Chaturbhai H Dhalwania vs State Of Gujarat
2021 Latest Caselaw 18370 Guj

     C/SCA/7290/2013                            JUDGMENT DATED: 14/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7290 of 2013

FOR APPROVAL AND SIGNATURE:

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

2     To be referred to the Reporter or not ?                         YES

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

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

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                        CHATURBHAI H DHALWANIA
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
RULE SERVED(64) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 14/12/2021
                     ORAL JUDGMENT

1. In the present writ petition, the petitioner has sought a direction for quashing and setting aside the impugned order dated 02.01.2013 passed by the respondent No.4 as well as the inquiry report dated 18.01.2011. By the impugned order dated 02.01.2013, the petitioner has been imposed penalty of stoppage of two increments with future effect. It is not disputed that the aforesaid penalty falls within the "major penalty" as specified in the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1967.

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2.1 Learned advocate Mr.Nishit P. Gandhi appearing for the petitioner, at the outset, has submitted that the impugned order is required to be quashed and set aside on the ground of delay in initiation and completion of the departmental proceedings, since despite the directions issued by this Court in the order dated 19.02.2002 passed in Special Civil Application No.10934 of 2001 directing the respondent to complete the departmental proceedings preferably within a period of six months, the inquiry was prolonged for almost 10 years. In support of his submissions, he has placed reliance on the decision of this Court in the case of Kiritbhai Shankar Patel vs. State of Gujarat, 2019 (2) GLR 1079.

2.2 Learned advocate Mr.Gandhi, has submitted that after the aforesaid order of this Court dated 19.02.2002, in fact the inquiry officer was appointed on 17.12.2004 and thereafter first notice for hearing was issued on 17.04.2008, after a period six years from the date of order. Thereafter, the inquiry report was submitted on 18.01.2011. A show cause notice was issued on the petitioner on 29.10.2012. The petitioner immediately replied vide reply dated 23.11.2012 and the impugned order has been passed on 02.01.2013. Thus, he has submitted that the impugned order is required to be quashed and set aside.

2.3 Another aspect, which the learned advocate Mr.Gandhi has invited the attention of this Court, is with regard to not dealing with the reply dated 23.11.2012, which was filed by the petitioner pursuant to the aforeasid show cause notice dated 29.10.2012. He has submitted that though the impugned

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order refers to the reply dated 23.11.2012, the contents therein are absolutely not dealt with. In support of his submissions, he has placed reliance on the decision of this Court dated 22.11.2011 passed in Letters Patent Appeal No.1006 of 2006, more particularly he has relied on the paragraph Nos.3 and 4 thereof. Thus, he has submitted that the impugned order may be quashed and set aside.

3. In response to the aforesaid submissions, learned advocate appearing for the respondent Panchayat has submitted that in fact the entire inquiry has been held in accordance with law, after giving ample opportunity to the petitioner and hence, the impugned order may not be set aside. He has submitted that the petitioner was always informed about the next date of hearing by the inquiry officer and when it was found that the petitioner was responsible for the misconduct, as alleged in the charge-sheet, the impugned order imposing the penalty of stoppage of two increments with future effect was passed. Thus, he has submitted that the impugned order may not be set aside.

4. Having heard learned advocates appearing for the respective parties, the facts as noted hereinabove, there are two issues which arise for consideration before this Court, one is with regard to the delay in initiating and completion of the departmental proceedings and the second is with regard to the non-consideration of the reply filed by the petitioner to the final show cause notice dated 29.10.2012 issued to the petitioner. With regard to the aspect of delay, the Coordinate Bench in the case of Kiritbhai Shankar Patel (supra), after surveying various decisions of this Court, has held thus:-

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"5. Noticing the details of the departmental inquiry proceedings against the petitioner so as to appreciate the sole ground of delay raised by the petitioner to assail the inquiry and the punishment order, which are undisputed facts, charges were levelled against the petitioner in respect of alleged misconduct said to have occurred in year 1989-90. Inquiry was initiated in the year 2001 after a yawning gap of 10 years. The inquiry report came to be submitted by the inquiry officer in the year 2003, whereunder, as noted above, the petitioner came to be exonerated. The second show-cause notice regarding penalty was issued in the year 2010, since the disciplinary authority disagreed with the findings of the inquiry officer. In other words, it took 07 years between the inquiry report and the second show-cause notice asking the petitioner to show cause about the penalty. Finally, the order of penalty was passed imposing the cut in pension of Rs.300/- per month for six month was passed on 15th May, 2013. Therefore,three years delay occurred at this juncture also. The petitioner by the time had reached the age of superannuation to retire with effect from 31st December, 2012.

5.1 In Anant R. Kulkarni v. Y.P. Education Society [(2013) 6 SCC 515] the Supreme Court observed in paragraph 14 with regard to belated conduct of inquiry that whether the court would be inclined to quash the departmental proceedings on the ground of delay would depend upon the facts and circumstances of the case. It was observed that though ordinarily the court should not set aside the departmental inquiry or quashed the charges on the ground of delay in initiation in the proceedings, the test of prejudice caused by delay may be a overriding consideration. The court must weigh all the facts to finally make up its mind.

5.2 In M.V. Bijlani v. Union of India [(2006) 5 SCC 88] the issue of belated commencement of departmental inquiry was dealt with by the Apex Court. It was observed in the facts of the case that the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years. It was stated that thus initiation of the disciplinary proceedings as also continuation thereof after such a long time evidently prejudiced the delinquent officer.

5.3 The Supreme Court in State of M.P. v. BaniSingh [1990 Supp SCC738] also leaned towards quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus,

"The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they

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were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to thing that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage." (Para 4)

5.4 In P.V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636] the Supreme Court considered the aspect of delay of 10 years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the departmental proceedings on such distance of time would be very prejudicial to the appellant. It was observed that the appellant already suffered enough on account of inordinate delay. 5.5 Quashing the charge memo issued against the appellant and putting the departmental inquiry to an end, the Supreme Court observed thus, "The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-

95. But, Section 118of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 of the said Act relates to annual audit of account. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay." (Paras 8 to 10)

5.5.1 It was held that protracted action against government employee would operate prejudicial to him and has to be avoided:

"Under the circumstances, allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in

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public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer." (Para 12)

6. In the case of the petitioner, vice delay in the inquiry proceedings is manifest at every material stage. The allegations pertain to the year 1989-90 while the inquiry was initiated after delay of a decade. It took three years in completion of inquiry in which the petitioner was found not guilty in respect of charges levelled against him. The disciplinary authority took seven years in expressing disagreement with the findings of the inquiry officer. Travelled further were three years before final order of penalty was passed. Counting the total period of delay at each stage, it was after 20 long years that the petitioner was subjected with penalty in cut in the pension for Rs.300/-. By virtue of the factor of delay itself, the inquiry stood vitiated. The petitioner suffered a prejudice.

6.1 Therefore, the impugned order of penalty is required to be set aside on the aforesaid ground of delay in the inquiry. Consequently, the petitioner would be entitled to the second higher pay-scale as the penalty would stand obliterated.

7. In view of the above discussion and reasons, the petition deserves to be allowed. The order dated 15th May, 2013 passed by the disciplinary authority and Deputy Secretary, Narmada Water Resource and Kalpsar Department imposing penalty on the petitioner of cut of Rs.300/- in pension for six months is hereby quashed. As a result of setting aside of the penalty as above, the petitioner would stand entitled to the second higher pay-scale. Therefore, communications dated 07th August, 2014 and 15th July, 2015 reflecting the decision to deny the second higher pay-scale are set aside. The petitioner shall be extended the benefit of second higher pay- scale with effect from 07th August, 2002 and the arrears which may arise thereby shall be availed and paid to the petitioner within a period of eight weeks from the date of receipt of writ of the order of Court.

Petition stands allowed accordingly. Direct service is permitted."

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5. The Coordinate Bench, after considering the delay in initiation and completion of the departmental proceedings, has quashed and set aside the impugned orders imposing the punishment. The facts narrated here-in-below are not in dispute. The petitioner had filed Special Civil Application No.10934 of 2001, challenging the order of suspension. By the order dated 19.02.2002, the said writ petition was disposed of by observing thus.

"7. The grievance of the petitioner to the effect that no inquiry has been initiated appears to be of some substance. In the circumstances, it is directed that inquiry proceedings shall be initiated against the petitioner and they shall be completed as soon as possible and preferably within a period of six months from the date of receipt of this order ."

6. Thus, this Court had directed the respondents that the inquiry proceedings shall be initiated and completed as soon as possible preferably within a period of six months from the date of receipt of the order of this Court. Instead of initiating the departmental proceedings within a period of six months or within some reasonable time, as this Court used the expression preferably 'the respondents authorities issued the charge sheet on 28.05.2002' i.e. within a period of six months, however, the inquiry officer was appointed on 17.12.2004 I.e. after a period of approximately two years. Thereafter, it is glaringly disturbing that the notice for the first hearing of the departmental proceedings has been issued to the petitioner on 17.04.2008, after a passage of more than six years, from issuance of the charge-sheet. Ultimately the show cause notice was issued on 29.10.2010, after the completion of inquiry to the petitioner calling upon his explanation to the findings of the inquiry officer and accordingly, the petitioner replied the same on 23.11.2012 and the impugned order has been passed on 02.01.2013. Thus, there is a blatant violation of the

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directions issued by this Court with regard to the completion of inquiry, preferably within a period of six months. It appears that the respondents have construed the expression "preferably" very generously and has stretched the departmental proceedings for almost 10 years.

6.1 Thus, the impugned order is required to be quashed and set aside, as there is vice of delay in completion of the departmental proceedings and the petitioner has to undergo mental agony and suffering due to protracted disciplinary proceedings which would be more than the punishment of stoppage of two increments with future effect.

6.2 The second aspect is with regard to the dealing with the contentions raised by the present petitioner in his reply dated 23.11.2012, which was filed pursuant to the show cause notice issued on 29.10.2010. This Court has perused the reply dated 23.11.2012, the petitioner has comprehensively dealt with all the alleged misconducts as well as findings of the inquiry officer in his reply dated 23.11.2012. The impugned order dated 02.01.2013, though had item No.5 refers to the reply dated 23.11.2012, however the findings with regard to the contentions raised in the reply dated 29.10.2012 are absolutely missing. Except the incorporation of the charge- sheet against the petitioner, there is not a whisper with regard to the dealing with the contentions raised in the reply dated 23.11.2012. At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgment dated 22.11.2011 passed in Letters Patent Appeal No.1006 of 2006. The Division Bench has observed thus:-

"4. We have gone though the order passed by the authority. We

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do not find that he has considered the reply given by the petitioner to the show cause notice prior to passing of the impugned punishment order. Disciplinary authority is required to record some reasons and consider the points raised in the representation before passing the punishment order. In absence of any reasons, the impugned order of dismissal being no reasoned order, cannot be maintained. The other point raised by the learned counsel for the appellant is that the copy of the report of GPSC was not supplied to him which also vitiates the impugned order."

6.3 The Supreme Court in the case of Chairman, Life Insurance Corporation 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 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).

6.4 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 intense application of mind

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with reference to the material available on record. In the present case, the order of punishment passed against the respondent absolute fails the strictures laid down by the Apex Court. Hence, the same preciously set aside by the Tribunal.

7. Thus, the Supreme Court as well as Division Bench of this Court has held that there has to be application of mind with all the relevant aspects which are raised in the reply to the show cause notice and the formation of the opinion of the statutory authority should reflect intense application of mind. The impugned order is also required to be set aside on the said ground also.

8. For the foregoing reasons and analysis, the impugned order dated 02.01.2013 passed by the respondent No.4 imposing punishment of stoppage of two increments with future effect is hereby quashed and set aside.

9. It is reported that the petitioner has retired on 31.08.2019. The respondents are directed to re-fix the pay and pension of the petitioner and pay the arrears accordingly. Appropriate orders shall be passed within a period of one month from the date of receipt of this Court. Rule is made absolute to the above extent.

Sd/-

(A. S. SUPEHIA, J) MAHESH BHATI/72