Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 181 (GUJ)

A. N. Darji v. State of Gujarat

2016-01-25

ABHILASHA KUMARI

body2016
JUDGMENT: Abhilasha Kumari, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner (since deceased, now represented by his heirs) has assailed the order dated 30.08.2002, passed by respondent No. 1, whereby, the penalty of reduction of pension of Rs. 300/- per month for a period of four years has been imposed upon him. 2. The brief facts of the case are that the petitioner was serving as a Deputy Mamlatdar and retired as such, on 30.11.1999, on superannuation. A Chargesheet dated 04.11.1997 was issued to the petitioner, for holding a Departmental Inquiry in respect of one Article of Charge. The charge against the petitioner was to the effect that while he was serving as Deputy Mamlatdar at Shehra, he had signed Challans for the payment of money in order to give permits to get food-grains, as per the requests made by five shopkeepers. The petitioner denied that the signatures on the Challans were put by him. However, on the opinion of the Chief Handwriting Expert, it was established that the signatures were that of the petitioner. An Inquiry Officer was appointed to hold a Departmental Inquiry. The Charge against the petitioner was found to be partly-proved. Respondent No. 2 - Collector, Panchmahals District, issued a Show Cause Notice dated 14/17.07.2000, to the petitioner, calling upon him to show cause as to why any of the penalties specified in Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 ("the Rules"), should not be imposed upon him. The petitioner replied to the Show Cause Notice on 27.07.2000. After considering the reply of the petitioner, respondent No. 2 imposed the penalty of reduction in pension by Rs. 200/- per month, for a period of two years, vide his order dated 17.01.2001. The above order was challenged by the petitioner before the Gujarat Civil Services Tribunal ("the Tribunal") by filing Appeal No. 28 of 2001. The Tribunal, vide its order dated 22.03.2001, quashed and set aside the impugned order passed by respondent No. 2, on the ground that the said respondent had no authority to order a cut in pension in the case of the petitioner. It was further observed in the said order that it would be open for the Competent Authority to proceed in the matter as per law. It was further observed in the said order that it would be open for the Competent Authority to proceed in the matter as per law. Pursuant thereto, the State Government, by the impugned order dated 30.08.2002, proceeded to impose the penalty of reduction in pension by Rs. 300/- per month, for a period of four years, upon the petitioner. Aggrieved thereby, the petitioner has approached this Court. 3. Mr. A.S. Supehia, learned counsel for the petitioner, has submitted that the impugned order dated 30.08.2002, passed by the State Government, enhancing the penalty initially imposed upon the petitioner, is illegal and unsustainable in law. The petitioner has not been issued any Show Cause Notice to appear before the Competent Authority after the earlier order of penalty was quashed and set aside by the Tribunal. It is submitted that it was incumbent upon the State Government to have called upon the petitioner after the order of the Tribunal was passed, so that the matter could have proceeded in accordance with law. However, instead of doing so, the impugned order has been passed straight away, by considering the reply to the Show Cause Notice given by the petitioner prior to the passing of the Tribunal's order. It is contended that the penalty imposed upon the petitioner has been enhanced without hearing him, rendering the procedure adopted by respondent No. 1 illegal and violative of the principles of natural justice. Hence, the impugned order deserves to be quashed and set aside. 4. It is further submitted that the impugned order has been passed on the basis of the opinion of the Handwriting Expert. As per sub-rule 13 of Rule 9 of the Rules, the petitioner ought to have been granted an opportunity to cross-examine the Handwriting Expert. Such opportunity has not been granted to the petitioner. This averment has been categorically made in the petition and has not denied in the affidavit-in-reply filed by the respondents. On this ground as well, the impugned order deserves to be set aside. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in M.V. Bijlani v. Union of India And Others, (2006) 5 SCC 88 . 5. Mr. On this ground as well, the impugned order deserves to be set aside. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in M.V. Bijlani v. Union of India And Others, (2006) 5 SCC 88 . 5. Mr. Janak Raval, learned Assistant Government Pleader, has submitted that before passing the impugned order, the reply to the Show Cause Notice issued to the petitioner before the order of the Tribunal was passed, has been taken into consideration. It cannot, therefore, be said that the petitioner has not been granted an opportunity of hearing. The petitioner has appeared before the Competent Authority and has been heard. After considering the entire material on record, the order of penalty has been made. It is urged that the petition be rejected. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the other documents on record. 7. The pivotal point on which the decision of the petition would depend is the adjudication of the first contention raised by learned counsel for the petitioner, namely, whether the State Government could have passed the impugned order of enhanced penalty after the earlier order was quashed and set aside by the Tribunal, without issuing a Show Cause Notice to the petitioner, or granting him an opportunity of hearing. 8. It is an admitted position that initially, respondent No. 2 had passed an order imposing the penalty of reduction in pension of Rs. 200/- per month for two years. This order was challenged before the Tribunal by the petitioner on the ground that respondent No. 2 was not competent to pass an order of penalty, whereby the pension of the petitioner was reduced. The Tribunal accepted this contention and held that respondent No. 2 was not competent to pass an order directing a cut in pension, in the case of the petitioner, who had already retired from service. On this ground alone, the said order was quashed and set aside and the respondents were directed to proceed in the matter as per law. 9. At this stage, it became obligatory for the respondents to have issued a Show Cause Notice to the petitioner, as the earlier order of penalty had been quashed and set aside by the Tribunal. On this ground alone, the said order was quashed and set aside and the respondents were directed to proceed in the matter as per law. 9. At this stage, it became obligatory for the respondents to have issued a Show Cause Notice to the petitioner, as the earlier order of penalty had been quashed and set aside by the Tribunal. Without doing so and without calling upon the petitioner or granting him any opportunity of hearing, respondent No. 1 passed the impugned order dated 30.08.2002, imposing the enhanced penalty of reduction in pension by Rs. 300/- per month, for a period of four years. It is clear from the impugned order, itself, that only the reply dated 27.07.2000, given by the petitioner to the earlier Show Cause Notice has been considered. This reply was in the context of the earlier penalty, which order was set aside. No Show Cause Notice has been issued to the petitioner after the Tribunal quashed the earlier order of penalty. It is an undisputed position that before enhancing the penalty, the petitioner was neither heard nor granted an opportunity to defend himself. 10. It is now an ingrained and settled position of law that no order imposing a punishment can be passed against an employee, without first issuing a Show Cause Notice and granting him a full and adequate opportunity of hearing, especially when the Competent Authority is desirous of enhancing the punishment that had earlier been imposed. The action of the respondents in denying such opportunity to the petitioner constitutes a serious violation of the principles of natural justice and is liable to be quashed and set aside on this ground alone. 11. Insofar as the second contention raised by learned counsel for the petitioner is concerned, sub-rule 13 of Rule 9 of the Rules, provides for an opportunity of cross-examination of the witnesses. There is no rebuttal of the statement made by the petitioner in Paragraph-12 of the petition that the petitioner was not granted an opportunity to cross-examine the Chief Handwriting Expert. This ground gains more relevance as, by the impugned order, respondent No. 1 has enhanced the penalty, based upon the opinion of the Handwriting Expert who has not been examined by the petitioner. 12. The petitioner is no longer alive, having passed away on 18.09.2005. This ground gains more relevance as, by the impugned order, respondent No. 1 has enhanced the penalty, based upon the opinion of the Handwriting Expert who has not been examined by the petitioner. 12. The petitioner is no longer alive, having passed away on 18.09.2005. Under the circumstances, there can be no question of remitting the matter to the Competent Authority. In a similar situation, in Punjab National Bank v. Kunj Behari Misra - (1998) 7 SCC 84 , the Supreme Court had issued the following directions: "21. Both the respondents superannuated on 31.12.1983. During the pendency of these appeals, Misra died on 06.01.1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals, we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs." 13. In view of the above factual and legal position, this Court considers it just and proper to pass the following order: The petition is allowed. The impugned order dated 30.08.2002, passed by respondent No. 1, is hereby quashed and set aside. All consequential benefits, if any, accruing to the petitioner as a result of this order be paid to his legal heirs and representatives within two months from the date of the receipt of a copy of this judgment. 14. Rule is made absolute. There shall be no orders as to costs.