Jayantilal Pitamber Macwan ... vs State Of Gujarat
2021 Latest Caselaw 18295 Guj

      C/SCA/20731/2015                                 JUDGMENT DATED: 10/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 20731 of 2015


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                       Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                                NO

2      To be referred to the Reporter or not ?                             YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                    NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution                  NO
       of India or any order made thereunder ?

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                   JAYANTILAL PITAMBER MACWAN (MAKWANA)
                                    Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
 for the Respondent(s) No. 2
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
MR RA MISHRA(481) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 10/12/2021
                                ORAL JUDGMENT

1. By way of this petition, the petitioner challenges punishment order dated 27.06.2014 passed by the State Government, whereby the punishment of reduction in pension by Rs. 500/-per month for a period of three years came to be imposed upon the petitioner.

2. The brief facts of the case are as under:-

2.1 The petitioner had joined the service of the respondent authority on 14.11.1968. The petitioner has retired from service on attaining the age of

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superannuation on 31.05.2006.

2.2 While the petitioner was in the service of the respondent authority, the petitioner was served with a charge-sheet dated 09.04.2003 for the alleged misconduct committed by the petitioner. Thereafter, the respondent authority had also filed a Criminal Case against the petitioner for the commission of the alleged offence punishable under Section 409 of the Indian Penal Code, 1860 in connection with the said misconduct with Anand Rural Police Station, wherein the charge-sheet was filed by the investigating officer and the said case was registered as Criminal Case No: 774 of 2002 before the Court of Chief Judicial Magistrate at Anand.

2.3 After issuance of the charge-sheet to the petitioner, the departmental inquiry was instituted against the petitioner, wherein the inquiry officer came to be appointed by the respondent authority to conduct the departmental inquiry against him. It is the case of the petitioner that during the course of the departmental inquiry, no witnesses were examined by the inquiry officer and no evidence was recorded and without recording any evidence and without examining any witnesses, the inquiry officer straightway submitted his inquiry report in a sealed cover along with the letter dated 12.09.2005. From the record of the inquiry, it is revealed that as the criminal case was also pending against the petitioner for the same charges, the report of the inquiry officer was kept in a sealed cover and the said sealed cover was opened on 01.02.2012. The inquiry officer had submitted the inquiry report holding that the charge levelled against the petitioner was proved subject to the decision by the competent Court in the Criminal case registered against the petitioner. However, inspite of the fact that the Criminal Case was pending against the petitioner, the petitioner was issued a show cause notice dated 29.02.2012 along with the inquiry report calling upon the petitioner to show cause as to why the punishment of reduction in

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pension be not imposed upon the petitioner. Thereafter, the petitioner submitted a detailed reply to the said show cause notice on 19.03.2012.

2.4. Thereafter as per the Rules, the respondent authority consulted the Gujarat Panchayat Service Selection Board and sought advise of the Board on the proposed quantum of punishment of reduction of pension by Rs. 100/-for a period of one year. The Board did not concur with the respondent authority on the quantum of punishment and instead recommended punishment of reduction in pension by Rs. 500/-for a period of 3 years.

2.5. In the meantime, the petitioner came to be acquitted of the charges leveled against him in the above referred Criminal Case No. 774 of 2002 by way of judgment and order of acquittal dated 30.12.2013 passed by the Court of Chief Judicial Magistrate, Anand. It is pertinent to note that the said acquittal was recorded by the Trial Court after taking into consideration and appreciating in detail, all the evidences produced by the prosecution.

2.6 Thereafter, the State Government passed the impugned punishment order dated 27.6.2014, as per the recommendations of the Gujarat Panchayat Services Selection Board, whereby the pension of the petitioner is ordered to be reduced by Rs. 500/- per month for a period of 3 years.

2.7. Thereafter, a consequential order came to be passed by the respondent authority on 12.08.2014. Being aggrieved by the said orders dated 27.06.2014 and 12.08.2014, the petitioner had preferred an appeal before the Development Commissioner on 09.10.2014.

2.8. Being aggrieved by and dissatisfied with the said punishment order, the petitioner preferred an appeal before the Gujarat Civil Services

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Tribunal at Gandhinagar. During the pendency of the said appeal, it transpired that the Tribunal did not have jurisdiction to hear the appeal against the order of the State Government and, therefore, the said appeal came to be withdrawn with a liberty to approach this Court

3. Learned advocate Mr.Vaibhav Vyas has submitted that the acquittal of the petitioner is on merits and in view of the specific observations made by the Inquiry Officer in this regard, the impugned order is required to be set aside. It is submitted that though the petitioner has deposited the amount of Rs.29,256/-, such deposition of amount before the Trial Court will always be subject to final outcome of the trial and such deposit cannot amount to admission of charge..

3.1. It is further submitted by the learned advocate Mr.Vyas that the Inquiry Officer has only recorded the facts and held the charges as proved in view of the criminal case. It is submitted that pursuant to the show cause notice, the petitioner has given a detailed reply dated 17.03.2012 and it is submitted that none of the documents, which would prove the alleged misconduct, were neither produced before the Inquiry Officer nor before the Trial Court. Thus, he has submitted that he was left with no other option but to state before the Inquiry Officer that he cannot produce any evidence and it was the duty of the department to produce such documents in order to prove the charges. Thus, he has submitted that the impugned order may be set aside.

4. Per contra, learned advocate Mr.Mishra appearing for the respondent authority has submitted that the impugned order may not be interfered with as the petitioner himself has deposited an amount of Rs.29,256/- before the Trial Court and thus he has admitted the guilt. No further submissions are advanced.

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5. I have heard the learned advocates appearing for the respective parties.

6. The petitioner was issued a charge-sheet for the alleged misappropriation of an amount of Rs.29,256/-. It appears that simultaneously a criminal prosecution was also lodged. The report of the Inquiry Officer reveals that the petitioner had deposited an amount of Rs.29,256/- before the Judicial Magistrate, First Class, Anand with a condition that the same would be subject to the result of the trial, if he is found to be guilty. The Inquiry Officer's report reveals that the petitioner has said that he is unable to provide any evidence with regard to alleged misconduct and has requested the concerned respondent-Department to call for necessary evidence from the District Panchayat, Anand. Further, he has requested that the inquiry may not be proceeded in view of the pendency of the criminal trial. The Inquiry Officer's report ends only with one paragraph and the same does not in any manner is premised on any documentary evidence or any other statement of witnesses and the charges are held to be proved. Finally, it is observed by the Inquiry Officer that for holding him guilt or proving the charge with regard to misappropriation of an amount of Rs.29,526/-, the same would depend on the final decision of the trial.

7. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Union of India vs. Gyanchand, (2009) 12 SCC 78, wherein the Supreme Court has held that the departmental inquiry has to be conducted fairly and even if the delinquent does not take the defence or make a protest against the charges as vague, that does not save the enquiry from being vitiated for the reason that there must be fair-

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play in action. The Supreme Court has held thus:-

"33. In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge- sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC 1723). Thus, where a delinquent is served a charge- sheet without giving specific and definite charge and no statement of allegation is served along with the charge- sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.

34.In Sawai Singh v. State of Rajasthan, AIR 1986 SC 995, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair-play in action, particularly, in respect of an order involving adverse or penal consequences.

35. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."

8. It is not in dispute that by the judgment dated 30.12.2013 passed by the Additional Chief Judicial Magistrate, Anand in Criminal Case No.774

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of 2002, the petitioner has been acquitted from the charges. It is also not disputed that the acquittal is on merits since no documentary evidence was produced before the Trial Court with regard to alleged misappropriation of Rs.29,256. The inquiry proceedings also not revealed that the alleged misconduct is proved on any documentary evidence. In wake of the observation made by the Inquiry Officer after proving of the charge is subject to the trial proceeding, then an acquittal of the petitioner. The impugned order is required to be set aside.

9. Thus, the entire procedure, which is followed by the disciplinary authority is not in fair-play. There is yet another factor, which would render the impugned order dated 22.06.2014 as illegal since the detailed representation dated 17.03.2012 filed by the petitioner to the show cause notice is not considered. The impugned order does not even refer to the reply given by the petitioner. None of the contentions are dealt with by the disciplinary authority. Thus, the disciplinary authority was required to apply its mind to the representation filed by the petitioner in pursuance to the show cause notice.

10. The Supreme Court in the case G. Vallikumar Vs. Andra Education Society and Others, reported in 2010 (2) SCC 497, while examining an analogous provisions to Rule 12(a)(b) of the Panchayat Rules, has held thus:-

"13 We shall now deal with the question whether the Division Bench of the High Court was justified in setting aside the direction given by the Tribunal for reinstatement of the appellant with consequential benefits. Shri Y. S. Rao, who conducted inquiry against the appellant submitted report dated 4.7.1999 with the findings that all the charges except charge No.4 have been proved against the appellant. She was given a copy of the inquiry report along with show cause

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notice to which she filed reply dated 20.11.1995. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and representation submitted by her in the light of the findings recorded by the inquiry officer but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority."

11. It is held by the Apex Court, while examining the provision of Rule 120(1)(iv) of The Delhi School Education Rules, 1973, which mandates that the disciplinary authority has to impose the penalty after considering the representation made by the delinquent, meaning thereby that the contents of the representation are to be dealt with by recording reasons and if the same is not followed, it can be presumed that the rules of natural justice are violated. In the present case, though the representation dated 22.06.2014 of the petitioner though is referred to in the punishment order, its contents are not dealt with.

12. The Supreme Court in the case of Chairman, Life Insurance Corporiation Vs. A Masilamani, 2013(6)SCC 530, has explained the word "consider". The Apex Court has held thus:-

"The word "consider", is of great significance. Its dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order

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of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Director, Marketing, Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., AIR 2008 SC 1771)."

13. Thus, the Apex Court, while explaining the word "consider" has held that the same connotes active application of mind and postulates consideration of all relevant aspects of a matter. It is held that the formation of the opinion by the statutory authority should reflect such application of mind.

14. In view of the foregoing analysis, the writ petition succeeds. The impugned order dated 27.06.2014 and consequential order dated 12.08.2014 are hereby quashed and set aside. The respondents are directed to repay the amount, which is deducted from the petitioner and accordingly, refix his pension. The entire exercise shall be undertaken and final order shall be passed within a period of two months from the date of receipt of the writ of the order of this Court. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK