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Gujarat High Court · body

2006 DIGILAW 40 (GUJ)

A R N SETALVAD v. STATE OF GUJARAT

2006-01-19

D.H.WAGHELA

body2006
( 1 ) THIS petition under Article 226 of the Constitution was pressed for the relief of finalisation of the pension case of the petitioner and to order payment of interest on delayed payment of all the retiral benefits. ( 2 ) UPON the statement being made by the learned a. G. P. that, since the departmental inquiry initiated against the petitioner was decided to be dropped, the pension case of the petitioner would be finalised within a period of one month from today and that statement, made on instructions, having been accepted on behalf of the petitioner, the first and main prayer in the petition did not survive. ( 3 ) AS for the claim of interest on delayed payment of retirement benefits, learned counsel Mr. Upadhyay submitted that the petitioner was served with chargesheets after the date of his retirement and he was unnecessarily and unduly harassed into facing departmental inquiries which remained inconclusive. And that had resulted in delay of five years in the payment of full retirement benefits. He, however, fairly conceded that the petitioner was in receipt of the amount of provisional pension and the dispute regarding the proper amount of pension would be now resolved while the pension case of the petitioner would be finalised. The amount of gratuity was also paid by now, but that was only after an interim direction of this Court. The payment of retiral dues was thus unduly delayed and the petitioner was, therefore, entitled to interest on such amount, according to the submission. ( 4 ) BY filing an affidavit-in-reply of the Accounts officer, it is averred on behalf of the respondent that, on 24. 8. 1999 the Commissioner of Health had issued a memo to the petitioner with regard to the grave irregularities observed during random checking and the petitioner was alleged to have committed them during his tenure as Dean of the Medical College, Bhavnagar. The said memo narrated in detail the irregularities running into approximately rs. 45 lakhs for which the purchase record was missing from the college and for which no contingency vouchers were placed on record explaining the same. In that context, vide communication dated 6. 11. 1999, the government informed the petitioner that his request for voluntary retirement, which was pending at that time, was not accepted due to the irregularities which, prima facie, appeared to have been committed by the petitioner. In that context, vide communication dated 6. 11. 1999, the government informed the petitioner that his request for voluntary retirement, which was pending at that time, was not accepted due to the irregularities which, prima facie, appeared to have been committed by the petitioner. Afterwards, the Government accepted the proposal of the petitioner for voluntary retirement subject to the condition that, in case it was found afterwards that financial irregularities had been occasioned by the petitioner, the same shall be recovered from the pension and other retirement emoluments payable to the petitioner and, on that basis, as a special case, the petitioner was allowed to voluntarily retire with effect from 20. 12. 1999. (1) It is further stated that, in continuation of the memo dated 24. 8. 1999, it was observed that the amount of irregularities was not running into Rs. 45 lakhs as stated in the memo, but irregularities running into Rs. 81 lakhs were committed by the petitioner. The Secretary, Health and Family Welfare Department, directed the Additional director, Medical Education to look into the matter expeditiously and, as 31 bills amounting to Rs. 81 lakhs were till date missing from the record, a police complaint with regard to the same was to be filed. The secretary, Health and Family Welfare Department also addressed a communication to the Accountant General (Audit), Rajkot seeking duplicate bills, "in order to enable proceedings departmentally against the petitioner". The department is stated to be awaiting the duplicate copies of the said bills in order to proceed further in the matter. (2) It is also stated that, while the petitioner was subsequently working as the Director of Central Medical stores Organisation, Gandhinagar from 30. 7. 1998 to 20. 12. 1999, serious irregularities in the purchase of drugs came to the notice of the Government and they issued chargesheet vide confidential memo dated 30. 7. 2000 and enquiry with regard to that was in progress. The petitioner had challenged the departmental enquiry commenced in May 2002 and July 2002 by issuance of the chargesheet. This Court, while issuing Notice on 27. 9. 2002, recorded the grievance of the petitioner about initiation of enquiries after two-and-half years of his voluntary retirement and about copies of the documents not being furnished to the petitioner. With reference to that, it is stated in the affidavit that, vide communication dated 16. 7. This Court, while issuing Notice on 27. 9. 2002, recorded the grievance of the petitioner about initiation of enquiries after two-and-half years of his voluntary retirement and about copies of the documents not being furnished to the petitioner. With reference to that, it is stated in the affidavit that, vide communication dated 16. 7. 2002, the petitioner was furnished with all the relevant documents running into some 200 pages alongwith the chargesheet. However, vide communication dated 4. 8. 2002 at Annexure-O to the petition, the petitioner had requested for certified copies of the said documents. (3) It is reiterated that there were some complaints against the petitioner for some financial irregularities committed by him while he was working as Director in central Medical Stores Organisation and he was allowed to retire voluntarily with effect from 20. 12. 1999 afternoon as a special case on condition that he will have to pay the amount, if any, recoverable from him. (4) Thus, in short, two chargesheets dated 21. 5. 2002 and 30. 7. 2002 were issued against the petitioner after his retirement. It is stated on oath that those chargesheets were issued pursuant to the complaints against the petitioner and after obtaining preliminary enquiry reports which were sent to the Vigilance Commission and on which the Vigilance Commissioner had issued direction to proceed further. However, admittedly, the time taken in the preliminary enquiry and implementation of the recommendation of the Vigilance Commission was about two years. ( 5 ) BESIDES the present petition, the petitioner had also filed two other petitions challenging the actions of the respondent in initiating disciplinary proceedings against him by the aforesaid chargesheets dated 21. 5. 2002 and 30. 7. 2002. While disposing those petitions by order dated 2. 8. 2004, this Court (Coram: R. M. Doshit,j.) made the following pertinent observations:"having regard to the allegations of financial irregularities made against the petitioner and the gravity of misconduct, if proved, the disciplinary proceedings cannot be nipped in the bud. It is, therefore, directed that the State government shall complete both the disciplinary proceedings initiated on 21st May, 2002 and 30th july, 2002 within six months from today. In the event the disciplinary proceedings are not completed within six months from today, both the said chargesheets shall stand quashed. This order is made in anticipation of full co- operation by the petitioner in completion of disciplinary proceedings. In the event the disciplinary proceedings are not completed within six months from today, both the said chargesheets shall stand quashed. This order is made in anticipation of full co- operation by the petitioner in completion of disciplinary proceedings. In the vent the petitioner fails to co-operate in the disciplinary proceedings, the State Government shall have liberty to approach this Court for extension of time. After determination of the disciplinary proceedings, in either case, the petitioners pension case shall be finalized within thirty days therefrom. Subject to the above direction, both these petitions are disposed of. Notice in each petition is discharged. Civil Application No. 895 of 2004 stands disposed of. The Registry shall send the writ forthwith. " ( 6 ) THE aforesaid time-limit for completing the disciplinary proceedings within six months from 2. 8. 2004 having not been observed, the respondent had made an application for extension of time, being MCA No. 1130 of 2005 in Special Civil Application No. 9584 of 2002, which was dismissed on 17. 6. 2005 by a short order as under: "heard the learned advocates. Rejected. " that application was an exercise in futility as the petitioner had no occasion to fail to co-operate since the enquiries were not proceeded with at all. 21. 01. 2006. ( 7 ) SINCE a grievance is made that even after both the chargesheets being set aside by virtue of the order dated 2. 8. 2004, the case was not finalised within the prescribed time-limit and since the present petition was pressed on that basis for claiming interest, it would be necessary to take a closer look at the apparent delay caused at every stage in all the proceedings initiated and pending against the petitioner. ( 8 ) BY filing the affidavits dated 28. 12. 2005 and 12. 1. 2006 of Shri Arvind K. Bhatt, Joint Secretary, health and Family Welfare Department, the chronology of events and steps taken by the Government are placed on record and they make shocking reading. As seen earlier, there were three proceedings pending against the petitioner at the time of his retirement and, out of the three, at least two had taken the form of chargesheets and initiation of departmental enquiries. In the matter of chargesheet dated 21. 5. As seen earlier, there were three proceedings pending against the petitioner at the time of his retirement and, out of the three, at least two had taken the form of chargesheets and initiation of departmental enquiries. In the matter of chargesheet dated 21. 5. 2002, while report of the preliminary enquiry conducted by a retired Joint secretary was received as early as in April 2000 and the vigilance Commission had recommended disciplinary action on 15. 10. 2000, the chargesheet was framed on 21. 5. 2002 and the enquiry did not proceed till it was formally commenced on 3. 1. 2004. Immediately thereafter, the petitioner approached this Court by filing Special Civil application No. 4614 of 2002 and, by filing a civil application therein, obtained an injunction on 13. 2. 2004. Thereafter, that petition and the civil application were disposed by the order dated 2. 8. 2004, as mentioned hereinabove. (1) About one-and-half months after the aforesaid order dated 2. 8. 2004, the enquiry officer was informed about the order of the High Court and, instead of proceeding with the enquiry, the enquiry officer is stated to have himself suggested amendment to the chargesheeet and, after three months thereof, the file is stated to have been forwarded to the General Administration Department which returned the file on 2. 2. 2005 on which date the time-limit of six months was already over. Those actions of the enquiry officer, the General Administration department and the presenting officer of scuttling the enquiry for that crucial period of six months and then proposing to proceed with the same chargesheet without any amendment clearly appear to be a conscious and calculated attempt at aborting the enquiry by virtue of the very order of the High Court which was defied and defeated. (2) As far as the other chargesheet dated 30. 7. 2002 was concerned, the attitude of the respondent was more forthright and simple;no enquiry officer was appointed and no proceeding of the enquiry was held at all. A cursory glance at the aforesaid chargesheets would show that both the chargesheets, in all, contained 6 charges alleging serious irregularities and dishonesty or lack of sincerity in the discharge of duties by the petitioner in the capacity of Director of Central Medical Stores organisation during his tenure from 31. 7. 1998 to 20. 12. 1999. A cursory glance at the aforesaid chargesheets would show that both the chargesheets, in all, contained 6 charges alleging serious irregularities and dishonesty or lack of sincerity in the discharge of duties by the petitioner in the capacity of Director of Central Medical Stores organisation during his tenure from 31. 7. 1998 to 20. 12. 1999. They also relate to purchase of medicines on a huge scale from a particular party (which was subsequently proposed to be blacklisted) and causing pecuniary loss. (3) Thus, in short, the departmental enquiry into charges levelled by the chargesheets dated 21. 5. 2002 and 30. 7. 2002 remained inconclusive despite the direction of this Court and despite pendency of the same for more than two years. When the Government sought the opinion of the vigilance Commission, it had no alternative but to state, by its letter dated 23. 11. 2005, that the situation of dropping the enquiry was occasioned by non-implementation of the direction of the High Court to complete the enquiry within six months. And, the Commission had to agree to further proceeding in accordance with the order of the High Court; which would mean end of the enquiries and finalization of pension of the petitioner within 30 days. Thus, a situation was created in favour of the petitioner by the respondents, prima facie, by defying the order of this Court. ( 9 ) BEFORE the aforesaid proceeding initiated on the basis of the alleged acts of misconduct in the capacity of the director of CMSO, the first memo dated 24. 8. 1999 was issued by the Commissioner (Health), Health Services and medical Education, pointing out serious irregularities unearthed during the checking conducted at the Medical college, Bhavnagar from 31. 5. 1999 to 1. 6. 1999 while the petitioner was discharging duties of Dean thereat. After the explanations tendered by the petitioner in August and september, 1999, an enquiry was ordered and report thereof was obtained which revealed that so many purchases were made transgressing the powers and limits and without following the due procedure. It was also reported that prohibited articles were purchased, registers were not maintained in proper form and payments were made in violation of the rules. The Commissioner (Health), by his confidential-urgent letter dated 26. 7. It was also reported that prohibited articles were purchased, registers were not maintained in proper form and payments were made in violation of the rules. The Commissioner (Health), by his confidential-urgent letter dated 26. 7. 2000, advised the Additional Chief Secretary, Health and Family Welfare, to carry out 100% audit of the medical College, Bhavnagar and repeatedly requested to have the audit conducted by the Director of Accounts. It was also conveyed by his even dated letter that permission for voluntary retirement of the petitioner was not recommended and the orders regarding comprehensive audit should be issued by giving top priority to the matter. (1) It appears that, thereafter, the Deputy Commissioner (Audit), by his letter dated 29. 5. 2002, called upon the commissioner (Health) to furnish the audit report since chargesheet was required to be served upon the petitioner within four years of the voluntary retirement on 20. 12. 1999 of the petitioner. Ultimately, the audit for the period from 1995-96 to 1997-98 was carried out between 25. 6. 2002 to 6. 7. 2002 and audit report was submitted vide letter dated 14. 8. 2002 of the Commissioner (Health ). Then, by letter dated 7. 9. 2002, the section officer of the Health and Family Welfare Department, conveyed to the Commissioner (Health) that, though the petitioner was found to be responsible for financial irregularities according to the audit report, officers of the Accounts Section and Library appeared to be responsible for the irregularities. Therefore, returning the audit report, it was requested that the Commissioner should furnish the opinion in the prescribed form after detailed scrutiny. Then by letter dated 17. 10. 2002, the deputy Secretary asked the Additional Director, Medical education and Research, to file a criminal complaint in respect of 31 bills for the sum of Rs. 81 lakhs which were found to be missing at the time of audit. Thereafter, the additional Director went on writing letter after letter to the Dean, Medical College, Bhavnagar, to lodge complaint and even threatened punitive action against the dean, but, admittedly, police complaint was never filed till the hearing of the petition was completed in this court. 81 lakhs which were found to be missing at the time of audit. Thereafter, the additional Director went on writing letter after letter to the Dean, Medical College, Bhavnagar, to lodge complaint and even threatened punitive action against the dean, but, admittedly, police complaint was never filed till the hearing of the petition was completed in this court. (2) On the other hand, even as the proceeding pending against the petitioner was undergoing the above process and granting of permission to the petitioner for voluntary retirement was consistently objected by the commissioner (Health), a decision to permit him to voluntarily retire subject to the condition of recovery, if any, was taken and he was permitted to retire. Thereafter, a note was put up before the Government in august 2002 to state that there was no point in holding a departmental enquiry against the petitioner since the alleged irregularities were pertaining to the period from 1996 to 1998, the period of four years had already elapsed and it could not be estimated as to when the enquiry could be held and report obtained. Therefore, it was not likely that any amount which may turn out to be due from the petitioner at the end of the enquiry or audit could be recovered. And, therefore, a suggestion to file a police complaint against the petitioner was made. That is how the decision to file a police complaint was taken in view of the perceived futility of holding of an enquiry and non-availability of the necessary record including 31 bills which were reported to be missing in the audit report. ( 10 ) IT was clear from the above record of facts culled out from the affidavits, the chronology of events and the submissions made by the learned Government Pleader as also from the original record made available to the court, that the departmental objections to permitting the petitioner to voluntarily retire were over-ruled and the enquiries into the charges against the petitioner were consciously and systematically frustrated even though the alleged loss to the public exchequer could have at least partly been recovered from the petitioner, if he were found to be guilty of the misconduct alleged against him. Instead, his provisional pension was sanctioned by order dated 24. 1. 2001/8. 2. 2001 at the higher rate and subsequently reduced to Rs. 8970/- by order dated 7. 7. 2001. Instead, his provisional pension was sanctioned by order dated 24. 1. 2001/8. 2. 2001 at the higher rate and subsequently reduced to Rs. 8970/- by order dated 7. 7. 2001. The amount of gratuity was also paid to him during pendency of the petition and now, as stated and recorded earlier, the remaining amount of pension with arrears is to be finalised within one month. Thus a situation is created by sheer procrastination where neither the loss allegedly caused by the petitioner could be enquired nor recovered. As for the alleged financial irregularities running into more than 80 lakhs of rupees related to the period during which the petitioner was discharging duties of Dean at Medical College, Bhavnagar, the matter is reduced to filing of a police complaint in respect of the missing bills which complaint is also not filed for the last three years despite threatening letters by a superior officer to the Dean of the Medical college. ( 11 ) THE above conclusions emerging from the record undisputably reveal a very sorry state of affairs requiring intervention and remedial measures in the interest of administration and justice. It is obvious that, if the allegations against the petitioner were motivated or without any substance, exercise of preliminary enquiries, reports, recommendations of the vigilance Commission, audit reports, framing of charges and holding of enquiries were a sheer waste of resources and distressing demoralization of the delinquent. But, if the charges levelled against the petitioner had any substance and disciplinary action was required to be taken and huge amounts were to be recovered after holding enquiries, the administration consciously failed to complete the process, even formally, despite an express judicial direction to do so. (1) The seriousness of the above administrative delays and lapses have to be seen in the context of the field in which they and the alleged misconducts were committed. According to the allegations against the petitioner, the acts of misconduct are directly related to health services to the public, public exchequer and medical education and they are dealt with in such a lackadaisical manner even in the face of judicial proceedings and mandatory directions. There was no explanation as to why the petitioner was, practically and in effect, protected and favoured by the respondents on the one hand and proposed to be prosecuted on the other. There was no explanation as to why the petitioner was, practically and in effect, protected and favoured by the respondents on the one hand and proposed to be prosecuted on the other. And even the proposed complaint directed to be filed was as yet not filed and the threats to take punitive action for not filing the complaints were also not carried out. ( 12 ) SINCE the Government had at one stage decided to file a police complaint and there was material, prima facie, indicating inaction on the part of the respondent, it can reasonably be inferred that the State agencies may not be able to discharge its function of investigation properly, impartially or expeditiously. The following observations of the Honble Supreme Court in Veneet Narain and Ors. v. Union of India [ (1996) 2 SCC 199 ] are apposite in the facts of this case:"3. The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: "be you ever so high, the law is above you". Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies. 4. In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law. "and, in the context of the power of the High Court to entrust the investigation to C. B. I. in such case, the supreme Court, in State of Bihar and Anr. v. Ranchi Zila samta Party and Anr. [ (1996) 3 SCC 682 ], observed:"7. "and, in the context of the power of the High Court to entrust the investigation to C. B. I. in such case, the supreme Court, in State of Bihar and Anr. v. Ranchi Zila samta Party and Anr. [ (1996) 3 SCC 682 ], observed:"7. The only question then is whether this is a fit case for our interference under Article 136 of the Constitution" The exercise of the power under Article 226 of the Constitution in a public interest litigation was not to give any advantage to a political party or group of people, as apprehended by the counsel for the appellants. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds, by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High court appears to be just and proper and calls for no real interference. " ( 13 ) IN the above circumstances, the learned Government pleader fairly conceded that criminal complaints were required to be immediately filed for proper investigation of the whole matter of financial irregularities at the medical College, Bhavnagar while the petitioner was in charge of Dean and the Government had no objection if the investigation were entrusted to a special branch of the state Police or the C. B. I. He also fairly conceded that, if the investigation revealed offences, such as cheating, forgery, breach of trust, misappropriation or conspiracy under the Indian Penal Code, proper chargesheet should be submitted for prosecution of the persons found to be involved in the offences. In view of the above record of facts and the likelihood of investigation by the State police being hampered or not inspiring confidence, the learned Government Pleader specifically stated that the state Government had no objection if the whole matter were investigated by the C. B. I. ( 14 ) IN the above facts and circumstances and in view of a prima facie finding of contumacious disobedience of the order dated 2. 8. 8. 2004 of this Court in Special Civil application No. 9584 of 2002 by the respondent therein and with a view to ensuring probity in public administration, the directions, as under, are required to be issued suo moto in exercise of the powers of this Court under article 226 of the Constitution. ( 15 ) ACCORDINGLY, it is directed that: (i) The Secretary, Health and Family Welfare Department shall supply to the Central Bureau of Investigation at its office in Gandhinagar the copies of the memo dated 24. 8. 1999, enquiry report dated 11. 10. 1999 and audit report forwarded with the letter dated 14. 8. 2002, alongwith the earlier audit reports dated 1. 7. 1999 and 28. 4. 2000 which were submitted by the commissioner (Health), Health Services and Medical education, regarding the alleged financial irregularities at the Medical College, Bhavnagar during the period from 1996 to 1998; and allow access to the CBI to all other material and record related to the misconducts alleged against the petitioner. The officers of the State Government and the officers of the Accountant Generals office at rajkot shall co-operate with the CBI in investigation of the aforesaid matters. (ii) The CBI shall investigate the whole matter as stated in para 13 hereinabove and take necessary steps in accordance with law in the matter of the alleged irregularities, missing bills, breach of trust and misappropriation, if any, and any other offences as may be found to have been committed, including conspiracy to facilitate siphoning of public money, destruction or concealment of evidence etc. The report of investigation shall also be submitted to this Court as expeditiously as practicable and preferably within three months. (iii) This order along with the order dated 2. 8. 2004 in sca No. 9634 of 2002 and SCA 9584 of 2002 shall be placed before the Bench taking up contempt matters for appropriate action as may be deemed proper in view of the above prima facie finding of contempt of court insofar as the direction to complete the enquiries within six months was not complied, with the result that not only the order was frustrated but it was abused to end the enquiries and exonerate the petitioner at the cost of the public exchequer. (iv) A copy of this order shall be sent to the Chief secretary and the Vigilance Commission of the government of Gujarat for taking necessary actions for improvement of the administration and prevention of wasteful delays in the matter of departmental actions so as to avoid unnecessary litigations and liabilities caused by insincere initiation of punitive actions against its officers. It may be worthwhile to consider the feasibility of fixing time-limits for every stage of disciplinary proceedings and fixing personal responsibility of the officers entrusted with or in charge of different parts of the disciplinary proceedings. (v) In view of the facts and for the reasons discussed hereinabove and major part of the retiral dues having been already paid to the petitioner, his prayer for interest on delayed payment of retiral benefits is rejected. ( 16 ) SUBJECT to the above directions and acknowledging the candid disclosures made and fair attitude adopted by the learned Government Pleader Mr. Arun D. Oza, the petition is disposed and Rule is discharged with no order as to costs. The matter shall be listed on 24. 4. 2006 before this Court for taking on record report of the CBI and for appropriate further orders, if required. The office shall immediately carry out the direction in para 15 (iii) in view of the limitation for initiating action under the contempt of Courts Act, 1971 and place the matter before the appropriate Court latest by 01. 2. 2006. .