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2017 DIGILAW 891 (GUJ)

Alimiya Gulamrasul Shaikh v. State of Gujarat

2017-04-26

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The petitioner by way of present petition under Article 226 of the Constitution of India has prayed for issuance of an appropriate writ/order for quashing and setting aside the inquiry which was held by the respondents and the order dated 28.07.2005 passed by the respondent No. 2 at Annexure-Z. 2. The brief facts giving rise to the present writ petition are as under:- 2.1. The petitioner is a handicapped person, and he was appointed on 05.11.1974 as a Clerk in the Sub-Registrar Office, Dhandhuka, District Ahmedabad. Thereafter, he was appointed as a Clerk on 15.01.1984 in the office of the respondent No. 2. By order dated 07.07.1986, he was promoted as a Sub-Registrar, Grade II at Dasada Patadi, District Surendranagar, and thereafter, he was transferred from time to time. Again he was promoted by the order dated 09.12.1997, and was posted at Sub-Registrar, Grade-I, Odhav, Ahmedabad. Thereafter, he was posted at Gandhinagar as Sub-Registrar, Grade-I, and from 09.05.2002, he was posted at the office of the Deputy Collector, Valuation, Division-I, Ahmedabad. Lastly, he was transferred to the office of the Sub-Registrar, Grade-I, Narol, Ahmedabad from 04.07.2002. 2.2. When he was serving as Sub-Registrar, Narol, he received a show-cause notice dated 22.03.2002 issued by the respondent No. 2 alleging certain misconduct like tampering with Government records misplacing of office copy, documents etc. and had put the Government in loss for Rs.2,36,935/- towards stamp duty, and Rs.29,670/- towards registration fees. The disciplinary action was initiated against the petitioner and explanation was sought within 15 days. The petitioner submitted his detailed explanation, and thereafter, a full-fledged inquiry was conducted. The Inquiry Officer recorded findings against the petitioner, and thereafter, the disciplinary authority inflicted punishment based on the findings recorded by the Inquiry Officer, and accordingly, the petitioner was ordered to compulsorily retire from service. 2.3. Being aggrieved and dissatisfied with the said order, the petitioner filed Special Civil Application No. 4848 of 2004 before this Court. The Inquiry Officer recorded findings against the petitioner, and thereafter, the disciplinary authority inflicted punishment based on the findings recorded by the Inquiry Officer, and accordingly, the petitioner was ordered to compulsorily retire from service. 2.3. Being aggrieved and dissatisfied with the said order, the petitioner filed Special Civil Application No. 4848 of 2004 before this Court. The said Special Civil Application was allowed vide order dated 13.10.2004, and the impugned order dated 08.04.2004 passed by the Inspector General of Registration and Superintendent of Stamps was ordered to be set aside with a liberty to respondents to issue a fresh notice to the petitioner along with copy of the Inquiry Officer's report, and proceed with the inquiry from that stage, and the petitioner was reinstated in service on 29.12.2004. Thereafter, the inquiry proceeded from that stage again the respondent authority supplied a copy of the inquiry report on 07.01.2005 to the petitioner, and the petitioner requested to the respondent authorities to supply certain documents. In pursuance to the request made by the petitioner for supply of documents, the respondent authorities informed the petitioner to inspect the record by its communication dated 12.04.2005. The petitioner submitted his explanation on 05.03.2005, and thereafter, the disciplinary authority passed an order of compulsory retirement of the petitioner from the services prior to 3 months of his reaching the age of superannuation. 3. Learned advocate Mr. R.V. Deshmukh appearing for the petitioner submits that while allowing the Special Civil Application No. 4848 of 2004, the respondents were directed to supply copy of the documents, and to provide him reasonable opportunity of being heard. It is submitted despite the said direction, the petitioner was not supplied all the relevant documents, and no opportunity of being heard was given before passing final order by the disciplinary authority. It is also submitted that the findings recorded by the Inquiry Officer as well as the disciplinary authority cannot be treated as findings. 3.1. Mr. Deshmukh learned advocate for the petitioner further submits that the order passed by the respondent is in clear contravention of the principles of natural justice as the necessary documents were not supplied to the petitioner. It is also submitted that the findings recorded by the Inquiry Officer as well as the disciplinary authority cannot be treated as findings. 3.1. Mr. Deshmukh learned advocate for the petitioner further submits that the order passed by the respondent is in clear contravention of the principles of natural justice as the necessary documents were not supplied to the petitioner. It is submitted that the petitioner had approached this Court on earlier occasion, and this Court was pleased to set side the order passed by the respondent mainly on the ground of violation of principles of natural justice and on the ground of non supply of inquiry report. However, while conducting fresh inquiry also, the respondent authorities have not taken care of this aspect. It is further submitted that the charges levelled against the petitioner are not discussed in detail, and the evidence adduced on record is also not discussed nor any reason is assigned for arriving at a particular conclusion. While referring the inquiry report, It is submitted that the Inquiry Officer has recorded the submissions presented on behalf of the presenting officer as well as the submissions made on behalf of the delinquent. It is further submitted that while recording the findings, the inquiry officer has merely noted that in view of the presentation made on behalf of the presenting office, the charge is proved against the delinquent. 3.2. Learned advocate for the petitioner further submits that the Inquiry Officer has not followed the provisions of Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. It is submitted that Rule 9 provides for procedure to be followed by the Inquiry Officer before imposition of penalty. According to learned advocate for the petitioner, Sub Rules 3, 10, 13, 14, 15, 16, 17 and 22 of Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 were not followed by the Inquiry Officer, and therefore, on this ground the entire inquiry proceedings are required to be set aside. 3.3. Learned advocate for the petitioner further submits that the disciplinary authority has also failed to appreciate the manner in which the findings were recorded by the Inquiry Officer, and the penalty is disproportionate to the charges levelled against the delinquent. 3.3. Learned advocate for the petitioner further submits that the disciplinary authority has also failed to appreciate the manner in which the findings were recorded by the Inquiry Officer, and the penalty is disproportionate to the charges levelled against the delinquent. It is further submitted that punishment was inflicted prior to three months of his retirement, and the petitioner is now aged about 70 years, and is physically handicapped, and therefore, the petitioner may not be referred to statutory authority for filing an appeal at this stage. It is submitted that this writ petition was admitted in the year 2006 and by now almost 10 to 11 years have passed, and therefore, on the grounds canvassed by the petitioner before this Court, the issues which have been raised in the present petition may be decided by this Court without asking the petitioner to avail the alternative remedy. 4. Learned advocate Mr. R.V. Deshmukh for the petitioner has cited the following decisions in support of his case:- "(i) Anant R. Kulkarni versus Y.P. Education Society and Others reported in (2013) 6 SCC 515 . (ii) Roop Singh Negi versus Punjab National Bank and Others reported in (2009) 2 SCC 570 . (iii) Anil Kumar versus Presiding Officer and Others reported in AIR 1985 SC 1121 . (iv) Syndicate Bank and Others versus Venkatesh Gururao Kurati reported in (2006) 3 SCC 150 . (v) State of Uttar Pradesh and Another versus Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others reported in (2008) 12 SCC 675 . (vi) V. Vellaswamy versus Inspector General of Police, Tamil Nadu, Madras and another reported in AIR 1982 SC 82 . (vii) P.V. Shetty versus B.S. Giridhar reported in AIR 1982 SC 83 . (viii) Dr. (Smt.) Kuntesh Gupta versus Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others reported in (1987) 4 SCC 525 ." 5. Learned Assistant Government Pleader Ms. Asmita Patel appearing for the respondent State while opposing the present petition submits that the present petition is not maintainable as an alternative efficacious remedy is available to the petitioner. In this context, it is submitted that under Rule 18 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, the petitioner is required to approach the Gujarat State Civil Services Tribunal by way of filing an appeal. In this context, it is submitted that under Rule 18 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, the petitioner is required to approach the Gujarat State Civil Services Tribunal by way of filing an appeal. The Gujarat Civil Services Tribunal is having jurisdiction to deal with and decide such appeal under Section 11 of the Gujarat Civil Services Tribunal Act, 1972. It is submitted that the decisions referred to and relied upon by the learned advocate for the petitioner on the point of the alternative remedy will not help the case of the petitioner in light of the subsequent decision rendered by the Hon'ble Apex Court in the case of State of Uttar Pradesh another versus Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others reported in (2008) 12 SCC 675 . Learned Assistant Government Pleader has referred to paragraphs 37 and 38 of the said judgment, which are produced here-in-below:- "37. We have given most anxious and thoughtful consideration to the rival contentions of the parties. So far as preliminary objection raised by the Corporation before the High Court is concerned, in our considered view, the same was well-founded and ought to have been upheld. It was urged before the High Court on behalf of the Corporation and the State Government that the writ petition was premature inasmuch as no retrenchment had been effected. Several disputed questions of fact were involved in the petition. If the contention of the Samiti was that there was illegal closure of Undertaking or there was non-payment of wages by the employer, appropriate proceedings could have been initiated under Industrial Law. In fact, one of the Judges of the Division Bench upheld the contention and observed that the employees could have claimed closure compensation under Section 25 FFF of the Act or could have approached prescribed authority under the Payment of wages Act relying upon Section 33C(2) of the Act or Section 6H(2) of the U.P. Industrial Disputes Act. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that "the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed". (emphasis supplied). 38. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that "the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed". (emphasis supplied). 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the 'head note' of All India Reporter (AIR), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant paragraph 2 of the decision reads thus: "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed". (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ-petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ-petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner." 6. The learned Assistant Government Pleader submits that there cannot be a proposition of law that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. Learned Assistant Government Pleader submits that the order passed by the disciplinary authority is in accordance with law, and there is no procedural lapse or lacuna in the said order. It is submitted that the petitioner was given reasonable opportunity of being heard before passing the impugned order, and as such, there is no infirmity in the said order. However, without entering into the merits of the order passed by the disciplinary authority, the petitioner may be asked to prefer an appeal, which is a statutory remedy available under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 7. In response to the above submissions, learned advocate for the petitioner submits that the decision cited by the learned Assistant Government Pleader does not helps the case of respondent in light of the facts and circumstances stated above. 8. Regard being had to the above submissions, and considering the facts and circumstances of the case, it appears that the Inquiry Officer has recorded the submissions advanced by the presenting officer as well as the submissions advanced by the delinquent, and thereafter, the finding is recorded to the effect that in view of submissions advanced by the presenting officer charges are proved against the delinquent. The Inquiry Officer has neither referred nor appreciated any evidence on record. However, the disciplinary authority has inflicted punishment based on such findings. The Inquiry Officer has neither referred nor appreciated any evidence on record. However, the disciplinary authority has inflicted punishment based on such findings. The disciplinary authority while inflicting punishment of compulsory retirement was required to take into consideration the gravity of the charges levelled against the delinquent as also the evidence appreciated by the Inquiry Officer while recording such findings alongwith other factors such as length of service, past service record, and other circumstances, including the family circumstances of the petitioner in the case of imposition of major punishment which is likely to result into economic death of a person. In the instant case, the disciplinary authority has inflicted punishment of compulsory retirement. Looking to the peculiar facts and circumstances of the present case, the matter is required to be remitted back for the purpose of conducting denovo inquiry as there is procedural lacuna as well as certain errors and mistakes committed by the Inquiry Officer while recording the findings. But in the instant case, the petitioner is a retired employee, aged about 70 years, and he is a physically handicapped person, therefore, in the event of remitting the case to the Inquiry Officer for conducting denovo inquiry such proceedings are likely to take a long period again. Therefore, having regard to the facts and circumstances of the present case, with a view to strike the balance between two, this Court is of the view that the punishment inflicted by the disciplinary authority is required to be reduced considering the nature and gravity of the charges. 9. This Court is, therefore, of the view that as per proviso to Sub Rule 5 of Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, as part of major punishment, the petitioner is required to be reduced to lower scale for a period of two years without any future effect. The petitioner is required be given the retiral benefits in accordance with Rules. However, the financial loss caused to the Government is required to be recovered from the present petitioner out of the retiral dues payable to the petitioner. The calculation given by the learned Assistant Government Pleader with respect to loss caused to the Government comes to Rs. 5,19,400/- whereas, as per the show-cause notice, the same amount is indicated as Rs. 2,66,605/-. The calculation given by the learned Assistant Government Pleader with respect to loss caused to the Government comes to Rs. 5,19,400/- whereas, as per the show-cause notice, the same amount is indicated as Rs. 2,66,605/-. But according to learned Assistant Government Pleader, in the show-cause notice, the amount was not calculated in respect of all the charges levelled against him. But in absence of any documents to substantiate the said calculation, there is a reason to believe that the calculation given by the learned Assistant Government Pleader is a tentative figure or rather tentative estimated figure. Having regard to the facts and circumstances of the present case, with a view to strike the balance, this Court is of the view that the loss caused to the government on account of misconduct of the petitioner to the tune of Rs. 3,50,000/- shall be recovered from the arrears payable to the petitioner. Rule is made absolute to the aforesaid extent.