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2017 DIGILAW 130 (GUJ)

R. C. Limbhachiya v. State of Gujarat

2017-01-19

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard Mr. Krutarth Pandya, learned advocate for Mr. P.P. Majmudar, learned counsel for the petitioner and learned Assistant Government Pleader Mr. Swapneshwar Gautam for the respondent-State. Perused the record. 2. Petitioner has challenged the legality and validity of order dated Nil, copy of which is produced at Annexure H, whereby penalty has been imposed upon the petitioner in the form of suspending his one increment without future effect. Petitioner has, therefore, prayed to quash and set aside such order being order dated Nil showing number DPE/122006/2387/M with reference to the Departmental Inquiry against the present petitioner. 3. It is undisputed fact that petitioner was appointed as Mamlatdar through direct recruitment through Gujarat Public Service Commission in the year 1999. Before that, he was working as Pharmacist and Sales Tax Inspector and, therefore, his total tenure of services has crossed 33 years. Though there are several Departmental Inquiries up-till 2006, there was no cause for complaint against his functioning, as such. However, on 26.12.2006, a charge-sheet was issued for alleged misconduct alleged to have been committed by the present petitioner between the period from 01.10.2001 till 25.7.2004 in certifying certain entries in the year 2002 regarding particular agriculture land, which was allowed to be divided into fragments. The allegation is to the effect that petitioner has violated the provisions of Bombay Prevention of Fragmentation and Consolidation Act, 1947 (for short 'Act') and order of the petitioner dated 7.11.2003 regarding fragmenting some land is contrary to the law and, therefore, it is alleged that the petitioner has committed breach of legal provisions and thereby it amounts to misconduct. 4. In the impugned order of the authority, no reasons whatsoever have been indicated as to why the punishment was considered. Failure to give reasons amounts to denial of justice. The mere statement based upon presumption that petitioner has acted beyond jurisdiction would not suffice. 5. It is now fairly well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the authority is acting, the subject matter that is being dealt with and so forth. The mere statement based upon presumption that petitioner has acted beyond jurisdiction would not suffice. 5. It is now fairly well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the authority is acting, the subject matter that is being dealt with and so forth. In the words of Ramaswami, J. in Union of India v. P.K. Roy, reported in AIR 1968 SC 850 the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of jurisdiction concerned on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. 6. Petitioner has filed his reply to such charges on 7.3.2007, copy of which is produced at Annexure B whereas charge-sheet is produced at Annexure A. The Departmental Inquiry was, however held against the petitioner, but the Inquiry Officer has, after conducting full fledged inquiry submitted his Inquiry Report dated 27.3.2009 i.e. almost after two years during which he has considered all relevant material, which was made available to him by the department during such Departmental Inquiry. Such Inquiry Report is at Annexure C with a forwarding letter. The perusal of Inquiry Report specifically confirms that department has failed to prove any of the charges levelled against the petitioner as per charge-sheet dated 26.12.2006. The inquiry report is in detail which discloses that practically, petitioner has allowed fragmentation of land because of family partition and he has relied upon the Government Resolution dated 29.10.1956. 7. The perusal of Inquiry Report specifically confirms that department has failed to prove any of the charges levelled against the petitioner as per charge-sheet dated 26.12.2006. The inquiry report is in detail which discloses that practically, petitioner has allowed fragmentation of land because of family partition and he has relied upon the Government Resolution dated 29.10.1956. 7. It would be appropriate to recollect few decisions of the Hon'ble Supreme Court as under on the subject:- "(a) S. Partap Singh v. State of Punjab, reported in AIR 1964 SC 72 (b) Kuldeep Singh v. Commissioner of Police, reported in AIR 1999 SC 677 (c) Chairman-cum-Managing Director, Coal India Ltd. v. Mukul Kumar Choudhuri, reported in AIR 2010 SC 75 (d) Union of India v. P. Gunasekaran, reported in AIR 2015 SC 545 (e) Yoginath D. Bagde v. State of Maharashtra, reported in 1999 (7) SCC 739 (f) Kunj Bihari Misra case (Punjab National Bank v. Kunj Behari Misra, reported in 1998 (7) SCC 84 ) (g) Nirmala Jhala v. State of Gujarat, reported in 2013 (4) SCC 301 " 7.1 The sum and substance of all the above cases is quite clear that there is no absolute ban to review the decisions of Inquiry Officer or the disciplinary authority by the Court, more particularly, when findings of fact is based on no evidence or when a Court is satisfied that there is an abuse or misuse of power by any such authority. It is also clear that mere perverse statement of complainant or witness cannot be brought on record without supporting evidence and in such cases, if findings recorded by the Inquiry Officer or decision by the disciplinary authority are not supported by evidence and wholly perverse, then order of punishment is liable to be set aside. Even discretionary power of authority is exposed to judicial intervention, if it is exercised in a manner, which is out of proportion to the fault. 7.2 To verify any of above reasons, the Court has to scrutinize the entire proceedings of Departmental Inquiry so as to ascertain that there cannot be punishment even in absence of evidence or in arbitrary and discriminatory manner or for any reason as discussed hereinabove. 8. The inquiry report discloses and describes all the material placed before it, the principal followed by it and discussion and disclosure on each charges against petitioner. 8. The inquiry report discloses and describes all the material placed before it, the principal followed by it and discussion and disclosure on each charges against petitioner. But after detailed discussion, the inquiry officer has came to the conclusion that the department has failed to prove the charges and that petitioner has not committed any misconduct or breach of any statutory provisions while allowing the fragmentation of land in question. It is also observed by the inquiry officer that irrespective of fragmentation by the petitioner, none of the land holder had been benefited in any manner, since they are family members and fragmentation was pursuant to family settlement between family members only and thereby there would be no loss either to the government or to the land owner, in any manner, whatsoever. Such inquiry report is dated 27.03.2009, whereas entries in question are dated 07.11.2003. But in between government has taken up the order of fragmentation by the petitioner in suo motu revision in Fragmentation Appeal Case No. 7 of 2003 before the Assistant Collector of Rajkot. Such Statutory appellate authority has by its judgment dated 21.01.2005 i.e. well before the decision of the Inquiry Officer held that the order of fragmentation is not in accordance with law and quashed and set aside such order of fragmentation by imposing penalty of Rs. 250/- to each of the members of the family in whose favour land was fragmented and thereby total penalty was Rs. 1250/-. Therefore, even after such order of appellate Court, if department could not prove the modus operandi of the petitioner, in any manner, whatsoever before the inquiry officer and thereby when inquiry officer has held that petitioner has not committed any error or misconduct in passing such order of fragmentation, then there is no reason for the respondents to hold thereafter that petitioner has committed any misconduct, so as to impose penalty as per impugned order. 8.1 However, surprisingly such order of the inquiry officer was not accepted by the Under Secretary. Such order is at page 70 i.e. annexure F with show cause notice to the petitioner. 8.1 However, surprisingly such order of the inquiry officer was not accepted by the Under Secretary. Such order is at page 70 i.e. annexure F with show cause notice to the petitioner. However, the order is so cryptic and again without disclosing the date wherein in half of the page before the Under Secretary of the revenue department has disused the entire issue and given only one reason that it seems that petitioner has acted beyond his jurisdiction and, therefore, department did not agree with the findings of the inquiry officer. 8.2 It is quite clear and obvious settled legal position that while rejecting the report of inquiry officer, the competent authority has to assign reasons for their decision that how and why they are rejecting the report of the inquiry officer either confirming the commission of irregularity or exonerating any such employee. Therefore, after narrating few basic facts, when only one line is stated by the Under Secretary in confirming that petitioner has committed mistake and it is only to the effect that it seems that petitioner has acted beyond his jurisdiction cannot be said or considered as proper compliance of statutory provisions, Based upon such show-cause notice dated 24.06.2009; against which, petitioner has filed a detailed reply dated 24.08.2009, copy of which is at annexure G; and relying upon the factual details; undated impugned order is passed; again holding that petitioner has committed breach of statutory provisions and thereby misconduct; while imposing penalty of stopping one increment without future effect. However, unfortunately while passing such order, now the Under Secretary has even failed to assign single reason for his determination and conclusion that petitioner has committed any misconduct; when it is stated that since petitioner has passed an order beyond his jurisdiction, which is illegal and, therefore he was punished as aforesaid. 9. The overall factual details narrated herein above specifically makes it clear that, in fact, petitioner has acted as per his jurisdiction and he has decided some issue, when appeal is provided against such order, then such order becomes quasi judicial in nature and, therefore, such quasi judicial order cannot be considered as misconduct, more particularly when government has already challenged such decision in suo motu appeal before the competent authority and such competent authority has ultimately set aside such order. It cannot be ignored that by such order, nobody has been benefited in any manner, whatsoever, in as much as, as aforesaid, such fragmentation was within the family members as per their family settlement and when petitioner is relying upon particular government resolution, at the most, if at all such resolution was not applicable to the facts and circumstances of such fragmentation then it may amount to irregularity but it cannot be considered as misconduct and, therefore, so far as irregularity is concerned, provision is there for taking such order in review suo motu and correct it and therefore, error of judgment never be considered as misconduct. 9.1 In fact, all such concept has been accepted and adopted by the respondents themselves in as much as, as back as in the year 1990, the State Government has specifically conveyed to its additional Chief Secretary (Appeal) that when any revenue officer passes any order against which appeal or revision is provided, then for such orders, departmental proceedings are not to be initiated. 10. However, respondents have resisted the petition by filing their affidavit in reply dated 09.04.2012. The sum and substances of such reply is to the effect that contents of letter dated 28.05.1990 of the Revenue Department would not apply to the case of the petitioner because though letter was issued with reference to particularly this case only. It is unfortunate that day in and day out we come across such arbitrariness of the officers of the government in similar situation. Thereby one thing is quite clear and certain that if at all such letter dated 28.05.1990 is with reference to few cases referred in such letter, the fact remains that the State Government has to apply their policy equally and, therefore, if such situation is taken in this case, thereafter it is not permissible for the State to submit such stand for this case, when in other cases they have different stand or policy. Thereafter respondents are relying upon the decision of disciplinary authority. However, as aforesaid the disciplinary authority has not disclosed any reason and, therefore, it needs to be discarded. 11. Thereafter respondents are relying upon the decision of disciplinary authority. However, as aforesaid the disciplinary authority has not disclosed any reason and, therefore, it needs to be discarded. 11. Respondents are relying upon the decision in case of State Bank of Mysore & Others v. M.C. Krishnappa, reported in 2011 (7) SCC 325 referring the line from the judgment that "it is well settled that punishment is primarily a function of management and courts rarely interfere with quantum of punishment." It cannot be ignored that in such cited case, the Court has refused to interfere with the quantum of punishment when it was the case wherein charges against the employee was of financial irregularity and making fraudulent withdrawals from the bank were proved and, therefore, the Honourable Supreme Court has declined to interfere in the order of punishment. The lines quoted by the respondent which is reproduced herein above is part of para 9 of the judgment which confirms above factual details before opining as above and while concluding that in the facts of the case even punishment could not be said to be unreasonable or unduly harsh. Therefore in the cited case when the reviewing authority has modified the order of punishment and, thereby, when lighter punishment was imposed, the Honourable Supreme Court has failed to see any scope for interference on purely subjective view. In view of such facts, in as much as, in reported case charges of financial irregularity and fraudulent withdrawal were proved and when review authority has imposed minimum punishment, the Honourable Supreme Court has refused to interfere. Though Court should be slow in interfering with the quantum of punishment, it cannot be ignored that interference in quantum of punishment would be required to be considered when charges were proved, which is as per reported case. 11.1 Whereas in the present case, inquiry officer has stated that charges are not proved but reviewing authority has in one line of presumption did not agree to the findings of the inquiry officer while imposing punishment. Therefore, issue before this Court is not regarding interference of quantum of punishment but main issue is regarding action of the reviewing authority in changing the decision of the inquiry officer and, thereby, imposing the punishment irrespective of quantum of punishment. Therefore, issue before this Court is not regarding interference of quantum of punishment but main issue is regarding action of the reviewing authority in changing the decision of the inquiry officer and, thereby, imposing the punishment irrespective of quantum of punishment. Therefore, when imposing of punishment is unwarranted then there is no question of interference with quantum of punishment when such decision would result into quashing of entire punishment. 12. Respondents are also relying upon the decision in case of Administrator, Union Territory of Dadra & Nagar Haveli v. Gulabhia M. Lad, reported in (2010) 5 SCC 775 . From such judgment also, one line is quoted in affidavit in reply; "unless punishment imposed by the Disciplinary Authority or Appellate Authority shocks the conscience of the Court there is no scope for interference." No separate reasonings are required to confirm that even this judgment would not help the respondent considering the discussion regarding case of M.C. Krishnappa (supra). Sole issue is not the quantum of punishment but the decision itself to impose the punishment. However, in any case, what is held by the Honourable Supreme Court in such cited case is to the effect that quantum of punishment depends upon many factors more particularly when out of several delinquents before the Honourable Supreme Court, petitioner was removed from the services and other were imposed lesser punishment. Therefore, the Honourable Supreme Court has observed that when gravity of misconduct is proved against the employee, past conduct, the nature of duties, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works, are to be taken into consideration. With due respect, it is to be recorded that while narrating a line in affidavit in reply the officer of the government has failed to read the entire judgment when the same para discloses above details also and when it is with the rider that the Court cannot interfere with punishment unless the same suffers from illegality or procedural irregularity of material nature or punishment is shockingly disproportionate. Therefore, in case of illegality or procedural irregularity of material nature, the Court can certainly interfere even in quantum of punishment but as aforesaid, the petition is not solely for reducing the quantum of punishment admitting that petitioner's misconduct is proved and admitted by the petitioner but petitioner has challenged the order of the review authority i.e. disciplinary authority in discarding the detailed report that none of the charges against the petitioner are proved, that too in single line that it seems that petitioner has acted beyond his jurisdiction while holding him guilty and, thereafter, punish him. In such case, when decision of the review authority itself is illegal then quantum of punishment is not much material which may either be in the form of reducing some financial benefit or by way of censure to be recorded in the service book. Thereby, it is quite clear and obvious that even in order of censor such employee is entitled to challenge such decision, if it is otherwise illegal and it cannot be said that it is only punishment of censor, it cannot be challenged if otherwise it is based upon the facts and evidence on record and because of result of some irregularity. Respondents have also submitted that under Article 226 of the Constitution of India the High Court should be slow in considering the factual details and thereby procedural part of the Departmental proceedings is not to be looked into and if there is no irregularity, the Court should not interfere in the punishment. It is like giving open sword in hands of the government officers to penalize the innocent employees more particularly in cases like present one, when the inquiry officer after departmental inquiry exonerated the petitioner and the appellate authority has without assigning any cogent and reliable reason held that petitioner has acted beyond his jurisdiction, when it is only stated that it seems that he has acted without jurisdiction without any evidence to prove such thing. 12.1 Even at the cost of repetition it is to be recollected that there may be interpretation of statute and decision by the different officer and, thereby, it cannot be said that any such officer has committed any irregularity in absence of any specific evidence to prove that by taking decision any such officer has received any undue advantage or illegal gain. In the present case, it cannot be ignored that the fragmentation permitted by the petitioner was amongst family members as per family settlement and, thereby, there is no question of any illegality or it cannot be said that petitioner has committed any misconduct. It cannot be ignored that there is no complaint whatsoever about any such misconduct by the petitioner. It was the decision by the department that too after five years that few orders of the petitioner's were beyond jurisdiction and therefore he has committed misconduct. 13. Respondent is also relying upon the decision in case of State of West Bengal v. Subhas Kumar Chatterjee, reported in (2010) 11 SCC 694 wherein the Honourable Supreme Court has held that improper exercise of jurisdiction by the tribunal is void ab intio and, thereby such practice by the tribunal is strongly disapproved. However, perusal of such judgment does not show any ground or reason to dismiss the petition. 14. Respondent is relying upon the decision in case of State of Uttar Pradesh & Another v. Man Mohan Nath Sinha & Another, reported in (2009) 8 SCC 310 wherein the Honourable Supreme Court has held that the High 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 lead before the inquiry officer and examine findings recorded by inquiry officer as a court of appeal and reach its own conclusion. With due respect though it is settled legal position, it is not the case before us that evidence before the inquiry officer has been re-appreciated. The law does not permit the appellate authority or disciplinary authority to discard the report of the inquiry officer without assigning any reason. In the present petition, the reviewing authority has ignored the detailed discussion by the inquiry officer and come to the conclusion that petitioner has committed misconduct. Even at the cost of repetition it is again stated that the impugned order is conveyed only in one line that "it seems that petitioner has acted beyond his jurisdiction and, therefore such act is considered as misconduct." Therefore, it is clear and certain that this Court has not to re-appreciate the evidence by the inquiry officer and, therefore, this judgment would not help the respondent. 15. 15. As against that, learned advocate for the petitioner has relying upon the decision in case of Union of India v. R.K. Desai, reported in 1993 (2) SCC 49 wherein the Honourable Supreme Court has held that when allegations are merely to the effect that funds were granted to unauthorized person and that was done in disregard to the Central Board of Direct Taxes, but when there was no allegation that these actions were by any corrupt motive or to oblige any person, it was held that merely because such order was made, no disciplinary action can be taken since employee was discharging quasi judicial function. Therefore, it was concluded that the correct remedy is by way of an appeal before the appellate authority who can set-aside such order. In present case, almost similar situation is there, in as much as, the petitioner has acted as per his wisdom and as per facts and circumstances at the material time but unfortunately after gap of 5 yeas respondents have thought it proper to initiate departmental inquiry against him considering his orders as without jurisdiction and that such orders were set aside by the competent authority, even thereafter when respondent could not prove before the inquiry officer about any mens rea and thereby allegation regarding corrupt motive or selectiveness or even when there is absence of any other evidence to confirm that petitioner has committed breach of any particular provision or misconduct and thereby when inquiry officer has exonerated the petitioner from the charges leveled against him, disciplinary authority cannot change such decision without assigning any reason. 16. In view of above facts and circumstances, the impugned order needs to be quashed and set aside and thereby the petition is allowed as prayed for in para 19(A). The impugned order dated nil numbered as DPE/1221006/2387 imposing penalty of withdrawal of one increment without future effect is hereby quashed and set aside. It is made clear that as above the punishment is set aside and thereby this Court has not scrutinized the quantum of punishment, the Court has quashed and set aside the impugned order and, therefore, when impugned order cannot sustain, the punishment cannot sustain. Rule is made absolute accordingly. Direct Service is permitted.