Naginbhai Veljibhai Patel vs State Of Gujarat - Through ...
2023 Latest Caselaw 2418 Guj

     C/SCA/2359/2011                            JUDGMENT DATED: 21/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2359 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                           Sd/-
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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 ?

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                        NAGINBHAI VELJIBHAI PATEL
                                 Versus
                 STATE OF GUJARAT - THROUGH SECRETARY
================================================================
Appearance:
MR RADHESH VYAS FOR MR PA JADEJA(3726) for the Petitioner(s) No. 1
MR KK DESAI, AGP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 21/03/2023
                            ORAL JUDGMENT

1. The petitioner has filed the present writ petition

praying for quashing and setting aside the order dated

04.01.2011 passed by the respondent of withholding of two

increments with future effect of the petitioner.

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

2. It is the case of the petitioner that the petitioner was

serving as a Taluka Development Officer. A charge-sheet

came to be issued upon the petitioner on 13.03.2006 by the

State Government and departmental inquiry was held

against the petitioner in respect of five charges which relate

to the period from 11.03.1997 to 10.08.2000. After the

inquiry, the Inquiry Officer submitted his report on 29 th

September 2008. The Inquiry Officer did not find any

substance in the charge against the petitioner. The

disciplinary authority was not in agreement with the report

submitted by the Inquiry Officer, and by issuing a notice

dated 16th June 2010 without supplying a copy of the

report, called upon the petitioner to submit his

representation against the same as the disciplinary

authority was differed with the findings and report of the

Inquiry Officer. The petitioner submitted his representation

against the said notice. The State Government has imposed

a penalty of withholding of two increments with future effect

on the petitioner.

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

3. Being aggrieved and dissatisfied with the aforesaid

order of the respondent disciplinary authority, the petitioner

has filed the present writ petition.

4. Heard Mr. Radhesh Vyas, learned advocate appearing

for Mr. P.A. Jadeja, learned advocate for the petitioner and

Mr.K.K. Desai, learned AGP appearing for the respondent-

State.

5. Having heard the learned counsel for the respective

parties and having perused the documents on record, it is

undisputed fact that the notice dated 16 th June 2010 was

issued without the copy of the report submitted by the

Inquiry Officer along with the tentative reasons, to the

present petitioner. It is needless to say that when a report is

filed by the Inquiry Officer and the disciplinary authority, if

differs, then prior to coming to any conclusion, the decision

making authority has to give an independent finding and

tentative reasons are required to be given as to why the

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

report submitted by the Inquiry Officer is not accepted by

him or he is not in agreement with the report submitted by

the Inquiry Officer, which is a settled position of law.

6. In the present case, a second show-cause notice came

to be issued by the respondent, which is produced at

Annexure-D dated 16th June 2010, whereby it is apparently

clear that a copy of the reasons is enclosed but nowhere it is

stated that a copy of the report of the Inquiry Officer is

enclosed along with said notice. The disciplinary authority

has given two tentative reasons, but why and based on

which materials the decision making authority is not in

agreement with the reasons assigned by the Inquiry Officer

and on what basis, it differed and arrived at the tentative

decision of not accepting the report of the Inquiry Officer, is

not spelled out in the notice.

7. Even the circular issued by the State Government in

its General Administrative Department, dated 20 th

September 1993, also states that when the Inquiry Officer's

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

report is not accepted by the disciplinary authority, then the

disciplinary authority has to supply a copy of the report

along with his tentative decision for differing with the report,

under Rule 10(2) of the Gujarat Civil Services (Disciplinary

and Appeal) Rules, 1971. The disciplinary authority is duty

bound to assign reasons to accept or not the reasons of the

Inquiry Officer. In the present case, only a copy of the

tentative reasons are given to the petitioner but no any

reason is assigned by the respondent disciplinary authority

for non-agreement with the report of the Inquiry Officer. The

petitioner is denied up to that extent an opportunity of

being heard. On that aspect a prejudice is caused to the

petitioner as he is denied reasonable opportunity of being

heard.

8. Further, in view of the decision laid down by the Apex

Court in the case of Union of India versus Mohd. Ramzan

Khan, reported in AIR 1991 (SC) 471, a copy of the enquiry

report should be supplied to the delinquent along with the

recommendations, if any, in the matter of proposed

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

punishment, and in the case of Homi B. Munshi versus

P.G. Shroff, reported in 30(2) GLR 1367, this Court held

that if the delinquent is not furnished with the copy of the

enquiry report, it would amount to denial of reasonable

opportunity. In the case on hand, indisputably a copy of

the enquiry report is not supplied to the present petitioner

and reasonable opportunity is also not afforded to the

present petitioner. Hence, in view of the law laid down by

Apex Court and this Court in the cases of (i) Mohd.

Ramzan Khan (supra), (ii) Homi B. Munshi (supra), (iii)

M.J. Ninama versus Post Master General, reported in

1984 GLH 800 and (iv) O.S. Rabari versus Government of

Gujarat, reported in 32(2) GLR 1035, if a copy of the

enquiry report is not provided along with the show-cause

notice on the findings of Inquiry Officer and the reasons by

the disciplinary authority for its disagreement not

communicated to the delinquent, it amounts to violation of

principles of natural justice.

9. This view has been affirmed by the Apex Court in the

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

case of Yoginath D. Bagde versus State of Maharashtra,

(1999) 7 SCC 739. In this case also, the copy did not

specifically provide for a disciplinary authority to give an

opportunity of hearing to the delinquent officer before

differing with the view of the enquiry officer. The Court held

as under :

"But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into R. 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by theenquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with."

10. In view of the above, the present petition succeeds and

the order passed by the respondent dated 04.01.2011 of

withholding of two increments with future effect of the

petitioner is quashed and set aside. The respondents are

directed to release the two increments to the petitioner and

C/SCA/2359/2011 JUDGMENT DATED: 21/03/2023

accordingly revise his pension and other retiral benefits and

pay the arrears within a period of three weeks from today

and in case of default, the respondent shall have to pay

dues to the petitioner with interest @ 6% per annum.

11. Rule made absolute. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI