Gujarat Water Supply And Sewerage ... vs A U Pari Since Decd. Throu His Legal ...
2021 Latest Caselaw 12715 Guj

    C/LPA/691/2021                                   ORDER DATED: 27/08/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 691 of 2021
                                In
         R/SPECIAL CIVIL APPLICATION NO. 2327 of 2011
                               With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
          In R/LETTERS PATENT APPEAL NO. 691 of 2021
=====================================================
        GUJARAT WATER SUPPLY AND SEWERAGE BOARD
                              Versus
         A U PARI SINCE DECD. THROU HIS LEGAL HEIRS
=====================================================
Appearance:
MR RUTVIJ S OZA(5594) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1.1
=====================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 27/08/2021

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of the present Letters Patent Appeal, the appellant herein has challenged the order dated 04.12.2019 passed by the learned Single Judge in Special Civil Application No. 2327 of 2011, whereby, the learned Single Judge was pleased to quash and set aside the order dated 19.06.2009 impugned in the petition.

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2. The present appellant is the original respondent no.1 in the main Special Civil Application and the respondent no.1 herein is the legal heir of deceased respondent (original petitioner).

3. The respondent no.1 herein who preferred Special Civil Application No. 2327 of 2011 prayed for the following reliefs in the main Special Civil Application:

"8. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authority and may be pleased to:

(A) declare and hold that the decision of the Inquiry Officer, of holding the charges leveled against the petitioner as proved, is illegal, arbitrary and perverse, and consequently quash and set aside the same, and all subsequent proceedings, and (B) quash and set aside the punishment order dated 19.06.2009, Annexure-A to this petition, and grant all the consequential benefits to the petitioner, and (C) quash and set aside the order dated 06.11.2009, Annexure-K to this petition, and (D) award the cost of this petition, and (E) pending admission and final disposal of this petition the Hon'ble Court may be pleased to stay the effect, operation and implementation

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of the impugned orders dated 19.06.2009 and 06.11.2009, and (F) grant any other relief or pass any other order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case."

4. Before the learned Single Judge, it was the case of the present respondent no.1 that for certain alleged irregularities, after serving the charge-sheet, the respondent no.1 was subjected to a departmental inquiry. During the course of the departmental inquiry, the same was conducted in absolutely illegal and arbitrary manner and the defense submitted by the present respondent no.1 was not considered by the inquiry officer. The defense statement / representation was submitted by the present respondent no.1 and yet without even considering and discussing the defense and evidence of the respondent no.1, the inquiry officer held charges against the respondent no.1 to be proved. Ultimately, the disciplinary authority passed an order of punishment dated 19.06.2009, whereby, the appellant herein imposed penalty of stoppage of one increment without future effect and also reduced the pay of the present respondent no.1 to a lower stage, and hence, the present respondent no.1 challenged the aforesaid action of the present appellant by filing Special Civil Application No. 2327 of 2011 and prayed for the reliefs which are already

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mentioned in the forgoing paragraph.

5. The learned Single Judge after hearing the present appellant and respondent no.1 herein and after taking into consideration Rule-6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for short 'the Rules'), came to the conclusion that the present appellant has imposed major and minor penalties in a composite order. Since, Rule-6(2) of the Rules, prescribes minor penalties and withholding of increment or promotion is considered to be a minor penalty and as per Rule-6(5) of the said Rules, reduction to a lower time scale of pay, grade or post is amongst the major penalties. In respect of one departmental inquiry, major and minor penalties cannot be imposed upon the delinquent together, and hence, such action of the disciplinary authority exhibits total non-application of mind, and hence, the order imposing punishment dated 19.06.2009 was quashed and set aside by the learned Single Judge vide order dated 04.12.2019. It is the order dated 04.12.2019 passed by the learned Single Judge, which is under challenge before us in the present Letters Patent Appeal.

6. Heard Mr. Rutvij S. Oza, learned advocate for the appellant and Mr. Vaibhav A. Vyas, learned advocate for the respondent no.1.

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7. It was submitted by learned advocate Mr. Oza that looking to the prayers in the main petition, the respondent no.1 herein had prayed for quashing and setting aside the report of the inquiry officer. However, while allowing the petition, the learned Single Judge has quashed and set aside the order dated 19.06.2009 imposing the penalty only, and hence, though the petition was allowed, the finding of the inquiry officer would still remain as it is, and therefore, the present appellant be permitted to continue the proceedings in respect of the departmental inquiry, by taking into consideration the report of the inquiry officer and be permitted to proceed further in respect of imposition of appropriate penalty. However, learned advocate Mr. Oza could not dispute the proposition of law that minor and major penalties cannot be imposed in one order in respect of the same inquiry. The present appellant is seeking limited intervention from this Court to allow the present appellant to proceed further in respect of the departmental proceedings, as the findings of the inquiry officer are not quashed by the learned Single Judge.

8. No other or further submissions were made by the learned advocate Mr. Rutvij Oza for the appellant.

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9. As against that, learned advocate Mr. Vaibhav Vyas for the respondent no.1 herein contended that imposition of penalty is ultimately the result of departmental inquiry. Once the order of penalty goes, all the proceedings which has led to imposition of penalty also goes. He submitted that, even the inquiry officer did not conduct the inquiry in fair manner. The representation as well as defense statement of the present respondent no.1 (original petitioner) in the form of defense statement was never considered by the inquiry officer. The inquiry officer has not discussed the evidence against the present respondent no.1 and straightaway has given findings, and therefore, such inquiry cannot be said to be a fair inquiry at all. Mr. Vyas, learned advocate drew attention of this Court that while allowing the petition, the learned Single Judge has taken note of that fact and in para-11 of the order observed that there is no discussion on evidence in the inquiry officer's report. He further submitted that the order imposing penalty upon the present respondent no.1 was dated 19.06.2009, whereas the inquiry officer's report was of 17.12.2008, in the meantime, the present respondent no.1 has already expired, and thereafter, the legal heirs of the present respondent no.1 continued to pursue the cause of the deceased petitioner, and ultimately, succeeded before the learned Single Judge. At this juncture, in absence of the present respondent no.1,

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no fruitful purpose would be served by permitting the present appellant to continue with the departmental proceedings by allowing them to continue the proceedings merely for the purpose of imposition of penalty. He further submitted that imposition of punishment is a matter of discretion considering the gravity of offence which lies with the disciplinary authority, if the disciplinary authority has committed an error by imposing two punishments, viz. major and minor together in respect of one department inquiry, after almost 12 years from the date of order of punishment, they may not be permitted to correct the wrong committed by them, and submitted that in view of above, present Letters Patent Appeal deserves to be dismissed.

10. Having heard the learned advocates appearing for the respective parties and after perusing the entire record of the Special Civil Application, we have noted the fact that the present respondent no.1 - original petitioner has taken specific contention in respect of the manner in which the inquiry was conducted and inquiry report was prepared in para-3.6, 3.7 and 3.8 of the petition. However, the same was not dealt with by the present appellant in the affidavit-in-reply filed by them before the learned Single Judge. In fact, we do not find even a single sentence in the affidavit-in-reply in the main

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Special Civil Application filed by the present appellant stating that the inquiry was conducted as per the prescribed procedure and in absolutely fair manner. In fact, all that was stated in the affidavit-in-reply in the main Special Civil Application by the present appellant is reproduced as under:

"(2). The respondent has decided to inquire into the matter and therefore, the Board was constituted for the purpose of inquiry on 04.01.2008 and one Mr. S.V. Ahuja was appointed as Inquiry Officer, one Mr. D.G. Chaudhari was appointed as the Presenting Officer. After inquiring the same, both the officers came to the conclusion that the report which is submitted by the office having substances and the charges are proved. On 17.12.2008, the petitioner was conveyed regarding the Inquiry Report and further called upon for any reply required to be filed by the petitioner, the petitioner can do so. The petitioner had filed final representation to the Board by his letter dated 29.12.2008. (3). Looking to the allegations against the petitioner and the reply to that, as the Board came to be conclusion by the order dated 19.06.2009 that one increment for one year, without any future effect, was required to be imposed and from 1st of June, 2009, the petitioner is required to be degraded from present grade."

11. A bare perusal of the aforesaid paragraphs would show that at no point of time a defense was taken that the representation made by the present respondent no.1 was ever considered or about the observance of

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procedural aspects of the department inquiry, for which the present respondent no.1 had raised the grievance in his representation as well as in the petition. In fact, on perusal of the inquiry report produced at Annexure-H to the main Special Civil Application clearly reveals that there is no discussion either about the defense of the present respondent no.1 or about the evidence. Keeping this fact in mind, we have also gone through the order passed by the learned Single Judge, wherein, in para-11, the learned Single Judge has observed thus:

"11. There is another aspect which needs deliberation is that the impugned order if is perused, would reveal that the Disciplinary authority has only incorporated the facts and charges against the petitioner. No evidence of the Inquiry Officer is recorded. The representation made by the petitioner to the show-cause notice is also casually referred. Thus, the same also suffers from nonapplication of mind as there is no discussion on the evidence, Inquiry Officer's report or the representation or the defence statement filed by the petitioner. In this regard also the impugned order is required to be quashed and set aside."

12. The above would clearly indicate that the learned Single Judge has categorically observed about the way in which, the inquiry was conducted and punishment was imposed upon the present respondent no.1 - original petitioner. The charge-sheet was issued in the year 2007, inquiry report was submitted in the year 2008 and punishment was imposed in the year 2009. Now after 12

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years and after the respondent no.1 had already expired, looking to the manner in which the inquiry was conducted and considering the observations made by the learned Single Judge in para-11, we do not deem it proper to accept the submission of learned advocate Mr. Oza for the appellant to permit the appellant to proceed further in respect of the departmental proceedings on the basis of the inquiry report. The present appellant cannot be permitted to take advantage of his own wrong, whereby, the disciplinary authority imposed two punishments, one of minor nature and another of major nature, in one order in respect of one departmental inquiry.

13. Even otherwise also, we are convinced that the learned Single Judge has in para-11 of the judgment, which is produced in the forgoing paragraph has considered the aspect of the inquiry report as well, and therefore, we are in complete agreement with the view taken by the learned Single Judge and do not deem it appropriate to interfere with the order passed by the learned Single Judge dated 04.12.2019.

14. In the result, the present appeal deserves to be dismissed and the same is dismissed accordingly. No order as to costs.

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15. In view of the order passed the main matter i.e. in Letters Patent Appeal No. 691 of 2021, Civil Application, does not survive and the same is also dismissed accordingly.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) Pradhyuman