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Gujarat High Court · body

2017 DIGILAW 1098 (GUJ)

J. R. DAHIYA v. STATE OF GUJARAT

2017-06-23

S.R.BRAHMBHATT

body2017
JUDGMENT : 1. Heard learned advocate for the parties. 2. The petitioner, who happened to be the retired Medical officer in the State has approached this Court by way of this petition with following prayers. “(A) quashing and setting the order dt.27.4.2005 imposing the penalty of monthly pension cut of Rs.300/for 3 years and to direct the respondent to refund all the amount deducted with 10% interest. (B) During the pendency and final disposal of this petition further implementation of the impugned order dt.27.4.2005 may be stayed. (C) To grant such other and further relief's as may be deemed fit.” Thus, what is essentially under challenge is the order of penalty of reduction of his pension by Rs.300/every month for three years vide order dated 27th April 2005 as a result of disciplinary proceedings held against him in respect of misconduct alleged. 3. The facts in brief as could be gathered from the memo of the petition are as under : 3.1 That the petitioner was appointed as Medical Officer on 20th December 1971 and he retired from service on superannuation on 31st January 2002 while holding the post of Superintendent, Class-I, General Hospital, Dhoraji, District Rajkot. A chargesheet was issued on 20th August 1993 to the petitioner for holding a departmental inquiry in respect of three charges, which are as under : (1) The services of 5 employees of Class- IV were utilized at his residence instead of hospital. (2) There were illegalities committed in regard to the use of vehicles of the hospital. (3) R.M.O. Had used one vehicle for his personal use on 28th June 1987 and the petitioner had shielded him. 3.2 To hold the departmental inquiry, one officer was appointed, who as per his report found charge no.1 as fully proved and charge no.2 partly proved and charge no.3 as not proved. However, the petitioner lost the inquiry report sent to him and hence he can not produce the same. The State Government agreed with the report in respect of all the charges. However, so far as charge no.2 is concerned, which was held partly proved by the Inquiry Officer, was held to be proved. A show cause notice dated 4th April 1997 was issued to the petitioner calling upon him to make his representation in the matter. 3.3 The petitioner made his representation dated 24th April 1997. However, so far as charge no.2 is concerned, which was held partly proved by the Inquiry Officer, was held to be proved. A show cause notice dated 4th April 1997 was issued to the petitioner calling upon him to make his representation in the matter. 3.3 The petitioner made his representation dated 24th April 1997. The State Government, after considering the representation by order dated 27th April 2005 has imposed the penalty of monthly pension cut of Rs.300/for three years. Thus, the imposition of penalty has given rise to filing of this petition. 4. Learned advocate for the petitioner invited Court's attention to the fact that the socalled misconduct and the issuance of chargesheet and the conducting of inquiry do not follow the well established principle of law and the Government Resolution dated 20th April 1993 in respect of conducting the inquiry, which provides various stages for conducting the inquiry and require expeditious completion of the inquiry. The fact of the present case indicate that those provisions have not followed at all and therefore, the resultant order of penalty, reduction in pension deserve to be quashed and set aside. 5. Learned advocate for the petitioner further contended that the incident mentioned in the chargesheet, as could be reflected in the memorandum dated 20th August 1993, would indicate that incident of 1987 and thereabout was intended to be incorporated into chargesheet issued in the year 1993. The belated issuance of chargesheet in itself is sufficient to defeat the very purpose of inquiry. The petitioner was issued chargesheet on 20th August 1993 indicating that the delinquent used the services of Class-IV at his residence instead of hospital and thus acted contrary to the provision of law and acted as unbecoming of Government Servant as per Conduct Rules 3 (1) of Disciplinary Rule. Second charge was in respect of pressurizing the driver for making wrong entries in the logbook of the vehicle and use the vehicle for personal work. The charge was replied denying the same. In the meantime, the petitioner had resigned, but as resignation was not accepted, as the inquiry was pending, which compel the petitioner to move the Court wherein on 26th February 2002 in the proceedings of S.C.A. No.2889 of 2002, the Court passed the following order. The charge was replied denying the same. In the meantime, the petitioner had resigned, but as resignation was not accepted, as the inquiry was pending, which compel the petitioner to move the Court wherein on 26th February 2002 in the proceedings of S.C.A. No.2889 of 2002, the Court passed the following order. “The grievance of the petitioner is that because of the pendency of departmental enquiries, the Department is not fixing the retiral dues, like pension, etc. It is not in dispute that some departmental enquiries are pending against the petitioner. In one of the said enquiries, second show cause notice is also given for the purpose of proposed penalty. Since the petitioner has already retired, it is expected that the pending enquiries would be concluded as early as possible, preferably within a period of six months from today. It is needless to state that after the conclusion of the departmental enquiry, the Department will consider the question of paying the pension, etc., to the petitioner on the basis of the final order which might have been passed in the departmental proceedings. It will also be open for the Department to decide the question about continuous service of the petitioner between 4.5.1989 and 6.7.2001 in accordance with law. In view of the aforesaid direction, nothing further is required to be done in this matter and the petition is accordingly dismissed, subject to the aforesaid direction.” 6. Learned advocate for the petitioner relying upon the decision reported in A.I.R. 1998 Supreme Court 1833 in the case of State of Andhra Pradesh V/s. N. Radhakishan contended that the delay in issuance of chargesheet is itself sufficient ground for quashing the same. Learned advocate for the petitioner thereafter, relied upon the decision of the Supreme Court in case of Union of India and others V/s. S.K. Kapoor, reported in (2011) 4 Supreme Court Cases 589 and decision of this Court in case of B.J.Javed V/s. State of Gujarat, reported in 2005 (2) G.L.H. 334 to support the contention that the copy of the advise tendered by GPSC is not given and on the other ground also, the petition is required to be allowed. 7. Mr. Hardik Soni, learned AGP for the respondent-State contended that the petitioner cannot now make submission in respect of the belated issuance of chargesheet as he has not taken the ground anywhere before the disciplinary authority. 8. 7. Mr. Hardik Soni, learned AGP for the respondent-State contended that the petitioner cannot now make submission in respect of the belated issuance of chargesheet as he has not taken the ground anywhere before the disciplinary authority. 8. Mr.Soni, learned AGP further contended that the charges were serious and those charges have been duly proved and therefore, when the charges have been duly proved, appropriate punishment imposed needs no interference. 9. Mr.Soni, learned AGP however, could not controvert the contention with regard to the non-supply of copy of GPSC advice, as the GPSC have tendered its advice on 5th April 2005. 10. This Court heard learned advocates for the parties and perused the annexures. 11. The Court is not impressed by the submission of the learned advocate for the petitioner qua belated issuance of chargesheet, as this ground would not be available to the petitioner to be urged at this stage, as the learned AGP is correct in its contention that this ground is not taken before the disciplinary authority by the petitioner. Apart therefrom, the bare perusal of the order, which is produced hereinbefore this Court, would clearly indicate that the petitioner did permit the department to proceed with the inquiries, else petitioner had an opportunity and right to oppose the same. In other words, by inviting orders of the Court in his own petition, the petitioner has obtained direction for expeditious disposal of the matter in inquiry proceedings. Now, the petitioner cannot be permitted to challenge the initiation of the inquiry proceedings in the subsequent proceedings of petition when the penalty is imposed. In other words, the petitioner have not challenged the inquiry proceedings or when he was before the Court, may be in respect of his retirement dues, having not objected to continuation of inquiry and rather having invited Court's order for expeditious hearing of inquiry, without any reservation of his right and contention to challenge the ground that being belated, cannot take-up that ground, which he could not took up while inviting the order, which has been cited hereinabove in the proceedings of S.C.A. No. 2889 of 2002. 12. 12. The Court is of the considered view that there is no gain said that delay in issuance of chargesheet defeats the cause, the same cannot be held universally applicable to all the cases and especially in the instant case, as the petitioner himself has permitted the department to proceed as could be seen from the order dated 26th February 2002 in proceedings of S.C.A. No.2889 of 2002. The said ground is not available to the petitioner. 13. The Court is also not impressed by the submission qua noncompliance of the provision of G.R. dated 20th July 1993 so far as the stage and expeditious conducting of inquiry is concerned. The said GR and its provision cannot be treated to be mandatory so as to render the inquiry proceedings vitiated on account of its noncompliance. 14. This brings the Court to consider the ground in respect of consultation with GPSC and non-furnishing of advice of GPSC to the petitioner. The petitioner has articulately raised this ground in paragraph no.10 of this petition, which deserve to be setout as under : “10. As per subrule (4) of Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, it was obligatory on the part of the State Government to get the advice of the Gujarat Public Service Commission before imposing the penalty. Rule 10 Sub rule (4) reads as under : “10 (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence aduced during the inquiry is of the opinion that any of the penalties specified in items (4) to (8) should be imposed on the government servant, it shall make an order imposing such penalty it shall not be necessary to give the government servent any opportunity of making representation on the penalty proposed to be imposed : Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government servant.” In fact a copy of the advice of the Commission as per the letter dt.5.4.2005 was given to the petitioner along with the impugned order of penalty. Hereto annexed and marked Annexure 'G' is a copy of the letter dt.5.4.2005. As held by this Hon'ble court in the case of B.J.Javed vs. State of Gujarat, 2005 (2) G.L.H. 334 , the non-supply of the advice of the Commission to a delinquent before imposing the penalty would render the order of penalty illegal. Similar view is taken by this Division Bench of this Hon'ble Court in the judgment dt.8.12.2004 rendered in S.C.A. No.15316 of 2004. Hereto annexed and marked Annexure 'H' is a copy of the judgment. In the present case also the impugned order is liable to be quashed and set aside since a copy of the advice of the Gujarat Public Service Commission was not supplied to the petitioner before imposing the penalty.” 15. The order impugned clearly mentions that while passing the order, the advice of GPSC was taken into consideration. The respondent chosen not to file any reply nor establish anywhere that the report or advice of GPSC was furnished to delinquent. The impugned order contains the document's list, which were taken into consideration while passing the order and they are eight in number. The 8th number is the advice by GPSC tendered vide communication dated 5th April 2005. Now, that advice is not supplied to the petitioner and therefore, to that extent the same is violative of the principle of natural justice as held by this Court in case of B.J.Javed (supra) as well as by Supreme Court in case of S. K. Kapoor (supra). 16. Thus, on this ground alone, the Court is of the view that the petition is required to be allowed and is allowed. The order dated 27th April 2005 is hereby quashed and set aside as there is a blatant violation of principle of natural justice so far as advice of GPSC is not tendered to the petitioner and hence, the same has vitiated the order and is required to be quashed and set aside. The petitioner would thus, be entitled to receive all the benefits as if the said order had never been passed. Rule made absolute to the aforesaid extent. Petition allowed.