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2021 DIGILAW 575 (GUJ)

B R CHAVDA v. STATE OF GUJARAT

2021-07-12

BHARGAV D.KARIA

body2021
ORDER : 1. Heard learned advocate Mr. Nilay Suchak for the petitioner, learned advocate Mr. H.S. Munshaw for the respondent Nos.2, 4 and 6 and learned Assistant Government Pleader Mr. Kurven Desai for the respondent Nos.1 and 3 through video conference. 2. By way of this petition, under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “A) That this Hon'ble court be pleased to admit and allow this petition; (B) That this Hon'ble court be pleased to issue any appropriate writ order or direction, thereby quashing and setting aside the order dated 29.05.2007 passed by the respondent No.3 herein; (C) That pending hearing and final disposal of the petition, stay the implementation and execution of the order dated 29.05.2007 passed by the respondent No.3 and be further please to release the amount of gratuity and other pensionary benefits amounts: (D) That this Hon'ble Court be pleased to quash the departmental inquiry conducted by the respondent No.5 herein as the same being illegal and without application of mind. (E) That this Hon'ble court be pleased to pass any other and further orders in the interest of justice.” 3. The brief facts of the case are that the petitioner was working as Talaticum-Mantri at Village-Saijpur-Piplaj, City Taluka, District Panchayat, Ahmedabad. The petitioner retired on 31.03.2004. After the retirement of the petitioner, charges were levelled against the petitioner that when the petitioner was serving as Talaticum-Mantri at Village-Saijpur-Piplaj, City Taluka, District Panchayat, Ahmedabad, the petitioner gave an undated receipt of the computers received by the Gram Panchayat purchased by the Taluka Panchayat and when the actual physical verification of the computers was done in month of April, such computers were not found in the office of the Gram Panchayat. It was, therefore, alleged that the petitioner, in connivance with the company supplying the computers, had misappropriated the purchase price of the computers amounting to Rs.1,70,600/. 4. The Chargesheet was issued after one year from the date of retirement of the petitioner i.e. on 29.03.2005 for initiating the departmental proceedings under the Gujarat Panchayat Service (Rules) 1997. Thereafter, the petitioner submitted his defence statement in inquiry conducted by the Taluka Development Officer, who was appointed as an Inquiry Officer by the Deputy District Development Officer, District Pancyayat, Ahmedabad on 20.05.2005. Thereafter, the petitioner submitted his defence statement in inquiry conducted by the Taluka Development Officer, who was appointed as an Inquiry Officer by the Deputy District Development Officer, District Pancyayat, Ahmedabad on 20.05.2005. The Inquiry Officer submitted the Inquiry Report dated 13.02.2006 holding that the charges levelled against the petitioner are proved. 5. It appears that, thereafter, the second show cause notice was issued on 22.03.2006. On 24.03.2006 after considering the reply of the petitioner, reference was made to the State Government for imposing the penalty of deduction of Rs.100/from the monthly pension of the petitioner for life time and to recover the cost of computers i.e. Rs.1,70,600/. 6. The Gujarat Panchayat Service Selection Board also, vide letter dated 12.12.2006, gave permission to levy penalty upon the petitioner and the State Government, vide order dated 29.05.2007 considering the inquiry report, passed an order to levy the penalty of deduction of Rs. 100/from the monthly pension and to recover Rs.1,70,600/. The petitioner, therefore, being aggrieved, has preferred this petition. 7. This Court (Coram: Hon'ble Mr. Justice Anant S. Dave as his Lordship was then) passed the following order on 08.07.2008 protecting the petitioner from recovery and deduction of Rs.100/per month from the monthly pension: “Heard learned advocates for the parties. Pursuant to the notice issued by this Court, affidavits in reply are filed by respondent Nos.4 and 6 on 29.01.2008 and 21.04.2008 respectively, wherein the Incharge Officer, Nagarpalika Cell, Ahmedabad Municipal Corporation, verified the fact that the computer, along with monitor, CPU and keyboard, is available, which earlier belonged to Saijpur-Gopalpur Gram Panchayat, subsequently merged with the Ahmedabad Municipal Corporation. In view of the above, recovery sought to be initiated pursuant to the impugned order dated 29.05.2007 passed by respondent No.3, the Deputy Secretary, Panchayat & Rural Development, State of Gujarat, and deduction of Rs.100/per month from the pension, are stayed. S.O. To 22.8.2008.” 8. It appears that, thereafter, the following order was passed by this Court (Coram: Hon'ble Mr. Justice Paresh Upadhyay) on 10.01.2013: “1. Challenge is made to the order passed by the Government dated 29th May, 2007 whereby punishment of recovery of Rs.1,70,600/is ordered from the pension of the petitioner, in the installment of Rs.100/per month. 2. S.O. To 22.8.2008.” 8. It appears that, thereafter, the following order was passed by this Court (Coram: Hon'ble Mr. Justice Paresh Upadhyay) on 10.01.2013: “1. Challenge is made to the order passed by the Government dated 29th May, 2007 whereby punishment of recovery of Rs.1,70,600/is ordered from the pension of the petitioner, in the installment of Rs.100/per month. 2. Apart from other contentions that, initiation of inquiry was by the authority not competent to do so and even consultation of the competent authority is also not effectively made so as to hear the petitioner on that issue, even on merits, prima facie it appears that, there is ample material on record to come to conclusion that for no misconduct and without any legally tenable material, proceedings were initiated against the petitioner. Further, the two villages in which one computer each, is alleged to have not come, hae subsequently been merged in the Ahmedabad Municipal Corporation and the Ahmedabad Municipal Corporation has, by filing reply in this petition, categorically stated that at both the places, computers were available when the charge was taken by the Municipal Corporation. 3. In this fact situation, learned A.G.P. Mr. Neeraj Soni seeks time. At his request, list on 5th February, 2013.” 9. Learned advocate Mr. Suchak appearing for the petitioner submitted that the petitioner has filed his reply and written statement stating that, petitioner has never issued any receipt of the computer signed by him. It was submitted that petitioner had already retired on 31.03.2004 and subsequently, the computers are not found in the month of April2004, hence, the petitioner is not responsible for such non availability of computers after his retirement. It was pointed out that as observed by this Court in the order dated 08.07.2008, the respondent Nos.4 and 6 have filed their respective affidavits on 29.01.2008 and 21.04.2008 wherein the Incharge Officer, Ahmedabad Municipal Corporation verified the fact that the computers alongwith Monitors, CPU and Keyboard were available, which earlier belonged to Saijpur-Piplaj Gram Panchayat, which subsequently merged with the Ahmedabad Municipal Corporation. 10. Learned advocate Mr. 10. Learned advocate Mr. Suchak further submitted that the respondent authorities have passed the impugned order without considering the fact that the inquiry was not initiated by the Competent Authority and the Inquiry Report submitted by the Taluka Development Officer did not contain any reason and such inquiry report was not based upon any documentary or oral evidence, and therefore, the petitioner could not have been held responsible for non availability of computers with the Gram Panchayat at the relevant time in the April-2004 i.e. after his retirement. 11. On the other hand, learned advocate Mr. Munshaw submitted that the petitioner is liable for the penalty imposed by the respondent-State Government. Learned advocate Mr. Munshaw relied upon the following averments made in the affidavit-in-reply filed on behalf of the Ahmedabad Municipal Corporation: “1. The respnt no.4 most respectfully craves leave to deny the averments and allegations made by the petitioner in the memo of Special Civil Application and humbly submits that the same are far from truth. The respondent no.4 craves leave to state that the petitioner herein was an employee of Ahmedabad District Panchayat and serving in the cadre of Talati cum Mantri and he retired on 31.304 on attaining the age of superannuation. It is stated that as certain financial irregularities were committed by the petitioner a preliminary inquiry was held against the petitioner and the complain was found substantial it was thought fit to hold departmental inquiry against the petitioner but as he has retired on 31.3.04 the respondent no.2 herein addressed a letter to the Development Commissioner of the State of Gujarat on 26.7.04 giving full details and requested to get an approval from the State Govt. for holding a departmental inquiry against the petitioner as it was necessary under the provisions of Rule 24[2] of Gujarat State Civil Service [Pension Rules] of 2002 and a copy of the letter is annexed as ANNEXUREA. The respondent no.4 states that the Development Commissioner addressed a letter on 10.1.05 to respondent no.1 herein for necessary permission to hold departmental inquiry against the petitioner as he had retired on 31.3.04 and a copy of the said letter dated 10.1.05 is annexed as ANNEXUREB. It is most respectfully stated that the respondent no.1 granted approval through letter dated 11.3.05 to initiate departmental proceeding against the petitioner and a copy of the letter is annexed as ANNEXUREC. It is most respectfully stated that the respondent no.1 granted approval through letter dated 11.3.05 to initiate departmental proceeding against the petitioner and a copy of the letter is annexed as ANNEXUREC. Immediately thereafter the petitioner herein was issued a charge sheet on 29.3.05 levelling the charges of financial irregularities and misappropriate of fund amount to Rs.1,70,600/in a case of purachse of computers and a copy of the charge sheet is annexed as ANNEXURED. Thereafter the respondent no.3 herein appointed Taluka Development Officer, Dascroi Taluka as a departmental inquiry officer through orders dated 20.5.05 and a copy of the order is annexed as ANNEXUREE. The respondent no.4 states that a full-fledged departmental inquiry was held against the petitioner and he was given full opportunity to represent his case and ultimately the departmental inquiry officer submitted his report and a copy of the report dated 13.2.06 is annexed as ANNEXUREF. In view of this the petitioner herein was issued a show cause notice on 22.3.06 by the respondent no.4 calling upon him to show the cause why a penalty should not be imposed as the charges were proved and a copy of the show cause notice is annexed as ANNEXUREG. It is pertinent to note that the respondent no.4 addressed a letter to Gujarat Panchayat Service Selection Board on 24.3.06 seeking the opinion on the issue of penalty in the subject matter and a copy of the letter is annexed as ANNEXUREH. It is stated that the under the provision of Gujarat Panchayat Act, 1993 and the rules framed therein it is necessary to obtain opinion from the Board. The Board addressed a letter on 12.12.06 opining to recover an amount of Rs.1,70,600/from the petitioner and also imposed a penalty of a cut of Rs.100/per month from the pension of the petitioner with permanent effect and a copy of the letter is annexed as ANNEXUREI. 2. The Board addressed a letter on 12.12.06 opining to recover an amount of Rs.1,70,600/from the petitioner and also imposed a penalty of a cut of Rs.100/per month from the pension of the petitioner with permanent effect and a copy of the letter is annexed as ANNEXUREI. 2. It is most respectfully stated that as the petitioner is a retired employee, the respondent no.1 herein is a competent authority to take a decision on the issue of penalty and, therefore, the matter was referred to the respondent no.1 on the issue of quantum of penalty by the respondent no.2 through a letter dated 3.1.07 and after careful consideration of all the aspects the respondent no.1 herein has thought it fit to impose a penalty of a cut of Rs.100/from the pension with permanent effect and also ordered to recover an amount of Rs.1,70,600/from the petitioner and a copy of the order is annexed as ANNEXUREJ. The respondent no.4 states that after thereafter through letter dated 15.6.07 the petitioner herein is intimated about the said order and a copy of the letter is annexed as ANNEXUREK. 3. At this stage the respondent no.4 humbly states that the petitioner herein was involved in serious charges of financial irregularities and the said charges of misappropriation of huge amount of Rs.1,70,600/are proved on the basis of the available record in departmental inquiry and even a Taluka Development Officer, City Taluka Panchayat who was the presenting officer has also reported to the departmental inquiry officer on 4.2.06 that such computers were not available during the physical verification and a copy thereof is annexed as ANNEXUREL. It is stated that the petitioner had failed to prove his case of innocence and purchase of computer from grant made available by City Taluka Panchayat for the Gram Panchayat and, therefore, the Hon'ble Court is humbly prayed to uphold the penal order and reject the present petition in limine with cost in the interest of justice.” Relying upon the averments, it was submitted that petition is without any merits and is liable to be dismissed. 12. Learned AGP Mr. Desai also submitted that petitioner was found guilty by the Inquiry Officer and accordingly, the State Government has granted sanction to levy the penalty proposed by the Deputy District Development Officer vide letter dated 24.03.2006. 13. 12. Learned AGP Mr. Desai also submitted that petitioner was found guilty by the Inquiry Officer and accordingly, the State Government has granted sanction to levy the penalty proposed by the Deputy District Development Officer vide letter dated 24.03.2006. 13. Having heard the learned advocates for the respective parties and having gone through the materials on record, it appears that the inquiry report dated 13.02.2006 submitted by the Taluka Development Officer is without any reason and absolutely perverse, contrary to the basic requirement of holding inquiry. The Inquiry Officer has not conducted the inquiry as per the Gujarat Panchayat Service (Rules) 1997 and as such, inquiry report holding the petitioner liable for not finding computers in the Gram Panchayat where the petitioner was serving as Talaticum-Mantri is not tenable in law. On perusal of the Inquiry report, it appears that computers were not found at Gram Panchayat Office in the month of April, whereas it is not in dispute that the petitioner retired on 31.03.2004. Therefore, the petitioner could not have been held responsible for the computers not found after his date of retirement. Moreover, when the petitioner has denied issuing any receipt for purchasing of the computer on 11.02.2004, such denial of the petitioner is not dealt with by the Inquiry Officer and such explanation was rejected without assigning any reason. Assuming for a while, that the petitioner has issued the receipt without date on 11.02.2004, with regard to the receipt of the computer then also the physical verification of the computer took place in the month of April2004, whereas the petitioner retired on 31.03.2004. Therefore, Inquiry Officer has not given any reason to hold the petitioner to responsible for non availability of the computers in the office of Village Panchayat. Moreover Respondent Nos.4 and 6 in their respective affidavits have clearly stated that the computers were found and handed over to Ahmedabad Municipal Corporation when the Gram Panchayat merged with the Ahmedabad Municipal Corporation. 14. In view of the above facts, inquiry report is perverse and consequently, the penalty imposed upon the petitioner is required to be quashed and set aside. The petition, therefore, succeeds and is allowed. The impugned order dated 29.05.2007 passed by the respondent No.3 and all consequential orders are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.