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2016 DIGILAW 1097 (GUJ)

R. J. Vasava v. Deputy Director

2016-06-14

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this application under Article 227 of the Constitution of India, the applicant, a former Maintenance Surveyor, has prayed for the following reliefs:- "12(A) Your Lordships be pleased to allow this petition and issue the writ of certiorari and/or any other appropriate writ, order or suitable direction and set aside and quash the orders dated 29.03.2012 passed in the appeal No. 10 of 2010 by the Gujarat Civil Services Tribunal whereby the Tribunal and dismissed the appeal of the petitioner and confirmed the order dated 14.05.2008 of the respondent No. 1 along with the finding of disciplinary committee and the aforesaid order dated 14-05-2008. (B) Your Lordships be pleased to stay the implementation, operation and execution of the order dated 29.03.2012 passed by the Gujarat Civil Services Tribunal in the Appeal No. 20 of 2010 as well as dated 14-5-2008 of compulsory retirement. (C) Your Lordships be pleased to declare that the impugned order dated 14.05.2012 violates Article 20(2) of the petitioner to the extent as it provides punishment for his fault for which the petitioner was already subjected to punishment earlier and so, quash and set aside the same. (D) Your Lordships be pleased to direct the respondents to release all the retirement benefits including full amount of gratuity, his entitlement for the higher grade pay scale and fix the pension to the petitioner forthwith during the pendency of this petition and then, till the final disposal of this petition, so, the petitioner can survive. (E) Your Lordship be pleased to grant any other just and proper relief in the interest of justice and equity." 2. The applicant was serving as a Maintenance Surveyor at Songadh-Uchhal-Nizar under the administrative control of the Deputy Control of the Land Records, Surat. 3. The Deputy Director, Land Records, Surat, during his visit to the office of the applicant, noticed various irregularities in the functioning. 4. The Department decided to take disciplinary action against the applicant. 5. On 6th June 2007, a departmental charge-sheet was served upon the applicant with six charge as under:- (a) Non-disposal of mutation entries in six cases, although the prescribed period of limitation for disposal had expired. (b) The property cards of the City Survey No. 2128 were issued to one Shri Ghanshyambhai Jaganbhai Mistry without receiving the prescribed fees in that regard. (b) The property cards of the City Survey No. 2128 were issued to one Shri Ghanshyambhai Jaganbhai Mistry without receiving the prescribed fees in that regard. However, a false entry was made by the applicant that the fees had been received, and a bogus receipt was also created and shown. He misappropriated Rs. 5/- accordingly. He closed the cases after providing a forged copy of the property cards showing a false receipt number. (c) The applicant failed to make necessary entries in the prescribed register regarding the applications received for copies of the various documents from 9th December 2005 onwards. The Deputy Director, during his visit, noticed that no entry was made of any of the applications received in the office. (d) The applicant issued a copy unauthorizedly before the entry was certified in respect of a property situated at the village Nizar bearing City Survey No. 716 and misappropriated Rs. 5/- by issuing a fake receipt. Several registers were not maintained properly and also not updated. (e) The application filed by one Shri Chhotubhai Bhagwanbhai Patel was received and accepted without payment of the prescribed fees. The copy was found lying on the table. (f) One application was filed by Shri Dinesh Manilal Patel for demarcation of the boundary. The demarcation was undertaken at a belated stage. 6. The applicant was asked to submit his defence statement. 7. A retired Deputy Secretary viz. Shri J.A. Pandya, from the panel of Inquiry Officers prepared by the G.A.D., was appointed as an Inquiry Officer. At the end of the inquiry, the Inquiry Officer held that the charges were established. The disciplinary authority agreed with the findings recorded by the Inquiry Officer and issued a second show cause notice to the applicant. 8. On 14th May 2008, the Deputy Director, Land Records, Surat passed an order imposing penalty of compulsory retirement in accordance with the Rule 6(6) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. 9. Being dissatisfied with the order of compulsory retirement passed by the disciplinary authority, the petitioner preferred an appeal before the appellate authority under Rule 19 of the Rules 1971, after almost a period of one year two months and seventeen days. Whereas the period of limitation prescribed in the Rules is forty five days. 10. 9. Being dissatisfied with the order of compulsory retirement passed by the disciplinary authority, the petitioner preferred an appeal before the appellate authority under Rule 19 of the Rules 1971, after almost a period of one year two months and seventeen days. Whereas the period of limitation prescribed in the Rules is forty five days. 10. The appellate authority was not convinced with the cause assigned by the applicant for condonation of delay, and dismissed the appeal, as time barred. 11. Being dissatisfied, the petitioner preferred an Appeal No. 10 of 2010 before the Gujarat Civil Services Tribunal, Gandhinagar. 12. The Tribunal, by order dated 29th March 2012 dismissed the appeal. 13. Hence, this application under Article 227 of the Constitution of India. 14. The learned counsel appearing for the petitioner submitted that the disciplinary authority, appellate authority as well as the Tribunal committed a serious error in passing the impugned orders. The learned counsel submitted that the applicant could be said to have been punished twice as on the same set of charges, he was once proceeded departmentally and punished. According to the learned counsel, on the same set of allegations, there could not have been any further inquiry and penalty. The learned counsel submitted that the acts of misconduct are not such magnitude which warranted a major penalty. 15. On the other hand, this application has been vehemently opposed by the learned Assistant Government Pleader appearing for the State of Gujarat. He submitted that no error, not to speak of any error of law could be said to have been committed by the disciplinary authority or the Tribunal. 16. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order. 17. So far as the first contention of the learned counsel appearing for the petitioner about the double jeopardy is concerned, the same has been well considered by the Tribunal. The Tribunal, while deciding the appeal filed by the applicant herein, raised two issues for its consideration. 18. I may quote the findings recorded by the Tribunal, as contained from para 8 onwards: "8. The issue raised by the learned counsel Shir Vachharajani in support of the appeal memo to be addressed by the Tribunal are as follows:- 1. The Tribunal, while deciding the appeal filed by the applicant herein, raised two issues for its consideration. 18. I may quote the findings recorded by the Tribunal, as contained from para 8 onwards: "8. The issue raised by the learned counsel Shir Vachharajani in support of the appeal memo to be addressed by the Tribunal are as follows:- 1. Has the appellant has been punished twice for the same charges? 2. Is the inquiry report vitiated on the ground that the inquiry officer has reached his findings without analysing the evidence on record and going beyond his brief in concluding the charges of misappropriation is proved? 3. Is the impugned order is a non-speaking order? 4. Has the appellate authority shown his vindicative mind by dismissing the appeal on the ground of delay? 5. Is the punishment meted out to the appellate is disproportionately heavy compared to the charges proved? 9. The Tribunal has gone through the memo issued by the city survey superintendent. Vyara dated 16/10/2006 and the punishment order by him issued on 18/1/2007 which are att P. 233-244 of the record submitted by the respondent. In the said memo. it is mentioned that the visit note of Dy. Director Land Records was forwarded to the appellate for the compliance. There was no compliance report from him even after reminders. His conduct shows lack of devotion to duty. As no reply to the memo was received, the city survey superintendent, Vyara punished the appellant for non-compliance of the visit note of the Dy. Director, Land records dated 26/4/2006. Whereas the charge-sheet served on the appellant in the present matter relates to lapses on the part of the appellant noticed and recorded during the surprise visit of the Dy. Director, Land Records on 21/4/2006 and 24/1/2007. The visit note were conveyed on 26/4/2006 and 2/2/2007 respectively. On careful examination of the memo of the city survey superintendent, Vyara and the charge-sheet in the present matter, the Tribunal agrees with the respondent that both the charges are not the same. It is repeated here that it is a punishment for the non compliance of the visit note whereas in the present matter, the appellant has been punished for serious lapse on his part noticed by the authority during surprise visit on both the occasion. Therefore, it cannot be said that the appellant has been doubly punished for the same charge. It is repeated here that it is a punishment for the non compliance of the visit note whereas in the present matter, the appellant has been punished for serious lapse on his part noticed by the authority during surprise visit on both the occasion. Therefore, it cannot be said that the appellant has been doubly punished for the same charge. 10. The learned counsel Shri Vaccharajani raised the issue that the inquiry report is vitiated for arriving at the finding arbitrarily. This issue was not a part of the original appeal memo. The respondent was not given opportunity to explain on the matter. However, the Tribunal has seen para 6:16 of the inquiry report. The inquiry officer has recorded the evidence of the appellant in the report. He has given his reasons for the not accepting the evidence. Therefore, the Tribunal is of opinion that the inquiry officer has given his finding on the basis of the evidence recorded during the inquiry. 11. The learned Shri Vachharajani argued that the appellant had submitted his reply to the second show cause notice on 14/5/2008. Even if it is presumed that the reply was not received before the issue of impugned order, the inquiry officer is supposed to analyse the evidence on the basis of which the charges are proved and in the present order, there is no such analysis of the evidence. Hence, the impugned order is a non speaking order. The Tribunal has seen the impugned order. The disciplinary authority has mentioned the charges and the fact that the inquiry officer has given his finding that the charges are proved. The same was conveyed to the appellate through the second show cause notice as no reply is received, punishment order was issued. The disciplinary authority is not supposed to discuss the evidence on the basis of which the charges are proved. This has already been done by the inquiry officer. He is supposed to discuss the ground raised by the delinquent employee in his reply to the second show cause notice, if he finds anything wrong with the inquiry report. As in the present case, no reply was received, nothing remains to be discussed in the impugned order. Therefore, the Tribunal is of the opinion that the impugned order is a speaking order. 12. As in the present case, no reply was received, nothing remains to be discussed in the impugned order. Therefore, the Tribunal is of the opinion that the impugned order is a speaking order. 12. As per rule-19 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 the delinquent employee has to file an appeal before the appellate authority within 45 days of the punishment order issued by the disciplinary authority. In the case of any delay, he has to given reasons for the delay. If the reasons given are reasonable, it is for the appellate authority to consider the same and accept and condone the delay. In the para-wise remarks dated 8/2/2010 it is stated by the respondent that the appellate had not given any reason to explain and justify the delay. It is only before the Tribunal a reason has been advanced for delay in filing the appeal. Therefore, the Tribunal is of opinion that the respondent No. 2 has issued the order as per the rule. This is not a case of vindictiveness nor there is any illegality about the appellate order. 13. It was argued by learned Shri Vachcharajani that appellate has put up 35 years of service and was to retire shortly. Even if the Tribunal feels that the charges are proved, the quantum of punishment is very heavy as the charges in the present matter are of nature of administrative irregularity and not of moral turpitude. In this case, the depriving the appellant of his pension and making his family suffer life long is certainly a heavy punishment. Shri Pandya argued that the conduct of the appellant for which he has punished are of very serious nature. The deptt. has prescribed time limit in processing the application received the citizens for the simple reason that in such cases, sometime, some unscrupulous officers lay havoc with the people by not acting on their applications timely. They start acting on applications only when their palms are greased. It was a habit of the appellant not to take the applications on record. Senior officials could never know about the applications to ensure timely disposal. The conduct of the appellant is certainly suspicious. The disciplinary authority has considered this aspect before awarding the punishment. They start acting on applications only when their palms are greased. It was a habit of the appellant not to take the applications on record. Senior officials could never know about the applications to ensure timely disposal. The conduct of the appellant is certainly suspicious. The disciplinary authority has considered this aspect before awarding the punishment. The Tribunal after hearing the arguments of both the sides is of opinion that the disciplinary authority has taken a conscious decision on quantum of punishment as he felt that the guilt proved is of a very serious nature. The disciplinary authority is of pinion that this is not a question of administrative irregularity but a case of harassment to the citizens and most likely done by for ulterior motive. There is no other reasons to explain the conduct of the appellant. Once can understand if the appellant failed to take the applications received on record in one or two cases. It is in all the cases, he has flouted the official directives by not entering applications on record as and when they are received. The appellant has been punished for violation of Rule-3(1)(2) of Gujarat Civil Services Conduct Rules, 1971. Rule-3 says that an employee is considered to have committed misconduct if he shows lack of devotion to duty. What constitute lack of devotion of duty is not specified in the rule. However, in the explanatory note, it is mentioned that if a Govt. servant fails to discharge his duty within prescribed time limit and quality always, it would be considered as lack of devotion to duty. In this matter, the charge against the appellant was that he had shown consistently the tendency of not recording the applications of citizens and processing the same on time. Even though, there is no direct allegation of corruption, there is an element of suspicion of the conduct of the appellant as the charges as the charges have been proved. It is, therefore, not desirable to interfere with the decision of the disciplinary authority on quantum of punishment. 14. It is a case where the departmental inquiry has been held as per the procedure. The appellant was given reasonable opportunity to defend himself. The charges are proved. He had failed to respond to second show cause notice even with the extended time limit given to him. The order of appellate authority is legal. 14. It is a case where the departmental inquiry has been held as per the procedure. The appellant was given reasonable opportunity to defend himself. The charges are proved. He had failed to respond to second show cause notice even with the extended time limit given to him. The order of appellate authority is legal. The punishment awarded requires no interferences by the Tribunal." 19. In my view, all the relevant aspects have been taken care of by the Tribunal. No palpable error or any infirmity could be found in the impugned orders. The charges against the applicant were quite serious. 20. In view of the above, I see no good reason to interfere with the impugned orders in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. This application, therefore, fails, and is hereby rejected. Rule is discharged. 21. In view of the order passed in the main matter, the connected Civil Application is also disposed of.