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2021 DIGILAW 1216 (GUJ)

D B JETHVA v. STATE OF GUJARAT

2021-12-16

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned orders passed by authorities below dated 18.02.2008 as well as dated 22.10.2008 at Annexures A and B respectively. 2. The case of the petitioner is that the petitioner has joined the service of respondent authority on 03.06.1971 on the post of Agriculture Supervisor and during the passage of time, petitioner was also promoted to the post of Joint Director of Agriculture. The petitioner has retired on attaining the age of superannuation on 30.06.2005. It is the case of the petitioner that while working as Deputy Director, Horticulture, he was served with the chargesheet on 12.12.2003 for alleged misconduct committed by him and the said charge-sheet was replied by way of tendering defence statement on 12.01.2004, ultimately, after considering the defence statement of petitioner, authority was pleased to appoint an Inquiry Officer vide order dated 11.03.2004. On 21.04.2004 as well as on 30.04.2004, the petitioner made a request to supply certain relevant documents so as to see that proper defence be presented. However, the said request has not been acceded to which has given rise to filing of detailed representation to Inquiry Officer on 26.10.2004. 2.1 It is further the case of the petitioner that after conducting regular departmental inquiry, a report was prepared by Inquiry Officer on 31.12.2004 holding that the charges levelled against the petitioner are partly proved and the said inquiry report was submitted by respondent authority to the petitioner alongwith the show-cause notice dated 04.03.2005. The petitioner replied to the said show-cause notice on 28.03.2005 and based upon the material including the report of the inquiry, disciplinary authority was pleased to pass an order of penalty on 18.02.2008 imposing punishment of pension cut of Rs.700/- per month for a period of three years. 2.2 The petitioner has preferred an appeal / review before the appellate authority on 01.04.2008, however, the appellate authority has rejected the same vide order dated 22.10.2008. The petitioner being aggrieved by the said decision passed by the respondent authority has approached this Court by way of present petition under Article 226 of the Constitution of India. 3. The petitioner appears to have been admitted vide order dated 12.04.2010 and thereafter, has come up for consideration today before this Court in which Mr. The petitioner being aggrieved by the said decision passed by the respondent authority has approached this Court by way of present petition under Article 226 of the Constitution of India. 3. The petitioner appears to have been admitted vide order dated 12.04.2010 and thereafter, has come up for consideration today before this Court in which Mr. Vaibhav A. Vyas, learned advocate has represented the petitioner and Mr. K. M. Antani, learned Assistant Government Pleader appearing for the respondent authority. 4. It is contended by Mr. Vaibhav A. Vyas, learned advocate that the entire inquiry has been conducted at the instance of respondent No.2 as he was having a personal grudge with petitioner and element of bias is clearly reflecting from not only the proceedings but from the assertion which has also been made from paragraph Nos. 4.2 to 4.8 and as such on account of this bias attitude the petitioner has been dealt with and ultimately made to face with the penalty. 4.1 It has been submitted that petitioner is an innocent person, has not committed any such illegality nor irregularity, as mentioned. On the contrary, a detailed explanation has been submitted by way of defence statement which has not at all being considered by the disciplinary authority while passing the impugned orders. 4.2 Mr.Vyas, learned advocate has submitted that it is trite law that every exercise of jurisdiction or powers, either it is administrative, quasi judicial or judicial must be backed by proper and cogent reasons and must reflect an application of mind. Ex facie, a bare perusal of both orders would clearly indicate that none of the stand which have been taken by the petitioner has been dealt with by any of the authorities who passed the impugned orders. For substantiating this contention, Mr. Vyas, learned advocate has drawn the attention of this Court to a decision in origin dated 18.02.2008 reflecting on page 18 and has submitted that by 3 - 4 lines only the penalty order is passed which is quite visible from page 19 of petition compilation and same is exercise by even appellate authority which is clearly reflecting on page 218 of petition compilation. According to Mr. Vyas, learned advocate that both the authorities have not applied their mind to the core issues which are raised in defence as well specific contention in appeal / review memo. According to Mr. Vyas, learned advocate that both the authorities have not applied their mind to the core issues which are raised in defence as well specific contention in appeal / review memo. As such on this ground of non application of mind and non dealing of submission and contentions, the order requires to be quashed and set aside. 4.3 For this submission, Mr. Vyas, learned advocate has drawn the attention of this Court to a decision of Hon'ble Apex Court in the case of State of Orissa and others versus Chandra Nandi reported in (2019) 4 SCC 357 . 4.4 Mr.Vyas, learned advocate has further submitted that apart from the contention of non application of mind, a perusal of defence if to be looked into which clearly indicate that even on merit also, the case is not made out for the purpose of imposition of penalty against the petitioner and findings which are recorded even by the authorities are not supported by proper material. As a result of this, the orders passed by the authorities requires to be quashed and set aside. 4.5 Mr. Vyas, learned advocate has further submitted that the authorities have not supplied even the advice of GPSC before passing an order of penalty and that also vitiates the exercise of jurisdiction by the authority. Mr. Vyas, learned advocate has candidly submitted that no doubt this point is not taken by the petitioner during the course of appeal / review nor even in this petition but the same can be examined since it is a question of law. Mr. Vyas, learned advocate has further submitted that irrespective of the fact whether delinquent is raising this issue or not but it was incumbent upon authority to at least look into such kind of legal requirements when the order of penalty is to be passed based upon advice of GPSC having not done so the action initiated is violative of statutory provisions. 4.6 Mr. Vyas, learned advocate has further submitted that even on merit if a perusal of the record to be seen whatever payments which have been released is based upon the policy which is framed by the authority and the payment was to be released was on the basis of square feet area of the godown which fact has not been dealt with by the authority at all. On the contrary, the policy if to be perused the defence version of the petitioner requires minute examination having not done so the authority has completely shown the non application of mind while passing an order of penalty. 4.7 By drawing attention to some of the documents and an attempt is made by learned advocate to indicate that proper procedure which is required to be observed under the provisions of disciplinary appeal rules have also not been observed and as such the entire exercise undertaken by the authority is violative of provision applicable. Hence, the impugned orders are required to be quashed and set aside. 4.8 At this stage, by referring to, Mr. Vyas, learned advocate has submitted that in any case all these issues which are required to be gone into by the authority at an appropriate stage which have not been considered at all which can be seen from the orders impugned in the petition and as such on this ground alone of non application of mind and non assigning of cogent reasons and non dealing of contentions, the impugned orders are required to be quashed and set aside. 4.9 At this stage, Mr. Vyas, learned advocate has further submitted that the petitioner has retired long back and if sending the matter back for consideration would lead to another round of litigation and as such has requested that by setting aside the impugned orders the effect of same be given to the petitioner. However, has candidly submitted that if ultimately a time scheduled is prescribed by the Court for deciding the matter a fresh by the authority after dealing with the contention and the circumstances pointed out in this defence, the learned advocate has left it to the discretion of the Court. 5. As against this, Mr. However, has candidly submitted that if ultimately a time scheduled is prescribed by the Court for deciding the matter a fresh by the authority after dealing with the contention and the circumstances pointed out in this defence, the learned advocate has left it to the discretion of the Court. 5. As against this, Mr. K. M. Antani, learned Assistant Government Pleader appearing on behalf of the authority has submitted that the impugned orders in origin as well as the appellate authority are being due application of mind and to pass an order of penalty is merely administrative exercise and therefore, detailed reasons are not required to be assigned and even if that be so the same may not be a ground to set aside the impugned orders without much resistance on the issue of non assigning of reason, learned AGP has left it of the discretion to the Court to pass suitable order in the interest of justice. 6. No other submissions have been made by learned advocates appearing on behalf of the respective parties. 7. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears to this Court that prima faice the orders passed by the authorities are without dealing with any of the stand taken by the petitioner without dealing with contention raised by the petitioner even in appeal / review memo and both the authorities have not passed a reasoned order, which can be seen from the orders itself and as such this Court is of the clear opinion that the authority while passing an order and exercising jurisdiction has not properly taken care of the settled position of law when the exercise of power is in direction of inflicting penalty upon an employee, at least some application of mind must be reflected. A detailed defence which has been raised before the disciplinary authority as well as detailed submissions which have been mentioned even in appeal / review memo are sufficient enough to indicate that the same have not at all been dealt with as can be apparently seen from the tenure of the orders. As a result of this, on this count alone, the Court is satisfied that contention raised by the petitioner about non application of mind and non assigning of reasons is made out clearly. 8. As a result of this, on this count alone, the Court is satisfied that contention raised by the petitioner about non application of mind and non assigning of reasons is made out clearly. 8. At this stage, the Court is reminded of the proposition on the issue of assigning of reason reflecting in a decision of Hon'ble Apex Court in the case of Nareshbhai Bhagubhai and others versus Union of India and others reported in (2019) 15 SCC 1 . The efficacy and significance of the reasons are clearly observed by the Hon'ble Apex Court as inevitable in every exercise of discretion. Few observations contained in paragraph 25 are since considered, the Court deems it proper to reproduce hereunder: "25" In Kranti Associates (P) Ltd. v. Masood Ahmed Khan, this Court held that: “12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasijudicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak v. Union of India. 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasijudicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasijudicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasijudicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasijudicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubberstamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.” (emphasis supplied)" 9. At this stage, Mr. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.” (emphasis supplied)" 9. At this stage, Mr. Vaibhav A. Vyas, learned advocate for the petitioner has submitted that instead of relegating matter back to the authority, the court may undertake an exercise of examining the contention of the petitioner and decide, but in view of the intricacies of factual matrix and the allegations which are related to financial affairs, the court is not inclined act as a fact finding authority and the same can be dealt with and examined by an appropriate authority. Hence, the Court is not inclined to accept the suggestion which has been made by the learned advocate as the same would outside the purview of jurisdiction of this Court. 10. In the aforesaid circumstances and in view of the proposition of law laid down by the Hon'ble Apex Court, the Court is of the opinion that the order in question requires to be quashed and set aside on this count alone leaving it open for the petitioner to convince the authority on the other issues which are raised in the petition since a fresh decision is to be taken by the authority pursuant to the present order and direction which are given hereunder: (i) The impugned orders dated 18.02.2008 at Annexure- A, reflecting on page 18 as well as order dated 22.10.2008 reflecting on page 218 are hereby quashed and set aside with a consequential direction upon respondent authority, namely, respondent No.1 to take a fresh decision after giving due opportunity to the petitioner and after considering every circumstance which is reflecting in the defence version as well as the contentions which have been raised at length. (ii) Since the petitioner has by now reached the age of superannuation long back, such exercise of taking fresh decision deserves to be undertaken as early as possible within a period of three months from the date of receipt of writ of this order. (ii) Since the petitioner has by now reached the age of superannuation long back, such exercise of taking fresh decision deserves to be undertaken as early as possible within a period of three months from the date of receipt of writ of this order. (iii) It is made clear that since the order in question are quashed and set aside on this count alone, the Court has not expressed any opinion on the merit with regard to other issues raised in the petition and it was would be independently open for the authority to examine, dealt with and decide the same by assigning cogent reasons. 11. With these observations and directions, present petition stands disposed of. Direct service is permitted.