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2024 DIGILAW 1946 (GUJ)

PRAVINSINH CHHITABAVA JADAV v. STATE OF GUJARAT

2024-10-18

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : (VAIBHAVI D. NANAVATI, J.) 1. Heard Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate appearing for the petitioner and Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent – State. 2. By way of the present petition, petitioner herein has prayed for the following reliefs: “(a) Quashing and setting aside letters dated 07.8.2014, 15.07.2015, and further directing the respondent to grant the second higher pay scale to the petitioner w.e.f. 1.10.2005 with consequential benefits and revise his retirement benefits. (AA) Quashing and setting aside the punishment order dated 15.05.2013 attached at Annexure-K to this petition declaring it to be arbitrary, unjust and illegal. (b) During the pendency and final disposal of the petition, the respondent may be directed to sanction second higher pay scale to the petitioner w.e.f. 1.10.2005. (c) Grant such other and further relief/s as may be deemed and proper in the interest of justice.” 3.1. Briefly stated that, the petitioner was serving as Additional Assistant Engineer with the respondent and superannuated on 29.02.2012. The petitioner was granted first higher pay scale from 01.10.1990, vide order dated 16.10.1993. The petitioner became eligible for second higher pay scale from 01.10.2005. On 30.05.2014, the Superintending Engineer, recommended the case of the petitioner for second higher pay scale, w.e.f. 01.10.2005. 3.2. On 07.08.2014, the respondent informed the Superintending Engineer, Surat that the petitioner is not entitled to second higher pay scale, in view of the resolution dated 31.03.2005 issued by the Finance Department, wherein, it is stated that if an employee is imposed with a major penalty, in that case, no higher pay scale is to be granted. The petitioner by letter dated 25.02.2015, requested the respondent to re-consider his penalty and grant him second higher pay scale, which came to be rejected by letter dated 15.07.2015. 3.3. In view of the aforesaid facts, petitioner herein has challenged the impugned orders dated 07.08.2014, 15.07.2015, and punishment order dated 15.05.2013 (which is duly produced at Annexure-K) and further prayed for directing the respondent to grant the second higher pay scale to the petitioner, w.e.f. 01.10.2005 with consequential benefits and revise his retirement benefits. 4.1. Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate appearing for the petitioner submitted that, for the alleged misconduct of the year 1991, an inquiry came to be initiated in the year 2001. 4.1. Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate appearing for the petitioner submitted that, for the alleged misconduct of the year 1991, an inquiry came to be initiated in the year 2001. The inquiry report came to be submitted by the inquiry officer, exonerating the petitioner herein from all the charges, in the year 2003. The said inquiry report was never supplied to the petitioner herein and the show cause notice was issued to the petitioner by the respondent – State, disagreeing with the findings of the inquiry officer and straightaway, recording the guilt, as such reproducing the charges, the same being violative of the principles of law laid down by the Hon’ble Apex Court in the case of Yoginath Bagade reported in (1999) 7 SCC 739 . The show cause notice issued on 16.01.2010, is duly produced at Annexure-D/1. 4.2. Mr. Joshi, learned senior counsel further submitted that it is the case of the petitioner that Gujarat Public Service Commission was also consulted before passing an order of punishment, in view of the fact that, it was a common inquiry, under Rule-13 of the Gujarat Civil Services Discipline and Appeal Rules, 1971. However, the opinion was never supplied to the petitioner, which is also in violation of the ratio laid down by the Hon’ble Apex Court in the case of Union of India v/s. S.K. Kapoor reported in (2011) 4 SCC 589 and S.N. Narula v/s. Union of India reported in (2011) 4 SCC 591 . 5. Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent – State relied upon the affidavit-in-reply filed by the respondent – State and submitted that, once the petitioner herein is imposed the major penalty under Rule – 23 and 24 of the Gujarat Civil Services (Pension) Rules, 2002, the government resolution dated 31.03.2005 comes into play, wherein, it is stated that, upon imposition of major penalty, no higher pay scale can be granted and placing reliance on the aforesaid, it is submitted that, the order passed by the respondent authority, declining to grant the second higher pay scale is just and proper and no interference is called. 6. Mr. 6. Mr. Joshi, learned senior counsel, reiterated the facts as referred above and placed reliance on the CAV judgment dated 27.12.2018 passed by the Hon’ble High Court in Special Civil Application No. 19819 of 2015 and submitted that the facts in the present petition are identical in nature as that of the aforesaid decision and the order imposing the punishment of even date. 7. Having heard the learned advocates appearing for the respective parties, it emerges that, the charges came to be levelled against the petitioner for misconduct, in the year 1991, for which inquiry came to be initiated in the year 2001, i.e. after a delay of 10 years. By the inquiry report of the year 2003, the inquiry officer exonerated the petitioner from the charges levelled against him. 8. Further, the inquiry was initiated in the year 2010, after a period of almost 7 years, i.e. it took 7 years, between the inquiry report and 2nd show cause notice, asking the petitioner about the show cause of the penalty. Finally the penalty came to be imposed, wherein, cut in pension of Rs.300/- per month, for a period of six months was passed on 15.05.2013. In view thereof, there was a delay of three years, while passing the impugned order also. The petitioner by the said time, reached the age of superannuation, wherein, the petitioner retired on 29.02.2012. 9. The contention raised by the petitioner that the show cause notice dated 16.10.2010, which is duly produced at Annexure-D/1 is not a tentative opinion, but the same is in the form of an order. In view thereof, the same would fall within the ratio laid down in Yoginath Bagade reported in (1999) 7 SCC 739 . 10. The facts of the present case are identical to the facts of Special Civil Application No. 19819 of 2015, order dated 27.12.2018. It is apposite to refer to para-5 to 7, which read thus: “5. Noticing the details of the departmental inquiry proceedings against the petitioner so as to appreciate the sole ground of delay raised by the petitioner to assail the inquiry and the punishment order, which are undisputed facts, charges were levelled against the petitioner in respect of alleged misconduct said to have occurred in year 1989-90. Inquiry was initiated in the year 2001 after a yawning gap of 10 years. Inquiry was initiated in the year 2001 after a yawning gap of 10 years. The inquiry report came to be submitted by the inquiry officer in the year 2003, whereunder, as noted above, the petitioner came to be exonerated. The second show-cause notice regarding penalty was issued in the year 2010, since the disciplinary authority disagreed with the findings of the inquiry officer. In other words, it took 07 years between the inquiry report and the second show-cause notice asking the petitioner to show cause about the penalty. Finally, the order of penalty was passed imposing the cut in pension of Rs.300/- per month for six month was passed on 15th May, 2013. Therefore, three years delay occurred at this juncture also. The petitioner by the time had reached the age of superannuation to retire with effect from 31st May, 2013. 5.1 In Anant R. Kulkarni v. Y.P. Education Society [ (2013) 6 SCC 515 ] the Supreme Court observed in paragraph 14 with regard to belated conduct of inquiry that whether the court would be inclined to quash the departmental proceedings on the ground of delay would depend upon the facts and circumstances of the case. It was observed that though ordinarily the court should not set aside the departmental inquiry or quashed the charges on the ground of delay in initiation in the proceedings, the test of prejudice caused by delay may be a overriding consideration. The court must weigh all the facts to finally make up its mind. 5.2 In M.V. Bijlani v. Union of India [ (2006) 5 SCC 88 ] the issue of belated commencement of departmental inquiry was dealt with by the Apex Court. It was observed in the facts of the case that the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years. It was stated that thus initiation of the disciplinary proceedings as also continuation thereof after such a long time evidently prejudiced the delinquent officer. 5.3 The Supreme Court in State of M.P. v. Bani Singh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, “The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. 5.3 The Supreme Court in State of M.P. v. Bani Singh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, “The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to thing that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.” (Para 4) 5.4 In P.V. Mahadevan v. MD, T.N. Housing Board [ (2005) 6 SCC 636 ] the Supreme Court considered the aspect of delay of 10 years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the departmental proceedings on such distance of time would be very prejudicial to the appellant. It was observed that the appellant already suffered enough on account of inordinate delay. 5.5 Quashing the charge memo issued against the appellant and putting the departmental inquiry to an end, the Supreme Court observed thus, “The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95. But, Section 118of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 of the said Act relates to annual audit of account. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.” (Paras 8 to 10) 5.5.1 It was held that protracted action against government employee would operate prejudicial to him and has to be avoided, “Under the circumstances, allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” (Para 12) 6. In the case of the petitioner, delay in the inquiry proceedings is manifest at every material stage. The allegations pertain to the year 1989-90 while the inquiry was initiated after delay of a decade. It took three years in completion of inquiry in which the petitioner was found not guilty in respect of charges levelled against him. The disciplinary authority took seven years in expressing disagreement with the findings of the inquiry officer. Travelled further were three years before final order of penalty was passed. Counting the total period of delay at each stage, it was after 20 long years that the petitioner was subjected with penalty in cut in the pension for Rs.300/-. By virtue of the factor of delay itself, the petitioner was prejudiced. Travelled further were three years before final order of penalty was passed. Counting the total period of delay at each stage, it was after 20 long years that the petitioner was subjected with penalty in cut in the pension for Rs.300/-. By virtue of the factor of delay itself, the petitioner was prejudiced. 6.1 Therefore, the impugned order of penalty has to be set aside on the aforesaid ground of delay in the inquiry alone. Consequently, the petitioner would be entitled to the second higher pay-scale as the penalty could stand obliterated. 7. As a result of above discussion and reasons, the petition deserves to be allowed. The order dated 15th May, 2013 passed by the disciplinary authority and Deputy Secretary, Narmada Water Resource, Water Supply and Kalpsar Department imposing penalty on the petitioner of cut of Rs.300/- in pension for six months is hereby quashed. As a result of setting aside of the penalty as above, the petitioner would be necessarily entitled to the second higher payscale. Therefore, communications dated 16th July, 2014 and 15th July, 2015 reflecting the decision to deny the second higher pay-scale are set aside. The petitioner shall be extended the benefit of second higher pay-scale with effect from 09th March, 2002 and the arrears which may arise thereby shall be availed and paid to the petitioner within a period of eight weeks from the date of service of copy of this order on the respondents. Petition stands allowed accordingly. Direct service is permitted.” 11. Considering the aforesaid ratio, as referred above and in the facts of the present case, the disciplinary proceedings are delayed at every stage. The aforesaid has adversely affected the civil rights of the petitioner, whereby, the proceedings which were initiated in the year 1991, final order of penalty came to be passed, as back as in the year 2013, after the petitioner having superannuated, w.e.f. 29.02.2012. In view of the aforesaid, the impugned order of penalty / punishment dated 15.05.2013 is quashed and set aside, on the ground of delay in initiating the inquiry. In view of the aforesaid conclusion arrived at by this Court, the petitioner is entitled to the 2nd higher pay scale, and accordingly order of imposing penalty is quashed and set aside. The communications dated 07.08.2014 and 15.07.2015 denying the second higher pay scale are also quashed and set aside. In view of the aforesaid conclusion arrived at by this Court, the petitioner is entitled to the 2nd higher pay scale, and accordingly order of imposing penalty is quashed and set aside. The communications dated 07.08.2014 and 15.07.2015 denying the second higher pay scale are also quashed and set aside. Consequently, the petitioner would be entitled to the second higher pay scale. The petitioner shall be extended the benefit of the second higher pay scale w.e.f. 01.10.2005 and the arrears which may arise thereby, shall be availed and paid to the petitioner within a period of twelve weeks from the date of receipt of the copy of the order. 12. For the foregoing reasons, the Petition stands ALLOWED accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.