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2017 DIGILAW 483 (GUJ)

K. J. Srimali v. State of Gujarat

2017-03-01

MOHINDER PAL

body2017
JUDGMENT : Mohinder Pal, J. 1. By way of this petition, the petitioner has challenged the order passed by respondent No. 3 and 4 dated 13.04.2009 and 18.04.2009 vide which the petitioner has been compulsorily retired from her services as Children Development Project Officer, Class-II, Lakhtar, Surendranagar and consequently discharged from services vide order dated 18.04.2009. 2. Brief facts of this case are that petitioner was appointed as Supervisor on 26.12.1980 by the respondent authorities at Chotila, Surendranagar and later on by way of direct selection, the petitioner was selected as Child Development Project Officer, Class-II on 23.11.1985. The petitioner was transferred to Mahemdabad, District Kheda on 26.07.1996 where she performed her duties till 2003. During service of the petitioner, on 20.11.2006, a show-cause-notice/charge-sheet was given to the petitioner for alleged incident which had taken place in the year 1997. It was allegation against the petitioner that she was negligent in discharge of her duties. The petitioner was served with a show-cause-notice with an information that if any of the charges are proved, then the following punishment could be imposed upon the petitioner. "(i) Written reprimand; (ii) Stoppage/withholding of increment and promotion, and; (iii) Recovery from the pay of the petitioner of the whole or part of any pecuniary loss caused to the Government by negligence or breach of the orders." 3. It is further the case of the petitioner that no notice or charge-sheet regarding compulsory retirement was issued to the petitioner at the relevant time. The petitioner submitted a detailed written reply in her defence. An inquiry officer was appointed to conduct inquiry. Out of the four charges levelled against the petitioner, she was found guilty for one charge and partly guilty for the other. On the basis of report of the inquiry officer, respondent No. 3 passed the impugned order dated 13.04.2009, vide which the petitioner was compulsorily retired from her services as Child Development Project Officer, Class-II. Consequently, on 18.04.2009 the petitioner was discharged from her services. 4. It is the case of the petitioner that punishment of compulsory retirement from service comes under major penalties and as the petitioner has been issued show-cause-notice for minor penalties, the impugned order could not have been passed. Aggrieved from the aforementioned orders, the petitioner has approached this Court by way of this petition. 5. 4. It is the case of the petitioner that punishment of compulsory retirement from service comes under major penalties and as the petitioner has been issued show-cause-notice for minor penalties, the impugned order could not have been passed. Aggrieved from the aforementioned orders, the petitioner has approached this Court by way of this petition. 5. After issuing notice, the State has put in appearance, wherein, the facts stated in the petition are not disputed. However, it has been contended that the petitioner was inactive in administration work at her place of posting and remained absent without permission of the higher officer and accordingly the order of compulsory retirement imposed against the petitioner was valid and legal. 6. Learned counsel for the petitioner has submitted that out of the four charges levelled against the petitioner, the petitioner was found innocent in two of the charges while third charge regarding one of the Anganwadi Centre, which remained close for three months was on the basis of press note. In absence of any evidence in this regard, the findings recorded qua this charge are liable to be reversed. 7. Similarly, it has been argued that forth charge was of deducting more money from the salary of Anganwadi Worker than what was required under the law. It has been submitted that in defence, the petitioner has examined two witnesses, and further the inquiry officer has concluded that no such amount has been deducted or demanded by the petitioner. In absence of any evidence on behalf of the respondents, the petitioner has been held partly guilty for this charge which could not be proved. It has been argued that after inquiry, the petitioner has been served with a charge-sheet for minor penalty, under which, censure, withholding of increments or promotion and recovery from the pay of the petitioner could have been effected. However, the respondent authorities have imposed the punishment of compulsory retirement which comes under the heading of major penalties for which different procedure was required to be followed. Under these circumstances, it has been argued that the impugned order is liable to be reversed. 8. On the other hand, learned Assistant Government Pleader representing the State has drawn attention of this Court to a decision of the Apex Court in the case of State of Uttar Pradesh & Anr. v. Man Mohan Nath Sinha & Anr. Under these circumstances, it has been argued that the impugned order is liable to be reversed. 8. On the other hand, learned Assistant Government Pleader representing the State has drawn attention of this Court to a decision of the Apex Court in the case of State of Uttar Pradesh & Anr. v. Man Mohan Nath Sinha & Anr. reported in (2008) 8 SCC 310, wherein, it has been held that it is not open for the High Court to reappreciate and reappraise the evidence which is seen by the inquiry officer. High Court cannot sit as a Court of Appeal and impose its own conclusions. The High Court will be at error in scanning evidence as if it was a Court of Appeal. 9. I have heard learned counsel for the petitioner and have gone through the file. Issuance of charge-sheet to the petitioner on 20.11.2006 for alleged incident which had taken place in the year 1997 is not in dispute. The petitioner was given show-cause-notice that if any of the charges are proved, then the punishment of written reprimand, stoppage or withdrawing of increments and recovery from the pay of the petitioner can be effected. It will be relevant to note that in place of imposing any of the aforementioned punishments, the respondents have imposed the punishment of compulsory retirement. 10. Part-III of Gujarat Civil Services (Discipline and Appeal Rules, 1971) deals with discipline and penalties which can be imposed against the Government Officials. Rule 6 refers to the penalties which is reproduced as under: "6. Nature of Penalties: Without prejudice to the provision of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any member of the State, Subordinate or (Inferior Service). Minor Penalties (1) Censure (2) Withholding of increments or promotion. (3) Recovery from his pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. Major Penalties (4) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increment of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of pay. (5) Reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further direction regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service. (6) Compulsory retirement. (7) Removal from service which shall not be a disqualification for future employment under Government." 11. Perusal of the aforesaid provisions leaves no doubt that if charge-sheet has been issued for minor penalties, the punishment cannot be imposed under the heading of major penalties. As the punishment of compulsory retirement falls under the heading of major penalties, the same could not have been imposed for issuance of charge-sheet which was for minor penalties. 12. This Court is conscious of the fact that the High Court cannot sit as a Court of Appeal against the findings recorded by the inquiry officer or evidence recorded by him. However, in the present case, because of wrong appreciation of evidence, Court can interfere into such findings. Perusal of the findings recorded by the inquiry officer shows that one of the charges was based upon press note wherein, one of the allegation was that Anganwadi Center has remained close for three months. Apart from press note, there is no documentary evidence to substantiate this charge. Similarly other charge for which the petitioner has been held partly guilty contains the allegation of illegal deduction from the salary of employees. None of the employee has been examined by the respondent authorities, while on the other hand, two witnesses are examined by the petitioner, who have deposed in favour of the petitioner by stating that no such amount has been deducted from their salary. Both these charges have also gone in favour of the petitioner rather than against her. 13. State has relied upon the decision in the case of State of Uttar Pradesh & Anr. v. Man Mohan Nath Sinha & Anr. (supra). The proposition of law contained in this case is not in dispute. However, the facts of this are totally different. The present case is one of such case in which required procedure has not been followed. State has relied upon the decision in the case of State of Uttar Pradesh & Anr. v. Man Mohan Nath Sinha & Anr. (supra). The proposition of law contained in this case is not in dispute. However, the facts of this are totally different. The present case is one of such case in which required procedure has not been followed. Once the required procedure for imposing major/minor penalty against the delinquent is not followed, the Court is within its power to interfere with such order. 14. Keeping in view the aforementioned circumstances, this petition is allowed. The impugned orders dated 13.04.2009 passed by respondent No. 3 and 18.04.2009 passed by respondent No. 4 are quashed and set aside. The petitioner is considered to be in service till 31.12.2012, the date on which the petitioner was to attain the age of superannuation. As a result of that the petitioner will be entitled to the consequential arrears of pay from the date of compulsory retirement till the date of superannuation. The pension of the petitioner will also have to be refixed in view of this judgment. The entire exercise will be completed by the respondent authorities within a period of three months from the date of receipt of a copy of this order.