HC-NIC Page 15 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT prejudice to the petitioner by non-supply of the copy of the GPSC advice is writ large on the face of the record. The impugned order of punishment, therefore, shall have to be quashed and set aside."
(emphasis supplied)
13. A similar situation prevails in the present case where the proposed penalty has been enhanced after consultation with the GPSC and a copy of the recommendation of the GPSC in this regard has not been supplied to the petitioner.
14. From the principles of law enunciated by the Supreme Court and this Court in the above-quoted judgments, it is clear that if the State Government intended to rely upon the advise of the GPSC, it was incumbent upon it to supply a copy of the said advise to the petitioner and grant him a full and adequate opportunity of hearing before passing the order of penalty. By not doing so, the State Government has caused immense prejudice to the petitioner apart from committing a gross violation of the principles of natural justice. This aspect becomes even more grave as it is the very livelihood of the petitioner that is affected.
15. Learned Assistant Government Pleader has submitted that the petitioner was granted an opportunity of hearing throughout the course of the inquiry, as stated in the affidavit- in-reply.
16. The respondents seem to have missed the vital point being canvassed by the petitioner. It may be kept in mind that the stage prior to implementing the advise of the GPSC regarding the enhanced penalty is not relevant in this matter. Moreover, it is not the case of the petitioner that he was not granted an opportunity of hearing during the course of the inquiry. The only submission advanced on behalf of the petitioner is regarding the failure of the State Government in supplying a copy of the advise of the GPSC to the petitioner and granting him an opportunity of hearing before imposing the penalty of dismissal from service as per the said recommendation of the GPSC. The petitioner has been deprived of an opportunity of representing his case with regard to the enhanced penalty. The affidavit-in-reply does not deal with this contention at all. Merely because the petitioner was heard in the Review Petition filed by him against the order of dismissal, would not cure the defect that has taken place at a stage prior thereto.
17. Taking into consideration the admitted facts of the case and the settled position of law, this Court has no hesitation in arriving at the conclusion that the impugned order passed by Page 16 of 18 HC-NIC Page 16 of 18 Created On Wed Jun 22 01:42:37 IST 2016 C/SCA/3181/2002 JUDGMENT respondent No.1 dated 01.11.2008, as well as the impugned order dated 14.09.2009, passed in the Review Petition, are unsustainable in law and deserve to be quashed and set aside.
18. Accordingly, both the above-mentioned orders are hereby quashed and set aside. The matter is remanded to the Competent Authority with a direction to grant a full and adequate opportunity of hearing to the petitioner regarding the recommendation of the GPSC and, thereafter, pass an appropriate order, in accordance with law. The needful shall be done within a period of four months from the date of the receipt of a copy of this order."
I take notice of the fact that in the decision of this Court referred to above, although the impugned order was quashed, yet the matter was remanded to the competent authority with a direction to grant a full and adequate opportunity of hearing regarding the recommendations of the GPSC and, thereafter, to pass an appropriate order in accordance with law.
I could have adopted the same procedure in the present case also, but as discussed above, this petition deserves to be allowed not only on this ground alone, but also on the ground of inordinate or unexplained delay in initiating the inquiry as well as on the ground that the impugned order could be termed as a non-speaking order.
The petitioner has undergone the ordeal of this proceeding past 30 years. Any fresh proceeding will be nothing but mockery of justice. In such circumstances referred to above, this petition succeeds and is hereby allowed. The impugned order of cut in the pension by way of penalty is hereby ordered to be quashed and set-aside.
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I take notice of the fact that the impugned order of penalty stood stayed from its operation right from day one. I take notice of the fact that on 23rd July 2002 Rule was issued and interim relief in terms of para 15(C) was granted.
In such circumstances, no consequential orders are required to be passed.
Rule made absolute.
(J.B.PARDIWALA, J.) MOIN Page 18 of 18 HC-NIC Page 18 of 18 Created On Wed Jun 22 01:42:37 IST 2016