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Gujarat High Court · body

2019 DIGILAW 877 (GUJ)

State of Gujarat v. Kamlesh K. Saija

2019-10-09

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed against the order passed by the learned Single Judge dated 11.10.2018 in Special Civil Application No. 11822 of 2008. 2. The brief facts leading to the present proceedings are that opponent herein while was working as Executive Engineer at Navsari with respect to work which has been undertaken for the period commencing from 15.04.1997 to 28.07.1998 on account of alleged irregularity, a charge-sheet came to be issued on 28.04.2000 just before two days prior to his retirement. When the charge-sheet was served upon him, the opponent-original petitioner was working as Executive Engineer in Gujarat Engineering Research Institute at Vadodara. Pursuant to the charge-sheet, having been issued, a detail reply was submitted on 06.06.2000 by the opponent herein and a departmental inquiry was conducted upon the original petitioner and out of 27 charges, which were levelled against opponent herein, the Inquiry Officer found in his report dated 25.07.2005 that three charges were partly proved. The disciplinary authority held the opponent-original petitioner found guilty of 24 charges and three charges held to be partly proved and the order came to be passed by disciplinary authority on 01.07.2006. A detailed representation was submitted by the opponent herein before disciplinary authority on 02.08.2006, but then order of penalty came to be inflicted upon the opponent herein on 12.10.2007, whereby, the respondent authorities namely, the present appellants imposed penalty of deduction of Rs. 500/- per month from his pension for a period of five years. This order of penalty came to be assailed by the opponent herein before appellate authority, in which, the appellate authority was pleased to dismiss the appeal vide order dated 14.08.2008, which has led the opponent herein to prefer a Writ Petition before this Court, being Special Civil Application No. 11822 of 2008. The learned Single Judge vide oral judgment and order dated 11.10.2018 was pleased to set aside the impugned orders and allow the writ petition, which order is made the subject matter of present Letters Patent Appeal. 3. Learned Assistant Government Pleader Mr. The learned Single Judge vide oral judgment and order dated 11.10.2018 was pleased to set aside the impugned orders and allow the writ petition, which order is made the subject matter of present Letters Patent Appeal. 3. Learned Assistant Government Pleader Mr. Krutik Parikh appearing on behalf of the appellants has vehemently contended that whenever substantial charges have been proved, the issue of penalty is left to the disciplinary authority and in view of settled position of law, the quantum of penalty may not be interfered with in exercise of extraordinary jurisdiction. It has been submitted that the disciplinary authority has categorically found the opponent herein guilty of alleged charges as fully established of 24 charges and 3 charges partly came to be established and as such the quantum of penalty even if to be assumed, the same cannot be stated to be disproportionate in any form. It has been submitted that the inquiry has been conducted as per the rules and there is no violation of any procedural formality while dealing with the opponent herein and as such when in exercise of discretion after conducting full fledged inquiry in accordance with law and if appropriate penalty is inflicted upon, the same cannot be said to be invalid in any form and as such the learned Single Judge ought not to have interfered with the conclusion arrived at by the appellate authority in respect of penalty. It has been contended by learned Assistant Government Pleader that both the decisions which were assailed before the Court were concurrent decisions, one taken by disciplinary authority, and another by the appellant authority and as such when concurrent finding of facts are available on record, unless any perversity shown, normally the same may not be interfered with and as such by submitting this, learned Assistant Government Pleader has requested the Court to set aside the impugned order. It has been submitted by learned Assistant Government Pleader that multiple contentions have been raised, but the same have not been dealt with in proper prospective resultantly, order deserves to be corrected. Learned Assistant Government Pleader Mr. Parikh has further submitted that the disciplinary authority has the power to disagree with the report of inquiry and if such disagreement is found to be reasonable well supported by documents and material, the same cannot be said to be unjust or unreasonable or without the authority of law. Learned Assistant Government Pleader Mr. Parikh has further submitted that the disciplinary authority has the power to disagree with the report of inquiry and if such disagreement is found to be reasonable well supported by documents and material, the same cannot be said to be unjust or unreasonable or without the authority of law. That being the position, the order in question deserves to be corrected and accordingly, requested the Court to allow the appeal. 4. Having heard learned Assistant Government Pleader appearing on behalf of the appellants and having gone through the details which are provided on record of the case, few circumstances are not possible to be unnoticed by this Court. First of all, the charges which have levelled against the appellants were related to opponent's tenure as Executive Engineer at Navsari for the work undertaken prior to July, 1998 and for that purpose, the charge-sheet came to be issued just before two days prior to his retirement. Secondly, the departmental inquiry which has been conducted has proved only three charges and that too partly out of 27 charges whereas the disciplinary authority straightway in disagreement with the report of inquiry officer unilaterally held guilty the opponent herein fully for 24 charges and partly for three charges and undisputedly while arriving at disagreement to the findings of inquiry officer's report, no opportunity either of hearing or explanation was offered to the opponent herein. It has further been found that the opponent herein is aged about 76 years and more than that there was a long lapse of 18 years by now. As a result of this, the view taken by the learned Single Judge appears to be quite reasonable and in consonance with the principles laid down by the Apex Court. 5. We are also conscious about the fact that disciplinary authority has got power to defer with the report of inquiry officer or its conclusion, but then law requires that while deferring the disciplinary authority is under an obligation to comply the principles of natural justice and is under an obligation to put the delinquent to notice and grant an opportunity whereas here undisputedly no such step is taken and in complete disregard to the principles of natural justice straightway disagreement took place by the disciplinary authority and on that basis, the order of penalty is inflicted upon him. This situation is well explained by the decision of the Apex Court in the case of Punjab National Bank and Others vs. Kunj Behari Misra, AIR 1998 SC 2713 as well as another decision which has been taken note of by the learned Single Judge and as such the order passed by the learned Single Judge appears to be in tune with a proposition of law laid down by the Apex Court, as referred to above. We see no infirmity in an order passed by the learned Single Judge and there is no occasion for us to disagree with the finding of the learned Single Judge of this issue. 6. We have also noticed that there are multiple contentions raised by the original petitioner irrespective of violation of principles of natural justice, but since this issue of violation has been clearly established from the record, the learned Single Judge has not committed any error in allowing the petition. The learned Single Judge has also clearly observed that the circumstances under which now at this stage no de novo inquiry or the process is possible to be carried out since the opponent herein has reached the age of more than 76 years by now and there is a long lapse of more than 18 years in between. Resultantly, the view taken by the learned Single Judge is just and proper we see no irregularity of any nature in passing the order. 7. Resultantly, we are of the considered opinion that no case is made out by the appellants to call for any interference and while confirming the order of learned single judge, we observe that if during the passage of time the direction given by the learned Single Judge in paragraph 13 are not observed on account of pendency of present Letters Patent Appeal, the appellants are directed to comply the same at the earliest. 8. With these observations, the present Letters Patent Appeal stand dismissed with no order as to costs. 9. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.