Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 139 (GUJ)

Abdulsattar R. Mansuri v. State of Gujarat

2014-01-31

C.L.SONI

body2014
JUDGMENT C.L. SONI, J. 1. The petitioner has made following prayers under para 7 in his petition filed under Article 226 of the Constitution of India:- (A) That this Hon’ble Court be pleased to admit and allow this petition. (B) That this Hon’ble Court be pleased to hold that the action of the respondents, unconstitutional and suffers from malafide and the prolonged inquiry was in violation and in breach of this Hon’ble High Court’s order dated 14.10.2002 in Special Civil Application No. 7721 of 2002 (Annexure ‘D’) and order dated 29.08.2003 in Special Civil Application No. 12580 of 2003 (Annexure ‘E’) and be pleased to further set aside the same as the punishment is disproportionate to the alleged charges. (C) That this Hon’ble Court be pleased to quash and set aside the order of compulsory retirement passed by respondent no. 2 bearing No. Kh.T.P./142002/1512/E dated 10th September 2009 passed by respondent no. 2 (Annexure ‘A’). (D) That this Hon’ble Court be pleased to reinstate the petitioner on the post originally held by the petitioner from the date on which he was suspended in July 2002 till the date of his alleged compulsory retirement vide order bearing No. Kh.T.P./142002/1512/E dated 10th September 2009 passed by respondent no. 2 (Annexure ‘A’) with all consequential benefits, such as, increments, pay and allowances, retiral benefits as are applicable to regular employees, including the effect of Sixth Pay Commission benefits, as if the petitioner had never been placed under suspension, with interest accrued on such amounts from the date when the amount became due till its actual realization. (E) Pending admission hearing and final disposal of the present petition, this Hon’ble Court be pleased to stay order No. Kh.T.P./142002/1512/E dated 10th September 2009 passed by respondent no. 2 (Annexure ‘A’). (F)……………..” 2. The case of the petitioner is that looking to his services rendered as Beat Supervisor (Kelavani) from 1979 onwards, he came to be appointed as Principal, DIET (i.e. equivalent to Deputy Director) by order dated 9.8.1997. He has averred that initially, he was appointed for a period of six months, but he was continued in service without any break till he was suspended in the month of July 2002 and departmental inquiry was initiated against him. He made representation against his suspension and requested for necessary documents as regards the allegations levelled against him. He has averred that initially, he was appointed for a period of six months, but he was continued in service without any break till he was suspended in the month of July 2002 and departmental inquiry was initiated against him. He made representation against his suspension and requested for necessary documents as regards the allegations levelled against him. However since nothing was done, he preferred Special Civil Application No. 7721 of 2002 before this Court, wherein this Court vide order dated 14.10.2002 directed the respondents to supply copies of the documents which were to be relied by the department and to complete the inquiry within six months. It is further case of the petitioner that since the respondents failed to comply with the direction issued in the above petition, the petitioner again filed Special Civil Application No. 12580 of 2003, wherein the Court vide order dated 29.8.2003 directed the respondents to complete the inquiry latest by 31.12.2003. Thereafter also, the said direction was not complied with by the respondents and the suspension of the petitioner was continued for about 7 years. The petitioner has averred that though there is no substance in the allegations levelled against him, the respondents have taken decision of issuing order of compulsory retirement to the petitioner. 3. I have heard learned advocates for the parties. 4. Learned advocate Mr. K.B. Pujara appearing with learned advocate Mr. Hashim Qureshi for the petitioner submitted that for no good reason, the inquiry was delayed for about 7 years for the trivial charges which are not supported by any legal evidence. Mr. Pujara submitted that though this Court twice directed the respondents to complete the inquiry within six months and since not completed, to complete by 31.12.2003, the respondents deliberately did not conclude the inquiry just to see that the petitioner is put to lot of agony of such pending inquiry against him. Mr. Pujara submitted that during this long time taken in the inquiry, the petitioner was continued on suspension which itself was a punishment to the petitioner. 5. Learned advocate Mr. Pujara submitted that when the petitioner was about to reach the age of superannuation, the inquiry was hushed up only with a view to see that the petitioner could be imposed with punishment of compulsory retirement. Mr. 5. Learned advocate Mr. Pujara submitted that when the petitioner was about to reach the age of superannuation, the inquiry was hushed up only with a view to see that the petitioner could be imposed with punishment of compulsory retirement. Mr. Pujara submitted that the order of compulsory retirement is based on the findings recorded by the Inquiry Officer which was not conducted according to the procedure known to law. Mr. Pujara submitted that no legal evidence was adduced by the department in the inquiry. Mr. Pujara submitted that the department neither examined any witness nor produce any document and therefore, it cannot be said that the charges against the petitioner were proved. Mr. Pujara submitted that the procedure unknown to the departmental inquiry was followed by the Inquiry officer. The inquiry was initiated by asking questions to the petitioner after showing some bills to the petitioner. Mr. Pujara submitted that such course was wrongly objected by the legal assistant of the petitioner during the inquiry on the ground that when the petitioner was examined as a witness, the presenting officer could not have asked any question to the petitioner. Mr. Pujara submitted that the documents which were being shown to the petitioner for the purpose of asking questions to him, were otherwise required to be proved by examining the witnesses of the department. Such course was not adopted, it cannot be said that there was any legal evidence in the inquiry so as to come to the conclusion that the charges against the petitioner were proved. Mr. Pujara submitted that the Disciplinary Authority could not have passed the impugned order of compulsory retirement based on such illegal inquiry conducted against the petitioner and therefore, such order of punishment is required to be quashed and set aside and the petitioner is required to be conferred all benefits which would have been available to the petitioner had the petitioner not been ordered to be compulsorily retired. 6. Learned Assistant Government Pleader Mr. Ronak Raval appearing for the respondents submitted that the petitioner faced serious charges of claiming more amount of TA bill and also making immediate payment for purchase of some article from DIET though time of three months was available with him for making such payment. Mr. 6. Learned Assistant Government Pleader Mr. Ronak Raval appearing for the respondents submitted that the petitioner faced serious charges of claiming more amount of TA bill and also making immediate payment for purchase of some article from DIET though time of three months was available with him for making such payment. Mr. Raval submitted that the charges against the petitioner were proved on the basis of the documents and therefore, there was no question of any oral evidence to be adduced from the side of the department. Mr. Raval submitted that since the petitioner faced the above-said charges, the petitioner was continued on suspension and on finding the petitioner guilty, ultimately the Disciplinary Authority thought it fit to impose the punishment of compulsory retirement. Mr. Raval submitted that such punishment being based on inquiry legally conducted, this Court may not interfere with such punishment while exercising the powers under Article 226 of the Constitution of India. 7. Having heard learned advocates for the parties and having perused the record of the petition, including the proceedings of the departmental inquiry initiated against the petitioner and ultimate order of punishment of compulsory retirement, what appears is that the petitioner was charged for claiming more amount of T.A. Bills for the period from 3.3.2000 to 17.7.2000 and from 27.7.2000 to 17.10.2000 and for three other journey, i.e. Idar-Gandhnagar-Idar, Idar-Himmatnagar-Prantij-Idar and Idar -Modasa-Idar on the ground that the petitioner claimed more amount than the limit fixed for the railway journey and was also charged for making payment of Rs. 3,74,606/- for purchase of some of articles for DIET on the same day without giving advertisement. 8. It appears that the petitioner had grievance of not supplying the documents. He, therefore, at the time of challenging his order of suspension dated 3.7.2002 before this Court by filing Special Civil Application No. 7721 of 2002 also prayed for supply of copies of some documents. The Court though did not interfere with the order of suspension, however directed to supply the documents demanded by the petitioner and to complete he inquiry within six months. 9. Since the inquiry was not completed within six months, the petitioner had again filed Special Civil Application No. 12580 of 2003 challenging the order of suspension on the ground that the respondents were not justified in continuing him on suspension when the respondents had not completed the inquiry within six months. 9. Since the inquiry was not completed within six months, the petitioner had again filed Special Civil Application No. 12580 of 2003 challenging the order of suspension on the ground that the respondents were not justified in continuing him on suspension when the respondents had not completed the inquiry within six months. The Court did not again interfere with the order of suspension, however directed the respondents to complete the inquiry latest by 31.12.2003. 10. It appears that after the above-said order was passed by this Court, the inquiry was proceeded with effect from 6.9.2003. Hearing in the inquiry took place on 7 different dates, i.e. on 6.9.2003, 6.10.2003, 18.10.2003, 22.11.2003, 1.3.2004, 8.7.2004 and 20.7.2004 and then it was kept for the purpose of submitting brief by the Presenting Officer who presented his brief on 27.7.2004. 11. As could be seen from the impugned order at Annexure-A, the Inquiry Officer had submitted his report on 1.11.2004 however, after about three and half years, the petitioner was served with show cause notice dated 5.5.2008 by the Deputy Secretary, Education Department, placed at page No. 47, calling for explanation of the petitioner within 15 days against the proposed punishment. The petitioner gave his explanation dated 10.6.2008 against the above-said notice. The impugned order of compulsory retirement then came to be passed under Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 (the Rules for short) on 9.9.2009, which came to be communicated to the petitioner vide communication dated 15.9.2009. 12. From the proceedings of the departmental inquiry, at page No. 86, it appears that the inquiry started with examination of the petitioner by the presenting officer. Such procedure permitted by the Inquiry officer was objected at the threshold on behalf of the petitioner, however, the Inquiry Officer allowed such procedure to go on. 13. There is no dispute about the fact that the department did not examine any witness. The presenting officer just went on asking questions to the petitioner by showing some bills to the petitioner. It is not found recorded in the inquiry proceedings whether the documents (bills) were ever produced during the inquiry by the department or whether the procedure of referring the documents by the presenting officer was with the consent of the petitioner. The presenting officer just went on asking questions to the petitioner by showing some bills to the petitioner. It is not found recorded in the inquiry proceedings whether the documents (bills) were ever produced during the inquiry by the department or whether the procedure of referring the documents by the presenting officer was with the consent of the petitioner. In any case, the fact remains that at least, the department did not examine any witness either to prove any document or to prove the charge against the petitioner by oral evidence. Therefore, it appears that there was no legal evidence adduced in the inquiry. 14. 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. (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 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. (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 re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules." 15. 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 evidence was led to prove the charges against the petitioner. Therefore, the findings recorded by the Inquiry Officer contained in the inquiry report could not be said to be supported by any legal evidence. 16. In the case of State of State of Uttar Pradesh and others vs. Saroj Kumar Sinha, (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. 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." 17. 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. 18. Even apart from the above, it is required to be noted that for the charge of claiming more amount of TA bill by making comparison with the railway fares, nowhere the department has brought on record that the railway fares existed at the relevant time by examining any witness. Therefore also, the charge about claiming more TA bill could not be said to have been established. So far as the charge of purchasing some material and making payment thereof on the same day is concerned, such charge was in respect of purchase took place for the year 1997 to 1998, whereas the charge-sheet given to the petitioner was after about four years. This Court is of the view that such stale incident could not have been subject matter of inquiry against the petitioner. 19. One more aspect of delay in completing the inquiry is also required to be considered. It was the petitioner who had made complaint of not completing the inquiry at the earliest by preferring two different petitions. The respondents though were directed by this Court to complete the inquiry latest by 31.12.2003 and though the inquiry report was submitted in the month of November 2004, still no final order was passed by the Disciplinary Authority for about more than three and half years. During the inquiry, the petitioner was continued on suspension. The respondents though were directed by this Court to complete the inquiry latest by 31.12.2003 and though the inquiry report was submitted in the month of November 2004, still no final order was passed by the Disciplinary Authority for about more than three and half years. During the inquiry, the petitioner was continued on suspension. The impugned order of compulsory retirement came to be passed when the petitioner was about to reach the age of superannuation. The petitioner thus could be said to have suffered enough on account of such delay. 20. For all the above reasons, the impugned order cannot stand scrutiny of law and is required to be quashed and set aside. 21. However, while quashing and setting aside the impugned order, the petitioner could be given the benefit of full salary from the date of submission of the inquiry report to the Disciplinary Authority as the petitioner was not responsible for delay in passing the impugned order. However, the services of the petitioner from the day of his suspension till he reached the age of superannuation could be treated as continuous service for all service benefits to the petitioner. 22. In the result, the petition is allowed. The impugned order is quashed and set aside. The petitioner is held to be in continuous service till the date he reached the age of superannuation. Based on such continuous service, the petitioner shall be entitled to all consequential benefits except difference of salary from the date of his suspension to the date of the inquiry report i.e. on 1.11.2004. The respondents are directed to confer all consequential benefits to the petitioner flowing from the continuous service of the petitioner within a period of "Three Months" from the date of receipt of this judgment and order. Rule is made absolute accordingly.