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2022 DIGILAW 1033 (GUJ)

Nitin Panachand Parmar v. State Of Gujarat

2022-09-13

BIREN VAISHNAV

body2022
JUDGMENT : 1. Rule returnable forthwith. Mr. Kurven Desai, learned AGP waives service of notice of rule on behalf of respondent State. 2. By way of this petition, the petitioner has challenged the order dated 30.03.2022 by which the petitioner has been terminated from his services. 3. Facts in brief would indicate that the petitioner was appointed as a Junior clerk with the Sales Tax Department on compassionate grounds on 23.04.1999. An FIR was lodged on 24.09.2017 being C.R. No. I- 04/2017 before the CID Crime, Ahmedabad Zone Police Station where the petitioner was arraigned as accused no. 3. The FIR pertained to some bogus billing being carried out by the main accused one Nilesh Mali. Pursuant to the said FIR, the petitioner was suspended from service on 31.05.2017. According to the petitioner, on an investigation carried out pursuant to the FIR, Summary has been filed in the proceedings. 3.1 The petitioner's suspension since was continued for a long period of time even after the issuance of a chargesheet dated 20.02.2018, the petitioner approached this court by filing Special Civil Application No. 17187 of 2019. This court by an order dated 30.11.2021 disposed of the petition observing that more than four years had gone by and therefore the departmental proceedings must be completed on or before 31.03.2022. The court observed that since no final order was passed on or before 31.03.2022, the suspension of the petitioner shall stand revoked. 3.2 The petitioner was issued a charge-sheet on 20.02.2018 imputing in all ten charges. With a statement of imputations a list of documents were given to the petitioner. The petitioner filed a reply to the chargesheet on 07.12.2020. The inquiry officer held departmental proceedings and furnished an inquiry report on 25.02.2022. A final show-cause notice was given on 04.03.2022, to which the petitioner replied on 21.03.2022. The impugned order of dismissal was passed on 30.03.2022. 4. Mr. Yatin Oza, learned Senior Advocate appearing with Mr. Jit Patel, learned advocate for the petitioner would submit that the order of dismissal from service is in violation of principles of natural justice. He would submit that merely because the authorities wanted to honour the time limit and the directions issued by this court in Special Civil Application No. 17187 of 2019, they hurriedly passed an order of dismissal. 4.1 Mr. He would submit that merely because the authorities wanted to honour the time limit and the directions issued by this court in Special Civil Application No. 17187 of 2019, they hurriedly passed an order of dismissal. 4.1 Mr. Oza would submit that reading the inquiry officer's report would indicate that no full fledged inquiry was held in consonance with the Gujarat Civil Services (Discipline and Appeal) Rules, no evidence was led and therefore the proceedings and the consequential dismissal order must be quashed and set aside. In support of his submissions Mr. Oza would rely on the following decisions: (i) Kuldeep Singh vs. Commissioner of Police and Others reported in (1999) 2 SCC 10 ; (ii) Roop Singh Negi vs. Punjab National Bank and Others reported in (2009) 2 SCC 570 ; (iii) Lucknow Kshetriya Gramin Bank and Another vs. Rajendra Singh reported in (2013) 12 SCC 372 . 5. Mr. Kurven Desai, learned AGP appearing for the respondent State would rely on the inquiry officer's report and submit that a detailed examination of each charge respectively was done. He submitted that the inquiry officer's report based on the response given by the petitioner and the charges were held to be proved. 5.1 Mr. Desai would submit that the charges are serious enough inasmuch as even an FIR was filed wherein the petitioner was arraigned as a co-accused in context of a bogus billing scam. 6. Considering the submissions made by the learned counsels for the respective parties, it will be necessary to reproduce the order passed by this court in Special Civil Application No. 17187 of 2019 dated 30.11.2021. "Today, when the matter is taken up for hearing, learned AGP Mr.Adityasinh Jadeja has submitted that the Presenting Officer is appointed by the State on 10.06.2021. Learned advocate Mr.Yatin Oza appearing for the petitioner has submitted that in the present writ petition, the petitioner has challenged his suspension order dated 31.05.2017 and even after passage of more than 4 years, the departmental proceedings are not completed. It is submitted that even as per the policy of the State Government, the departmental proceeding is required to be completed within a period of six months. The petitioner was issued the charge-sheet on 20.02.2018 and he has been facing the suspension since more than 4 years. It is submitted that even as per the policy of the State Government, the departmental proceeding is required to be completed within a period of six months. The petitioner was issued the charge-sheet on 20.02.2018 and he has been facing the suspension since more than 4 years. It is surprising to note that the Presenting Officer is appointed on 10.06.2021 after a period of more than 4 years from his suspension. Thus, the State authority is directed to complete the departmental proceedings latest by 31.03.2022. It is directed that, if the departmental proceedings are not over or completed, and no final order is passed before 31.03.2022, the suspension of the petitioner shall stand revoked. It is clarified that, the petitioner shall fully cooperate with the departmental proceedings. With the aforesaid observation, the present petition stands disposed of. Notice is discharged." 7. Reading of the inquiry officer's report would indicate that each charge is reproduced, the response of the petitioner delinquent and the defence is set out. The Presenting Officer's submission is set out and then the Inquiry Officer has held the charges to be proved. When the charge-sheet is considered, what is apparent is that the charge-sheet relies on several documents in order to bring home the charges against the petitioner. 7.1 Mr. Desai, learned AGP's submission that the inquiry was held in accordance with law by taking the court to the discussion on charge no. 8 would indicate that the inquiry officer considered the statement of one Jigneshkumar Mehta which was given by him during the investigation carried out in the FIR in question. Said Jignesh Mehta was never produced as a witness before the Inquiry Officer. Even the documents to the chargesheet were never produced and examined and had undergone the scrutiny of evidence. Under the Gujarat Civil Services (Discipline and Appeal) Rules, particularly Rule 9 which is with regard to the procedure for imposing major penalties, indicates that in accordance with sub-rule 13 of Rule 9 on the date fixed for the inquiry oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined at the hands of the government servant. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined at the hands of the government servant. Sub-rule 13 of Rule 9 reads as under: "(13) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they shall have been cross-examined, but not on any new matter, without the leave of the Inquiry Authority. The Inquiry Authority may also put such questions to the witnesses as it thinks fit." 8. The decision in the case of Roopsingh Negi (supra) in paras 14 and 23, observe as under: "14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof." 9. Apparently perusal of the inquiry officer's report would indicate that it is a mere reproduction of reply and response of the Presenting Officer and on that basis holding the charges as proved. This is in violation of the principles of natural justice and the rules in question. Obviously apparent it is that the inquiry officer and the disciplinary authorities have rushed through the proceedings in a slipshod manner throwing the rule book to the winds merely to comply with the time limit in the order dated 30.11.2021 in the petition filed earlier. 10. Accordingly, the order dated 30.03.2022 is hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service with all consequential benefits as if the order dated 30.03.2022 was never passed. It is open for the respondents to undertake a fresh inquiry in accordance with law from the stage post the defence statement of the petitioner dated 11.12.2020. Petition is accordingly allowed. Rule is made absolute accordingly.