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2019 DIGILAW 1034 (GUJ)

V. J. Moria v. State of Gujarat

2019-10-23

S.R.BRAHMBHATT

body2019
JUDGMENT : S.R. Brahmbhatt, J. 1. Heard learned counsels for the parties. 2. The present petition has been taken-out for seeking following reliefs. "A. Quashing and setting aside the order of penalty dated 13th September 2004 (Annexure 'F') imposing monthly cut of Rs. 300/- for 3 years and direct the respondent to refund the amount, if any, deducted from the pension of the petitioner. B. During the pendency and final disposal of this petition, Respondent may be restrained from further implementing the order dated 13th September 2004. C. To grant such other and further relief's as may be deemed fit." Thus, what is essentially under challenge is the order dated 13th September 2004, whereunder by way of punishment pursuant to the disciplinary action against the petitioner Rs. 300/- cut was ordered to be effected from his pension for the period of three years. 3. The facts in brief as could be gathered from the memo of the petition deserves to be set-out as under:- 3.1 The petitioner was initially appointed as Taluka Development Officer in the year 1968. Thereafter, the petitioner was promoted as Additional Collector in the year 1992. On 13th April 2000, a charge-sheet was issued to the petitioner for holding departmental inquiry in to certain charges. An inquiry officer was appointed to hold the departmental inquiry. 3.2 The inquiry officer as per his report found charge nos. 1, 5 and 6 as partly proved and charge nos. 2, 3, 4, 7, 8 and 9 as not proved. The State Government did not agree with the inquiry report with regard to charge nos. 4 and 6. The petitioner was called-upon to make his representation against the inquiry report as well as finding as by letter dated 25th March 2003 charge no. 4 held as partly proved and charge no. 6 as fully proved. 3.3 The petitioner on 8th April 2003 sent his representation against the inquiry report as well as against the findings of the inquiry officer. The representation of the petitioner was sent to the Adijat Vikas Department for its opinion by the respondent. The Adijat Vikas Department supplied its opinion to the respondent and after considering that opinion, by the order dated 13th September 2004 the respondent imposed a monthly pension cut of Rs. 300/- for 3 years on the petitioner. Hence, the present petition. 4. The Adijat Vikas Department supplied its opinion to the respondent and after considering that opinion, by the order dated 13th September 2004 the respondent imposed a monthly pension cut of Rs. 300/- for 3 years on the petitioner. Hence, the present petition. 4. Learned counsel for the petitioner invited Court's attention to the order impugned at page no. 53 and submitted that the said order does not disclose any reasoning, which would justify imposition of punishment. Learned counsel appearing for the petitioner also invited Court's attention to the guidelines issued by the State as to how and in what manner the final orders are to be passed and submitted that the final order cannot be said to be passed inconsonance therewith. 5. Learned counsel appearing for the petitioner further submitted that when the disciplinary authority had itself agreed with the findings that the inquiry officer qua the charges which were held to be not proved by the inquiry officer, then there ought to have been clear notice as it is observed in the case of Yoginath Bagde Vs. State of Maharashtra reported in AIR 1999 Supreme Court 3734 and it is submitted that the advice tendered by the GPSC on 21st August 2004 was also not supplied though the same is not very clearly taken in the pleadings of the petition. But that being a matter of clear law and as it is established from the order impugned, one can emphatically submit that there was no supply of advice of GPSC. 6. Learned AGP for the respondent-State invited Court's attention to the affidavit-in-reply and submitted that the serious charge of dereliction in duty and lack of integrity was labelled against the petitioner and after due procedure of law, the punishment was imposed, which this Court may not interfere with. 7. Learned AGP further submitted that the GPSC's advice, which was in the form of concurrence with the proposed punishment, non-supply thereof also would not have vitiated the order as it would not have been in any manner prejudicial to the petitioner. 8. Learned AGP for further submitted that the reasons were clearly supplied for disagreeing with the inquiry report and therefore, decision of the Supreme Court in case of Yoginath Bagde (supra) will have no applicability. 9. 8. Learned AGP for further submitted that the reasons were clearly supplied for disagreeing with the inquiry report and therefore, decision of the Supreme Court in case of Yoginath Bagde (supra) will have no applicability. 9. Learned AGP invited Court's attention to the para-7 of the reply and from the impugned order to indicate that the opportunity of being heard was afforded on the disagreement. 10. The Court has heard learned counsels for the parties and perused the accompanying papers of the petition. It is required to be noted that the petitioner was appointed in the year 1968 as TDO and thereafter he continued as such. The petitioner was to retire on attaining the age of superannuation w.e.f. 30th April 2001. However, as he was served with the charge-sheet under the provisions of section, which were for disciplinary action while retiring him, an order was made indicating that as per the provisions of Rule-189 of the BCSR, initiation of the disciplinary proceedings will continue as he was not in service. Accordingly, the same is concluded wherein the inquiry officer held that the charge nos. 1, 4 and 5 were partly proved and rest of the charges not proved. The disciplinary authority after recording its reasoning indicated the same in the order without affording the opportunity of hearing to the petitioner. This is not dealt with at all in the impugned order and the guideline issued by the Government itself in respect of rendering the final order on disciplinary proceedings clearly indicated that the order has to be reasoned. The Court in fact has elaborately dealt with on the aspect of the requirement of providing the copy of the advice of GPSC as required in the rule 10(4). In the instant case, the petitioner has articulately raised this ground in paragraph no. 13 of this petition, Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 deserve to be set-out as under:- "(10) As per sub-rule (4) of Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, it was obligatory on the part of the State Government to get the advice of the Gujarat Public Service Commission before imposing the penalty. Rule 10 Sub rule (4) reads as under: "10 (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in items (4) to (8) should be imposed on the government servant, it shall make an order imposing such penalty it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government servant." In fact a copy of the advice of the Commission as per the letter dt. 5.4.2005 was given to the petitioner along with the impugned order of penalty. Hereto annexed and marked Annexure 'G' is a copy of the letter dt. 5.4.2005. As held by this Hon'ble court in the case of B.J. Javed vs. State of Gujarat, 2005 (2) G.L.H. 334 , the non-supply of the advice of the Commission to a delinquent before imposing the penalty would render the order of penalty illegal. Similar view is taken by this Division Bench of this Hon'ble Court in the judgment dt. 8.12.2004 rendered in S.C.A. No. 15316 of 2004. Hereto annexed and marked Annexure 'H' is a copy of the judgment. In the present case also the impugned order is liable to be quashed and set aside since a copy of the advice of the Gujarat Public Service Commission was not supplied to the petitioner before imposing the penalty." 11. The said rule has been considered by this Court in the decision in case of B.J. Javed V/s. State of Gujarat, reported in 2005 (2) G.L.H. 334 . 12. The order impugned clearly mentions that while passing the order, the advice of GPSC was taken into consideration. The respondent chosen not to file any reply nor establish anywhere that the report or advice of GPSC was furnished to the petitioner-delinquent. 12. The order impugned clearly mentions that while passing the order, the advice of GPSC was taken into consideration. The respondent chosen not to file any reply nor establish anywhere that the report or advice of GPSC was furnished to the petitioner-delinquent. Now, that advice is not supplied to the petitioner and therefore, to that extent the same is violative of the principle of natural justice as held by Supreme Court in case of Union of India and others V/s. S.K. Kapoor, reported in (2011) 4 Supreme Court Cases 589 as well as by this Court in case of B.J. Javed (supra). 13. This Court is of the view that the order impugned cannot be sustained on two counts viz. the order impugned unfortunately is bereft of any reason whatsoever, which would reveal the reasoning and application of mind on the part of the authority and in addition thereto one more ground available to quashed the order is the admitted fact that advice of the disciplinary authority does not seem to have been obtained after supplying the entire record to the authority and the advice was not supplied to the petitioner prior to passing the order and that being the requirement of law, the order impugned cannot be sustained. The fact remains to be noted that the disciplinary proceedings are of the year 2001 and the matter is that of the year 2004, the impugned order was passed on 13th September 2004, therefore, this Court is of the considered view that the order impugned is required to be quashed and set aside. 14. As a result thereof, the petition is allowed. The impugned order dated 13th September 2004 is hereby quashed and set aside. The petitioner is therefore, entitled to receive the difference in pension along with the required benefits as if the said impugned order had never been passed. Rule made absolute. However, there shall be no order as to costs.