Gujarat High Court
V.L.Patel vs State Of Gujarat on 13 December, 2021
Bench: Ashutosh J. Shastri
C/SCA/19024/2005 ORDER DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19024 of 2005
==========================================================
V.L.PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/12/2021
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is
filed for the purpose of seeking following reliefs:-
(A) To quash and set aside the order of removal dt. 20.6.2005,
and to reinstate the petitioner in service with consequential
benefits including back wages with 12% interest.
(B) During the pendency and final disposal of this petition, the
petitioner may be paid an amount of Rs.2 lakhs.
(C) ............."
2. It is the case of the petitioner that the petitioner was serving as
Civil Surgeon (Class-I) under the respondent till he is removed from
service vide order dated 20.6.2005. The petitioner had initially joined
the services as Medical Officer on 6.11.1976 and after passage of 28
years, has been superannuated on 29.2.2008. In the meantime,
during passage of his services, on 25.3.1992, the petitioner was
placed under suspension in respect of the allegation that he was
involved in corrupt practice of taking amount of Rs.500/- from a
patient towards medical treatment and the petitioner had been
prosecuted by a Special Court, which, now as informed by learned
advocate Mr. Vaibhav Vyas, has resulted in an order of conviction and
the said order of conviction is challenged by way of an appeal before
C/SCA/19024/2005 ORDER DATED: 13/12/2021
this Court and the same is pending for final adjudication.
3. The case of the petitioner is that on 29.10.1999, the petitioner
was served with a charge-sheet, imputing three charges, viz. (1)
during the suspension period, the petitioner was doing private
practice, (2) he did not remain present at the head-quarters and (3)
even though his resignation was not accepted, he remained absent
unauthorizedly. To this charge-sheet, the petitioner replied on
7.12.1999 and vide order dated 3.5.2001, an Inquiry Officer came to
be appointed to hold the departmental inquiry and after conducting
departmental inquiry, the Inquiry officer has submitted a report and
sent the same to the State authority. Even the finding recorded by the
Inquiry Officer has been agreed by the State authority. As a result of
this, vide letter dated 5.4.2004, the petitioner was called upon to
make his representation against the said inquiry report, to which the
petitioner submitted the detailed representation on 22.4.2004 and
after the said representation, vide orer dated 20.6.2005, the petitioner
was removed from services and along with the order of removal, a
letter dated 4.6.2005 written by the Gujarat Public Service
Commission was also sent accepting the recommendation. The
petitioner originally filed Special Civil Application No.14145 of 2003
inter alia praying to direct the respondent to pay subsistence
allowance. However, the said petition came to be withdrawn and
disposed of vide order dated 29.9.2003 and directed the departmental
inquiry to be completed latest by 31.12.2003. After narration of
certain events which took place during the course of time and
ultimately, sought the relief in the petition to quash and set aside the
order or removal dated 20.6.2005 and consequently, sought a relief of
reinstatement in service with consequential benefits, including the
back wages with 12% interest. With the background of the afore-
mentioned facts, the petition was entertained by the Court initially by
issuance of notice on 19.9.2005 and later on, the same came to be
admitted and has now come up for consideration finally before this
C/SCA/19024/2005 ORDER DATED: 13/12/2021
Court.
4. Learned advocate Mr. Vaibhav Vyas appearing for the petitioner
has vehemently contended that the action on the part of the
respondent authority is thoroughly uncalled for and is violative of
principles of natural justice inasmuch as, without payment of
subsistence allowance, the petitioner is made to face the inquiry
which, in view of the settled position of law, violates the principles of
natural justice. It has further been contended that the penalty order,
which has been impugned in the petition, is a non-speaking order, not
supported by cogent reasons and since the reasons are part and
parcel of the principles of natural justice in view of the settled
principles of law, the order deserves to be quashed and set aside on
this count alone. It has further been contended that the reply to the
second show cause notice has been given by the petitioner, but the
bare perusal of the impugned order clearly indicates that no such
circumstances have been considered in right spirit. Mr. Vyas has
further contended that simply because the petitioner is not in a
position to face the inquiry and even if the Inquiry officer is deeming it
proper to proceed ex-parte, then also, the procedural provisions which
are prescribed under the provisions of the Gujarat Civil Services (D&A)
Rules, 1971 are not required to be ignored by the authority and
precisely, it has been pointed out that the authority has not
considered Rule 9(13) and Rule 9(17), which cast an obligation upon
the authority to observe and having not been done so, the order
impugned is not sustainable in the eye of law. Mr. Vyas has further
contended that the process which is required to be undergone by the
authority to provide a recommendation and advice of the GPSC to the
petitioner is also not provided. It is provided only at the stage of
service of penalty order, which, in respectful submission of Mr. Vyas,
is not sustainable in the eye of law. To support this contention, Mr.
Vyas has pointed out following decisions:-
C/SCA/19024/2005 ORDER DATED: 13/12/2021
(1) In the case of Chairman-cum-Managing Director, Coal India
Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors.,reported in
AIR 2010 SC 75;
(2) In the case of Moni Shankar Vs. Union of India and Another,
reported in (2008)1 SCC (L&S) 819;
(3) Judgment and order dated 2.3.2010 passed by the
Coordinate Bench of this Court in Special Civil Application
No.10174 of 1994;
(4) Judgment and order dated 14.9.2004 passed by the
Coordinate Bench of this Court in Special Civil Application
No.3834 of 1998; and
(5) Judgment dated 1.4.2019 passed by Hon'ble the Apex Court
in Civil Appeal No.10690 of 2017.
5. In addition to this, learned advocate Mr. Vyas has submitted
that the criminal case upon which the trial was conducted against the
petitioner has resulted into an order of conviction, but against the
said order of conviction, an appeal is already pending before this
Court and as such, in any case, the authority ought to have restrained
itself from passing the order of penalty. Further, it has been
contended that in any case,the penalty order is a disproportionate
order, which ought not to have been passed and since the action on
the part of the respondent authority is arbitrary, the order under
challenge be set aside in the interest of justice. No other submissions
have been made.
6. As against the aforesaid submissions, learned Assistant
Government Pleader Mr. Tirthraj Pandya has vehemently opposed the
petition, by submitting that basically, this petition is under Article
226 of the Constitution of India and the parameters of exercise of
such jurisdiction are well-defined by Hon'ble the Apex Court in catena
of decisions. It has been submitted that the plea of violation of the
principle of natural justice is not available to the petitioner in view of
the fact that the petitioner did participate in the inquiry by submitting
C/SCA/19024/2005 ORDER DATED: 13/12/2021
even the written brief to the charge-sheet as well as the final defense
statement also and as such, despite several opportunities having been
given to the petitioner, the petitioner has chosen to refrained himself
from participating in effect during the course of the inquiry
proceedings. Under the circumstance, it cannot be said that the
department has violated any principle of natural justice. In addition to
this, by drawing attention to page 173 and 174 of the petition
compilation, i.e. the documents attached to the affidavit-in-reply,
which are not countered by the petitioner and has submitted that
during the period of suspension, the petitioner has been doing
effective medical practice by establishing the clinic, which is visible
from the photographs and as such, the contention that since the
subsistence allowance has not been paid to the petitioner, the
petitioner could not participate in the inquiry is ill-founded. The basic
object of providing subsistence allowance is to see that some financial
aid be made available to the concerned delinquent, so as to enable
him to participate in the course of inquiry. Whereas, here, the
petitioner was having an established medical practice and therefore,
simply because, he has not been paid the subsistence allowance, it
cannot be said that any economic crunch has prevented him from
participating in the inquiry and as such, this ground is not available
to the petitioner in any form. Mr. Pandya has further contended that a
clear statement is made in the affidavit that the subsistence allowance
was paid to the petitioner upto July 1993, upto which the petitioner
went on supplying certificate that he was not doing any job or
profession during the suspension period, otherwise, so long as that
certificate is provided from March 1992, the petitioner has been paid
regularly. It is only on account of the fact that he stopped from giving
such kind of certificate, the subsistence allowance has not been made
available to him in view of Rule 151 if the Gujarat Civil Services Rules
and as such, the plea about non-payment of subsistence allwoance is
not available to the petitioner. Apart from this, Mr. Pandya has
pointed out that after submission of the final defense statement on
C/SCA/19024/2005 ORDER DATED: 13/12/2021
22.4.2004, the Government has considered the same and decided to
impose a penalty of removal from service. The department has already
sent all relevant papers to the Gujarat Public Service Commission
(GPSC) on 22.2.2005 and based upon such scrutiny of relevant
papers, the GPSC has opined clearly on 4.6.2005 that the punishment
which has been proposed and decided to be inflicted upon the
petitioner is just and proper. Such advice of GPSC has already been
provided to the petitioner as per Rule 26 of the Gujarat Civil Services
(Conduct) Rules, 1971 and as such, the order of penalty which has
been passed is in close conformity with the principles of natural
justice and is in complete compliance of the procedure prescribed
under the law.
7. Learned Assistant Government Pleader Mr. Pandya has further
pointed out clearly that the case is a peculiar background of facts, in
which the petitioner has shown an audacity to breach the conditions
of suspension order in clear terms and petitioner was under an
obligation to mark his presence at the headquarter fixed in the
suspension order, which has not been done, and secondly, he has
engaged himself in earning activity by establishing the medical private
practice and as such by drawing such attention to certain averments
contained in the affidavit-in-reply, which has remained
uncontroverted so far, Mr. Pandya has vehemently opposed that no
exercise of extraordinary jurisdiction deserves in such kind of
circumstance. In any case, the petitioner is clearly found guilty of
commission of the crime when he was nabbed in anti-corruption and
as such, the order of conviction in detail is also passed and therefore,
the department has not done anything wrong in passing the order of
penalty. It has further been pointed out that none of the contentions
about procedural violation of principles of natural justice are available
to the petitioner inasmuch as the petitioner unilaterally at his whims
was dealing with the inquiry process. He has not only submitted his
written brief, as was called for, but has also provided a final defense
C/SCA/19024/2005 ORDER DATED: 13/12/2021
statement, as indicated above, and as such, has deliberately waived
his right of not raising such contentions and as such, this
extraordinary jurisdiction at this stage, it is not open for the petitioner
to raise any such technical plea.
8. In furtherance of his submission, Mr. Pandya has further
contended that the detailed affidavit-in-reply which has been filed,
precisely considering the averments contained in para 13 and 14,
there appears to be no violation of any Rules of natural justice while
dealing with the petitioner and as such, the equitable jurisdiction may
not be exercised at this stage of the proceedings.
9. To the aforesaid submission of learned Assistant Government
Pleader Mr. Pandya, learned advocate Mr. Vyas for the petitioner has
submitted as a part of rejoinder states that the photographs which are
attached to the affidavit-in-reply cannot be said to be an admissible
evidence inasmuch as the authority has not proved the same. Further,
so far as the procedural safeguards which are provided under the
relevant Rules, as indicated above, are the guarantees given to the
petitioner, such cannot be even waived by the petitioner even if the
petitioner has not observed and it is not open for the authority to treat
the same as waived by the petitioner. In addition to it, Mr. Vyas has
reiterated that the detailed explanation which has been given dated
26.4.2004 has not been dealt with by the department. The
circumstances which have been pointed out, including on the issue of
subsistence allowance as well as resignation, have also not been dealt
with the authority. It is further submitted that in violation of the
principles of natural justice, without notice to the petitioner,
straightway, an order is passed to the effect that no subsistence
allowance should be paid to the petitioner, which is violative of the
principles of natural justice and further has submitted that the
resignation though tendered by the petitioner has not been accepted
by the authority and refused, such order is also not sustainable in the
C/SCA/19024/2005 ORDER DATED: 13/12/2021
eye of law and there is no further circumstance pointed out which
would indicate that the petitioner has abandoned the services.
However, at this stage, on query being posed, learned advocate Mr.
Vyas has pointed out candidly that such kind of action about
stoppage of subsistence allowance as well as refusal of resignation has
not been challenged by the petitioner in past. Therefore, under this
prevailing circumstance, the relief prayed for be granted in the
interest of justice.
10. Having heard learned advocates appearing for the parties and
having gone through the submissions, ex-facie, it appears to the Court
that the order under challenge dated 20.6.2005 is apparently without
the support of any reasons much less the cogent reasons. After
narration of the sequence of events, mere three line order came to be
passed, which reflects a clear non-application of mind of the
authority. The authority while coming to the conclusion of such a
drastic penalty has also not taken care of the defense taken and the
request made vide final representation dated 22.4.2004 why is not
accepted is also not evident and as such, it appears to this Court that
the authority while passing the impugned order has not assigned any
reasons. By now, the reasons are treated as part of the principles of
natural justice and almost in similar circumstance, in the recent past,
Hon'ble the Apex Court has deprecated the practice of passing such
kind of orders, which reflects non-application of mind by the
authority. The said decision [in the case of Commissioner of Income
Tax-1 Vs. Rashtradoot (HUF) reported in (2019)5 SCC 149 ] since the
Court has considered, the relevant extracts contained in para 13 and
14 are reproduced hereunder:-
13. This Court has consistently laid emphasis that every
order/judgment, which decides the lis between the parties, must
contain the reason(s)/ground(s) for arriving at a particular
conclusion. Indeed, what is decisive for deciding the case is not
the conclusion alone but the reason(s)/ground(s) assigned in
support of such conclusion, which results in reaching to such
conclusion.
C/SCA/19024/2005 ORDER DATED: 13/12/2021
14. In order to decide as to whether the impugned order is
legally sustainable or not, the Appellate Court is entitled to know
as to what impelled the Court below to pass such order in favour
of one party and against the aggrieved party. We find that this
requirement is missing in the impugned order of this case and
hence the interference is called for. (See− State of Maharashtra
vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal
Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P.
vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State
of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs.
Dhaniram Luhar, (2004) 5 SCC 568).
In the case of Kushuma Devi Vs. Sheopati Devi (Dead) and others
reported in (2019)5 SCC 744, Hon'ble the Apex Court has held and
observed in para 8 as under:-
8. This Court has consistently laid down that every judicial or/and
quasi−judicial order passed by the Court/Tribunal/Authority
concerned, which decides the lis between the parties, must be
supported with the reasons in support of its conclusion. The
parties to the lis and so also the appellate/revisionary Court while
examining the correctness of the order are entitled to know as to
on which basis, a particular conclusion is arrived at in the order.
In the absence of any discussion, the reasons and the findings on
the submissions urged, it is not possible to know as to what led
the Court/Tribunal/Authority for reaching to such conclusion.
(See − State of Maharashtra vs. Vithal Rao Pritirao Chawan,
(1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors.,
(1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC
607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519
and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
Yet another decision relevant to the issue is a decision of the Hon'ble
Apex Court in the case of Nareshbhai Bhagubhai and others Vs.
Union of India and others, reported in (2019)15 SCC 1. The relevant
observations contained in para 25 reads as under:-
25. In Kranti Associates (P) Ltd. v. Masood Ahmed Khan, this Court
held that:
12. The necessity of giving reason by a body or authority in
support of its decision came up for consideration before this Court
in several cases. Initially this Court recognised a sort of
demarcation between administrative orders and quasi−judicial
orders but with the passage of time the distinction between the
two got blurred and thinned out and virtually reached a vanishing
point in the judgment of this Court in A.K. Kraipak v. Union of
C/SCA/19024/2005 ORDER DATED: 13/12/2021
India [(1969) 2 SCC 262 : AIR 1970 SC 150]
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even
in administrative decisions, if such decisions affect anyone
prejudicially.
(b) A quasi−judicial authority must record reasons in support of its
conclusions.
(c) Insistence on recording of reasons is meant to serve the wider
principle of justice that justice must not only be done it must also
appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi−judicial or even
administrative power.
(e) Reasons reassure that discretion has been exercised by the
decision−maker on relevant grounds and by disregarding
extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a
decision−making process as observing principles of natural justice
by judicial, quasi−judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior
courts.
(h) The ongoing judicial trend in all countries committed to rule of
law and constitutional governance is in favour of reasoned
decisions based on relevant facts. This is virtually the lifeblood of
judicial decision−making justifying the principle that reason is the
soul of justice.
(i) Judicial or even quasi−judicial opinions these days can be as
different as the judges and authorities who deliver them. All these
decisions serve one common purpose which is to demonstrate by
reason that the relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in the justice
delivery system.
(j) Insistence on reason is a requirement for both judicial
accountability and transparency.
(k) If a judge or a quasi−judicial authority is not candid enough about
his/her decision−making process then it is impossible to know
whether the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or rubber−stamp reasons is not to
be equated with a valid decision−making process.
C/SCA/19024/2005 ORDER DATED: 13/12/2021
(m) It cannot be doubted that transparency is the sine qua non of
restraint on abuse of judicial powers. Transparency in
decision−making not only makes the judges and decision−makers
less prone to errors but also makes them subject to broader
scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987)
100 Harvard Law Review 731−37] .)
(n) Since the requirement to record reasons emanates from the broad
doctrine of fairness in decision−making, the said requirement is
now virtually a component of human rights and was considered
part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994)
19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of
Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to
Article 6 of the European Convention of Human Rights which
requires,
'adequate and intelligent reasons must be given for judicial
decisions.'
(o) In all common law jurisdictions judgments play a vital role in
setting up precedents for the future. Therefore, for development of
law, requirement of giving reasons for the decision is of the
essence and is virtually a part of due process. (emphasis supplied)
11. In view of the aforesaid situation, which is prevailing, instead of
deciding any other contentions which have been raised by the
petitioners as well as learned Assistant Government Pleader, this
Court is of the opinion that the only reason of non-compliance of the
principles of natural justice and non-assigning of reasons is sufficient
enough to quash and set aside the impugned order, hence other
issues need not be gone into since the authority to look into afresh.
However, since the authority has come to a conclusion, vide impugned
order, while quashing and setting aside the said exercise, as a
consequent thereof, the Court deem it proper to direct the authority to
take a fresh decision after dealing with the submissions which are
mentioned in the final defense version dated 22.4.2004, including the
issues which have been raised before it along with other material on
the file, and accordingly, this Court without expressing any opinion on
merit with regard to any other submissions would like to dispose of
the present petition on the following lines, which would meet the ends
of justice:-
C/SCA/19024/2005 ORDER DATED: 13/12/2021
(1) The impugned order dated 20.6.2005 is hereby quashed and
set aside and as a consequent thereof, the respondent
authority, is directed to pass a fresh order after dealing with
the submissions and the contentions which have been
reflected in the final defense version dated 22.4.2004 as well
as the other documents available on record and shall pass a
reasoned order after dealing with the same.
(2) Since the Court has set aside the impugned order only on
the count of non-assigning of adequate reasons and violative
of principles of natural justice, it is made clear that it is
independently open for the authority to take a fresh decision
strictly in accordance with law, without being influenced by
the present setting aside of the impugned order since the
Court has not expressed any opinion on other issues.
(3) It is made clear that the authority shall undertake this
exercise of taking fresh decision at the earliest, within a
period of THREE WEEKS from the date of receipt of the writ
of this Court.
12. Petition stands DISPOSED OF. Rule is made absolute to the
aforesaid extent.
Direct Service is permitted.
(ASHUTOSH J. SHASTRI, J)
OMKAR
