Jasubhai Rubabhai Chauhan vs State Of Gujarat
2023 Latest Caselaw 5375 Guj

     C/SCA/14624/2016                             JUDGMENT DATED: 10/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14624 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                              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 ?                           NO

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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                        JASUBHAI RUBABHAI CHAUHAN
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR RAJESH K SAVJANI(2225) for the Petitioner(s) No. 1
MR MEET THAKKAR AGP for the Respondent(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                              Date : 10/07/2023

                              ORAL JUDGMENT

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following main relief:-

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"15(A). Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside order dated 30/07/2016 Annexure "A" to this petition, passed by the District Education Officer, District Education Committee, Sabarkantha, Himmatnagar and be further pleased to direct the respondents to pay all service benefits to the petitioner and pay all amount with increment and higher grade w.e.f. 05/10/2006 to 09/01/2012 except increment for the year 2007-08 (i.e. from 01/07/2007 to 01/07/2008) and be pleased to direct the respondents to continue to pay all benefits in accordance with law in favour of the petitioner."

2. FACTS :

2.1. The petitioner was discharging his duties as Primary School Teacher since last 18 years. On 19.9.1998 the petitioner joined the services as Primary School Teacher run and managed by Prantvel village Panchayat village Prantvel Taluka Bayad, District Sabarkantha. On 3.3.2005, the Deputy Sarpanch Prantvel village, submitted an application to Taluka Panchayat and District Social Welfare Officer that by telephonic information (2/3/05), he had made complaint to District Primary Education Officer that the petitioner has not disbursed the amount meant for Shisyavruti i.e. for student activity and student dress for the year 2003-2004 to the concerned students. On 16.4.2005, on the basis of telephonic instructions from District Primary Education

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Officer dated 18.3.2005 and pursuant to the aforesaid complaints, Taluka Panchayat office, Bayad, through Taluka Kelavni Nirikshak (TKN) submitted a report favouring District Primary Education Officer and informed that;

"- By Panchayat letter dated 3.3.2005 Juth Mantri Gabat was directed to remain present with all the documents and details showing the disbursement of amount for student activities and student dress for the year 2003-04, at the office of District Social Welfare Officer, Bahumali Bhavan, Himatnagar.

- As no report was submitted by Panchayat letter dated 18.3.05 it was brought to the notice of Juth Mantri Gabat that though there is no Harijan student in Prantvel School, it has come to the knowledge that amount for such student activities has been obtained by showing false names and directed to produce record before District Social Welfare Officer.

- By communication dated 30.3.05 through Juth Mantri Gabat, Principal Prantvel primary school Shri Jasubhai R Chauhan (petitioner) was directed to produce Darkhast papers for the year 2003-04 seeking amount for student activities and student dress. Demand record has not been submitted by him.

- On 13.4.05, Taluka Kelavni Nirikshak personally visited Prantvel primary school and examined the record and found that ;

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- On 29.3.04 Taluka Office had received cheque for Vanjara caste, socially and educationally backward class.

- On 23.4.04 said amount has been disbursed in favour of concerned group for which necessary orders/bills and procedure has been submitted in the department of Bayad Taluka Panchayat.

- Accordingly on 28.6.2004 proportionate amount has been paid to concerned Juth Mantri for disbursement of said amount to the concerned primary school under his group. Said amount was required to be disbursed in favour of student in presence of Sarpanch and village representative within period of two days.

- In the present case, on 7.7.2004 Juth Mantri Gabat has paid the amount to Principal for its disbursement in favour of students/parents.

- On 3.5.2005 Principal, Prantvel Primary School has disbursed the amount in presence of Sarpanch.

- Thus, there is delay of 10 months in disbursement of amount which he was not authorized to keep it on hand.

- With effect from 13.4.05 necessary record to that effect has been kept with this office custody after obtaining the same from Principal Prantvel Primary School."

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2.2. Thereafter on 26.5.2005, District Primary Education Officer (DPEO), (District Primary Education Committee), by its letter dated 26.5.05 sought approval to place the petitioner under suspension from Director Primary Education, Gandhinagar, because of late disbursement of amount and for keeping the amount in his custody for a period of 10 moths. Charge sheet came to be issued on 26.5.2005 on the petitioner and called for necessary reply to the charges levelled against the petitioner.

2.3. Thereafter on 1.8.2005, the District Primary Education Officer issued show cause notice to the petitioner calling for explanation and to remain personally present before him on 8.8.2005 and to show cause why action under provisions of Gujarat Panchayat Services Discipline & Appeals Regulations, 1997 shall not be taken against the petitioner. The petitioner submitted his explanation on 8.8.2005 and admitted his mistake and requested for pardon. The District Primary Education Officer, Himmatnagar passed suspension order on 15.12.2005. On 17.4.2006, the District Primary Education Officer issued show cause notice seeking explanation and reply as to why the proceedings under Gujarat Panchayat Services Discipline & Appeals Regulations, 1998 under sub rule 1, 2, 3 of Rule 3 shall not be initiated and why should not he be punished under Regulation No.6 of Gujarat Panchayat Services Discipline & Appeals Regulations, 1997. The petitioner submitted his

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representation on 1.5.2006.

2.4. On 27.5.2006 the District Primary Education Officer, Himmatnagar passed order removing the petitioner from service under sub clause 5 of Rule 6 of Gujarat Panchayat Services (Discipline & Appeal) Rules, 1997. The said order came to be confirmed by the District Education Officer vide its order dated 13/7/2007.

2.5. Being aggrieved by the aforesaid orders, the petitioner preferred Special Civil Application No.3880 of 2008 before this court and the Co-ordinate Bench of this Court, vide CAV judgment and order dated 18.11.2011, allowed the writ petition whereby, the orders dated 27.5.2006 and 13.7.2017 were quashed and set-aside.

2.6. According to the petitioner vide the aforesaid CAV judgment dated 18.11.2011, this court, left it open to the Authorities, at the end of the Departmental Inquiry, to decide as to whether the petitioner is entitled for the wages for the period from 2005 to 2012. However, the Authorities thereafter, passed an order inflicting punishment of stoppage of two increments without future effect, which led to filing of Miscellaneous Civil Application (for Direction) No.1759 of 2016 and the said Miscellaneous Civil Application came to be disposed of by this court vide order dated 12.8.2016 whereby, the Co-ordinate Bench of this

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Court held that holding a Departmental Inquiry and consequential order inflicting punishment upon the petitioner, has offered a new cause of action to the petitioner and that the same requires to be challenged by filing a substantive petition.

2.7. It is the case of the petitioner that the Authorities, thereafter, passed an order dated 30.7.2016 whereby, the petitioner has been denied the wages and hence the petitioner has filed the present petition for the aforesaid relief.

3. Submission of the petitioner :

3.1. Mr.Savjani, learned advocate for the petitioner has submitted that it was not the choice of the petitioner not to serve. It is submitted that owing to the pendency of the inquiry and / or inaction on the part of the authorities that the petitioner could not serve. It is submitted that during the period for which the petitioner sought for the back- wages and other benefits, the petitioner was not gainfully. It is submitted that the respondent authorities has denied the the wages to the petitioner for the period from 2005 to 2012 illegally.

3.2. Mr. Savjani, learned advocate for the petitioner has submitted that the impugned order is passed on the basis of opinion of advocate. It is submitted that the impugned order

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is passed without proper application of mind and the impugned order is not a speaking order.

3.3. Mr. Savjani, learned advocate for the petitioner has submitted that the impugned order is passed without considering the provisions of the Gujarat Civil Services (Discipline and Appeals) Rules, 1971, more particularly the provisions of Chapter III clause No.6 which envisage the punishment inflicted upon the petitioner is a minor penalty i.e. "withholding of increment" for a period of two years without any future effect. It is submitted that under these circumstances, prayer prayed for in the petition may be granted to secure the ends of justice.

3.4. Mr. Savjani, learned advocate for the petitioner, in support of his submission has relied upon the judgment in the case of Raj Narain Vs. Union of India & Ors. rendered in Civil Appeal No.3339 of 2019 wherein, the Apex Court, has while considering the issue of reinstatement of the employee, has extended the benefit of full wages for the period during which the employee concerned was placed under suspension.

3.5. Mr. Savjani, learned advocate for the petitioner has also placed reliance on the judgment in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors. reported in (2013)10 SCC

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324 and more particularly, Head-Note (A), to contend that if the inquiry initiated by the authorities is vitiated on the ground of violation of rules of natural justice, then on reinstatement of the employee concerned, he is entitled for full back wages.

4. SUBMISSIONS OF THE RESPONDENT No.2 :

4.1. Mr.Manish J. Patel learned advocate for the respondent No.2 has submitted that the case of the petitioner stands on a different footing inasmuch as, after the liberty granted by this court vide CAV judgment dated 18.11.2011, the respondent - authority has reinstated the petitioner and was placed under suspension. Inquiry was initiated de novo and after completion of the inquiry, the authorities have passed order dated 19.3.2013, whereby, punishment has been imposed of withholding two increments without future effect. Neither the inquiry was dropped nor the petitioner was acquitted of all the charges. Thus, under the circumstances, the judgment cited by the petitioner cannot be made applicable to the facts of the present case.

4.2. Mr. Patel, has further submitted that taking a lenient view, the authorities have passed an order of stoppage of two increments without future effect. What weighed with the Authorities, was the family circumstances of the petitioner and tenure of his service. Thus, he submitted that the

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petitioner is not entitled for any wages for the period in question.

4.3. Mr. Patel has further submitted that the petitioner, has undisputedly not worked for the period from 2005 to 2012. Further, this court while disposing of the petition, has categorically directed to place the petitioner under suspension. Mr. Patel has further submitted that there arises no question of making payment of wages during said period.

He has prayed to dismiss the petition.

5. Submission of the AGP :

Mr.Meet Thakkar, learned AGP has adopted the submissions of Mr.Manish J. Patel for the respondent No.2 and has submitted that in the facts of the present case, the petitioner is not entitled to the relief prayed for in this petition. He has also prayed to dismiss the present petition.

6. Heard Mr.Savjani, learned advocate for the petitioner, Mr.Patel, learned advocate for the respondent No.2 and Mr.Meet Thakkar, learned AGP for the respondent State.

6.1. Having heard the learned advocates for the respective parties and considering the material on record, the issue arise for consideration of this Court is whether the impugned order can be treated to be a speaking order,

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assigning reasons as required under the Rules?

6.2. In case of K.D.Desai Vs. High Court of Gujarat, reported in (2009) 3 GLH 631, the Division Bench of this Court was considering the issue of period of suspension where the delinquent was fully exonerated. In light of Rule 152 of BCSR, the question which was considered was whether suspension of the delinquent was wholly unjustified in case where the delinquent is suspended from service during the course of pendency of departmental inquiry and at the end of inquiry, the delinquent is reinstated in service. The Court held that where charges are not proved, the competent authority would still be justified in considering whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent and thereafter, in the facts and circumstances of the case, it was held that the suspension of the petitioner was wholly justified on the basis of material available with the competent authority upon conclusion of inquiry.

6.3. In case of Girjaprasad Nagardas Dave vs. The State of Gujarat & Ors., reported in 1971 LAB IC 921, Division Bench of this Court has held as under:-

"Now a case may be conceivably arise where a Government servant may be placed

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under suspension pending departmental inquiry and ultimately, exonerated, though not fully, of the charge levelled against him. Upon his reinstatement in service pursuant to exoneration, the question regarding pay and allowances payable to the said Government servant for the period of his absence from duty as well as regarding how the period of his absence from duty on account of suspension pending departmental inquiry should be treated would inevitably arise. In such a case, though the concerned Government servant may not have been fully exonerated of the charge levelled against him, it may be possible for the competent authority to reach a conclusion that his suspension from service as an interim measure pending departmental inquiry was wholly unjustified having regard to the trivial nature of the charge levelled against him or unsatisfactory evidence available to the appropriate authority in support of the charge at the time when the order of suspension was made or the unduly long time spent in holding the departmental inquiry or such other or similar grounds. It is, therefore, essential that the competent authority making a specific order under R. 152 must, in cases of suspension, apply its mind also to the question whether or not suspension was wholly unjustified, even if it comes to the conclusion that the concerned Government servant has not been fully exonerated, and form an opinion with regard to the same and make an appropriate order under the said rule in conformity with the said opinion. An order made without the compliance with the aforesaid requirements must fail on the ground that it suffers from

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the vice of nonapplication of mind to one of the relevant factors which must enter into account before making a specific order under the said rule."

6.4. Undoubtedly, the law is well settled on the issue of dealing with suspension period upon conclusion of inquiry even in case where there is an order of exoneration of the delinquent. In the present case, the petitioner is awarded with the punishment of withholding of two increments without future effect for the purpose of charges which are apparently serious in nature. However, a dichotomous situation appears to have arisen where the effect of the impugned order of treating the period of suspension as suspension, would surpass the effect of punishment inflicted pursuant to inquiry. Moreover, the impugned order indicates chronology of proceedings which has taken place. However, whether mind is applied to the material referred to in the order is not reflected in the reasonings and therefore, the impugned order appears to have been passed only on the ground that the charges have been proved and the petitioner has been punished. Undoubtedly, where, at the time of inflicting punishment, there is sufficient material upon conclusion of departmental inquiry, which would substantiate the order of suspension passed at the relevant time, still, in the opinion of the Court, reference to such material would be required to fulfill requirement of a reasoned and speaking order, which in the present case is

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lacking.

7. In view of the aforesaid, the Court deems it proper to remand the matter back to the competent authority to reconsider the impugned order in light of the observations made hereinabove and in light of law laid down by this Court in the judgments referred to hereinabove, after affording an opportunity of being heard to the petitioner. The exercise of reconsideration upon remand may be undertaken as expeditiously as possible within a period of three months. The petition stands partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR