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2014 DIGILAW 83 (GUJ)

R. B. Tandel v. State of Gujarat

2014-01-22

ABHILASHA KUMARI

body2014
Judgment Smt. Abhilasha Kumari, J.—Rule. Mr. D.M. Devnani, learned Assistant Government Pleader, waives service of notice of Rule on behalf of Respondents Nos. 1 and 3 and Mr. Rajesh Chauhan, learned advocate, who appears on behalf of Mr. H.S. Munshaw, learned advocate, waives service of notice of Rule for Respondent No. 2. On the facts, and in the circumstances of the case, and with the consent of learned Counsel for the respective parties, the petition is being heard and decided finally. 2. This petition, under Articles 226 and 227 of the Constitution of India, has been preferred with a prayer to quash and set aside the orders dated 18.03.2010 and 25.02.2011, respectively passed by Respondent No. 1, whereby, 100% pension cut has been imposed upon the petitioner and the application for review preferred by the petitioner has been rejected. 3. The brief facts of the case are that the petitioner was working as an Auxillary Nurse Midwife (ANM), having joined as such in Block Health Office at Pardi on 23.08.1984. According to the petitioner, after the death of her husband on 21.08.1986, there was no member of the family, except the petitioner, to look after her two children. The entire burden of maintaining the family fell upon her shoulders. For these reasons, the petitioner remained absent from duty and could only put in about 12 years’ service till her date of retirement. It is further the case of the petitioner that she had also undergone medical treatment for depression. As a cumulative result of the above factors, she could not report for duty regularly. The petitioner has remained absent, unauthorisedly, for 4263 days from 01.04.1992 to 31.03.2006. A Charge-sheet was issued to the petitioner for unauthorised absence in the year 1996 and a departmental inquiry followed, on 27.06.2005. As per the report of the Inquiry Officer dated 13.03.2006, the charges levelled against the petitioner were found to be proved. The disciplinary authority accepted the report of the Inquiry Officer and inflicted the penalty of dismissal from service upon the petitioner, as per the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997. The recommendation of Respondent No. 3, Gujarat Panchayat Service Selection Board (Respondent No. 3), was sought regarding the penalty inflicted upon the petitioner as she had superannuated in the meanwhile, on 31.03.2006. The recommendation of Respondent No. 3, Gujarat Panchayat Service Selection Board (Respondent No. 3), was sought regarding the penalty inflicted upon the petitioner as she had superannuated in the meanwhile, on 31.03.2006. The Chief District Health Officer, District Panchayat, Valsad (Respondent No. 2), issued a show cause notice dated 49.09.2008, inter alia, indicating that since the petitioner had retired, the penalty of removal from service was not to be imposed. However, the petitioner was asked to show cause as to why a cut in her pension be not imposed, as prescribed under the Gujarat Panchayat Service (Pension) Rules. By letter dated 18.09.2008, the petitioner prayed that she may be granted full pension since the disciplinary proceedings have been set aside. By communication dated 04.09.2009, Respondent No. 3, considering the papers of the departmental inquiry and the Gujarat Panchayat Service (Pension) Rules, 2002, advised Respondent No. 2 that a penalty of a cut in the pension of the petitioner, at the rate of Rs. 100/- per month, for a period of one year, may be imposed. By order dated 09.09.2009, Respondent No. 2, imposed the penalty of a pension cut of Rs. 100/- per month for a period of one year. After having passed the said order, Respondent No. 2 proceeded to cancel his own order dated 09.09.2009, vide order dated 06.11.2009, on the ground that he did not have the power to impose penalty, which can only be imposed by the State Government. Thereafter, Respondent No. 2 forwarded the file to the Development Commissioner, who, in turn, submitted the file to the State Government. According to the petitioner, the State Government (Respondent No. 1) has passed the impugned order dated 18.03.2010 (Annexure-A to the petition), directing that the entire pension of the petitioner be withheld, without granting her an opportunity of hearing. The petitioner preferred an application dated 20.09.2010, for review of the order dated 18.03.2010, which has been rejected by the impugned order dated 25.02.2011 (Annexure-B to the petition). Aggrieved by the aforestated orders, the petitioner is before this Court. 4. Mr. Dipak H. Sindhi, learned advocate for the petitioner, has submitted that the penalty of withholding the entire pension of the petitioner on a permanent basis, is extremely harsh. Though the petitioner had remained absent unauthorisedly, however, looking to her circumstances, a lesser penalty could have been inflicted upon her. 4. Mr. Dipak H. Sindhi, learned advocate for the petitioner, has submitted that the penalty of withholding the entire pension of the petitioner on a permanent basis, is extremely harsh. Though the petitioner had remained absent unauthorisedly, however, looking to her circumstances, a lesser penalty could have been inflicted upon her. The petitioner is the only breadwinner in the family and is maintaining her two children. Her absence was due to the death of her husband and the problems she had to face thereafter. Besides, the petitioner was also facing mental disturbances, for which she was taking treatment. All these factors ought to have been taken into consideration by the State Government, before passing the impugned order. 5. It is further submitted that the impugned order dated 18.03.2010, is not sustainable in law, having been passed without granting the petitioner an opportunity of hearing. As such, it is in violation of the principles of natural justice; therefore, it deserves to be quashed and set aside. 6. Insofar as the impugned order dated 25.02.2011, passed on the review application of the petitioner is concerned, it is submitted on behalf of the petitioner that the same has been passed without considering the grounds of review raised by the petitioner. In any case, the said order is cryptic and unreasoned, therefore, this order, as well, deserves to be quashed and set aside. 7. Lastly, it is submitted that before the hearing of the review application, a notice was issued to the petitioner on 18.12.2010, asking her to remain present on 27.12.2010. The said notice was received by the petitioner on 03.01.2011, that is, after the date on which the petitioner was directed to remain present. The petitioner was, therefore, deprived of an opportunity of personal hearing. No written submissions have been made by the petitioner. The statement made in the further affidavit-in-reply filed by the State Government that the petitioner had submitted “written submissions” which were considered, is not correct. 8. Mr. D.M. Devnani, learned Assistant Government Pleader for Respondents Nos. 1 and 3, submits that though it appears from the record that the petitioner was not heard before passing of the impugned order dated 18.03.2010, however, as has been stated in Paragraph4 of the further affidavit filed by the State Government, subsequently, a notice was sent to her and an opportunity was given to remain present. 1 and 3, submits that though it appears from the record that the petitioner was not heard before passing of the impugned order dated 18.03.2010, however, as has been stated in Paragraph4 of the further affidavit filed by the State Government, subsequently, a notice was sent to her and an opportunity was given to remain present. It cannot, therefore, be said that the principles of natural justice have been violated. 9. Mr. Rajesh Chauhan, learned advocate for Respondent No. 2, adopts the arguments advanced by the learned Assistant Government Pleader. 10. Pursuant to the issuance of notice by this Court on 18.06.2013, the State Government has filed an affidavit in reply, affirmed on 24.09.2013, wherein, it is stated that the Government has the right to withhold or withdraw pension, either permanently, or for a specified period of time. The relevant Rules have also been quoted. A further affidavit in reply has been filed on behalf of the State Government, affirmed on 04.12.2013. In the said further affidavit, it is categorically admitted in Paragraph-4, that no notice was issued to the petitioner by Respondent No. 1 before passing the order dated 18.03.2010. It is contended that an opportunity was granted to the petitioner to make submissions before deciding the review application and her written submissions were considered before the impugned order dated 25.02.2011, was passed. 11. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 12. It is an undisputed fact that the petitioner faced a departmental inquiry for unauthorised absence. Initially, the Chief District Health Officer (Respondent No. 2) imposed the penalty of withholding Rs. 100/every month from the pension of the petitioner for one year, vide order dated 09.09.2009, as the petitioner had retired on 31.03.2006. Before passing the impugned order dated 09.09.2009, Respondent No. 2 sought the ratification of the punishment from the Gujarat Panchayat Services Selection Board (Respondent No. 3), which ratified such punishment. Thereafter, Respondent No. 2 passed an order on 06.11.2009, cancelling his previous order dated 09.09.2009, on the ground that the power of inflicting penalty vests with the State Government. It is in this background that the impugned order dated 18.03.2010, came to be passed, whereby the entire pension of the petitioner has been withheld. 13. Thereafter, Respondent No. 2 passed an order on 06.11.2009, cancelling his previous order dated 09.09.2009, on the ground that the power of inflicting penalty vests with the State Government. It is in this background that the impugned order dated 18.03.2010, came to be passed, whereby the entire pension of the petitioner has been withheld. 13. The main thrust of the arguments advanced by the learned advocate for the petitioner is twofold. The first limb of the argument is that the impugned order dated 18.03.2010, apart from being extremely harsh and disproportionate, has been passed without granting the petitioner an opportunity of hearing. As the said order has been passed in violation of the principles of natural justice, it cannot be permitted to stand. 14. The second limb of the submissions advanced on behalf of the petitioner is that, the impugned order dated 25.02.2011, whereby the review application of the petitioner has been rejected, is an unreasoned order. In the application for review, the petitioner has raised several grounds, which have not been dealt with by Respondent No. 1. The order is cryptic and does not disclose proper application of mind. Rather, it has been passed in a mechanical fashion. 15. In order to examine the first contention regarding the violation of the principles of natural justice while passing the impugned order dated 18.03.2010, it would be fruitful to refer to the further affidavit filed by Respondent No. 1, dated 04.12.2013. In Paragraph4 of the said affidavit, it is stated thus: “4. So far as contention of the petitioner to the effect that no opportunity of hearing is given to the petitioner before passing of impugned order dated 18.03.2010 is concerned, it is pertinent to mention that it is true that no notice was issued by the Respondent No. 1, State Government.....” (emphasis supplied) 16. From the above, it is clear that the petitioner was not granted any opportunity of hearing, leave alone a reasonable opportunity of hearing, before the passing of the impugned order dated 18.03.2010, imposing the penalty of a permanent cut in pension upon the petitioner. 17. This Court has dealt with a situation regarding the violation of principles of the natural justice in Malavkumar Arunbhai Patel vs. Sardar Patel University & Ors. 2007(1) GLR 413 , in the following terms: “23. 17. This Court has dealt with a situation regarding the violation of principles of the natural justice in Malavkumar Arunbhai Patel vs. Sardar Patel University & Ors. 2007(1) GLR 413 , in the following terms: “23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a straitjacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the petitioner before the “Unfair Means Committee”. However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently debar the petitioner has been taken. 24. In A.K. Kraipak vs. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in Para 20 thereof, which reads as under: “”20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi judicial enquiry. As observed by this Court in Suresh Koshy George vs. University of Kerala, Civil Appeal No. 990 of 1968, D/1571968 = ( AIR 1969 SC 198 ) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”” 25. Whenever a complaint is made before a court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”” 25. Further in Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant, reported in (2001)1 SCC 182 , the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment: “”... Since the decision of this Court in Kraipak’s case (A.K. Kraipak vs. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances who then is a reasonable man the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. vs. Union of India upon reliance on the attributes of the doctrine as above stated as below (SCC p. 387, Para 8) “8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H.K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge vs. Baldwin case as ‘insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances’. However, even the application of the concept of fairplay requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk: “The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth.” 2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Straitjacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of noncompliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action.” 26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. Even an administrative order, which involves civil consequences must be made consistently with the rules of natural justice. Although the expression ‘civil consequences’ has not been defined anywhere, the observation made in Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 at Para 66 on page 440 is relevant in this context and reads as below: “”What is civil consequence, let us ask ourselves, by passing verbal booby-traps? ‘Civil consequences’ undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence”” (emphasis supplied) 18. The principles of law enunciated in the above-quoted judgments apply squarely to the facts of the present case. It is an admitted position, emerging from the further affidavit filed by Respondent No. 1, that the petitioner has been deprived of an opportunity of hearing while passing the impugned order dated 18.03.2010. The said order has drastic consequences upon the petitioner as it imposes a 100% cut in pension upon her. As such, the said impugned order visits serious civil consequences upon the petitioner. Respondent No. 1 has acted in contravention of the principles of natural justice and fairness by passing the said order without even bothering to issue notice to the petitioner or grant her an adequate opportunity of hearing. Such action of Respondent No. 1 has resulted in grave miscarriage of justice insofar as the petitioner is concerned. Applying the principles of law enunciated in the above-quoted judgment, the impugned order dated 18.03.2010, passed by Respondent No. 1, cannot stand the scrutiny of law and deserves to be quashed and set aside. 19. The second contention raised by the learned advocate for the petitioner is regarding the second order impugned in the petition, namely, the order dated 25.02.2011. This Court has perused the said order and found that none of the contentions raised by the petitioner in the review application have been dealt with or considered by Respondent No. 1. The said order is bereft of reasons. This Court has perused the said order and found that none of the contentions raised by the petitioner in the review application have been dealt with or considered by Respondent No. 1. The said order is bereft of reasons. Instead of curing the defect of depriving the petitioner of the opportunity of hearing before passing the earlier order dated 18.03.2010, Respondent No. 1 has compounded the said defect by passing the order dated 25.02.2011. As is evident from a perusal thereof, the said order contains no reasons at all. Besides this, the socalled opportunity of personal hearing could not be availed by the petitioner as she received the notice after the date of hearing. In any event, this order is absolutely cryptic and unreasoned, and reveals a total non-application of mind, oblivious of the consequences upon the petitioner. 20. In State of Rajasthan vs. Rajendra Prasad Jain, JT 2008(3) SC 159, the Supreme Court has held as below: “8. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha vs. State of Bihar and Ors. [JT 2003 (Suppl.2) SC 354]). 9. Even in respect of administrative orders, Lord Denning M.R. in Breen vs. Amalgamated Engineering Union [1971 (1) All E.R. 1148] observed “The giving of reasons is one of the fundamentals of good administration”. In Alexander Machinery (Dudley) Ltd. vs. Crabtree [1974 ICR 120] (NIRC) it was observed: “Failure to give reasons amounts to denial of justice”. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at”. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.” 21. In Union of India and Another vs. P.N. Natarajan and Others, (2010)12 SCC 405 , the Supreme Court has held as below: “15. We have considered the respective submissions and carefully scrutinised the records. Although neither the learned Single Judge nor the Division Bench considered the issue of violation of the rules of natural justice, having given serious thought to the entire matter, we are convinced that the retiral benefits payable to the respondents could not be revised to their disadvantage without giving them actionoriented notice and opportunity of hearing. By virtue of the option exercised by them under Section 12A(4)(b) and consequential action taken by the competent authority to fix their pension, etc., the private respondents acquired a valuable right to accordingly receive the financial benefits and the same could not have been reduced without complying with one of the basic rules of natural justice that no one shall be condemned unheard. The rule of audi alteram partem has been treated as fundamental to the system established by rule law and any action taken or order passed without complying with that rule is liable to be declared void – State of Orissa vs. Dr. Binapani Dei, ( AIR 1967 SC 1269 ) and Sayeedur Rehman vs. State of Bihar, [ (1973)3 SCC 333 = 1973 SCC (L&S) 122]. 16. It is not in dispute that before directing revision of the pension, etc. payable to the private respondents, the Central Government did not give them actionoriented notice and opportunity of showing cause against the proposed action. Therefore, it must be held that the direction given by the Central Government to revise the retiral benefits including the pension payable to the respondents was nullity.” 22. In light of the above-quoted judgments, the impugned order dated 25.02.2010, cannot be sustained as it lacks reasons and shows utter non-application of mind. 23. For the aforestated reasons, the following order is passed: The petition is partly-allowed. The orders dated 18.03.2010 and 25.02.2011, passed by Respondent No. 1, are quashed and set aside. In light of the above-quoted judgments, the impugned order dated 25.02.2010, cannot be sustained as it lacks reasons and shows utter non-application of mind. 23. For the aforestated reasons, the following order is passed: The petition is partly-allowed. The orders dated 18.03.2010 and 25.02.2011, passed by Respondent No. 1, are quashed and set aside. The matter is remitted to Respondent No. 1, who shall pass a fresh order, in accordance with law, after ensuring that the petitioner has been given an adequate opportunity of hearing. 24. It may be clarified that while passing this order, the Court has not considered the merits of the case. 25. Rule is made absolute, to the above extent. There shall be no orders as to costs.