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2017 DIGILAW 881 (GUJ)

A. D. Chaudhari v. State of Gujarat

2017-04-25

A.S.SUPEHIA

body2017
JUDGMENT : A.S. Supehia, J. 1. Aggrieved by the Orders of premature retirement and penalty of reduction in pay, the petitioner has filed the present writ petitions. 2. In Special Civil Application No. 16567/2005, the petitioner has challenged order dated 29.07.2005 passed by the Deputy Secretary, Finance Department, wherein and whereby the respondent authority ordered premature retirement of the petitioner from service. In Special Civil Application No. 20419/2005, the petitioner has challenged the order dated 04.09.2004 passed by the respondent authority wherein he is imposed the punishment of reduction of pay by one stage of Rs. 375/- for one year without future effect. It is the case of the petitioner that he is prematurely retired from service in view of the penalty order dated 04.09.2004. 3. Since the aforesaid petitions are intrinsically connected, they are heard together and are being decided and disposed of by this common judgement. 4. Ephemeral facts: 4.1 The petitioner was appointed as Sales Tax Inspector on 27.05.1973. In due course, the petitioner was promoted as Sales Tax Officer (Class-II), Sales Tax Officer (Class-I), Assistant Commissioner of Sales Tax in the month of June 1996 and lastly, the petitioner was holding the post of Deputy Commissioner of Sales Tax, Gujarat State at the time of his premature retirement. 4.2 The petitioner had completed 55 years as on 25.2.2005, his date of birth being 25.02.1950. The petitioner would have retired on attaining the age of superannuation on 29.02.2008. 4.3 A departmental inquiry was duly conducted against the petitioner into the alleged irregularities to have been committed by him in A.Y. 1993-94. The authority issued a charge-sheet to the petitioner dated 30.08.1999. By order dated 23.03.2000 one Shri J.D. Dave, Retired Joint Secretary of the Government of Gujarat, was appointed as Inquiry Officer who after holding a departmental inquiry held the charges as partly proved. The Government did not agree with the findings of the Inquiry Officer and recorded its disagreement, which was communicated to the petitioner along with Letter dated 02.09.2002, to which the petitioner responded vide letter dated 16.09.2002. 4.4 The respondent authorities kept silent for a considerable long time and, after conclusion of the departmental inquiry, vide order dated 04.09.2004, imposed punishment of reduction of pay by one stage of Rs. 375/-for one year without future effect. 4.4 The respondent authorities kept silent for a considerable long time and, after conclusion of the departmental inquiry, vide order dated 04.09.2004, imposed punishment of reduction of pay by one stage of Rs. 375/-for one year without future effect. 4.5 Thereafter, vide communication dated 22.07.2005, the Joint Commissioner of Sales Tax, Bhavnagar, had asked for explanation from the petitioner on certain allegations made against him and one Shri Kamlesh Sondarva. However, before the petitioner could respond thereto, by impugned order dated 29.07.2005 (which is the subject matter of challenge in SCA No. 16567/2005) the Finance Department of the Government of Gujarat retired the petitioner on the ground of public interest in the purported exercise of powers conferred under Rule 10(4)(a) of the Gujarat Civil Services (Pension) Rules, 2002. Hence, by way of the aforesaid writ petitions the petitioner has assailed the impugned orders dated 29.07.2005 and 04.09.2004 respectively. 5. Learned advocate, Mr. Vaibhav Vyas appearing on behalf of the petitioner contended that the petitioner has not committed any misconduct as alleged by the respondent authority. He has submitted that the impugned order of punishment could not form the basis of not continuing the petitioner in service. He has urged that as the premature retirement is based on factor of penalty, it can be termed as penalty under Rule 6 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, He has relied on the judgement rendered by the Apex Court in the case of State of Gujarat v. Umedbhai M. Patel, A.I.R. 2001 S.C. 1109. He has also submitted that a sole incident of penalty cannot be a factor of putting an end to the service of an officer. Mr. Vyas submitted that in fact no irregularity was committed by the petitioner inasmuch as before passing the order it was pre-audited by higher authority of the petitioner and only after his approval the impugned order was passed. In the re-assessment the impugned order was modified by officer higher than him, against which further appeal was preferred wherein the appellate order was interfered partially and, therefore, it cannot be said that any irregularity was committed by the petitioner. Learned Advocate Mr. Vyas has urged that the Inquiry Officer vide his report did not find the charges of lack in integrity and honesty as proved. He has stated that the petitioner is only held liable of following a defective procedure. Learned Advocate Mr. Vyas has urged that the Inquiry Officer vide his report did not find the charges of lack in integrity and honesty as proved. He has stated that the petitioner is only held liable of following a defective procedure. He has placed reliance on the judgment dated 28.01.2016 passed by this Court in Special Civil Application No. 684 of 2002 for the proposition of law that the incorrect assessment done by the petitioner while performing his quasi-judicial duty cannot be termed as misconduct. 6. Learned advocate, Mr. Vyas has submitted that the time taken by the authorities at all stages goes to show that they were more interested in keeping the hanging sword over the head of the petitioner, instead to see to it that the inquiry is reached to its logical conclusion at an early stage. He has further submitted that the contentions raised by the petitioner on merits are not at all taken into consideration by the respondent authorities and if not mala fide, at least mechanically the petitioner was held guilty of the charges leveled against him. He has submitted that the case against the petitioner is of no evidence and the subsequent event demonstrates that the order was passed to get rid of the petitioner in an indirect way. 7. A grievance was voiced by the petitioner in the petition that before passing the impugned punishment order dated 04.09.2004 consultation with the Gujarat Public Service Commissioner (GPSC) appears to have been made and the advice of GPSC dated 08.04.2004 was said to have been taken into consideration, however, copy whereof was never supplied to the petitioner. Reliance is also placed on the decision of the Supreme Court in the case of Union of India v. S.K. Kapoor, (2011) 4 S.C.C. 589 in this regard. 8. Vehemently opposing the submissions made by the learned advocate for the petitioner, learned Assistant Government Pleader, Mr. Tirthraj Pandya has submitted that the Review Committee, after considering the Annual Confidential Reports (ACRs) as well as the penalty imposed upon the petitioner, recommended the case of the petitioner for premature retirement. He has submitted that as per the policy of the state government as envisaged in the government resolution dated 12.01.1999, the committee can consider the penalty imposed upon an employee for the purpose of premature retirement. 9. He has submitted that as per the policy of the state government as envisaged in the government resolution dated 12.01.1999, the committee can consider the penalty imposed upon an employee for the purpose of premature retirement. 9. So far as the penalty of reduction of pay by one stage of Rs. 375/- for one year without future effect is concerned, he has submitted that since the petitioner had not worked in the interest of the Government and had not shown proper devotion to his duty, the penalty was justified. He has further stated that because of such conduct of the petitioner it can be said that his integrity was doubtful. He has further stated that the GPSC had also consented to the penalty proposed by the Government and the non-supply of a copy of GPSC advise does not make any adverse impact on the quantum of punishment. Learned Assistant Government Pleader Mr. Pandya has finally submitted that the petitioner has belatedly challenged the penalty order dated 04.09.2004, after the order of premature retirement. Hence, the present petition is barred by delay and latches. No further contentions were raised. 10. Refuting the aforesaid submissions of Learned AGP, learned Advocate Mr. Vyas, in rejoinder, has submitted that as per the policy of the State Government envisaged in government resolution dated 12.01.1999, the last 10 years confidential reports are to be appreciated. He has submitted that the respondent authorities have considered the minor penalty of stoppage of reduction by one stage for one year without future effect for compulsory retiring him from service along with the communication of remark "Satisfactory", in the confidential report for year 1990-1991, which is beyond the period of 10 years as per the resolution dated 12.01.1999. In view of his submissions Mr. Vyas has urged that the pre-mature/compulsory retirement of the petitioner is liable to be quashed and set aside. 11. Heard the learned Advocates appearing on behalf of the respective parties. Perused the documents on record. 12. The affidavit-in-reply dated 28.09.2005 filed by Respondent in SCA No. 16567 of 2005 reveals that the petitioner was compulsory retired from service in public interest based on the review undertaken by the Committee under the policy issued by the General Administration Department vide Resolution dated 12.01.1999, which considered two factors i.e. penalty imposed vide order dated 04.09.2004 and adverse remark "satisfactory" communicated in the year 1990-91. 13. 13. Having regard to the additional aspect of imposition of penalty, the facts reveal that the petitioner was issued charge sheet dated 30.08.1999 for the alleged irregularities committed by him in the assessment year 1993-94 i.e., after a delay of five years. The inquiry officer submitted his report on 12.03.2001 holding him guilty of technical defects which did not suggest any oblique motive on behalf of the petitioner. The show cause notice for disagreement was issued on 02.09.2002 by the Respondent to which the petitioner responded on 16.09.2002, and the penalty was imposed on 04.09.2004. The Inquiry Officer after detailed examination of all the facts concluded that the petitioner is held be guilty of committing an irregularity due to technical defects, but the charge against him qua lacking in doubtful integrity and honesty is not proved. However, the disciplinary authority has concluded that such negligence can be termed as lacking in integrity and devotion of duty as envisaged under Rule 3(1)(i) and (ii) of the Gujarat Civil Services Conduct rules, 1971. In the opinion of this Court, the disciplinary authority was required to arrive at a definite finding attributing mala fide intention or doubtful integrity on the part of the petitioner in doing incorrect assessment. Merely the petitioner has followed a particular procedure being a technical defect in doing assessment cannot ipso facto suggest lack of integrity or honesty or devotion to duty. The scrutiny of the show cause notice dated 02.09.2002 calling upon the petitioner to tender his explanation contains the tentative decision of the disciplinary authority of fully proving the charge against the petitioner, which indicates predetermination on the part of the authority. In such circumstances, the tendering of the explanation by the petitioner to the show cause notice is a futile exercise, as the disciplinary authority has already held the charges to be fully proved in the show cause notice. Be that as it may, the perusal of the inquiry report and the impugned penalty order dated 04.06.2004 will disclose that the petitioner had followed a defective procedure while doing the assessment. The petitioner in his defense statement dated 16.09.2002 had stated that the other officers are also presently following the same procedure of assessment as adopted by him. Be that as it may, the perusal of the inquiry report and the impugned penalty order dated 04.06.2004 will disclose that the petitioner had followed a defective procedure while doing the assessment. The petitioner in his defense statement dated 16.09.2002 had stated that the other officers are also presently following the same procedure of assessment as adopted by him. He has stated that his assessment order was subject to further appeals, and the final reassessment in appeals shows that the assessment done by him was just and proper and the said reassessment is challenged by the traders before the Tribunal. The disciplinary authority has not examined the aforesaid feature and has only concluded that the procedure followed by the petitioner was not proper and the same will amount to lack in integrity and devotion to duty. The disciplinary authority was under an obligation to examine the appellate orders and order of Tribunal before concluding that the assessment done by the petitioner was upheld, modified or totally set aside. Such conclusion or finding would have suggested whether the assessment done by the petitioner can be characterized as an error of judgement or not. However, no specific finding is recorded on the issue whether the procedure adopted by the petitioner was tainted by mala fide intention or oblique motive. It is eminent that the petitioner was holding the post of Sales Tax Officer, Class-I having a quasi-judicial powers of carrying the assessment of Tax. At this stage it will be apposite to refer to the judgement reported in the case of Inspector Prem Chand v. Govt. of NCT of Delhi & Ors. 2007 (4) S.C.C. 566 , in which the Apex Court has held that an error of judgement cannot be held to be a misconduct. Similar view is expressed by this Court in the judgement dated 28.01.2016 passed in Special Civil Application No. 684 of 2002 wherein entire case law on the allied issue is discussed. Since the error of assessment committed by the petitioner was further subject matter of appeals, and the same was not infected by any ill-motive or doubtful integrity, the penalty of reduction in pay was not called for as the assessment was carried out by him while performing quasi-judicial duties. The respondents have not refuted the aforesaid contention of the petitioner that the order of assessment was further modified in appeals. The respondents have not refuted the aforesaid contention of the petitioner that the order of assessment was further modified in appeals. Thus, the impugned order of penalty deserves to be quashed and set aside as the passing of quasi-judicial orders of incorrect assessment by the petitioner due to technical defects cannot be termed as misconduct in light of the principles of enunciated in the abovementioned judgments. The court cannot be oblivious of the fact that the said penalty order has resulted in the pre-mature retirement of the petitioner. 14. Clause (3) of the policy laid down vide Resolution dated 12.01.1999 mentions about taking into consideration the penalty imposed on an employee for retiring him prematurely. The same also refers that the committee shall also consider and review all the facts which are proved in the departmental inquiry. Paragraph No. 9 of the affidavit dated 28.09.2005 filed by respondent discloses that while ordering premature retirement, the committee has considered the conduct of the petitioner which created doubt about his integrity. No report or material is produced on record which could suggest that such exercise was undertaken by the Committee. Thus, independent of the penalty imposed on the petitioner, it can be assumed that the order of premature retirement cannot be sustained as the committee did not apply its mind to the findings of the inquiry officer and order of the disciplinary authority which was a necessary and vital factor to be taken into account before cutting short the service of the petitioner. The sole reason for undertaking a review as envisaged under Rule (4)(a) of the Pension Rules, 2002 is to weed out an employee from the government service who is a dead wood or is tainted with doubtful integrity and honesty. It will be gainful to extract the principles laid down by the Supreme court in case of Umedbhai M. Patel (supra) relating to compulsory retirement in public interest under clause(aa)(i)(1) of Rule 161 of the Bombay Civil Services Rules (now Rule 10(4) (a) of the Gujarat Civil Services (Pension) Rules, 2002: "11. (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Art. 311 of the Constitution. (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Art. 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short-cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measures." The case of the petitioner is to be judged by the overarching principles laid down the Apex Court. The predominant principle which will apply in the present case of the petitioner is that premature/compulsory retirement could have been passed after having due regard to the entire service of the petitioner, and if an officer was given promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. As observed in foregoing paragraphs, the petitioner was promoted on regular intervals even after communication of "satisfactory" remark in his confidential report for the year 1990-91. Though, the communication of the entry does not get obliterated, subsequent promotions cannot be ignored. The respondents have not placed anything on record indicating that they had measured his performance by rendering credence to the entire service. The respondent authorities were under an obligation to carry out essential exercise on the issue whether a sole incident of penalty sans doubtful integrity and honesty and single entry in confidential report of "satisfactory" were adequate enough to pre-maturely retire the petitioner from service coupled with the fact that he was regularly promoted subsequently. In absence of any material signifying such exercise, the impugned order of premature retirement cannot be sustained. In absence of any material signifying such exercise, the impugned order of premature retirement cannot be sustained. The other principles which seems to have been violated by the respondent is that the petitioner is prematurely retired from service in order to avoid the departmental inquiry. By the communication dated 22.07.2005, the Joint Commissioner of Sales Tax, Bhavnagar, had called for an explanation from the petitioner on certain allegations made against him. However, before the petitioner could respond thereto, by impugned order dated 29.07.2005, the petitioner was prematurely retired. Thus, it can be inferred that the respondent without waiting for any explanation to the communication dated 22.07.2005, deemed fit to premature retire the petitioner by adopting a short-cut, which is contrary to the principle (vi) laid down by the Apex Court. This is yet another infirmity which is fatal for the order of premature retirement. 15. The undisputed fact is that the petitioner is prematurely retire from service under the policy laid down vide government Resolution dated 12.01.1999. Insofar as communication of adverse remark in the confidential reports is concerned it is liable to be ignored for the purpose of compulsory retirement as the same is beyond the period of 10 years as envisaged in resolution dated 12.01.1999. Clause 2 of the said Resolution speaks of considering last 10 years' confidential reports while undertaking review at the age 50-55 years of an employee for the purpose of premature/compulsory retirement. Thus, the aforesaid clause debars the respondent from considering the adverse remark which was communicated to the petitioner in the year 1990-91 for prematurely retiring him from service in the year 2005. Since, the impugned order dated 29.07.2005 suffers from the aforesaid infirmity, the same is liable to be quashed and set aside. Furthermore, the petitioner was promoted to the higher posts in regular intervals, thus, he cannot be embellished as dead wood inviting compulsory retirement. Considering the foregoing observations and analysis, the order dated 29.07.2005, prematurely retiring the petitioner from service deserves to be quashed and set aside. 16. So far as the contention of the learned AGP concerning delay in challenging the penalty order is concerned the same cannot said to be inordinate looking to the date of penalty order i.e., 04.09.2004. The petition challenging the same was filed in 2005. 16. So far as the contention of the learned AGP concerning delay in challenging the penalty order is concerned the same cannot said to be inordinate looking to the date of penalty order i.e., 04.09.2004. The petition challenging the same was filed in 2005. Since the petitioner was compulsory retired on the basis of penalty of reduction of pay, the challenge cannot be whittled down on the ground or delay. 17. On the deliberation of the submissions advanced by the learned Advocate for the petitioner, the other lacuna which I find in the aforesaid disciplinary proceedings is non-supply of the GPSC advice to the petitioner before passing the penalty order. The contention of the respondent that non-supply of the copy of the advice of the Gujarat Public Service Commission will not make an adverse impact on the penalty order, runs contrary to the law laid down by the Supreme Court in the case of S.K. Kapoor (supra), which states that the copy of the advice, if relied upon, shall be supplied in advance to the concerned employee, otherwise, there will be violation of principles of natural justice. Thus, the impugned order of penalty is also liable to be quashed and set aside on the ground of non-supply of the GPSC advice before passing the impugned order. It will not be apposite for this Court to remand the matter for reconsidering at this stage, since the petitioner has already retired from service in the year 2005. Hence, the order of penalty dated 04.09.2004 is liable to be quashed and set aside. As a consequence, the order of premature retirement which is premised on said order will also meet the same fate. However, bearing in mind, the facts and circumstances of the present case, the petitioner will not be entitled to back wages for the intervening period. 18. On the foundation of the foregoing observations and analysis, the following directions are issued: "(a) The order of penalty dated 04.09.2004 and the order dated 29.07.2005 pre-maturely retiring the petitioner from service are quashed and set aside. (b) The petitioner is deemed to have continued in service till his age of superannuation i.e. 29.02.2008. (c) However, it is made clear that he will not be entitled to back wages for the aforesaid period, and the period from 29.07.2005 till 29.02.2008 shall be considered as notional for fixation of pensionary benefits. (b) The petitioner is deemed to have continued in service till his age of superannuation i.e. 29.02.2008. (c) However, it is made clear that he will not be entitled to back wages for the aforesaid period, and the period from 29.07.2005 till 29.02.2008 shall be considered as notional for fixation of pensionary benefits. Accordingly, the petitioner shall be paid the revised pensionary benefits w.e.f 01.03.2008. (d) The pay, pension and other retirement benefits shall be fixed and paid as if the order dated 04.09.2004 imposing the penalty of reduction in pay of Rs. 325/- in the pay scale of Rs. 10,000-15,200/- by one stage, for one year without future effect was not in existence. (e) The above-mentioned directions shall be complied within a period of three months from today." 19. Rule is made absolute. The petitions are allowed.