Gujarat High Court

Ratilal Jivanlal Aarya vs State Of Gujarat on 28 April, 2023

Bench: Aniruddha P. Mayee

     C/SCA/12762/2008                                   ORDER DATED: 28/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12762 of 2008
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                        RATILAL JIVANLAL AARYA & 6 other(s)
                                      Versus
                          STATE OF GUJARAT & 5 other(s)
==========================================================
Appearance:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR RAHUL K DAVE(3978) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR.AYAAN PATEL, AGP for the Respondent(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                 Date : 28/04/2023
                                  ORAL ORDER

1. The present Special Civil Application has been filed

praying for the following reliefs:-

"a. Your Lordships be pleased to admit this petition; b. Your Lordships be pleased to issue the writ of mandamus or any other appropriate writ, direction and/or orders that the order of the respondent no.3 dated 18.12.2007 and 25.08.2008 for recovery of Rs.1,45,925/- from the petitioners and the directions of respondent no.2 for such recovery in his letter dated 07.04.2006 addressed to the respondent no.3 be declared unconstitutional, contrary to the settled law, ultra virusand be quashed and set aside.

c. Your Lordships be pleased to issue the writ of mandamus or any other appropriate writ, direction and/or orders that pending admission, hearing and final disposal of the petition the operation of the order of the respondent no.3 dated 18.12.2007 and 25.08.2008 for recovery of Rs.1,45,925/- from the petitioners and the directions of respondent no.2 for such recovery in his letter dated 07.04.2006 addressed to be

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respondent no.3 be stayed.

d. The petitioners have not been with the copy of the order of the respondent no.2 being letter No.Ji Pan/MM/MKM-2/448-450 dated 07.04.2006 and therefore the same could not be produced herein. The respondent no.3 has passed the orders under challenge dated 18.12.2007 has relied upon these orders of the respondent no.2. The orders/letters dated 18.12.2007 and 25.08.2008 by the respondent no.3 are produced. Therefore, the production of the letters dated 07.04.2006 may kindly be dispensed with. The petitioners reserve right to meet with the order of the respondent no.2 dated 07.04.2006 as and when those are received or produced in this proceedings. e. Your Lordships be pleased to grant any other reliefs as they me be necessary in the facts and circumstances etc."

2. The factual matrix in the present case is that the

complaint came to be filed by the complainant i.e. Gajubhai

Chaudhari, who was the Taluka Development Officer, Amod,

District Bharuch on 10.12.1995 wherein it was alleged that a

scheme for construction of residential premises was floated by

the State Government for persons belonging to Scheduled

Tribe, for which the Notification dated 01.08.1989 was issued

by the Department of Social Welfare, Government of Gujarat.

That, as per the said notification, limit of financial assistance

and the amount of loan was fixed to be disbursed to such

persons belonging to the Scheduled Tribe and it was the

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responsibility of the concerned officer, employees and office

bearers to implement the scheme to the beneficiaries of

villagers of Acchhod, Chaklad, Kobla, Danda and Sudhodara of

Amod Taluka, Bharuch District and in the cases of these

villages, amount was sanctioned and draft was issued by the

Social Welfare Department of the Panchayat. On an inquiry

being made by the Treasury Officers about the identification of

the bearers of the drafts, it came to the notice of Higher Official

that there was some discrepancy and therefore, the District

Development Officer was directed to inquire into the matter.

Pursuant to the said order, the District Development Officer

inquired into the same and during the inquiry in respect of the

beneficiaries of villages i.e Acchhod, Chaklad, Kobla, Danda and

Sudhodara, it was revealed that a sum of Rs.12,475/- was

misappropriated and there was an attempt made to

misappropriate a further amount of Rs.1,45,925/-. According to

the allegations made in the complaint, all the petitioners were

accused and they hatched the alleged conspiracy to

misappropriate the funds allocated to the scheme which was to

be disbursed as building aid. On the basis of such inquiry, a

complaint came to be filed on registration of F.I.R. and

first investigation was carried out. According to the

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Investigating Officer sufficient incriminating evidence was

found against the petitioners and all of them came to be

charge-sheeted before the Civil Court, Bharuch. The

petitioners came to be tried for the said offences and the

learned Trial Court convicted the petitioners herein for the

offences alleged and sentenced them to rigorous imprisonment

for the period of three years to ten years for various offences.

Accordingly, the petitioners accused filed appeals before this

Court which came to be admitted. Accordingly, the petitioners

were given show-cause notices for conducting departmental

inquiries and the petitioners duly replied to the such notices.

Thereafter, the departmental inquiries conducted against the

petitioners. After the judgment of conviction, the petitioners

were terminated from service of the respondents on the basis

of such conviction. By order dated 09.06.2006, all the

petitioners were terminated from service. That, by the order

dated 07.04.2006, the District Development Officer, Bharuch

directed the Social Welfare Officer, District Panchayat,

Bharuch to initiate the recovery of Rs.1,45,925/- i.e. the

amount attempted to be misappropriated by the petitioners

herein. It was fuhrer directed that such amount be recovered

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from arrears of land revenue. Pursuant to the receipt of the

order dated 07.04.2006 issued by the District Development

Officer, the District Social Welfare, District Panchayat,

Bharuch by letter dated 18.02.2007, issued a notice to the

petitioners calling upon them to pay Rs.16,214/- to be equally

divided and payable by all the petitioners.

3. Aggrieved the petitioners have preferred the present

Special Civil Application.

4. Mr.Dave, learned counsel appearing for the

petitioners submits that the recovery order passed by the

District Development Officer is bad in law and against the

principle of natural justice. He submits that the District

Development Officer straight way passed an order without

calling upon the petitioners to show-cause without giving

opportunity before passing such order of recovery. He submits

that even the order which was passed and was not served on

the petitioners and it was the respondent no.3 was directed to

recover the amount by way of arrears of land revenue. He

therefore submits that the petitioners came to be dismissed

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from service on 09.06.2006. He submits that no action was

taken by the respondent no.3 and the said letter of the District

Development Officer which was never communicated to the

petitioners. He submits that by the letter dated 18.12.2007,

the respondent no.3 has called upon all the petitioners to pay

the misappropriated amount Rs.16,214/- equally. He submits

that in terms of Rule 62 of the Gujarat District Panchayat

Service (Discipline and Appeal) Rules, 1997, the penalty of

pecuniary lose can be imposed. The said rule empowers to

Panchayat to recover the pecuniary lose from the pay of

employees. He submits that no such notices could be issued

to the petitioners by the respondent no.3 after termination

from their service. He therefore submits that even to impose

any penalty, the District Development Officer has to follow

procedure prescribed under the Rules 8 and 9 of the said

Rules. He submits that no such procedure was followed by the

District Development Officer before passing such orders for

recovery of misappropriated amount by way of arrears of land

revenue. He therefore submits that the impugned orders dated

07.04.2006 and 18.12.2007 passed by the District

Development Officer and the respondent no.3, respectively,

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are bad in law and liable to quash an set aside.

4.1 Learned advocate Mr.Dave further submits that the

letter dated 25.08.2008 passed by the respondent no.3 to the

Taluka Development Officer is also unsustainable under law

as the same is passed after the petitioners have seized to be

employees of the Panchayat.

5. Per contra, learned advocate Ms.Sejal Mandavia

appearing for the respondent nos.2 and 3 submits that it has

been proved that the petitioners have misappropriated amount

Rs.12,475/- from the funds of the scheme of the State

Government. She submits that pursuant to that criminal

proceeding under the Prevention of Corruption were also

instituted and the petitioners have been convicted in the

criminal proceedings. She submits that the respondents have

a right to recover the lose caused to the State Government due

to action of the petitioners. She submits that in accordance

with Rule 6 of the Gujarat Panchayat Service (Discipline and

Appeal) Rules, 1997, the District Development Officer is

empowered to direct the Panchayat to recover the pecuniary

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loss caused from the employees. She submits that the order

passed by the District Development Officer is in accordance

with the Rules. She therefore submits that the order dated

18.12.2007 passed by the respondent no.3 was only in

continuation of the order dated 07.04.2006 and therefore, it

cannot be said that the same is in contravention of the Rules,

1997. She therefore submits that the present Special Civil

Application be dismissed.

6. Heard the learned counsels for the parties and

perused the documents on record.

7. It is not in dispute that the misappropriation of an

amount of Rs.16,214/- has been committed by the petitioners

who have also been convicted in trial and at present the

criminal appeal against the conviction and sentence is

pending in this Court. It is further admitted position that the

petitioners have been dismissed from service on 09.06.2006.

8. The Rule 6 of the Gujarat Panchayat Service

(Discipline and Appeal) Rules, 1997, provides for imposition of

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penalty for good and sufficient reasons to be imposed on a

member of the Panchayat Service.

The Rule 6(2) of the said Rules, 1997 stipulates recovery from

the pay of the whole or part of any pecuniary loss caused to

the Panchayat by negligence or breach of orders.

The Rule 7 of the said Rules, 1997 empowers authority to

impose penalties and the Rule 8 of the said Rules prescribes

procedure for imposing major penalties.

Punishment under Rule 6(2) is considered as a minor penalty

and procedure under Rule 9 for imposing the same has to be

followed.

9. The Rule 9 of the said Rules, 1997 prescribes

procedure for imposing minor penalties, which reads thus:-

"(1) No order imposing any of the penalties specified in clauses (1) and (2) of rule 6 shall be passed except after-

(a) the person charged is informed in writing of the proposal to brake action against him and of the allegations on which such action is proposed to be taken and is given an opportunity to make any re- presentation which he may wish to make:

(b) such representation, if any, is taken into consideration by the disciplinary authority: and

(c) the Board is consulted in case where such consultation is necessary.

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(d) the Board is consulted in case where such consultation is necessary.

(2) The record of the proceedings in such cases shall include

(i) a copy of intimation to the person charged of the proposal to take action against him:

(ii) a copy of the statement of allegations communicated to him, his representation, if any, the advise of the Board and the orders on the case together with the reasons therefore.

(3) A copy of the orders passed along with a copy of the allegations, if any, if not already supplied, and a copy of the advice of the Board if any shall be supplied to the member of the Panchayat Service charged."

10. In the present case, nothing is brought on record

by the respondents as to whether the procedure prescribed

under Rule 9 has been followed in the present case.

10.1 Learned counsel appearing for the respondents

after perusing the record has submitted that no notice was

issued to the petitioners in terms of Rule 9 before passing of

the order dated 07.04.2006 by the District Development

Officer.

11. In view of the aforesaid facts which is verified from

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the office record is presented in the Court by the learned

counsel appearing for the respondent nos.2 and 3, it is clear