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2016 DIGILAW 440 (GUJ)

M. S. Jogia v. State of Gujarat

2016-02-23

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this petition, the petitioner has prayed that the order dated 10.2.2000 passed by respondent No. 2 whereby the punishment of cut of Rs. 500/- from the monthly pension of the petitioner was inflicted be quashed and set aside. It is also prayed that the disciplinary proceedings pursuant to the chargesheet issued on 31.12.1993 be quashed and set aside. 2. Heard learned advocate Mr. Rana for the petitioner and learned AGP Mr. Goutam for the respondents. 3. Learned advocate Mr. Rana submitted that the petitioner was working as DEO, Rajkot. On 31.12.1993 i.e. on the date of his superannuation after completing 36 years of service, the chargesheet was issued to the petitioner. Learned advocate referred to the memo of the charges which is produced at Annexure 'A' with the compilation. Nine charges were levelled against the petitioner. After the receipt of the chargesheet, the petitioner submitted his statement of defence on 18.2.1994. The government decided to conduct the detailed inquiry into the matter and inquiry officer was appointed for conducting the said inquiry. After the inquiry was concluded, the inquiry officer submitted his report wherein he has held that out of the nine charges levelled against the petitioner, the charge Nos. 1, 2 and 3 were partly proved, charge Nos. 4 to 7 were proved whereas charge Nos. 8 and 9 were not proved against the petitioner. The disciplinary authority on 9.1.1997 issued the show cause notice and the petitioner was asked to show cause why punishment prescribed under Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as 'the Rules of 1971') may not be imposed on him. It is submitted by the learned advocate for the petitioner that hearing was given by the disciplinary authority who issued the notice in April, 1997. However, the impugned order was passed on 10.2.2000 by another disciplinary authority whereby the punishment of cut in pension of Rs. 500/- from the monthly pension of the petitioner was imposed. The petitioner has therefore preferred this petition. 4. Learned advocate Mr. Rana appearing for the petitioner has challenged the impugned decision mainly on the following grounds: "a) That the disciplinary authority nominated one Mr. P.V. Patel as investigator for holding preliminary inquiry against the petitioner and consequently said Mr. 500/- from the monthly pension of the petitioner was imposed. The petitioner has therefore preferred this petition. 4. Learned advocate Mr. Rana appearing for the petitioner has challenged the impugned decision mainly on the following grounds: "a) That the disciplinary authority nominated one Mr. P.V. Patel as investigator for holding preliminary inquiry against the petitioner and consequently said Mr. P.V. Patel had been appointed as presenting officer during departmental inquiry for presenting the case of the department before the inquiry officer. It is submitted by him that when the petitioner was serving as DEO at Mehsana in the year 1988-89, elder sister of Joint Director Mr. P.V. Patel was serving as Education Inspector under the petitioner. Mr. Patel addressed a note in the year 1988 to the petitioner for her transfer from Mehsana to Patan as Mr. Patel belongs to Patan. The petitioner, at that time, refused such request. Thus, Mr. Patel was having grudge and bias against the petitioner and therefore respondent-authority could not have appointed him as Presenting Officer in the departmental inquiry. He, therefore, submitted that the inquiry proceedings are vitiated on the ground of bias. Hence, the impugned order be quashed and set aside. b) Learned advocate Mr. Rana submitted that from the allegations levelled against the petitioner in the chargesheet, it cannot be said that because of the illegality or irregularity committed by the petitioner, the government has suffered any financial loss. Thus, when no financial loss was caused to the government, punishment of cut of Rs. 500/- from the monthly pension of the petitioner cannot be imposed in view of the provision contained in Rule 189(A) of Bombay Civil Services Rules (BCSR). c) Learned advocate Mr. Rana thereafter contended that second show cause notice dated 9.1.1997 was issued to the petitioner without proper application of mind. The petitioner was a retired government servant when the second show cause notice was issued. In the said show cause notice, the disciplinary authority asked the petitioner to show cause why the punishment under Rule 6 of the Rules of 1971 should not be imposed on him. At this stage, he submitted that the punishment under Rule 6 of the aforesaid rules can be imposed on a government servant who is in service of the government whereas the petitioner has attained the age of superannuation and was retired from service on 31.12.1993. At this stage, he submitted that the punishment under Rule 6 of the aforesaid rules can be imposed on a government servant who is in service of the government whereas the petitioner has attained the age of superannuation and was retired from service on 31.12.1993. Therefore, in January, 1997 when the second show cause notice was issued by the disciplinary authority, he could not have relied upon Rule 6 of the Rules of 1971 and only punishment of cut in the pension can be imposed on a retired government employee. The petitioner was put under dilemma because of the issuance of such type of show cause notice. Thus, on the ground of non-application of mind on the part of the disciplinary authority and on the ground of not giving reasonable opportunity to address on the question of punishment, the impugned order be quashed and set aside. In support of the aforesaid contention, learned advocate Mr. Rana has placed reliance upon the following decisions: (1) State of Uttar Pradesh V/s Shri Brahm Datt Sharma and another, reported in AIR 1987 SC 943 . (2) State of W.B. V/s Haresh C Banerjee and others, reported in (2006) 7 SCC 651 . (3) State of U.P. And others V/s Harihar Bholenath, reported in (2006)13 SCC 460. d) Learned counsel for the petitioner thereafter contended that the second show cause dated 9.1.1997 was issued by the disciplinary authority namely Mr. R.D. Pandore. The hearing was also given by the said disciplinary authority to the petitioner in April, 1997. However, the said disciplinary authority Mr. Pandore had not passed any order of punishment against the petitioner. The impugned order was passed by another disciplinary authority namely Mr. S.S. Damor. The said disciplinary authority namely Mr. Damor has not given any opportunity of hearing to the petitioner and he passed the impugned order in February, 2000. Thus, it is contended that notice and hearing was given by one disciplinary authority whereas the order was passed by another disciplinary authority and disciplinary authority which has passed the order has not given the notice or opportunity of hearing to the petitioner. Thus, on this ground, the impugned order be quashed and set aside. In support of the aforesaid contention, learned advocate Mr. Thus, on this ground, the impugned order be quashed and set aside. In support of the aforesaid contention, learned advocate Mr. Rana has placed reliance upon the following decisions: (1) Order dated 8.10.1976 passed by this Court in Special Civil Application No. 1194 of 1976; (2) Union of India and others V/s Shiv Raj and others, reported in (2014)6 SCC 564 . (3) Order dated 17.9.2013 passed in Second Appeal No. 224 of 1989. e) Learned advocate for the petitioner thereafter submitted that the impugned order passed by the disciplinary authority is a non-speaking order and no reasons are assigned by the said authority for imposing penalty of cut of pension of Rs. 500/- from monthly pension of the petitioner. He, therefore, submitted that on this ground also, the impugned order be quashed and set aside. f) Lastly, learned advocate Mr. Rana submitted that though there was no evidence against the petitioner during the course of disciplinary proceedings, the inquiry officer has wrongly held that certain charges levelled against the petitioner are proved and others are partly proved and relying upon the said report, the disciplinary authority has passed the impugned order and therefore the impugned order be quashed and set aside." 5. On the other hand, learned AGP Mr. Goutam submitted that the petitioner was superannuated on 31.12.1993. However, on the same day, the chargesheet came to be issued to the petitioner and disciplinary inquiry was instituted which was pending at the time of his retirement. Therefore, as per Rule 189(A) of BCSR, such inquiry can be concluded against the petitioner and if he is found guilty, the punishment can be imposed on him. From the inquiry report, learned AGP submitted that most of the charges levelled against the petitioner are proved or partly proved during the course of inquiry. The inquiry officer has therefore submitted his report to the disciplinary authority and disciplinary authority thereafter issued the second show cause notice to the petitioner and after giving opportunity of hearing, the impugned order was passed. Thus, it is contended that the respondents have followed the principles of natural justice and reasonable opportunity to defend the case was given to the petitioner and therefore this Court may not interfere with the order passed by the disciplinary authority. 6. Thus, it is contended that the respondents have followed the principles of natural justice and reasonable opportunity to defend the case was given to the petitioner and therefore this Court may not interfere with the order passed by the disciplinary authority. 6. It is further contended that the State Government accepted the inquiry report and Secretary of Education Department gave personal hearing to the petitioner on 10.4.1997. After considering the submission of the petitioner, the department took the decision to impose the penalty of pension cut and submitted the proposal before the State Government for its approval. The General Administration Department sent the proposal back to the Education Department for providing details of pension entitled to the petitioner. Accordingly, the proposal was resubmitted to General Administration Department. Thereafter in the year 1999, the government approved the proposal. The said proposal was sent to Gujarat Public Service Commission for obtaining their recommendation and in January, 2000, the Gujarat Public Service Commission agreed to the proposal of the government to impose penalty of cut in pension. Accordingly, the disciplinary authority passed the impugned order. He, therefore, submitted that no illegality is committed by the respondent and therefore the present petition be dismissed. 7. Learned AGP thereafter contended that the petitioner has not at all alleged anything against Mr. P.V. Patel who was merely a Presenting Officer for presenting the case of the department before the inquiry officer during the course of the departmental inquiry. Even in the present petition, such allegations were not levelled against Mr. Patel that he was having grudge against the petitioner. However, by way of an amendment, such ground was added in the petition. Thus, this is nothing but an afterthought on the part of the petitioner and no material is produced by the petitioner to substantiate the said statement that Mr. Patel was having any bias against the petitioner. He further submitted that even if the Presenting Officer was having any grudge against the petitioner, even then, the Inquiry Officer has independently examined the evidence produced before him and submitted his report to the disciplinary authority and therefore on this ground the impugned order may not be quashed and set aside. 8. Learned AGP thereafter submitted that the disciplinary authority Mr. Pandore while issuing the second show cause notice on 9.1.1997 to the petitioner, has, by mistake, referred to Rule 6 of the Rules of 1971. 8. Learned AGP thereafter submitted that the disciplinary authority Mr. Pandore while issuing the second show cause notice on 9.1.1997 to the petitioner, has, by mistake, referred to Rule 6 of the Rules of 1971. Merely because a wrong provision is stated in the notice, it cannot be said that the impugned order is to be quashed on this ground. 9. Learned AGP thereafter contended that it is true that second show cause notice was given by Mr. Pandore and hearing was given to the petitioner in April, 1997 and another disciplinary authority Mr. Damor passed the impugned order in the year 2000. However, it is submitted by him that it was not necessary for Mr. Damor to give opportunity of hearing to the petitioner. He, therefore, submitted that petition be dismissed. 10. Learned AGP lastly submitted that the scope of judicial review is very limited. This Court may not sit in an appeal over the decision taken by the disciplinary authority by re-appreciating the evidence and therefore the present petition be dismissed. 11. In support of the aforesaid contention, learned AGP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another V/s Man Mohan Nath Sinha and Another reported in 2009(8) SCC 310 . 12. I have considered the submissions advanced on behalf of learned advocates and also gone through the material produced on record and the decisions upon which reliance is placed by the learned advocates. From the record, it would emerge that after serving for 36 years with the respondent-department, the petitioner retired on 31.12.1993. On the last day of his retirement i.e. 31.12.1993, the charge-sheet came to be issued wherein nine charges were levelled against the petitioner that he has committed certain irregularities and illegalities during his tenure for the period between 23.3.1991 to 6.3.1992. The departmental inquiry was conducted against the petitioner and the inquiry officer submitted his report to the disciplinary authority. The second show cause notice was also issued to the petitioner before imposing the punishment and thereafter the impugned order is passed by the disciplinary authority. 13. The Hon'ble Supreme Court in the case of Shri Brahm Datt Sharma (supra), the Hon'ble Supreme Court has observed in paragraphs 6 and 8 as under: "6. The second show cause notice was also issued to the petitioner before imposing the punishment and thereafter the impugned order is passed by the disciplinary authority. 13. The Hon'ble Supreme Court in the case of Shri Brahm Datt Sharma (supra), the Hon'ble Supreme Court has observed in paragraphs 6 and 8 as under: "6. Grant of pension to employees of the State Government is regulated by the Civil Service Regulations which have statutory character. Article 348-A provides that pension shall be granted subject to the conditions contained in the Regulations. Article 351-A empowers the Governor to withhold or withdraw pension or any part of it, whether permanently or for a specified period and also to order recovery from pension of the whole or part of the pension for any pecuniary loss caused to the Government if the pensioner is found guilty in departmental or in judicial proceedings for any misconduct or negligence during his service. Article 353 lays down that no pension shall be granted to an officer dismissed or removed from service for misconduct, insolvency or inefficiency, but compassionate allowance may be granted on special consideration. The claim of pension is determined by length of service, as provided by Article 474 to 485. Full pension is admissible under the rules not as a matter of course but only if the service rendered by the Government employee is approved. The Regulations empower the authority sanctioning the pension to make such reduction in the amount of pension as it may think proper. These provisions indicate that a Government servant is entitled to pension but the claim of pension is determined in accordance with the statutory rules. No doubt pension is no more a bounty; instead it is a right earned by the Government servant on the basis of length of service, nonetheless grant of full pension depends on the approval of service rendered by the employee. In other words if the service rendered by the Government servant has not been satisfactory he would not be entitled to full pension and it would always be open to the Govt. to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a Govt. servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Govt. to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a Govt. servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Govt. to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Govt. is put to pecuniary loss, the State Govt. is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. These provisions ordain the Govt. servant to perform his duties faithfully and honestly. Honest and devoted service rendered by a Govt. servant ensures efficiency in public administration. The statutory rules therefore contain provisions for the forfeiture and deduction in the pension of Govt. servant who have not rendered satisfactory service or who have been found guilty of misconduct or negligence resulting in pecuniary loss to the Govt. Merely because a Govt. servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct and negligence or financial irregularities. 8. A plain reading of the regulation indicates that full pension is not awarded as a matter of course to a Govt. servant on his retirement instead, it is awarded to him if his satisfactory service is approved. If the service of a Govt. servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Art. 311(2) is not attracted, nonetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right to property earned by the Govt. servant before any order is passed. Art. 311(2) is not attracted, nonetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right to property earned by the Govt. servant on his rendering satisfactory service to the State. In State of Punjab v. K.R. Erry and Sobhag Rai Mehta, [1973] 2 SCR 405 this Court held that the State Govt. could not direct cut in the pension of officers without giving a reasonable opportunity of hearing to them. In Deokinandan Prasad v. State of Bihar & Ors., [1971] Suppl. SCR 634 it was held that pension is not bounty payable at the sweet will and pleasure of the Govt.; instead the right to pension is valuable right vested in a Govt. servant. Again in D.S. Nakara and Ors. v. Union of India, [1983] 2 SCR 165 this Court held that payment of pension does not depend upon the discretion of the Govt. but it is governed by the rules and Govt. servant coming under those rules is entitled to claim pension. A Govt. employee earns his pension by rendering long and efficient service, the claim of pension is regulated by rules, which provide for reduction in the amount of pension if the Govt. servant has failed to render efficient service. In M. Narasimhachar v. State of Mysore, [1960] 1 SCR 981 this Court upheld the order of the State Govt. in reducing pension of a Govt. employee as the rules regulating the grant of pension made provision for reduction of pension on account of his having rendered unsatisfactory service. Rule 6.4 of Punjab Civil Pension Rules provides for the reduction in the amount of pension if the service of the Govt. employee has not been thoroughly satisfactory. The State Govt.'s order directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry and Sebhag Rai Mehta (Supra) and in State of Punjab & Anr. v. Iqbal Singh, [1976] 3 SCR 360 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had not been afforded opportunity of hearing. v. Iqbal Singh, [1976] 3 SCR 360 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had not been afforded opportunity of hearing. These decisions leave no scope for any doubt that the State Govt. is competent to direct reduction in pension after affording opportunity of hearing to the Govt. servant." 14. In the case of Haresh C Banerjee (supra), the Hon'ble Supreme Court has observed in paragraph 7 as under: "7. Various State rules or regulations vest power of withholding or reduction of pension on compliance with the principles of natural justice. The question of an order withholding or reducing pension being invalid and bad in law on a legally permissible ground is one thing but to hold the rule ultra vires is another. In State of U.P. v. Brahm Datt Sharma this Court observed that if the Government incurs pecuniary loss on account of misconduct or negligence of a government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings, he is found guilty of misconduct, negligence or any other such act or omission as a result of which the Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss, suffered by it by forfeiture or reduction of pension. In State of Punjab v. K.R. Erry it was held that the State Government could not direct cut in pension of officers without giving a reasonable opportunity of hearing. In State of Maharashtra v. M.H. Mazumdar it was observed that the State Government's power to reduce or withhold pension by taking proceedings against a government servant, even after his retirement is expressly preserved by the Rules." 15. In the case of Harihar Bholenath (supra), the Hon'ble Supreme Court has observed and held in paragraphs 10, 11, 12, 14 and 18 as under: "10. In the case of Harihar Bholenath (supra), the Hon'ble Supreme Court has observed and held in paragraphs 10, 11, 12, 14 and 18 as under: "10. A departmental proceeding can be initiated for recovery of amount suffered by the State Exchequer owing to the acts of omission or commission of a delinquent employee in three different situations: (i) When a disciplinary proceeding is initiated and concluded against a delinquent employee before he reaches his age of superannuation; (ii) When a proceeding is initiated before the delinquent officer reached his age of superannuation but the same has not been concluded and despite superannuation of the employee, an order of recovery of the amount from the pension and gratuity is passed; and (iii) An enquiry is initiated after the delinquent employee reaches his age of superannuation. 11. The Civil Service Regulations are framed in terms of the proviso appended to Article 309 of the Constitution of India. Regulations 351-A and 470 of the Civil Service Regulations take care of the situation leading to recovery of the amount suffered by the Government from the amount of pension and gratuity payable to a delinquent employee when he is found guilty of commission of misconduct or negligence causing pecuniary loss to the Government. The said provisions read as under: "351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause(ii) of clause (a); and (c) The Public Service commission, UP shall be consulted before final orders are passed. (Provided further that if the order passed by the Governor relates to a case dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission.) Explanation For the purpose of this article (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court." "470. (a) The full pension admissible under the Rules is not to be given as a matter of course, or unless the service rendered has been really approved (See Appendix 9) (b) If the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Note: For the purpose of this Article 'appointing authority' shall mean the authority which is competent to make substantive appointment to the post or service from which the officer concerned retires." 12. It is not in dispute that Respondent was placed under suspension before he reached his age of superannuation. A departmental proceeding was not only initiated against him, but an Enquiry Officer was also appointed. The order of suspension, however, remained stayed by a judicial order. But the same paled into insignificance once the employee reached the age of superannuation. It is not in dispute that Respondent was placed under suspension before he reached his age of superannuation. A departmental proceeding was not only initiated against him, but an Enquiry Officer was also appointed. The order of suspension, however, remained stayed by a judicial order. But the same paled into insignificance once the employee reached the age of superannuation. By reason of the same, however, the legal fiction created in regard to the point of time when the enquiry proceeding would be deemed to have commenced was not effaced. 14. The proceedings for recovery of the amount from a Government servant can be passed in the event he is held to be guilty of grave misconduct or caused pecuniary loss to Government by his misconduct or negligence during his service. Some procedural safeguards, however, have been laid down in terms of proviso appended thereto, including the requirement to obtain an order of sanction of the Governor. Such order of sanction, however, would not be necessary if the departmental proceedings have been initiated while the delinquent was on duty. Proviso appended to Regulation 351-A merely controls the main proceedings. The same would apply in the exigencies of the situation envisaged therein, namely, even the proceedings were initiated after retirement and nor prior thereto. 18. The question came up for consideration before this Court in State of Uttar Pradesh v. Brahm Datt Sharma & Anr. [ AIR 1987 SC 943 ], wherein this Court, while interpreting Regulation 470 of the Civil Service Regulations, held: "A plain reading of the regulation indicates that full pension is not awarded as a matter of course to a Govt. servant on his retirement instead, it is awarded to him if his satisfactory service is approved. If the service of a Govt. servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Though the Regulations do not expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Article 311(2) is not attracted, nonetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right to property earned by the Govt. servant on his rendering satisfactory service to the State." 16. In the case of Shiv Raj and others (supra), the Hon'ble Supreme Court observed and held in paragraph 18 as under: "18. This Court in Rasid Javed v. State of U.P. Following the judgment in Gullapalli Nageswari Roa held that: "51...a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted." 17. In the case of Man Mohan Nath Sinha (supra) relied by learned AGP, the Hon'ble Supreme Court has observed and held in paragraphs 14 and 15 as under: "14. The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in the case of State of Andhra Pradesh And Ors. v. Chitra Ventaka Rao and this Court held: "21.......... The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that (1975) 2 SCC 557 evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226. 23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishna. 24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do." 15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court." 18. This Court in the order dated 17.9.2013 passed in Second Appeal No. 224 of 1989 observed in paragraphs 4, 4.1, 5.2, 6, 7, 7.1 and 7.3 as under: "4. Arguing with reference to the substantial question of law, learned advocate Mr. M.D. Rana for the appellant submitted that the first show cause notice was not acted upon and the second show cause notice issued was by a different Disciplinary Authority. It was submitted that the said second show cause notice calling upon the plaintiff to show cause as to why he should not be dismissed was bad for want of application of mind on part of the authority which issued that notice. It was submitted that not only that, since second show cause notice was issued on the proposed punishment and which was by a different Disciplinary Authority, before passing any order he ought to have given opportunity of hearing to the plaintiff. It was submitted that fair opportunity was denied to the plaintiff. In this regard, learned advocate pressed into service the principle of divided responsibility. It was submitted that it was incumbent on part of the second Disciplinary Authority to comply with the principles of natural justice by affording opportunity. He submitted that the order of dismissal suffered from non-application of mind. Learned advocate submitted that the principles of natural justice were required to be observed at all material stages of the inquiry upto the stage of imposition of punishment. He submitted that the order of dismissal suffered from non-application of mind. Learned advocate submitted that the principles of natural justice were required to be observed at all material stages of the inquiry upto the stage of imposition of punishment. 4.1 Learned advocate for the petitioner relied on the following judgments in support of his contention that the second show cause notice and disciplinary action of punishment taken pursuant thereto is in breach of natural justice; (i) Oral judgment dated 08th October, 1976 in Special Civil Application No. 1194 of 1976 in case of Shri J.S. Thaker v. The State of Gujarat and others; (ii) a decision in case of M.J. Ninama v. Post Master General, Ahmedabad [ 1984 GLH 800 ]; (iii) a Division Bench decision dated 31st August, 2005 in Letters Patent Appeal No. 86 of 1992 in First Appeal No. 1339 of 1980 in case of Union of India v. Maniben Lavjee and others. 5.2 In oral judgment dated 08.10.1976 in Special Civil Application No. 1194 of 1976, mentioned above relied on by the learned advocate for the appellant, a Mamlatdar was subjected to disciplinary action and after submission of inquiry report, the Deputy Secretary and Disciplinary Authority gave notice to him as to why penalty of dismissal should not be imposed. The delinquent afforded opportunity pursuant to the said notice. However thereafter the said Deputy Secretary retired and another incumbent entered the office to become the Disciplinary Authority. The delinquent demanded opportunity of hearing, which was denied. The Court considered whether the order of dismissal was passed in violation of principles of natural justice as the Disciplinary Authority passed it without hearing the petitioner. Second question considered was whether the punishment order vitiated because of the Disciplinary Authority having not given the reasons for rejecting the defence of the petitioner and for upholding the findings of guilt recorded by the inquiry officer. The Court ultimately held that the denial to the delinquent the opportunity of hearing was amounted to denial of fair opportunity to him. The order of punishment was set aside. 6. Therefore, it could not be gainsaid that a fair opportunity and a right to be heard was not obliterated at the second stage in the disciplinary action when the Disciplinary Authority considers the question of punishment. The order of punishment was set aside. 6. Therefore, it could not be gainsaid that a fair opportunity and a right to be heard was not obliterated at the second stage in the disciplinary action when the Disciplinary Authority considers the question of punishment. The function of the Disciplinary Authority at this stage is just not administrative, but a quasi judicial one as noted above. A fair opportunity is always due to the delinquent whenever a particular case in its facts and circumstances would so warrant. Whether a fair opportunity of hearing is given to the delinquent and whether natural justice is violated are the questions which depend upon the facts and circumstances of each case. 7. Turning again to the facts of the case, the Disciplinary Authority was changed. The delinquent was given second notice by the second Disciplinary Authority on the proposed punishment. He had replied to the first notice which was by the first Disciplinary Authority, who had given it after considering the report of the inquiry officer and taken his own judgment with respect thereto. The delinquent did not know as to what happened to the reply which he gave to the first show cause notice by the first authority. He was required to answered the second show cause notice which he answered by second reply. 7.1 Therefore in the peculiar circumstances, the second Disciplinary Authority was not only expected to apply his mind and to ensure that a proper opportunity of defending is given to the delinquent with regard to the findings of the inquiry officer. In other words, the fair opportunity needed to be given to the plaintiff-delinquent in the context of the stage of consideration, the matter was consisted in two parts. Firstly, it was an obligation on him in law to consider the report of the inquiry officer, apply his mind and on that basis proceed to propose the penalty. Secondly, at his stage also, it was an enjoinment on his part that the delinquent is given a proper and a reasonable opportunity to defend his case and so as to enable the delinquent to assail the findings of the inquiry report as well Second Appeal the penalty aspect, on the basis of which the second Disciplinary Authority was to impose the penalty. When there was a change in the Disciplinary Authority at a stage when the question of penalty was being considered, the above requirements were essential to be observed. 7.3 In the facts and circumstances of the case, giving opportunity of hearing to the plaintiff would have met the requirement of affording a fair opportunity. That opportunity was denied. There was no fair opportunity. It was integral part of natural justice which was violated. Though stricto sensu, the plaintiff could not claim right to be heard on the proposed penalty, however in the facts and circumstances, he was entitled to be fairly treated and a fair and reasonable opportunity was required to be given to him at the stage when the Disciplinary Authority considered the report of the inquiry officer and was to proceed to impose the penalty. For the second Disciplinary Authority, as it was, it was a fresh exercise. Non-giving of opportunity to the delinquent by him was clearly militating against and destructive of the concept of judicial hearing in the object of giving a proper opportunity to defend to the plaintiff." 19. Keeping in mind the aforesaid decisions rendered by this Court as well as the Hon'ble Supreme Court, if the facts of the present case are considered, it can be said that the second show cause notice was issued on 9.1.1997 by the disciplinary authority by which the petitioner was asked to show cause why punishment prescribed under Rule 6 of Rules, 1971 shall not be imposed upon him. The said Rule 6 is not at all applicable to the petitioner as the petitioner has retired during the course of departmental inquiry on 31.12.1993. Thus, the disciplinary authority could not have imposed penalty under rule 6 of the aforesaid rules and the only punishment which can be imposed on the petitioner was a cut in pension. Thus, this Court is of the opinion that the said show cause notice was nothing but a total non-application of mind on the part of the disciplinary authority and same was issued in a mechanical manner. Because of the said notice, the petitioner was prevented from making effective representation/reply before the disciplinary authority. Thus, the said action on the part of the disciplinary authority is required to be quashed and set aside on the ground of non-application of mind and violation of principles of natural justice. 20. Learned advocate Mr. Because of the said notice, the petitioner was prevented from making effective representation/reply before the disciplinary authority. Thus, the said action on the part of the disciplinary authority is required to be quashed and set aside on the ground of non-application of mind and violation of principles of natural justice. 20. Learned advocate Mr. Rana appearing for the petitioner is also right in submitting that the second show cause notice for the proposed punishment was issued by the disciplinary authority Mr. Pandore on 9.1.1997. The said disciplinary authority also gave opportunity of personal hearing to the petitioner in April, 1997. However, after a period of three years, on 10.2.2000 the impugned order was passed by another disciplinary authority Mr. Damor. While passing the impugned order, the disciplinary authority Mr. Damor observed that notice was issued to the petitioner and hearing was given to the petitioner but admittedly no notice was issued by Mr. Damor-disciplinary authority to the petitioner nor any hearing was given to the petitioner before the impugned order was passed. Thus, it is clear from the record that notice and hearing was given by one authority and the order was passed by another authority. As observed by this Court in the order dated 17.9.2013 in Special Civil Application No. 224 of 1989, a fair opportunity and right to be heard was not obliterated at the second stage in the disciplinary action when the disciplinary authority considers the question of punishment. The function of the disciplinary authority at this stage is just not administrative but a quasi-judicial one. When there was a change in the disciplinary authority at the stage when the question of penalty was being considered, certain essential requirements are required to be observed. The second disciplinary authority should apply his mind and to ensure that a proper opportunity of defending is given to the delinquent with regard to the findings of the inquiry officer. Thus, in the facts and circumstances of the present case, when the second disciplinary authority has not issued any notice to the petitioner nor opportunity of personal hearing was given by him to the petitioner, he cannot pass the impugned order merely relying upon the hearing given by the first disciplinary authority. Thus, the impugned order is required to be quashed and set aside on this ground also. 21. The other contentions taken by the learned advocate Mr. Thus, the impugned order is required to be quashed and set aside on this ground also. 21. The other contentions taken by the learned advocate Mr. Rana for the petitioner that there was a bias against the petitioner by one Mr. P.V. Patel who was the Presenting Officer is not required to be accepted because the petitioner has never challenged his appointment during the course of the departmental inquiry and raise such objection. No material is placed on record in support of his submission. 22. Learned advocate Mr. Rana is right in submitting that the impugned order passed by the disciplinary authority is non-speaking order and no reasons are assigned by the disciplinary authority while imposing punishment of cut in pension of Rs. 500/- from the monthly pension of the petitioner. Thus, on this count also, the impugned order is required to be quashed and set aside. 23. Another contention of learned counsel Mr. Rana that as the government has not suffered any financial loss, the impugned order of punishment of cut of Rs. 500/- from the monthly pension of the petitioner cannot be passed and there was no evidence against the petitioner during the course of disciplinary proceedings. Though there was no evidence against the petitioner during the course of disciplinary proceedings, the inquiry is wrongly held that certain charges levelled against the petitioner are proved. This Court cannot sit in appeal over the findings recorded by the inquiry officer who has given the findings after appreciating the evidence produced on record. It is not permissible for this Court to appreciate the evidence and therefore the aforesaid contentions are not required to be accepted by this Court. Thus, this Court is not inclined to interfere with the inquiry report submitted by the Inquiry Officer. 24. In view of the aforesaid discussion, the impugned order dated 10.2.2000 passed by the respondent authorities is hereby quashed and set aside. Learned advocate for the petitioner at this stage submitted that the impugned order has not been implemented as this Court while issuing the notice has granted ad-interim relief in terms of paragraph 23(C) and the said ad-interim relief was thereafter confirmed and is continued till this date. Hence, the aforesaid order has not been implemented. 25. Learned advocate for the petitioner at this stage submitted that the impugned order has not been implemented as this Court while issuing the notice has granted ad-interim relief in terms of paragraph 23(C) and the said ad-interim relief was thereafter confirmed and is continued till this date. Hence, the aforesaid order has not been implemented. 25. In view of the aforesaid discussion, ordinarily the order of commencing inquiry from the stage of second show notice and imposing punishment after giving opportunity of hearing to the petitioner can be passed, but, in the peculiar facts of the present case where the petitioner has retired in the year 1993, the impugned order is not implemented till date and the petitioner is more than 82 years of age as on date, I am of the opinion that if the direction to issue fresh second show cause notice and giving hearing to the petitioner is given, it would create great hardship to the petitioner at such an advanced stage of life. Hence, such direction is not issued. 26. With the above observation, this petition is allowed. Rule is made absolute. No order as to costs.