Gujarat High Court
District Collector vs Rajendrakumar A Barot on 5 February, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 2441 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 455 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
In R/LETTERS PATENT APPEAL NO. 2441 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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DISTRICT COLLECTOR
Versus
RAJENDRAKUMAR A BAROT & 1 other(s)
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Appearance:
MR RONAK RAVAL, AGP for the Appellant(s) No. 1
for the Respondent(s) No. 1.1,1.2,1.3
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 05/02/2024
Page 1 of 14
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr.
Ronak Raval for the appellant and learned advocate
Ms. Harshal Pandya for respondent no.1. Notice is
served upon respondent no.2 but none appears.
2. This Letters Patent Appeal is directed against
judgment and order dated 22.06.2017 whereby the
petition was allowed. The order of compulsory
retirement dated 18.11.2018 passed against the
respondent by the District Collector-respondent
no.1 came to be set aside. Also was set aside the
judgment and order dated 19.12.2011 passed by the
Gujarat Civil Services Tribunal, Gandhinagar. The
petitioner was directed to be reinstated in service
consequential benefits including backwages as if
the order of compulsory retirement was not passed.
2.1 What was prayed in the main petition was to
set aside the order of compulsory retirement as
well as the judgment of the tribunal. The prayer
was made to set aside the disciplinary proceedings
initiated by charge-sheet dated 21.06.2005
resulting into order of compulsory retirement.
3. The respondent herein-original petitioner was
appointed as Gujarati Stenographer (Grade-III) in
the office of the Collector, Bharuch whose posting
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was in the office of the Conservator of Forest,
Rajpipla. The petitioner came to be transferred to
Gandhinagar officer of the Conservator of Forest in
the year 1987.
3.1 The petitioner came to be allotted plot of
land admeasuring 90 metres since he had been
serving in the office of Conservator of Forest. A
scheme was brought out by the State Government for
allotment of plots at concessional rates to the
Government employees in the year 1988. The
petitioner had applied for plot and got it
allotted. The loan was also sanctioned in the year
1999 and the same was repaid.
3.1.1 On 21.06.2005 that the charge-sheet came
to be issued against the petitioner. The charges
levelled against the petitioner included that his
services were not transferred to Gandhinagar and
though his original establishment was at Baroda,
the petitioner produced false affidavit and
certificate in order to obtain the plots at
Gandhinagar at concessional rate.
3.1.2 It was the allegation that he was not
eligible since the Government Resolution dated
29.06.1988 and 05.11.1988 considering those
employees serving at Gandhinagar to be eligible for
applying for plot at concessional rate. It was
also the allegation that the petitioner misguided
the department to suggest that his original
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establishment was at Gandhinagar, whereas it was at
Baroda. As per the charge, the plot was wrongly
got allotted by applying such means. The charge-
sheet was given in the year 2005, which was after a
gap of 17 years.
3.2 The petitioner faced the departmental inquiry.
In the report 08.06.2006, the inquiry officer
concluded that the petitioner did not make any
false declaration or filed false affidavit to
obtain the plot nor he misguided the authorities.
The copy of the report figures at page 39 of the
compilation. The inquiry officer concluded that
the Deputy Conservator of Forest was responsible
for issuing false certificate. It is the case of
the petitioner that the copy of the inquiry report
was not supplied.
3.2.1 The inquiry officer absolved the petitioner
from first two charges. The inquiry office
recommended minor penalty to be imposed on the
petitioner. It appears that the disciplinary
authority proceeded thereafter, as if all the
charges were proved against the petitioner during
the inquiry.
3.2.2 It appears that the disciplinary authority
did not record the reasons for its disagreement
with the findings recorded in the inquiry report in
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relation to the first two charges and ignoring the
exoneration of the petitioner, inflicted the
penalty of compulsory retirement. The punishment
order of compulsory retirement was passed on
31.07.2006.
3.3 The petitioner thereafter preferred Appeal No.
222 of 2006 before the Gujarat Civil Services
Tribunal. The Tribunal allowed the appeal. The
order of compulsory retirement was set aside. The
case was remanded to the disciplinary authority for
proceeding from the stage of supply of the copy of
the inquiry report.
3.4 On 20.06.2007, the show-cause notice was
issued by the Disciplinary Authority in which it
was specifically stated that he had agreed with the
inquiry report held in favour of the petitioner and
that the charges were not proved. On 18.11.2008,
the disciplinary authority again passed an order of
penalty of compulsory retirement of the petitioner.
3.4.1 The petitioner to filed Appeal No. 330 of
2008 before the Gujarat Civil Services Tribunal.
The appeal was dismissed. It was thereafter that
the present petition came to b filed seeking to set
aside the order of compulsory retirement as well as
order of the Tribunal, dismissing the appeal.
3.5 Over and above the departmental inquiry and
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the order of penalty of compulsory retirement
passed as above, the Collector passed separate
order dated 23.08.2006 calling to take possession
of the plot back on which there was a construction.
The petitioner challenged the same before the
Special Secretary (Revenue) in Revision Application
No. 32 of 2016, which was rejected on 11.01.2016.
Thereagainst, the aggrieved petitioner filed
Special Civil Application No. 2749 of 2016, which
was before this Court, which was allowed on
09.06.2022. The orders of the Collector and the
revisional authority came to be set aside. The
said setting aside of the orders has attained
finality and no appeal thereafter has been
preferred.
4. On the basis of the facts on record, learned
Single Judge recorded in paragraph 5.5 thus,
"5.5 As indicated above, the mistaken transfer
of the petitioner to Gandhinagar establishment
was realized by the respondents on 15/12/1990.
The correction of the mistake before
15/12/1990 was not in contemplation of the
respondents. What was expected from the
petitioner by levelling the charges in the
year 2005 was that while making an application
for the allotment of the plot at concessional
rate at Gandhinagar, the petitioner ought to
have come out with the case that his transfer
to Gandhinagar was by mistake. When such
mistake was not realized by anyone as on the
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date the petitioner made an application for
the plot at concessional rate, it was too much
for the respondents to expect the petitioner
who had merely obeyed the office order of
transfer, to correct himself. The very tenor
of the charge against the petitioner would
indicate that if he was transferable to
Gandhinagar, he would have been the component
of the Gandhinagar establishment. Thus, it
cannot be disputed that when all concerned
were under the bonafide belief that the
petitioner was rightly transferred to
Gandhinagar on the date of his transfer, he
did become a component of establishment of
Gandhinagar."
4.1 Learned Single Judge held that service book
and other service record of the petitioner
indicated that the petitioner was a part of the
establishment at Gandhinagar and the charges
levelled against him were perverse and suffered
from non-application of mind, even contrary to the
factual position.
4.2 Learned Single Judge further held that the
impugned order was unsustainable also on account of
non-compliance of Rule 9(17) of the Discipline and
Conduct Rules, which Rule required that upon
conclusion of the evidence by the department, if
delinquent abstains examining himself, he would be
required to be questioned on the circumstances
appearing against him in he evidence led and he was
required to be confronted with the incriminating
circumstances found against him. Since the said
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mandatory procedure was not undertaken, the want of
such exercise rendered the decision vitiated.
5. In addition to what is highlighted by learned
Single Judge, there is a weighty aspect of legal
infirmity in the action of penalty of compulsory
retirement pursuant to the departmental inquiry,
taken against the petitioner. When the
disciplinary authority recorded agreement with the
findings of the inquiry officer, who had suggested
imposition of minor penalty as the charges were not
held proved, when the disciplinary authority
proceeded to impose major penalty of compulsory
retirement, it committed error in not following the
procedure contemplated in the statutory rules.
5.1 The disciplinary authority acted contrary to
the provisions of Gujarat Civil (Discipline and
Appeal) Rules, 1971, more particularly Rule 10
thereof, which Rule lays down the procedure
regarding action on the inquiry report. As per
Rule 10(2), the disciplinary authority shall, when
disagrees with the findings of the inquiry officer,
on any article of charge, has to record the reasons
for such disagreement and record its own findings
of such charge.
5.2 In the present case, the disciplinary
authority accepted the report of the inquiry
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officer for imposition of minor penalty, but then
proceeded to impose major penalty of compulsory
retirement. It was erroneous exercise in law to
shift the process rendering ultimate decision
unsustainable. For that, no procedure necessary
under the Rules and mandated in law was followed.
5.3 The said omission was in its clear dimension a
breach of principles of natural justice and illegal
exercise rendering final decision infirm in law.
The proposition as to what are the obligations of
the disciplinary authority when it disagrees with
the findings of the inquiry officer or proposes to
chart a different way to mete out the final
treatment to the delinquent by going against the
findings of the inquiry officer, is well settled.
5.4 In Yoginath D. Bagde vs. State of Maharashtra
[1999 (7) SCC 739], the Supreme Court observed,
"..We have already extracted Rule 9(2) of the
Maharashtra Civil Services (Discipline &
Appeal) Rules, 1979 which enables the
Disciplinary Authority to disagree with the
findings of the Inquiring Authority on any
article of charge. The only requirement is
that it shall record its reasoning for such
disagreement. The Rule does not specifically
provide that before recording its own
findings, the Disciplinary Authority will give
an opportunity of hearing to a delinquent
officer. But the requirement of "hearing" in
consonance with the principles of natural
justice even at that stage has to be read into
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Rule 9(2) and it has to be held that before
Disciplinary Authority finally disagrees with
the findings of the Inquiring 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 Inquiring Authority do not
suffer from any error and that there was no
occasion to take a different view."
(para 29)
5.4.1 The Supreme Court further stated that it
was incumbent in law for the disciplinary authority
disagreeing with the inquiring authority to record
the tentative reasons for its disagreement.
"The Disciplinary Authority, at the same time,
has to communicate to the delinquent officer
the "TENTATIVE" reasons for disagreeing with
the findings of the Inquiring 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 the
Inquiring Authority are not germane and the
finding of "not guilty" already recorded by
the Inquiring Authority was not liable to be
interfered with."
(para 29)
5.4.2 In Yoginath D. Bagde (supra), the earlier
decision of Supreme Court in Punjab National Bank
Vs Kunj Behari Mishra [(1998) 7 SCC 84], was
referred to and relied on. The Supreme Court in
Kunj Behari Mishra (supra), observed,
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"The second stage begins when the disciplinary
authority decides to impose penalty on the
basis of its conclusions. The first stage of
the enquiry is not completed till the
disciplinary authority has recorded its
findings. The principles of natural justice
would demand that the authority which proposes
to decide against the delinquent officer must
give him a hearing. When the enquiring officer
holds the charges to be proved then that
report has to be given to the delinquent
officer who can make a representation before
the disciplinary authority takes further
action which may be prejudicial to the
delinquent officer. When, like in the present
case, the enquiry report is in favour of the
delinquent officer but the disciplinary
authority proposes to differ with such
conclusions then that authority which is
deciding against the delinquent officer must
give him an opportunity of being heard, for
otherwise he would be condemned unheard. In
departmental proceedings what is of ultimate
importance is the finding of the disciplinary
authority."
(Para 17)
5.4.3 The Supreme Court proceeded to observe
further,
"The disciplinary proceedings stand concluded
with the decision of the disciplinary
authority. It is the disciplinary authority
which can impose the penalty and not the
enquiry officer. Where the disciplinary
authority itself holds an enquiry, an
opportunity of hearing has to be granted by
him. When the disciplinary authority differs
with the view of the enquiry officer and
proposes to come to a different conclusion,
there is no reason as to why an opportunity of
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hearing should not be granted. It will be most
unfair and iniquitous that where the charged
officers succeed before the enquiry officer,
they are deprived of representing to the
disciplinary authority before that authority
differs with the enquiry officer's report and,
while recording a finding of guilt, imposes
punishment on the officer. In our opinion, in
any such situation, the charged officer must
have an opportunity to represent before the
disciplinary authority before final findings
on the charges are recorded and punishment
imposed. This is required to be done as a part
of the first stage of enquiry as explained in
Karunakar case."
(Para 18)
5.5 In Lav Nigam Vs Chairman and MD, ITI Limited
[(2006) 9 SCC 440], a similar question arose as
regards the procedure to be followed by the
disagreeing disciplinary authority. It was held
that the disciplinary authority is bound to give
notice setting out his tentative conclusions to the
charged employee, whereafter the petitioner would
again have to be served with a notice relating to
punishment proposed, in the event the disciplinary
authority stands not satisfied after considering
the explanation of the delinquent.
5.5.1 It was held,
"The conclusion of the High Court was contrary
to the consistent view taken by this court
that in case the disciplinary authority
differs with the view taken by the inquiry
ofrficer, he is bound to give a notice setting
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out his tentative conclusions to the
appellant. It is only after hearing the
appellant that the disciplinary authority
would at all arrive at a final finding of
guilt. Thereafter, the employee would again
have to be served with a notice relating to
the punishment proposed."
(Para 10)
5.5.2 It was further stated and it covers the facts
of this case to apply squarely,
"... It is clear that no notice at all was
given before the disciplinary authority
recorded its final conclusions differing with
the finding of fact of the inquiry officer.
The notice to show cause was merely a show-
cause against the proposed punishment. In view
of the long line of authorities, the decision
of the High Court cannot be sustained. The
appeal is accordingly allowed and the decision
of the High Court is set aside."
(Para 13)
5.6 Similar principles were laid down by this
Court in State of Gujarat Vs Shri G.A. Patel [1994
(2) GLH 194], wherein the Court observed in para 13
as under,
"The inquiry officer exonerated the Government
servant, but the Disciplinary Authority comes
to a contrary conclusion then, in our opinion,
principle of natural justice have to be read
into sub-rule (3) of Rule 10 and the reasons
for disagreement and the findings after
recording therefore should be given to the
officer concerned before penalty is imposed."
6. Thus, for the reasons supplied by learned
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Single Judge and those discussed and elaborated
hereinabove by this Court, no interference is
called for. The judgment and order of learned
Single Judge allowing the petition to set aside the
order of compulsory retirement dated 18.11.2008
could be said to be eminently justified, just,
legal and proper.
7. The appeal stands meritless and is dismissed.
Civil Application would not survive and shall
stand disposed of.
(N.V.ANJARIA, J)
(PRANAV TRIVEDI,J)
BIJOY B. PILLAI
