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2024 DIGILAW 451 (GUJ)

Mousamsingh Bhagwatsing Rao v. State Of Gujarat

2024-03-05

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present petition is filed by the petitioner under Article 226 of the Constitution of India for the following reliefs. “(A) Quash and set aside the impugned punishment order dated 31.7.2015, Annexure – A to this petition; (B) Quash and set aside the order dated 9.11.2015 passed by the respondent authority, Annexure – K to this petition; (C) Pending admission and final disposal of this petition, the Honourable Court may be pleased to stay the operation, implementation and execution of the impugned punishment order dated 31.7.2015 and (D) Award the cost of the present petition and (E) Grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.” 2. Facts of the present case, in nutshell, are that the petitioner joined the service of respondent – authority on 1.9.2005 on the post of Taluka Development Officer, Class – II, pursuant to the direct selection process initiated by the GPSC. The respondent issued charge-sheet to the petitioner for committing the misconduct while he was posted at Bhachau, District Kachchh – Bhuj from 01.10.2006 to 21.09.2007. The petitioner requested to provide copies of the relevant documents for the purpose of his defence and the respondent communicated to the petitioner vide letter dated 12.07.2012 informing him that cash book, cheque register, audit report etc were not available and therefore the same could not be provided to him and the petitioner was also informed to file his representation within a period of ten days. In response to such communication, the petitioner wrote a letter informing the authority that pursuant to the communication dated 12.07.2012, he had obtained the xerox copies of cheques from Gujarat Gramin Bank, Bhachau, whereby it is evident that he had not withdrawn any amount from the Bank, but the same came to be withdrawn by one Mr. J. N. Thakkar, who was working as the Deputy Accountant Cum Cashier and as a token of receipt, he had even signed on the back side of the cheque. The petitioner had also informed that the misappropriation has been committed by said Mr.Thakkar and even he had admitted the fact of misappropriation and deposited the entire amount. J. N. Thakkar, who was working as the Deputy Accountant Cum Cashier and as a token of receipt, he had even signed on the back side of the cheque. The petitioner had also informed that the misappropriation has been committed by said Mr.Thakkar and even he had admitted the fact of misappropriation and deposited the entire amount. The Inquiry Officer came to be appointed to inquire into the charges leveled against the petitioner and the petitioner has filed representation to the Inquiry Officer and Inquiry Officer submitted his report holding that the charges leveled against the petitioner are proved and thereafter, a show-cause notice came to be issued to the petitioner and he submitted a detailed representation. That after completion of such procedure, a punishment order of stoppage of five increments with future effect came to be passed and, therefore, the petitioner preferred a review application, however, the same was rejected and hence, the present orders are under challenge in this petition. 3. Heard Mr.Vaibhav Vyas, learned counsel appearing for the petitioner and Ms.Nirali Sarda, learned Assistant Government Pleader appearing for the respondent – State of Gujarat. 4. Mr.Vaibhav Vyas, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition and has submitted that there is a gross violation of principles of natural justice and the relevant documents, which were necessary for the purpose of defence were not supplied to the petitioner which resulted into serious prejudice to the petitioner. He has submitted that no case worth the name is made out by the respondent against the petitioner and therefore, the charge sheet ought not to have been issued to the petitioner. He has submitted that the respondent has completely lost sight of the fact that Shri Thakkar has not only admitted the misconduct of misappropriation of the amount but also he has deposited substantiate amount along with the interest. He has submitted that there is a gross violation of Rule 9(17) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971 and even the respondent authority has not provided any opportunity to explain such circumstances and, therefore, the inquiry is vitiated on account of non-compliance with the mandatory provisions contained in the Rules. He has submitted that there is a gross violation of Rule 9(17) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971 and even the respondent authority has not provided any opportunity to explain such circumstances and, therefore, the inquiry is vitiated on account of non-compliance with the mandatory provisions contained in the Rules. He has submitted that during the course of the departmental inquiry, no witnesses have been examined by the Inquiry Officer and hence, in absence of the witnesses, the charge leveled against the petitioner cannot be said to be proved. He has submitted that no case worth the name is made out by the authority against the petitioner and even the charge sheet ought not to have been issued to him. According to Mr.Vyas, learned counsel, Mr.Thakkar has misappropriated the amount during the tenure of the petitioner and the same was not refunded and, therefore, the same cannot be a ground to punish the petitioner for the alleged misconduct. He has submitted that the findings recorded by the disciplinary authority while imposing the punishment upon the petitioner is absolutely illegal and perverse and the disciplinary authority has recorded that the cheques which were issued by the petitioner came to be drawn by Mr.Thakkar, Deputy Accountant and after withdrawing such amount, he had not make any entry in the record. He has submitted that though the amount was withdrawn by Mr.Thakkar and was not reflected by him in the cash book, it cannot be said that the petitioner has committed the alleged misconduct and even during the course of departmental inquiry, the cash book was not brought on record and the same was not supplied to the petitioner. He has submitted that the respondent has failed to take into consideration the criminal antecedent of Mr.Thakkar, who was involved in such misconduct. He has submitted that the petitioner has neither committed any misconduct nor any procedural irregularity has committed by him, which would warrant imposition of any punishment much less any major punishment. He has submitted that there is inordinate and unexplained delay in initiating, conducting and concluding the departmental inquiry which has prejudiced the defence of the petitioner and the said delay is against the policy of the government regarding the time frame of conducting the departmental inquiry. He has submitted that there is inordinate and unexplained delay in initiating, conducting and concluding the departmental inquiry which has prejudiced the defence of the petitioner and the said delay is against the policy of the government regarding the time frame of conducting the departmental inquiry. It is submitted by Mr.Vyas, learned counsel that though the petitioner had made representation pursuant to the report of the Inquiry Officer, the respondent – authority, while passing the impugned punishment order, has not considered the same in its proper perspective and not dealt with the contentions raised by the petitioner. He has submitted that the inquiry officer and the disciplinary authority has prejudged the issue against the petitioner and the punishment imposed upon the petitioner is absolutely disproportionate, illegal, unjust and arbitrary and the same deserves to be quashed and set aside. 4.1 Mr.Vaibhav Vyas, learned counsel appearing for the petitioner has relied upon the following decisions and has submitted that the present petition be allowed. (1) State of U.P Vs. Shatrughan Lal and another, (1998) 6 SCC 651 ; (2) Moni Shankar Vs. Union of India and another, (2008) 3 SCC 484 ; (3) Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570 ; (4) Union of India and others Vs. P. Gunasekaran, (2015) 2 SCC 610 ; (5) Faridaben Ahmedhusen Qureshi Wd/o. Ahmedhusen L. Qureshi Vs. State of Gujarat in Special Civil Application No.7317 of 2004 dated 01.07.2010; 4.2 Over-and-above, the said oral submissions, Mr.Vaibhav Vyas, learned counsel appearing for the petitioner has submitted the following written submissions: “1) It is a case of no evidence against the petitioner and the findings recorded by the Inquiry Officer and the disciplinary authority are perverse. There is no material whatsoever with the papers of the departmental charge sheet, which would demonstrate that the petitioner has committed misappropriation of funds. In fact, before issuance of charge-sheet there was a detailed complaint dated 11.8.2010 addressed to the Police by the office of Taulka Development Officer (TDO), wherein it was specifically alleged that misappropriation of funds of Rs. 6,09,323/- is committed by J.N. Thakkar, Deputy Accountant. The said misappropriation was to the tune of Rs. 93,036/- during the tenure of the petitioner, who was working as Taluka Development Officer (TDO), Class-II and Rs. 5,16,487/- during the tenure of Mr. K.G.Parmar, TDO. 6,09,323/- is committed by J.N. Thakkar, Deputy Accountant. The said misappropriation was to the tune of Rs. 93,036/- during the tenure of the petitioner, who was working as Taluka Development Officer (TDO), Class-II and Rs. 5,16,487/- during the tenure of Mr. K.G.Parmar, TDO. In the said complaint, no role whatsoever is attributed to the present petitioner or Mr. K.G.Parmar. (Pg No. 42 to 43) From the said report it is also evident that Mr. Thakkar was having criminal antecedent, wherein offence was registered against him at Bhachau Police Station and he had deposited Rs. 30,00,000/-. In view of the said complaint, the charge of misappropriation could not have been levelled against petitioner at all. Mr. Thakkar has admitted his guilt in writing and has deposited the amount which was misappropriated during the tenure of K.G.Parmar (Pg No. 122 and 123). As the charge of misappropriation was leveled against the petitioner by alleging that the petitioner had withdrawn the amount (Pg. 24 and 25), the petitioner had requested for supply of necessary documents, which was denied to the petitioner. Therefore the petitioner had obtained necessary information from the bank and had submitted the copies of cheques along with his reply to charge sheet to demonstrate that the amount was in fact withdrawn by J.N.Thakkar and not by the petitioner (Pg. No. 31/B second para). It was also pointed out that the amount of last 3 cheques were withdrawn on 22.9.2007 after the petitioner had left charge on 21.9.2007. Under these circumstances, no departmental inquiry for misappropriation of funds ought to have been conducted against the petitioner. However, it appears that without application of mind, inquiry officer came to be appointed to conduct inquiry against the petitioner. Before the inquiry officer, department has not lead any evidence by examining any witness. (Pg. No. 48) In any case, there is no other legally admissible evidence in support of the charge of misappropriation. Mere production of document is not a proof of its admissibility. Therefore, the inference drawn by the inquiry officer and disciplinary authority is not supported by any evidence and on the basis therefore no punishment can be imposed upon the petitioner. (Roop Singh Negi Vs. Punjab National Bank and another reported in 2009 (2) SCC 570 -Para-23). Mere production of document is not a proof of its admissibility. Therefore, the inference drawn by the inquiry officer and disciplinary authority is not supported by any evidence and on the basis therefore no punishment can be imposed upon the petitioner. (Roop Singh Negi Vs. Punjab National Bank and another reported in 2009 (2) SCC 570 -Para-23). The inquiry officer after appreciation of evidence has gone to the extent of observing that before levelling charge, no inquiry is made as regards who had withdrawn the amount and that even statement of no other concerned staff of the accounts department is recorded. (Pg No. 55-second para). After so observing, a specific finding is recorded by the inquiry officer that benefit of doubt is required to be extended to the petitioner (Pg. No.55 second para last 2 lines). However, after so recording, he mechanically records that the charge against the petitioner is proved. This finding is not supported by any evidence whatsoever. On the contrary the said finding is contrary to the material on record, wherefrom it clearly transpires that the amount is misappropriated by Mr. J.N.Thakkar. Thus, the finding recorded by the inquiry officers in not only without application of mind but the said finding is also perverse. Even in the punishment order, considering the defense of the petitioner, the disciplinary authority has specifically recorded that the amount is misappropriated by Jayantibhai Thakkar, retired Deputy Accountant by withdrawing the amount and not making any entry of the amount so withdrawn (Pg No. 21). After recording such positive findings, the punishment is imposed merely because inquiry officer has held the charges as proved. Such a mechanical approach on the part of the disciplinary authority cannot be allowed to stand in the eyes of law. In support of this reliance is placed on the judgment of the Honourable Supreme Court in the case of Union of India & Others versus P. Gunasekaran reported in 2015 (2) SCC 610 - Para-12. (2) Two similarly situated officers (TDO) are meted out with altogether different yardstick. It is pertinent to note that, the petitioner was discharging his duties as Taluka Development Officer (TDO) Bhachau from 1.10.2006 to 21.9.2007. After the transfer of the petitioners Shri K.G.Parmar had taken over the charge as TDO from 21.9.2007 to 10.2.2009. So far as misappropriation is concerned, as stated hereinabove, in all an amount of Rs. It is pertinent to note that, the petitioner was discharging his duties as Taluka Development Officer (TDO) Bhachau from 1.10.2006 to 21.9.2007. After the transfer of the petitioners Shri K.G.Parmar had taken over the charge as TDO from 21.9.2007 to 10.2.2009. So far as misappropriation is concerned, as stated hereinabove, in all an amount of Rs. 6,09,523/- came to be misappropriated out of which an amount of Rs. 93,036/- was pertaining to the period of the petitioner and amount of Rs. 5,16,487/- was pertaining to Shri K.G.Parmar. So far as Shri K.G.Parmar is concerned, in his case charge of deliberation of duty and negligence came to be levelled for not following the prescribed procedure in carrying out financial transaction, whereas so far as the petitioner is concerned, serious charge of misappropriation came to be levelled. It is pertinent to note that before levelling charge of misappropriation against the petitioner, there was a detailed police complaint dated 11.8.2010, wherein specific allegation of misappropriation came to be levelled against Mr. J. M. Thakkar. Thus in connection with misappropriation committed by the Deputy Accountant, the concerned TDO the then are meted out with absolutely differential treatment. This approach clearly shows bias against the petitioner, for the reasons best known. It is also pertinent to note that, so far as Shri K.G.Parmar is concerned, during whose tenure, misappropriation was to the tune of Rs. 5,16,487/- in his case punishment of reduction of pension by Rs. 250 per month for a period of one year (in all Rs. 3000/-) came to be imposed (Page No. 140 to 141). Whereas in case of the petitioner, tough the charge of misappropriation has not been established and when there was no charge of the dereliction of duty or negligence, punishment of stoppage of five (5) increments with future effect came to be imposed. Thus the petitioner is meted out with absolutely discriminatory treatment. (3) Necessary and relevant documents not provided to the petitioner In the charge sheet issued to the petitioner, the respondent authority has referred to vouchers, cheque register, cash book, etc. Therefore, the petitioner had requested for providing the copies of the said documents which were referred to in the charge sheet, so that the petitioner can submit his defense to the charge leveled against him. (Page No. 28 (d) last para). Therefore, the petitioner had requested for providing the copies of the said documents which were referred to in the charge sheet, so that the petitioner can submit his defense to the charge leveled against him. (Page No. 28 (d) last para). In response thereto the petitioner was informed that the cash book, cheque register of the said period were not maintained by the concerned employee and therefore there is no question of providing the same (Page No. 29). As against this, it is pertaining to note that cash book is a listed document with the charge-sheet (Page No. 26) which is also not provided to the petitioner. Even in the brief of the Presenting Officer, he has specifically stated that the entries of the cheques in question could not be seen in the cheque register (Pg No. 50-last 2 lines). Thus, it is a matter of record that cheque register and cash book were available with the authorities, however in-spite of that deliberately the same is not provided to the petitioner. In fact the said documents were required to be placed on record by the respondent authority itself in order to demonstrate that the amount is not reflected in the cash book or cheque register. Having failed to do so, when the petitioner requested for the copies of the said documents, even the petitioner is denied the copies thereof. This has resulted into serous prejudice to the defense of the petitioner and hence the punishment order is vitiated. In support of this reliance is placed on the judgment of the Honourable Supreme Court in the case of State of U.P. Vs. Shatrughan Lal and another reported in 1998 (6) SCC 651 - Head Note-A Para-4, 5, 9 and 10) (4) There has been breach of Rule 9(17) of the Gujarat Civil Service (Discipline and Appeal) Rules, 2002. Specific grievance in this regard was raised by the petitioner in his reply to the final show cause notice (Pg No. 62 para - 9) along with judgment in support thereof. This is also taken note of in the impugned punishment order at (Pg. No. 20- last line). However, the said contention is completely ignored by the disciplinary authority. Therefore on account of violation of provision contained in Statutory Rule, the punishment order is vitiated. In support of this reliance is placed on the following judgments: (i) Moni Shanker Vs. This is also taken note of in the impugned punishment order at (Pg. No. 20- last line). However, the said contention is completely ignored by the disciplinary authority. Therefore on account of violation of provision contained in Statutory Rule, the punishment order is vitiated. In support of this reliance is placed on the following judgments: (i) Moni Shanker Vs. Union of India reported in 2008 (3) SCC 484 - Head Note-D Para-28. (ii) Judgment of this Honourable Court dated 1.7.2010 passed in SCA 7317 of 2004 (5) Non-consultation with Gujarat Public Service Commission. Rule 10(3) of Gujarat Civil Service (Discipline and Appeal) Rules, 2002 reads as under: "Action on the Inquiry Report: - (3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in items[(1)] (2) to (3) of rule 6 should be imposed on the Government servant, it shall not withstanding anything contained in rule II make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant. Proviso to the said Rule provides for consultation with the GPSC for its advice, which is required to be taken into consideration before imposing any penalty on a Government Servant. However, in the present case, it is an undisputed position that no such consultation is made with the GPSC. Thus there is clear breach of proviso to the Rule 10(3) of the above Rules. In response to the said contention of the petitioner, it is the case of the Government that as per the provisions contained in the Gujarat Public Service Commission (Exemption from Consultation) Regulations, 1960, as per Regulation 12, it is not necessary for the Commission to be consulted before passing an order of withholding an increment or promotion. In response to the said contention of the petitioner, it is the case of the Government that as per the provisions contained in the Gujarat Public Service Commission (Exemption from Consultation) Regulations, 1960, as per Regulation 12, it is not necessary for the Commission to be consulted before passing an order of withholding an increment or promotion. (Pg No. 118 and relevant 113) However, the said exemption is provided in case of the punishment of the withholding 'an increment' meaning thereby one increment, which would be a case of minor penalty, whereas in the case of the petitioner, five (5) increments are withheld that too with future effect, which is undisputedly a major punishment as per the law let down by the Honourable Supreme Court in the case of Kulvnat Singh Vs State of Punjab reported in 1991 Suppl (1) SCC 504 (Pg No.142 to 147 Relevant para-4- Pg No. 145) which provides that in such case penalty cannot be imposed without conducting regular inquiry as enjoined by Rules 8 and 9 of the Punjab Civil Service (Punishment and Appeal Rules) 1970. In the present case, it would be Rule 9 and 10 of the above Gujarat Civil Services (Discipline and Appeal) Rules, 2002 which is pari materia Rules 8 and 9 of the Punjab Civil Service (Punishment and Appeal) Rules. It is pertaining to note that, in the case of Shri K.G.Parmar, the respondent authority has consulted GPSC, whereas in the case of the petitioner no such consultation is made.” 5. In the case of Shatrughan Lal and another (supra), the Hon’ble Supreme Court has held and observed in paras 4, 5, 9 and 10:- “4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge- sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. 5. In High Court of Punjab and Haryana Vs. 5. In High Court of Punjab and Haryana Vs. Amrik Singh, 1995 Supp1 SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated. 9. This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge-sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him. 10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge- sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself.” 5.1 In the case of Moni Shankar (supra), the Hon.ble Supreme Court has held and observed in para 28 as under:- “28. The High Court also committed a serious error in opining that sub-rule (21) of R. 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied from the said opportunity.” 5.2 In the case of Roop Singh Negi (supra), the Hon’ble Supreme Court has held and observed in para 23 as under:- “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 5.3 In the case of P. Gunasekaran (supra), the Hon’ble Supreme Court has held and observed in para 12 as under:- “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, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. 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 Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. 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 Article 226/227 of the Constitution of India, shall not venture into re- appreciation 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. 6. Ms.Nirali Sarda, learned Assistant Government Pleader appearing for the respondent – State of Gujarat has opposed the present petition. She has referred to and relied upon the affidavit-in-reply filed by one Balvantsinh Bhikhabhai Rathod, Under Secretary, Panchayat Rural Housing and Rural Development Department, Sachivalaya, Gandhinagar. She has submitted that the petitioner joined the service of respondent on 01.09.2005 on the post of Taluka Development Officer, Class – II as per the direct selection process and on account of misconduct committed by the petitioner, while he was posted at Bhachau, District Kachchh – Bhuj, the charge-sheet came to be issued to him on 23.12.2011 and the petitioner has filed his reply dated 03.04.2013 to the charge-sheet. She has submitted that the duties of the petitioner under the provisions of Section 137 of the Gujarat Panchayat Act as under:- “(h) draw and disburse money out of the fund: (i) exercise supervision and control over the acts of officer and servants holding office under the taluka panchayat in matters of executive administration and those relating to accounts and records of the taluka panchayat.” She has submitted that the aforesaid fact would assume significance in adjudication of present petition, as petitioner was found to have committed dereliction of said duties, pursuant to which impugned order has been passed. 6.1 Ms.Sarda, learned Assistant Government Pleader has submitted that such communication is of utmost relevance as documents were never maintained by Taluka Development Officer i.e. petitioner and thus, he has committed dereliction in his duties, based upon which the impugned order has been passed. She has submitted that the counterfoil or cheques were not produced by the petitioner in the inquiry proceedings and, thus, the inquiry officer found the petitioner guilty of the charges leveled against him. She has submitted that the second show- cause notice came to be issued to the petitioner whereby he was permitted to produce the relevant evidence. She has submitted that the petitioner filed review application which came to be dismissed, however, he had not challenged the order passed in review application and hence the same attained finality. She has submitted that the relevant documents were supplied to the petitioner as per the inquiry report and he was provided sufficient opportunities in the proceedings conducted as per the Gujarat Civil Services Rules and after providing opportunities, no witnesses has been adduced by the petitioner himself. She has submitted that according to the duties prescribed under the Act, the petitioner is required to follow the procedure regarding as to how funds were to be disbursed to the beneficiaries, however, he has not followed such procedure. So far as the issue raised by the petitioner with regard to the Gujarat Public Service Commission consultation is concerned, she has referred to and relied upon Rule 12(i)(b) of the Gujarat Public Service Commission Regulation, 1960, which reads thus:- “12. It shall not be necessary for the Commission to be consulted. So far as the issue raised by the petitioner with regard to the Gujarat Public Service Commission consultation is concerned, she has referred to and relied upon Rule 12(i)(b) of the Gujarat Public Service Commission Regulation, 1960, which reads thus:- “12. It shall not be necessary for the Commission to be consulted. (i) Before Government passes an original order - (a) Of censure, (b) Withholding an increment or promotion, including stoppage at an efficiency bar, or (c) Placing an officer under suspension 6.2 Ms.Sarda, learned Assistant Government Pleader has submitted that the respondent has conducted departmental inquiry in accordance with GCSR and petitioner has not made out a case to substantiate his allegation that impugned order is perverse, illegal or arbitrary, so as to enable the Court to exercise its judicial review to quash and set aside the impugned order. She has submitted that the present petition being meritless deserves to be dismissed. 6.3 Ms.Sarda, learned Assistant Government Pleader appearing for the respondent has relied upon the following decisions:- (1) State Bank of Hyderabad and another Vs. P. Kata Rao, (2008) 15 SCC 657 ; (2) Life Insurance Corporation of India and others Vs. S. Vasnthi, (2014) 9 SCC 315 ; (3) Union of India and others Vs. M. Duraisamy, (2022) 7 SCC 475 ; 6.4 Over-and-above the aforesaid oral submissions, Ms.Sarda, learned Assistant Government Pleader appearing for the respondent has submitted the following written submissions:- “The present Petitioner has preferred the captioned petition challenging the order dated 31.07.2015 (Pg. 18) passed by the Respondent authority imposing punishment of stoppage of five increments with future effect on the ground of the said order being illegal, arbitrary and perverse. Factual and Legal Submissions 1. Petitioner was appointed as Taluka Development Officer on 1.09.2005 by way of direct selection. 2. Between 1.10.2006 to 21.09.2007, the Petitioner was posted at Bachau, Kutch-bhuj and subsequently, in 2010- 11, some financial irregularities came to light and hence, on 23.12.2011 (Pg. 23), the Petitioner was served with a chargesheet. 3. Charges levelled against the Petitioner in the chargesheet are: a. Financial misappropriation, by way of issuing 6 Self bearer cheques, of Rs. 93,036/-; b. Absence of record and noting in the Voucher, Cheque register, etc., thereby, acted in breach of conduct rules, Rule 3. 4. Record and Findings of Inquiry officer in the Inquiry Report, at Pg. 3. Charges levelled against the Petitioner in the chargesheet are: a. Financial misappropriation, by way of issuing 6 Self bearer cheques, of Rs. 93,036/-; b. Absence of record and noting in the Voucher, Cheque register, etc., thereby, acted in breach of conduct rules, Rule 3. 4. Record and Findings of Inquiry officer in the Inquiry Report, at Pg. 47: Neither of the parties have adduced any evidence by way of examining witnesses. Pg. 53, the Petitioner has admitted to the fact that he had infact, signed on both sides of one of the cheques dated 17.09.2007, amounting to Rs.24,336/- and the same action being done by the Petitioner, has attributed on the insistence of the Dy. Accountant. Pg. 54, it is observed by the Inquiry Officer that no explanation is forthcoming from the Petitioner regarding the procedure followed by the Petitioner of issuing 'Self' cheques, without verifying any record or making inquiry while issuing such cheques. Therefore, Petitioner is found to have failed in his duties and responsibilities. Moreover the admission on the part of the Petitioner regarding signing on both sides of one of cheque is pertinent. Pg. 55, the Petitioner has stated in his defence statement that the cheque books and registers were maintained by the Dy. Accountant, however, the Petitioner has failed to substantiate the same by leading evidence by examining any of the office staff. 5. So far as the finding is concerned the Inquiry Officer has categorically opined that although certain questions that remain unanswered, however, the involvement of the Petitioner and lack of sincerity and honesty while undertaking his duties is made out and hence, is found to have acted in breach of Rule 3 of the Conduct Rules. With regard to the issue of financial misappropriation, due to lack of evidence, it could not be established whether the Petitioner alone or others alongwith the Petitioners were involved in such appropriation, therefore, as against this issue benefit of doubt is given to the Petitioner. 6. On 4.6.2014, the Petitioner was served with a copy of the Inquiry Report to enable the Petitioner to furnish his final statement of defence, which was received by the Disciplinary authority on 26.06.2014. The Disciplinary authority passed the order imposing penalty on 31.07.2015, impugned herein. 7. Case Comparison between the Petitioner and one Mr. 6. On 4.6.2014, the Petitioner was served with a copy of the Inquiry Report to enable the Petitioner to furnish his final statement of defence, which was received by the Disciplinary authority on 26.06.2014. The Disciplinary authority passed the order imposing penalty on 31.07.2015, impugned herein. 7. Case Comparison between the Petitioner and one Mr. K.G. Parmar - Points of Difference Petitioner K. G. Parmar Points of Difference Petitioner K. G. Parmar Factual Difference In the case of Petitioner, he has admitted to have signed on both the sides of one of the cheques, which was deposited during his tenure as TDO No such action by the said Delinquent. Special adminision of Guilt by Mr.Thakar Here the amount of Rs. 93,036/- was never admitted by the Dy. Accountant, to have been misappropriated. Even the Petitioner in his Final Statement (Pg 60) specifically states that the amount may have been part of the total misappropriation of Rs.30 Lacs done by the Dy Accountant There is a specific admission by the Dy. Accountant of misappropriation of Rs. 5,16,487/- plus interest has been deposited back. (Pg. 138) Findings of the Inquiry Officer Inquiry officer has found the Petitioner to have acted in negligent manner and acted with lack of sincerity and honesty. Inquiry officer has clearly found him not guilty of any misappropriation and hence has recorded that he has not acted with lack of sincerity or honesty but only negligent being in a supervisory position. The concerned delinquent has accepted the mistake on his part and therefore has shown sign of remorse. Hence, lesser punishment is justified. Response to the contentions raised by the Petitioner in the Written Submission: 1. The Petitioner has accepted to have received all the documents which the Inquiry Officer has relied upon, more particularly mentioned at Pg. 48 and same has not been controverted or denied by the Petitioner in his statement of Defence. Therefore, reliance placed on the judgment of State of U.P. Vs. Shatrughan Lal and another, would be of no avail as the same has no application in the present case. 2. Further, the Petitioner was given ample opportunity, as can be perused from Pg. 47, whereby, the IO had granted various opportunities to the Petitioner to examine any witness or provide any further documents and further statement. Shatrughan Lal and another, would be of no avail as the same has no application in the present case. 2. Further, the Petitioner was given ample opportunity, as can be perused from Pg. 47, whereby, the IO had granted various opportunities to the Petitioner to examine any witness or provide any further documents and further statement. After providing such opportunities, the IO gave his detailed finding and as during the course of inquiry, enough evidence was not found to prove financial misappropriation, the Petitioner's actions being in contrary to his duties and responsibilities and given the admission on the part of the Petitioner, he was found guilty under Rule 3 and found to have acted with lack of sincerity and honesty. Therefore, the mandate of Rule 9(17) are followed and there is no procedural lapse as contended. 3. It is not a case of no evidence but a case of lack of evidence, so far as the financial misappropriation is concerned, however, that would not absolve the Petitioner of his duties and responsibilities as well as the apparent misconduct admitted by him. Further, as contended, it is not the case that two separate/distinct yardsticks were used against the Petitioner and Mr. K.G. Parmar, same is substantiated in the above table. 4. The contention that due consultation with the GPSC was not undertaken by the authorities, is not truc, inasmuch as, the Respondent authorities have acted in consonance with the Clause 12 of the GPSC (Exemption from Consultation) Regulations, 1960 and various GR's issued by the General Administration Department.” 7. In the case of P. Kata Rao (supra), the Hon’ble Supreme Court has held and observed in para 30 and 31 as under:- “30. However, we may notice that this Court, in State Bank of India and Others Vs. T.J. Paul, 1999 4 SCC 759 , noticed : "7. The above orders were questioned in a writ petition. The learned Single Judge while allowing the writ petition held that the finding of the enquiry officer on Item 23 was that no financial loss was proved and if it was a case of not taking adequate "security" from the loaners and in not obtaining ratification as per Head Office instructions, these charges were not sufficient in view of Rules 22(vi)(c) and (d) read with sub-rule (vii) for imposing a penalty of dismissal or removal. Only a minor penalty could be imposed. Only a minor penalty could be imposed. As per the enquiry officer's report there was no actual loss caused by reason of any act of the employee wilfully done. There was no evidence of financial loss adduced before the enquiry officer. The finding that the respondent jeopardised the Bank's interest was based on no evidence. Penalty must have been only for minor misconduct. The SBI Rules were not applicable since the misconduct alleged related to the period of service in Bank of Cochin. The learned Judge observed that "punishment of removal" could not have been imposed as it was not one of the enumerated punishments under Bank of Cochin Rules. The writ petition was allowed, the impugned order was quashed. It was, however, observed that the Bank could impose punishment for minor misconduct as per rules of Bank of Cochin." 31. T.J. Paul (supra) was a case involving violation of the instructions of the Head Office as also gross negligence on the part of the delinquent officer. While holding that the same would constitute major misconduct referring to the case of Union of India Vs. G. Ganayutham, 1997 7 SCC 463 , it was opined : "19…..In our view, this decision is not applicable to the facts of the case. Here the Court is not interfering with the punishment awarded by the employer on the ground that in the opinion of the Court the punishment awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the punishments has been fixed by the rules themselves, namely, the rules of Bank of Cochin and the Court is merely insisting that the authority is confined to the limits of its discretion as restricted by the rules. Inasmuch as the rules of Bank of Cochin have enumerated and listed out the punishments for "major misconduct", we are of the view that the punishment of "removal" could not have been imposed by the appellate authority and all that was permissible for the Bank was to confine itself to one or the other punishment for major misconduct enumerated in para 22(v) of the rules, other than dismissal without notice. This conclusion of ours also requires the setting aside of the punishment of "removal" that was awarded by the appellate authority. This conclusion of ours also requires the setting aside of the punishment of "removal" that was awarded by the appellate authority. Now the other punishments enumerated under para 22(v) are "warning or censure or adverse remark being entered, or fine, or stoppage of increments/reduction of basic pay or to condone the misconduct and merely discharge from service". The setting aside of the removal by the High Court and the relief of consequential benefits is thus sustained. The matter has, therefore, to go back to the appellate authority for considering imposition of one or the other punishment in para 22(v) other than dismissal without notice." 7.1 In the case of S. Vasanthi (supra), the Hon’ble Supreme Court has held and observed in para – 10 and 11 as under:- “10. The scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority is now well settled. In the case of Kendriya Vidyalaya Sangthan vs. J. Hussain (2013) 10 SCC 106 , the law on this subject, is recapitulated in the following manner: (SCC pp. 110-12, paras 7-10) "7. When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. 8. The order of the Appellate Authority while having a re- look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad (2010) 5 SCC 775 ) In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. 9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions vs. Minister for Civil Service in the following words: (AC p. 410 D-E) "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds on which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality." 10. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality." 10. An imprimatur to the aforesaid principle was accorded by this Court as well, in Ranjit Thakur vs. Union of India (1987) 4 SCC 611 . Speaking for the Court, Justice Venkatachaliah (as he then was) emphasizing that "all powers have legal limits" invokes the aforesaid doctrine in the following words: (SCC p. 620, para 25) "25….The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review." 11. We are of the opinion that the High Court transgressed its limits of judicial review by itself assuming the role of sitting as departmental appellate authority, which is not permissible in law. The principles discussed above have been summed up and summarised as follows in the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) & Anr. v. Rajendra Singh, (2013) 12 SCC 372 .” 7.2 In the case of M. Duraisamy (supra), the Hon’ble Supreme Court has held and observed in para 12 to 17 as under:- “12. While answering the aforesaid question/issue, the decision of this Court in the case of Goparaju Sri Prabhakara Hari Babu (supra), on the judicial review and the limited jurisdiction of the High Court on the proportionality of the order of departmental authority is required to be referred to. While answering the aforesaid question/issue, the decision of this Court in the case of Goparaju Sri Prabhakara Hari Babu (supra), on the judicial review and the limited jurisdiction of the High Court on the proportionality of the order of departmental authority is required to be referred to. In the said decision, after referring to a catena of judgments of this Court, it is observed and held by this Court that the jurisdiction of the High Court on the proportionality of the order of departmental authority is limited. It is observed that it cannot set aside a well-reasoned order only on grounds of sympathy and sentiments. It is further observed and held that once it is found that all the procedural requirements had been complied with, courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. It is further observed that the superior courts, only in some cases may invoke the doctrine of proportionality, however if the decision of an employer is found to be within the legal parameters, the doctrine would ordinarily not be invoked when the misconduct stands proved. 13. In the case of B.C. Chaturvedi (supra), the High Court interfered with the order of punishment imposed by the Disciplinary Authority and substituted the punishment of dismissal from service to one of compulsory retirement on the reasoning that the employee had put in 30 years of service and that he had a brilliant academic record and that he had earned promotion after the disciplinary proceedings were initiated. Setting aside the judgment and order passed by the High Court, this Court observed that the reasoning is wholly unsupportable. Such reasons are not relevant or germane to modify the punishment. What is required to be considered is the gravity of the misconduct. In the said case, the employee was found to be in possession of assets disproportionate to the known sources of his income. Therefore, this Court observed and held that the interference with the imposition of punishment was wholly unwarranted. 14. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the order passed by the Tribunal, confirmed by the Division Bench of the High Court, substituting the punishment of removal to that of compulsory retirement is unsustainable. Neither the Tribunal nor the High Court have found any irregularity in conducting the departmental enquiry. Neither the Tribunal nor the High Court have found any irregularity in conducting the departmental enquiry. No procedural lapses have been found. In fact, the respondent employee admitted the charge of having defrauded Rs.16,59,065/- and on detecting the fraud, he deposited the defrauded amount of Rs.16,59,065/- along with penal interest. But for the detection of the fraud, probably, the respondent employee would not have deposited the defrauded amount. Once, a conscious decision was taken by the Disciplinary Authority to remove an employee on the proved misconduct of a very serious nature of defrauding public money, neither the Tribunal nor the High Court should have interfered with the order of punishment imposed by the Disciplinary Authority, which was after considering the gravity and seriousness of the misconduct. 15. Merely because the respondent-employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount along with penal interest and therefore there was no loss to the Government/Department cannot be a ground to interfere with the order of punishment imposed by the Disciplinary Authority and substitute the same from removal to that of compulsory retirement. Neither the Tribunal nor the High Court have, in fact, considered the nature and gravity of the misconduct committed by the delinquent officer. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority. 16. None of the grounds/reasoning on which the order of punishment of removal has been interfered with by the Tribunal and affirmed by the High Court are germane and can be sustained. Once it was found that the delinquent officer who was serving in the post office had defrauded to the extent of Rs.16,59,065/- and that too, by way of fraudulent withdrawal in as many as 85 RD accounts and by way of non-credit of deposits in 71 RD accounts, no sympathy on such an employee was warranted. 17. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. 17. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public- By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. Therefore, in the facts and circumstances of the case, both, the Tribunal as well as the High Court have exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority and to substitute the same to that of compulsory retirement.” 8. Having heard the submissions made at bar and considered the various case laws cited at bar and considered the material placed on record and the affidavit-in-reply, it appears that the petitioner joined the service of respondent w.e.f. 01.09.2005 on the post of Taluka Development Officer, Class – II and due to misconduct committed by the petitioner, the charge-sheet came to be issued. It reveals from the record that such relevance documents were not maintained by the petitioner and thus, he has committed dereliction in his duties and, therefore, the impugned order has been passed and even the petitioner has not produced the counterfoil or cheques during the inquiry proceedings and, thus, the inquiry officer found the petitioner guilty of the charges leveled against him. It appears that the second show-cause notice came to be issued to the petitioner whereby he was permitted to produce the relevant evidence. However, he has filed review application which came to be dismissed and the same was not challenged by the petitioner and hence the same attained finality. Considering the facts of the case, it appears that the petitioner was provided sufficient opportunities however, no witnesses has been adduced by him. The respondent has conducted departmental inquiry in accordance with GCSR and the petitioner has not made out a case to substantiate the allegation that the impugned order is perverse, illegal or arbitrary, so as to enable the Court to exercise its judicial review to quash and set aside the impugned order. The respondent has conducted departmental inquiry in accordance with GCSR and the petitioner has not made out a case to substantiate the allegation that the impugned order is perverse, illegal or arbitrary, so as to enable the Court to exercise its judicial review to quash and set aside the impugned order. Now, on perusal of the material, it appears that the order of punishment passed by the Inquiry Officer and the impugned order passed by the Disciplinary Authority are sustainable in the eyes of law and both the authorities have not committed any error of facts and law in passing such orders. In view of the above, I am of the opinion that the present petition deserves to be dismissed. So far as the decisions relied upon by learned counsel appearing for the petitioner is concerned, they are not applicable to the facts of the present case. 9. In view of the aforesaid foregoing reasons, the present petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. There shall be no order as to costs.