Mr. N.K.Desai vs Gujarat Industrial ...
2022 Latest Caselaw 7752 Guj

      C/SCA/1714/2007                            JUDGMENT DATED: 09/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1714 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed               Yes
       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 ?

================================================================
                           MR. N.K.DESAI
                              Versus
      GUJARAT INDUSTRIAL DEVELOPMENTCORPORATION & 1 other(s)
================================================================
Appearance:
MR VISHAL B MEHTA(5319) for the Petitioner(s) No. 1
MR. MAYUR V. DHOTARE, ADVOCATE for M/S TRIVEDI & GUPTA(949) for
the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 09/09/2022
                             ORAL JUDGMENT

[1] This petition under Article 226 of the Constitution of India is

filed challenging the order passed by the Disciplinary Authority

dated 28.03.2006 and by the Appellate Authority dated 01.06.2006

inflicting the order of punishment upon the petitioner after inquiry.

       C/SCA/1714/2007                            JUDGMENT DATED: 09/09/2022




[2]      By the impugned order, the punishment is inflicted of stepping

down of Additional Assistant Engineer and withholding of two

increments with future effect.

[3] Learned advocate for the petitioner submitted that initiation of

inquiry against the petitioner was on a ground which was completely

non-existent. It is submitted that the petitioner was proceeded

against on the ground that the petitioner had recommended of

application made by one M/s. Rubi Coach Builders for drilling of bore

pump which was within the radius of 200 meters of the existing bore

of Gujarat Industrial Development Corporation (for short "GIDC"),

whereas the policy of the GIDC is to permit drilling of such bores

without there being any limit of 500 or 200 meters, however the

area of Vatva was exempted from such condition.

[3.1] It is submitted that the petitioner was not the final authority to

permit such installing of bore pump, but his superior officer has

granted such permission and therefore, the petitioner cannot be

proceeded against as if the petitioner had granted the permission. It

is submitted that in the year 2005, GIDC itself has given the

permission to M/s. Rubi Coach Builders and therefore, the petitioner

is being made scapegoat. As a result of this, the petitioner is

suffering huge financial loss as he has to suffer loss of increment as

well as being stepped down to the basic pay of Additional Assistant

Engineer.

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

[3.2] Learned advocate submitted that the petitioner is made a

scapegoat which is evident from the fact that the inquiry has been

initiated after a long time and therefore, delay should be treated as

fatal to the inquiry. It is submitted that the respondent has not

suffered any financial loss.

[4] As against this, learned advocate appearing for the

respondent-GIDC submitted that the petitioner was given a charge-

sheet and after due inquiry and following the principle of natural

justice, has been punished. It is submitted that the the

departmental inquiry was made of three specific charges of which

two charges were held to be partly proved and therefore, the major

penalty of dismissal was not inflicted, but punishment of stepping

down and withholding and increment has been inflicted. Therefore,

learned advocate submitted that as the petitioner is not challenging

the procedural aspect of it, the interference of the Court is therefore

limited to examine wether punishment is sufficient or not. It is

submitted that two charges were partly proved and therefore, the

punishment inflicted cannot be considered to be shockingly

disproportionate to as to warrant interference of this Court under

Article 226 of the Constitution of India. Learned advocate further

submitted that charge against the petitioner was not with regard to

grant of permission to drill a bore pump to a applicant namely M/s.

Rubi Coach Builders, but was the act of the petitioner to travel

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

beyond the scope of his duty and proposed a recommendation to

the superior officer who was misled into the grant of permission and

therefore, argument of the petitioner that the policy of the

respondent-GIDC to grant permission to drill a bore pump within the

radius of 500 meters or 200 meters, is of no consequence. It was

lastly submitted that it was on account of misleading representation

by the petitioner in the year 2005 that the applicant M/s. Rubi

Coach Builders took advantage and before giving final decision at

appropriate level, the bore was already dug and therefore, in the

year 2005, the GIDC had to grant permission post-facto.

[4.1] Reliance is placed upon on the decision of Supreme Court in

the case of Union of India and others v/s. P. Gunasekaran,

reported in (2015) 2 SCC 610 to emphasis the submission of

scope and interference in service matters in exercise of Article

226/227 of the Constitution of India.

[5] In rejoinder, learned advocate for the petitioner submitted

that though the claim of the respondent is that out of three charges,

two have been partly proved, but the charge-sheet issued to the

petitioner incldues only two charges and there was no third charge

mentioned and hence, the entire inquiry is required to be vitiated.

[6] As a counter, learned advocate for the respondent was

permitted to submit on the issue raised regarding the third charge

not being part of the charge-sheet served upon the petitioner, to

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

which he has submitted that such ground was not raised by the

petitioner. Not only that the petitioner was aware of the third charge

on account of various communications made petitioner has

answered such a charge and therefore has not been prejudicially

affected by non-mentioning of the third charge. It is submitted that

the GIDC has not suffered financial loss though the charge was

framed as such, but the inquiry has held that the charge not been

proved and therefore, only the punishment inflicted is with regard to

the stepping down and withholding of increment and no major

penalty of dismissal etc.

[7] The Court has heard learned advocates for the parties and

perused the documents placed on record. By way of additional

affidavit which is placed on record by the petitioner, certain

documents which include the relevant note which is the root of

initiating proceedings, such note has been placed at Annexure-III

alongwith the additional affidavit.

[8] The petitioner was working as Additional Assistant Engineer

with GIDC and at that stage apparently application was received

from one M/s. Rubi Coach Builders for drilling of bore-well within its

premises. It is not in dispute that the authority to grant such

permission for digging a bore-well lies with head office of the GIDC

and not with any Divisional Office, whereas on the basis of

application made by M/s. Rubi Coach Builders Company and

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

reminder given thereafter, the petitioner has initiated proposal and

in the notings made by him, he has recommended to immediate

superior, Executive Engineer that in anticipation of permission from

GIDC, conditional permission for drilling a bore-well can be given to

the applicant M/s. Rubi Coach Builders. Apparently, such permission

was given by the Executive Engineer and therefore, the charge

against the petitioner was that despite the authority to grant

permission for a bore-well in M/s. Ruby Coach Builders, Naroda, Plot

No.55 to 60, Naroda lies with the Head Office, the petitioner

presented the remark, in which, the petitioner made representation

to grant temporary permission while the head office decides for the

permission and despite the proposed private bore-well was to be

constructed at a distance of 200 metre from the existing bore-well

of GIDC, the petitioner recommended a temporary permission and

misled the Executive Engineer. hence, despite the authority to grant

this permission lies with the Vice-Chairman and Managing Director

as per Circular No.74/91 dated 11/04/1991, the petitioner violated

the circular of the Head Office and obtained permission from the

Executive Engineer against the rules and regulations of GIDC and

thereafter, have not undertaken any process to obtain permission of

the Head Office, which shows indiscipline and deliberate action by

the petitioner.

       C/SCA/1714/2007                         JUDGMENT DATED: 09/09/2022




[9]      In this connection, the petitioner was given a charge-sheet

dated 21.06.2001 and was given a period of 30 days to give his

response. The petitioner submitted his response on 27.08.2001,

where his basis contention was that the permission was given not

by him, but his superior officer and that he had made a

recommendation for giving conditional permission in an anticipation

of such permission being given by the head office. With regard to

the second charge of financial loss, it was pointed out that the

private bore was installed by the applicant company within its

premises at their own cost and therefore, there is no question of any

financial loss to the GIDC. It appears from the record that as the

response of the petitioner did not satisfy the respondent-GIDC, an

order dated 22.07.2005 was passed for initiating inquiry, wherein

three charges were ordered to be inquired. This order was

communicated to the petitioner and the third charge in the

aforesaid order was that the petitioner had committed a clear

breach of Sections-24, 25 and 26 of the (Staff) GIDC Regulations -

1963y by such ultra vires action.

[10] It appears that the inquiry was duly concluded and an order

dated 28.03.2006 came to be passed, wherein two charges were

held to be partly proved and the charge of monetary benefit was not

proved. Accordingly, by aforesaid order, the punishment came to be

inflicted by which the petitioner was held guilty and imposed

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

penalty of stepping down the petitioner to minimum basic pay of

Additional Assistant Engineer (Rs.5500-175-9000), i.e. Rs.5500/- and

stoppage of two increments with future effect.

[11] The appeal came to be preferred by the petitioner

departmentally and by an order dated 01.06.2006, the order of

punishment was confirmed and assigned certain reasons and upon

satisfaction by the appellate authority.

[12] The main argument of the petitioner is that ultimately in the

year 2005, the permission was given by the head office for the

purpose of bore-well vindicates the stand of the petitioner. However,

the charge against the petitioner was not with regard to the grant of

permission to drill a bore within a particular radius, but the charge

against the petitioner was to initiate proceedings for grant of

permission without any authority. From the evidence, it was held

that it was the petitioner who had made a note/remark on the

application of M/s. Rubi Coach Builders, wherein the petitioner has

recommended grant of conditional permission in an anticipation of

final permission by the head office. Therefore, it is clear that the

authority to grant such permission led with the head office, whereas

on account of the proposal made by the petitioner on the

application cleverly wording in such a fashion so as to mislead his

immediate superior officer to grant such a permission without there

being any authority. This conduct during the course of inquiry is

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

apparently proved however, the petitioner has not brought anything

on record that such a finding is perverse finding and not in

consonance with the evidence on record. The post-facto permission

given in the year 2005 cannot be considered to be a fact which

would exonerate the petitioner for the misconduct for which he has

charge-sheeted.

[13] With regard to the submission made by the learned advocate

regarding financial loss occurred to GIDC, it is already on record

that though the petitioner was facing with such charge during the

course of inquiry and such charge is not held to be proved and

therefore, only penalty to limited extent has been inflicted.

[14] Learned advocate has argued that the entire inquiry is to be

vitiated on the ground that the charge-sheet did not contain the

third charge which was also to be partly proved. Perusal of the

charge-sheet thus indicates that the charge mentioned only two

charges however, it would be pertinent to note that the order of

initiating inquiry dated 22.07.2005 served upon the petitioner

specifically mentioned all the three charges for which inquiry is to

be initiated. The petitioner being aware of such all the three charges

had participated in the inquiry and at no stage raised such a

contention and even before this Court, no such contention is

pleaded and therefore, in the opinion of the Court, no prejudice is

caused to the petitioner merely on account of absence of one

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

charge in the charge-sheet.

[15] With regards to the contention of delay, the reliance is placed

upon the decision of this Court in case of G.M.Gohil, Deputy

Executive Engineer, Bharuch v/s. Gujarat Housing Board,

reported in 2019 (4) GLR 3251 it would be appropriate to observe

that delay in the aforesaid case was of nine years in completing

proceedings after the service of charge-sheet and the charge-sheet

was served after two and half years after the incident. Not only that

the Court has also taken into consideration the fact that the Inquiry

Officer had conducted the inquiry in biased manner for which reason

the inquiry was held to be vitiated. In the present facts of the case,

notings made by the petitioner which has led to this inquiry was on

15.12.1998, based on which the proposal travelled till the Executive

Engineer, who has forwarded proposal on 21.12.1998 at the same

time granting conditional permission. However, the entire episode

came to light later on and thereafter, immediately the petitioner has

been issued with the charge-sheet in the year 2001. The Court does

not find that there was a gross delay in initiating inquiry against the

petitioner.

[15] In so far as the jurisdiction of this Court to undertake judicial

review in departmental inquiry proceedings, the Apex Court in case

of P. Gunasekaran (Supra) has laid down the principal which

would read as under:-

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair

conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

[16] At this stage, it would be pertinent to refer to the Gujarat

Industrial Development Corporation (Staff) Regulation, 1963,

wherein Regulation No.40 provides for penalties. Regulation 40

defines minor penalties as Censure, Fine, Withholding of increment

or promotion, Recovery from pay of the whole or part of any

pecuniary loss caused to the Corporation by negligence or breach of

orders, whereas major penalties are reduction in rank including

reduction to a lower post or time scale or to a lower stage in time

scale, compulsory retirement, removal from service not

disqualifying for future employment, and lastly dismissal from

service disqualified from future employment. In the opinion of the

Court, the inquiry was initiated on the basis of one incident and

different phases of the same incident were broken into three

charges for which the inquiry was conducted and punishment was

inflicted. The punishment thus inflicted is firstly to step down the

petitioner to the basic pay of Additional Assistant Engineer and the

second part of withholding of two increments with future effect. In

the opinion of the Court, these two punishments are clearly defined

under Regulation 40 as two separate independent punishments, one

C/SCA/1714/2007 JUDGMENT DATED: 09/09/2022

punishment is falling in minor penalty, whereas other falling in

manor penalties. In the opinion of the Court, for one inquiry initiated

against the petitioner for charges arising out of one incident, two

punishments could not have been inflicted and therefore, in the

opinion of the Court, the impugned punishment order is inflicting

dual punishment. It is observed that there is no clarification in the

order of Disciplinary Authority as well as Appellate Authority that

two separate punishments are inflicted by treating each charge as

substantive charge capable of being punished individually. In the

absence of any such explanation on record, in the order as well as in

the pleadings, the Court deems it fit to modify the order of

punishment by quashing and setting aside of the impugned order of

punishment to the extent of minor penalty of withholding of two

increments with future effect. The remaining part of the impugned

order by the Disciplinary Authority as well as Appellate Authority

stands confirmed.

[17] With the aforesaid observations, the petition stands partly

allowed. Rule is made absolute to the aforesaid extent.

(A.Y. KOGJE, J) SIDDHARTH