Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 463 (GUJ)

Shanabhai M. Padariya v. Bhyagesh Jha

2017-02-27

A.S.SUPEHIA

body2017
JUDGMENT : A.S. Supehia, J. 1. By way of the present writ petition the petitioner has challenged the order dated 25.01.2001 passed by respondent-Collector, Baroda, imposing a penalty of stoppage of five increments with future effect and the judgment and order dated 21.03.2005 passed by the Gujarat Civil Services Tribunal (the Tribunal) in Appeal No. 46 of 2001. 2. The brief facts of the case culled out from the record which led to the filing of the present petition are that the petitioner was serving as Deputy Mamlatdar under the respondent- Collector, Baroda. At the relevant time the petitioner was issued a charge-sheet dated 26.06.1997 for holding a departmental inquiry for two charges, inter-alia, alleging about loss of four gunny bags of Juwar of value of Rs. 768/- and not having received the amount of Rs. 4,327/- at the time when the goods were sold to Shri Manubhai M. Sindha, a Fair Price Shop Dealer. It was alleged that the petitioner had collected the aforesaid amount on 17.03.1987 instead of 04.12.1986. A detailed reply was filed to the charge-sheet by the petitioner on 21.07.1997. A regular departmental inquiry was held thereafter, and the petitioner was imposed a penalty of stoppage of five increments with future effect, after the inquiry officer held the charges proved against the petitioner. The same was subject matter of challenge before the Tribunal in Appeal No. 46 of 2001. Vide judgment and order dated 21.03.2005, the Tribunal dismissed the appeal of the petitioner. Being aggrieved by the said judgment and order, the petitioner has filed the present petition. 3. Learned Advocate Ms. Reena Kamani appearing on behalf of the petitioner has submitted that the charge-sheet was belatedly issued in the year 1997 for the alleged misconduct of 1986. She has also stated that the entire controversy rests on the testimony of the Fair Price Shop Dealer i.e. Shri Manubhai M. Sindha, who is not examined in the departmental inquiry, despite there being repeated requests on behalf of the petitioner. She has placed reliance on sub-rule 13 of Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (the Rules for short). She has stated that non-examination of the said witness is fatal to the departmental inquiry hence; the penalty order deserves to be quashed and set aside on this ground alone. She has placed reliance on sub-rule 13 of Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (the Rules for short). She has stated that non-examination of the said witness is fatal to the departmental inquiry hence; the penalty order deserves to be quashed and set aside on this ground alone. Reliance is also placed on the Supreme Court judgment in the case of Union of India vs. Prakashkumar Tandon, (2009) 2 SCC 541 in this behalf. Moreover, she has further stated that for the first charge also, no witnesses are examined to prove the documents relied upon by the Inquiry Officer. She has also stated that no financial loss was caused to the Government and the punishment of withdrawal of five increments with future effect would be major and harsh penalty considering the alleged misconduct. Hence, she has urged that the impugned order of penalty dated 25.01.2001 as well as the judgment and order dated 21.03.2005 passed by the Tribunal deserve to be quashed and set aside. It is her specific case that though the contention was raised before the inquiry officer as well as the Tribunal about non-examination of the aforesaid witness, no attention was paid either by the inquiry officer or the Tribunal on the said aspect. On the contrary, the Tribunal has erred in observing that the non-examination of witness Shri Manubhai M. Sindha was proper as his examination would be fatal to the interest of the departmental authorities since his conduct showed that he was supporting the petitioner. 4. Per contra learned Assistant Government Pleader Mr. Shirish Gohil appearing on behalf of the respondent authority has submitted that the impugned order of penalty as well as the judgment and order of the Tribunal do not require any interference of this Court. He has submitted that the inquiry officer has proved the charges against the petitioner. The disciplinary authority, relying upon the inquiry officer's report, vide order dated 25.01.2001 imposed the penalty of stoppage of five increments with future effect after due consideration of the entire facts on record as well as the defence of the petitioner. The Tribunal has also not thought it fit to interfere with the penalty order. Hence, at this stage, it would not be appropriate to disturb the impugned order of the penalty as well as the judgment and order of the Tribunal. 5. The Tribunal has also not thought it fit to interfere with the penalty order. Hence, at this stage, it would not be appropriate to disturb the impugned order of the penalty as well as the judgment and order of the Tribunal. 5. Heard learned advocates appearing on behalf of the respective parties. 6. The undisputed fact in the present case is that the witness Shri Manubhai M. Sindha, whose name also figures in the list of witness (at Annexure-A - Page-26 to the petition) along with the charge-sheet is not examined in the departmental inquiry. A perusal of the inquiry officer's report would clarify that during the departmental inquiry the petitioner had made a specific request to examine the Fair Price Shop Dealer, i.e. Shri Manubhai M. Sindha, despite the said request he was not examined in the departmental inquiry. On a specific query raised by this Court to the learned Assistant Government Pleader about the non-examination of the said witness it was stated that the fact remains that he was not examined in the departmental inquiry. 7. Rule 9 sub-rule 13 of the Rules states about the examination and cross-examination of witnesses. In my view non-examination of the said witness in the departmental inquiry is fatal to the departmental inquiry as it would amount to violation of principles of natural justice and in violation of Rule 9 sub-rule 13 of the Rules. It is no more res integra, that the witness whose evidence is crucial in order to adjudicate the controversy, or to establish the charge against a delinquent, he is required to be examined in a departmental inquiry. In the case of Hardwarilal vs. State of Gujarat, AIR 2000 SC 277 , the Apex Court has emphasized that the non-examination of the witness will amount to violation of principles of natural justice. In the case of Prakashkumar Tandon (supra) the Apex Court has observed that principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the inquiry officer. It was also observed that disciplinary proceedings must be fairly conducted and if the same are not so conducted, an inference can be drawn that the delinquent officer was prejudiced thereby. In the present case, the inquiry officer has relied upon the documents i.e. stock register for proving the charge No. 1. It was also observed that disciplinary proceedings must be fairly conducted and if the same are not so conducted, an inference can be drawn that the delinquent officer was prejudiced thereby. In the present case, the inquiry officer has relied upon the documents i.e. stock register for proving the charge No. 1. The petitioner in his defence statement and before the inquiry officer has specifically stated that there was no irregularity committed by him in the stock register. He also informed the inquiry officer that for the missing of four gunny bags of Juwar necessary entries were made by him in the Labour Register and the same was noticed by the Deputy Manager (Audit). The inquiry officer though has relied on the register of Deputy Manager (Audit) in this behalf, has not examined him in the disciplinary proceedings. The Tribunal has grossly erred by observing that the examination of the witness is not required only on the apprehension that he would support the petitioner in the disciplinary proceedings which would be against the interest of the government. Such an observation is in violation of basic principles of fair play and against the sanctity of departmental proceedings. 8. In view of the foregoing observations, the impugned order of penalty and the judgment and order of Tribunal are hereby quashed and set aside. As a necessary consequence, the pay-scale of the petitioner shall be fixed and revised by granting necessary arrears. It is submitted by the learned advocate for the petitioner that the petitioner has already retired. If that being so, his retirement benefit shall also be revised accordingly. The entire exercise shall done within a period of six weeks from today. 9. Petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Petition Allowed.