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2016 DIGILAW 166 (GUJ)

R. R. Kacha v. State of Gujarat

2016-01-21

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to quash and set aside the order dated 01.11.2008, passed by respondent No.1 State Government, whereby the penalty of dismissal from service has been imposed upon the petitioner. The petitioner has also challenged the order dated 14.09.2009, passed by respondent No.1, whereby the Revision Petition preferred by the petitioner has been rejected. 2. Briefly stated, the relevant facts of the case are that the petitioner was appointed on the post of Sales Tax Officer (Class-II) as a direct recruit and joined service on 15.01.1990. Thereafter, the petitioner was promoted to the post of Sales Tax Officer (Class-I), vide promotion order dated 19.11.1998. A chargesheet was issued to the petitioner on 26.11.2002, alleging misconduct for the period from 15.09.1995 to 19.11.1998, while the petitioner was working as Sales Tax Officer (Class-II), Unit-II, Junagadh. The petitioner responded to the chargesheet by filing his defence statement on 11.06.2003. An Inquiry Officer was appointed, who submitted his Report dated 26.05.2006, holding that the charges levelled against the petitioner were partly proved. 2.1 A copy of the Inquiry Report was forwarded to the petitioner by the Disciplinary Authority, with its concurrence vide communication dated 14.06.2006. The petitioner made a detailed representation against the report of the Inquiry Officer to the Disciplinary Authority vide representation dated 28.08.2006. The State Government proposed to impose the penalty of reduction of pay by three stages for one year without future effect upon the petitioner and sought the advise of the Gujarat Public Service Commission (“GPSC”, for short) in this regard, on 13.07.2007. The GPSC did not concur with the proposed punishment and recommended the penalty of dismissal from service, by its communication dated 16.04.2008. Thereafter, the State Government passed the impugned order dismissing the petitioner from service, on 01.11.2008. The Review Petition of the petitioner against the said order came to be rejected by the impugned order dated 14.09.2009. Aggrieved by the aforementioned orders, the petitioner has approached this Court by preferring the present petition. 3. Mr. Thereafter, the State Government passed the impugned order dismissing the petitioner from service, on 01.11.2008. The Review Petition of the petitioner against the said order came to be rejected by the impugned order dated 14.09.2009. Aggrieved by the aforementioned orders, the petitioner has approached this Court by preferring the present petition. 3. Mr. Vaibhav A. Vyas, learned counsel for the petitioner has made only one submission, which is to the effect that, before implementing the advise of the GPSC and passing an order dismissing the petitioner from service, the State Government has not granted the petitioner an opportunity of hearing, which it is obliged to do as per law. It is submitted that a gross violation of the principles of natural justice has occurred due to the action of the State Government in depriving the petitioner of an opportunity to represent against the advise of the GPSC, before passing the final order of penalty. Learned counsel for the petitioner has submitted that this aspect has now been settled by various judgments of the Supreme Court and this Court, wherein it has been held that if the authorities consult the Union or the State Public Service Commission, as the case may be, and rely on its report for taking disciplinary action, then a copy of such report must be supplied, in advance, to the employee concerned, otherwise it would amount to a violation of the principles of natural justice. 3.1 Learned counsel for the petitioner has placed reliance upon the judgments of the Supreme Court in S.N. Narula Vs. Union of India and others, reported in (2011) 4 SCC 591 and Union of India and others Vs. S.K. Kapoor, reported in (2011) 4 SCC 589 . Reliance has also been placed upon a judgment of this Court in B.J. Jadav Vs. State of Gujarat, reported in 2005 (2) GLH 334 . 3.2 On the basis of the above, it is submitted that the impugned order of the dismissal be quashed and set aside. 4. Ms. V.S. Pathak, learned Assistant Government Pleader appearing for respondents Nos.1 and 2, has made submissions along the lines of the affidavit-in-reply filed by the State Government. Referring to paragraph-6 of the said affidavit, it is submitted that the petitioner had preferred a Revision Petition against the order of penalty and was heard before the order was passed in the Review Petition. Referring to paragraph-6 of the said affidavit, it is submitted that the petitioner had preferred a Revision Petition against the order of penalty and was heard before the order was passed in the Review Petition. It cannot, therefore, be said that the petitioner has not been granted an opportunity of hearing with regard to the penalty of dismissal. Learned Assistant Government Pleader has referred extensively to the affidavit-in-reply filed on behalf of the respondent-State of Gujarat wherein the above stand is taken. 5. Mr. Premal R. Joshi, learned advocate for respondent No.3 GPSC has submitted that the GPSC has forwarded its advise, as requested by the State Government. The procedure, thereafter, was to be followed by the State Government. The GPSC would have no role to play after giving its report. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the affidavit-in-reply and other documents on record. 7. It is an accepted position that after the Inquiry Report was submitted, the State Government had proposed that the penalty of reduction of pay by three stages for one year without future effect, be imposed upon the petitioner. The proposal for this penalty was sent by the State Government to the GPSC on 13.07.2007, seeking its advise. The GPSC, vide communication dated 16.04.2008, did not agree with the proposed punishment and recommended the penalty of dismissal from service. It is not disputed that the State Government, thereafter, straight away proceeded to pass the impugned order dismissing the petitioner from service, on 01.11.2008. The State Government did not forward a copy of the recommendation of the GPSC to the petitioner before passing the order of dismissal. Neither did it grant the petitioner any opportunity of hearing before the said order was passed. This state of affairs is evident from the averments made in paragraph-16 of the affidavit-in-reply filed by the State Government, wherein it is stated that a copy of the letter/advise of the GPSC dated 16.04.2008 was supplied to the petitioner along with the copy of the penalty order dated 01.11.2008. 8. It is at this stage that the flaw has crept into the procedure followed by the State Government, which has resulted in the violation of the principles of natural justice and caused severe prejudice to the petitioner. 9. 8. It is at this stage that the flaw has crept into the procedure followed by the State Government, which has resulted in the violation of the principles of natural justice and caused severe prejudice to the petitioner. 9. The settled position of law in this regard is reflected in the two judgments of the Supreme Court and one of this Court, relied upon by learned counsel for the petitioner, which may now be referred to. 10. In S.N. Narula Vs. Union of India and others (Supra), the Supreme Court has held as below : “3. It is to be noticed that the advisory opinion of the Union Public Service Commission was not communicated to the appellant before he was heard by the disciplinary authority. The same was communicated to the appellant along with final order passed in the matter by the disciplinary authority. 4. The appellant filed OA No. 1154 of 2002 before the Central Administrative Tribunal, New Delhi and the Tribunal held that there was violation of the principles of natural justice and the following direction was issued : “We are of the considered opinion that this order is a non-speaking one and as such we are of the view that the same cannot be sustained and is liable to be quashed. Accordingly, we quash the impugned order and remand the case back to the disciplinary authority to pass a detailed reasoned and speaking order within a period of 3 months from the date of receipt of a copy of this order in accordance with instructions and law on the subject.” 5. This order was challenged by the Union of India by way of writ petition before the High Court of Delhi and by the impugned judgment the High Court interfered with that order. The writ petition was partly allowed and it was directed that the matter be again considered by the Tribunal. Against that order the appellant has come up in appeal by way of special leave petition. 6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed. 7. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed. 7. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in para 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter.” 11. In Union of India and others Vs. S.K. Kapoor (Supra), the Supreme Court has reiterated this position of law in the following manner : “5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the chargesheeted employee so that he may have a chance to rebut the same. 6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the report of the Union Public Service Commission was supplied to the respondent employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India v. T.V. Patel. We do not agree. 7. In the aforesaid decision, it has been observed in para 25 that “the provisions of Article 320(3)(c) of the Constitution of India are not mandatory”. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel case is clearly distinguishable. 8. Thus, in our view, the aforesaid decision in T.V. Patel case is clearly distinguishable. 8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v. Union of India.” (emphasis supplied) 12. In B.J. Jadav Vs. State of Gujarat (Supra), this Court had occasion to deal with a similar issue and arrived at the following conclusion : “21. As mentioned above, the Government had initially proposed the punishment of reverting the petitioner to the lower post for a period of two years which punishment was enhanced upon acceptance of the advice of the GPSC. The prejudice to the petitioner by non-supply of the copy of the GPSC advice is writ large on the face of the record. The impugned order of punishment, therefore, shall have to be quashed and set aside.” (emphasis supplied) 13. A similar situation prevails in the present case where the proposed penalty has been enhanced after consultation with the GPSC and a copy of the recommendation of the GPSC in this regard has not been supplied to the petitioner. 14. From the principles of law enunciated by the Supreme Court and this Court in the above quoted judgments, it is clear that if the State Government intended to rely upon the advise of the GPSC, it was incumbent upon it to supply a copy of the said advise to the petitioner and grant him a full and adequate opportunity of hearing before passing the order of penalty. By not doing so, the State Government has caused immense prejudice to the petitioner apart from committing a gross violation of the principles of natural justice. This aspect becomes even more grave as it is the very livelihood of the petitioner that is affected. 15. Learned Assistant Government Pleader has submitted that the petitioner was granted an opportunity of hearing throughout the course of the inquiry, as stated in the affidavit-in-reply. 16. This aspect becomes even more grave as it is the very livelihood of the petitioner that is affected. 15. Learned Assistant Government Pleader has submitted that the petitioner was granted an opportunity of hearing throughout the course of the inquiry, as stated in the affidavit-in-reply. 16. The respondents seem to have missed the vital point being canvassed by the petitioner. It may be kept in mind that the stage prior to implementing the advise of the GPSC regarding the enhanced penalty is not relevant in this matter. Moreover, it is not the case of the petitioner that he was not granted an opportunity of hearing during the course of the inquiry. The only submission advanced on behalf of the petitioner is regarding the failure of the State Government in supplying a copy of the advise of the GPSC to the petitioner and granting him an opportunity of hearing before imposing the penalty of dismissal from service as per the said recommendation of the GPSC. The petitioner has been deprived of an opportunity of representing his case with regard to the enhanced penalty. The affidavit-in-reply does not deal with this contention at all. Merely because the petitioner was heard in the Review Petition filed by him against the order of dismissal, would not cure the defect that has taken place at a stage prior thereto. 17. Taking into consideration the admitted facts of the case and the settled position of law, this Court has no hesitation in arriving at the conclusion that the impugned order passed by respondent No.1 dated 01.11.2008, as well as the impugned order dated 14.09.2009, passed in the Review Petition, are unsustainable in law and deserve to be quashed and set aside. 18. Accordingly, both the abovementioned orders are hereby quashed and set aside. The matter is remanded to the Competent Authority with a direction to grant a full and adequate opportunity of hearing to the petitioner regarding the recommendation of the GPSC and, thereafter, pass an appropriate order, in accordance with law. The needful shall be done within a period of four months from the date of the receipt of a copy of this order. 19. The petition is partly allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. 20. The needful shall be done within a period of four months from the date of the receipt of a copy of this order. 19. The petition is partly allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. 20. It is clarified that while passing this order, the Court has only dealt with the legal contention raised by learned counsel for the petitioner regarding the lack of opportunity of hearing before the passing of the impugned order of dismissal, upon the advise of the GPSC. All the other contentions raised by the petitioner have not been entered into and would remain open.