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2019 DIGILAW 909 (GUJ)

Mitalben v. State of Gujarat

2019-10-15

N.V.ANJARIA

body2019
ORDER : N.V. Anjaria, J. 1. Heard learned advocate Mr. Krunal D. Pandya for the petitioner, learned advocate Mr. R.V. Acharya for the respondent No. 3 and learned Assistant Government Pleader Mr. Manan Mehta for the respondent-State, upon service of the copy of the petition in advance. 2. By filing the present petition, the petitioner has prayed to set aside order dated 19th September, 2018 passed by the District Primary Education Officer, Bhavnagar and to reinstate the petitioner with continuity of service and back wages. 3. Pursuant to the recruitment process undertaken by the Bhavnagar District Education Committee for filling up the posts of Teacher in the Primary Schools run by the District Panchayat, the petitioner came to be selected and appointed as Vidhya Sahayak by order dated 29th November, 2008. On 7th May, 2005, the petitioner was examined by the General Hospital, Dahod, to be found suffering from hearing disability to the extent of 52%. The petitioner's appointment was made in the physically challenged category on a fixed pay of Rs. 2,500/-. Upon completion of five years of service, by order dated 21st February, 2014 the services of the petitioner came to be regularised in the same school and the petitioner was placed in the regular pay-scale. 4. It appears that an anonymous complaint was received after the petitioner had served for more than seven years and pursuant to such complaint, the District Primary Education Officer doubted the disability certificate and proceeded to inquire about its genuineness. The disability certificate was produced by the petitioner at the time of her selection. It appears that similar inquiry was conducted in respect of another Teacher named Nehaben Jasubhai Patel. The certificate issued to said Nehaben was dated 22nd March, 2007 bearing No. 44/07 whereas the petitioner's certificate was dated 07th May, 2005 bearing No. 593/05. 4.1. It appears that the District Health Officer & Joint Civil Surgeon, General Hospital, Dahod, addressed a letter dated 11th July, 2016 to the District Primary Education Officer, Bhavnagar stating inter alia that both the certificates above were verified and they were found to have been issued from the said office. As regards the certificate of Mitalben it was stated that upon comparison with the Register, number of the said certificate was proper but against that the name of another person Bariya Suresh Khapara was mentioned. As regards the certificate of Mitalben it was stated that upon comparison with the Register, number of the said certificate was proper but against that the name of another person Bariya Suresh Khapara was mentioned. The petitioner's certificate was found to have been properly issued from the said office and it was so communicated. Respondent No. 3 District Primary Education Officer nevertheless issued show-cause notice dated 05th July, 2016 to the petitioner on the ground that Certificate No. 593/05 dated 7th May, 2005 was false. Petitioner replied by letter dated 13th July, 2016. 4.2. In spite of the above, the petitioner was asked to undergo the medical verification of disability and on 16th March, 2018, petitioner's audiogram was performed at SSG Hospital, Vadodara. At the same hospital, another test was conducted known as Brainstem Evoked Response Audiometry whereafter as per the case of the petitioner, she was required to remain present before the District Education Officer. On the basis of the report of the Vadodara Hospital that petitioner did not have any hearing handicap, the petitioner was visited with the impugned order of termination of services. 4.3. Affidavit-in-reply was filed on behalf of respondent No. 3 stating that petitioner had remained present in the Selection Camp on 29th November, 2008 and was given appointment as Vidhya Sahayak, further admitting that she was placed as regular appointee on 21st February, 2014 after completion of five years and had been drawing salary in regular pay-scale. It was stated that since complaint was received regarding genuineness of the certificate, show-cause notice was issued and as per the medical report of SSG Hospital, the competent authority proceeded to terminate the services of the petitioner. It was sought to be contended that show-cause notice was issued and opportunity to defend was given to the petitioner before passing the order. 5. When it is not in dispute that the petitioner was appointed as Vidhya Sahayak under the Panchayat service and her services were also regularised on completion of five years and the petitioner had become a regular Teacher placed under regular pay-scale in the School under the Panchayat, there was no gainsaying that the service conditions of the petitioner was governed by Gujarat Primary Education Act, 1947 read with Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997. 5.1. 5.1. Under Section 24 of the Act, the administrative officer enjoys power in respect of disciplinary action including the removal and dismissal against the staff maintained under Section 20. As provided in Rule 7 of the Rules, the disciplinary authority could impose any of the penalties specified in Rule 6 of the Rules. Rule 6 provides that following penalties, may for good and sufficient reason and as hereinafter provided to be imposed on a member of Panchayat service, namely (i) withholding of increments or promotions, (ii) recovery from pay of the whole or part of any pecuniary loss caused to the Panchayat by negligence or breach of orders, (iii) reduction in rank including reduction to a lower post or time-scale or to a lower stage in a time-scale, (iv) compulsory retirement, (v) removal from service not disqualifying for future employment and (vi) dismissal from service which shall ordinarily be a disqualification for future employment. 5.2. Rule 8 lays down the procedure for imposing major penalty which is extracted herein. "8. Procedure for imposing major penalties.-(1) No order, imposing on a member of the Panchayat Service any of the penalties specified in clauses (3) to (6) of rule 6, shall be passed except after a formal inquiry is held as far as may be in the manner hereinafter provided. (2) In case where the allegations against a member of the Panchayat Services are grave or are such as would entail a major punishment such as reduction in rank, compulsory retirement, removal or dismissal from service, a preliminary inquiry shall, as far as possible, be held by an officer superior to the person against whom the allegations are to be inquired into; Provided that, if there has been an investigation or inquiry by police in the matter and a report has been received thereon, the same may be considered an equivalent to a preliminary inquiry and no further preliminary inquiry shall be necessary. Provided further that where, however, the disciplinary authority thinks that any matter needs to be clarified further it shall refer the matter to the police for such further clarification and shall not entrust it to the departmental officers. Provided further that where, however, the disciplinary authority thinks that any matter needs to be clarified further it shall refer the matter to the police for such further clarification and shall not entrust it to the departmental officers. (3) On receipt of the report of the preliminary inquiry or the police report, the disciplinary authority shall determine- (i) whether there is a prima facie case for a formal inquiry; (ii) whether the member of the Panchayat Service should be prosecuted in a court of law. (4) When an order for formal inquiry has been made, the disciplinary authority shall frame definite charges on the basis of allegations and shall communicate such charges along with the statement of the allegations to the member of the Panchayat Service and also require him to submit within such time as may be specified a written statement of defence and also to state whether he desires to be heard in person. (5) The person against whom inquiry is to be held shall for the purpose of preparing the defence, be permitted to inspect and take extracts from such records as he may specify; Provided that such permission may be refused if for reasons to be recorded in writing in the opinion of the inquiry officer such records are not relevant for the purpose or it is against the public interest to allow his success thereto. (6) On receipt of the written statement of defence or if any such statement is not received within the time specified, the disciplinary authority may himself enquire into such of the charges as are not admitted or appoint an Enquiry Officer to hold the inquiry and forward to him his report and, if advised, his recommendation along with all inquiry papers. (7) The disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. A member of the Panchayat Service may present his case with the assistance of any other panchayat servant approved by the Enquiry Officer, but may not engage a legal practitioner for the purpose, unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case so permits. Note.-The Panchayat servant may also take the assistance of a retired Panchayat servant to present the case on his behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time. (8) If the member of the panchayat service desires to be heard in person, he shall be so heard. If he so desires or if the disciplinary authority so directs, an oral enquiry shall be held by the Enquiry Officer. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the person charges shall be entitled to cross examine the witnesses, to give evidence in person, to produce documentary evidence, if any, and to have such witnesses called as he may wish: Provided that the Enquiry Officer, may, for reasons to be recorded in writing, refuse to call a witness. (9) At the conclusion of the inquiry, the Enquiry Officer shall prepare a report of the inquiry, recording his findings on each of the charges together with reasons therefore. If in the opinion of the Enquiry Officer, the proceedings of the inquiry establish charges different from those originally framed, he may record findings on such charges: Provided that findings on such charges shall not be recorded unless the Panchayat Servant has admitted the facts constituting such charges or has had an opportunity of defending himself against such charges. (10) The proceedings conducted against the person charged shall contain sufficient record of- i. the charges framed against such person and the statement of allegations; ii. the written statement of defence, if any; iii. the oral evidence taken in the course of the inquiry; iv. the documentary evidence considered in the course of the inquiry; v. the orders, if any, made by the Enquiry Officer or the disciplinary authority as the case may be, with regard to the inquiry; vi. a report setting out the findings on each charge and the reasons therefore. (11) The Enquiry Officer, if he is other than the disciplinary authority, shall submit the records of the proceedings mentioned in clause (10) above to the disciplinary authority without recommendation relating to the penalty to be imposed, unless the disciplinary authority has specifically called for such recommendation. a report setting out the findings on each charge and the reasons therefore. (11) The Enquiry Officer, if he is other than the disciplinary authority, shall submit the records of the proceedings mentioned in clause (10) above to the disciplinary authority without recommendation relating to the penalty to be imposed, unless the disciplinary authority has specifically called for such recommendation. The disciplinary authority shall consider the record of the enquiry and its findings on each charge, having regard to the findings on the charges and the record of the proceedings, he is of the opinion that any of the penalties specified in clauses (3) to (6) of rule 6 should be imposed, be shall- (a) furnish to the person charged a copy of the report of the Enquiry Officer and, where the disciplinary authority is not the Enquiry Officer, a Statement of its findings together with brief reasons for disagreement, if any, with the findings of the Enquiry Officer, and (b) [****] (12)(a) In every case in which it is necessary to consult the Board in accordance with the rules framed in that behalf the record of the inquiry, together with the copy of the notice given under sub-clause (b) of clause (11) above and the representation made in response to such notice, if any, shall be forwarded by the disciplinary authority to the Board for its advice. On receipt of the advice, the disciplinary authority shall consider the representation if any, made by the person charged, and the advice given by the Board and determine what penalty should be imposed on the person charged and pass appropriate orders in the case. (b) In a case in which it is not necessary to consult the Board or the Selection Committee, the disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine what penalty, if any, should be imposed and shall pass appropriate order on the case. (b) In a case in which it is not necessary to consult the Board or the Selection Committee, the disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine what penalty, if any, should be imposed and shall pass appropriate order on the case. (13) If the disciplinary authority, having regard to the findings, is of the opinion that any of the penalties specified in clauses (1) to (3) of rule 6 should be imposed, it shall pass appropriate order in the case subject to the condition that in every case in which it is necessary to consult the Board the record of the inquiry shall be forwarded to the Board for its advice and such advise shall be taken into consideration before passing final orders. (14) The orders passed by the disciplinary authority shall be communicated to the member of the Panchayat Service who shall also be supplied with a copy of the report of the inquiry officer and where, disciplinary authority is not the Enquiry Officer, a Statement of its findings together with the brief reasons for disagreement, if any, with the findings of the Enquiry Officer unless they have already been supplied to the person charges, and also a copy of the advice, if any, given by the Board." 5.2.1. Thus, the aforementioned Rule 8 contains a complete detailed procedure before a major penalty may be imposed on a member of Panchayat Service. Removal from service is a major penalty which could be imposed only after compliance of and adherence to the procedure prescribed in the Rule. The Rule provide for conducting preliminary inquiry, preparing report on such basis, forming an opinion by the disciplinary authority as to whether in view of the report of the preliminary inquiry facie case existed, if such case is found to be arising, framing of definite charge would be required. A written statement of defence would have to be called for from the delinquent in respect of the charges. The Rule provides for appointment of inquiry officer, examination of witnesses and conducting a regular departmental inquiry in compliance of natural justice. 5.3. In the present case it could not be disputed that petitioner was not served with any statement of allegation, charges were not framed and the inquiry was not undertaken. There was a complete bypassing of procedure under Rule 8. 5.3. In the present case it could not be disputed that petitioner was not served with any statement of allegation, charges were not framed and the inquiry was not undertaken. There was a complete bypassing of procedure under Rule 8. When Rule 8 prescribes a detailed procedure in consonance with the tenets of natural justice so as to conduct full scale departmental inquiry, the same ought to have been followed. Mere issuance of show-cause notice would not suffice. It could not be said that the petitioner was given proper opportunity to defend her case or that the culmination of removal of service was in compliance with the procedure of Rule 8 of the Rules. 5.4. The decision of the Division Bench of this Court in Dineshbhai Bhagvanbhai Patel v. State of Gujarat being Letters Patent Appeal No. 410 of 2016 laid down the law with reference of to Rule 6 and Rule 8 of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997. The petitioner therein was permanent employee and the allegation against him was that he got appointment on the basis of production of forged disability certificate. The order of learned Single Judge was reversed and the action of the impugned order of the authority dismissing the petitioner from service was set aside. The Division Bench directed the reinstatement of the petitioner. 5.4.1. It was held by the Division Bench as under. "Thus, as per Rule 6, dismissal from service is a major penalty and therefore the respondent No. 2 ought to have followed the procedure prescribed for imposing major penalty as provided under Rule 8 of the Rules of 1997. It is admitted position that respondent No. 2 has not followed the said procedure and only show-cause notice was issued to the petitioner and after considering the reply of the petitioner, impugned order came to be passed by the respondent No. 2 by which petitioner was dismissed from service." (Para 13) "Thus, in view of the aforesaid discussion, we are of the opinion that though the petitioner was a permanent employee working with respondent No. 2, he was dismissed from service without following the procedure prescribed under the Rules of 1997 and therefore the impugned order dated 13/14.06.2012 passed by the respondent No. 2 is required to be quashed and set aside." (para 14) 5.5. In Manat Khemraj Somaji v. District Primary Education Officer [ 2001 (4) GLR 3587 ] the petitioners were Primary Teachers who were appointed after open interview and the mark-sheets and other certificates were checked before appointment. After five years of the appointment, show-cause notice was issued to the Teachers alleging fraud and the order of termination was thereafter passed. The termination order did not give the particulars about the alleged fraud. The termination was effected without holding of departmental inquiry. Court held that, "when the principles of natural justice have been violated and the order of termination has been challenged on the ground that no regular departmental inquiry has been held against the petitioner before terminating their services, when the services of the petitioner has been terminated on the charge of the appointment having been obtained by practising fraud and irregularity and illegality, the respondents ought to have initiated regular departmental inquiry into such charges and in such circumstances, as per my view, it is not necessary to relegate the petitioners to the alternative remedy of appeal as provided under section 24(2) of the Bombay Primary Education Act, 1947 because it is a pure question of law ….". 5.6. Reverting back to the facts of the present case, the authority proceeded to pass the impugned order of termination, however never complied with the requirements of Rule 8 of the Rules. When the statutory Rules contemplating holding of departmental inquiry were not followed and the departmental inquiry was not held, the entire action against the petitioner stood vitiated to be rendered bad in law. 6. Even the factual merits are strong to stand in favour of the petitioner. It was after a decade that the authority doubted the certificate of disability of the petitioner on the basis of an anonymous complaint. Mere anonymous complaint without anything else could not have been the basis to reopen the validly accepted disability certificate of the petitioner given at the time of appointment. The certificate was not found to be wrong or fabricated. Mere anonymous complaint without anything else could not have been the basis to reopen the validly accepted disability certificate of the petitioner given at the time of appointment. The certificate was not found to be wrong or fabricated. While the authority issued show-cause notice and rested the impugned order on the footing that the certificate of disability produced by the petitioner at the time of appointment was false and that the petitioner had played a deceit with the authority, when the District Primary Education Officer initiated inquiry, in the first response as reflected in the letter dated 11th July, 2016 from the Chief Medical Officer, Dahod, it was clearly stated that the Certificate No. 593/05 dated 7th May, 2005 issued to the petitioner was verified and was found to be proper. 6.1. It was incomprehensible that despite such communication from the Chief District Health Officer and the Joint Civil Surgeon fortifying the correctness of the certificate of the petitioner, the petitioner was proceeded against to be subjected to impugned order which, in any view, was not sustainable for want of non-compliance of the mandate of Rule 8 of the Rules necessitating the issuance of specific charge sheet and holding of regular inquiry. The petitioner is entitled to relief prayed for in the petition. 7. As a result of aforesaid discussion, impugned order dated 19th September, 2018 passed by the District Primary Education Officer, Bhavnagar, is hereby set aside. The petitioner shall be reinstated on the post of Teacher/Vidhya Sahayak with continuity of service, payment of salary for the intervening period and with all other consequential service benefits. The arrears which may arise by virtue of this order, shall be paid to the petitioner within a period of eight weeks from the date of receipt of this order. Rule is made absolute accordingly. Direct service is permitted.