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2024 DIGILAW 623 (GUJ)

Narendrakumar Dahyalal Jani v. State of Gujarat

2024-03-21

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The petitioner has preferred present petition, under Articles 226 and 227 of the Constitution of India and challenged show-cause-notice dated 25.11.2014 as well as charge-sheet with below mentioned prayers: “3(A) That this Hon’ble court be pleased to admit and allow this petition. (B) That this Hon’ble court be pleased to issue any appropriate writ order or direction and or to be pleased to quash, set aside the show cause notice dated 25/11/2014 issued by respondent no. 2 as well as the charge-sheet. (C) That pending hearing and final disposal of the petition, stay the implementation and execution of the show cause notice dated 25/11/2014 passed by the respondent No. 2 and be further please to release the amount of gratuity and other pensionary benefits amounts lawfully due to the petitioner for his post retiremental survival. (D) That this Hon’ble court be pleased to pass any other and further orders in the interest of justice.” 2. The short facts giving rise to present petition are that the petitioner joined services as a Junior Clerk in Ahmedabad District Panchayat on 3/8/1981. Thereafter, he was promoted on 20/9/2002 as Senior Clerk and was posted at Primary Health Centre, Trant, Taluka: Mandal. From 2005 to 2007 the petitioner was posted at Viramgam and thereafter, he was working in City Block from 2007 to 2008. From 2008 to 2014, the petitioner had discharged his services at Taluka Panchayat, Bavla. He was lastly serving as Senior Clerk in education department in District Panchayat at Ahmedabad. The petitioner thereafter, has retired on 29/11/2014. 2.1 The allegation against the petitioner is that when the petitioner was serving as Senior Clerk in the year 2002 at Trant Primary Health Centre, the petitioner had not paid the amount of Rs. 500/- provided as Financial Assistance by Government for the post delivery period i.e. nutrition allowance to the pregnant ladies. It is the allegation in the show-cause-notice that the petitioner had misappropriated the said amount by forging signatures of the pregnant ladies. For that the complaint came to be filed by one of the pregnant lady namely Alkaben Prahladbhai Darji after a period of 3 years to the President, Ahmedabad District Panchayat. Pursuant to the said complain an inquiry was initiated and a preliminary inquiry report was drawn by the Chief District Health Officer dated 14/3/2007. For that the complaint came to be filed by one of the pregnant lady namely Alkaben Prahladbhai Darji after a period of 3 years to the President, Ahmedabad District Panchayat. Pursuant to the said complain an inquiry was initiated and a preliminary inquiry report was drawn by the Chief District Health Officer dated 14/3/2007. It was indicated in the said inquiry report that the petitioner as well as Dr. Mukesh Patel both were held responsible for the misappropriation of the amount. 2.2. The said preliminary inquiry report was drawn after a period of 5 years from the date of incident i.e. on 2002. Upon a preliminary inquiry report, a reference was made to the Directorate, Commissioner office for taking action against the said doctor Shri Mukesh Patel. Pursuant to the said report no action was taken against the said doctor by the Commissioner office. 2.3 After the preliminary report, the department had remained silent for 7 years. However, on the verge of the retirement, the petitioner was served with a show-causenotice on 25/11/2014 alleging him to be responsible for the act alleged to be committed by the petitioner way back in the year 2002. The petitioner had already informed the department that on the date on which the amount was disbursed, the petitioner had attended the workshop at Ahmedabad District Panchayat where his presence was also marked and further T.A./D.A. bill was also sanctioned to that effect. 2.4 The amount which has been disbursed on 24/10/2002 to the pregnant ladies, looking to the Disbursement Register it transpires that it is the medical officer who alone one has signed the said statement of disbursement. Further, there is not a single signature of the petitioner on the said register. The petitioner had joined his services on promotion at Trant Primary Health Centre and taken charge on 22/10/2002, only two days later of his joining, the alleged incident took place. It is evident that the petitioner would not be personally knowing the pregnant ladies who were under the treatment of the said Primary Health centre. The medical officer only personally has known the pregnant ladies and therefore, the said medical officer was involved in misappropriation of government funds which was brought to the notice of the District Health Officer, District Panchayat, Ahmedabad. The medical officer only personally has known the pregnant ladies and therefore, the said medical officer was involved in misappropriation of government funds which was brought to the notice of the District Health Officer, District Panchayat, Ahmedabad. The alleged incident had taken place in the year 2002 and the petitioner is served with the show cause charge sheet in the year 2014 i.e. after a lapse of 12 years for reasons best known to the department. 2.5 In view of the above facts, the petitioner has filed present petition for quashing and setting aside the impugned show-cause-notice as well as charge-sheet. 3. I have heard Ms. Prachi Upadhyay, learned Counsel for the petitioner and Mr. Jay Trivedi, learned Assistant Government Pleader for respondent No. 1 and Mr. Munshaw, learned Counsel for the concerned respondents. 4. Ms. Prachi Upadhyay, learned Counsel for the petitioner has submitted that the action on the part of the concerned respondent is with mala-fide intention. She has submitted that gross delay was caused in initiation of proceedings by the concerned respondents. She has further submitted that the allegations made in the charge-sheet are in serious nature which involves the criminality however, against the petitioner any criminal proceedings were not initiated with regard to misappropriation of the amount. She has further submitted that the incident is of the year 2002 thereafter statements of the beneficiaries were recorded in the year 2006 and report of preliminary inquiry was also submitted in 2007 and from 2007 to 2014 the concerned respondents had remained silent and not initiated any action against present petitioner and therefore, the delay caused in initiation of proceedings is fatal and same deserves to be quashed and set aside, as the same is arbitrary action on the part of the respondent. 4.1 In support of his submission, learned Counsel for the petitioner has relied upon the decision of this Court in case of Prabhakar D. Marathe vs. State of Gujarat, 2008 (1) G.L.H. (U.J.) 6 and submitted that in similar set of facts, the Court has quashed the action of the respondent only on the ground of delay in departmental proceedings. She has also relied upon the decision of this Court dated 12.2.2014 passed in Special Civil Application No. 13240 of 2006 wherein similar facts of the case, the court has quashed impugned action initiated against the employee. She has also relied upon the decision of this Court dated 12.2.2014 passed in Special Civil Application No. 13240 of 2006 wherein similar facts of the case, the court has quashed impugned action initiated against the employee. She has further relied upon the decision of the Hon’ble Apex Court in the case of State of A.P. vs. N. Radhakishan, 1998 SCC (L&S) 1044. 4.2 In view of the above facts and in view of the settled legal principle of law, Ms. Upadhyay, learned Counsel for the petitioner urges before the Court that present petition may be allowed and the impugned show-cause-notice as well as charge-sheet may be quashed and set aside. 5. As against that Mr. Munshaw, learned Counsel for the concerned respondents has relied upon the affidavit-in-reply filed on behalf of the respondents. Relying upon the affidavit-in-reply Mr. Munshaw, learned Counsel for the concerned respondents has submitted that the petitioner was joined service in 1981 and he was in charge of the day to day official affairs being a Senior Clerk of P.H.C. He has further submitted that it is the duty of the petitioner to keep the record and to give the benefits of the State Government to the beneficiaries, however, in certain cases complaints were received by the concerned respondents with regard to non payment of the said amount to the beneficiaries. He has submitted that the concerned respondents have initiated preliminary inquiry against the petitioner, wherein some serious allegations were made by the beneficiaries against the petitioner and considering the seriousness of the charges, the impugned charge-sheet came to be issued against the petitioner. He has further submitted that the charges levelled against the petitioner are serious in nature and considering the allegation of misappropriation of amount, the initiation of the proceedings is in consonance with the Panchayat Civil Services Rules and Gujarat Civil Services Rules and therefore, there is no any mala-fide or any ill intention of the part of the concerned respondents. He has further submitted that this Court has stayed the further proceedings of the inquiry which was initiated in 2014 and therefore, the concerned respondents have urged before the coordinate bench of this Court to vacate the said interim relief to proceed further into the inquiry proceedings initiated against the petitioner. He has further submitted that the respondents have referred to and relied upon the charge-sheet wherein the detailed charges were mentioned. He has further submitted that the respondents have referred to and relied upon the charge-sheet wherein the detailed charges were mentioned. He has further submitted that the initiation of the proceedings is on the basis of the statement of the beneficiaries, which were recorded during the preliminary inquiry and therefore delay was caused, and therefore, the said delay cannot be termed as fatal. 5.1 In view of the above, Mr. Munshaw, learned Counsel for the concerned respondents urges before the Court that the present petition may not be entertained and the same may be dismissed. 6. I have perused the material and relevant papers available on record. It appears that the facts relevant for initiation of the proceedings were available to the concerned respondent, much prior in 2002. However, in 2006 after period of four years, the concerned respondents have called the beneficiaries and recorded the statements of the beneficiaries, who have raised the complaint against the present petitioner as alleged in the charge-sheet. Therefore, during this four years the concerned respondents have remained silent. On 2.5.2006 the statements of the beneficiaries were recorded and almost 8 years have passed in between, the concerned respondents have not initiated any proceedings. Even present petition was filed in the year 2014 and now in 2024 the petition came upon for final hearing. Hence, the request made on behalf of the concerned respondents with regard to the further initiation of the proceedings is nothing but an eye-wash as it is observed by Hon’ble Apex Court, the petitioner has suffered a mental agony as the sword is hanging upon the head of the petitioner for this number of years and petitioner was deprived from his legitimate dues and retiral benefits. Further, the petitioner was economically dead as he was deprived from his legitimate retiral benefits which deserves to be immediately released in favour of the petitioner. The submissions made on behalf of the petitioner are covered by the decision of this Court as well as decision of the Hon’ble Apex Court, which are referred in present judgment. 7. It is appropriate to take into account relevant observation of this Court in Special Civil Application No. 13240 of 2006 which read as under: “11. The submissions made on behalf of the petitioner are covered by the decision of this Court as well as decision of the Hon’ble Apex Court, which are referred in present judgment. 7. It is appropriate to take into account relevant observation of this Court in Special Civil Application No. 13240 of 2006 which read as under: “11. Having heard learned advocates for the parties and having perused record of the case, it appears that for proving the charges leveled against the petitioner, no oral evidence was led by witness nor any document was proved against the petitioner. It appears that the inquiry officer just considered the reply of the petitioner submitted in his defense and then abruptly came to the conclusion that the charges were proved against the petitioner. It is required to be noted that the charge-sheet was issued to the petitioner for proposed penalty under Rule 6 of Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 (‘the Rules’ for short). Rule 8 of the said Rules provides the procedure imposing major penalties. 12. Rule 6 amongst other penalties provides for major penalties, therefore, regular departmental inquiry was required to be held, however, without holding any departmental inquiry to prove the charges against the petitioner, inquiry officer just submitted his report, stating that the charges against the petitioner were proved. It is required to be noted that in the nature of the charges leveled against the petitioner, the inquiry officer could not have just considered the reply of the petitioner to come to the conclusion that the charges were proved against the petitioner. Above such charges against the petitioner could have been proved only by examining witness and by proving the documents against the petitioner. 13. Even apart from above, on account of unreasonable long delay in initiation of inquiry against the petitioner, the order impugned is required to be quashed and set aside. There is no dispute about the fact that the charges leveled against the petitioner were in respect of release of medical help in the year 198990. After about more than 13 years, when the petitioner was about to retire, he was served with the charge-sheet only before 3 days of his retirement. Considering the nature of the charges leveled against the petitioner, in fact, it could not have been possible for the petitioner to defend himself after such a long span of time. After about more than 13 years, when the petitioner was about to retire, he was served with the charge-sheet only before 3 days of his retirement. Considering the nature of the charges leveled against the petitioner, in fact, it could not have been possible for the petitioner to defend himself after such a long span of time. Therefore, the punishment imposed upon the petitioner of cut in pension on such delayed inquiry cannot be sustained. 14. For the reasons stated above, the Court is of the view that the impugned order cannot stand scrutiny of law and is required to be quashed and set aside and the respondents are required to be directed to release pension and other retirement benefits of the petitioner. 15. In the result, the petition is allowed. The impugned order dated 28.03.2006 at Annexure-F and the intimation dated 13.04.2006 at Annexure-G are quashed and set aside. The respondents are directed to release pension and other retirement benefits of the petitioner within 3 months from the date of receipt of this order. Rule made absolute.” 8. In view of the above discussion and in view of the observations made by Hon’ble Apex Court and this Court, I am of the opinion that there is gross delay in initiation of proceedings by the concerned respondents. Further, after the preliminary report, the concerned respondent had remained silent for almost 7 years and suddenly on the verge of the retirement, the petitioner was served with a show-cause-notice on 25/11/2014 alleging him to be responsible for the act alleged to be committed by the petitioner way back in the year 2002. 9. Hence, in view of the above observations, present petition requires to be allowed. Accordingly, the charge-sheet dated 25.11.2014 issued by respondent No. 2 as well as show-cause-notice issued against present petitioner are hereby quashed and set aside. 10. The concerned respondents are hereby directed to pay all retiral dues of the petitioner, if not paid, along with all consequential benefits within period of four months from the date of receipt of the copy of the order. 11. With aforesaid observations, present petition is hereby allowed. Rule is made absolute. No order as to costs. 12. Lastly request is made by learned Counsel for the petitioner to impose some interest on the retiral dues which are due and payable but was not paid because of the pendency of this petition. 11. With aforesaid observations, present petition is hereby allowed. Rule is made absolute. No order as to costs. 12. Lastly request is made by learned Counsel for the petitioner to impose some interest on the retiral dues which are due and payable but was not paid because of the pendency of this petition. 13. In view of the fact that the departmental proceedings were initiated and the same were stayed and therefore, considering all this aspects, the request for imposing interest on the retiral dues is hereby denied. 14. Direct service is permitted.