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2023 DIGILAW 492 (GUJ)

Naginbhai Veljibhai Patel v. State Of Gujarat

2023-03-21

HASMUKH D.SUTHAR

body2023
JUDGMENT : 1. The petitioner has filed the present writ petition praying for quashing and setting aside the order dated 04.01.2011 passed by the respondent of withholding of two increments with future effect of the petitioner. 2. It is the case of the petitioner that the petitioner was serving as a Taluka Development Officer. A charge-sheet came to be issued upon the petitioner on 13.03.2006 by the State Government and departmental inquiry was held against the petitioner in respect of five charges which relate to the period from 11.03.1997 to 10.08.2000. After the inquiry, the Inquiry Officer submitted his report on 29th September 2008. The Inquiry Officer did not find any substance in the charge against the petitioner. The disciplinary authority was not in agreement with the report submitted by the Inquiry Officer, and by issuing a notice dated 16th June 2010 without supplying a copy of the report, called upon the petitioner to submit his representation against the same as the disciplinary authority was differed with the findings and report of the Inquiry Officer. The petitioner submitted his representation against the said notice. The State Government has imposed a penalty of withholding of two increments with future effect on the petitioner. 3. Being aggrieved and dissatisfied with the aforesaid order of the respondent disciplinary authority, the petitioner has filed the present writ petition. 4. Heard Mr. Radhesh Vyas, learned advocate appearing for Mr. P.A. Jadeja, learned advocate for the petitioner and Mr.K.K. Desai, learned AGP appearing for the respondent- State. 5. Having heard the learned counsel for the respective parties and having perused the documents on record, it is undisputed fact that the notice dated 16th June 2010 was issued without the copy of the report submitted by the Inquiry Officer along with the tentative reasons, to the present petitioner. It is needless to say that when a report is filed by the Inquiry Officer and the disciplinary authority, if differs, then prior to coming to any conclusion, the decision making authority has to give an independent finding and tentative reasons are required to be given as to why the report submitted by the Inquiry Officer is not accepted by him or he is not in agreement with the report submitted by the Inquiry Officer, which is a settled position of law. 6. 6. In the present case, a second show-cause notice came to be issued by the respondent, which is produced at Annexure-D dated 16th June 2010, whereby it is apparently clear that a copy of the reasons is enclosed but nowhere it is stated that a copy of the report of the Inquiry Officer is enclosed along with said notice. The disciplinary authority has given two tentative reasons, but why and based on which materials the decision making authority is not in agreement with the reasons assigned by the Inquiry Officer and on what basis, it differed and arrived at the tentative decision of not accepting the report of the Inquiry Officer, is not spelled out in the notice. 7. Even the circular issued by the State Government in its General Administrative Department, dated 20th September 1993, also states that when the Inquiry Officer’s report is not accepted by the disciplinary authority, then the disciplinary authority has to supply a copy of the report along with his tentative decision for differing with the report, under Rule 10(2) of the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971. The disciplinary authority is duty bound to assign reasons to accept or not the reasons of the Inquiry Officer. In the present case, only a copy of the tentative reasons are given to the petitioner but no any reason is assigned by the respondent disciplinary authority for non-agreement with the report of the Inquiry Officer. The petitioner is denied up to that extent an opportunity of being heard. On that aspect a prejudice is caused to the petitioner as he is denied reasonable opportunity of being heard. 8. Further, in view of the decision laid down by the Apex Court in the case of Union of India versus Mohd. Ramzan Khan, reported in AIR 1991 (SC) 471 , a copy of the enquiry report should be supplied to the delinquent along with the recommendations, if any, in the matter of proposed punishment, and in the case of Homi B. Munshi versus P.G. Shroff, reported in 30(2) GLR 1367, this Court held that if the delinquent is not furnished with the copy of the enquiry report, it would amount to denial of reasonable opportunity. In the case on hand, indisputably a copy of the enquiry report is not supplied to the present petitioner and reasonable opportunity is also not afforded to the present petitioner. In the case on hand, indisputably a copy of the enquiry report is not supplied to the present petitioner and reasonable opportunity is also not afforded to the present petitioner. Hence, in view of the law laid down by Apex Court and this Court in the cases of (i) Mohd. Ramzan Khan (supra), (ii) Homi B. Munshi (supra), (iii) M.J. Ninama versus Post Master General, reported in 1984 GLH 800 and (iv) O.S. Rabari versus Government of Gujarat, reported in 32(2) GLR 1035, if a copy of the enquiry report is not provided along with the show-cause notice on the findings of Inquiry Officer and the reasons by the disciplinary authority for its disagreement not communicated to the delinquent, it amounts to violation of principles of natural justice. 9. This view has been affirmed by the Apex Court in the case of Yoginath D. Bagde versus State of Maharashtra, (1999) 7 SCC 739 . In this case also, the copy did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court held as under : "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into R. 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with." 10. In view of the above, the present petition succeeds and the order passed by the respondent dated 04.01.2011 of withholding of two increments with future effect of the petitioner is quashed and set aside. In view of the above, the present petition succeeds and the order passed by the respondent dated 04.01.2011 of withholding of two increments with future effect of the petitioner is quashed and set aside. The respondents are directed to release the two increments to the petitioner and accordingly revise his pension and other retiral benefits and pay the arrears within a period of three weeks from today and in case of default, the respondent shall have to pay dues to the petitioner with interest @ 6% per annum. 11. Rule made absolute. Direct service is permitted.