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2017 DIGILAW 82 (GUJ)

Mohanbhai Dhudabhai Kher v. State of Gujarat

2017-01-16

R.SUBHASH REDDY, V.M.PANCHOLI

body2017
JUDGMENT : V.M. Pancholi, J. 1. By way of this appeal which is filed under Clause 15 of Letters Patent, the appellant-petitioner seeks to challenge the order dated 1.7.2016 passed by the learned Single Judge in Special Civil Application No. 20733 of 2015, by which the learned Single Judge has dismissed the petition. 2. It is the case of the petitioner that he is serving as Deputy Mamlatdar in Mid-day meal scheme at the office of the Mamlatdar, Dhrol district, Jamnagar. 3. On 20.7.2009, show cause notice came to be issued to the petitioner by the office of Deputy Collector, Jamnagar with respect to alleged indecent behaviour of the petitioner. The petitioner submitted his reply to the said show cause notice and denied the said allegation. Without considering the aforesaid reply, once again the show cause notice dated 11.12.2009 was issued to the petitioner and he was asked to explain with respect to the earlier show cause notice. Thereafter, on 4.3.2010, charge-sheet was issued to the petitioner for breach of Rule 3(1) (2) and 3(1)(3) of the Gujarat Civil Services (Conduct Rules), 1971 (hereinafter referred to as 'Conduct Rules'). In the said charge-sheet, two charges were levelled against the petitioner. The petitioner submitted defence statement and thereafter Inquiry Officer was appointed for conducting the departmental inquiry against the petitioner. 4. The Inquiry Officer, after conducting the inquiry, submitted report on 19.10.2010 to the disciplinary authority and the disciplinary authority, after considering the said report, imposed penalty of stoppage of two increments without future effect by an order dated 14.2.2011. 5. The petitioner challenged the order dated 14.2.2011 passed by the disciplinary authority-Collector by filing appeal No. 31 of 2011 before Gujarat Civil Services Tribunal, Gandhinagar. However, the Tribunal, by an order dated 4.3.2015 dismissed the said appeal. 6. The petitioner, therefore, challenged the order passed by the Tribunal by filing the captioned petition before this Court. The learned Single Judge by the impugned order dismissed the petition and therefore the appellant-petitioner has preferred the present appeal. 7. The issue involved in the present petition is in very narrow compass and therefore with the consent of the learned advocate for the appellant and learned Assistant Government Pleader, the appeal is taken up for final disposal. Heard learned advocate Mr. Y.V. Vaghela for the petitioner and learned Assistant Government Pleader Mr. Devnani for the respondent. 8. 7. The issue involved in the present petition is in very narrow compass and therefore with the consent of the learned advocate for the appellant and learned Assistant Government Pleader, the appeal is taken up for final disposal. Heard learned advocate Mr. Y.V. Vaghela for the petitioner and learned Assistant Government Pleader Mr. Devnani for the respondent. 8. The learned advocate for the petitioner has mainly assailed the order passed by the disciplinary authority and the Tribunal on the ground that the Inquiry Officer has violated the procedure laid down in Gujarat Civil Services (Discipline and Appeal) Rules of 1971 (hereinafter referred to as 'Discipline and Appeal Rules'). It is contended that the Inquiry Officer, after recording the statement of the delinquent-petitioner and after observing that the written submission is filed by the Presenting Officer, forwarded the papers to the disciplinary authority and without recording any reason opined that the petitioner has violated Rule 3(1)(2) and 3(1)(3) of Conduct Rules. Thus, it is contended that the Inquiry Officer has not stated any reason how the charges are levelled against the petitioner are proved during the course of inquiry. He, therefore, submitted that on the basis of such inquiry report, the disciplinary authority ought not have imposed the penalty of stoppage of two increments without future effect. It is further contended that learned Tribunal as well as the learned Single Judge have also failed to consider the important aspect of the matter and therefore the impugned orders be set aside. 9. On the other hand, learned Assistant Government Pleader submitted that two charges were levelled against the petitioner and after conducting the inquiry, the Inquiry Officer submitted report to the disciplinary authority. The disciplinary authority in the impugned order dated 14.2.2011 considered the defence statement of the petitioner-delinquent and also considered the report of the Inquiry Officer and thereafter imposed minor penalty of stoppage of two increments without future effect. The said order has been confirmed by the Tribunal as well as the learned Single Judge. Therefore, when there are concurrent findings of fact recorded by the authority, the Tribunal and learned Single Judge, this Court may not interfere with the minor penalty imposed by the disciplinary authority. The said order has been confirmed by the Tribunal as well as the learned Single Judge. Therefore, when there are concurrent findings of fact recorded by the authority, the Tribunal and learned Single Judge, this Court may not interfere with the minor penalty imposed by the disciplinary authority. However, learned Assistant Government Pleader is not in a position to dispute the fact that the Inquiry Officer has not assigned any reason how the charges levelled against the petitioner are proved during the course of inquiry. 10. We have considered the submissions canvassed on behalf of learned advocates for the parties. We have also gone through the material produced on record. It is revealed from the record that the charge-sheet came to be issued to the petitioner on 4.3.2010. In the said charge-sheet, the petitioner was also asked to explain that if the charges are proved against the petitioner, why the penalty prescribed under Rule 6 of the Discipline and Appeal Rules shall not be imposed on him. 11. The petitioner submitted his defence statement and thereafter Inquiry Officer was appointed for conducting the inquiry. Before the Inquiry Officer, the Presenting Officer presented the case of the department whereas the petitioner also presented his case. The Inquiry Officer, after referring the explanation given by the petitioner and the written submission of the Presenting Officer, forwarded the said papers to the disciplinary authority on 19.10.2010. In the said report, there is no discussion how the charges levelled against the petitioner are proved. The Inquiry Officer further observed in the last paragraph of his report that the petitioner has violated the provision of Rule 3(1)(2) and 3(1)(3) of the Conduct Rules during the course of his duty and therefore appropriate penalty should be imposed. On the basis of such inquiry report, the disciplinary authority passed an order on 14.2.2011 and thereby imposed penalty of stoppage of two increments without future effect. The said order was confirmed by the Tribunal as well as by the learned Single Judge. 12. At this stage, it is necessary to refer to the provision contained in Rule 9 of Discipline and Appeal Rules which provides for the procedure for imposing major penalty. It is not in dispute that the respondent department has appointed the Inquiry Officer for conducting the inquiry against the petitioner for the purpose of imposing major penalty. Rule 9(22) reads as under: "9(22). It is not in dispute that the respondent department has appointed the Inquiry Officer for conducting the inquiry against the petitioner for the purpose of imposing major penalty. Rule 9(22) reads as under: "9(22). (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement of imputations of misconduct or misbehaviour or of any culpable act or omission; (b) the defence of the Government servant in respect of each article of charge; (c) an assessment of the evidence in respect of each articles of charge; (d) the finding on each article of charge and the reasons therefore. Explanation : If in the opinion of the Inquiry Authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (ii) The Inquiry Authority, where it is not itself the Disciplinary Authority shall forward to the Disciplinary Authority the records of inquiry which shall included- (a) the report prepared by it under clause (i), (b) the written statement of defence, if any, submitted by the Government servant. (c) the oral and documentary evidence produced in the course of the inquiry. (d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry, and (e) the orders, if any, made by the Disciplinary Authority and the Inquiry Authority in regard to the inquiry." From the aforesaid provision, it is clear that after conclusion of the inquiry, the Inquiry Officer has to prepare the report which shall contain the articles of charge and the statement of imputations of misconduct or misbehaviour, the defence of the government servant and assessment of evidence in respect of each articles of charge and the findings on each article of charge and the reasons thereof. 13. 13. Thus, it is mandatory on the part of the Inquiry Officer to assess the evidence in respect of each article of charge and thereafter he has to give his own findings on each article of charge and his own reasons. 14. If we carefully examine the inquiry report which is produced at page 50A of the compilation, it is revealed that the Inquiry Officer has not at all assessed any evidence as required under the Rule nor he has recorded any finding or given any reason that how the charges levelled against the petitioner are proved. On the basis of such defective report, the disciplinary authority without remanding back the matter to the inquiry officer as contemplated under Rule 10 of the Discipline and Appeal Rules, imposed penalty of stoppage of two increments without future effect. 15. We are of the opinion that the Inquiry Officer has not complied with the mandatory requirement of Rule 9(22) of the Discipline and Appeal Rules and on the basis of such defective report, the order of penalty was passed which is not tenable in the eye of law. The Tribunal as well as the learned Single Judge have, in our opinion not properly considered the aforesaid important aspect of the matter. 16. In view of the aforesaid discussion, this appeal is allowed. The order dated 14.2.2011 passed by the disciplinary authority, order dated 4.3.2015 passed by the learned Tribunal in Appeal No. 31 of 2011 as well as the order dated 1.7.2016 passed by the learned Single Judge in Special Civil Application No. 20733 of 2015 are hereby set aside. The respondents are directed to release the increments and consequential benefits within a period of eight weeks from the date of receipt of this order. 17. As the appeal is allowed, no orders are required to be passed on the civil application. Hence, civil application is disposed off.