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Gujarat High Court · body

2017 DIGILAW 1793 (GUJ)

P. S. Ranbhan v. State of Gujarat

2017-11-16

A.S.SUPEHIA

body2017
JUDGMENT : A.S. SUPEHIA, J. 1. By way of the present writ petition, the petitioner has challenged the punishment order dated 03.03.2010, by which he has been removed from service. 2. It will be apposite to note that the date of birth of the petitioner is 07.08.1952, and he would have retired on 31.08.2010 upon attaining the age of superannuation after rendering blotless service of 37 years. Thus, he has been removed from service before five months of attaining the age of superannuation. 3. The brief facts giving rise to the present petition are that: 4. The petitioner joined service with the respondent as a Junior Clerk in the year 1972 and thereafter, in due course, he was promoted to the post of Commercial Tax Officer in the year 2007. A show-cause notice dated 15.11.2003 was issued to the petitioner, calling upon the petitioner to furnish proof in support of the claim for an amount of Rs.1200/towards the fare of Taxi for travel from Rajkot to Bhachau for the official work, while he was working on the post of Sales Tax Inspector. 5. The petitioner immediately replied to the show-cause notice on 18.11.2003, explaining that he had traveled in the Taxi along with his superior officer namely, Shri K.H.Tanna, the then Sales Tax Officer and the copy of the Taxi fare voucher was annexed along with his reply. Thereafter, nothing was heard from the respondent authority for a period of about 5½ years and all of a sudden, before the date of superannuation, the respondent issued a charge-sheet dated 04.04.2009 for the misconduct alleged to have been committed by the petitioner in the year 2000. 6. The petitioner submitted his detailed defence statement on 11.05.2009 denying the charges levelled against him. The defence statement was not accepted by the disciplinary authority and it was decided to hold a departmental inquiry against the petitioner. By the order dated 02.07.2009, the petitioner was asked to remain present before the Inquiry Officer on 16.07.2009 and accordingly the petitioner remained present. 7. On the first day i.e. 16.07.2009, the Inquiry Officer directed the Presenting Officer to submit his brief on or before 31.07.2009 and further directed the petitioner to submit his reply to the said brief of the Presenting Officer on or before 10.08.2009 and on the very same day the case was ordered to be concluded. 7. On the first day i.e. 16.07.2009, the Inquiry Officer directed the Presenting Officer to submit his brief on or before 31.07.2009 and further directed the petitioner to submit his reply to the said brief of the Presenting Officer on or before 10.08.2009 and on the very same day the case was ordered to be concluded. Accordingly, the petitioner has submitted his representation to the brief presented by the Presenting Officer on 17.08.2009. He has submitted his representation on 18.08.2009 and along with his representation, he had annexed a copy of the affidavit dated 01.08.2009, solemnized by Shri K.H.Tanna, who was the superior officer of the petitioner at the relevant point of time and who was accompanied by the petitioner to Bhachau check post in the same Taxi. 8. The petitioner has also annexed a copy of the affidavit solemnized by the owner of the Taxi, which was hired by the petitioner and his superior officer. The Inquiry Officer has submitted his report on 25.08.2009 holding the charges levelled against the petitioner are proved. The show cause notice dated 14.09.2009 was also issued along with a copy of the inquiry report to the petitioner. Accordingly, the petitioner submitted a detailed representation to the disciplinary authority on 23.09.2009. After considering the report of the Inquiry Officer and defence of the petitioner, the disciplinary authority vide impugned order dated 03.03.2010, removed the petitioner from service. 9. Learned advocate, Mr. Vaibhav Vyas appearing on behalf of the petitioner has urged that the entire disciplinary proceeding is in gross violation of Rule9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (the GCSR, 1971). He has stated that the entire case is of no evidence as no independent witness is examined by the Inquiry Officer. He has further stated that the procedure envisaged in Rules – 9(3)(4) (13)(14)(16) as well as (17) of the GCS Rules have been violated in holding the disciplinary proceeding. He has stated that the charge sheet refers to the statement of the superior officer, Shri Tanna, which was in support of the present petition despite that he was not examined in the disciplinary proceeding. 10. Learned advocate, Mr. Vyas has submitted that the Inquiry Officer was required to follow the procedure prescribed under the GCS Rules, 1971 and he has to act fairly in holding the departmental proceeding. 10. Learned advocate, Mr. Vyas has submitted that the Inquiry Officer was required to follow the procedure prescribed under the GCS Rules, 1971 and he has to act fairly in holding the departmental proceeding. He has also submitted that the Inquiry Officer has only recorded the facts and only referred to the documents while holding the charges proved against the petitioner. The Inquiry Officer was required to examine the Taxi driver and the superior officer of the petitioner also who were present on that day along with the petitioner and in absence of the same, the entire disciplinary proceeding is based on no evidence. 11. Learned advocate for the petitioner has also submitted that in fact the disciplinary proceeding concluded on 16.07.2009, on which day the Inquiry Officer directed the Presenting Officer to submit his brief on or before 31.07.2009 and the petitioner was also directed to submit his representation on or before 10.08.2009. Thus, by giving such direction to the Presenting Officer as well as the petitioner, the Inquiry Officer thereafter, neither examined any witnesses to that effect nor the documents are proved by examining the author of such documents. Hence, the learned advocate for the petitioner has submitted that the order of the disciplinary authority is required to be quashed and set aside. 12. Another aspect urged by the learned advocate, Mr. Vaibhav Vyas is that before passing the impugned order of removal of the petitioner from the service, the authorities of the Government have taken advice from the Gujarat Public Service Commission (GPSC) as per the rules. He has stated that the petitioner was supplied the advice of the GPSC dated 25.01.2010 along with the penalty order instead of supplying the same in advance. In support of his arguments, he has placed reliance on the judgments of the Supreme Court rendered in the cases of Union of India and Ors. Vs. S.K.Kapoor reported in (2011) 4 S.C.C. 589 and in the case of Union of India Vs. R.P.Singh reported in A.I.R. 2014 SC 2541. 13. Per contra, learned AGP, Mr. Hardik Vora has placed reliance on the affidavit filed by the respondent authority. He has stated that the procedure adopted by the Inquiry Officer was justified and proper. Vs. S.K.Kapoor reported in (2011) 4 S.C.C. 589 and in the case of Union of India Vs. R.P.Singh reported in A.I.R. 2014 SC 2541. 13. Per contra, learned AGP, Mr. Hardik Vora has placed reliance on the affidavit filed by the respondent authority. He has stated that the procedure adopted by the Inquiry Officer was justified and proper. He has submitted that during the course of the inquiry, the petitioner was given sufficient opportunity of hearing or to submit more documentary evidence on his part and after considering all the documentary evidence, the Inquiry Officer has given a report by holding the charges proved against the petitioner. In this view of the matter, he has stated that there is no irregularity, illegality and violation of principle of natural justice in holding the departmental proceeding against the petitioner. 14. Learned AGP has also submitted that the petitioner had signed the muster roll on 03.04.2000 and cancelled the said signature and written O.D. in the said column, which suggests that the charge against the petitioner, is proved by way of documentary evidence. He has also submitted that the advice of GPSC was given along with the penalty order, hence, there is no breach of principle of natural justice and the impugned order does not deserve any interference of this court. 15. Heard the learned advocates for the respective parties at length and I have perused the entire record of the present petition. 16. The present case is governed by the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 17. Relevant provisions of Rule-9 regarding procedure for imposing penalties, reads as under: 9(3) Where it is proposed to hold an inquiry against a government servant under this rule or rule 10. the Disciplinary Authority shall draw up or cause to the drawn up:- (i) the substance of the imputations of misconduct or mishbehaviour or of any culpable act or omission into define and distinct articles of charge. (ii) A statement of the imputations of misconduct or misbehaviour or of any culpable act or omission in support of each article of charge, which shall contain. (a) a statement of all relevant facts including any admission or confession made by the government servant, and (b) a list of documents by which, and a list of witnesses by whom the article of charges are proposed to be sustained. (a) a statement of all relevant facts including any admission or confession made by the government servant, and (b) a list of documents by which, and a list of witnesses by whom the article of charges are proposed to be sustained. (10) The Inquiry Authority shall, if the government servant falls to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charges, and shall adjourn the case to later date not exceeding thirty days, after recording an order that the government servant may for the purpose of preparing his defence- (I) Inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3). (II) Submit a list of witness to be examined on his behalf. Note: If the Government servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule (3), the Inquiry Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority. (II) Give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow, for the discovery or production of any documents which are in the possession of Government, but not mentioned in the list referred to in sub-rule (3). Note: The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. (13) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant. The Presenting Officer shall be entitled to reexamine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant. The Presenting Officer shall be entitled to reexamine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The Inquiry Authority may also put such questions to be witnesses as it thinks fit. (15) When the case for the Disciplinary Authority is closed the government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any has been appointed. (16) The evidence on behalf of the government servant shall then be produced. The government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the government servant shall then be examined and shall be liable to cross-examination, reexamination and examination by the Inquiry Authority according to the provisions applicable to the witnesses for the Disciplinary Authority. (17) The Inquiry Authority may, after the government servant closes his case, and shall if the government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him.” 18. The conspectus of the aforesaid rules will suggest that the Inquiry Officer has to act fairly while holding the departmental proceeding against the delinquent and he is required to examine independent witnesses. Rule-9(13) specifically provides that on the date fixed for the inquiry, the oral and documentary evidence, by which the articles of charges are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. 19. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. 19. In the present case, it is pertinent to note that on the very first day, the Inquiry Officer was adopted very unique method and asked the Presenting Officer to present his brief on or before 31.07.2009 and the petitioner was directed to submit his reply to the brief of the Presenting Officer on or before 10.08.2009. The Inquiry Officer, thereafter, proceeded further with the inquiry without examining any witnesses. The superior officer to the petitioner, Shri Tanna, who was accompanied with the petitioner, has specifically stated in his affidavit that he had claimed proportionate amount in respect of the Taxi fare, however, due to some procedural delay, the said amount was not released to him. The Taxi owner has filed an affidavit stating that the Taxi was hired by the Sales Tax Department from 01.04.2000 to 05.04.2000 and an amount of Rs.3,600/-was charged as Taxi fare. The aforesaid affidavits were ignored by the Inquiry Officer only on the basis that the petitioner did not examine the authors of the said affidavits as his defence witnesses. I am of the considered opinion that the Inquiry Officer was required to act fairly as per the procedure laid down under Rule-9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 by examining the authors of the affidavits as witnesses. Thus, the inquiry officer erroneously proceeded with the inquiry proceedings. 20. Rule-9(15) provides that when the case for the disciplinary authority is closed, the Government servant shall be required to state his defence orally or in writing as he may prefer. Even this rule is also not followed by the disciplinary authority while holding the inquiry against the petitioner. In the present case, there is violation of Rule-9(17), which provides that when the government servant closes his case, and if the government servant has not examined himself, the Inquiry Officer shall generally, question the delinquent on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him. 21. 21. In the present case, the petitioner did not examine himself in the disciplinary proceeding and therefore, it was obligatory for the Inquiry Officer to question the petitioner generally on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him. No such opportunity of hearing was provided to the petitioner which has resulted into gross violation of Rule-9(17). 22. At this juncture, I may gainfully extract the observations made by the Supreme Court in the case of Narmada Pd. Yadav Vs. State of M.P. and Others reported in (2007) 1 S.C.C. 681 , as observed in Paras5, 6 and 7, thus: “5. A perusal of the inquiry officer’s report would clearly go to show that no independent witness had been examined to prove the demand and taking money by the appellant in his hand nor is there any evidence of detaining the applicant in a half constructed house. When the matter was taken on appeal before the Director General of Police, he reduced the penalty of dismissal given by the Superintendent of Police and reinstated the accused and also reverted the appellant to the post of constable from that of Head Constable as a penalty for a period of two years from 16.11.1993 to 16.11.1995. Aggrieved against the imposition of the said penalty, the appellant preferred original application before the Administrative Tribunal being OA No. 875 of 1994, which affirmed the penalty imposed by the Deputy Inspector General of Police and the Director General of Police. 6. The matter was taken to the High Court by the appellant by filing a writ petition under Article 227 of the Constitution of India. The High Court affirmed the orders passed by all the other authorities. Being aggrieved, the appellant preferred the above civil appeal in this court. 7. We have already reproduced in paragraph supra the charge framed against the appellant. There is absolutely no evidence in regard to the demand of bribe of Rs.1000 or receipt of the same by the appellant. No satisfactory evidence was adduced to prove the charge in question. Under such circumstances, the penalty imposed by the Director General of Police demoting him from the post of Head Constable to the post of constable cannot at all be countenanced. No satisfactory evidence was adduced to prove the charge in question. Under such circumstances, the penalty imposed by the Director General of Police demoting him from the post of Head Constable to the post of constable cannot at all be countenanced. In our opinion, the case on hand is a case of no evidence. It is also a matter of record that the appellant had an unblemished service record of 21 years and the said factor has also not been considered by the authorities while imposing the penalty. We, therefore, have no hesitation in setting aside the punishment inflicted on the appellant and allow this appeal. The period of two years mentioned hereinabove will be treated as (sic) the appellant was on duty as Head Constable and the appellant will also be entitled to all the monetary benefits for the said period.” 23. In the present case also, no independent witness has been examined to prove the charges levelled against the petitioner. The Supreme Court has made observations in the case of Union of India and Others Vs. Gyan Chand Chattar reported in (2009) 12 S.C.C. 78 , as observed in Paras – 33,34 and 35, thus: “33. In a case where the charge-sheet is accompanied with the statement of fact and the allegation may not be specific in charge-sheet but may be crustal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated (vide State of A.P. Vs. S. Sree Rama Rao). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice. 34. In Sawai Singh Vs. State of Rajasthan, this court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. 34. In Sawai Singh Vs. State of Rajasthan, this court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not taken the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse on penal consequences. 35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.” 24. Thus, the Supreme Court in the aforesaid judgments has enunciated the law that the Inquiry Officer has to act fairly and the inquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable nor the same should be based on conjectures and surmises. 25. The Supreme Court has further observed that the evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest that the charges are vague. This does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly in respect of an order involving adverse or penal consequences. 26. Apropos the contention raised by the learned advocate for the petitioner pertaining to non supply of the copy of GPSC advice in advance, the observations made by this court in Special Civil Application No. 4999 of 2010 vide judgment dated 26.09.2017, in Paras – 20,21,22,23 and 24, which are relevant for the present case are reproduced as under: “20. 26. Apropos the contention raised by the learned advocate for the petitioner pertaining to non supply of the copy of GPSC advice in advance, the observations made by this court in Special Civil Application No. 4999 of 2010 vide judgment dated 26.09.2017, in Paras – 20,21,22,23 and 24, which are relevant for the present case are reproduced as under: “20. Apropos the contention raised by learned Advocate Mr. Pujara about non-supply of the GPSC advice it will be relevant to reproduce Rule 10(3) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971:- “10 (3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge Is of the opinion that any of the penalties specified in 5 Items (1) to (3) of rule 6 should be Imposed on the Government servant it shall notwithstanding anything contained in rule 11 make an order Imposing such penalty:- Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for Its advice and such advice shall be taken Into consideration before making any order Imposing any penalty on the Government servant.” 21. The Rules manifest for consulting the Public Service Commission for obtaining advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. 22. The Supreme Court in the judgment rendered in the case of Union of India & Others Vs. S.K. Kapoor, 2011 (4) S.C.C. 589 , has held thus: “In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. I am of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal.” 23. The Supreme Court in the decision of Union of India Vs. The Supreme Court in the decision of Union of India Vs. R.P. Singh AIR 2014 S.C. 2541 , after considering the decision of Managing Director, ECIL Hyderabad (supra) and S.K. Kapoor (supra ) has observed thus:- “As We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance.” 24. As per the law explicated by the Supreme Court in the foregoing cases, the supply of copy of GPSC advice is also required in compliance with the principles of natural justice. When the rules provide for consideration of GPSC report before imposing the penalty, the supply of the same to the delinquent has to be read as an integral part of the Rule since non supply of the same will lead to the violation of the principles of natural justice. The requirement of principles of natural justice is that anything which is being relied upon and considered by the disciplinary authority for coming to the conclusion of imposing penalty, the copy thereof is required to be supplied to the delinquent so that he can offer his comments on the same. Thus, the impugned order is liable to be quashed and set aside in wake of non supply of the GPSC advice. Reliance placed by learned Assistant Government Pleader on the judgment rendered by the Supreme Court in the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati & Ors., (2015) 8 S.C.C. 519 will not apply in the light of the aforesaid judgments.” 27. The afore-noted observations and discussion will only recommend that the Inquiry Officer has held the departmental inquiry in gross violation of Rule-9 of Gujarat Civil Services (Discipline and Conduct) Rules, 1971. 28. In this view of the matter, the impugned order dated 03.03.2010 is hereby quashed and set aside. As observed in preceding paragraph by this court, the petitioner had rendered 37 years blotless service and was to retire shortly on 31.08.2010 on reaching the age of superannuation before he was removed from service. 28. In this view of the matter, the impugned order dated 03.03.2010 is hereby quashed and set aside. As observed in preceding paragraph by this court, the petitioner had rendered 37 years blotless service and was to retire shortly on 31.08.2010 on reaching the age of superannuation before he was removed from service. Indubitably, the impugned order of punishment removing the petitioner from service wiping out his entire 37 years of blotless service can be said to be disproportionate to the misconduct. 29. Accordingly, the respondent authority is hereby directed to pay all the retiral benefits to the petitioner and pass an appropriate order to that effect within a period of three months from today. The period from the date of impugned order of removal till superannution is directed to be treated as notional for the purpose of calculation of pension and other benefits. 30. With the aforesaid observations and directions, the present petition is allowed. Rule is made absolute to the aforesaid extent. (Petition party allowed)