Kanaksinh Madhavsinh Ravalji vs State Of Gujarat
2023 Latest Caselaw 2635 Guj

    C/SCA/1504/2020                              CAV JUDGMENT DATED: 29/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1504 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 1505 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 1506 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 1507 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 1508 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 1510 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                       sd/-

==========================================================

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 ?

========================================================== KANAKSINH MADHAVSINH RAVALJI Versus STATE OF GUJARAT ========================================================== Appearance:

MR. NISARG N JAIN(8807) for the Petitioner(s) No. 1 MR SAHIL TRIVEDI, LD.ASSTT. GOVERNMENT PLEADER for the

DS AFF.NOT FILED (N) for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

Date : 29/03/2023

CAV JUDGMENT

1. The captioned writ petitions are filed challenging

penalty order dated 05.11.2019, passed by respondent No.2

(Disciplinary Authority), wherein Disciplinary Authority has

decided to deduct an amount of Rs. 500/- from pension of

each of the petitioners for a period of six months.

2. Since all these petitioners, at the relevant time were

serving as Additional Assistant Engineer with the State of

Gujarat and for similar charges, were inflicted with same

penalty, all these petitions are heard and decided together by

this common judgement and order. For the sake of

convenience, the facts referred in Special Civil Application

No.1504 of 2020 are considered for the purpose of adjudication

of the petitions.

Rule returnable forthwith. Mr. Sahil Trivedi, Ld. AGP waives

service of Rule.

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

3. Facts in brief, are as under:

The petitioner was serving as Additional Assistant

Engineer with Narmada and Water Resources, Water Supply

and Kalpsar Department, Government of Gujarat since 1979

and on attaining the age of superannuation, retired in year

2015. The petitioner was subjected to a departmental inquiry

along with 35 other co-delinquents for an alleged incident of

the year 1992-94. The charge sheet containing allegations was

filed after a period of 10 years on 28.04.2003, from the date

of incident. The allegations, in the charge-sheet, were that the

petitioner had not prepared the quotation and had not invited

tenders and thereby assisted the Superior Officers (Deputy

Executive Engineer and Executive Engineer) in passing the rate

list and bills, which resulted into loss to the Government. Upon

conclusion of inquiry, the Inquiry Officer, submitted his report

dated 10.09.2013, exonerating the petitioner. However, as the

Disciplinary Authority was not in agreement with the report of

inquiry officer, a show Cause Notice along with reasons for

disagreement was served upon the petitioner on 08.02.2016.

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

The petitioner responded to the Show Cause Notice by filing

reply, pointing out that the other co-delinquents (Deputy

Executive Engineers and Executive Engineers), who were

charge-sheeted for the same charges, had preferred petitions

challenging the issuance of the charge-sheet mainly on the

ground of delay in initiating the departmental proceedings and

this Court by a detailed judgement had quashed and set aside

the charge-sheet issued to both Deputy Executive Engineer and

Executive Engineer (superior officers). Ignoring the reply of

present petitioner, the Disciplinary Authority has imposed a

penalty, aggrieved by which, this petition is filed.

4. Heard learned advocate Mr. Nisarg Jain for the

petitioners and learned Assistant Government Pleader Mr. Sahil

Trivedi for the Respondent- State.

5. Learned advocate Mr. Nisarg Jain for the petitioners

made the following submissions :

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

(i) Penalty orders passed by respondent No.2 (Disciplinary

Authority) is contrary to the decision of this Court and the

Government Resolutions on the subject.

(ii) Disciplinary Authority has failed to consider the charges

levelled against the petitioners, which refers that the

petitioners failed in preparing Quotation and by not inviting

the tenders, assisted the Superior Officers, which resulted into

loss to the Government. The Superior Officer of the

petitioners being Deputy Executive Engineer had approached

this Court by filing Special Civil Application No.1676 of 1998,

challenging the initiation of departmental proceedings, wherein

the petition was allowed on the ground of initiation of

departmental proceedings after inordinate delay of 13 years

and the respondents were further directed to pay all the

retiral dues as if no charge-sheet had been issued within a

period of 30 days with 8% interest.

(iii) Further, in one more petition by the Executive Engineer

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

being Special Civil Application No.12377 of 2016, this court

had allowed the petition with the same directions as contained

in Special Civil Application No.1676 of 1998. Therefore, non-

consideration of reply filed by the Petitioners by the

Disciplinary Authority is illegal and the penalty orders in all

cases deserve to be quashed and set aside. As per Government

of Gujarat Circular dated 25.02.2011, the disciplinary

proceedings are to be completed within stipulated period and

therefore, the orders imposing penalty in each petition is bad

in law.

(iv) Though the order of Disciplinary Authority dated

05.11.2019, refers to action of co-delinquent Officers of Class I

& II, the disciplinary authority failed in considering the

charges in these petitions. In these petitions, the charges are

of assisting the superior officer in preparing bills. When the

chargesheet in case of superior officers has been quashed and

set-aside, equal treatment ought to have been given in present

case. The orders of this court in co-delinquents superior

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

officers case was brought to the notice of the disciplinary

authority. Therefore, the order of penalty deserves to be

quashed and set aside.

6. On the other hand, learned Assistant Government Pleader

Mr. Sahil Trivedi submitted that penalty orders in these cases

were issued by Disciplinary Authority after following due

procedure under the extent Rule. There being no procedural

irregularities, the scope of judicial review is very limited,

therefore, no interference is warranted. He further submitted

that delay caused in finalising the disciplinary proceedings may

not be ground for quashing the penalty orders. He submitted

that delay in conducting a disciplinary inquiry does not, ipso

facto, lead to the proceedings being vitiated unless due

prejudice caused to the delinquents has been demonstrated.

7. Learned Assistant Government Pleader relied upon

following decisions in support of his submissions, particularly

on the ground of scope of judicial review in penalty

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

proceedings :

(i) AIR Online 2022 SC 242 [Civil Appeal Nos.1622-

1623 of 2022 in Special Leave Petition (C)

No.18110-18111 of 2018 in the case of Union of

India & Ors. v. Managobinda Samantaray] .

(ii) AIR Online 2023 SC 796 [Civil Appeal No.5153 of

2021 in Special Leave Petition (C) No.4655 of 2020

in the case of State of Madhya Pradesh & Anr. v.

Akhilesh Jha & Anr.]

(iii) 2015(2) SCC 610 in the case of Union of India and

others v. P.Gunasekaran.

8. Heard learned advocates appearing for the

respective parties and considered the decisions relied upon. It

is noticed that in all these petitions, Disciplinary Authority had

not accepted the inquiry officers report. The Disciplinary

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

Authority in all the cases vide order dated 05.11.2019,

disagreed with the findings recorded by the Inquiry Officer and

inflicted the penalty, as referred hereinabove.

9. It is well settled that when disciplinary proceedings

are concluded after following due procedure as per extent rule,

the scope of judicial review is very limited. This Court cannot

plead ignorance about the principle laid down by Hon'ble

Supreme Court in several decisions explaining scope of judicial

review. Further, the Court cannot act as appellate authority in

disciplinary proceedings and reappreciate the evidence. Keeping

in mind the aforesaid principles and considering the facts of

the present case, I do not deem it fit to interfere with the

penalty orders dated 05.11.2019 for the below mentioned

reasons:

9.1 Admittedly, there is no procedural infirmity alleged

by the Petitioners while passing the penalty order and

therefore, there is due compliance by the Respondent of this

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

aspect.

9.2 The main fulcrum of the Petitioners argument is

that this Court has quashed the chargesheet issued by the

Respondent qua their co-delinquent superior officers and

therefore, basis the doctrine of parity, similar treatment should

be afforded to the Petitioners. In my view, this argument is

misdirected and therefore, cannot be accepted. This Court in

the case of superior officers in Special Civil Application No.

1676 of 1998 and Special Civil Application No. 12377 of 2018

was pleased to allow the petition and quash the chargesheet

only on the ground of delay and that too, only qua the

respective Petitioner's therein. The findings rendered by this

Court if viewed closely will reveal that this Court did not

opine or touch up the merits of the case at any juncture. Per

contra, the Petitioners herein did not challenge the issuance of

chargesheet at the relevant point of time. In fact, the

Petitioners chose to sit tight after issuance of chargesheet, post

which the Inquiry Officer's Report came to be passed which

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

was followed up by issuance of a show cause notice by the

Disciplinary Authority and reply being provided by the

Petitioners. Therefore, the Petitioners contention that merely

because the chargesheet issued way back in the year 2003 was

quashed and set aside by this Court qua two senior officers,

that too only on the ground of delay without entering into the

merits, and therefore the same treatment should be applied to

the Petitioners does not merit acceptance. In this context, the

Government Resolution dated 31.08.1988, relied upon by the

Petitioners discussing the doctrine of parity would also not be

applicable since much water has flown after issuance of

chargesheet in the case of the present Petitioners. Therefore,

by no stretch of imagination can the Petitioners be considered

to be "at par" with the Petitioner's in Special Civil Application

No. 1676 of 1998 and Special Civil Application No. 12377 of

2018. At this juncture, I also take notice of the fact that

though in the memo of petition it has been contended that the

orders passed by this Court in Special Civil Application No.

1676 of 1998 and Special Civil Application No. 12377 of 2018

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

were brought to the notice of the disciplinary authority in the

reply to show cause notice, however the orders dated

05.11.2019 do not make a mention to any such orders having

been brought to notice. Since the reply to show cause notice is

not on record, the penalty orders dated 05.11.2019 will have

to considered, which are bereft of reference to this Court's

orders. In any view of the matter, in view of my findings

herein with regard to non-applicability of this Court's orders to

the facts of the present cases, nothing substantial would turn

even if the orders of this Court were in fact pointed out by

the Petitioners before the disciplinary authority.

9.3 Another limb of the Petitioners argument is alleged

delay caused in conclusion of the disciplinary proceedings. The

Petitioners have placed reliance on Government of Gujarat

Circular dated 25.02.2011 for the same. In my view, the said

argument also does not deserve acceptance. Firstly, the

Petitioners have chosen not to place on record the reply to

show cause notice. Secondly, assuming that the contents

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

mentioned in the memo of petition discussing the reply and

grounds urged before this Court were actually urged by the

Petitioners before the disciplinary authority, even in that case

the same does not prompt me to interfere on this limited

ground. It is well settled law that every delay in conducting a

disciplinary inquiry does not, ipso facto, lead to the inquiry

being vitiated unless the prejudice caused to the officer is

decided on the basis of circumstances of each case. In the

present case, the Petitioners have not pointed out the prejudice

caused to them on account of alleged delay in conclusion of

the disciplinary proceedings, if any, and the said argument

seems to have been urged as an alternate argument.

9.4 At this juncture, I wish to rely on the decision of the Hon'ble

Supreme Court in the case of Union of India and Ors V/s

Subrata Nath reported in 2022 SCC OnLine SC 1617 where

it has been held as under:

"18. Laying down the broad parameters within which the High Court ought to exercise

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran13 held thus:

"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, reappreciating even the evidence before the enquiry officer. The finding on Charge 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 Articles 226/227 of the Constitution of India, shall not venture into reappreciation 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

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

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 Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate 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;

(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."

Applying the aforesaid principle as expounded by the Hon'ble

Supreme Court, I do not see how the case of the Petitioners can fall

under the exceptions carved out for entertaining a petition filed under

Article 226/ 227 of the Constitution of India challenging penalty orders

passed by the disciplinary authority.

C/SCA/1504/2020 CAV JUDGMENT DATED: 29/03/2023

10. In view of the above, all these petitions are

dismissed. Penalty order dated 05.11.2019 stands confirmed in

each petition. Rule is discharged. There shall be no order as to

costs.

(MAUNA M. BHATT,J)

DIPTI PATEL