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Gujarat High Court · body

2009 DIGILAW 372 (GUJ)

Jadhav Indas Patel v. A. K. Tandon

2009-05-12

JAYANT PATEL

body2009
Judgment Jayant Patel, J.—The short facts of the case are that the petitioner, who was working as Police Inspector then, was served with the show-cause notice dated 04.08.1991 on the charges that he had acquired certain properties, movable as well as immovable, for which, no intimation was given to the competent authority nor any prior approval was obtained. The petitioner submitted reply to the show-cause notice on 17.09.1991 and contended inter alia that the properties are acquired from his own family sources and the information was already available and the statements were recorded. It was further submitted that he was not specifically intimated about any rule or the government circular whereby, the intimation was to be given and, therefore, he prayed that the notice be withdrawn. The competent authority - Commissioner of Police, Surat ultimately, vide order dated 11.11.1991, found that there is lapse on the part of the petitioner to give intimation and it was not pertaining to moral turpitude and the same was a procedure of irregularity and, therefore, the punishment of censure was imposed upon the petitioner. The petitioner has not challenged the said order before the higher authority. However, it appears that on 21.04.1992, the higher authority i.e. Director General of Police, Gujarat State issued notice for enhancement of the punishment proposing to impose penalty of withholding of one increment. The petitioner replied to the said notice on 16.06.1992 and contended inter alia that there was no knowledge of the circular for intimation and there is no intentional lapse on the part of the petitioner and he further contended that the properties are acquired from his own sources. The Director General of Police, thereafter vide order dated 10.09.1992, considered the reply submitted by the petitioner and found that ignorance of circular is no excuse and ultimately, found for imposition of the punishment of withholding of one increment without future effect. It is under these circumstances, the petitioner has preferred the present petition before this Court. 2. Heard Mr. P.C. Kavina, learned Counsel for the petitioner and Mr. K.P. Raval, learned A.G.P. for the State. 3. It appears from the record and the reply submitted by the petitioner that it is not the case of the petitioner that he had given intimation or application or prior approval, as was required in the rule. 2. Heard Mr. P.C. Kavina, learned Counsel for the petitioner and Mr. K.P. Raval, learned A.G.P. for the State. 3. It appears from the record and the reply submitted by the petitioner that it is not the case of the petitioner that he had given intimation or application or prior approval, as was required in the rule. Therefore, non-intimation or non-obtaining of the prior approval by the petitioner for the alleged property which is described in the show-cause notice, even if one motorcycle, which was purchased in 1969, is excluded as per the contention of the learned Counsel for the petitioner, such requirement of law was not in existence, since the rules are of 1971, it is a case where, admittedly, the intimation has not been given by the government employee, as required under the Rules for acquiring property, movable or immovable, governed by the said rules. 4. Learned Counsel for the petitioner vehemently contended that the department had the information as back as in the years 1981 - 1983 and the statements were recorded of his father-in-law and mother-in-law in the proceedings under the Prevention of Corruption Act. Therefore, he submitted that in spite of the same, the department found it proper not to take any action and, belatedly, after a period of about 8 years, the action is taken of issuing show-cause notice. It has been submitted that the action is barred by delay and, therefore, the proceedings of initiation of the departmental inquiry and the ultimate order passed by the competent authority deserve to be quashed. In furtherance to his submission, he also contended that no affidavit-in-reply has been filed by the Government justifying the delay caused and, therefore, also in absence of any explanation before this Court, the delay would be fatal and the present proceedings of holding departmental inquiry cannot be sustained. 5. Whereas, Mr. Raval, learned A.G.P. for the State, contended that there is no time limit provided for initiation of the inquiry as per the rules, if the breach is committed and, therefore, it cannot be said as barred by law. 6. It is true that the delay in normal circumstances is to be considered as barring the action but such bar of delay cannot be applied as an absolute proposition. It may vary from facts to facts and the gravity of the charges to be considered while giving weightage to the delay. 6. It is true that the delay in normal circumstances is to be considered as barring the action but such bar of delay cannot be applied as an absolute proposition. It may vary from facts to facts and the gravity of the charges to be considered while giving weightage to the delay. For application of the principles of delay, is mainly based on equitable consideration. If the delay has prejudiced the rights of the parties, such delay may operate as a bar. Similarly, if the delay is attributable to a party, who is complaining for delay, he would not be entitled to the benefit of bar operating of the delay on equitable consideration. But mere delay cannot be applied as an absolute bar to the initiation of the proceedings, more particularly when the breach is proved and established. Further, the equitable consideration, though has applicability, while exercising the judicial power but cannot be made applicable to nullify the effect of a statute which is for enforcing the standard, discipline and conduct over the government employees. 7. If the facts of the present case are examined in light of the aforesaid position, it appears that the statements appears to have been recorded of the relatives of the petitioner for acquisition of certain properties. Such statements were under the Prevention of Corruption Act and secret inquiry was conducted for such purpose. It was not for the breach of the provisions of Gujarat Civil Services (Conduct) Rules, 1971 (hereinafter referred to as the “Rules”). Therefore, merely because in a different proceedings, the statements were recorded of acquisition of the property by a government servant in a different proceedings, such factum cannot be considered as it is for applying the principles of delay in the initiation of the proceedings under a different statute. It is hardly required to be stated that the proceedings under the Prevention of Corruption Act and Gujarat Civil Services (Conduct) Rules, 1971 read with Gujarat Civil Services (Discipline and Appeal) Rules, 1971, cannot be equated for invoking the principles of delay as sought to be canvassed by the learned Counsel for the petitioner. It is hardly required to be stated that the proceedings under the Prevention of Corruption Act and Gujarat Civil Services (Conduct) Rules, 1971 read with Gujarat Civil Services (Discipline and Appeal) Rules, 1971, cannot be equated for invoking the principles of delay as sought to be canvassed by the learned Counsel for the petitioner. Further, it is not the case of the petitioner that the rights are altered in any manner of him during the period of delay nor prejudice to the satisfaction of this Court is demonstrated to show that if the delay is not considered, a serious prejudice would be caused to the petitioner. An attempt made by the learned Counsel for the petitioner to rely upon the decision of the Apex Court in case of State of Andhra Pradesh vs. N. Radhakishan reported in AIR 1998 SC 1833 for substantiating the contention of delay is ill founded inasmuch as in the case before the Apex Court, it was a matter of delay in conclusion of the inquiry and not the examination of the question for initiation of the inquiry. However, the peculiar fact in the present case is that it is not even the case of the petitioner that the intimation was already given by the petitioner and in spite of the same, the show-cause notice has been issued. On the contrary, the contention is that the intimation could not be given because of no proper knowledge of the circular of the government requiring for giving of intimation to the competent authority. However, even in the very decision, it has been observed by the Apex Court that whether the delay has vitiated the proceedings or not is to be decided on the facts and circumstances of each case. Therefore, the said decision is of no help to the learned Counsel for the petitioner. 8. Two peculiar circumstances deserve to be recorded in the present case. One is that the contention of delay is based on the statement recorded before the another authority in the proceedings under the Prevention of Corruption Act and may be at the preliminary inquiry stage in the said proceedings, but not pertaining to the observance of the conduct Rules of 1971, which is subject matter of the present proceedings. One is that the contention of delay is based on the statement recorded before the another authority in the proceedings under the Prevention of Corruption Act and may be at the preliminary inquiry stage in the said proceedings, but not pertaining to the observance of the conduct Rules of 1971, which is subject matter of the present proceedings. The second and rather more vital aspect is that at the stage when the punishment imposed was of censure, the petitioner had no grievance but when the punishment imposed is of withholding of one increment, the petitioner has stated as aggrieved and has challenged the said order. It is true that the principles of doctrine of merger may apply and even if the contention of learned Counsel for the petitioner is considered that once the final order of the appellate/reviewing authority is for imposition of the punishment for withholding of one increment without future effect is adverse to the petitioner, the petitioner can raise all contentions as may be available in law for challenging the proceedings of the departmental inquiry, then also the ultimate order of imposition of departmental inquiry is a minor penalty of withholding of one increment without future effect and is not for imposition of any major penalty. 9. If the merits of the impugned order are examined in light of the aforesaid two peculiar circumstances, it does appear that the charges are proved inasmuch as it is not even the defence of the petitioner that any intimation was given. The ignorance of law or circular or the requirement of rule can hardly be pleaded as valid ground to come out from the penalty. Still however, the authorities have found that it was not intentional act but was a procedural lapse. There is no moral turpitude. Therefore, if the disciplinary authority has modified the punishment from censure to another minor punishment of withholding of one increment without future effect, such exercise of the power cannot be said as perverse by the disciplinary authority which may be required to be interfered with in a petition under Articles 226 and 227 of the Constitution. 10. Under these circumstances, the petition is meritless and hence, dismissed. No order as to costs.