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2023 DIGILAW 1092 (GUJ)

BANSIDHAR S. PARMAR v. B. S. PATEL

2023-09-26

NIKHIL S.KARIEL

body2023
JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned Advocate Mr. Manan Paneri on behalf of the learned Advocate Mr. Deepak M. Shah, learned Assistant Government Pleader Mr. Hardik Soni on behalf of the respondent no. 2 and learned Advocate Mr. H.S. Munshaw for the respondent nos. 1, 3 and 4. 2. By way of this petition, the petitioner has sought to assail an order passed by the respondent no. 6-Gujarat State Land Development Corporation dated 03.09.2007 confirmed vide order dated 24.12.2007, more particularly, whereby the petitioner has been imposed with punishment of being placed in the lowest scale in the cadre of Head Clerk for a period of one year without future effect. 3. Learned Advocate Mr. Paneri would submit that in the present case, the petitioner has been punished after a departmental inquiry for charges for which the petitioner had faced an inquiry which has resulted in issuance of a warning to the petitioner. Learned Advocate Mr. Paneri would submit that originally a Charge-sheet has been issued to the present petitioner on 05.11.2004, inter-alia, alleging violation of Rule 3(1)(3) and Rule 3(A) of the Gujarat Civil Services (Conduct) Rules, 1971. Learned Advocate for the petitioner would draw attention of this Court to the articles of charge, whereby it is inter-alia, alleged that during the year 2003, when the petitioner was working as a Head Clerk in the Ahmedabad office of the respondent Corporation, he had the habit of speaking very loudly and to use unparliamentary words with the other employees and whereas a specific reference is made to a complaint/Communication dated 10.04.2003. It is also alleged that the petitioner by using such unparliamentary words, was indulging in sexual harassment of female employees of the respondent Corporation. Learned Advocate would thereafter draw attention of this Court to the order passed by the Managing Director of the respondent Corporation dated 27.02.2005, whereby the Managing Director has inter-alia after referring to the allegations against the petitioner has stated that the inquiry could not prove the allegations of mental and physical harassment of female employees by the petitioner and whereas it is alleged that on 15.12.2002, the petitioner during a function of the Corporation had indulged in misbehavior with other employees of the Corporation and whereas it is stated that since the petitioner was in habit of using unparliametary words and speaking very loudly, the petitioner was issued a warning. It appears that the said punishment had not been questioned by the present petitioner. 3.1 Learned Advocate would submit that thereafter the respondent Corporation had issued a second Charge-sheet dated 22.12.2005 to the petitioner and whereas learned Advocate would also take this Court to the articles of charges. Learned Advocate would submit that except the Charge No. 2.1 whereby an allegation is levelled that the petitioner was in the habit of harassing a particular employee namely, one, Mr. V.K. Vihol, substantially all other allegations were similar to the allegations made against the petitioner in the first Charge-sheet. Learned Advocate would submit that the similarity between the charges was on account of the fact that the first Charge-sheet had been issued relying upon the letter/complaint written by some female staff workers on 10.04.2003 and whereas even in the second Charge-sheet, the same letter is made one of the basis for levelling allegations against the petitioner. 3.2 Learned Advocate would submit that at that stage, being aggrieved by the Charge-sheet issued against the petitioner on 22.10.2005 i.e. the second Charge-sheet, the petitioner had approached this Court by preferring Special Civil Application No. 12855 of 2006 and whereas a learned Co-ordinate Bench vide order dated 05.07.2006 had declined to interfere in the writ petition, more particularly, while observing that the petition is dismissed without prejudice to the rights of the petitioner to take out all available defence before the Inquiry Officer in the departmental inquiry pending against him. 3.3 Learned Advocate would submit that while he had been given adequate opportunity by the Inquiry Officer and whereas the Inquiry Officer’s report, holds the charges levelled against the petitioner as being proved, and whereas, vide an order dated 03.09.2007, after affording appropriate opportunity, the respondent Corporation had imposed upon the petitioner the punishment as referred to herein-above. Learned Advocate would further submit that against such imposition of punishment, the petitioner had preferred an appeal and whereas vide an order dated 24.12.2007, the Appellate Committee had refused to interfere with the order passed by the Managing Director imposing punishment upon the present petitioner. Learned Advocate would further submit that against such imposition of punishment, the petitioner had preferred an appeal and whereas vide an order dated 24.12.2007, the Appellate Committee had refused to interfere with the order passed by the Managing Director imposing punishment upon the present petitioner. 3.4 Learned Advocate would submit that even in the reply to the second Charge-sheet as well as in the appeal preferred against the order of the disciplinary authority consequent to the second Charge-sheet, at both stages, the petitioner inter-alia contended that since the charges levelled against the petitioner being substantially based on same allegations upon which first Charge-sheet has been issued therefore, the proceeding could not be continued any further and whereas such request made by the petitioner has not been acceded to nor had the petitioner been exonerated. 3.5 Learned Advocate would submit that the respondents having issued a Charge-sheet to the petitioner inter-alia alleging harassment of other employees, and whereas after an appropriate disciplinary inquiry, if the respondents could not prove charges levelled against the petitioner and whereas inspite of which punishment of warning had been issued to the petitioner then, it was not open for the respondent to have issue a second Charge-sheet to the petitioner substantially upon the same allegations on which the first Charge-sheet had been issued. Learned Advocate would submit that the petitioner is being attempted to be prosecuted twice for the very same allegations and whereas learned Advocate would under such circumstances, request this Court to interfere. 3.6 Learned Advocate would in support of his submissions rely upon the decision of the Hon’ble Apex Court in the case of Kanailal Bera vs. Union of India and Others, (2007) 11 SCC 517 , more particularly, Para-6 thereof whereby, according to learned Advocate, the Hon’ble Apex Court has inter-alia held that the department would not be entitled to hold a second inquiry on charges upon which delinquent officer had been partially held guilty and more particularly, on the ground that the charges could not be proved in the first inquiry. 3.7 Learned Advocate relying upon the decision of the Hon’ble Apex Court would request that the second Charge-sheet, resulting in the punishment impugned was absolutely illegal, de hors the provisions and therefore, learned Advocate would request this Court to set aside the impugned punishment as well as the entire departmental inquiry proceedings upon which the impugned order of punishment was passed. 4. Learned Advocate Mr. H. S. Munshaw for the respondent Corporation would submit that very serious charges had been levelled and proved against the petitioner. It is submitted that the petitioner had been afforded adequate opportunity of defending himself in the departmental proceedings and after the Inquiry Officer had held the petitioner guilty of the charges levelled, further opportunity had been afforded before imposition of the punishment. Learned Advocate would submit that since no lacuna or shortcomings have been alleged as far as grant of opportunity is concerned and since the punishment is not disproportionate, this Court may not interfere. 5. Heard learned Advocate Mr. Paneri for the petitioner and learned Advocate Mr. Munshaw for the respondent. 6. The question which arises for consideration of this Court being that whether the first Charge-sheet and second Charge-sheet were issued on the basis of same set of allegations and whereas if the answer is in the affirmative, then the second/ancillary question would be as to whether the respondent Corporation was empowered to issue a second Charge-sheet for allegations upon which a departmental inquiry had already been concluded against the petitioner. 6.1 In this regard, it would be relevant to observe that the allegations in the first Charge-sheet has to be made out from the articles of charges are with regard to alleging that the petitioner was in habit of using loud language inside the office premises and the petitioner was also in a habit of using unparliamentary words inside the office even in presence of female staff workers. It would appear that the allegation of using unparliamentary language, is sought to be extended to mean that the same being uttered in presence of female staff members, would be akin to the petitioner sexually harassing the female employees. 6.2 It would appear that the main basis for levelling such allegations was a complaint allegedly made by the lady staff members to the Managing Director dated 10.04.2003 where the allegations as regards harassment had been levelled. 6.2 It would appear that the main basis for levelling such allegations was a complaint allegedly made by the lady staff members to the Managing Director dated 10.04.2003 where the allegations as regards harassment had been levelled. It would also be relevant to mention here that the charges relate to incidents which had taken place during the year 2003. It would appear since the charges against the petitioner could not be proved as regards the first Charge-sheet only a warning has been issued to the petitioner. 6.3 As far as the second Charge-sheet is concerned, upon comparing the articles of charges in both the charge-sheets it would appear that the allegations are substantially the same. It would further appear that the allegations of using unparliamentary language etc. which are the main allegations is attempted to be substantiated, more particularly, by the articles of charges specifically stating that the words/terms used by the petitioner against the other staff members. 6.4 It would also appear that while the Charge-sheet is issued alleging commission of misconduct by the petitioner between the period from 2002 to 2005 but a persual of the articles of charge would reveal that the incidents which are mentioned in the Charge-sheet relate to the incidents which had taken place in the year 2003. It would appear as contended by the learned Advocate Mr. Paneri that except for the Charge No. 2.1 which is with regard to alleged harassment of one employee namely, Mr. V.K. Vihol, the second Charge-sheet, is substantially on allegations similar to the allegations upon which the first Charge-sheet had been issued. It also also requires to be mentioned here that the second Charge-sheet also refers to and relies upon the complaint dated 10.04.2003 by certain female employees of the respondent Corporation, referred to herein above. 6.5 Thus, in the considered opinion of this Court that except the Charge No. 2.1, both the charge sheets i.e. first Charge-sheet and second Charge-sheet have been issued for substantially for the same allegations. 6.6 Having observed as above, the second question would be with effect to the allegations based upon which the second Charge-sheet had been issued to the present petitioner was substantially the same as the allegations levelled against the petitioner in first Charge-sheet, could be, were the respondent empowered to issue such Charge-sheet. 6.6 Having observed as above, the second question would be with effect to the allegations based upon which the second Charge-sheet had been issued to the present petitioner was substantially the same as the allegations levelled against the petitioner in first Charge-sheet, could be, were the respondent empowered to issue such Charge-sheet. 6.7 In the considered opinion of this Court, such procedure could not be held to be permissible, more particularly, as observed by the Hon’ble Apex Court in Para-6 in the case of Kanailal Bera (supra) has relied upon by the learned Advocate Mr. Paneri. 6.8 The Hon’ble Apex Court, inter-alia, observed that “once the disciplinary procedure for conducting departmental inquiry has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the self same charges which could not be proved in the first inquiry.” 6.9 In the considered opinion of this Court, the above observations of the Hon’ble Apex Court, clinches the issue in favour of the present petitioner, more particularly, since the second Charge-sheet is issued on substantially the same allegations levelled against the present petitioner in the fist Charge-sheet and whereas the allegation levelled against the present petitioner vide the first Charge-sheet could not be proved by the Inquiry Officer neither the disciplinary authority in any manner disagree with the Inquiry Officer. 7. At this stage, it also requires to be mentioned that such a procedure i.e. issuance of second Charge-sheet for very same charges, the departmental inquiry has been held and also concluded would not be permissible, more particularly, in tune with the well known principle of public policy that a person cannot be prosecuted or punished twice for the very same offence. The aforementioned proposition flowing from the legal maxim “Nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” which means no one ought to be vexed twice if appears to the Court that it is for one and the same cause. The aforementioned proposition flowing from the legal maxim “Nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” which means no one ought to be vexed twice if appears to the Court that it is for one and the same cause. Thus, once an employee is issued with Charge-sheet alleging misconduct and whereas in the departmental inquiry which follows the Charge-sheet, the Inquiry Officer does not hold the employee guilty of the charges levelled against him and such report is accepted by the disciplinary authority then the disciplinary authority after lapse of some time could not be permitted to issue fresh Charge-sheet on very same allegations. 8. At this stage, it requires to be mentioned that the second Charge-sheet, contains a charge which was not a part of earlier Charge-sheet and whereas in the considered opinion of this Court, the second Charge-sheet, containing substantially the allegations upon which the first Charge-sheet has been issued and whereas since it is not possible for this Court even after going through the order passed by the disciplinary authority to try and bifurcate the allegations and to find out whether the petitioner could have been imposed with same punishment as even if, the second Charge-sheet contained the only charges which was different from the Charge-sheet issued to the petitioner at the first place. 9. Under such circumstances, since the respondents themselves had committed an illegality by resorting to issuance of a Charge-sheet substantially on allegations on which the Charge-sheet had already issued and inquiry concluded, at this stage after 10 years of the punishment being passed, more particularly, after approximately 7 years of retirement of petitioner, this Court does not deem it proper to set aside the proceeding and remand the matter back to the disciplinary authority for decision afresh, even on the charge which was not substantially the same as in the first Charge-sheet. 10. In this view of the matter, in the considered opinion of this Court, impugned order of punishment dated 03.09.2007 passed by the Managing Director of the respondent Corporation and order dated 24.12.2007 passed by the Appellate Committee of the respondent Corporation is required to be quashed and set aside and are hereby quashed and set aside. 10. In this view of the matter, in the considered opinion of this Court, impugned order of punishment dated 03.09.2007 passed by the Managing Director of the respondent Corporation and order dated 24.12.2007 passed by the Appellate Committee of the respondent Corporation is required to be quashed and set aside and are hereby quashed and set aside. All the consequential benefits arising of such quashing and setting aside shall be provided to the petitioner within a period of two months from the date of receipt of this order. 11. With these observations, the present petition stands disposed of.