D B Jethva vs State Of Gujarat
2021 Latest Caselaw 18486 Guj

      C/SCA/4472/2010                        ORDER DATED: 16/12/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 4472 of 2010


=============================================
                              D B JETHVA
                                Versus
                   STATE OF GUJARAT & 1 other(s)
=============================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR.K.M.ANTANI, AGP (1) for the Respondent(s) No. 1
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 2
=============================================

 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                         Date : 16/12/2021

                           ORAL ORDER

[1] By way of this petition under Article 226 of the

Constitution of India, the petitioner has challenged the

legality and validity of the impugned orders passed by

authorities below dated 18.02.2008 as well as dated

22.10.2008 at Annexures A and B respectively.

[2] The case of the petitioner is that the petitioner has

joined the service of respondent authority on 03.06.1971

on the post of Agriculture Supervisor and during the

passage of time, petitioner was also promoted to the post

of Joint Director of Agriculture. The petitioner has retired

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on attaining the age of superannuation on 30.06.2005. It

is the case of the petitioner that while working as Deputy

Director, Horticulture, he was served with the charge-

sheet on 12.12.2003 for alleged misconduct committed by

him and the said charge-sheet was replied by way of

tendering defence statement on 12.01.2004, ultimately,

after considering the defence statement of petitioner,

authority was pleased to appoint an Inquiry Officer vide

order dated 11.03.2004. On 21.04.2004 as well as on

30.04.2004, the petitioner made a request to supply

certain relevant documents so as to see that proper

defence be presented. However, the said request has not

been acceded to which has given rise to filing of detailed

representation to Inquiry Officer on 26.10.2004.

[2.1] It is further the case of the petitioner that after

conducting regular departmental inquiry, a report was

prepared by Inquiry Officer on 31.12.2004 holding that the

charges levelled against the petitioner are partly proved

and the said inquiry report was submitted by respondent

authority to the petitioner alongwith the show-cause

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notice dated 04.03.2005. The petitioner replied to the

said show-cause notice on 28.03.2005 and based upon the

material including the report of the inquiry, disciplinary

authority was pleased to pass an order of penalty on

18.02.2008 imposing punishment of pension cut of

Rs.700/- per month for a period of three years.

[2.2] The petitioner has preferred an appeal / review

before the appellate authority on 01.04.2008, however,

the appellate authority has rejected the same vide order

dated 22.10.2008. The petitioner being aggrieved by the

said decision passed by the respondent authority has

approached this Court by way of present petition under

Article 226 of the Constitution of India.

[3] The petitioner appears to have been admitted vide

order dated 12.04.2010 and thereafter, has come up for

consideration today before this Court in which Mr. Vaibhav

A. Vyas, learned advocate has represented the petitioner

and Mr. K. M. Antani, learned Assistant Government

Pleader appearing for the respondent authority.

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[4] It is contended by Mr. Vaibhav A. Vyas, learned

advocate that the entire inquiry has been conducted at

the instance of respondent No.2 as he was having a

personal grudge with petitioner and element of bias is

clearly reflecting from not only the proceedings but from

the assertion which has also been made from paragraph

Nos. 4.2 to 4.8 and as such on account of this bias attitude

the petitioner has been dealt with and ultimately made to

face with the penalty.

[4.1] It has been submitted that petitioner is an innocent

person, has not committed any such illegality nor

irregularity, as mentioned. On the contrary, a detailed

explanation has been submitted by way of defence

statement which has not at all being considered by the

disciplinary authority while passing the impugned orders.

[4.2] Mr.Vyas, learned advocate has submitted that it is

trite law that every exercise of jurisdiction or powers,

either it is administrative, quasi judicial or judicial must be

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backed by proper and cogent reasons and must reflect an

application of mind. Ex facie, a bare perusal of both orders

would clearly indicate that none of the stand which have

been taken by the petitioner has been dealt with by any of

the authorities who passed the impugned orders. For

substantiating this contention, Mr. Vyas, learned advocate

has drawn the attention of this Court to a decision in origin

dated 18.02.2008 reflecting on page 18 and has submitted

that by 3 - 4 lines only the penalty order is passed which is

quite visible from page 19 of petition compilation and

same is exercise by even appellate authority which is

clearly reflecting on page 218 of petition compilation.

According to Mr. Vyas, learned advocate that both the

authorities have not applied their mind to the core issues

which are raised in defence as well specific contention in

appeal / review memo. As such on this ground of non

application of mind and non dealing of submission and

contentions, the order requires to be quashed and set

aside.

[4.3] For this submission, Mr. Vyas, learned advocate has

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drawn the attention of this Court to a decision of Hon'ble

Apex Court in the case of State of Orissa and others

versus Chandra Nandi reported in (2019) 4 SCC 357.

[4.4] Mr.Vyas, learned advocate has further submitted that

apart from the contention of non application of mind, a

perusal of defence if to be looked into which clearly

indicate that even on merit also, the case is not made out

for the purpose of imposition of penalty against the

petitioner and findings which are recorded even by the

authorities are not supported by proper material. As a

result of this, the orders passed by the authorities requires

to be quashed and set aside.

[4.5] Mr. Vyas, learned advocate has further submitted

that the authorities have not supplied even the advice of

GPSC before passing an order of penalty and that also

vitiates the exercise of jurisdiction by the authority. Mr.

Vyas, learned advocate has candidly submitted that no

doubt this point is not taken by the petitioner during the

course of appeal / review nor even in this petition but the

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same can be examined since it is a question of law. Mr.

Vyas, learned advocate has further submitted that

irrespective of the fact whether delinquent is raising this

issue or not but it was incumbent upon authority to at

least look into such kind of legal requirements when the

order of penalty is to be passed based upon advice of

GPSC having not done so the action initiated is violative of

statutory provisions.

[4.6] Mr. Vyas, learned advocate has further submitted

that even on merit if a perusal of the record to be seen

whatever payments which have been released is based

upon the policy which is framed by the authority and the

payment was to be released was on the basis of square

feet area of the godown which fact has not been dealt with

by the authority at all. On the contrary, the policy if to be

perused the defence version of the petitioner requires

minute examination having not done so the authority has

completely shown the non application of mind while

passing an order of penalty.

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[4.7] By drawing attention to some of the documents and

an attempt is made by learned advocate to indicate that

proper procedure which is required to be observed under

the provisions of disciplinary appeal rules have also not

been observed and as such the entire exercise undertaken

by the authority is violative of provision applicable.

Hence, the impugned orders are required to be quashed

and set aside.

[4.8] At this stage, by referring to, Mr. Vyas, learned

advocate has submitted that in any case all these issues

which are required to be gone into by the authority at an

appropriate stage which have not been considered at all

which can be seen from the orders impugned in the

petition and as such on this ground alone of non

application of mind and non assigning of cogent reasons

and non dealing of contentions, the impugned orders are

required to be quashed and set aside.

[4.9] At this stage, Mr. Vyas, learned advocate has further

submitted that the petitioner has retired long back and if

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sending the matter back for consideration would lead to

another round of litigation and as such has requested that

by setting aside the impugned orders the effect of same

be given to the petitioner. However, has candidly

submitted that if ultimately a time scheduled is prescribed

by the Court for deciding the matter a fresh by the

authority after dealing with the contention and the

circumstances pointed out in this defence, the learned

advocate has left it to the discretion of the Court.

[5] As against this, Mr. K. M. Antani, learned Assistant

Government Pleader appearing on behalf of the authority

has submitted that the impugned orders in origin as well

as the appellate authority are being due application of

mind and to pass an order of penalty is merely

administrative exercise and therefore, detailed reasons

are not required to be assigned and even if that be so the

same may not be a ground to set aside the impugned

orders without much resistance on the issue of non

assigning of reason, learned AGP has left it of the

discretion to the Court to pass suitable order in the

interest of justice.

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[6] No other submissions have been made by learned

advocates appearing on behalf of the respective parties.

[7] Having heard learned advocates appearing for the

parties and having gone through the material on record, it

appears to this Court that prima faice the orders passed

by the authorities are without dealing with any of the

stand taken by the petitioner without dealing with

contention raised by the petitioner even in appeal / review

memo and both the authorities have not passed a

reasoned order, which can be seen from the orders itself

and as such this Court is of the clear opinion that the

authority while passing an order and exercising

jurisdiction has not properly taken care of the settled

position of law when the exercise of power is in direction

of inflicting penalty upon an employee, at least some

application of mind must be reflected. A detailed defence

which has been raised before the disciplinary authority as

well as detailed submissions which have been mentioned

even in appeal / review memo are sufficient enough to

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indicate that the same have not at all been dealt with as

can be apparently seen from the tenure of the orders. As

a result of this, on this count alone, the Court is satisfied

that contention raised by the petitioner about non

application of mind and non assigning of reasons is made

out clearly.

[8] At this stage, the Court is reminded of the proposition

on the issue of assigning of reason reflecting in a decision

of Hon'ble Apex Court in the case of Nareshbhai

Bhagubhai and others versus Union of India and

others reported in (2019) 15 SCC 1. The efficacy and

significance of the reasons are clearly observed by the

Hon'ble Apex Court as inevitable in every exercise of

discretion. Few observations contained in paragraph 25

are since considered, the Court deems it proper to

reproduce hereunder:

"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

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this Court recognised a sort of demarcation between administrative orders and quasijudicial 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 India.

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 quasijudicial 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 quasijudicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decisionmaker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decisionmaking process as observing principles of natural justice by judicial, quasijudicial 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 decisionmaking justifying the principle that reason is the soul of justice.

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(i) Judicial or even quasijudicial 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 quasijudicial authority is not candid enough about his/her decisionmaking 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 "rubberstamp reasons" is not to be equated with a valid decisionmaking process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decisionmaking not only makes the judges and decisionmakers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.)

(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, EHRR, at 562 para 29 and Anya v. University of Oxford, 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".

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(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)"

[9] At this stage, Mr. Vaibhav A. Vyas, learned advocate

for the petitioner has submitted that instead of relegating

matter back to the authority, the court may undertake an

exercise of examining the contention of the petitioner and

decide, but in view of the intricacies of factual matrix and

the allegations which are related to financial affairs, the

court is not inclined act as a fact finding authority and the

same can be dealt with and examined by an appropriate

authority. Hence, the Court is not inclined to accept the

suggestion which has been made by the learned advocate

as the same would outside the purview of jurisdiction of

this Court.

[10] In the aforesaid circumstances and in view of the

proposition of law laid down by the Hon'ble Apex Court,

the Court is of the opinion that the order in question

requires to be quashed and set aside on this count alone

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leaving it open for the petitioner to convince the authority

on the other issues which are raised in the petition since a

fresh decision is to be taken by the authority pursuant to

the present order and direction which are given

hereunder:

(i) The impugned orders dated 18.02.2008 at Annexure-

A, reflecting on page 18 as well as order dated 22.10.2008

reflecting on page 218 are hereby quashed and set aside

with a consequential direction upon respondent authority,

namely, respondent No.1 to take a fresh decision after

giving due opportunity to the petitioner and after

considering every circumstance which is reflecting in the

defence version as well as the contentions which have

been raised at length.

(ii) Since the petitioner has by now reached the age of

superannuation long back, such exercise of taking fresh

decision deserves to be undertaken as early as possible

within a period of three months from the date of receipt of

writ of this order.

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(iii) It is made clear that since the order in question are

quashed and set aside on this count alone, the Court has

not expressed any opinion on the merit with regard to

other issues raised in the petition and it was would be

independently open for the authority to examine, dealt

with and decide the same by assigning cogent reasons.

[11] With these observations and directions, present

petition stands disposed of.

Direct service is permitted.

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR