Gujarat High Court

Munirbhai Rasulbhai Qureshi vs State Of Gujarat on 27 February, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                           C/SCA/7204/2015                                     JUDGMENT DATED: 27/02/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                 R/SPECIAL CIVIL APPLICATION NO. 7204 of 2015

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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                                 Approved for Reporting              No       Yes
                                                                     ✔
                      ===================================================
                                      MUNIRBHAI RASULBHAI QURESHI
                                                    Versus
                                          STATE OF GUJARAT & ORS.
                      ===================================================
                      Appearance:
                      Mr. Y.N. Ravani for Mr. SIDDHANT R SHAH(8722) for the
                      Petitioner(s) No. 1
                      MS. POOJA ASHAR, AGP for the Respondent(s) No. 1,2,3,4,5
                      ===================================================

                       CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                        Date : 27/02/2025

                                                        ORAL JUDGMENT

1. Heard Mr. Y.N. Ravani, learned advocate for Mr.

Siddhant R. Shah, learned advocate appearing for the petitioner

and Ms. Pooja Ashar, learned Assistant Government Pleader

appearing for the respondents - State.

2. By way of the present petition, petitioner herein has

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prayed for the following reliefs:

"13. The petitioner, therefore, prays to this Hon'ble Court that:

A) Admit this Special Civil Application.

B) Allow this Special Civil Application by issuing a writ of mandamus or any other writ in the nature of mandamus or direction quashing and setting aside the impugned order at Annexure-A colly. passed by respondent authorities in the interest of justice.

C) Pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to direct respondent authorities to release the consequential benefits like release of annual increment of interregnum period and be pleased to direct respondent authorities for considering his case for deemed date promotion subject to outcome of the present petition. D) To pass such other and further orders as may be deemed just and proper in the circumstances of the case."

3. At the outset, Mr. Ravani, learned advocate appearing

for the petitioner states that the prayers in the present petition

are identical to the prayers as prayed for in Special Civil

Application No. 8105 of 2015 with Special Civil Application no.

8201 of 2015, wherein, the prayers prayed for in the said

petition are allowed, by quashing the impugned order dated

20.03.2013, imposing the penalty of cutting of pension of

Rs.1000/- for the period of five years and further to refund the

amount recovered from the petitioner and consequential reliefs.

In this case also, the petitioner was in-charge as Telephone

Operator and not in field duty, hence, his case is similar in the

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facts of petitioners of aforesaid petitions.

4. Ms. Pooja Ashar, the learned Assistant Government

Pleader appearing for the respondents -State is not in a position

to contradict the aforesaid submissions made by Mr.Ravani,

learned advocate appearing for the petitioner.

5. This Court has also perused the show cause notice

issued to the petitioner dated 10.12.2009 stating as to why the

stoppage of one increment for a period of one year should not be

imposed, by holding the petitioner guilty. The aforesaid in the

opinion of this Court is governed by the principle of law laid

down by the Hon'ble Apex Court in the case of Yoginath D.

Bagde v/s. State of Maharashtra and another reported in AIR

1999 SC 3734(1) and Letters Patent Appeal No. 934 of 2015,

decided by oral judgment on 26.06.2024. Considering the ratio

laid down in the aforesaid decisions, in the facts of the present

case also the competent authority, while issuing the show cause

notice, in stead of forming a tentative opinion, in a pre-decided

manner, issued the notice that the petitioner has committed gross

misconduct and has resultantly passed the impugned order of

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penalty of stoppage of one increment for a period of one year.

Further, considering the matter on the merit also, it is submitted

that the petitioner was not the only person against whom the

departmental proceedings were conducted. There are other

officers also, who are identically placed to the petitioner and are

either exonerated or not imposed penalty. The petitioner cannot

be held solely responsible for the unfortunate incident, that

occurred on the said date.

6. In light of the aforesaid, it is apposite to refer to the

judgment dated 19.12.2024 passed in similarly situated employee

in Special Civil Application No. 8105 of 2015 with Special Civil

Application No. 8201 of 2015, relevant Para-8 of the said

decision reads thus:

"8. Having heard the learned advocates appearing for the respective parties, following emerge:

A. The petitioner herein came to be appointed as Un-Armed Police Constable on 01.08.1976 and was promoted as Head Constable on 05.03.1993. Thereafter, was promoted as Assistant Sub Inspector on 09.05.2003 and was also further promoted as Police Sub Inspector vide order dated 21.04.2009 and the petitioner retired from service on reaching the age of superannuation, on 31.05.2011 on the post of Assistant Sub Inspector, due to his reversion.

B. The petitioner was reverted from the post of Police Sub Inspector to Assistant Sub Inspector vide order dated 09.07.2009.

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At the relevant point of time, the petitioner was serving at Odhav Police Station. By order dated 10.07.2019, the petitioner was transferred from Odhav to Dahod. Thereafter, by order dated 15.07.2009, the petitioner was suspended from service, in view of an incident of deaths of persons occurred due to consumption of spurious liquor. The charge-sheet came to be issued on 04.12.2009 holding a departmental inquiry that led to deaths of 51 persons and hospitalization of 81 persons, due to consumption of spurious country made liquor. The petitioner by letter dated

07.01.2010, gave his defence statement to the charge-sheet. On 07.11.2010, petitioner filed his defence statement before the Presiding Officer. Upon conducting a regular departmental inquiry, the Presiding Officer, by report dated 15.12.2010 held that the charges levelled against the petitioner 'not proved'. Thereafter, on reaching the age of superannuation, petitioner retired on 01.05.2011.

C. This Court has perused the show cause notice dated 07.07.2012 imposing a penalty of cut in pension of Rs.1000/- for the period of five years, by holding the petitioner guilty. Upon perusal of the said show cause notice, which is duly produced at Annexure-H, it is apposite to reproduce Para-10 of the said show cause notice, which reads thus:

"10. The Government has received the authority to impose penalty to stop pension or part thereof against Retired Government Employee under Rule - 24 of the Gujarat Civil Service (Pension) Rules - 2002. Considering the papers of Departmental Inquiry as well as the review of the Departmental Inquiry Officer etc,, sufficient and valid reasons are found to believe that he has committed gross misconduct in duty. Therefore, it is hereby informed to submit, within 30 days of receipt of this yadi, written clarification/ explanation along with necessary proofs as to why penalty of stoppage of pension admissible to him or part thereof, should not be imposed under the provisions of the above mentioned rules. The clarification/ explanation submitted by him, shall be taken into consideration before taking final decision on the proposed penalty.

If no clarification/ examination is submitted within the above mentioned time limit, further procedure as per rules shall be carried out considering that he does not want to make any submission. It is hereby informed to take note of the same."

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D. On perusal of the aforesaid, it emerges that rather than forming tentative opinion, the respondent no.1 held the petitioner guilty of misconduct.

E. Subsequently, the respondent authority on 20.03.2013 proceeded to pass the impugned order of penalty of pension cut of Rs.1000/- for the period of five years."

7. In light of the aforesaid undisputed facts, as referred

above, it is apposite to refer to the position of law:

a. In the case of Yoginath D. Bagde v/s. State of

Maharashtra and another reported in AIR 1999 SC 3734(1), the

Hon'ble Apex Court in Para-36 held thus:

"36. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.

b. The Hon'ble Division Bench has also relied on the

aforesaid ratio laid down by the Hon'ble Apex Court in Letters

Patent Appeal No. 934 of 2015, which is decided by oral

judgment on 26.06.2024, wherein, relevant paras read thus:

"46. A perusal of the contents of the show-cause notice dated

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03.01.2001, establishes that while referring to the charge Nos.1 and 4, the Disciplinary Authority has, in fact, held the same as to be proved in the show-cause notice itself and thereafter, finally the original petitioner is asked to submit his defence statement. Such an approach of the Disciplinary Authority runs contrary to the settled legal proposition of law as enunciated in the judgment of Yoginath D. Bagde (supra) and subsequent judgments. The Disciplinary Authority was required to record some tentative findings on the findings recorded by the Inquiry Officer on the unproved charge, and thereafter the explanation of the delinquent should have been called upon. In the present case, while issuing the show-cause notice dated 03.01.2001, in fact, the Disciplinary Authority has already held the charge Nos.1 and 4 proved. It is recorded that so far as the charge No.1 is concerned, a definite finding is recorded that though the Inquiry Officer has recorded that since the trial Court has not referred to the names of any Investigation Officer, and hence, the charge No.1 is not proved however, the Disciplinary Authority has recorded that only because of such findings recorded by the Inquiry Officer his responsibility does not end and after making such observation, the Disciplinary Authority has concluded that charge No.1 is held to be proved. Similarly, while referring to the Charge No.4 and recording that as per Rule 441(5) of the Gujarat Police Manuals, Part-III, it is proved that the petitioner had stayed with the accused in a private hotel, though in the Mega City like Mumbai, where police lock-ups are readily available. By making such observations, the charge No.4 is also held to be proved.

47. We may, at this stage, incorporate the observations made by the Supreme Court in below mentioned cases on the issue of disagreement by the disciplinary authority on the positive findings of the inquiry officer:-

I) In the case of Yoginath B. Bagde vs State of Maharashtra (1999) 7 S.C.C. 739, which is a case with reference to Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 in which there was no provision requiring the Disciplinary Authority to give opportunity of hearing to the delinquent before differing with the inquiry officer. The Apex Court has recorded, "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

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authority, it would given 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 reason on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with."

II) In the case of S.P. Malhotra vs. Punjab National Bank, (2013) 7 S.C.C. 251 the appellant was appointed as a Clerk-cum-Cashier in the respondent Bank. It was held that in the event the Disciplinary Authority disagrees with the findings recorded by the inquiry officer, it must record reasons for disagreement and communicate the same to the delinquent. In that case the said court not having been resorted to, punishment of dismissal was set aside. Here also, the Apex Court relied on in ECIL (supra) and other decisions on the point, to record as under. "The view taken by this court in the aforesaid case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde vs. State of Maharashtra & Anr. AIR 1999 SC 3374; State Bank of India & Ors. v/s K.P.Narayanan Kutty, AIR 2003 SC 1100; J.A. Naiksatam vs. Prothonotary and Senior Master, High Court of Bombay & Ors., AIR 2005 SC 1218; P. D. Agrawal vs. State Bank of India & Ors., AIR 2006 Sc 2064; and Ranjit Singh vs. Union of India & ors. AIR 2006 SC 3685." III) In the case of Lav Nigam vs. Chairman and M.D.ITI, (2006) 9 S.C.C. 440, a 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.

It was held that "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

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officer, he is bound to give a notice setting 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." Further it is observed that "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."

IV) In the case of State Bank of India vs. K.P.Narayan Kutti, (2003) 2 S.C.C. 449, "In para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3) (ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court."

48. From the conspectus of the aforementioned observations of the Supreme Court and this Court, the following aspects are required to be maintained when the Disciplinary Authority disagrees with the findings of the Inquiry Officer.

a) There has to be tentative / proposed findings of the disciplinary authority disagreeing with the inquiry officer's report recorded in the show cause notice. The show cause notice of disagreement should be issued to the delinquent calling upon him as to "why the findings which are in his favour is/are not required to be reversed".

(c) While issuing the show cause notice, the expression "charges are proved" should be avoided, since; the same will reflect a predetermined application of mind by the disciplinary authority.

d) Such show cause notice shall not stipulate the imposition of particular penalty, minor or major. The expression "why any of

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the penalty/punishment shall not be imposed" should be avoided.

e) After considering the reply of the delinquent to the show cause notice of disagreement, the disciplinary authority has to pass an order recording a definite finding of guilt reversing the findings of the inquiry officer, by holding the charges as proved or not proved.

f) After recording such findings, it is essential that the delinquent is issued a final show cause notice calling upon his explanation for imposition of punishment. [Vide Lav Nigam (Supra)].

g) After receipt of the reply to the show cause notice, the disciplinary authority has to pass reasoned and speaking order imposing appropriate punishment prescribed under the Rules governing disciplinary proceedings.

49. The theory of prejudice will also not apply in such cases. Thus, the procedure adopted by the Disciplinary Authority do not meet with the parameters enunciated by the Supreme Court in the aforementioned decisions. Hence, the punishment order, which is premised on such faulty approach cannot be sustained."

8. Considering the aforesaid ratio as discussed above, in

the facts of the present case, while issuing the show cause

notice, the competent authority has rather than forming a

tentative opinion, has issued the notice, in the pre-decided

manner that the petitioner has committed gross misconduct and

has resultantly passed the impugned order of penalty of stoppage

of one increment for a period of one year. Further, the case of

the present petitioner is similarly situated to that of Special Civil

Application No. 8105 of 2015 with Special Civil Application no.

8201 of 2015, decided on 19.12.2024, wherein, the said petitions

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