Jayantilal S. Thakkar v. State of Gujarat — 1999 DIGILAW 155 (GUJ)

JUDGMENT : R. M. Doshit, J. The petitioner before this court is a retired employee of the State Government. He retired as an Executive Engineer on 31st August, 1995 on reaching the age of superannuation. Before his retirement from service, on 9th May, 1991 a charge sheet was issued upon the petitioner in respect of certain irregularities alleged to have been committed by the petitioner during his tenure of service as Executive Engineer at Bhuj, District-Kutch. The said inquiry was completed after the petitioner retired from service and under order dated 28th February, 1996, the petitioner has been held guilty of some of the charges levelled against him and in view of the guilt proved against him, the petitioner has been visited with the punishment of reduction in pension. Therefore, the petition. 2. The learned advocate Mr.Anjaria has appeared for the petitioner and has contended that pursuant to the charge sheet dated 9th May, 1991, the petitioner had submitted his reply on 3rd December, 1991. After perusal of the reply, the inquiry initiated against the petitioner was dropped and under the order dated 24th July, 1992, suspension of the petitioner was revoked and the petitioner was reinstated in service. The inquiry initiated against the petitioner having been thus dropped, further proceedings and the consequent order of penalty are vitiated. He has further contended that the allegations made against the petitioner were based on Rojkam prepared on 16th, 17th, and 18th May, 1989. The petitioner was permitted to inspect the said Rojkam, and certain improvement and interpolation in the said Rojkam were noticed by the petitioner. The genuineness of the said Rojkam was, therefore, challenged by the petitioner in his reply dated 3rd December, 1991. In spite of the challenge to the genuineness of the Rojkam, the said Rojkam was not proved by leading evidence and the same, therefore, should not have been relied upon. The charges levelled against the petitioner were based solely on the said Rojkam and in absence of proof of the said Rojkam, the finding of guilt recorded by the Inquiry Officer can not be sustained. He has further contended that the original Rojkam has not been produced on the records of the matter. He has next contended that the disciplinary authority has not considered the matter before it and has not accepted the finding of guilt recorded by the Inquiry Officer. He has further contended that the original Rojkam has not been produced on the records of the matter. He has next contended that the disciplinary authority has not considered the matter before it and has not accepted the finding of guilt recorded by the Inquiry Officer. He has submitted that mere forwarding of the report of the Inquiry Officer without the finding arrived at by the disciplinary authority would not satisfy the principles of natural justice and fair play. In absence of the formal acceptance of the findings recorded by the Inquiry Officer, the petitioner could not have dealt with the report effectively. The impugned order of punishment is, therefore, vitiated. He has next contended that the inquiry has not been completed within a reasonable time and the undue delay in completing the inquiry has seriously prejudiced the defence of the petitioner. Mr. Anjaria has also contended that under Rule 189-A of the Bombay Civil Services Rules, the respondents were required to obtain approval of the Gujarat Public Service Commission before imposing punishment of reduction in pension upon the petitioner. In the present case, the respondents have failed to comply with the above referred provisions contained in Rule 189-A of the Bombay Civil Services Rules. The order is, therefore, vitiated. In support of his contentions, Mr. Anjaria has relied upon the judgments of the Supreme Court in the matters of The State Of Assam & Anr v. J.N.Roy Biswas (AIR 1975, SC, 2277; M/s Barelly Electricity Supply Co.Ltd. v. The Workmen & Ors. (AIR 1972, SC, 330); The State Of Punjab v. Dewan Chandu Lal (AIR 1970, SC 2086); Ministry Of Finance & Anr v. S.B.Ramesh ( {1998} 3, SCC, 227); Punjab National Bank & Anr v. Kunj Behari Mishra ({1998} 7, SCC, 84); Director General, Indian Council Of Medical Research & Ors v. Dr. Anil Kumar Ghosh & Anr ({1998} 7, SCC, 97; State Of A.P. v. N.Radhakishan ({1998} 4, SCC, 154; Central Bank Of India v. Prakash Chand Jain ( AIR 1969, SC 983); State Bank Of Patiala & Ors v. S.K.Sharma ( AIR 1996, SC, 1559); and judgments of this court in the matters of Siddharth Mohanlal Sharma v. South Gujarat University 1982 (1) GLR, 233; and Somaji Viraji v. Registrar, High Court Of Gujarat 1979 (2) GLR 646 . In re. In re. J.N.Roy Biswas (supra), the court has held that, " Once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chargrined Government can not re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority ". In re. M/s Barelly Electricity Supply Co. Ltd (supra), the court has held that. " It can not be denied that mere filing of any of the aforementioned documents does not amount to proof thereof unless these are either admitted by the respondents or proved, they do not become evidence in the case." In answer to the contention that the Evidence Act does not strictly apply, the court held that, " The application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross examination by the party against whom they are sought to be used ". In re. Dewan Chuni Lal (supra), the superior officers who had made adverse report against the delinquent were not examined in the course of the disciplinary action. The court held that " the delinquent had not been given reasonable opportunity of conducting his defence before the Inquiry Officer ". The court further held that " refusal of right to examine the witnesses who had made general remarks against the delinquent's character, who were available for examination at the inquiry, amounted to denial of a reasonable opportunity of showing cause against the action" In re. S.B.Ramesh, (supra), the delinquent was not afforded an opportunity of cross-examining the sole witness examined by the disciplinary authority. The court, therefore, upheld the decision of the Tribunal that the finding recorded against the delinquent was based on no evidence. In re. Kunj Behari Mishra (supra), the court was considering the effect of 42nd amendment of the Constitution. The court held that, " The principles of natural justice will demand that the authority which proposes to decide against the delinquent officer must give him a hearing. In re. Kunj Behari Mishra (supra), the court was considering the effect of 42nd amendment of the Constitution. The court held that, " The principles of natural justice will demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiry officer holds the charge to be proved, then that report has to be given to the delinquent officer who can make representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer " It further held that " whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings....The principles of natural justice as we have already observed require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer ". In re. Dr. Anil Kumar Ghosh (supra), the genuineness of the documents produced during the inquiry was not in dispute. The court, therefore, held that their authors need not be examined. In re. Central Bank of India (supra), the order of punishment was challenged by the workmen before the Industrial Tribunal. The Tribunal held that the findings recorded on hearsay evidence was perverse and set aside such finding. The decision of the Tribunal was upheld by the Hon'ble Supreme Court. The court held that " The Tribunal was justified in arriving at the conclusion that the findings recorded by the Inquiry Officer were perverse. The Tribunal gave the reasons that these findings were based on hearsay evidence. " In re. N.Radhakisnan (supra), the Supreme Court has held that the unexplained delay in completing the disciplinary inquiry is prejudicial to the delinquent. In re. State Bank of Patiala & Ors. (supra), the Hon'ble Supreme Court has enumerated the principles to be followed in respect of the disciplinary inquiry and order of punishment imposed by the employer. 3. In the matter of Somaji Viraji (supra), the delinquent was charged for possessing prohibited liquor. In re. State Bank of Patiala & Ors. (supra), the Hon'ble Supreme Court has enumerated the principles to be followed in respect of the disciplinary inquiry and order of punishment imposed by the employer. 3. In the matter of Somaji Viraji (supra), the delinquent was charged for possessing prohibited liquor. The respondents, however, did not examine either the Chemical Analyser, nor was the report of the Chemical Analyser produced on the records of the matter. While considering the order of removal from service made against the delinquent therein, the court held that the finding of the possession of prohibited liquor was based on no evidence. The principle of 'no evidence' has been considered in extenso by the Division Bench of this court in the matter of Siddharth Sharma (supra). The court held that, "no evidence does not merely signify total dearth of evidence, evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. In other words, where there is complete lack of evidence and case where the evidence, if any, is incapable of rationally leading to the conclusion reached, are both treated on a par so far the applicability of the rule of "no evidence" is concerned". 4. The order dated 24th July, 1992, is an order under which the order of suspension made against the petitioner earlier had been revoked and the petitioner had been issued a posting order. The said order is simply an order of revocation of suspension and it does not reflect an intention of the respondents to drop the inquiry. Further even after the said order, the inquiry has proceeded further and the petitioner has participated in the said inquiry. The contention that considering the reply submitted by the petitioner, the inquiry initiated against him was dropped, is not acceptable. Not only the respondents had not taken a conscious decision to drop the inquiry, there is not even a cursory reference to the intention to drop the inquiry. Since I have held that the inquiry initiated against the petitioner was not dropped as contended by Mr. Anjaria, the question of re-start of inquiry does not arise and the judgment of the Supreme Court in the matter of J.N.Roy Biswas (supra) shall have no applicability. 5. Mr. Since I have held that the inquiry initiated against the petitioner was not dropped as contended by Mr. Anjaria, the question of re-start of inquiry does not arise and the judgment of the Supreme Court in the matter of J.N.Roy Biswas (supra) shall have no applicability. 5. Mr. Anjaria is not right in contending that the mandatory provisions contained in Rule 189-A of the Bombay Civil Services Rules in respect of the prior approval of the Gujarat Public Service Commission has not been complied with. The approval granted by the Gujarat Public Service Commission on 23rd February, 1996, is placed on the records of the matter. The contention, therefore, does not require further deliberation. 6. I am unable to agree with the contention that unless the disciplinary authority informs the delinquent its acceptance of the finding recorded by the inquiring authority, the delinquent can not effectively deal with the inquiry report, and can not make an effective representation before the disciplinary authority. It is true, in a case where the inquiring authority finds that the imputation of the charge is not proved and on the same evidence the disciplinary authority is of the opinion that the imputation of the charge has been proved, it would be the duty of the disciplinary authority to record the reasons for its disagreement and to forward its reasons along with the inquiry report. In such cases, the disciplinary authority is also required to call upon the delinquent to show cause why the imputation of charge should not be held to have been proved. However, in a case where the disciplinary authority agrees with the finding recorded by the inquiring authority, the disciplinary authority is not required to record his formal acceptance or agreement. Unless the disciplinary authority expressly disagrees with the finding recorded by the inquiring authority, it is presumed to have been accepted by the disciplinary authority. I am also unable to agree with the contention that in absence of such formal approval or agreement recorded by the disciplinary authority, the delinquent would not be able to effectively challenge the finding recorded by the inquiring authority, nor can it be said to be contrary to the principles of natural justice and fair play. 7. The contention that the petitioner had no opportunity to peruse the original Rojkam prepared by one Shri C.C.Chauhan also does not appear to be true. 7. The contention that the petitioner had no opportunity to peruse the original Rojkam prepared by one Shri C.C.Chauhan also does not appear to be true. It is categorically contended that the original Rojkam had never been produced on the records of the matter and the petitioner was served with only a true copy of the Rojkam. However, the endorsement made by the petitioner on the communication dated 27th November, 1991 (page 121 of the paper-book) does indicate that the petitioner had an opportunity of inspecting the Rojkam in question. The petitioner has also dealt with the said Rojkam in his reply dated 3rd December, 1991. On careful perusal of the said reply, it appears that the petitioner has not raised a demand for original Rojkam, nor has he raised a dispute that the original Rojkam was not available for his inspection. It is, therefore, required to be believed that what was inspected by the petitioner on 27th November, 1991, was the original Rojkam. However, as explained in the affidavit made by Shri A.R.Trivedi, Under Secretary to the Government, it appears that the original record along with the Rojkam in question had been lost subsequently for the reasons stated in the said affidavit. However, the petitioner had questioned the genuineness of the said Rojkam as early as on 3rd December, 1991. In his reply dated 3rd December, 1991, the petitioner has categorically stated that certain entries in the Rojkam were added subsequently, and some entries had been improved upon. In view of the challenge to the genuineness of the said Rojkam, it was the duty of the disciplinary authority to examine the author of the said Rojkam and to prove the contents thereof. The disciplinary authority has failed to establish the genuineness of the Rojkam. Be it noted that the said Rojkam is the sole basis of the imputation of the charge made against the petitioner. In absence of the proof of genuineness of the Rojkam, no finding of guilt could have been based on such Rojkam and contents thereof. As discussed in the judgment referred to herein above, a case where the evidence does not reasonably lead to the finding of guilt should be regarded as a case of 'no evidence' as understood in service law. As discussed in the judgment referred to herein above, a case where the evidence does not reasonably lead to the finding of guilt should be regarded as a case of 'no evidence' as understood in service law. In the present case also, as recorded herein above, the finding of guilt has been recorded on the basis of the Rojkam and the contents thereof, which are not proved as aforesaid. The finding of guilt recorded against the petitioner, therefore, can safely be said to be a case of 'no evidence' and such finding can not be sustained by the court of law. The impugned order of punishment made pursuant to the finding of guilt recorded on 'no evidence' should, therefore, be necessarily quashed and set aside. 8. Since I am of the opinion that this is a case of no evidence, the order of punishment imposed upon the petitioner can not be sustained. I, therefore, do not deal with the rest of the contentions raised by Mr. Anjaria. 9. For the reasons recorded herein above, the petition is allowed. The impugned order dated 28th February, 1996, (Annexure-F to the petition) is quashed and set aside. The petitioner shall be paid the amount of difference of pension within a period of three months from today. The question of regularisation of period of suspension and further promotion should be examined by the concerned authority and the order shall be made in accordance with law within a period of six months from today. Registry is directed to send the writ forthwith.