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2023 DIGILAW 743 (GUJ)

Gunwantlal Amrutlal Bhavsar v. State Of Gujarat

2023-05-05

HASMUKH D.SUTHAR

body2023
JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 30.9.2009 imposing monthly pension cut of Rs.500/- for 5 years and to refund the amount if any deducted from the pension of the petitioner with interest. 2. Briefly stated facts of the petitioner are as under: 2.1 The petitioner was serving as Taluka Development Officer and he retired on superannuation on 30.6.2002. A charge-sheet dated 11.3.2002 came to be issued by the State Government for holding departmental enquiry against the present petitioner where the petitioner was serving as Taluka Development Officer from 22.2.2000 to 13.6.2001 at Lakhtar, at that time, an amount of Rs.32,01,440/- was paid more in connection with the damage caused due to earthquake in 84 cases of Bhadwana village. The petitioner sent his reply and denied the charge. The Enquiry Officer appointed as regular enquiry came to be conducted. The Enquiry Officer his filed his report on 11.6.2006, wherein he did not find the charge proved against the petitioner. However, the Disciplinary Authority did not agree with the findings of the Enquiry Officer and issued notice dated 14.9.2006 calling upon the petitioner to make his pension against the findings of the Disciplinary Authority. 2.2 In response to the said notice, the petitioner made a representation on 18.12.2006. After lapse of 3 years of submission of representation, vide order dated 30.9.2009, the petitioner was imposed penalty of pension cut of Rs.500/- per month for five years. 2.3 Being aggrieved by and dissatisfied with the impugned order of pension, the petitioner has preferred the present petition. 3. Mr. Radhesh Vyas, learned advocate appearing for Mr. P.A. Jadeja, learned advocate for the petitioner has submitted that the Enquiry Officer exonerated the petitioner from the charge levelled against him though the Disciplinary Authority did not agree with the findings of Enquiry Officer and issued the show cause notice without any reason for disagreement and copy of the tentative reasons is not supplied and upto to that extent, prejudice caused to the present petitioner. Even while passing the order of punishment, the advice of Gujarat Public Service Commission (‘GPSC’ for short) is obtained on record, but the said advice is not communicated for supplying to the petitioner. Even while passing the order of punishment, the advice of Gujarat Public Service Commission (‘GPSC’ for short) is obtained on record, but the said advice is not communicated for supplying to the petitioner. Hence, he has requested to allow the present petitions as considering the breach of principles of natural justice and in absence of communication of tentative reasons of the disagreement is violation of principles of natural justice and he has relied upon the judgment in the case of Yoginath D. Bagde vs. State of Maharashtra [ AIR 1999 SC 3734 ]. 4. Per contra, Mr. Kurven Desai, learned AGP appearing for the respondent State has submitted that the ample opportunity provided to the present petitioner prior to passing an order of punishment, the Disciplinary Authority has informed the petitioner about disagreement which is produced on record. While forwarding the report by the District Development Officer, Surendranagar, the petitioner was informed that he is responsible for showing the estimated loss more than actual loss which was provided and payment was made by the petitioner himself. The financial misappropriation/irregularities were found and the petitioner held guilty. The petitioner has submitted his representation. The said representation was also considered. Thereafter, the respondent decided to take disciplinary decision against the petitioner on 15.9.2008. Thereafter, the correspondence forwarded to the GPSC for consultation/advice vide order dated 7.10.2008. GPSC sought further clarifications on 25.11.2008, 3.3.2009, 4.4.2009, 15.6.2009 and 28.7.2009. All these correspondence are placed on record at Annexure-R1 to Annexure-R11. Considering the aforesaid correspondence, GPSC consented/agreed with the decision of punishment and accorded the consent on 31.8.2009 which is produced at Annexure-R12 and considering the aforesaid concurrence/consent of GPSC, the punishment/penalty of pension cut on Rs.500/- per month for 5 years came to be imposed. Prior to that, reason for disagreement was communicated and report of Enquiry Officer was also supplied to the petitioner. In view of the above, there is no breach of any principles of natural justice and show cause notice squarely depicts that before taking the decision, the petitioner was heard. In view of the above, he has requested to dismiss the present petition. 5. Having heard learned advocates appearing for the respective parties and perused the material on record. In view of the above, there is no breach of any principles of natural justice and show cause notice squarely depicts that before taking the decision, the petitioner was heard. In view of the above, he has requested to dismiss the present petition. 5. Having heard learned advocates appearing for the respective parties and perused the material on record. It appears that the charge-sheet came to be issued to the petitioner which is produced at Annexure-A in connection with excess payment of Rs.32,01,440/- and financial irregularities in 84 cases of damage caused due to earthquake at Village: Bhadwana, Taluka: Lakhtar. Imputation is also depicts the said fact that vide Voucher No.38 dated 11.6.2001, the petitioner has made excess payment and caused damage and for this financial irregularity, he is responsible. A list of documents/evidence reveals that only two documents, viz. one is letter dated 15.1.2002 addressed by the Taluka Development Officer, Lakhtar and report of Liaison Officer (Earthquake 2001) and Special Land Acquisition Officer (Narmada) dated 14.7.2001. In the report, it is observed that whatever alleged during the enquiry in the report dated 14.7.2001, technical supervisors and staff of Taluka Panchayat have mentioned doubtful amount, but they have done survey with a view to give undue advantage to the beneficiaries of earthquake and it was recommended to take appropriate action against technical staff and nothing is produced on record as to whether any proceedings being initiated against such technical staff is not produced on record and alleged misappropriation/excess payment of Rs.32,01,440/- being made is also not true and statement of Liaison Officer is also not produced on record. Recording all these findings, the Enquiry Officer found that the charge is not proved against the petitioner. 6. The Disciplinary Authority issued the notice which is produced at Annexure-C dated 14.6.2006 and he disagreed with the findings of the Enquiry Officer and raised two grounds viz. circular dated 23.2.2001 issued by the Revenue Department is not followed by the petitioner and in 84 cases, Rs.3,19,700/- excess approved the amount of Rs.3,19,700/- is excess approved and the petitioner has shown negligence. Prima facie these two additional points are mentioned in the notice. circular dated 23.2.2001 issued by the Revenue Department is not followed by the petitioner and in 84 cases, Rs.3,19,700/- excess approved the amount of Rs.3,19,700/- is excess approved and the petitioner has shown negligence. Prima facie these two additional points are mentioned in the notice. In support of the aforesaid decision, no any reason assigned or no any documents are produced and how the Disciplinary Authority is differed or disagreed with the findings of the Enquiry Officer is not found on record and no such material is produced on record. In view of the above, prima facie it appears that as the law laid down by the Hon’ble Apex Court in the case of Yoginath D. Bagde (supra), the Hon’ble Apex Court has observed as under: “36. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.” Even if the learned advocate for the petitioner perused the charge-sheet produced at Annexure-A, the charge against petitioner is only for one article while arriving the tentative decision along with the notice issued at Annexure-C, the Disciplinary Authority came to different conclusion and that two additional charge in absence of any evidence or material which is neither produced on record nor considered or produced before the Enquiry Officer. The note of the said fact is also taken by the Enquiry Officer in para-8 of the enquiry report dated 11.6.2006. Even the copy of the said circular is not supplied to the petitioner. The note of the said fact is also taken by the Enquiry Officer in para-8 of the enquiry report dated 11.6.2006. Even the copy of the said circular is not supplied to the petitioner. Even the department has not relied on the said document while issuing the charge-sheet and thus, it appears that while disagreeing the report of Enquiry Officer, the Disciplinary Authority has relied on additional document and evidence which is not on the record, which is not permissible under Rule 9(14) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said Rule 9(14) reads as under: “New evidence shall not be permitted or called for and no witness shall be recalled to fill up any gap in the evidence .Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.” In the case on hand, no opportunity is given to the petitioner to deal with the aforesaid additional ground. 7. Further, the order of punishment is produced at Annexure- E, page 35, wherein in a preamble, it reveals that the department has made the proposal to GPSC on 7.10.2008 and 28.7.2009 and then after getting the concurrence from the GPSC on 31.8.2009, the order has been passed. Going through the aforesaid order of punishment, while issuing notice by the Disciplinary Authority without any tentative reason or findings, though the petitioner replied the said notice and raised the defence, all these contentions are not dealt with or no any reason is assigned to turn down or accept the said reason. Even only one line is stated hat the concurrence is accorded by GPSC on 31.8.2009, but prior to the said advice or concurrence, copy of same concurrence/advice dated 31.8.2009 which is not produced at Annexure-R/12 is not provided. Even only one line is stated hat the concurrence is accorded by GPSC on 31.8.2009, but prior to the said advice or concurrence, copy of same concurrence/advice dated 31.8.2009 which is not produced at Annexure-R/12 is not provided. Rule 10(4) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 reads as under: “If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty as may be imposed on the Government Servant.” In view of the above, it is incumbent upon the government to take into consideration the advice of the GPSC in every case where it is necessary to consult the GPSC before imposing any punishment on the government servant. Therefore, it is apparent that the advice of the GPSC would carry substantial persuasive value with the government and from the important factual from the government in arriving at the conclusion recording the guilt or otherwise all the government servants and the punishment to be imposed upon him. 8. In view of the above, this issue is squarely covered by the decisions in the case of B.J. Jadav vs. State of Gujarat [2005 (3) GLH 2650, in the case of R.R. Kacha vs. State of Gujarat [ 2016 (2) GLR 1428 ], in the case of N.R. Pardeshi vs. State of Gujarat, [2017 (1) GLH (UJ) 2] and in the case of J.R. Dahiya vs. State of Gujarat [ 2018 (1) GLR 760 . While taking into consideration the aforesaid provisions, this Court has held that advice of the GPSC forms a vital material which the government took into consideration before imposing the punishment on the petitioner and, therefore, it is incumbent upon the authority to supply a copy of the advice of the GPSC so as to meet with the tenets of principles of natural justice. Herein on that ground also, the order of punishment to delinquent is vitiated and no opportunity being heard is given to the petitioner by supplying the copy of the tentative reasons/findings and copy of advice of GPSC prior to imposing the punishment to delinquent. 9. Hence, I am of the considered opinion that the present petition deserves to be allowed on two counts (i) due to non-supply of reason of tentative decision by Disciplinary Authority and the Disciplinary Authority was relied on additional ground and document which is not provided to the petitioner; and (ii) non-supply copy of the advice of GPSC to the petitioner. Accordingly, the petition is allowed. The order dated 30.9.2009 passed by the respondent authority imposing monthly pension cut of Rs.500/- for 5 years is hereby quashed and set aside. Further, the respondent authority is hereby directed to refund the amount if any deducted from the pension of the petitioner. Rule is made absolute.