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Gujarat High Court · body

2019 DIGILAW 798 (GUJ)

Shivshankar Jivram Pandya v. State of Gujarat

2019-09-09

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking quashing and setting aside the orders dated 04.11.2004 and 31.05.2007 imposing 100% reduction of the pension. 2. The brief facts of the case are as under: 2.1 The petitioner was working as a Senior Clerk in the Primary Health Center (PHC), Shivrajpur and upon reaching the age of superannuation, a proposal dated 21.03.2003 to permit the petitioner to retire was made by the Medical Officer, PHC, Shivrajpur and accordingly, by the order dated 29.03.2003, the petitioner was permitted to retire w.e.f. 31.03.2003 and the order of sanctioning pension to the petitioner dated 14.07.2003 came to be passed. Accordingly, all the pension papers and other retirement dues were calculated by the Department and the petitioner was paid all retirement dues and his pension was being credited in his Bank Account with the State Bank of India, Kalol Branch, Dist. Panchmahals by the Treasury Office till February, 2004, but when he approached the Bank on 05.03.2004 for withdrawal of funds from his account, he was informed by the Bank Manager that his account was stayed and therefore, he was not given the fund. Thereafter, the Sub-Treasury Officer, Halol, Dist. Panchmahals by the letter dated 24.03.2004 informed the petitioner that pursuant to the communication dated 05.03.2004 issued by the Taluka Development Officer, Godhra, Dist. Panchmahals the payment of pension fund to the petitioner is stopped. 2.2 It is the case of the petitioner that on 13.03.2004, a criminal complaint came to be filed against the petitioner by the Medical Officer, PHC, Shivrajpur, Taluka Halol, Dist. Panchmahals. Thereafter, the notice dated 03.11.2004 came to be served upon the petitioner alleging that during his service tenure at Pandarwada, he had misappropriated a sum of Rs. 75,684/- and Rs. 7,455/-, for which departmental proceedings were held and the Inquiry Officer and the Internal Audit Officer, District Panchayat, Godhra, Dist. Panchmahals had submitted his inquiry report dated 04.02.1988 to the District Development Officer, Panchmahals at Godhra, wherein the petitioner was held guilty and therefore, for imposing heavy penalty upon him, a letter dated 14.08.2000 was written to the Secretary, Gujarat Panchayat Service Selection Board (for short "the Board"). Panchmahals had submitted his inquiry report dated 04.02.1988 to the District Development Officer, Panchmahals at Godhra, wherein the petitioner was held guilty and therefore, for imposing heavy penalty upon him, a letter dated 14.08.2000 was written to the Secretary, Gujarat Panchayat Service Selection Board (for short "the Board"). Thereafter, it was alleged that a confidential letter dated 20.05.2002 was fabricated by the petitioner, wherein the Secretary, Gujarat Panchayat Service Selection Board recommended that "since the petitioner was exonerated by the Court from the charges of misappropriation, he should be exonerated". In view of the doubt with regard to the signature of the Secretary on the aforesaid letter dated 20.05.2002, by the letter dated 17.02.2004, the District Development Officer sought clarification from the Secretary, Gujarat Panchayat Service Selection Board who, by his letter dated 01.03.2004, informed that the letter dated 20.05.2002 had not been issued by the office of the Board. 2.3 It is alleged that since the petitioner was knowing that the inquiry report was against him and that he would not get the pensionary benefits, with a view to get such benefits, the petitioner has fabricated the letter or got fabricated or abetted in fabricating such false document in collusion with one Mr. Upadhyaya, Junior Clerk of the said office and has cheated the Government and has got fabricated retirement & pensionary benefits orders and has got all the retirement dues. By the show-cause notice dated 03.11.2004, the petitioner was informed that his pension order was stayed and was asked to deposit the amount of his retirement dues within three (3) days and he was also asked to submit his explanation within seven (7) days from the receipt of the said notice as to why the punishment of 100% cut in the pension and cancellation of all retirement dues should not be inflicted upon him. Though, the show-cause notice was served asking the petitioner to submit his explanation within seven (7) days, immediately on the next day of service of the said notice, without giving the petitioner any opportunity to explain the accusations levelled against him, by the order dated 04.11.2004, the District Development Officer cancelled the order dated 29.03.2003 ab initio and cancelled the order of payment of pension to the petitioner. By the order dated 31.05.2007, District Development Officer, Godhra, Dist. By the order dated 31.05.2007, District Development Officer, Godhra, Dist. Panchmahals imposed punishment of total reduction of the pension and also cancelled the retirement benefits of the petitioner. 3. Learned advocate Mr. R.D. Kinariwala appearing for the petitioner has submitted that with regard to the allegation of misappropriation, Criminal Case No. 1901 of 1995 before the Judicial Magistrate, First Class (JMFC) at Lunavada was filed against the petitioner, in which he came to be acquitted by the Court vide order dated 21.12.1999. He has submitted that pursuant to the said order, the suspension period of the petitioner came to be regularized and ultimately, he came to be retired by the concerned authorities. It is further submitted that the departmental inquiry was also held by the concerned authorities in respect of the alleged misappropriation and as stated in the order dated 03.11.2004, the inquiry report was submitted by the Inquiry Officers on 04.02.1988 but for the reasons best known to the authorities, after a lapse of twelve (12) years and six (6) months, the department sought opinion of the Board with regard to the punishment to be imposed upon the petitioner and the Board advised that in view of the acquittal of the petitioner by the Court, he is to be exonerated from the said charges and accordingly, all subsequent orders were passed by the concerned authorities. He has further submitted that the petitioner was never given a copy of the said report dated 04.02.1988 and no opportunity to meet with the findings of the inquiry report was given and no further action was taken for all these more than twelve (12) years on the said inquiry report. 3.1. Learned advocate has further submitted that after the petitioner retired from the service, allegations regarding fabricating the documents came to be made against him and a criminal complaint has also been lodged against the petitioner, which is still pending. He has submitted that this is a new allegation against the petitioner to deprive him from getting pension and other retirement dues. He has submitted that the petitioner was also given a show- cause notice dated 03.11.2004 with regard to the said allegations and all the orders have been passed after his retirement. 3.2. He has submitted that this is a new allegation against the petitioner to deprive him from getting pension and other retirement dues. He has submitted that the petitioner was also given a show- cause notice dated 03.11.2004 with regard to the said allegations and all the orders have been passed after his retirement. 3.2. He has further placed reliance on Rule 24(2)(b) (i) of the Gujarat Civil Services (Pension) Rules, 2002(GCSR)(Pension) and has submitted that the respondent-District Development Officer had no authority of imposing such punishment since as per the provision of Rule 24 of the GCSR, the competent authority would be the Governor and without approval of the Governor, no punishment order can be passed since the petitioner has already retired from the service on 29.03.2003. He has further submitted that while passing the impugned order of punishment, reliance is also placed by the respondent-District Development Officer upon the advice of the Board hence, it was obligatory upon the respondent authority to supply a copy of the same in view of Rule 26 of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 (GPS Rules). He has also placed reliance on the judgment of the Apex Court in the case of Union of India and Ors. Vs. R.P. Singh, (2014) 7 SCC 340 . Thus, he has submitted that the impugned orders may be quashed and set aside since the same are illegal and against the Rules. 4. Per contra, learned advocate Mr. U.M. Shastri for the respondent No. 2 has submitted that the impugned order of punishment does not require interference of this court since the same is passed looking to the serious misconduct of the petitioner and after taking advice of the Board, which had referred to impose 100% cut in pension. He has submitted that the punishment order has been passed under the provision of Rules 23 and 24 of the GCSR, which provide right to cut and withdraw the pension. Thus, he has submitted that the impugned orders may not be set aside. 5. This court has given thoughtful consideration to the submissions advanced by the learned advocates for the respective parties. 6. The facts, which are not in dispute are that the petitioner, who was serving as a Senior Clerk under PHC, Shivrajpur had reached superannuation on 21.03.2003 and he was also permitted to retire by the order dated 31.03.2003. 5. This court has given thoughtful consideration to the submissions advanced by the learned advocates for the respective parties. 6. The facts, which are not in dispute are that the petitioner, who was serving as a Senior Clerk under PHC, Shivrajpur had reached superannuation on 21.03.2003 and he was also permitted to retire by the order dated 31.03.2003. The impugned order dated 31.05.2007 is passed by the respondent No. 2-District Development Officer imposing 100% cut in the pension of the petitioner. The aforesaid order is passed after a period of five (5) years from the date of retirement of the petitioner. Though, the impugned order does not refer to any provision of law, under which the same is passed, it appears from the submissions advanced by the learned advocate of the respondent No. 2 that the same is passed under the provision of Rule 24 of the GCSR. At this stage, it would be apposite to incorporate the provision of Rule 24 of the GCSR (Pension) in order to ascertain true nature of the Rule: "24. Right of Government to withhold or withdraw pension: (1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement: Provided that the Gujarat Public Service Commission shall be consulted before any final order is passed in respect of officers holding posts within their purview: Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government employee had continued in service. (b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his reemployment- (i) shall not be instituted save with the sanction of the Governor, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government employee during his service. (3) In case of a Government employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule 144 to 146 shall be sanctioned. (4) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of sub-rule (1) of this rule, ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government employee. (5) For the purpose of this rule:- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government employee or pensioner, or if the Government employee has been placed under suspension from an earlier date, on such date or if any decision is taken by the Competent Authority for either of it, and (b) judicial proceedings shall be deemed to be instituted- (i) in case of criminal proceedings, on the date on which the complaint registered or any decision is taken to register the complaint by the Competent Authority or report is made by a police officer of which the Magistrate takes cognizance, and (ii) in case of civil proceedings, on the date of presenting the plaint in the court or any decision is taken by the Competent Authority to initiate civil proceedings." 6.1. Rule 24(b) of the GCSR (Pension) stipulates that the departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment shall not be instituted, save with the sanction of the Governor. 6.2. Rule 24(b) of the GCSR (Pension) stipulates that the departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his re-employment shall not be instituted, save with the sanction of the Governor. 6.2. In the instant case, nothing is brought on the record whether any sanction of the Governor is obtained by the respondent No. 2 before imposing penalty of cut in pension. The sub-rule 2(b)(i) of Rule 24 of the GCSR (Pension) provides that departmental proceedings if not instituted, while Government employee was in service whether before his retirement or during his re-employment, shall not be instituted without prior permission of the Governor. No such sanction of the Governor is obtained before passing of the impugned order imposing 100% cut of pension. It is also appears that no documents, which are relied upon by the respondent authorities have been supplied to the petitioner and straight way, the respondent authorities have proved the charges against the petitioner without holding any departmental proceedings. 7. The penalty of cut in pension does not figure in Rule 6 of the Gujarat Panchayat (Discipline & Appeal) Rules, 1997 (GPS Rules). The petitioner was serving under the District Panchayat and hence, was an employee of the Panchayat. If any departmental inquiry would have been instituted against the petitioner, than the procedure prescribed under Rule 8 of the GPS Rules was mandatory to be followed for imposing any major penalty specified under Rule 6 of the GPS Rules. Such departmental inquiry could not have been instituted without the sanction of the Governor since the power to impose cut in pension is only stipulated under Rule 24 of the GCSR. Rule 8 of the GPS Rules prescribes detailed procedure of imposing major punishment such as issuance of a show-cause notice, charge-sheet, punishment of the inquiry officer, consideration of the inquiry report by the Disciplinary Authority and after calling upon the delinquent to explain the charges, which are levelled against him. Unquestionably, in the present case, such procedure has been neglected since no departmental inquiry is held. Thus, the impugned order is suffering from procedural irregularity and the same is passed in violation of the provision of Rule 24 of the GCSR as well as GPS Rules. 8. Unquestionably, in the present case, such procedure has been neglected since no departmental inquiry is held. Thus, the impugned order is suffering from procedural irregularity and the same is passed in violation of the provision of Rule 24 of the GCSR as well as GPS Rules. 8. There is another aspect, which necessitates deliberation is that the impugned order has been premised on the advice of the Board, which was forwarded to the respondent No. 2 on 01.03.2004, which is referred at SR. No. 8 in the impugned order. At this stage, it would be apposite to refer the Rule 26 of GPS Rules reads as under: "26. Supply of copy of Board's advice.-Wherever the Board is consulted as provided in these rules, a copy of the advice by the Board and, where such advice has not been accepted, also a brief statements of the reasons for such non-acceptance, shall be furnished to the panchayat servant concerned along with a copy of the order passed in the cases by the authority making the order." 8.1. Rule 26 of the GPS Rules stipulates that copy of the advice by the Board and, where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the panchayat servant concerned along with a copy of the order passed in the cases by the authority making the order. 9. Thus, it was mandatory upon the respondent authority to supply an advice of the board, which was taken into consideration, while passing the impugned order. The Apex Court in the case of R.P. Singh (supra), while dealing with the similar issue of none supplying of the advice of the Union Public Service Commission (UPSC) has observed thus: "26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr. Raghavan, learned counsel for the respondent, that after the decision in S.K. Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions: "4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted:- (i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations; (ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC; (iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not. (iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965." 10. The Apex Court, while confirming the similar view in the case of Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589 has held that the advice of the UPSC was required to be furnished to the delinquent and if the same is not furnished to him before imposing punishment, such act would be in violation of principles of natural justice. 11. Thus, the respondent authorities have acted in total defiance of the law laid down by the Apex Court as well as the GPS Rules and GCSR pension rules. 12. Under the circumstances, the present writ petition succeeds. 11. Thus, the respondent authorities have acted in total defiance of the law laid down by the Apex Court as well as the GPS Rules and GCSR pension rules. 12. Under the circumstances, the present writ petition succeeds. The impugned orders dated 04.11.2004 and 31.05.2007 imposing 100% cut in the pension of the petitioner is hereby quashed and set aside. The respondents are hereby directed to fix and grant pension and retirement benefits to the petitioner. Necessary orders in terms of the directions of this court shall be passed within a period of three (3) months from the date of receipt of writ of this order. Rule is made absolute to the aforesaid extent.