District Development Officer vs V C Vyas
2022 Latest Caselaw 5597 Guj

       C/LPA/517/2022                            ORDER DATED: 28/06/2022



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 517 of 2022
                               In
          R/SPECIAL CIVIL APPLICATION NO. 7499 of 2010

                             With
     CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
                              In
           R/LETTERS PATENT APPEAL NO. 517 of 2022
=============================================
                        DISTRICT DEVELOPMENT OFFICER
                                    Versus
                                   V C VYAS
=============================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
MS DIVYANGNA JHALA, AGP Respondent(s) No. 2
MS VACHA J NANAVATI(6588) for the Respondent(s) No. 1
=============================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 28/06/2022

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Admit. Learned advocate Ms. Vacha J. Nanavati waives

service of notice of admission on behalf of the respondent

No.1. With the consent of learned advocates of both the sides

the appeal is taken up for final hearing forthwith.

2. The order under challenge in this appeal under Clause-15

of Letters Patent is an order dated 16.12.2021, passed by

learned Single Judge in captioned writ petition, by which,

learned Single Judge has quashed and set aside the orders

C/LPA/517/2022 ORDER DATED: 28/06/2022

dated 18.01.2007 and 20.04.2007 passed by the Authority and

judgment and order of Gujarat Civil Services Tribunal dated

22.02.2010, by which, the penalty of compulsory retirement

was imposed on original petitioner.

3. The short facts arise from the record are as under:

3.1 The respondent-original petitioner was appointed as

Talati/Clerk on 13.06.1978 and remained on that post till he

was compulsorily retired by virtue of the order dated

18.01.2007. During his tenure, he was faced with a charge-

sheet dated 14.10.2002. The charges were in relation to the

financial irregularities noticed and in respect of negligence

towards the assistance provided to the persons affected by

earthquake in the year 2001. Written statement of defense

was filed by the respondent on 31.03.2003 refusing all the

charges leveled against him and later on, Inquiry Officer was

appointed to conduct an inquiry, which was proceeded and

ultimately resulted into the submission of report on

20.02.2006, in which the Inquiry Officer has held that the

charges leveled are proved against the respondent.

3.2 Subsequently, pursuant to the said report, the

Disciplinary Authority agreed with the findings of the Inquiry

Officer and issued a show cause notice on 02.03.2006, calling

C/LPA/517/2022 ORDER DATED: 28/06/2022

upon the respondent, to show cause as to why penalty under

sub-Rule (6) of Rule 6 of the Gujarat Panchayat Services

(Discipline & Appeal) Rules, 1997 should not be imposed.

Accordingly, the respondent submitted reply dated

06.03.2006, indicating that the respondent is not the sole

person to be held responsible and in the said reply, the

allegations have been denied and the findings are also

opposed by the respondent. Ultimately on 12.07.2006, as per

the requirement, the Gujarat Panchayat Service Selection

Board (GPSSB) was approached for the purpose of taking

advice in respect of the proposed penalty, as indicated in the

show cause notice. It is stated that the proposed penalty,

which is reflecting the minimum of pay scale, that is to say

Rs.3,050/- till his retirement, and on this proposed penalty, the

Board was approached for the purpose of advice.

Subsequently, the GPSSB vide letter dated 10.01.2007 advised

the Disciplinary Authority to impose penalty of compulsory

retirement to the petitioner and after relying upon and getting

advice from the Board, the Disciplinary Authority has passed

an order of penalty on 18.01.2007, as a result of which, a

substantive appeal came to be filed by the respondent-

delinquent before the office of the Appellant i.e. District

Development Officer, Surendranagar. However, the said appeal

C/LPA/517/2022 ORDER DATED: 28/06/2022

came to be rejected vide order dated 20.06.2007. Against the

said order of the Appellate Authority, the respondent

approached the Gujarat Civil Services Tribunal, Gandhinagar

by way of a further appeal being No.213 of 2007, which came

to be dismissed by way of judgment and order dated

22.02.2010.

3.3 Being aggrieved with the said decision, the petition came

to be filed by the respondent (original petitioner).

3.4 Pursuant to the notice issued in the writ petition,

affidavit-in-reply was filed by the present appellant opposing

the reliefs prayed by the original petitioner. The learned Single

Judge after having considered the case, allowed the petition.

The relevant paragraphs of the said order dated 16.12.2021

read as under:

"13. In view of the aforesaid discussion, what has been emerging from the record undisputedly is that the penalty which has been proposed was lesser than what has been inflicted upon and the penalty which has been inflicted upon of compulsory retirement is based upon and considering the advice of GPSSB. Such advice has undisputedly not been supplied to the delinquent employee prior to passing of an order which is quite evident from the record. This fact has also not been touched even by the authority while preferring affidavit-in-reply nor has been has been canvassed or discussed or submitted before

C/LPA/517/2022 ORDER DATED: 28/06/2022

Court by learned advocate during the course of hearing of the present case as well.

14. On the contrary, the aforesaid fact since well supported by the afore-mentioned statement of law propounded by serious of decisions, this Court is of the considered opinion that the petition deserves to be allowed on this count alone and there is no necessity to go into the other issues which are mentioned before the Court by learned counsel appearing for the authority for opposing the petition.

15. At this stage, learned advocate Mr. Munshaw who submitted that when the show cause notice is indicating any of the penalty out of Rule 6 which may be imposed upon by the authority, there is no necessity for the department to supply the advice since compulsory retirement is one of the penalties which is prescribed in Rule 6. However, the Court has specifically noticed even during the course of submission that Mr. Munshaw has not pointed out to the Court nor assisted by indicating that after supply of the reply by the petitioner, what has been proposed by the Deputy District Development Officer in communication dated 12.7.2006 is something else than what has been mentioned in the general show cause notice which has been served prior thereto. The Court has also specifically noticed that the penalty which has been proposed is increased by the authority on the basis of the advice and consideration of the advice of the GPSSB and as such, the contention which has been raised specifically is clearly made out by the petitioner. On this count alone, the petition deserves to be allowed."

3.5    Hence, this appeal.





      C/LPA/517/2022                       ORDER DATED: 28/06/2022

4. Learned advocate Mr. Munshaw, appearing for the

appellant, would submit that learned Single Judge, while

accepting the case of original petitioner (respondent herein)

about not following the procedure prescribed under the Gujarat

Panchayat Service (Discipline & Appeal) Rules, 1997 ought not

to have quashed and set aside the order, by which, the original

petitioner-respondent was compulsorily retired after accepting

the inquiry report from the officer, who was appointed to deal

with the case of the respondent. He would submit that learned

Single Judge ought to have remanded the matter, in view of

the fact that the authority has not followed the procedure

prescribed under sub-Rule 12 of Rule-8 of the aforesaid Rules.

He would submit that as per Rule 6 of Panchayat Services

Selection Board (Consultation) Rules, 1998, before imposing

any major penalty provided under Rule-6 of the Services Rules,

1997, the Committee is supposed to have been advised by the

Board to proceed under the Panchayat Act. He would submit

that as per the said procedure, such advice was sought by the

communication dated 12.07.2006, by which, the Committee

thought it fit to impose penalty by putting the respondent in

minimum pay-scale as a Junior Clerk. However, the Board, by

communication dated 10.06.2007, asked the Panchayat to

impose major penalty of compulsory retirement as provided

C/LPA/517/2022 ORDER DATED: 28/06/2022

under sub-Rule 4 of Rule-6 of the Services Rules, 1997.

4.1 He would further submit that the said report received by

the Panchayat was not served to the respondent, as provided

under sub-Rule 12 of Rule-8 of Services Rules, 1997 and

therefore, learned Single Judge, having found the breach of

that provision could have quashed the order and the matter

ought to have been remitted to the authority and ought to

have asked the appellant to proceed with the inquiry from the

stage of representation of the respondent after supplying the

advice of the Board by communication dated 10.01.2007.

4.2 He would further submit that the appellant is ready and

willing to proceed with the inquiry from stage of representation

of the respondent under sub-Rule 12 of Rule-8 of Services

Rules,1997. He, therefore, would submit that the order passed

by learned Single Judge be modified accordingly.

5. On the other side, learned advocate Ms. Vacha Nanavati

has opposed the Appeal and submitted that learned Single

Judge has relied upon the decision of this Court in case of B.J.

Jadav Vs. State of Gujarat, reported in 2005(2) GLH 334.

She has further submitted that learned Singe Judge has

committed no error in allowing the petition in toto.

       C/LPA/517/2022                         ORDER DATED: 28/06/2022




5.1    She would further submit that if this Court is of the

opinion to remand the matter to the authority for fresh

adjudication, some time limit may be framed, since the

respondent has reached the age of superannuation.

6. We have heard learned advocates appearing for the

respective parties at length. After following the procedure up

to issuing second notice of imposing penalty and receiving the

reply from the respondent, the appellant decided to impose

major penalty, communication dated 12.07.2006 was sent as

per the Panchayat Services Selection Board (Consultation)

Rules, 1988 for its approval and for advice as provided under

Rule 6 of the Consultation Rules, 1988.

6.1 The Board asked the appellant to impose major penalty

of compulsory retirement by communication dated 10.01.2007.

6.2 Sub-Rule 12 of Rule-8 of Gujarat Panchayat Services

(Discipline and Appeal) Rules, 1997 which deals with the

procedure of imposing major penalty reads as under:

"sub-Rule 12 of Rule-8:

(a) In every case in which it is necessary to consult the Board in accordance with the rules framed in that behalf the record of the inquiry shall be forwarded by the

C/LPA/517/2022 ORDER DATED: 28/06/2022

disciplinary authority to the Board for its advice. On receipt of the advice, the disciplinary authority shall consider the representation if any, made by the person charged, and the advice given by the Board and determine what penalty should be imposed on the person charged and pass appropriate orders in the case.

(b) In a case in which it is not necessary to consult the Board or the Selection Committee, the disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine what penalty, if any, should be imposed and shall pass appropriate order on the case."

6.3 The provision of the aforesaid Rule makes it clear that

after receipt of the advice, the Disciplinary Authority is

supposed to consider the representation, if any, made by the

person charged. In the present case, the advice was never

served to the respondent, and therefore, respondent had no

authority to make representation, and therefore, learned

Single Judge has rightly quashed and set aside the orders.

However, we are of the opinion that the learned Single Judge,

instead of allowing the petition in toto, after quashing the

order impugned should have remanded the matter and asked

the Disciplinary Authority to proceed further with the inquiry

and should have decided after serving the advice and giving

opportunity of representation to the respondent.

C/LPA/517/2022 ORDER DATED: 28/06/2022

7. Hence, we are of the opinion that Appeal requires

consideration in part, as far as the quashment of the orders

impugned in the petition are concerned, and we upheld the

same on the ground that the case has been decided without

following principle of natural justice.

8. The appellant shall serve a communication dated

10.01.2007 received by it from the Board to the respondent.

The respondent may file his representation within a period of

two weeks. Thereafter, the Authority shall proceed in

accordance with law and shall decide the case as early as

possible, preferably within a period of three months from the

date of receipt of the representation by the respondent.

With the above directions, the Appeal is disposed of.

There shall be no order as to costs.

It is hereby made clear that we have not examined other

aspects of the matter including the factual facts of the case.

Connected Civil Application is disposed of accordingly.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) T. J. Bharwad