Kanjibhai Godadbhai Chaudhary v. Gujarat Civil Services Tribunal
2013-10-24
C.L.SONI
body2013
DigiLaw.ai
ORDER : C.L. Soni, J. Challenge made in both these petitions is against the order dated 18.5.2011 passed by the Gujarat Civil Services Tribunal in Appeal No.323 of 2008. 2. Appeal No.323 of 2008 was filed by the petitioner of Special Civil Application No.18734 of 2011 ('the employee' for convenience) against the order dated 25.9.2008 of his dismissal from service. 3. The case put up by the employee in his appeal was that he was serving as Junior Pharmacist in the Community Health Center, Lanva from 1988 to 1992. He was served with first show cause notice dated 4.9.1992 for financial irregularity in purchase and distribution of the medicines for the hospital and for tampering with the accounts. He submitted his reply on 9.11.1992, which was not accepted and he was then served with charge-sheet dated 15.9.1993. 4. The employee was simultaneously prosecuted for offences under Sections 409, 420, 467, 468 and 114 of the Indian Penal Code. He was arrested in connection with the said offences and placed under suspension on 2.5.1994. He was acquitted for the offences under Sections 420, 467 and 468 of the Indian Penal Code however convicted for the offences under Sections 409 and 114 of the Indian Penal Code and was sentenced to imprisonment for six months with fine of Rs. 5,000/- by learned Magistrate by judgment and order dated 31.12.2003. Based on the conviction, the employee was dismissed from service by order dated 18.3.2004. The employee then filed appeal against the order of conviction and sentence. He succeeded in the appeal. The learned Additional Sessions Judge, 3rd Fast Track Court, Patan acquitted him of the above-said offences by judgment and order dated 6.11.2004. The said judgment of acquittal came to be confirmed by this Court by order dated 16.7.2010 in Special Criminal Application No.2282 of 2004 filed by the State Government. It is further case of the employee before the Tribunal that after acquittal, the Disciplinary Authority kept two more hearings in the departmental proceedings wherein statement of one Shri D.M. Patel was recorded and thereafter, the impugned order of dismissal of the employee was passed. 5. The Tribunal found that recording of statement of one Shri D.M. Patel who was never cited as witness was illegal.
5. The Tribunal found that recording of statement of one Shri D.M. Patel who was never cited as witness was illegal. The Tribunal also recorded that the acquittal of the employee was not an honourable acquittal, however, it further recorded that the finding in the departmental inquiry was based on no evidence. The Tribunal thus allowed the appeal in part, quashed and set aside the order of dismissal of the employee dated 25.9.2008 and ordered reinstatement of the employee in service with full back wages. However, it remanded the matter to the Disciplinary Authority to the stage of holding of fresh departmental inquiry. 6. The employee is aggrieved by the order of remand to the Disciplinary Authority for holding fresh departmental inquiry. The State is also aggrieved by the order of the Tribunal insofar as it has quashed the order of dismissal of the employee from service and of his reinstatement with full back wages. 7. I have heard learned advocates for the parties. 8. Learned advocate Mr. G.M. Joshi for the employee submitted that though it was open to the department to simultaneously proceed with the departmental inquiry pending the criminal proceeding, however when the competent Court of criminal jurisdiction on appreciation of the evidence found that the prosecution had failed to establish the offences against the employee, it was not open to the department to proceed further with the departmental inquiry on the same set of charges. Mr. Joshi submitted that the impugned order of dismissal from service was passed subject to the outcome of the Special Criminal Application filed by the State before this Court and once the State failed in Special Criminal Application against the order of acquittal, the Tribunal after quashing the order of dismissal of the employee ought not to have remanded the matter to the Disciplinary Authority for holding fresh inquiry. 8.1. Learned advocate Mr. Joshi submitted that the Tribunal is not right when it observed that the acquittal of the employee was not an honourable acquittal. Mr. Joshi submitted that the order of acquittal is based on a well appreciation of evidence by the competent Court and clear finding is recorded that the prosecution has failed to prove offence against the employee and such acquittal, therefore, cannot be said to be by giving benefit of doubt and the same is therefore, an honourable acquittal. 8.2. Learned advocate Mr.
8.2. Learned advocate Mr. Joshi submitted that when the Tribunal has recorded the clear finding that there is no legal evidence in the departmental inquiry against the employee, it ought not to have remanded the matter for holding fresh inquiry. Mr. Joshi submitted that such order of the Tribunal is not in consonance with the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ('the Rules' for short). Mr. Joshi submitted that in the departmental inquiry, the department has not proved any of the documents by examining any witness of the department and therefore, the documents on record of the inquiry cannot be termed as evidence at all. Mr. Joshi submitted that in the inquiry, procedure unknown to law was followed by examining the employee by the presenting officer as if the employee was the witness of the department. Mr. Joshi submitted that such procedure was not permissible when the department itself had not examined any of the witnesses from its list of witnesses and when the employee had not examined himself. Mr. Joshi submitted that it was also not open to the Disciplinary Authority to take statement of one Shri D.M. Patel after the inquiry was over and the inquiry report was submitted and to rely upon the statement of the said person for passing the impugned order of dismissal against the employee. Mr. Joshi submitted that when the Disciplinary Authority has not decided to hold any further inquiry, the Tribunal was not justified in ordering fresh inquiry against the employee, especially when it found that the case against the employee was the case of no evidence in the departmental inquiry. Mr. Joshi thus urged to allow the petition filed by the employee and to dismiss the petition filed by the State. 9. As against the above arguments, learned Assistant Government Pleader Mr. Neeraj Ashar appearing for the State submitted that even if the employee was acquitted in the criminal case, it was always open to the department to hold departmental inquiry against the employee on the same set of charges. Mr. Ashar submitted that as rightly observed by the Tribunal, acquittal of the employee was not honourable acquittal and therefore, even after such acquittal, the department was justified to further proceed from the stage of inquiry report to take appropriate action under the Rules. 9.1. Learned AGP Mr.
Mr. Ashar submitted that as rightly observed by the Tribunal, acquittal of the employee was not honourable acquittal and therefore, even after such acquittal, the department was justified to further proceed from the stage of inquiry report to take appropriate action under the Rules. 9.1. Learned AGP Mr. Ashar submitted that in the departmental inquiry concluded against the employee, the charges against the employee were held proved and therefore, recording of additional statement of Shri D.M. Patel would not vitiate the findings recorded in the departmental inquiry. 9.2. Learned AGP Mr. Ashar submitted that when on the basis of the documents placed on record of the departmental inquiry, it was found that the employee was responsible for alleged irregularities, he was just asked by the presenting officer during the inquiry to confirm about the documents presented before the Inquiry Officer and pursuant to which when the employee had confirmed that the documents are from the record of the department, such documents were rightly treated as evidence against the employee and therefore, even if the employee was asked some questions by the presenting officer, the same would not take away the legal effect of the documentary evidence presented in the inquiry. 9.3. Learned AGP Mr. Ashar submitted that once the Tribunal has recorded that the acquittal of the employee was not honourable acquittal and since there was ample documentary evidence available on record to prove the charge against the employee, the Tribunal ought not to have quashed the order of dismissal of the employee. Mr. Ashar submitted that it is always open for the department to simultaneously proceed with the departmental inquiry even if the criminal proceedings were pending on the same charges. Mr. Ashar submitted that in the inquiry held by the department simultaneously with the criminal proceedings, the Inquiry Officer on the basis of the documentary evidence available on record submitted his report and based on such inquiry report, the employee was rightly dismissed from service. Mr. Ashar submitted that simply because such dismissal order is stated to be subject to the outcome of the Special Criminal Application preferred by the State Government before this Court against the order of acquittal, the same would not vitiate the order of dismissal against the employee when the dismissal order is based on the proceedings of the departmental inquiry against the employee. Mr.
Mr. Ashar thus urged to allow the petition filed by the State and to dismiss the petition filed by the employee. 10. Having heard learned advocates for the parties and having perused the record of the case, it appears that the employee faced the criminal prosecution on the charge of committing illegality in the matter of purchase of medicines for the hospital. The alleged offence for financial irregularity in purchase and distribution of the medicines for the hospitals were for the period between 1988 to 1992. After the employee was served with the show cause notice on 4.9.1992, he was also prosecuted for the criminal offence as stated above in the year 1994. With the criminal proceedings, the departmental inquiry was simultaneously proceeded against the employee. The departmental inquiry was concluded and the inquiry report was prepared in the month of December 1996. However, the department did not proceed further on the basis of the inquiry report and decided to wait till the conclusion of the criminal proceedings against the employee. Thereafter, in the criminal proceedings, the learned Magistrate passed the judgment of conviction and sentence dated 31.12.2003 against the employee for the offences under Sections 409 and 114 of the Indian Penal Code and acquittal the employee for other offences. Such order of conviction and sentence was set aside in appeal preferred by the employee by the Appellate Court vide its judgment and order dated 6.11.2004. Against this order of acquittal, the State preferred Special Criminal Application No.2282 of 2004. 11. When the said Special Criminal Application was pending, the employee preferred Special Civil Application No.12682 of 2006 before this Court seeking direction to reinstate him as he was acquitted in the criminal appeal filed by him. In the said petition, this Court observed that until final order was passed by the Disciplinary Authority after the report of the Inquiry Officer and until the Special Criminal Application pending before this Court were finally decided, status of the employee as existed prior to the order of his conviction was required to be restored and maintained. This Court also observed that after the reinstatement of the employee, it was open to the competent authority to exercise its discretion to place the employee under suspension.
This Court also observed that after the reinstatement of the employee, it was open to the competent authority to exercise its discretion to place the employee under suspension. This Court thus partly allowed the said petition by order dated 26.11.2007 with direction to the department to reconsider the matter afresh in light of the above-said observations. The department then reinstated the employee by order dated 18.2.2008, however placed him under suspension and served him with copy of the inquiry report. 12. There is no dispute about the fact that though the department submitted list of at least eight persons, including Shri D.M. Patel, Pharmacist, to examine them as witnesses, however none of those persons was examined by the department during the inquiry. The department just placed some documents in inquiry proceeding. The department did not prove any of the documents through any witness of the department. It is not recorded in the inquiry proceedings that the employee had no objection if such documents were read in evidence. There is no dispute about the fact that the employee had not examined himself. However, the presenting officer was allowed to put some questions to the employee. Based on such illegal inquiry proceedings, the Inquiry officer submitted the report holding that the charges against the employee were proved. 13. Rule 9 of the Rules provides for procedure for imposing major penalties. Sub-Rule (13), (14), (15),(17),(18) and (20) thereof read as under:- "(13) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The Inquiry Authority may also put such questions to the witnesses as it thinks fit.
The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The Inquiry Authority may also put such questions to the witnesses as it thinks fit. (14) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiry Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence of recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment, of the inquiry for three clear days before the, production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The Inquiry Authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice. Note: New evidence shall not be permitted or called for and no witness shall be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. (15) When the case for the Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any has been appointed. (17) The Inquiry Authority may, after the Government servant closes his case, and shall if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the, purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
(17) The Inquiry Authority may, after the Government servant closes his case, and shall if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the, purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. (18) The Inquiry Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant or permit them to file written briefs of their respective case, if they so desire. (20)(a) Where a Disciplinary Authority competent to impose any of the penalties specified in items [(1)] (2) to (3) or rules 6(but not competent to impose any of the penalties specified in items (4) to (8) has itself inquired into or caused to be inquired into the articles of any charge and that authority having regard to its own findings or having regard to its decision on any of the findings of any Inquiry Authority appointed by it, is of the opinion that the penalties specified in item (4) to (8) of rule 6 should be imposed on the Government servant, that authority shall forward the records of the Inquiry to such Disciplinary Authority as is competent to impose the last mentioned penalties. (b) The Disciplinary Authority to which the records are so forwarded, may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of Justice, recall the witness and examine, cross-examine and reexamine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules. 14. As could be seen from sub-rule(13), oral and documentary evidence by which articles of charges proposed to be proved are required to be produced before the Inquiry Officer. Simple production of the documents is not enough. In order to read the documents produced as evidence, such documents are required to be proved by witness of the department. As stated above, no oral evidence was led nor even documents produced were proved by examination of any of the witnesses of the department. Therefore, the findings recorded by the Inquiry Officer contained in the inquiry report could not be said to be supported by any legal evidence. 15.
As stated above, no oral evidence was led nor even documents produced were proved by examination of any of the witnesses of the department. Therefore, the findings recorded by the Inquiry Officer contained in the inquiry report could not be said to be supported by any legal evidence. 15. In the case of State of State of Uttar Pradesh And others v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 the Hon'ble Supreme Court has held and observed in para 28,29 and 30 as under:- "28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. 30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 16.
The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 16. In light of the above principles of law as also in view of the provisions of sub-rule(13) of Rule 9 of the Rules, it could be well said that it was a case of no evidence against the employee in the department inquiry and when the report was submitted by the Inquiry Officer. 17. Question then arises whether the Disciplinary Authority was justified in recording the statement of Shri D.M. Patel, Pharmacist, who was not examined as witness though included in the list of witnesses, after the inquiry was over and whether his statement could be relied on as evidence against the employee. Further question would also arise as to whether after conclusion of the inquiry, the employee could have been called upon to give his statement with Shri D.M. Patel and whether such statement could have been considered by the Disciplinary Authority while passing the impugned order. 18. As clearly provided in the Note below Sub-Rule (14) of Rule 9 of the Rules, no new evidence can be permitted or called for and no witness could be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. 19. Thus, there is a clear bar in the Rules not to permit any new evidence. Mr. D.M. Patel was not examined as witness at all. For the first time, after the inquiry report was submitted, he was called and his statement was recorded. Such course was not legally permissible. In fact, when it is specifically provided that no evidence shall be recalled to fill up any gap in the evidence, even if Shri D.M. Patel was examined as witness, it was not permissible to recall him to fill up any gap in the evidence. Therefore, neither the Disciplinary Authority is permitted to fill up any gap in the evidence by recalling the witness nor even new evidence is permissible.
Therefore, neither the Disciplinary Authority is permitted to fill up any gap in the evidence by recalling the witness nor even new evidence is permissible. What is permissible is to call for the evidence only when there is an inherent lacuna or defect in the evidence which has been produced originally. It is not the case of the department that it had produced any evidence originally, wherein either lacuna or defect was found and therefore, there was a necessity to call for the new evidence. In fact, the Disciplinary Authority accepted the inquiry report as it is, and then recorded the statement of Shri D.M. Patel. Taking and relying upon such statement by the Disciplinary Authority was not supported by the Rules. 19.1. In view of the above, the dismissal of the employee based on the inquiry report and the statement of Shri D.M. Patel and by taking support of the statement of the employee could not stand scrutiny of law. 19.2. The Tribunal though found that it was case of no evidence, it remanded the case to the Disciplinary Authority for holding fresh inquiry. Such order of remand appears to be contrary to Rule 10 of the Rules. 20. Rule 10 of the Rules 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 such charge, if the evidence on record is sufficient for the purpose.
(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 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 shall be taken into consideration before making, an order imposing any such penalty as may be imposed on the Government Servant." 21. Under Rule 10 of the Rules, the Disciplinary Authority is empowered to remit the case to the inquiry authority for further inquiry by recording reasons and thereafter the inquiry authority is to proceed to hold further inquiry according to the provisions of Rule 9 as far as may be. It further provides that if the Disciplinary Authority is in disagreement with the findings of the Inquiry Authority on any of the article of charge, it can record its own findings on any charge after recording reasons for such disagreement provided the evidence on record is sufficient for such purpose.
It further provides that if the Disciplinary Authority is in disagreement with the findings of the Inquiry Authority on any of the article of charge, it can record its own findings on any charge after recording reasons for such disagreement provided the evidence on record is sufficient for such purpose. Thus, the Disciplinary Authority is not empowered to hold any fresh inquiry. Even the further inquiry is to be in accordance with Rule 9 as far as may be. When the Disciplinary Authority is empowered to hold further inquiry and if the Disciplinary Authority is not empowered to permit new evidence or to fill up any gap in the evidence, remanding the matter to the Disciplinary Authority to hold fresh inquiry would amount to empowering and permitting the Disciplinary Authority to take new evidence or to fill up gap in the evidence which is otherwise prohibited. Therefore, what is not permissible directly under the Rules cannot be permitted indirectly by order of remand by the Tribunal. When the Tribunal has come to the conclusion that it is a case of no evidence against the employee in the departmental inquiry and when on such findings, the order of dismissal of employee is quashed by the Tribunal, there was no question of remanding the matter to the Disciplinary Authority. 22. In the case of Dilip Ratilal Patel v. Gujarat State Financial Corporation, reported in 2004 (4) GLR 2761 , the Hon'ble Division Bench of this Court while interpreting Rule 10 of the Rules has held and observed in paragraph Nos.6,7,8 and 9 as under:- "6. Undoubtedly, the interpretation and application of the two expressions "FRESH" and "FURTHER" have thin margin and line in literary, functionary and jurisprudential sense. On behalf of the appellant, it has been vehemently contended that further inquiry and not a fresh inquiry is the rule provision under Rule 10(1) of the Rules, and therefore the direction contained in the impugned order of the Managing Director of the respondent Corporation for fresh inquiry after consideration of the report of the inquiry officer is neither legal nor reasonable nor permissible and therefore perverse.
As against that, the learned advocate appearing for the respondent Corporation submitted that the direction given by the Managing Director for fresh inquiry and which has been confirmed by the learned Single Judge upon judicial review is quite reasonable and justified requiring no interference at the hands of this Court in exercise of its powers under clause 15 of the Letters Patent. In support of this submission, reliance is placed on the decision of Union of India and others v. P. Thayagarajan, (1999) 1 SCC 733 On the other hand learned counsel for the appellant has placed strong reliance on the decision of the Apex Court rendered by a Constitutional Bench in K.R. Deb v. The Collector of Central Excise, Shillong, AIR 1971 SC 1447 . In this decision, the question that centered around was about the interpretation of Rule 15(1) of the Central Civil Services Rules which is virtually pari pasu to the relevant rule applicable to the case on hand, i.e. Rule 10(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 7. It has been vividly expounded proposition of law that Rule 15(1) of the Central Civil Services Rules, is almost pari pasu to the Rule 10(1) of the Rules applicable to the present case. It is in this context that it will be not only advisable, but imperative to refer to the relevant observations in the judgment for profit. In paragraph 13, the Apex Court made the following observations: "13. It seems to us that Rule 15, on the face of it, really provides for one inquiry, but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the inquiry officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9." 8.
But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9." 8. Relying upon P. Thyagarajan case (supra) the learned Single Judge held in the said judgment that the possibility of holding an inquiry afresh, in a given situation, if the interest of justice so requires, can not been ruled out. With due respect, this proposition does not seem to be in consonance with the rule provision of Rule 10 of the Rules of 1971, which is applicable to the facts of the present case. In the decision of P. Thyagarajan (supra), the relevant Rule under consideration was Rule 27(c)(6) of the Central Reserve Police Force Rules, 1955. After having given our anxious consideration to the rule provision of Rule 27(c)(6) of the Central Reserve Police Force Rules, 1955, it becomes clear that de novo inquiry can be directed by the disciplinary authority. But, the same is not the rule provision in Rule 10(1) of the Rules governing the case on hand. While interpreting Rule 15(1) of the Central Civil Services Rules, the Constitutional Bench of the Supreme Court in K.R.Deb case (supra) unambiguously and in clear judicial exposition of Rule 15(1), which is identical to Rule 10(1) of the Rules and applicable to the present case, held that Rule 15 does not contemplate successive enquiries, if there is some defect, default, discrepancy or lacunae. Rule 15 on the face of it really provides for one inquiry, but it may be possible, that if in a particular case, where there has been no proper inquiry because of some serious defect having crept in the inquiry proceedings or where some of the witnesses who are important were not available at the time of inquiry or were not examined for some reasons and in such other eventualities and contingencies, it is open for the disciplinary authority to direct the enquiry officer to record further evidence.
It is, therefore, very clear and there is no doubt in our mind that in Rule 15(1) of Central Civil Services Rules, which is almost pari pasu to Rule 10(1) of the Rules, which are governing the present case, there is no provision for totally scraping of the inquiry report or setting aside the previous enquiry on such grounds. However, it may be noted that the disciplinary authority is empowered and has enough power to reexamine and reconsider the evidence itself and also to direct for holding further inquiry. 9. Our attention has also been drawn to the decision of this Court rendered by a Single Bench in Hiralal K. Joshi v. State of Gujarat and another, 1989 (2) GLR 1183 . In a similar case, the same issue of interpretation of Rule 10 of the Rules was involved and this Court has ruled that the rule provision of Rule 10 of the Rules does not contemplate to holding of a fresh departmental inquiry or disciplinary proceeding against a public servant after a report was submitted by the enquiry officer. The Single Bench decision in Hiralal K. Joshi case (supra) also lends material reinforcement to the proposition we have propounded. It may also be, at the cost of repetition, clarified that the relevant provisions of Central Civil Services Rules, as stated earlier, are similar to the relevant provisions of Rules with which this Court is concerned in this Letters Patent Appeal. The Single Bench had also placed strong reliance on the decision rendered in K.R.Deb case (supra). In short, Rule 10 of the rules applicable in Gujarat and governing the present case contemplates only one inquiry and not successive inquiry or inquiries. However, in view of the provisions of Rule 10(1), the disciplinary authority is empowered to direct for further inquiry, upon consideration and examination of the report of the enquiry officer, and upon finding and holding that the persons required to be examined were important and were not examined or some defect, lacunae or discrepancy which has resulted into miscarriage of justice. It is in this context, with due respect, the view taken and propounded by the learned Single Judge in this case is not laying down correct proposition of law.
It is in this context, with due respect, the view taken and propounded by the learned Single Judge in this case is not laying down correct proposition of law. It may be possible that attention of the learned Single Judge was not properly drawn to the factum that it is Rule 15 of the Central Civil Services Rules which is similar to Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, and not Rule 27(c)(6) of the Central Reserve Police Force Rules, 1955. Be that as it may, the order of the Managing Director, upon interpreting Rule 10(1) of the Rules, directing de novo inquiry and which has been confirmed in the writ petition by the impugned judgment, in our clear opinion, runs diametrically opposite to the provisions of Rule 10(1) of the Rules on its plain meaning and interpretation than the expression "fresh inquiry", and therefore, the impugned order of the Managing Director of the respondent Corporation and the impugned judgment of the learned Single Judge are required to be quashed and set aside. We, therefore, quash and set aside both of them." 23. In light of the above and having found that it was a case of no evidence against the employee, the Tribunal was not justified in remanding the matter to the Disciplinary Authority for holding fresh inquiry. 24. Even otherwise in respect of the incidents for the period from 1988 to 1992, the employee having faced criminal proceedings and also the departmental inquiry, now after more than 20 years, if fresh inquiry as ordered by the Tribunal is permitted, the same would work to the great prejudice of the employee. 25. For the reasons recorded above, the petition filed by the employee is required to be allowed and the petition filed by the State is required to be dismissed. 26. During the course of hearing, learned advocate Mr. Joshi stated that the employee is not pressing for difference of salary amount for the period from the date of his dismissal from service till the date of this judgment and order. 27. Considering the above, the employee shall not be required to be paid the different of salary amount for the period from the date of his dismissal i.e. from 25.9.2008, till the date of this judgment. 28. In the result, the Special Civil Application No.18734 of 2011 is allowed.
27. Considering the above, the employee shall not be required to be paid the different of salary amount for the period from the date of his dismissal i.e. from 25.9.2008, till the date of this judgment. 28. In the result, the Special Civil Application No.18734 of 2011 is allowed. Judgment and order dated 18.5.2011 passed by the Gujarat Civil Service Tribunal in Appeal No.323 of 2008 insofar as the Tribunal has ordered remand of the matter to the Disciplinary Authority for holding fresh inquiry is quashed and set aside. However, the judgment and order of the Tribunal for setting aside the order dated 25.9.2008 of dismissal of the employee from service is confirmed. The employee- petitioner of Special Civil Application No.18734 of 2011 is held entitled to reinstatement with continuity of service with all consequential benefits except the difference of salary for the period from the date of his dismissal from service till the date of this judgment. Respondent No.2 in Special Civil Application No.18734 of 2011- petitioner of Special Civil Application No.1724 of 2012 is hereby directed to reinstate the employee within a period of FOUR WEEKS with continuity of service and with other consequential benefits, as stated above, from the date of receipt of this judgment and order. Rule is made absolute to the aforesaid extent. 29. Special Civil Application No.1724 of 2012 is dismissed. Rule is discharged.