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Gujarat High Court · body

2016 DIGILAW 564 (GUJ)

K. G. Dave v. State of Gujarat

2016-03-10

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this petition, the petitioner has prayed to quash and set aside the order dated 16.7.1999 passed by the respondent No. 2-Board imposing penalty of reduction of 40% pension with permanent effect, to declare that the inquiry initiated and conducted under charge sheet dated 29.2.1992 by the Board-respondent No. 2 is without authority and jurisdiction and to declare that the addition of new charges by the Board in the charge sheet was without authority and the whole inquiry was vitiated. 2. The brief facts giving rise to this petition are that the petitioner joined the services in Public Health Engineering Department as Overseer in the year 1957, he was promoted as Executive Engineer in 1971, Superintending Engineer in June 1981 and as Chief Engineer on 7.9.1988 and worked on the said post till he retired on 29.2.1992. That on decision of the State Government to establish a separate board known as "Water Supply and Sewerage Board", an Act known as "Gujarat Water Supply and Sewerage Board Act, 1978 (hereinafter referred to as 'the Act') was enacted which came into force on 6.6.1979. Pursuant to the said establishment, first notification dated 30.3.1981 was issued by which officers and employees specified in the schedule appended to the notification were placed at the disposal of the board on deputation basis, however, the name of the petitioner was deleted as he was already on deputation elsewhere. Thereafter, on a subsequent notification of 10.2.1988, all those who were specified in the first notification of 30.3.1981 were transferred/absorbed on permanent basis. As the name of the petitioner was not there in the first notification, he was not permanently transferred and continued to enjoy the status of the government servant and no notification was issued so far as the petitioner is concerned. Thereafter, the services of all those who were so transferred were terminated and became the officers of the Board. The petitioner continued to remain under the disciplinary control of the state government though he was working on deputation with the board firstly in the capacity of the Superintending Engineer and thereafter in the capacity of Chief Engineer. He submitted that the petitioner's services were never transferred on permanent basis to the Board and he remained on deputation service of the board and remained under the disciplinary control of the state government till his retirement on 29.2.1992. He submitted that the petitioner's services were never transferred on permanent basis to the Board and he remained on deputation service of the board and remained under the disciplinary control of the state government till his retirement on 29.2.1992. 2.1 That on the date of the retirement of the petitioner, the board issued a charge sheet containing one charge in respect of incident of 1988, thereafter on 9.7.1992 i.e. after his retirement, a new charge sheet by adding number of other new charges to the first chargesheet was issued. The inquiry proceeded further and the petitioner submitted his written explanation on 31.3.1996 and after one year on 31.3.1997 the inquiry officer submitted a report that the charges levelled are proved. Thereafter, on 18.3.1999 the board passed a Resolution in its meeting and decided to impose a penalty of reduction of 40% of the pension on permanent basis. An order was passed based on the said decision on 16.7.1999 which the petitioner received on 15.9.1999 wherein it was communicated that out of the total amount of pension of Rs. 7476/-, an amount of Rs. 2990/- will be deducted permanently. Thus, the present petition is filed. 3. Heard learned advocate Mr. Aditya Pandya for the petitioner, learned AGP Mr. Goutam for respondent No. 1 and 3 and learned advocate Mr. D.G. Chauhan for respondent No. 2. 3.1 Learned advocate Mr. Pandya appearing for the petitioner submitted that the petitioner was holding the post of Executive Engineer at Rajkot Municipal Corporation in 1981 and he came on deputation in 1982 to the services of the respondent-Board as Superintending Engineer and therefore he was required to discharge his duties there. Thereafter, the petitioner became Chief Engineer after promotion was granted by the State Government but while discharging his duties on those posts with the Board. It is therefore contended that the service conditions of the officers and employees whose services were not permanently transferred were under the control of the government as they were on deputation to the Board. The petitioner's services were never transferred on permanent basis to the Board and he remained on deputation. Thus, the petitioner continued to enjoy the status of government servant and therefore he was not under the disciplinary control of the Board on 29.2.1992 i.e. the date of his retirement. He, therefore, contended that the Board has no authority to initiate inquiry proceedings against the petitioner. Thus, the petitioner continued to enjoy the status of government servant and therefore he was not under the disciplinary control of the Board on 29.2.1992 i.e. the date of his retirement. He, therefore, contended that the Board has no authority to initiate inquiry proceedings against the petitioner. Thus, he contended that the disciplinary proceedings initiated by the respondent-Board and the order of punishment are required to be quashed and set aside. 3.2 Learned advocate for the petitioner thereafter submitted that the chargesheet was issued to the petitioner on the last date of his retirement i.e. 29.2.1992 wherein only one charge was levelled against the petitioner. However, another chargesheet was issued by the respondent-Board on 7.9.1992 wherein 15 charges were levelled against the petitioner. He, therefore, submitted that another departmental inquiry by issuance of chargesheet dated 7.9.1992 could not have been initiated against the petitioner after his retirement and on the basis of such inquiry, the respondent No. 2 could not have imposed the penalty against the petitioner. 3.3 At this stage, it is contended that the incident alleged in the chargesheet is for the year 1988 whereas the chargesheet came to be issued in the year 1992 and, therefore, there was a delay of four years in issuance of the chargesheet and initiation of departmental inquiry and therefore on this ground also, the chargesheet as well as the impugned order of penalty be quashed and set aside. 3.4 Learned advocate Mr. Pandya thereafter contended that the disciplinary authority has not at all considered the reply submitted by the petitioner and observed in the impugned order that the petitioner has not filed any defence statement. Thus, the impugned order is passed without considering the reply of the petitioner and therefore it is non-application of mind on the part of the disciplinary authority. Hence, the order of disciplinary authority be quashed and set aside. 3.5 Learned advocate Mr. Pandya thereafter contended that the petitioner had demanded number of documents during the course of the inquiry, however, the same were not supplied by the Board or Inquiry Officer before the conclusion of the inquiry and therefore reasonable opportunity to defend the proceedings were not given to him and therefore on the ground of violation of principles of natural justice, the impugned order be quashed and set aside. 3.6 Learned advocate for the petitioner further contended that the disciplinary authority has merely reproduced the conclusion of the Inquiry Officer and has not applied his mind and assigned any reason why he has accepted the same. Therefore, the impugned order be quashed and set aside. 3.7 It is further contended that the respondent-Board has failed to prove the charges leveled against the petitioner during the course of inquiry, in spite of that, the Inquiry Officer has submitted his report wherein he has held that the charges leveled against the petitioner are proved and therefore the disciplinary authority has passed the impugned order relying upon the said report. Thus, in absence of any material, the disciplinary authority ought not to have imposed the penalty against the petitioner and therefore the impugned order be quashed and set aside. 3.8 Learned advocate lastly submitted that the disciplinary authority has imposed the lesser penalty on co-delinquent and therefore the penalty imposed on the petitioner is shockingly disproportionate to the charges leveled against him and therefore the impugned order be quashed and set aside or alternatively lesser penalty be imposed. 3.9 In support of the aforesaid contentions, learned advocate Mr. Pandya appearing for the petitioner has placed reliance upon the following decisions: "(1) State of Bihar and others v. Mohd. Idris Ansari reported in AIR 1995 SC 1853 (2) A.G. Desai v. State of Gujarat & Anr., reported in 1997(2) GLH 177 (3) Shri M.N. Mewada v. State of Gujarat and another, reported in 1976(2) SLR 666 (4) UCO Bank And Anr. v. Rajinder Lal Capoor, reported in AIR 2007 SC 2129 and the review petition between the same parties reported in AIR 2008 SC 1831 ." 4. On the other hand, learned advocate Mr. v. Rajinder Lal Capoor, reported in AIR 2007 SC 2129 and the review petition between the same parties reported in AIR 2008 SC 1831 ." 4. On the other hand, learned advocate Mr. Chauhan appearing for respondent No. 2 referring to Annexures A, B and C, submitted that vide notification dated 30.3.1981 the State Government, in exercise of the powers conferred by sub-section 10 of Section 20 of the Gujarat Water Supply and Sewerage Board Act, 1978 (hereinafter referred to as 'the Act') directed that the services of the officers and employees of the State Government shall be placed at the disposal of the Board on deputation basis without any deputation allowance with effect from 1.4.1981, purely on temporary basis and the petitioner who was working as an Officer of Gujarat Public Health Engineering Services was permanently transferred in the Board and therefore he was under the disciplinary control of respondent No. 2-Board. He submitted that the petitioner was on deputation at Rajkot Municipal Corporation and therefore there was no necessity to again depute the petitioner from the Government and subsequently he was transferred to the Board on deputation and thereafter he was made permanent employee of the Board. Learned advocate Mr. Chauhan further submitted that the petitioner was involved in financial and administrative irregularities which had caused huge financial loss to the Board and the Board had issued chargesheet. He emphatically argued that the petitioner has never raised any objection against the authority and power of the Board for taking disciplinary action at any time and at any stage and for the first time in this petition, he has taken this contention. He further submitted that the inquiry was conducted in accordance with law and after affording reasonable opportunity to the petitioner to defend the case and there was no undue delay on the part of the department. In fact, the petitioner submitted his reply after a period of four years and hence there is delay on the part of the petitioner. He further submitted that there were many charges against the petitioner in the chargesheet and he did not reply to the same. He submitted that the petitioner is involved in many administrative and financial irregularities and caused huge financial loss of Rs. 75,00,000/- to the Board. 4.1 At this stage, learned advocate Mr. He further submitted that there were many charges against the petitioner in the chargesheet and he did not reply to the same. He submitted that the petitioner is involved in many administrative and financial irregularities and caused huge financial loss of Rs. 75,00,000/- to the Board. 4.1 At this stage, learned advocate Mr. Chauhan submitted that the chargesheet was issued by the respondent-Board to the petitioner on 29.2.1992 i.e., the last date of retirement of the petitioner. Thus, the departmental proceedings came to be instituted when the petitioner was in service. He further contended that it is not correct on the part of the petitioner to submit that on 7.9.1992, another chargesheet alleging 15 different charges was issued to the petitioner. Learned advocate at this stage referred to the chargesheet dated 7.9.1992 produced at page 135 of the compilation and submitted that the charge Nos. 2 to 15 were added in the earlier chargesheet dated 29.2.1992 and in fact it is in continuation of the first chargesheet. He further referred to each of the charges and submitted that all these charges were detailed explanation of the charge No. 1 which was leveled against the petitioner in chargesheet dated 29.2.1992. Hence, it cannot be said that it is a new chargesheet after the date of retirement of the petitioner. Charge No. 1 was merely explained/details were given by way of charge memo dated 7.9.1992. 4.2 Learned advocate Mr. Chauhan further contended that the submission of learned advocate for the petitioner that the chargesheet cannot be issued for the incident of more than four years prior to the date of issuance of the chargesheet is misconceived as the said provision would not be applicable in the facts of the case as the respondent-Board has issued the chargesheet when the petitioner was in service. At this stage, he further contended that the petitioner has not taken such objection when the chargesheet was issued to him and after the conclusion of the inquiry and after the order of penalty passed by the disciplinary authority, he has raised such frivolous contention and therefore the same be ignored. 4.3 Learned advocate Mr. At this stage, he further contended that the petitioner has not taken such objection when the chargesheet was issued to him and after the conclusion of the inquiry and after the order of penalty passed by the disciplinary authority, he has raised such frivolous contention and therefore the same be ignored. 4.3 Learned advocate Mr. Chauhan thereafter submitted that the inquiry officer has followed the principles of natural justice and supplied the documents to the petitioner which were relied upon by the Board and therefore it is not correct on the part of the petitioner to submit that the inquiry officer has violated the principles of natural justice. 4.4 Learned advocate Mr. Chauhan thereafter submitted that the petitioner has not filed his defence statement and not cooperated during the course of the departmental inquiry. The inquiry officer after considering the evidence produced on record held that the charges leveled against the petitioner were proved and therefore submitted his report to the disciplinary authority. The disciplinary authority has also, after considering the report, passed the impugned order of 40% cut in the pension of the petitioner with permanent effect and looking to the seriousness of the charges, said order cannot be said to be shockingly disproportionate and therefore the present petition be dismissed. He further submitted that the charges levelled against the petitioner were serious in nature and therefore the said punishment was imposed and the charges levelled against the co-delinquent were different and therefore punishment was imposed accordingly. Therefore, he submitted that the petition be dismissed as the punishment imposed is not excessive and disproportionate to the charges levelled against the petitioner. 4.5 Learned advocate Mr. Chauhan has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court in support of his contentions. "(1) S.R. Tewari v. Union of India and another, reported in (2013)6 SCC 602 . (2) Krishna Chandra Tandon v. The Union of India, reported in (1974)4 SCC 374 . (3) U.P. State Sugar Corporation Ltd. And others v. Kamal Swaroop Tondon, reported in (2008)2 SCC 41 ." 5. Learned AGP Mr. Goutam adopted the arguments advanced by learned advocate Mr. Chauhan and prayed that the appeal be dismissed. 6. I have considered the submissions advanced on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record. Learned AGP Mr. Goutam adopted the arguments advanced by learned advocate Mr. Chauhan and prayed that the appeal be dismissed. 6. I have considered the submissions advanced on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record. From the material produced on record, it is revealed that vide notification dated 30.3.1981, the State Government in exercise of the powers conferred under Section 20(10) of the Act directed that the services of the officers and employees of the State Government shall be placed at the disposal of the Board on deputation basis without any deputation allowance with effect from 1.4.1981 purely on temporary basis. The petitioner who was working as an officer of Gujarat Public Health Engineering Services was permanently transferred in the Board. The petitioner was on deputation at Rajkot Municipal Corporation. However, thereafter, he was transferred to the Board on deputation and made permanent employee of the Board. Thus, it is clear from the record that the petitioner was working with the respondent-Board and was an employee of respondent-Board for all purposes and therefore the contention of the petitioner that the respondent-Board has no authority to initiate departmental proceedings is required to be discarded. The petitioner has not taken such contention in his reply which was filed on 31.3.1996 nor at any time during the course of the inquiry, he has raised such contention and for the first time he has raised this contention before this Court. Even on merits also, such contention is misconceived. It would further emerge from the record that the respondent-Board issued chargesheet on 29.2.1992 to the petitioner alleging certain illegality. Such chargesheet was issued on the last date of retirement of the petitioner. Thus, the departmental proceedings were initiated when the petitioner was in service. On 27.9.1992, the respondent-Board added certain charges in the first chargesheet dated 29.2.1992 and if the said charges are carefully seen, it was in connection with the chargesheet dated 29.2.1992 with more particulars and details. Thus, it is not correct on the part of the petitioner to contend that the respondent-Board has issued new chargesheet after the date of retirement of the petitioner. Such contention is also misconceived and therefore liable to be rejected. 7. It is clear from the record that the inquiry officer has followed the principles of natural justice. Thus, it is not correct on the part of the petitioner to contend that the respondent-Board has issued new chargesheet after the date of retirement of the petitioner. Such contention is also misconceived and therefore liable to be rejected. 7. It is clear from the record that the inquiry officer has followed the principles of natural justice. However, the petitioner has not cooperated with the inquiry officer and therefore on the basis of the evidence produced before him, the inquiry officer has rightly held that the charges leveled against the petitioner are proved and submitted his report to the disciplinary authority. Disciplinary authority has also, after proper application of mind and after considering the inquiry report, submitted by the inquiry officer passed the impugned order. Looking to the allegations leveled against the petitioner and looking to the material on record, it cannot be said that the order of penalty imposed by the disciplinary authority is shockingly disproportionate to the charges leveled against him as contended by learned advocate for the petitioner. Hence, the same argument is also misconceived. 8. There is no dispute with regard to the principles laid down by this Court in the decision rendered in the case of A.G. Desai (supra) that question of jurisdiction can be raised at the time even after the order is passed as the jurisdiction of the competent authority goes to the root of the matter. In the present case, it is already held on the basis of the material produced on record that the petitioner was an employee of the respondent-Board and therefore the Board has jurisdiction to initiate the departmental proceedings against him and therefore the said decision is not helpful to the petitioner on the facts of the case. 9. The decision relied upon by the learned advocate for the petitioner rendered by the Division Bench of this Court in the case of Shri M.N. Mewada (supra) would not be applicable to the facts of the present case as in the said case it has been held that the proceedings are required to be initiated within reasonable time for imposing cut in pension after the retirement under Rule 189 and 189A of the Bombay Civil Services Rules. In the said case, the proceedings were initiated in the year 1968 in respect of the misconduct of J 1959-60 and therefore it was held that the same was ultra vires and not permissible whereas in the present case, the respondent No. 2-Board issued the chargesheet when the petitioner was in service i.e. on 29.2.1992 for the incident of 1988 and therefore the aforesaid provision and the decision relied upon by learned advocate would not be applicable. 10. In the case of State of Bihar and others (supra), the Hon'ble Supreme Court considered the provision contained in Rule 43(b) and 139(a) of Bihar Pension Rules and on the facts of the said case held that the retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within four years of the initiation of the departmental proceedings against him. In the present case, similar type of provision is contained in Rule 189A of B.C.S.R. However, it is required to be noted that the respondent No. 2-Board issued the chargesheet when the petitioner was in service and not after the date of his retirement. Additional charges were mere explanation and more details of the first charge and therefore the aforesaid provision would not be applicable. Hence, the said decision is not helpful to the petitioner in the facts of the present case. 11. Similarly, there is no dispute with regard to the propositions of law laid down by the Hon'ble Supreme Court in the case of UCO Bank and another (supra), however, the said decision is not helpful to the petitioner in the facts of the present case as the departmental proceedings were initiated when the petitioner was in service and not after the date of his retirement. 12. Whereas in the case of U.P. State Sugar Corporation Ltd., and another (supra) relied upon by learned advocate for the respondent, the Hon'ble Supreme Court has held and observed in paragraphs 13, 28, 31, 35 and 40 as under: "13. The learned counsel for the appellant is right when he submitted that show-cause notice was issued to the respondent employee on 13-1-2000 when he was very much in service. The learned counsel for the appellant is right when he submitted that show-cause notice was issued to the respondent employee on 13-1-2000 when he was very much in service. The respondent submitted his explanation on 15-1-2000 which was not found to be satisfactory. A regular show-cause notice was, therefore, issued by the Corporation on 31-1-2000 and was served upon the respondent employee on the same day. The notice was also sent by registered post which was received by the employee on 11-2-2000. But it is clear from the documents that show-cause notice was issued and replied. A regular show-cause notice as to departmental inquiry was also served upon the respondent employee on the last day of his service which was 31-3-2000. In our opinion, therefore, it could not be said that the proceedings had been initiated against the respondent employee after he retired from service. 28. If it is so, the appellant Corporation, in our opinion, is right in submitting that the proceedings could have been continued after the retirement of the respondent employee as far as the financial loss caused to the Corporation because of negligence on the part of employee and the benefit claimed by the respondent workman on his terminal benefits are concerned. 31. In the present case, the High Court has not quashed the proceedings on the ground that there was inordinate and unexplained delay on the part of the Corporation in initiating such proceedings against the respondent. According to the High Court, since the respondent retired on 31-1-2000, the proceedings could not have been continued against him. From the case law referred to by us hereinabove, it is clear that such proceedings could have been continued since they were initiated for the recovery of losses sustained by the Corporation due to negligence on the part of the respondent employee. Such loss caused to the Corporation could be recovered from the respondent from the retiral benefits of the respondent. 35. Finally, the learned counsel for the appellant Corporation is right in submitting that the High Court was exercising discretionary and equitable jurisdiction under Article 226 of the Constitution. It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found." 40. It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found." 40. Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court." 13. In the case of S.R. Tewari (supra), the Hon'ble Supreme Court has observed in paragraphs 19, 20 and 31 as under: "19. In CIT v. Mahindra & Mahindra Ltd., this Court held that various parameters of the court's power of judicial review of administrative or executive action on which the court can interfere had been well settled and it would be redundant to recapitulate the whole catena of decisions. The Court further held: "11. ... it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same." 20. The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the order had been passed by the authority only on the grounds of illegality, irrationality and procedural impropriety before it interferes. The court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. 31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible." 14. Thus, in view of the aforesaid decision rendered by the Hon'ble Supreme Court in the case of S.R. Tewari (supra), the scope of judicial review of administrative action is very limited and this Court can interfere only if there is manifest error in the exercise of power or whether the exercise of power is manifestly arbitrary or even when there is illegality, irrationality, procedural impropriety or there are malafide, dishonest, or corrupt practices. In the facts of the present case, as observed hereinabove, serious allegations were leveled against the petitioner whereby the respondent-Board has suffered financial loss of Rs. 75 lacs. During the course of inquiry, charges were proved against the petitioner and looking to the over all facts and circumstances of the present case as discussed hereinabove, when the scope of judicial review is limited, when this Court finds that there is no illegality, irrationality or malafide on the part of the respondent-Board, the impugned order cannot be interfered with. Accordingly, this petition deserves to be dismissed and is accordingly dismissed. Rule discharged. No order as to costs.