Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 535 (GUJ)

Kanaksinh Madhavsinh Ravalji v. State Of Gujarat

2023-03-29

MAUNA M.BHATT

body2023
JUDGMENT : 1. The captioned writ petitions are filed challenging penalty order dated 05.11.2019, passed by respondent No.2 (Disciplinary Authority), wherein Disciplinary Authority has decided to deduct an amount of Rs. 500/- from pension of each of the petitioners for a period of six months. 2. Since all these petitioners, at the relevant time were serving as Additional Assistant Engineer with the State of Gujarat and for similar charges, were inflicted with same penalty, all these petitions are heard and decided together by this common judgment and order. For the sake of convenience, the facts referred in Special Civil Application No.1504 of 2020 are considered for the purpose of adjudication of the petitions. Rule returnable forthwith. Mr. Sahil Trivedi, Ld. AGP waives service of Rule. 3. Facts in brief, are as under: The petitioner was serving as Additional Assistant Engineer with Narmada and Water Resources, Water Supply and Kalpsar Department, Government of Gujarat since 1979 and on attaining the age of superannuation, retired in year 2015. The petitioner was subjected to a departmental inquiry along with 35 other co-delinquents for an alleged incident of the year 1992-94. The charge sheet containing allegations was filed after a period of 10 years on 28.04.2003, from the date of incident. The allegations, in the charge-sheet, were that the petitioner had not prepared the quotation and had not invited tenders and thereby assisted the Superior Officers (Deputy Executive Engineer and Executive Engineer) in passing the rate list and bills, which resulted into loss to the Government. Upon conclusion of inquiry, the Inquiry Officer, submitted his report dated 10.09.2013, exonerating the petitioner. However, as the Disciplinary Authority was not in agreement with the report of inquiry officer, a show Cause Notice along with reasons for disagreement was served upon the petitioner on 08.02.2016. The petitioner responded to the Show Cause Notice by filing reply, pointing out that the other co-delinquents (Deputy Executive Engineers and Executive Engineers), who were charge-sheeted for the same charges, had preferred petitions challenging the issuance of the charge-sheet mainly on the ground of delay in initiating the departmental proceedings and this Court by a detailed judgment had quashed and set aside the charge-sheet issued to both Deputy Executive Engineer and Executive Engineer (superior officers). Ignoring the reply of present petitioner, the Disciplinary Authority has imposed a penalty, aggrieved by which, this petition is filed. 4. Heard learned advocate Mr. Ignoring the reply of present petitioner, the Disciplinary Authority has imposed a penalty, aggrieved by which, this petition is filed. 4. Heard learned advocate Mr. Nisarg Jain for the petitioners and learned Assistant Government Pleader Mr. Sahil Trivedi for the Respondent- State. 5. Learned advocate Mr. Nisarg Jain for the petitioners made the following submissions : (i) Penalty orders passed by respondent No.2 (Disciplinary Authority) is contrary to the decision of this Court and the Government Resolutions on the subject. (ii) Disciplinary Authority has failed to consider the charges levelled against the petitioners, which refers that the petitioners failed in preparing Quotation and by not inviting the tenders, assisted the Superior Officers, which resulted into loss to the Government. The Superior Officer of the petitioners being Deputy Executive Engineer had approached this Court by filing Special Civil Application No.1676 of 1998, challenging the initiation of departmental proceedings, wherein the petition was allowed on the ground of initiation of departmental proceedings after inordinate delay of 13 years and the respondents were further directed to pay all the retiral dues as if no charge-sheet had been issued within a period of 30 days with 8% interest. (iii) Further, in one more petition by the Executive Engineer being Special Civil Application No.12377 of 2016, this court had allowed the petition with the same directions as contained in Special Civil Application No.1676 of 1998. Therefore, non-consideration of reply filed by the Petitioners by the Disciplinary Authority is illegal and the penalty orders in all cases deserve to be quashed and set aside. As per Government of Gujarat Circular dated 25.02.2011, the disciplinary proceedings are to be completed within stipulated period and therefore, the orders imposing penalty in each petition is bad in law. (iv) Though the order of Disciplinary Authority dated 05.11.2019, refers to action of co-delinquent Officers of Class I & II, the disciplinary authority failed in considering the charges in these petitions. In these petitions, the charges are of assisting the superior officer in preparing bills. When the chargesheet in case of superior officers has been quashed and set-aside, equal treatment ought to have been given in present case. The orders of this court in co-delinquents superior officers case was brought to the notice of the disciplinary authority. Therefore, the order of penalty deserves to be quashed and set aside. 6. On the other hand, learned Assistant Government Pleader Mr. The orders of this court in co-delinquents superior officers case was brought to the notice of the disciplinary authority. Therefore, the order of penalty deserves to be quashed and set aside. 6. On the other hand, learned Assistant Government Pleader Mr. Sahil Trivedi submitted that penalty orders in these cases were issued by Disciplinary Authority after following due procedure under the extent Rule. There being no procedural irregularities, the scope of judicial review is very limited, therefore, no interference is warranted. He further submitted that delay caused in finalising the disciplinary proceedings may not be ground for quashing the penalty orders. He submitted that delay in conducting a disciplinary inquiry does not, ipso facto, lead to the proceedings being vitiated unless due prejudice caused to the delinquents has been demonstrated. 7. Learned Assistant Government Pleader relied upon following decisions in support of his submissions, particularly on the ground of scope of judicial review in penalty proceedings : (i) AIR Online 2022 SC 242 [Civil Appeal Nos.1622- 1623 of 2022 in Special Leave Petition (C) No.18110-18111 of 2018 in the case of Union of India & Ors. v. Managobinda Samantaray] . (ii) AIR Online 2023 SC 796 [Civil Appeal No.5153 of 2021 in Special Leave Petition (C) No.4655 of 2020 in the case of State of Madhya Pradesh & Anr. v. Akhilesh Jha & Anr.] (iii) 2015(2) SCC 610 in the case of Union of India and others v. P.Gunasekaran. 8. Heard learned advocates appearing for the respective parties and considered the decisions relied upon. It is noticed that in all these petitions, Disciplinary Authority had not accepted the inquiry officers report. The Disciplinary Authority in all the cases vide order dated 05.11.2019, disagreed with the findings recorded by the Inquiry Officer and inflicted the penalty, as referred hereinabove. 9. It is well settled that when disciplinary proceedings are concluded after following due procedure as per extent rule, the scope of judicial review is very limited. This Court cannot plead ignorance about the principle laid down by Hon’ble Supreme Court in several decisions explaining scope of judicial review. Further, the Court cannot act as appellate authority in disciplinary proceedings and reappreciate the evidence. This Court cannot plead ignorance about the principle laid down by Hon’ble Supreme Court in several decisions explaining scope of judicial review. Further, the Court cannot act as appellate authority in disciplinary proceedings and reappreciate the evidence. Keeping in mind the aforesaid principles and considering the facts of the present case, I do not deem it fit to interfere with the penalty orders dated 05.11.2019 for the below mentioned reasons: 9.1 Admittedly, there is no procedural infirmity alleged by the Petitioners while passing the penalty order and therefore, there is due compliance by the Respondent of this aspect. 9.2 The main fulcrum of the Petitioners argument is that this Court has quashed the chargesheet issued by the Respondent qua their co-delinquent superior officers and therefore, basis the doctrine of parity, similar treatment should be afforded to the Petitioners. In my view, this argument is misdirected and therefore, cannot be accepted. This Court in the case of superior officers in Special Civil Application No. 1676 of 1998 and Special Civil Application No. 12377 of 2018 was pleased to allow the petition and quash the chargesheet only on the ground of delay and that too, only qua the respective Petitioner’s therein. The findings rendered by this Court if viewed closely will reveal that this Court did not opine or touch up the merits of the case at any juncture. Per contra, the Petitioners herein did not challenge the issuance of chargesheet at the relevant point of time. In fact, the Petitioners chose to sit tight after issuance of chargesheet, post which the Inquiry Officer’s Report came to be passed which was followed up by issuance of a show cause notice by the Disciplinary Authority and reply being provided by the Petitioners. Therefore, the Petitioners contention that merely because the chargesheet issued way back in the year 2003 was quashed and set aside by this Court qua two senior officers, that too only on the ground of delay without entering into the merits, and therefore the same treatment should be applied to the Petitioners does not merit acceptance. In this context, the Government Resolution dated 31.08.1988, relied upon by the Petitioners discussing the doctrine of parity would also not be applicable since much water has flown after issuance of chargesheet in the case of the present Petitioners. In this context, the Government Resolution dated 31.08.1988, relied upon by the Petitioners discussing the doctrine of parity would also not be applicable since much water has flown after issuance of chargesheet in the case of the present Petitioners. Therefore, by no stretch of imagination can the Petitioners be considered to be “at par” with the Petitioner’s in Special Civil Application No. 1676 of 1998 and Special Civil Application No. 12377 of 2018. At this juncture, I also take notice of the fact that though in the memo of petition it has been contended that the orders passed by this Court in Special Civil Application No. 1676 of 1998 and Special Civil Application No. 12377 of 2018 were brought to the notice of the disciplinary authority in the reply to show cause notice, however the orders dated 05.11.2019 do not make a mention to any such orders having been brought to notice. Since the reply to show cause notice is not on record, the penalty orders dated 05.11.2019 will have to considered, which are bereft of reference to this Court’s orders. In any view of the matter, in view of my findings herein with regard to non-applicability of this Court’s orders to the facts of the present cases, nothing substantial would turn even if the orders of this Court were in fact pointed out by the Petitioners before the disciplinary authority. 9.3 Another limb of the Petitioners argument is alleged delay caused in conclusion of the disciplinary proceedings. The Petitioners have placed reliance on Government of Gujarat Circular dated 25.02.2011 for the same. In my view, the said argument also does not deserve acceptance. Firstly, the Petitioners have chosen not to place on record the reply to show cause notice. Secondly, assuming that the contents mentioned in the memo of petition discussing the reply and grounds urged before this Court were actually urged by the Petitioners before the disciplinary authority, even in that case the same does not prompt me to interfere on this limited ground. It is well settled law that every delay in conducting a disciplinary inquiry does not, ipso facto, lead to the inquiry being vitiated unless the prejudice caused to the officer is decided on the basis of circumstances of each case. It is well settled law that every delay in conducting a disciplinary inquiry does not, ipso facto, lead to the inquiry being vitiated unless the prejudice caused to the officer is decided on the basis of circumstances of each case. In the present case, the Petitioners have not pointed out the prejudice caused to them on account of alleged delay in conclusion of the disciplinary proceedings, if any, and the said argument seems to have been urged as an alternate argument. 9.4 At this juncture, I wish to rely on the decision of the Hon’ble Supreme Court in the case of Union of India and Ors V/s Subrata Nath reported in 2022 SCC OnLine SC 1617 where it has been held as under: “18. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” Applying the aforesaid principle as expounded by the Hon’ble Supreme Court, I do not see how the case of the Petitioners can fall under the exceptions carved out for entertaining a petition filed under Article 226/ 227 of the Constitution of India challenging penalty orders passed by the disciplinary authority. 10. In view of the above, all these petitions are dismissed. Penalty order dated 05.11.2019 stands confirmed in each petition. Rule is discharged. There shall be no order as to costs.