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Gujarat High Court · body

2020 DIGILAW 25 (GUJ)

N. S. Shaikh v. State of Gujarat

2020-01-08

A.S.SUPEHIA

body2020
JUDGMENT : Learned advocate Mr. R.C. Kakkad has tendered affidavit-in-rejoinder filed by the petitioner. The same is ordered to be taken on record. 1. By the present petition, the petitioner is challenging the order dated 12.08.2004, by which he has been imposed penalty of stoppage of one increment with future effect and further the order dated 21.09.2005 rejecting the appeal of the petitioner is also challenged. 2. The brief facts of the case leading to filing of the present petition are as under: 2.1. The petitioner joined the service of the respondent authorities on 16.04.1990 as Assistant Engineer. 2.2. It is the case of the petitioner that on 22.10.1999, the petitioner came to be suspended from service for misconduct alleged to have been committed by him. Thereafter, being aggrieved by the suspension order, the petitioner instituted Regular Civil Suit No.1012 of 1999 before the Civil Judge (S.D.), Vadodara seeking permanent injunction and during pendency of the suit, the petitioner came to be reinstated in service and hence, the suit came to be withdrawn by the petitioner. 2.3. Thereafter, on 22.11.2000, a charge-sheet was issued to the petitioner for the misconduct alleged to have been committed by the petitioner when he was serving as Executive Engineer from 27.02.1990 to 20.7.1990 inter alia alleging that he permitted substandard construction due to which the shop nos.9, 10 and 11 had collapsed on 08.02.1999. 2.4. Thereafter, the petitioner responded to the charge-sheet vide his defense statement dated 18.01.2001. On 24.01.2003, the petitioner made a detailed representation to the Inquiry Officer. Thereafter, by the order dated 30.03.2001, the respondent authority appointed Mr. C.R. Desai as an Inquiry Officer, who submitted inquiry report on 27.01.2003 holding the charges levelled against the petitioner as partly proved and the same was forwarded to the petitioner by the respondent authorities along with a show cause notice dated 19.02.2003. The show cause notice was responded to by the petitioner on 21.03.2003. Thereafter, based on the report of the Inquiry Officer, Disciplinary Authority issued punishment order dated 12.08.2004 imposing the punishment of stoppage of one increment with future effect. The petitioner filed an appeal before the competent authority, which was rejected by the order dated 21.09.2005. 3. Learned advocate Mr. The show cause notice was responded to by the petitioner on 21.03.2003. Thereafter, based on the report of the Inquiry Officer, Disciplinary Authority issued punishment order dated 12.08.2004 imposing the punishment of stoppage of one increment with future effect. The petitioner filed an appeal before the competent authority, which was rejected by the order dated 21.09.2005. 3. Learned advocate Mr. R.C. Kakkad appearing for the petitioner has submitted that the impugned order of punishment as well as subsequent order in appeal are required to be quashed and set aside since the petitioner, who was working as Assistant Engineer, is not responsible for the construction of the piles (foundation of the shops) of the superstructure as he had only worked from 27.06.1990 to 20.07.1990. He has submitted that the entire responsibility was of Deputy Engineer, who was required to see the construction of work below plinth level. 3.1. Learned advocate Mr. R.C. Kakkad for the petitioner has further submitted that the superstructure being shop nos.9, 10 and 11 have collapsed on 08.02.1999 after a period of 9 years and hence, the petitioner cannot be held responsible for such collapse. He has invited the attention of this Court to the defense statement made by the petitioner and submitted that the expert report, on which the reliance was placed by the respondent authorities in concluding that the construction was collapsed is not supported by any evidence. He has also submitted that M/s. K.B.M. Engineering Research Laboratory, which has carried out the investigation, has prepared an incorrect report, whereas other witnesses have supported the case of the petitioner. He has further submitted that while laying down the work, it was not the duty of the petitioner to check the soil and other building material. He has further submitted that no attention was invited by the petitioner while he was working as an Executive Engineer to the category of soil, in which the piles were laid down. 3.2. Learned advocate Mr. R.C. Kakkad for the petitioner has further submitted that the slab of the shop nos.9, 10 and 11 have fallen down as the slabs were not supported by beam. 3.2. Learned advocate Mr. R.C. Kakkad for the petitioner has further submitted that the slab of the shop nos.9, 10 and 11 have fallen down as the slabs were not supported by beam. He has further submitted that findings of the M/s.K.B.M. Engineering Research Laboratory, which has carried out the investigation regarding the capacity of the piles are not supported by any technical evidence, and hence it cannot be said that the shops had collapsed because of the piles, but because of the faulty design, which was prepared by other personnel ignoring the property of soil. He has submitted that the soil was black or brown type where the piles were laid down and since the soil was of such nature, the load bearing capacity of such piles was lesser than 24 tonnes and hence, it was the responsibility of the other engineer to see that the structural design is properly laid down. Thus, he has submitted that the petitioner cannot be held responsible for the collapse of such shops or the construction. 3.3. Learned advocate Mr. R.C. Kakkad for the petitioner has further submitted that by the order dated 21.01.2008, the respondents have in fact altered the leave of the petitioner and ultimately, the same has affected the higher pay-scale of the petitioner. Thus, he has submitted that the order dated 21.01.2008 altering the leaves of the petitioner whereby ultimately affected the higher pay-scale of the petitioner is required to be quashed and set aside and the same is in violation of principle of natural justice as no notice or hearing is granted to him before passing the same. No further submissions are advanced. 4. Per contra, learned advocate Mr. Rituraj Meena appearing for the respondent no.2 has invited the attention of this Court to the report prepared by M/s.K.B.M. Engineering Research Laboratory as well as the Inquiry Officer's conclusion. He has submitted that the report indicates that the piles were under uniform diameter and capacity of such piles on actual condition was very much low compare to assumed value of 24 tonnes. He has submitted that the petitioner was engaged for 23 days and he was assigned such duty of supervision and during 23 days, he has admitted that he was responsible of laying down of 14 piles. He has submitted that the petitioner was engaged for 23 days and he was assigned such duty of supervision and during 23 days, he has admitted that he was responsible of laying down of 14 piles. He has submitted that in fact the petitioner has submitted in his cross-examination that during 2 days, wherein the construction of 26 shops were carried out, he had examined 14 piles out of 182 piles. Thus, it was found that since such piles which were laid down were of substandard nature, the shop nos.9, 10 and 11 had collapsed. He has also submitted that looking to the misconduct of the petitioner, the penalty imposed of stoppage of one increment with future effect cannot be said to be disproportionate. He has also submitted that along with the petitioner there were other officers, who were also subjected to departmental proceedings and were imposed penalties accordingly. 4.1. Learned advocate Mr. Rituraj Meena for the respondent no.2 has further submitted that since the opinion of the expert was obtained and the report dated 23.07.1999 of M/s.K.B.M. Engineering Research Laboratory, it was found that the piles, which were laid down were substandard and it was decided to issue charge-sheet to the delinquent and accordingly, the petitioner was issued charge-sheet on 22.11.2000 after the shops collapsed on 18.02.1999. He has further submitted that the petitioner has not alleged any violation of statutory rules of holding departmental inquiry and the judicial review is very limited since the petitioner has not alleged that while holding the departmental inquiry any statutory rules violated. 5. I have heard the learned advocates appearing for the respective parties. 6. The undisputed facts which are revealed from the record are that the petitioner was serving as an Assistant Engineer under the respondents and he assigned duty of supervision from 27.06.1990 to 20.07.1990 for laying down the piles (foundation) of the shops. During his tenure, he has admitted that he had supervised work of 14 piles. After shop nos.9, 10 and 11 collapsed on 08.02.1999, the respondent authority had appointed one M/s.K.B.M. Engineering Research Laboratory, an expert institute for carrying out necessary investigation for finding the actual cause of collapse of the shops. During his tenure, he has admitted that he had supervised work of 14 piles. After shop nos.9, 10 and 11 collapsed on 08.02.1999, the respondent authority had appointed one M/s.K.B.M. Engineering Research Laboratory, an expert institute for carrying out necessary investigation for finding the actual cause of collapse of the shops. The aforesaid laboratory submitted its report on 23.06.1999 and after examining the piles, it was found that they were of substandard qualities and collapse of the shops was due to piles on which the shop nos.9, 10 and 11 have been constructed. M/s.K.B.M. Engineering Research Laboratory submitted a comprehensive report running into almost 100 pages. The expert report has examined each and every aspect. This Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot enter into the validity of the report of the expert body or the findings of the research laboratory regarding quality of the construction and the material used during the construction. The petitioner was provided ample opportunity for defending himself in this regard. The petitioner was assigned the duty of supervision as an Executive Engineer, and hence he was supposed to see that the material used in construction of piles is having proper load bearing capacity so that the shops which are constructed above such piles may not collapse with the passage of time. Even if the petitioner has served for 23 days, he has admitted that during such period he was on the construction site and had supervised the laying of 14 piles. Thus, looking to his tenure and misconduct, the authorities have imposed only the penalty of stoppage of one increment for future effect, which cannot be said to be disproportionate. 7. In the present writ petition, the petitioner has not alleged any violation of the statutory rules under which the departmental proceedings are carried out. 8. The order of punishment is passed under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The charge-sheet is issued as per the procedure prescribed under Rule 9 thereof. It is pertinent to note that the petitioner has not challenged the impugned orders on the ground of any procedural illegalities or irregularities. The writ petition is bereft of the pleadings with regard to the violation of statutory rules. The charge-sheet is issued as per the procedure prescribed under Rule 9 thereof. It is pertinent to note that the petitioner has not challenged the impugned orders on the ground of any procedural illegalities or irregularities. The writ petition is bereft of the pleadings with regard to the violation of statutory rules. Thus, the scope of judicial review as regards the quantum of punishment would be very limited and the Court cannot go into correctness of the choice of the administration. In the case of Damoh Panna Sagar Rural Regional Bank Versus Munna Lal Jain, 2005 (10) SCC 84 , after survey of decision on the issue of interference in the orders of punishment imposed on the employees and examining the Wednesbury’s Principle, the Supreme Court has held thus: “14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.” 9. In this view of the matter, this Court is of the considered opinion that the penalty imposed upon the petitioner of stoppage of one increment with future effect cannot be said to be disproportionate to the misconduct and hence, the challenge to the impugned order imposing the punishment upon the petitioner fails. However, as regards the order dated 21.01.2008, wherein the leave period of the petitioner has been altered resulting the re-fixation of the higher pay-scale appears to have been passed without affording any opportunity of hearing. Hence, the impugned order dated 21.01.2008 is hereby quashed and set aside. The respondents are hereby directed to here the petitioner on the said aspects and pass appropriate fresh order. 10. The present writ petition succeeds in part. Rule is made absolute to the aforesaid extent.