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2016 DIGILAW 1353 (GUJ)

B. B. Chavda v. State of Gujarat

2016-07-18

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a former Government Servant, has prayed for the following reliefs; "(A) quash and set aside the impugned punishment order dated 9.9.2003, Annexure-A to this petition, and (B) direct the respondent authorities to continue the petitioner in service with all consequential benefits as if the impugned punishment order was not passed, and (C) award the cost of the petition, and (D) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant mandatory injunction against the further implementation and operation of the impugned punishment order dated 9.9.2003, Annexure-A to this petition, and/or (F) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant any other relief in the nature of interim relief and any other order in the nature of interim order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and/or (G) to pass such other and further orders as may be deemed just and proper in the facts and circumstances of the case." 2. The facts of this case may be summarized as under; 2.1 The petitioner had joined his services on 11.12.1973. In 1986, he was promoted as Industrial Promotion Officer, Class II. While he was discharging his services as an Officer of Class-II, he was given additional charge of Manager, Khadi which is a post of Class-I. His duties as Manager, Khadi, required him to distribute Aada looms and Ghoda looms to various Cooperative Societies. For distribution of these looms to various Co-operative Societies, various procedural requirements were set out in the department and after following those requirements, the person concerned was to distribute to the Co-operative Societies for the use of the looms. The norms were to be given to the Co-operative Societies, after sharing financial burden by the State. Therefore, it was scheduled to be distributed in a function which was attended by the Hon'ble Industries Minister which was only in ceremonial in character. The looms were distributed to the Co-operative Societies but while distributing the looms, the Officer i.e. the petitioner undertook supervision. Therefore, it was scheduled to be distributed in a function which was attended by the Hon'ble Industries Minister which was only in ceremonial in character. The looms were distributed to the Co-operative Societies but while distributing the looms, the Officer i.e. the petitioner undertook supervision. But the proper procedure as established by the Department was not followed. It resulted into a financial loss to the Department. Such providence took place while the petitioner was holding additional charge of the post of Manager, Khadi, though his substantive position was Industrial Promotion Officer, Class-II. In this background, a show cause notice was issued to the petitioner. 2.2 A departmental charge-sheet was issued, containing the following charges; "(a) As many as 1311 Aada looms and 502 Ghoda looms were sanctioned along with other equipments/tools to about 163 Handlooms Weavers' Co-operative Societies in Surendranagar District. The total cost of the looms and equipment tools amounted to Rs. 53.18 lakh and 75 percent of the amount i.e. Rs. 39.88 lakh was sanctioned. Instead of scrutinizing the proposal before sanctioning assistance, as laid down under the Government Resolution issued in this regard to the package scheme, as many as 1813 looms were sanctioned simultaneously (at a one go) in the last two days of the financial year i.e. on 30.3.1991. (b) Shri Chavada did not take precaution to spend Government money in accordance with financial discipline and propriety. (c) Before sanctioning such assistance, Shri Chavada should have or caused to have scrutinized the proposal as to the number of looms the Co-operatives had, the condition of the existing equipments, whether they were to be given to the new members or the old members, what kind of equipment assistance were sanctioned to the said Cooperative Societies from the District Industrial Center; whether utility period of the equipment provided earlier had come to an end, whether there was any convenient place to keep the handlooms. He should have or caused to have taken spot visit of the Co-operatives and then granted the administrative sanction. Instead, he took the decision to sanction the assistance in the last two days of the financial year. (d) Shri Chavada sanctioned 5 looms to some Cooperative Societies. Shri Chavada neither determined any norm nor any standard for getting 5 to 27 looms to Cooperative Societies others. It seems he sanctioned them only to serve his own purpose. Instead, he took the decision to sanction the assistance in the last two days of the financial year. (d) Shri Chavada sanctioned 5 looms to some Cooperative Societies. Shri Chavada neither determined any norm nor any standard for getting 5 to 27 looms to Cooperative Societies others. It seems he sanctioned them only to serve his own purpose. (e) 75 per cent assistance of the total cost of equipments/tools was sanctioned on the same day of granting administrative sanction for equipments to the Co-operative. No time was given to intimate the Cooperative Societies/members to prepare the looms. (f) No written requisition letter of intent was received from the Co-operative Societies as laid down in the Rules. (g) Proceedings were not carried out as per the instructions given in the Circular dated 14.7.1987. (h) Despite repeated instructions were sent for utilization and disbursement certificate regarding, after sanctioning financial assistance to the Co-operatives, he did not send certificate of disbursement made on 31.3.1991. When the Commissionerate inquired about the disbursement of 1813 looms, it was revealed that only 56 looms were prepared. Thus, at no stage was it ascertained that whether the weaving Co-operatives had actually prepared the looms or not. (i) In spite of there being instructions that the Manager (KVIC) should himself carry out investigation of the Cooperative Societies which had received assistance of more than Rs. 10,000/- Shri Chavada did not investigate himself though assistance of more than Rs. 10,000/- was paid to 148 Co-operative Societies. (j) In condition No. 10 of the order sanctioning assistance of Rs. 39.88 lakh by Shri Chavada, it has been mentioned that the Co-operative Societies will be allowed to withdraw the assistance only after the Weaving Supervisor carries out spot inspection and submit his opinion and issue the certificate. However, Shri Chavada allowed all the Co-operative Societies to withdraw the amount under his signature without obtaining the certificate." 2.3 The writ applicant filed his defence statement. An Inquiry Officer was appointed for the purpose of the departmental inquiry. The inquiry officer reached to the conclusion that the charges against the writ applicant were provisionally established. 2.4 The State Government, thereafter, considered the report of the inquiry officer and the other materials on record, and by the impugned order dated 9th September, 2003, removed the petitioner from the services. Hence, this writ application. 3. The inquiry officer reached to the conclusion that the charges against the writ applicant were provisionally established. 2.4 The State Government, thereafter, considered the report of the inquiry officer and the other materials on record, and by the impugned order dated 9th September, 2003, removed the petitioner from the services. Hence, this writ application. 3. It appears from the materials on record that this writ application was heard and adjudicated on 4th July, 2008. A learned Single Judge of this Court disposed of the writ application observing as under; "18. The learned counsel for the petitioner has submitted that the day from which the petitioner has been ordered to be dismissed, he is prepared to put an application that he should be permitted to voluntarily retire on that day that would save the Government any kind of embarrassment. The petitioner would not go back on service and the financial implication would also not put to a greater magnitude and the petitioner can be awarded the benefit of getting voluntarily retired from that date with pensionary benefits. This Court feels that it would not have been proper if this Court would have passed the order of punishment of voluntary retirement of the petitioner. Instead of going through the exercise of complete analysis of things and then pass a final order at their end it is better left to the State Government. If a punishment of voluntary retirement is given simpliciter, it would only entail the petitioner to retire and go home without pensionary benefits. It would be depriving the petitioner of his pensionary benefits. He has put in considerable period of services i.e. from 1973 at the disposal of the Government. Thus this Court feels that the Government may permit the petitioner to apply for voluntary retirement from the date he has been ordered and to give him retirement with pensionary benefits or make conversion of the punishment of dismissal into voluntary retirement but then that should also be coupled with appropriate pensionary benefits. Either of these two course may be adopted by the Government. With the aforesaid observation, the matter is remitted to the Government for appropriate decision. 19. The other questions of judging the merits of the inquiry are not gone into in view of the question of punishment alone having been considered in light of the offer made by the petitioner himself. 20. With the aforesaid observation, the matter is remitted to the Government for appropriate decision. 19. The other questions of judging the merits of the inquiry are not gone into in view of the question of punishment alone having been considered in light of the offer made by the petitioner himself. 20. In the result, the writ petition is disposed of with the direction that the Government may permit the petitioner to make an application to retire him voluntarily and accord pensionary benefits or may alter the sentence awarded to him in a sentence of a voluntary retirement with pensionary benefits. For this, the order passed in Inquiry will be treated to be non-existent. Rule is made absolute accordingly." 4. The State of Gujarat, being dissatisfied with the order passed by the learned Single Judge referred to above, preferred the Letters Patent Appeal No. 1177 of 2009. The letters patent appeal came to be disposed of by a Division Bench holding as under; "3. In our view, learned Single Judge has not considered the matter on merits and has substituted the penalty of removal into voluntary retirement. In our view, the matter requires reconsideration by learned Single Judge on all counts. With the consensus of the parties, the matter is remanded to learned Single Judge for reconsideration. While reconsidering the matter, learned Single Judge will not be influenced by the observations made by this Court and learned Single Judge will examine the matter independently. In that view of the matter, the order of the learned Single Judge is quashed and set aside and the matter is remanded to learned Single Judge for reconsideration. The matter is of 2000 and if a request is made for expeditious hearing, learned Single Judge will consider the request and hear the matter as expeditiously as possible. 4. In the result, the appeal stands disposed of with the above observations." 5. In view of the order passed by the Division Bench, the matter has been placed again for hearing. 6. Mr. Vyas, the learned advocate appearing for the writ applicant vehemently submitted that the whole procedure of the inquiry was in gross violation of the principles of natural justice. There was gross delay not only in initiating the inquiry, but also in concluding the inquiry. 6. Mr. Vyas, the learned advocate appearing for the writ applicant vehemently submitted that the whole procedure of the inquiry was in gross violation of the principles of natural justice. There was gross delay not only in initiating the inquiry, but also in concluding the inquiry. He submitted that for the alleged act of misconduct, said to have been committed in the year 1991, the charge-sheet was issued on 14th September, 1993. The inquiry concluded with the report dated 20th October, 1997 and the impugned order of removal was passed on 9th September, 2003. According to Mr. Vyas, it took almost one decade for the Government to complete the inquiry. 7. Mr. Vyas further submitted that the inquiry was conducted in a very unusual manner. The Inquiry Officer shifted the burden of disproving the charges on the shoulders of the petitioner instead of asking the Government to prove its case against the delinquent. Mr. Vyas submitted that having regard to the materials on record, no prudent person could have reached to the conclusion arrived at by the Disciplinary Authority. He further pointed out that the Minister for State, as the Disciplinary Authority, had passed an order dated 29th September, 2001, recommending withholding of one increment for one year without future effect as the punishment. While recommending such punishment, the opinion of the Commissioner of Cottage Industries, as the Head of the Department, was also taken into consideration. He pointed out that, however, the Secretary did not agree to such suggestion of the Minister for State. The Secretary put up a note that in the facts of the case, major penalty of dismissal or removal from the service was warranted. In such circumstances, since there was a conflict between the opinions of the Minister for State and the Secretary of the Department, the file was ultimately put up before the Chief Minister, and the Chief Minister proposed the punishment of removal. He further submitted that certain documents were also asked for and were not supplied, causing serious prejudice to the defence of his client. In such circumstances referred to above, he prays that there being merit in this writ application, the same may be allowed and the impugned order be quashed. 8. On the other hand, this writ application has been vehemently opposed by the learned AGP appearing for the State. In such circumstances referred to above, he prays that there being merit in this writ application, the same may be allowed and the impugned order be quashed. 8. On the other hand, this writ application has been vehemently opposed by the learned AGP appearing for the State. The learned AGP contended that no error not to speak of any error of law could be said to have been committed by the Government in passing the impugned order. He submitted that the inquiry was conducted in a fair and transparent manner and inconsonance with the principles of natural justice. He submitted that this Court, exercising jurisdiction under Article 226 of the Constitution of India, should be slow in interfering in this type of proceedings which are quasi judicial in nature. Serious charges have been leveled against the petitioner and which have been found to be established by the Inquiry Officer. He submitted that a sum of Rs. 39.88 Lac was distributed to the 163 Co-operative Societies in the form of wooden looms and ghoda looms Within two days, the entire exercise was completed without the proper scrutiny or the physical verification in that regard. 9. He further pointed out that the preliminary inquiry preceded a detailed inquiry. Two teams were asked to investigate the affairs. The Vigilance Commission was also consulted before the issue of the departmental charge-sheet. 10. He pointed out that all the documents, as demanded by the writ applicant, were furnished. 11. In such circumstances referred to above, the learned AGP prays that there being no merit in this writ application, the same be rejected. 12. 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 Government committed any error in passing the impugned order, removing the writ applicant from the service. 13. It appears from the materials on record that the Commissioner of Cottage Industries has stated that considering the facts and circumstances of the case, at best, it could be said to be a case of procedural lapse. It also appears from the materials on record that the writ applicant was appointed on 1st December, 1990 as the Manager and took charge on 5th December, 1990. By that time, the procedure for giving assistance to the 163 Weaving Co-operative Societies was already processed by his predecessor in office. It also appears from the materials on record that the writ applicant was appointed on 1st December, 1990 as the Manager and took charge on 5th December, 1990. By that time, the procedure for giving assistance to the 163 Weaving Co-operative Societies was already processed by his predecessor in office. Incidentally, the finances were released by the State Government on the last day of the financial year, which compels the officer concerned to make all efforts to see that the budget is exhausted before the same gets lapsed. 14. I find some merit in the submission of Mr. Vyas that in the process to expedite the certain things, if there were any procedural lapses, the same, by itself, did not warrant imposition of the major penalty. 15. It also appears that the process of scrutiny had already begun. The petitioner was a Class-II Officer holding the charge of Class-I. The distribution of process of the weaving looms was to be executed in the presence of the Minister for Industries. It was video-graphed and within the public view. 16. What has weighed with me is the opinion of the Commissioner of Cottage Industries, which is on the record. It goes to show that he had considered the delinquency only to the extent of a procedural lapse. 17. Considering the report of the Commissioner of Cottage Industries, if the Minister for State proposed one punishment, then in my view, there was no valid justification for the Secretary (Industry) to disagree with the same and put the file before the Chief Minister. I do not propose to say for a moment that the opinion of the Secretary should not weigh but on one hand there was a recommendation to impose a minor penalty and on the other hand a major penalty. 18. It also appears that the other delinquent officers who were co-workers of the writ applicant in executing the distribution of the loan in question, were treated altogether differently. Some of those officers were not subjected to any departmental inquiry and were permitted to retire. Those, who were subjected to the departmental inquiry, were visited with very minor penalty. 19. At the cost of repetition, I state that the distribution of the handlooms was made at the hands of the concerned Minister as a part of the Government Function. The funds were allocated on the last day. Those, who were subjected to the departmental inquiry, were visited with very minor penalty. 19. At the cost of repetition, I state that the distribution of the handlooms was made at the hands of the concerned Minister as a part of the Government Function. The funds were allocated on the last day. The officials were under the tremendous pressure to complete the funding within the required time. A bout of exercise had already been taken place when the delinquent officer was appointed as the Class-I with the temporary charge of the Manager, Khadi. In such circumstances, if there were certain lapses, in my view, the same should not have warranted the maximum penalty of removal from the service. 20. In Om Kumar v. Union of India, AIR 2000 SC 3689 , the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham's case (supra), noticed the decision of the House of Lords in R. v. Chief Constable of Sussescex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29, 66 to 71 of this judgment which theortises the law on the subject are reproduced below: "28. By 'proportionality' we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties, or interests of persons keeping in mind the purpose which they were intended to serve. The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality." "29. The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality." "29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were 'necessary' - within Arts. 8 to 11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK(1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art. 14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp. 677-866)." 66. It is clear from the above discussion that in India where administrative action is challenged under Art. 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority." 67. But where, an administrative action is challenged as 'arbitrary' under Art. 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council, (1991) 3 SCC 91 at p. 111 :( AIR 1991 SC 1153 at. 1165), Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the Administrator under Art. 14 in the context of Administrative Law has to be judged from the stand point of Wednesbury rules. In Tata Cellular V. Union of India, (1994) 6 SCC 651 at Pp. 679-680: (1994 AIR SCW 3344 and at Pp. 3369-70: AIR 1996 SC 11 ); Indian Express Newspapers v. Union of India, (1985) 1 SCC 641 at p.691 : (AIR 1986 SC 515 at Pp. 542-43): Supreme Court Employees' Welfare Association V. Union of India, (1989) 4 SCC 187 at p.241 : ( AIR 1990 SC 334 at p.368: 1990 Lab IC 324 at p.358) and U.P. Financial Corporation V. GEM CAP (India) Pvt. Ltd., (1993) 2 SCC 299 , at p. 307: (1993 SC 1435 at p.1439), while judging whether the administrative action is arbitrary' under Art. 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always." 71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary under Art. 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art. 4 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. Only in rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment." In Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605 , the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under: The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go in to the decision-making process while considering whether the punishment is proportionate or disproportionate of the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) In Director General, RPF V. Ch. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) In Director General, RPF V. Ch. Sai Babu, (2003) 4 SCC 331 , the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed: Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works." 21. The above noted decisions give a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose a particular penalty on the delinquent employee. The Supreme Court as well as this Court has repeatedly emphasised that the Court should not exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the Disciplinary Authority. The Supreme Court in the case of Om Kumar v. Union of India (supra) has taken the view that the Court, while reviewing punishment, if it is satisfied that the Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in extreme and rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, can the court substitute its own view as to the quantum of punishment. 22. In the result, this application is allowed in part. The matter is remitted to the State Government to consider and take a fresh decision as regards the quantum of punishment. 22. In the result, this application is allowed in part. The matter is remitted to the State Government to consider and take a fresh decision as regards the quantum of punishment. I expect the authority concerned to look into the issue as regards the quantum of punishment and take an appropriate decision in that regard within a period of three months from the date of the receipt of the writ of the order. While taking fresh decision as regards the quantum of punishment, the Government shall also look into the service record of the writ applicant. 23. If the writ applicant is dissatisfied in any manner with the fresh decision of the State Government, it shall be open for him to seek appropriate legal remedy before the appropriate forum in accordance with law. 24. With the above observations and directions, this writ application is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.