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2024 DIGILAW 1025 (GUJ)

A K Valvi v. Commissioner Of Fisheries

2024-04-26

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. The petitioner has preferred present petition under Articles 14, 16, 21, 226 and 227 of the Constitution of India challenging the penalty order dated 24.7.2006 passed by the Commissioner of Fisheries (Disciplinary Authority), respondent No.1 and order dated 3.12.2010 passed by the Gujarat Civil Services Tribunal Gandhinagar in Appeal No. 314 of 2006 and prayed for below mentioned relief/s:- “16 (A) Your Lordships be pleased to issue a writ of certiorari to vacate the impugned final judgment and order dated 3.12.2010 (Annexure-A) passed by the Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.314/2006; (B) Your Lordships be pleased to issue a writ of certiorari to quash the penalty order dated 24.7.2006 passed by the Commissioner of Fisheries (Disciplinary Authority), respondent No.1 directing the recovery of Rs.15,000/- from the petitioner; (C) Your Lordships be pleased to declare that the findings of the Inquiry Officer contained in his report dated 21.12.2005 holding charge No.(3) partly proved against the petitioner as perverse; (D) Pending admission and final hearing of the present petition, Your Lordships be pleased to stay the operation and implementation of the impugned judgment and order dated 3.12.2010 passed by the Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.314/2006 and the penalty order dated 24.7.2006 passed by the Commissioner of Fisheries (Disciplinary Authority), respondent No.1 directing recovery of 15,000/- from the petitioner; and (E) Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of justice." 2. The facts giving rise to present petition are that the petitioner was serving as Fieldsman in the office of the Assistant Director of Fisheries, Surat since last 30 years. During the period from 12.4.1990 to 4.9.1997 the petitioner was working at Ukai Fisheries Farm in Surat. On 30.6.1997 on a visit paid by the Deputy Commissioner of Fisheries (Vadodara) loss of 8035 Kgs. of brooders was reported. The petitioner and several others employees were held responsible for the said loss and the chargesheet came to be issued against the petitioner. In the departmental inquiry, the charges against the petitioner were held proved and the authority passed a penalty order on 17.6.2002 withholding one increment of the petitioner and directed recovery of Rs.28,712/- from him. The petitioner and several others employees were held responsible for the said loss and the chargesheet came to be issued against the petitioner. In the departmental inquiry, the charges against the petitioner were held proved and the authority passed a penalty order on 17.6.2002 withholding one increment of the petitioner and directed recovery of Rs.28,712/- from him. Against that Appeal was preferred by the petitioner being Appeal No.261 of 2002 before the Gujarat Civil Services Tribunal, Gandhinagar and the said authority quashed and set aside the penalty order and remanded the matter for fresh departmental inquiry against the petitioner. 2.1 In a fresh inquiry, inquiry officer has submitted his report dated 21.12.2005 holding charge No.3 partly proved against the petitioner. Based on the said the Commissioner of Fisheries, passed a fresh order on 24.7.2006 directing recovery of Rs.15,000/- from the petitioner. 2.2 Again petitioner moved Gujarat Civil Services Tribunal, Gandhinagar by filing Appeal No.314 of 2006 which was rejected by the said authority on 3.12.2010 and against that order the petitioner has filed present petition. 3. I have heard Mr. Shalin Mehta, learned Senior Counsel assisted by Mr. Ninad P. Shah, learned Counsel for the petitioner and Ms.Dharitri Pancholi, learned Assistant Government Pleader for the respondents authorities. 4. Mr. Shalin Mehta, learned Senior Counsel for the petitioner has submitted that three persons came to be charged for the alleged charges leveled against them, however, so far as the quantum of punishment is concerned, the petitioner was imposed higher punishment in comparison of other two employees. Learned Senior Counsel for the petitioner has further submitted that in case of other two co-employees, though they are facing similar charges, they have imposed lesser penalty. 5. In support of his submissions, Mr. Shalin Mehta, learned Senior Counsel for the petitioner has referred to and relied upon the following decisions:- (1) In the decision in case of of Director General of Police vs. G. Dasayan reported in (1998) 2 SCC 407 , Hon'ble Apex Court has held as under:- "9. Mr. 5. In support of his submissions, Mr. Shalin Mehta, learned Senior Counsel for the petitioner has referred to and relied upon the following decisions:- (1) In the decision in case of of Director General of Police vs. G. Dasayan reported in (1998) 2 SCC 407 , Hon'ble Apex Court has held as under:- "9. Mr. Murlidhar, learned counsel appearing for the respondent, while agreeing with the contentions of the learned counsel for the appellants on the first two grounds, submitted that the order of dismissal at any rate cannot be sustained and if at all an order of compulsory retirement as was made in the case of the Head Constable, who was tried along with the respondent, has to be imposed. 10. We have perused the order of the Tribunal and the relevant documents. We find merit in the arguments of the learned counsel for the appellants. A t the same time, were are of the view that as pointed out by the learned counsel for the respondent that a punishment of compulsory retirement in the case of the respondent as well would meet the ends of justice on the facts and circumstances of this case." (2) In the decision in case of Rajendra Yadav vs. State of M.P. reported in (2013) 3 SCC 73 , Hon'ble Apex Court had held as under:- "9. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among codelinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of codelinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences. 10. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407 , wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. 10. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407 , wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. 11. In Shaileshkumar Harshadbhai Shah case (supra), the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit. 12. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re- instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs." (3) In the decision in case of Lucknow Kshetriya Gramin Bank vs. Rejendra Singh reported in (2013) 12 SCC 372 , Hon'ble Apex Court had held as under:- "16. Ordered accordingly. However, there will be no order as to costs." (3) In the decision in case of Lucknow Kshetriya Gramin Bank vs. Rejendra Singh reported in (2013) 12 SCC 372 , Hon'ble Apex Court had held as under:- "16. In the present case, however, we find that the High Court has, on the one hand directed the appellate authority to take a decision and in the same breath, snatched the discretion by directing the Appellate Authority to pass a particular order of punishment. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above. The peculiar feature, however, is that the High Court has done so proceeding on the presumption that these three respondents are equally and identical placed as the other three employees who had admitted the charges, though this parity is not spelled out in the impugned order. Whether this approach of the High Court is tenable, looking into the facts of this case, is the moot question. 17. If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one -case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav’s case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should consumerate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology. 18. This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases. 19. The principles discussed above can be summed up and summarized as follows: (a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. (e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. 20. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. 20. It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was co- delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries." (4) In the decision in case of LIC vs. Trivedi Sharan Mishra reported in (2014) 10 SCC 346 Hon'ble Apex Court had held as under:- "14. From the papers on record before us, it appears that for mentioning less qualification to secure the job, similarly situated another employee (one Daluram Patidar) was let off by the Life Insurance Corporation of India by awarding punishment of stoppage of increments for two years with cumulative effect. We are of the opinion that the High Court has rightly taken note of said fact while allowing the writ petition, and directing the employer to consider the imposition of similar penalty after reinstatement of the writ petitioner." (5) In the decision in case of Pawan Kumar Agarwala vs. SBI reported in (2015) 15 SCC 184 Hon'ble Apex Court had held as under:- "17. The charge-sheet was issued on 28-10-2004 against the appellant making 6 allegations against him and it is undisputed fact that list of witnesses and the copies of documents were not furnished to the appellant. The charge-sheet was issued on 28-10-2004 against the appellant making 6 allegations against him and it is undisputed fact that list of witnesses and the copies of documents were not furnished to the appellant. Further, the disciplinary authority has reversed the findings on Charges 3 and 5 without giving an opportunity to the appellant to show cause in the matter and, thereafter, the order of removal was passed by the appointing authority on the advice of the CVO vide his opinion dated 1-2-2006 and further it is brought on record that similarly placed person, namely, Mr Pradeep Kumar Das, the Manager of Hallydayganj Branch, who has loaned the loan to one Mir Tapan Kumar Sangma, in his case they have imposed lesser punishment of withholding one increment thereby making discrimination in differently treating the appellant herein, which is violation of Article 14 of the Constitution of India." (6) In the decision in case of State of Haryana vs. Ved Kaur reported in (2017) 6 SCC 796 Hon'ble Apex Court had held as under:- "5. The rejection of claim was challenged afresh by the respondent by filing CWP No.14998 of 2007 which was allowed by the Single Judge of the High Court, relying on the instructions dated 26.03.1975 issued by State of Haryana wherein offences involving “moral turpitude” stand enlisted. It was observed that the offence under Section 323 IPC did not fall under said category of offences. It was further observed that the role attributed to the deceased husband of the respondent was similar to that of his co- accused and that the appellate court had held that the death in the case was not because of the injuries attributed to the accused but it was because of renal failure. 11. In the present case by the time the benefit of acquittal of the co-accused was pressed in service and claim was raised by the respondent, Dharam Singh had already expired. In the circumstances, we direct that the respondent shall be entitled to all the benefits in terms of the judgment under appeal except the payment of back wages. All the other consequential benefits be computed and released to the respondent within two months from the date of this Judgment. In the circumstances, we direct that the respondent shall be entitled to all the benefits in terms of the judgment under appeal except the payment of back wages. All the other consequential benefits be computed and released to the respondent within two months from the date of this Judgment. With the aforesaid modification, the appeal stands disposed of." (7) In the decision in case of Naresh Chandra Bhardwaj vs. Bank of India reported in (2019) 15 SCC 786 Hon'ble Apex Court had held as under:- "6. There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which read as under: “19. The principles discussed above can be summed up and summarized as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Doctrine of Equility when it is found that the concerned employee and the codelinquent are equally placed. This would be on the Doctrine of Doctrine of Equility when it is found that the concerned employee and the codelinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.” (emphasis supplied) 7. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, i.e., where a codelinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity. 14. We fail to appreciate that once there is no financial difference and the role is practically identical, why the respondents hesitated themselves to convert the punishment inflicted on the appellant from one of “removal from service which shall not be disqualification for future employment” to “compulsory retirement.” The only aspect is the nature of punishment which appears to tar the appellant more than the other two officers without any financial implication for the respondent- Bank. 16. The appeal is accordingly allowed leaving the parties to bear their own costs." 6. In view of the observations made by the Hon'ble Apex Court in above referred decisions, Mr. Shalin Mehta, learned Senior Counsel for the petitioner urges before the Court that present petition may be allowed and the impugned orders passed by the respondent authorities may be quashed and set aside. 7. As against that Ms. Dharitri Pancholi, learned Assistant Government Pleader for the respondents has objected present petition. She has relied upon the affidavit-in-reply filed on behalf of the respondent. She has emphasized on paragraph Nos. 7 and 8 which reads as under:- "7. I say that thereafter, punishment order was imposed for stoppage of one increment with future effect for two years and further directed to recover Rs. 25,712/-. She has relied upon the affidavit-in-reply filed on behalf of the respondent. She has emphasized on paragraph Nos. 7 and 8 which reads as under:- "7. I say that thereafter, punishment order was imposed for stoppage of one increment with future effect for two years and further directed to recover Rs. 25,712/-. Against which an Appeal was preferred before the Gujarat Civil Service Tribunal being Appeal No. 261 of 2002, which was partly allowed and the impugned order was quashed and set aside and the case was remanded for fresh consideration and further directed the respondents to not to recover the amount as mentioned in the order and if any amount is deducted, it shall be readjusted. 8. I say that, thereafter again, the Inquiry Officer had submitted the report dated 03.01.2006 wherein, the allegations were partly proved. Thereafter, the punishment order was imposed on the petitioner for negligence and recovery of Rs. 15,000/- for his lapses in duty against which, the petitioner preferred an Appeal No. 314 of 2006 before the Gujarat Civil Services tribunal, Gandhinagar whereby the Appeal was dismissed on 3.12.2010" 8. Ms. Pancholi, learned Assistant Government Pleader for the respondents authorities has submitted that in light of the observations made by the disciplinary authority relying upon the report of the inquiry officer and affirmed by the appellate authority, this Court, while exercising the jurisdiction under Article 227 of the Constitution of India may not interfere in the findings recorded by the authority which were made after going through the records and after examining relevant documents produced at the time of the inquiry. 8.1 In view of the above facts, Ms. Pancholi, learned Assistant Government Pleader for the respondents authorities has submitted that present petition may not be entertained and the same may be dismissed. 8.2 With a view to enable Ms. Dharitri Pancholi, learned Assistant Government Pleader to compare the charges that both the delinquents are not facing similar charges as claimed by the present petitioner, Ms. Dharitri Pancholi, learned Assistant Government Pleader has produced on record the comparison chart with relevant documents by way of compilation, which is taken on record. 9. I have perused the relevant material produced on record and the documents. I have also gone through the impugned orders passed by the authorities below. 10. Dharitri Pancholi, learned Assistant Government Pleader has produced on record the comparison chart with relevant documents by way of compilation, which is taken on record. 9. I have perused the relevant material produced on record and the documents. I have also gone through the impugned orders passed by the authorities below. 10. It appears that the petitioner was working as Field Man in the Fisheries Department and his duty is to look after the fish ponds of the department and to do netting in the ponds. The petitioner was served with the chargesheet for negligence of performance on duty and the charges against the petitioner was that though he had knowledge of commission of theft in the first ponds at Ukai Fish Farm, he did not intimate the incident to the higher officials and theft was done in connivance with the petitioner. Hence, I am of the opinion that the authorities have not committed any error in passing the impugned orders against the petitioner. The orders passed by the authorities are in consonance with the settled legal principle and no interference is required to be called for in the said orders. 11. Now, so far as the issue of parity is concerned, Ms. Pancholi, learned Assistant Government Pleader has categorically differentiated the said issue of parity by producing on record the comparison chart. 12. It appears from the said chart that so far as the charge levelled against the petitioner is concerned, the charge No.3 is partly proved against the petitioner and therefore, the punishment imposed by the disciplinary authority is in consonance with the said charge. Further, in the case of other delinquent Mr. R.D Patel, the charge No.2 was partly proved. Both the employees were working in the department as Field Man and their duty were also similar however, so far as the charges which were levelled against the petitioner and other coemployee Mr. R.D. Patel is concerned, the said charges are quite different. 13. The co-employee Mr.R.D. Patel was retired from the service on 31.3.2001. Both the employees were working in the department as Field Man and their duty were also similar however, so far as the charges which were levelled against the petitioner and other coemployee Mr. R.D. Patel is concerned, the said charges are quite different. 13. The co-employee Mr.R.D. Patel was retired from the service on 31.3.2001. Thereafter, he has approached the appellate authority and against the order of the appellate authority he has preferred petition before this Court and this Court while considering said petition passed the order for rehearing and re-inquiring into the matter and even after re-inquiring into the matter, charge No.2 was partly believed by the inquiry officer and proved against co-delinquent and therefore, the parity which is claimed by Mr. Shalin Mehta, learned Senior Counsel for the petitioner does not come in rescue in the case of present petitioner. 14. In view of the above and considering the fact that while exercising the jurisdiction under Article 226 of the Constitution of India, this Court has very limited jurisdiction to interfere in the matter of quantum of punishment and therefore, this Court is of the opinion that present petition is devoid of any merits and the same does not deserve to be entertained. The orders passed by both the authorities are in consonance with the settled legal principle. The authorities have not committed any error in passing the impugned orders. 15. Accordingly present petition is hereby dismissed. Rule is discharged. No order as to costs. Interim relief, if any stands vacated forthwith.