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Gujarat High Court · body

2013 DIGILAW 531 (GUJ)

ANILKUMAR B PATEL v. STATE OF GUJARAT

2013-09-02

C.L.SONI

body2013
JUDGMENT 1. These petitions were initially filed with the prayer to quash and set aside the show-cause notice dated 45.3.09 and charge sheet dated 23.2.2012. 2. In both the petitions, the Court, after hearing the learned advocates for the parties, passed order dated 13th April, 2012 issuing rule and making it returnable on 20th August, 2012 and passed below mentioned further order: “B. In the meanwhile, if the competent authority takes any decision in light of and on the basis of the report–recommendation of the Departmental Promotion Committee, then at the time of consideration, the case of the petitioners may not be kept out of consideration only on the ground that the proceedings are pending against the petitioners. C. If before expiry of period of 3 months (during which the departmental proceedings are required to be completed) the competent authority declare and grant promotions, then two posts may be kept vacant until the expiry of the period granted for completion of inquiry/until the departmental proceedings against the petitioners expires and decision with reference to the petitioners, until then may be kept in sealed cover which will be subject to result of the departmental inquiry and the decision of the disciplinary authority on the basis of the departmental proceedings against the petitioners. D. On completion of the period permitted for concluding the department inquiry it would be open to the petitioners to make appropriate application for further necessary and appropriate directions.” 2.1. Pending the petitions, respondent No.1 passed order dated 10.7.2013 imposing punishment of withholding of one increment of the petitioner for a period of one year without future effect. 2.2. Since the grounds for challenge to the show cause notice and the charge sheet remain same in challenging order of punishment, petitioners were permitted to challenge the order of punishment vide order dated 26.7.2013 passed in Civil Application No. 7669 of 2013 in Special Civil Application No. 2874 of 2012 and in Civil Application NO. 7670 of 2013 in Special Civil Application No. 2875 of 2012. 3. After the petitioners were permitted to amend the petitions and to challenge the order of punishment, the petitioners came out with Civil Application No. 8445/13 in Special Civil Application NO. 2874 of 2012 and Civil Application NO. 7670 of 2013 in Special Civil Application No. 2875 of 2012. 3. After the petitioners were permitted to amend the petitions and to challenge the order of punishment, the petitioners came out with Civil Application No. 8445/13 in Special Civil Application NO. 2874 of 2012 and Civil Application NO. 8447 of 2013 in Special Civil Application No. 2875 of 2012 praying to stay further execution, operation and implementation of the order of punishment passed by respondent NO.1 dated 10.7.2013. 4. When the above said civil applications were taken up for hearing, since the court found that the court will be required to go into the merits of the case, the court asked learned advocates for the parties as to whether the main petitions could be taken up for final hearing or not. Learned advocates for the parties then stated before the Court that instead of hearing the civil applications, main matters could be taken up for final hearing. Therefore, with the consent of the learned advocates for the parties, the Court took up the main matters for final disposal. 5. Both the petitions involves common facts and issues. Case of the petitioner in Special Civil Application No. 2874 of 2012 is that he is working on the post of District Registrar (Liquidator-2) Ahmedabad and he is due for promotion to the next higher post and selected by the Departmental Promotion Committee. It is averred that the petitioner was issued show cause notice dated 4.3.2009 to which the petitioner replied on 31.1.2010 and the petitioner was then served with the charge sheet dated 23.2.2012 for initiating departmental inquiry for alleged irregularity of the year 20022003. The main ground urged in the petition is that the inquiry is initiated at very belated stage and in colourable exercise of powers and the charge levelled against the petitioner could not be said to be misconduct of the petitioner and such charge has been levelled just to deprive the petitioner of his legitimate right to get promotion which is due. 6. Case of the petitioner in Special Civil Application No. 2875 of 2013 is that he is working on .the post of District Registrar at Nadiad and he is due for promotion to the next higher post and selected by the Departmental Promotion Committee. 6. Case of the petitioner in Special Civil Application No. 2875 of 2013 is that he is working on .the post of District Registrar at Nadiad and he is due for promotion to the next higher post and selected by the Departmental Promotion Committee. He was served with the show cause notice dated 23.8.2010 to which the petitioner replied on 24.9.2010 and he came to be served with charge sheet dated 23.2.2012 for initiation of departmental inquiry in respect of the alleged irregularity of the year 1999-2002. He has also taken up the similar grounds and stated that the charge levelled against him could not be said to be his misconduct and such charge has been levelled just to deprive him of his legitimate right to get promotion which is due. 7. The charge levelled against the petitioners is that the petitioners did not take action for filing criminal complaint though report was submitted for misappropriation of stock of the societies during the audit period as per the Circular dated 1.11.1988 issued by the Cooperation Department of the State Government and thereby committed breach of Rule 3(1) sub clause (2) of the Gujarat Civil Service (Conduct) Rules, 1971 8. The Circular dated 1.11.1988 inter alia provides that if the District Registrar comes to know about happening of the case of misappropriation in the society involving the amount of more than Rs.250.00, he shall immediately lodge complaint in respect of such misappropriation. It further provides that if the misappropriation is below Rs.250.00, and if the District Registrar is of the opinion that the opinion of the Government Pleader of the concerned District is to be obtained before filing the complaint, he shall adopt such procedure and if he finds that no such opinion is required, he shall give his opinion as required. 8.1 As stated in the charge sheet, since the allegation as regards misappropriation was beyond Rs.250.00, the petitioners were served with the charge sheet alleging breach of said circular dated 1.11.1988. 9. Based on the above charge sheet, inquiry was held against the petitioner and on conclusion of the .inquiry, the impugned orders dt. 12.7.2012 and 10.7.2012 respectively imposing punishment of stoppage of one increment for one year without future effect were passed against the petitioners. 10. I have heard the learned advocates for the parties. Mr. B.S. Patel, learned advocate appearing with learned advocate Mr. 12.7.2012 and 10.7.2012 respectively imposing punishment of stoppage of one increment for one year without future effect were passed against the petitioners. 10. I have heard the learned advocates for the parties. Mr. B.S. Patel, learned advocate appearing with learned advocate Mr. Dharmesh V. Shah for the petitioners in both the petitions submitted that the departmental inquiry initiated against the petitioners in 2012 is in respect of the events took place during the audit period of 1999 to 2002 in first case and of 2000 to 2003 in second case. Learned Advocate Mr. Patel submitted that the initiation of departmental inquiry against the petitioners at such belated stage is not permissible especially when the petitioners are selected for promotion by the Departmental Promotion Committee. Learned Advocate Mr. Patel submitted that the initiation of departmental inquiry for such stale charges is with mala fide intention with oblique motive to deprive the petitioners of their legitimate right to get promotion. Learned Advocate Mr. Patel submitted that after the petitioners were served with the show cause notice in the year 2009 and 2010 respectively, petitioners submitted their replies and thereafter, for about two years, disciplinary authority did not think it proper to serve the charge sheet to the petitioners. Learned advocate Mr. Patel submitted that the charge sheet came to be served to the petitioners only at the stage when the petitioners came to be selected by the Departmental Promotion Committee for promotion. Such is with mala fide intention to deprive the petitioners of their legitimate right to get the promotion to the next higher post. Learned advocate Mr. Patel submitted that the respondents are not justified to initiate departmental inquiry after long period of ten years, therefore, charge sheet issued to the petitioners as also the impugned order of punishment of stoppage of one increment for one year without future effect cannot stand scrutiny of law. Learned advocate Mr. Patel submitted that the petitioners were alleged to have shown negligence in not filing complaint when it came to their notice about misappropriation of the stock of cooperative societies. Learned advocate Mr. Patel submitted that by circular dated 1.11.1988, responsibility was fastened to the District Registrar of filing complaint though it was the sole responsibility of the concerned society to file such complaint. Learned advocate Mr. Learned advocate Mr. Patel submitted that by circular dated 1.11.1988, responsibility was fastened to the District Registrar of filing complaint though it was the sole responsibility of the concerned society to file such complaint. Learned advocate Mr. Patel submitted that omission of taking action of filing complaint as required by the circular dated 1.11.1988 could not be said to be the misconduct under the Gujarat Civil Service (Conduct) Rules, 1971 and, therefore, such alleged omission on the part of the petitioners could not be termed as breach of Rule 3(1) sub clause (2) of the said rules. Learned Advocate Mr. Patel submitted that in any case, circular dated 1.11.1988 has been withdrawn and cancelled from its inception (original effect) and it is also decided to withdraw the charge sheet, orders of punishment passed against the employees like petitioners and, therefore, orders of punishment in both the petitions are required to be quashed and set aside. He, thus, urged to allow the petitions. 11. As against the above arguments, learned A.G.P. Mr. Niraj Ashar appearing for the respondent State Authority in both the petitions submitted that there is no dispute about the fact that the petitioners did not take action of lodging complaint in respect of misappropriation of the stock of the cooperative societies though they were required to lodge such complaint as per circular dated 1.11.1988. Learned A.G.P. Mr. Ashar submitted that non- filing of such complaint thus amounted to breach of the circular and consequential breach of the Gujarat Civil Service (Conduct) Rules, 1971 and, therefore, respondents were justified in initiating departmental inquiry against the petitioners. Learned A.G.P. Mr. Ashar submitted that the petitioners are not justified in alleging mala fide against the respondent authorities as the petitioners are not in a position to dispute non filing of complaint though they came to know about the misappropriation of stocks of the cooperative societies. Learned AGP Mr. Ashar submitted that when the petitioners were responsible for lodging of criminal complaint as required by the circular dated 1.11.1988 and when they have failed to lodge complaint in respect of misappropriation of the stocks of the cooperative societies, respondents were within their powers to initiate departmental inquiry against the petitioners and in doing so, it could not be said that the exercise of such powers was mala fide. Learned A.G.P. Mr. Learned A.G.P. Mr. Ashar submitted that there is no substance in the contention raised by the petitioners that the initiation of departmental inquiry was at belated stage. Learned A.G.P. Mr. Ashar submitted that after the breach of Circular was noticed by the respondents within seven years only, the show cause notices were issued to the petitioners and thereafter, on consideration of the reply of the petitioners, respondents decided to issue charge sheet for initiation of departmental inquiry. Learned AGP Mr. Ashar submitted that in taking such steps against the petitioners, time consumed could not be termed as delay in initiating departmental proceedings against the petitioners. Learned Advocate Mr. Ashar submitted that the petitioners since holding responsible post of District Registrar, were required to take up the issue of misappropriation seriously as stated in the circular dated 1.11.1988 and since they failed to take necessary steps as per the said circular, of lodging complaint, they could be said to have committed breach of the discipline rules and, therefore, there is no illegality in initiating departmental proceedings against the petitioners and passing ultimate order of punishment. Learned A.G.P. Mr. Ashar submitted that though the circular came to be withdrawn and cancelled right from its inception, however, since the withdrawal of such circular is after the initiation of departmental inquiry against the petitioners, the petitioners could not be made entitled to benefit of withdrawal of the said circular. Learned A.G.P. Mr. Ashar, thus, urged to dismiss the petitions. 12. Learned Advocate Mr. Premal R. Joshi appearing for Respondent No.2 Gujarat Public Service Commission while adopting the arguments advanced by learned A.G.P. Mr. Ashar, submitted that since the petitioners have failed to take action of lodging complaint as required by Resolution dated 1.11.1988, it could be considered to be breach of Rule 3(1) sub clause (2) of the Gujarat Civil Service (Conduct) Rules, 1971. Mr. Joshi submitted that the concerned authority of the State Government has after giving opportunity of hearing to the petitioner, passed impugned order of punishment and therefore, this Court may not interfere with the impugned order passed by the State Government. Learned Advocate Mr. Joshi submitted that the subsequent withdrawal of resolution dated 1.11.1988 would not make any difference as when the petitioners were charge- sheeted for not taking action for filing criminal complaint, the circular was very much in force. He, thus, urged to dismiss the petitions. 13. Learned Advocate Mr. Joshi submitted that the subsequent withdrawal of resolution dated 1.11.1988 would not make any difference as when the petitioners were charge- sheeted for not taking action for filing criminal complaint, the circular was very much in force. He, thus, urged to dismiss the petitions. 13. Having heard the learned advocates for the parties and having perused the record of the case, what appears is that in respect of audit report for misappropriation which took place between 1999-2000 and 2000-2003, the petitioners did not file complaint as required by the circular dated 1.11.1988. For such lapse on the part of the petitioners, the petitioners came to be served with the show cause notice on 3rd March, 2009 and 27th August, 2010 respectively and thereafter, the petitioners came to be served with the charge sheet dated 23.2.2012 which were after a period of about two years. From the above happening of events, it could be seen that for alleged breach of the circular dated 1.11.1988, the respondents initiated departmental proceedings after a period of about ten years which could be said to be long delay in initiation of departmental proceedings against the petitioners. In the affidavit in reply filed on behalf of respondent No.1, no explanation is given for such unreasonable delay in initiation of departmental proceedings against the petitioners. In fact, what is stated in the affidavit in reply is that the meeting of the Departmental Promotion Committee was held on 19.3.2011 for promotion from the post of District Registrar and Deputy Registrar to the post of Joint Registrar. It is further stated that before the meeting of the Departmental Promotion Committee, the Gujarat Vigilance Commission has recommended to the Agriculture and Cooperation Department, Sachivalaya by communication dated 19.10.2010 to initiate proceedings under Rule 9 and 10 of the Gujarat Civil Service (Conduct) Rules, 1971 and after such recommendation, the respondent authority had taken time to obtain approval from the authority and in collecting necessary information. Such could never be said to be the explanation for delay in taking departmental action against the petitioners. Such could never be said to be the explanation for delay in taking departmental action against the petitioners. What clearly appears is that when the DPC met for considering the cases of the eligible candidates including the petitioners for promotion, moves for initiation of departmental proceedings were made which had an effect of keeping the cases of the petitioners pending, though selected by the Departmental Promotion Committee for giving actual promotion to them. Therefore, it appears that the delayed inquiry was only with the purpose to deprive the petitioners of their legitimate right to get promotion to the higher post. In the facts of the case, the Court finds that there is no justification for initiating inquiry after a long time of 10 years. Therefore, the charge sheet served upon the petitioners after such unreasonable delay and the ultimate punishment order passed against the petitioners cannot stand scrutiny of law. 14. In the case of P.V. Mahadevan versus Md. T.N. Housing Board reported in (2005) 6 SCC 636 as relied by learned advocate Mr. B.S. Patel for the petitioners, Hon’ble the Supreme Court has held and observed in para 8 to 11 as under: “8. Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995. 9. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act No. 17 of 1961 read thus : "118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year. 119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf." 10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay. 11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” 15. In a given fact situation of any case, the department may be justified in holding the inquiry even after long period on valid grounds supported by cogent material. However, when there is unexplained delay and if such delay is causing prejudice to the employee concerned, the ultimate action cannot be sustained. 16. As stated above, there is no explanation for .long delay in initiation of departmental inquiry against the petitioners. 17. In fact, the petitioners have filed the petitions immediately after they were served with the charge sheets contending that it is not open to the respondents to initiate departmental inquiry against them after long unreasonable period of ten years at the time when the DPC considered the case of the petitioners for promotion. 18. Pending the petitions, the Court passed order dated 13.4.2012 directing that if the competent authority takes any decision in light of and on the basis of the report–recommendation of the Departmental Promotion Committee, the case of the petitioners may not be kept out of consideration only on the ground that the proceedings are pending against the petitioners. However, pending the petitions, when the impugned orders of stoppage of one increment without future effect are passed on delayed inquiry, the court finds that the petitioners are justified in assailing the impugned orders of punishment on the ground that such orders on delayed inquiry for which there is no explanation rendered by the respondents have greatly prejudiced the petitioners. The initiation of inquiry after long delay of 10 years was at the stage when the petitioners were at the stage of being considered for promotion to the next higher post. In view of the above, only on the ground of delay, impugned orders of punishment deserve to be quashed by this Court. 19. However, there is one more ground available to the petitioners for quashing the impugned orders of punishment. In view of the above, only on the ground of delay, impugned orders of punishment deserve to be quashed by this Court. 19. However, there is one more ground available to the petitioners for quashing the impugned orders of punishment. The charge against the petitioners is as regards non compliance of the Circular dated 1.11.1988 which provided for filing of the criminal complaint in respect of misappropriation in the cooperative societies. The petitioners are not alleged to be responsible for such misappropriation. However, the petitioners were alleged to be responsible for not filing complaint on coming to know about such misappropriation as per Circular dated 1.11.1988. 20. As per the resolution dt. 26.6.2013 issued by Government pending the petition, Government has taken decision to cancel the circular dated 1.11.1988 and two earlier circulars from its inception. It is stated in the said resolution that in respect of the events of misappropriation in the companies, responsibility to file the complaint is not on the Registrar of Companies whereas in respect of the cooperative societies, such responsibility is fastened on the District Registrar of the Cooperative Societies which is not proper. It is further considered that the resolution dated 1.11.1988 was also not in consonance with the provisions of the Indian Penal Code. Based on the above considerations, the Government ultimately decided to cancel the circular dated 1.11.1988. When the petitioners brought the above said circular to the notice of this court by filing the above referred civil applications, the Court asked the learned AGP Mr. Ashar to bring relevant file containing detailed consideration which led to passing the above said resolution dated 26.6.2013 whereby the circular dated 1.11.1988 is cancelled. Thereupon, learned A.G.P. Mr. Ashar called for relevant file and placed on record the xerox copies of remarks/notes and proposal on various considerations put forth before the Government for cancelling circular dated 1.11.1988. On going through the same, the Court finds that the Secretary, Cooperation Department has clearly opined in his report/proposal that in those cases where the employees were served with the charge sheet and departmental inquiry is in progress and where even the punishments are imposed on the charges of not complying with the circular dated 1.11.1988, such charge sheets and the punishing orders are to be withdrawn and cancelled. Though such provision is not found in ultimate resolution issued for cancellation of the circular dated 1.11.1988, however, same could be read when the said resolution provided for cancellation of the circular dated 1.11.1988 from its inception. Therefore, when such was the consideration for cancellation of the circular dated 1.11.1988 and when the said circular dated 1.11.1988 is cancelled from its inception, charge sheet issued to the petitioners for breach of such circular dated 1.11.1988 and the ultimate punishment orders based on such charge cannot be sustained and are, therefore, required to be quashed and set aside. Thus, on the ground of delay as also on cancellation of circular dated 1.11.1988 since its inception, the impugned orders of punishment passed against both the petitioners are required to be quashed and set aside. 21. For the reasons stated above, both the petitions are allowed. Impugned order dated 12.7.2013 passed against the petitioner in Special Civil Application No. 2874 of 2012 and impugned order dated 10.7.2013 passed against the petitioner in Special Civil Application No. 2875 of 2012 are hereby quashed and set aside. Rule is made absolute in both the petitions. Since the main petitions are disposed of, no orders are required to be passed in the above Civil Applications. Hence the Civil Applications stand disposed of accordingly. Petition allowed.