Gujarat High Court
Rasiklal Ambalal Makwana vs State Of Gujarat on 10 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14341 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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RASIKLAL AMBALAL MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR. GAUTAM JOSHI, SENIOR ADVOCATE WITH MR VYOM H
SHAH(9387) for the Petitioner(s) No. 1
MS. FORUM SUKHADWALA, ASST. GOVERNMENT PLEADER for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/11/2025
ORAL JUDGMENT
1. Heard learned Senior Counsel Mr. Gautam Joshi with
learned advocate Mr. Vyom H. Sha and learned Asst.
Government Pleader Ms. Forum Sukhadwala for
respondent - State.
2. Rule returnable forthwith. Learned AGP Ms. Forum
Sukhadwala waives service of notice of Rule for and on
behalf of respondent - State.
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3. The present writ petition is filed under Articles 14, 21, 226
and 311 of the Constitution of India, seeking following
reliefs:
"A. This Honourable court may be pleased to issue writ of mandamus or
in the nature of mandamus or any other appropriate writ, direction or
order quashing and setting aside the impugned show cause notice dated
17.8.2013 and the consequential order of punishment dated 29.6.2019 and
direct the respondent to pay all the consequential benefits including
consideration for promotion and other benefits flowing from such order
as if the impugned order was never passed.
B. During the admission/ pendency of the present petition this
Honourable court be pleased to stay the execution, operation and
implementation of the impugned order dated 29.6.2019."
4. BRIEF FACTS OF THE CASE APPEAR TO BE THAT:-
4.1. The petitioner was working as District Registrar of the
Cooperative Society, State of Gujarat, and when he was
posted at Nadiad, as District Registrar, granted
conditional sanction (permission / approval) on
16.07.2007 to one Mahemdavad Taluka Harijan
Sanyukta Kheti Sarkari Mandli Limited (herein after
referred as "the Society"), to sell the land of the Society.
4.2. It appears that petitioner was served with charge-sheet
dated 24.08.2009 wherein alleged that while functioning
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as District Registrar at Nadiad, he granted aforesaid
conditional sanction to the Society to sell the land
belonged to the Society, thereby, committed misconduct.
It further emanates from the charge-sheet that as per
Disciplinary Authority, land of the Society was new
tenure land, could not have been put to sell without prior
sanction of the Collector. So, according to Disciplinary
Authority, petitioner having failed to discharge his duty,
committed misconduct in terms of Rule 3 (1) (ii) of the
Gujarat Civil Services (Conduct) Rules 1971 (hereinafter
referred to as 'the Rules 1971').
4.3. Petitioner appears to have submitted his reply on
16.01.2010 disputing the charges levelled against him,
rather contending inter alia that sanction granted by him
was conditional one, inasmuch as, he imposed 13
conditions upon the Society, which include that before
actual sale of the land, all necessary permission from all
concern, as required in law, be taken by the Society. It is
further contended that as per Annual General Meeting
(AGM) of the Society held on 24.06.2007, wherein a
Resolution No.7 passed, whereby it agreed by the
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Society to sell the land. Thereafter, the Society sought
his sanction then, conditional sanction granted by him
being District Registrar of the Cooperative Society,
which according to him, was purely an administrative
decision, passed without any malafide or any extraneous
consideration.
4.4. Further, petitioner submitted that as per Section 37 read
with Section 77 of the Gujarat Co-operative Societies
Act, 1961 (hereinafter referred to as 'the Act, 1961')
with its relevant Rules, the Society was well within its
right to sell the land and as such, there is no misconduct
committed by the petitioner when granted conditional
sanction. It was further pointed out that the Society
having not obtained requisite permission from the
Revenue Department, the then District Registrar,
Nadiad ordered an inquiry under Section 86 of 'the Act,
1961' and at the end of such inquiry, nothing adverse
found, either against the petitioner or the Society in
regards to such process of sale of the land.
Nevertheless, the land could not be ultimately sold by
the Society at given point of time.
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4.5. The petitioner has also cited past instances with regard
to granting such type of conditional sanction accorded
by other District Registrars, thereby substantiated the
fact that there is no dereliction of duty on his part while
granting conditional sanction. It is further submitted by
the petitioner that land of Society was already converted
from new tenure to old tenure land by Dy. Collector
concerned on 30.06.2007 i.e. prior to conditional
sanction dated 16.07.2007. Thus, charges levelled
against him are not only base-less but require to be
dropped.
4.6. The respondent having not satisfied with such reply of
petitioner, contemplated the departmental inquiry which
was conducted by the Inquiry Officer as per The Gujarat
Civil Services (Disciplinary and Appeal) Rules, 1971
(herein after referred as "Disciplinary Rules, 1971").
On completion of inquiry, after due consideration of
evidence and submissions made by the petitioner, the
Inquiry Officer vide his report dated 24.03.2011, had
come to the conclusion that none of the charges levelled
against the petitioner stands proved in the inquiry. Thus,
Inquiry Officer has completely exonerated the petitioner
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from all such charges levelled against him.
4.7. Nonetheless, after more than 2 years from receipt of
such report, the Disciplinary Authority - respondent-
State issued a show cause-notice dated 17.08.2013
expressing its disagreement with such findings so
recorded by Inquiry Officer and communicated its own
reasons of disagreement to the petitioner.
4.8. On receipt of such disagreement - reasons, petitioner
filed detailed reply on 07.10.2013 and so also submitted
supplementary submission on 29.12.2014, reiterated as
referred above, rather also drawn attention of the
Disciplinary Authority to the fact that other similarly
situated Officers who granted conditional sanction in
past, neither subjected to any departmental action nor
penalized, rather some of them even promoted.
4.9. It appears from the record that matter remained pending
for almost six years without any further proceedings and
just one year before retirement of petitioner i.e.
30/06/2020, he was served with the punishment order
dated 29.06.2019, whereby respondent imposed the
penalty upon petitioner of stoppage of one increment
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with future effect, for committing the misconduct, as
alleged in the charge-sheet.
4.10. By way of the present writ petition, the aforesaid
punishment order is challenged by the petitioner, on
several grounds, as set out in the petition.
5. SUBMISSIONS ON BEHALF OF THE PETITIONER:-
5.1. Learned Senior Counsel Mr. Gautam Joshi with learned
advocate Mr. Vyom Shah, would respectfully submit that
the impugned punishment order is ex-facie erroneous,
perverse, arbitrary, contrary to law and as such, passed
beyond the charges levelled against the petitioner,
thereby, requires to be interfered by this Court while
exercising its powers under Article 226 of the
Constitution of India.
5.2. Learned Senior Counsel Mr. Joshi would submit that
there is a gross delay in completing the whole
disciplinary proceedings and as such, it is prejudicial to
the interest of petitioner, any decision taken by the
respondent with unexplained delay is not sustainable in
law. It is submitted that after getting exoneration in
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departmental inquiry, inasmuch as, Inquiry Officer
having not found any charges proved against the
petitioner, on submitting his report dated 24.03.2011,
imposing punishment on 29.06.2019 would nothing but
sheer mental harassment, which requires to be quashed
by this Court.
5.3. Learned Senior Counsel Mr. Joshi would respectfully
submit that entire basis of inflicting charges against the
petitioner was in regards to granting conditional
sanction in favour of the Society to sell the land, which
according to Disciplinary Authority new tenure land but
same is total lie as the land was already converted from
new tenure to old tenure on 30.06.2007, prior to
granting conditional sanction by petitioner on
16.07.2007. It is respectfully submitted that when the
entire basis of charge levelled against the petitioner is
found to be erroneous one and not supported by any
material evidence on record, such erroneous charge
would fall; then nothing remain to be decided by the
Disciplinary Authority.
5.4. Learned Senior Counsel Mr. Joshi would respectfully
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submit that even foundation of the charge levelled
against the petitioner is contrary to evidence coming
forth during the course of inquiry, no punishment could
have been imposed upon the petitioner for alleged
misconduct. It is submitted that as per settled legal
position of law, burden of proof to prove the charge is on
the shoulder of department and there is no supporting
material evidence produced on record by presenting
Officer to prove the charge, and therefore, no fault can
be found with Inquiry Officer when exonerated the
petitioner from such charge.
5.5. Learned Senior Counsel Mr. Joshi would respectfully
submit that one of the imputation of charge in regards
that petitioner being District Registrar has no authority
to sell the land of the Society, despite that he granted
sanction to sell the land beyond his power. He would
submit that it is undisputed fact that petitioner never
sold the land of the Society. He would further submit
that as per the settled legal position, charge must be
accurate one which is not observed in the present case.
5.6. Learned Senior Counsel Mr. Joshi would further submit
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that there are more than 10 instances cited by petitioner
before Disciplinary Authority to show that it was general
practice prevailing that whenever any Cooperative
Society sought for such sanction, a conditional sanction
was granted by District Registrar, Cooperative Society.
It is submitted that in most of the cases, Registrars
concerned have been imposed few conditions, unlike 13
conditions imposed by petitioner. It is further submitted
that from the conditional sanction order, a prudent one
can very well say that petitioner has acted in a manner
not prejudicial to the interest of the State, that too
without any ill-intention. It is further submitted that
when nothing adverse found against the petitioner, as
there is no allegation of malafide, malice and / or any
extraneous consideration found whereby nothing
personally gained by petitioner when granted
conditional sanction, inflicting punishment is not only
contrary to law but it amounts to demoralize the honest
officer like petitioner who otherwise had an impeccable
career.
5.7. Learned Senior Counsel Mr. Joshi would further submit
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that subsequent to grant of conditional sanction by
petitioner, the then District Registrar initiated inquiry as
per the Act, 1961 but nothing adverse found against
petitioner and Office Bearers of the Society, rather
Office Bearers of the Society were exonerated from the
criminal prosecution launched against them as Police
Investigating Officer filed 'C' summary, in the criminal
case. Such fact is totally overlooked by disciplinary
authority when imposed punishment.
5.8. Learned Senior Counsel Mr. Joshi would further submit
that merely because another view is possible,
Disciplinary Authority could not have disagreed with the
view taken by the Inquiry Officer, inasmuch as, view of
Inquiry Officer is not held to be erroneous, perverse and
not sustainable in law. It is submitted that as per settled
legal position of law, when report of Inquiry Officer
showing no charges proved against the delinquent, in
that circumstances, Disciplinary Authority may have a
disagreement but such disagreement requires to be on a
strong foundational fact and evidence, which overlooked
by Inquiry Officer when exonerated the delinquent. It is
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respectfully submitted that nothing sort of such
observed by Disciplinary Authority when disagreed with
the view of the Inquiry Officer, rather committed serious
error in law when imposed punishment, whereby
travelled beyond scope of the charge-sheet.
5.9. Learned Senior Counsel Mr. Joshi would submit that any
findings or disagreement beyond the charge-sheet are
without authority of law and would not amount to valid
disagreement but merely constitute an individual
comment having no nexus with the charges. It is
submitted that para-4 of such disagreement recorded by
Disciplinary Authority would travel beyond scope of
charge, inasmuch as, permission granted by Deputy
Collector on 30.06.2007 was not whispered in the
charge-sheet and as such, not come within the purview
of petitioner being District Registrar of Cooperative
Society, to see that such permission granted by Deputy
Collector concerned was according to law or not.
5.10. Learned Senior Counsel Mr. Joshi would further submit
that despite drawing attention of 25 instances than one,
all other District Registrars who granted sanction, for
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any reason only one of such instance considered by
Disciplinary Authority when recorded his disagreement.
It is submitted that Disciplinary Authority was also not
sure in coming to the conclusion that other District
Registrar has definitely committed any misconduct. It is
further submitted that respondent has wrongly placed
reliance upon the circular dated 10.6.2011, inasmuch
as, the same was neither existing when conditional
sanction granted, nor throw any light on the issue
germane in the matter. Thus, not applicable in the
present case.
5.11. Learned Senior Counsel Mr. Joshi would respectfully
submit that when it is not proved on record that there is
any misconduct committed by the petitioner and in
absence of any ill-motive, malice, malafide and / or other
extraneous conditions etc. not germane, as per settled
legal position of law, no punishment could have been
inflicted upon the petitioner. It is submitted that as per
various case laws of Hon'ble Apex Court, followed by
this Court, mere error of judgment, act of negligence,
innocent mistake etc., all such acts would not constitute
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the misconduct. It is submitted that if the administrative
decision of petitioner granting conditional sanction
found to be not sustainable in law, either Department or
Member of Society could have challenged it as per
Section 153 /155 of the Act, 1961, which is not done.
5.12. Lastly, learned Senior Counsel Mr. Joshi would humbly
submit that when there is an unexplained delay on the
part of Disciplinary Authority to conclude the
disciplinary action against the petitioner after such long
time, especially when no misconduct found and proved
on record, disagreement of Disciplinary Authority is on
unsustainable reasons and the entire base of charge-
sheet falls, and thus, this Court must exercise its
discretionary power in favour of the petitioner by issuing
Writ of Mandamus, and grant the reliefs as prayed in the
writ petition.
5.13. To buttress his arguments, learned Senior Counsel Mr.
Joshi would rely upon following three judgments;
i. Amresh Shrivastava Vs. The State of Madhya Pradesh & Ors.
rendered in Civil Appeal No.10590 of 2024 [Neutral Citation 2025
INSC 417 : 2025 SCC OnLine SC 693];
ii. Natvarlal Motilal Chavda Vs. State of Gujarat rendered in R/Letters
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Patent Appeal No.185 of 2017 with Civil Application No.1 of 2017;
iii. The New India Assurance Co. Ltd. Vs. Chandrakant Gokalbhai Patel
rendered in R/Letters Patent Appeal No.1114 of 2022 with allied
matters
6. SUBMISSIONS ON BEHALF OF THE
RESPONDENT- STATE
6.1. Per Contra, learned Asst. Government Pleader Ms.
Forum Sukhadwala would respectfully submit that there
is no merit in the present writ petition as undisputedly
petitioner without having authority, granted conditional
sanction to sell the land of the Society, thereby,
committed serious misconduct, which proved on record.
6.2. Learned AGP would further submit that there is a delay
and latches on the part of petitioner in questioning show
cause notice dated 17.08.2013 in this petition, which
filed in year 2019. It is respectfully submitted that when
the aforesaid show cause notice issued by the
Disciplinary Authority, petitioner having replied to such
show cause notice, later on, cannot be permitted to
challenge it, on any grounds.
6.3. Learned AGP would respectfully submit that as per
settled legal position of law, in a case of disagreement
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with the view/reasons of Inquiry Officer, it is always
open for the Disciplinary Authority to issue show cause
notice to delinquent with such disagreement. It is
submitted that when the reply of delinquent not found
satisfactory, after recording reasons of disagreement,
Disciplinary Authority can always pass order of penalty /
punishment. It is respectfully submitted that there are
valid and justifiable reasons set out by Disciplinary
Authority to disagree with reasoning of Inquiry Officer
who exonerated the petitioner. It is further submitted
that when reply of petitioner not found satisfactory,
order of punishment imposed upon him which cannot be
interfered by this Court.
6.4. Learned AGP would further submit that land in question
of the Society was originally new tenure land which
might have been converted to old tenure land but
considering the peculiar facts and circumstances of the
case, when petitioner being District Registrar has no
authority to grant any sanction to sell the property,
having so granted, committed serious misconduct.
6.5. Learned AGP would further submit that petitioner has
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acted in haste and has granted conditional sanction
within seven days from the receipt of such request from
the Society. It is submitted that there are certain
provisions of revenue law which clearly overlooked by
the petitioner when granted conditional sanction. It is
further submitted that there are criminal cases filed
against Office Bearer of the Society for mismanagement
of affairs of the Society, which clearly overlooked by the
petitioner. It is further submitted that petitioner could
not have permitted the Society to sell the land to any
individual, inasmuch as, as per land laws of the State,
the agricultural land hold by the Society, could not have
been sold in favour of non-agriculturist except with prior
approval / permission of the Collector concerned, which
was undisputedly not received by the Society when
conditional sanction granted by the petitioner.
6.6. Learned AGP would further submit that as per circular
dated 10.06.2011 issued by the State in Department of
Cooperative Society, Gandhinagar, no District Registrar
can grant such type of sanction and if any such instance
noticed by the Authority, the Disciplinary action be taken
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against such Registrar. It is submitted that as per
provisions of the Act, 1961, District Registrar was not
competent to grant such sanction, having so granted by
the petitioner, it would amount to dereliction of duty and
petitioner having not maintained devotion to duty,
inflicted with punishment with stoppage of only one
increment with future effect.
6.7. Learned AGP would further submit that there is no
intentional delay on the part of the Disciplinary
Authority when passed punishment order in 2019. It is
submitted that on receipt of inquiry report in year 2011,
Disciplinary Authority has issued show cause notice in
year 2013 citing reasons of disagreement to the
petitioner, thereby, such action culminated into
punishment of petitioner in year 2019, cannot be set
aside on mere delay. It is submitted that due to
administrative reasons/exigency, there was some time
taken by respondent in passing the order of punishment.
6.8. Learned AGP would respectfully submit that petitioner
cannot claim negative parity by citing other instances as
once it is established on record that he has no authority
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to alienate the land of the Society, that too, non-
agriculturist, granting such sanction by petitioner
amounts to misconduct. It is submitted that none of
decisions cited by learned Senior Counsel Mr. Joshi
would be applicable and not helpful to the case of the
petitioner.
6.9. Making the aforesaid submissions, learned AGP would
request this Court to dismiss the present writ petition.
7. No other and further submissions are being made.
8. POINTS FOR DETERMINATION
8.1. Upon consideration of the rival submissions and having
regards to the aforestated facts, according to my view,
following points arise for consideration.
(i) Whether in the facts and circumstances of the case,
reasons set out by the Disciplinary Authority for its
disagreement with reasons of Inquiry Officer, who
exonerated the petitioner from all charges,
sustainable in law?
(ii) Whether the charges levelled against the petitioner
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constitute misconduct?, if answer to it 'No', still can it
be said that such charges proved against petitioner in
the disciplinary inquiry?
(iii) Whether in facts and circumstance of the case,
impugned punishment order suffers from delay/laches
as disciplinary proceeding/inquiry completed after
more than a decade from its insitution?
9. ANALYSIS
POINT NO. (i) :
9.1. The facts, which are narrated hereinabove, are not in
dispute. The petitioner when worked as District
Registrar, Nadiad, granted conditional sanction in favour
of the Society to sell its land. The petitioner imposed 13
conditions while passing an administrative order granting
conditional sanction to sell the land. As per the charge
levelled against him, such land was new tenure land,
could not have been sold by the Society.
9.2. It has come on record during the course of departmental
inquiry that prior to granting of conditional sanction by
petitioner on 16.07.2007, Dy. Collector concerned has
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already converted such land from new tenure to old
tenure on 30.06.2007. This fact remained uncontroverted
on record. If it be so, the basis on which charge-sheet
issued against the petitioner that he has accorded
conditional sanction to sell the new tenure land of
Society, would fall. In view of above, entire basis upon
which the charge-sheet issued would not survive,
inasmuch as, factual foundation on which charge-sheet
prepared and served upon the petitioner was on wrong
premise, thus, petitioner could not have been held guilty
for any alleged misconduct.
9.3. The Inquiry Officer having noticed the aforesaid facts
which came on record by evidence, and so also factored
in such kind of conditional sanction accorded by other
District Registrars (25 instances were cited), arrived at
conclusion that no charges levelled against the petitioner
proved in the inquiry. Thus, as per view of Inquiry
Officer, petitioner requires to be exonerated from all the
charges.
9.4. The respondent - Disciplinary Authority concern having
disagreed with such view of Inquiry Officer, issued show
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cause notice to petitioner calling upon him to submit his
response. The Disciplinary Authority noted down his
reasons of disagreement when served show cause notice
to petitioner. The petitioner responded to such
disagreement / show cause notice by submitting his
detailed reply first on 07.10.2013 and supplementary
submission on 29.12.2014.
9.5. It is true that as per Sub-rule (2) of Rule 10 of
Disciplinary Rules, 1971, Authority can disagree with the
finding / reasons assigned by the Inquiry Officer who
exonerated the delinquent (petitioner), but requires to
record its own reasons/finding on the charge levelled
against delinquent on the basis of the evidence available
on record of the inquiry. The aforesaid Sub-rule reads as
under,
"10. Action on the Inquiry report:--
(1).........
(2) The Disciplinary Authorityshall, if it disagrees with the findings
of the Inquiry Authorityon any article of charge, record its reasons
for such disagreementand record its own findings on such charge if
the evidence on record is sufficient for the purpose.
(3) .........
(4)........."
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9.6. Nonetheless, such disagreement cannot be fanciful and
authority cannot allow to take different view as per its
own perspective but requires to record cogent / valid and
effectual reasons of disagreement germane from the
record/evidence which unnoticed by Inquiry Officer when
exonerated the delinquent.
9.7. As such, this issue is no longer res integra but decided in
so many decisions of Hon'ble Apex Court / this Court, one
of which is cited by learned Senior Counsel Mr. Joshi for
the petitioner during the course of his submissions. In a
case of Natvarlal Motilal Chavda (supra), wherein the
Division Bench of this Court has held, in para-15 and
15.1, as under;
"15. It is in this context that now even the subsequent exercise of
the two disagreement notices that is the one pre impugned
judgement and the one post the judgement need to be scanned.
Both the notices when seen in light of the entire evidence on
record and the charge-sheet would suggest that the reasons
assigned by the disciplinary authority terming them as
'disagreement' is nothing but a mere reiteration of allegations
which pass off as that of reasons for disagreement. Where the
Inquiry Officer had held the charges as partly proved, except of
adding a few lines imputing malice, mala fide or lack of integrity
in the disagreement reasons, for instance in the case of tender
process nothing substantial has come forth. Whatever has been
observed in the form of disagreement, therefore, is nothing but
reiteration of the allegations. Merely because in the perception
of the disciplinary authority a different view is possible, it
cannot be termed to stand the test of being recorded as a
disagreement.
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15.1 In other words, therefore, the perusal of the disagreement
notice dated 28.03.2005, when compared to the one dated
01/03.05.2017 would suggest that even in that subsequent notice
nothing different is purported to have been brought out. The
subsequent notice has been brought on record by virtue of the
Civil Application which we have referred to hereinabove and
therefore applying the same yardstick as we have done to the
show cause notice dated 28.03.2005, we are of the opinion that
such reasons cannot be termed as disagreement."
(emphasis supplied)
9.8. It would also apt to refer very pertinent observation
made by the Division Bench of Madhya Pradesh High
Court in a case of Union of India and others V/s Dr.
V.M. Bhan, reported in 2006 SCC OnLine MP 375 :
(2007) 1 MP LJ 574, wherein speaking for bench,
Hon'ble Mr. Justice Dipak Mishra (his lordship then was),
held thus;
"9. ...........The disciplinary authority disagreed with order
dated 29-9-2003. We have carefully perused the reasons for
disagreement. On a scrutiny of the same, it is luminescent that
the disciplinary authority has really not indicated any reason to
meet out the reasons ascribed by the enquiry officer. He has
reproduced the charges in a different language. It is needless to
emphasise, a note of disagreement has to have reasons of
substance which really can be regarded as heart and soul of
the order. We are unable to find so."
(emphasis supplied)
10. Thus, in view of above, respondent requires to pass its
own reasons/findings when disagreed with reasons /
finding of Inquiry Officer on the basis of the evidence.
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Nevertheless, such disagreement would not allow to
consider on the basis that there is a different view possible
in the matter which Disciplinary Authority would like to
take, but such view requires to be drawn on the basis of
evidence not considered by Inquiry Officer. Once, such
disagreement passed through aforesaid test, then after,
Authority can proceed further against petitioner, otherwise
not.
11. In the present case, after going through the note of
disagreement supplied to petitioner by respondent while
issuing show-cause notice on 17.08.2013, it is found that
no valid and cogent reasons/finding assigned by
respondent - Authority in its disagreement note except
reiteration of charges levelled against petitioner when
served with charge-sheet, non-consideration of evidence in
its perspective is apparent, and even point no.4 of such
disagreement note as such beyond scope of charge levelled
against petitioner.
12. Further, while recording its disagreement, it is
erroneously observed by Disciplinary Authority that
District Registrar has no authority to sell the land of
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Society, inasmuch as, undisputedly such was not the
charge levelled against the petitioner that he sold the land
of Society. Likewise, the reference of provisions of
Sections 29 and 30 of the Gujarat Agricultural Land
Ceiling Act, 1960 is beyond the scope of charge-sheet,
inasmuch as, such was not the charge levelled against the
petitioner. As such, petitioner while granting conditional
sanction imposed in all 13 conditions, in which, one of the
conditions that before selling the land, all requisite
permission from all concerned be obtained by Society.
Same-way, conversion of land by Dy. Collector from new to
old tenure would not fall within the domain of petitioner,
thereby, any loss caused to the exchequer need not be
gone into by the petitioner when granted conditional
sanction. The Disciplinary Authority has not considered the
vital aspect that there were en-number of instances cited
by the petitioner, whereby, prima faice, proved that other
District Registrar, Cooperative Society, accorded such kind
of conditional sanction to other similarly situated societies,
rather Disciplinary Authority conveniently considered only
one of such instance, that too, without arriving at a definite
conclusion that the concern District Registrar has
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committed error of law or not.
13. In nutshell, when reasons of disagreement are neither
germane from the evidence nor in consonance with
charges, so levelled against the petitioner.
14. Thus, in view of the aforesaid reasons and having found
that reasons so assigned by the Disciplinary Authority
while disagreeing with the reasons assigned by the
impugned Officer, is not sustainable in law, according to
my view, such disagreement is without any valid reasons,
thus, not sustainable in law. Point No. (i) answered
accordingly.
POINT NO. (ii) :
15. The contours of the expression "misconduct" is well
described by several pronouncement of Hon'ble Apex
Court followed by this Court. I would like to refer few of
such as follow:
15.1. To incisive examination, by the Hon'ble Apex Court, in
the case of Ravi Yashwant Bhoir v. Collector, (2012)
4 SCC 407, wherein, held as under:
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"MISCONDUCT:
11.Misconduct has been defined in Black's Law Dictionary, Sixth
Edition as:
A transgression of some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful behavior, wilful in
character, improper or wrong behavior, its synonyms are misdemeanor,
misdeed, misbehavior, delinquency, impropriety, mismanagement offense,
but not negligence or carelessness.
Misconduct in office has been defined as:
Any unlawful behavior by a public officer in relation to the duties of his
office, wilful in character. Term embraces acts which the office holder
had no right to perform, acts performed improperly, and failure to act in
the face of an affirmative duty to act.
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at
page 821 defines misconduct thus:
"The term misconduct implies a wrongful intention, and not a mere
error of judgment. Misconduct is not necessarily the same thing as
conduct involving moral turpitude. The word misconduct is a relative
term, and has to be construed with reference to the subject matter and the
context wherein the term occurs, having regard to the scope of the Act or
statute which is being construed. Misconduct literally means wrong
conduct or improper conduct. In usual parlance, misconduct means a
transgression of some established and definite rule of action, where no
discretion is left, except what necessity may demand and carelessness,
negligence and unskilfulness are transgressions of some established, but
indefinite, rule of action, where some discretion is necessarily left to the
actor. Misconduct is a violation of definite law; carelessness or abuse of
discretion under an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is necessarily indefinite.
Misconduct in office may be defined as unlawful behaviour or neglect by
a public officer, by which the rights of a party have been affected.
Thus it could be seen that the word misconduct though not capable of
precise definition, on reflection receives its connotation from the context,
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the delinquency in its performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it must be improper or
wrong behaviour; unlawful behaviour, wilful in character; forbidden act,
a transgression of established and definite rule of action or code of
conduct but not mere error of judgment, carelessness or negligence in
performance of the duty; the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to the subject
matter and the context wherein the term occurs, regard being had to the
scope of the statute and the public purpose it seeks to serve...."
(emphasis supplied)
(See also:State of Punjab & Ors. v. Ram Singh Ex. Constable,
1992 AIR(SC) 2188).
13.Mere error of judgment resulting in doing of negligent act does
not amount to misconduct. However, in exceptional circumstances,
not working diligently may be a misconduct. An action which is
detrimental to the prestige of the institution may also amount to
misconduct.Acting beyond authority may be a misconduct. When
the office-bearer is expected to act with absolute integrity and
honesty in handling the work, any misappropriation, even
temporary, of the funds, etc. constitutes a serious misconduct,
inviting severe punishment. (VideDisciplinary Authority-cum-Regl.
Managerv.Nikunja Bihari Patnaik,(1996) 9 SCC 69:1996 SCC
(L&S) 1194,Govt. of T.N.v.K.N. Ramamurthy[(1997) 7 SCC
101:1997 SCC (L&S) 1749:AIR 1997 SC 3571],Inspector Prem
Chandv.Govt. of NCT of Delhi[(2007) 4 SCC 566:(2007) 2 SCC
(L&S) 58] andSBIv.S.N. Goyal[(2008) 8 SCC 92:(2008) 2 SCC
(L&S) 678:AIR 2008 SC 2594].)
14. InGovt. of A.P.v.P. Posetty[(2000) 2 SCC 220:2000 SCC (L&S)
254], this Court held that since acting in derogation to the prestige
of the institution/body and placing his present position in any kind
of embarrassment may amount to misconduct, for the reason, that
such conduct may ultimately lead that the delinquent had behaved
in a manner which is unbecoming of an incumbent of the post.
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15. InM.M. Malhotrav.Union of India[(2005) 8 SCC 351:2005 SCC
(L&S) 1139:AIR 2006 SC 80], this Court explained as under :
(SCC p. 362, para 17)
"17.... It has, therefore, to be noted that the word 'misconduct' is not
capable of precise definition. But at the same time though incapable of
precise definition, the word 'misconduct' on reflection receives its
connotation from the context, the delinquency in performance and its
effect on the discipline and the nature of the duty.The act complained of
must bear a forbidden quality or characterand its ambit has to be
construed with reference to the subject-matter and the context wherein
the term occurs, having regard to the scope of the statute and the public
purpose it seeks to serve."
A similar view has been reiterated inBaldev Singh Gandhiv.State of
Punjab[(2002) 3 SCC 667:AIR 2002 SC 1124].
16.Conclusions about the absence or lack of personal qualities in
the incumbent do not amount to misconduct holding the person
concerned liable for punishment.(SeeUnion of Indiav.J.
Ahmed[(1979) 2 SCC 286:1979 SCC (L&S) 157:AIR 1979 SC
1022].)
17. It is also a settled legal proposition that misconduct must
necessarily be measured in terms of the nature of the misconduct
and the court must examine as to whether misconduct has been
detrimental to the public interest. (VideBank of Indiav.Mohd.
Nizamuddin[(2006) 7 SCC 410:2006 SCC (L&S) 1663:AIR 2006
SC 3290].)
18. The expression "misconduct" has to be understood as
atransgression of some established and definite rule of action, a
forbidden act, unlawful behaviour, wilful in character. It may be
synonymous as misdemeanour in propriety and mismanagement. In
a particular case, negligence or carelessness may also be a
misconduct for example, when a watchman leaves his duty and
goes to watch cinema, though there may be no theft or loss to the
institution but leaving the place of duty itself amounts to
misconduct. It may be more serious in case of disciplinary forces.
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19. Further, the expression "misconduct" has to be construed
and understood in reference to the subject-matter and context
wherein the term occurs taking into consideration the scope and
object of the statute which is being construed. Misconduct is to be
measured in the terms of the nature of misconduct and it should
be viewed with the consequences of misconduct as to whether it
has been detrimental to the public interest."
(emphasis supplied)
15.2. Even recently Hon'ble Apex Court in the case of
Amresh Shrivastava (Supra), also reiterated similar
view, wherein also previous case law on such issue relied
upon. It would be apt to refer pertinent observations of
the Hon'ble Apex Court in the aforesaid case, reads as
under;
"8.1 This Court had ruled that in absence of allegations of
extraneous influence, departmental proceedings should not
be initiated merely because a quasi-judicial order was
incorrect.
9. Further reliance was also placed upon the judgment of this
Court in Zunjarrao Bhikaji Nagarkar vs. Union of India and
Others [(1999) 7 SCC 409], where this Court had held the
quasi-judicial officer's error in judgment does not
automatically imply misconduct or favouritism. Disciplinary
action requires clear evidence of extraneous influence
beyond mere legal mistakes to avoid undermining judicial
independence. Similarly, in case of Krishna Prasad Verma
through Lrs. vs. State of Bihar and Others [(2019) 10 SCC
640], this Court clarified that while wrong orders by judicial
officers should not automatically lead to disciplinary action
unless there are allegations of misconduct based on
extraneous influences. The remedy under such circumstances
would be available to the parties concerned to avail all the
remedies available under law. It was further reiterated that
unless there are clear cut allegations of misconduct,
extraneous influences, gratification of any kind etc.,
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disciplinary proceedings should not be initiated merely on
the basis that a wrong order has been passed by the judicial
officer or merely on the ground that the judicial order is
incorrect.
16. In the present case, we are of the considered view that the
charges alleged against the Appellant in the chargesheet fall
under the category of a wrongful order, which does not
appear to have been influenced by extraneous factors or any
form of gratification. It appears that the order has been
passed in good faith, without any indication of dishonesty.
Furthermore, the facts outlined in the Show Cause Notice do
not suggest any such impropriety. The power exercised by
the Appellant in his capacity as a Tehsildar, while passing
the order of Land Settlement Order, cannot be considered of
a nature that would warrant disciplinary proceedings against
him. The decision relied upon by the Counsel for the
Appellant as mentioned above, supports this view.
Consequently, the first question is answered in favor of the
Appellant".
(emphasis supplied)
15.3. It would also apposite to have a reference of the
decision of the Division Bench of this Court in case of
Chandrakant Gokalbhai Patel (supra), wherein after
discussing the case law as to what constitute
'misconduct' in departmental proceeding, the Division
Bench of this Court in its aforesaid decision observed and
held thus;
"22. To appreciate the contentions of the learned counsel for
the parties, having noted the factual aspects of the
matter, the nature of charges and the manner in which
the decision was taken for settlement of cases in the Lok
Adalat, we are first required to cull out the law laid
down by the Apex Court in the decisions cited by the
learned counsel for the writ petitioner as to the meaning
of term 'Misconduct'.
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23. In Inspector Prem Chand versus Government of NCT of
Delhi (Supra), the Apex Court has taken note of the
observations about the meaning of terms 'misconduct' in
State of Punjab and Others versus Ram Singh
Ex.Constable reported in 1992 (4) SCC 54, in paragraph
10 as under : -
"10. In State of Punjab and Ors. vs. Ram Singh
Ex. Constable 1992 (4) SCC 54, it was stated:
"Misconduct has been defined in Black's Law
Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and
definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, wilful
in character, improper or wrong behaviour, its
synonyms are misdemeanor, misdeed,
misbehavior, delinquency, impropriety,
mismanagement, offense, but not negligence or
carelessness.' Misconduct in office has been
defined as:
"Any unlawful behaviour by a public officer in
relation to the duties of his office, willful in
character. Term embraces acts which the officer
holder had no right to perform, acts performed
improperly, and failure to act in the face of an
affirmative duty to act."
In P. Ramanatha Aiyar's Law Lexicon, 3rd
edition, at page 3027, the term 'misconduct' has
been defined as under:
"The term 'misconduct' implies, a wrongful
intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as
conduct involving moral turpitude.
The word 'misconduct' is a relative term, and
has to be construed with reference to the subject
matter and the context wherein the term occurs,
having regard to the scope of the Act or statute
which is being construed. Misconduct literally
means wrong conduct or improper conduct."
[See also Bharat Petroleum Corpn. Ltd. vs. T.K.
Raju, [2006 (3) SCC 143].
24. In Union of India & Ors. vs. J. Ahmed (supra), relied
therein, it was noted in paragraph 12 that : -
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"12. In Union of India & Ors. vs. J. Ahmed (1979
(2) SCC 286), whereupon Mr. Sharan himself has
placed reliance, this Court held so stating:
"Code of conduct as set out in the Conduct Rules
clearly indicates the conduct expected of a
member of the service. It would follow that
conduct which is blameworthy for the
Government servant in the context of
Conduct Rules would be misconduct. If a
servant conducts himself in a way
inconsistent with due and faithful discharge
of his duty in service, it is misconduct (see
Pierce v. Foster, 17 Q.B. 536, 542). A disregard of
an essential condition of the contract of service
may constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers, 1959 1 WLR
698)]. This view was adopted in Sharad Prasad
Onkarprasad Tiwari v. Divisional Superintendent,
Central Railway, Nagpur Division, Nagpur, (61
Bom LR 1596), and Satubha K. Vaghela v. Moosa
Raza, (10 Guj LR 23). The High Court has noted
the definition of misconduct in Stroud's Judicial
Dictionary which runs as under:
"Misconduct means, misconduct arising from ill
motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such
misconduct."
[emphasis supplied]
25. It was observed that in the Chairman and M D, Bharat
Pet. Corpn Ltd. versus T K. Raju (supra), it was noted
that misconduct is a generic term. Term embraces acts
which the office holder had no right to perform, acts
performed improperly, and failure to act in the face of
an affirmative duty to act. The misconduct is a relative
term, and has to be construed with reference to the
subject matter and the context wherein the term occurs,
having regard to the scope of the Act or the statute
which is being construed. Misconduct literally means
wrong conduct or improper conduct.
26. It was noted in Union of India versus J. Ahmed (supra),
that there may be negligence in performance of duty and
a lapse in performance of duty or error of judgment in
evaluating the developing situation, but that would not
constitute misconduct unless the consequences directly
attributable to negligence would be such as to be
irreparable or the resultant damage would be so heavy
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that the degree of culpability would be very high. An
error can be indicative of negligence and the degree of
culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than
deliberate wickedness or malevolence. Referring to
certain hypothetical examples in paragraph '11' of the
said decision, it was observed that :-
"11. Code of conduct as set out in the Conduct
Rules clearly indicates the conduct expected of a
member of the service. It would follow that that
conduct which is blameworthy for the
Government servant in the context of Conduct
Rules would be misconduct. If a servant conducts
himself in a way inconsistent with due and
faithful discharge of his duty in service, it is
misconduct [see Pierce v. Foster] (1886) 17 QBD
536 (at p. 542.) A disregard of an essential
condition of the contract of service may constitute
misconduct [see Laws v. London Chronicle
(Indicator Newspapers) (1959) 1 WLR 698]. This
view was adopted in Sharadprasad
Onkarprasad Tiwari v. Divisional Superintendent,
Central Railway, Nagpur Division, Nagpur, 61
Bom LR 1596 : (AIR 1961 Bom 150), and Satubha
K. Vaghela v. Moosa Raza, (1969) 10 Guj LR 23.
The High Court has noted the definition of
misconduct in Stroud's Judicial Dictionary which
runs as under:
"Misconduct means, misconduct arising from
ill motive; acts of negligence, errors of
judgment, or innocent mistake, do not
constitute such misconduct". In industrial
jurisprudence amongst others, habitual or gross
negligence constitute misconduct but in
Management, Utkal Machinery Ltd. v. Workmen,
Miss Shanti Patnaik, (1966) 2 SCR 434 : (AIR
1966 SC 1051), in the absence of standing orders
governing the employee's undertaking,
unsatisfactory work was treated as misconduct
in the context of discharge being assailed as
punitive. In S. Govinda Menon v. Union of India,
(1967) 2 SCR 566 : (AIR 1967 SC 1274), the
manner in which a member of the service
discharged his quasi-judicial function disclosing
abuse of power was treated as constituting
misconduct for initiating disciplinary proceedings.
A single act of omission or error of judgment
would ordinarily not constitute misconduct
though if such error or omission results in serious
or atrocious consequences the same may amount
to misconduct as was held by this Court in P.H.
Kalyani v. Air France, Calcutta, (1964) 2 SCR 104
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: (AIR 1963 SC 1756), wherein it was found that
the two mistakes committed by the employee
while checking the load-sheets and balance
charts would involve possible accident to the
aircraft and possible loss of human life and,
therefore, the negligence in work in the context of
serious consequences was treated as misconduct.
It is, however, difficult to believe that lack of
efficiency or attainment of highest standards in
discharge of duty attached to public office would
ipso facto constitute misconduct. There may be
negligence in performance of duty and a lapse in
performance of duty or error of judgment in
evaluating the developing situation may be
negligence in discharge of duty but would not
constitute misconduct unless the consequences
directly attributable to negligence would be such
as to be irreparable or the resultant damage
would be so heavy that the degree of culpability
would be very high. An error can be indicative of
negligence and the degree of culpability may
indicate the grossness of the negligence.
Carelessness can often be productive of more
harm than deliberate wickedness or malevolence.
Leaving aside the classic example of the sentry
who sleeps at his post and allows the enemy to
slip through, there are other more familiar
instances of which a railway cabinman signals in
a train on the same track where there is a
stationary train causing headlong collision; a
nurse giving intravenous injection which ought to
be given intramuscular causing instantaneous
death; a pilot overlooking an instrument showing
snag in engine and the aircraft crashes causing
heavy loss of life. Misplaced sympathy can be a
great evil [see Navinchandra Shakerchand shah
v. Manager, Ahmedabad Co- op. Department
Stores Ltd., (1978) 19 Guj LR 108 at p. 120)]. But
in any case, failure to attain the highest standard
of efficiency in performance of duty permitting an
inference of negligence would not constitute
misconduct nor for the purpose of Rule 3 of the
Conduct Rules as would indicate lack of devotion
to duty."
27. It was, thus, observed that the Code of conduct, as set
out in the Conduct Rules, clearly indicates the conduct
expected of a member of the service. It would follow that
the conduct which is blameworthy for the Government
servant in the context of the Conduct Rules would be
'Misconduct'. If a servant conducts himself in a way
inconsistent with due and faithful discharge of his duty in
service, it is Misconduct. (Reference was made to Pierce
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v. Foster, 17 Q.B. 536, 542). A disregard of an essential
condition of the contract of service may constitute
Misconduct. (emphasize was to the decision of the High
Court of Bombay in Sharadprasad Onkarprasad Tiwari
v. Divisional Superintendent, Central Railway, Nagpur
Division, Nagpur reported in AIR 1961 Bom 150 : 61
Bom LR 1596 therein). The definition of Misconduct in
Stroud's Judicial Dictionary, has been noted therein.
28. The decision of the Apex Curt in S. Govinda Menon v.
Union of India reported in (1967) 2 SCR 556 : AIR 1967
SC 1274, was further noted to record that though the
manner in which a member of the service discharged his
quasi-judicial function disclosing abuse of power was
treated as constituting misconduct for initiating
disciplinary proceedings, however, a single act of
omission or error of judgment would ordinarily not
constitute misconduct though if such error or omission
results in serious or atrocious consequences, the same
may amount to Misconduct. It is however, difficult to
believe that lack of efficiency or attainment of highest
standards in discharge of duty attached to public office
would ipso facto constitute misconduct."
(emphasis supplied)
15.4. What is discernible from the aforesaid decisions of the
Hon'ble Apex Court & this Court, the following
propositions, relating to the jurisprudential contours of
the expression "misconduct", emanates, which can be
summarised as under:
(i) Mere negligence or carelessness is not
"misconduct".
(ii) Incompetence, incapability to hold a post, and
want of requisite efficiency are also not
"misconduct".
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(iii) Failure to come up to the highest expectations
of an officer holding a responsible post, lack of
aptitude or qualities of leadership are also not
"misconduct".
(iv) A single act of omission, or error of judgment,
would not ordinarily constitute "misconduct";
however, if such act or error results in serious
or atrocious consequences it may amount to
"misconduct".
(v) "Misconduct" means conduct arising from ill-
motive.
(vi) The misconduct is a relative term, and has to
be construed with reference to the subject
matter and the context wherein the term oc-
curs, having regard to the scope of the Act or
the statute which is being construed.
"Misconduct" impliesblameworthyconduct.
(vi) Conduct inconsistent with due and faithful
discharge of duty is "misconduct".
(vii) Disregard of a mandatory condition of the
contract of service of an employee may
constitute "misconduct".
(viii) Similarly, carelessness or negligence resulting
in atrocious consequences, may constitute
"misconduct". This would ordinarily apply in
extreme cases, as is apparent from the
illustrative examples given by the Supreme
Court in its decision, wherein make it clear
that it is only the most extreme and drastic
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consequences which could justify
categorization of mere carelessness or
negligence, on the part of deliquent, as
"misconduct".
(ix) Gross or habitual negligence in performance of
duty may, however, constitute "misconduct",
even in the absence ofmens rea.
(x) Misconduct must ordinarily be wilful in
character, and not merely an error of judgment.
It must involve a transgression of some
established or definite rule of conduct, or doing
of some act which is forbidden.
(xi) Action which is detrimental to the prejudice of
an institution, may in given cases, amount to
"misconduct".
16. Now, keeping the aforesaid factors in mind, when I
examined the allegation/charge levelled against
petitioner, having so observed hereinabove that
petitioner was chargesheeted for according conditional
sanction to the Society to sell its land. Such decision
accorded by petitioner having discharge his duty as
District Registrar. No malafide, malice or any extraneous
consideration alleged against petitioner by respondent
when served charge-sheet or till inflicted punishment
order, and otherwise also nothing on record to remotely
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suggests any serious lapses on part of petitioner which
would constitute 'misconduct' per se as described herein
above. As such, he was chargesheeted because of
accorded conditional sanction and nothing more alleges.
Even as observed above, basis of issuance of chargesheet
against petitioner was erroneous one, inasmuch as, the
land of the Society already converted from new tenure to
old tenure when conditional sanction accorded by the
petitioner, thus, such fact could not form basis of
issuance of charge-sheet that the land permitted to sell is
new tenure land.
17. Having so held above, mere act of omission, error of
judgment and / or act of negligence would not constitute
misconduct unless it is serious, reaches to atrocious
consequence etc. None of such ingredients, either
germane or made out by the respondent - Disciplinary
Authority when arrived at the conclusion that there was
misconduct committed by petitioner when accorded
conditional sanction. Such decision of petitioner, at best
can be considered as an error of judgement and/or
mistake of law on part of petitioner. Nevertheless, in view
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of case law discussed herein above, mere wrong decision
of petitioner without any evidence/proof of favoritism
and/or no clear evidence of any extraneous consideration
when such order passed by petitioner, such an act of
petitioner according conditional sanction, according to
my view, would not constitute 'misconduct'. Thus, it can
be gainsaid that petitioner while discharging his duty as
District Registrar, having accorded the conditional
sanction would not constitute any misconduct.
18. When such would be the conclusion, petitioner having not
committed any misconduct, holding him guilty having
found charges proved against him in domestic inquiry as
held by respondent is nothing but erroneous and
perverse observation and decision of respondent -
Disciplinary Authority. The respondent without taking
into account the aforestated facts and law, on complete
wrong premise held that charges proved against
petitioner. Rather, respondent has not even properly
appreciated the response/reply submitted by petitioner
when confronted with show-cause notice dated
17.08.2013. Had it been considered in proper perspective
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by respondent, hopefully, no occasion would have arisen
to pass the impugned order by respondent.
19. As can be seen from the record that petitioner has clearly
submitted in his reply dated 29.12.2014, that as per
Section 37 read with Section 77 and respective Rules of
'the Act, 1961', the Society well within its right to sell the
land. It would be appropriate to refer at least Section 37
of 'the Act, 1961';
"37. A Society on its registration shall be a body
corporate by the name under which it is registered, with
perpetual succession and a common seal and with power
to acquire, hold and dispose of property, to enter into
contract, to institute and defend suits and other legal
proceedings, and to do all such things as are necessary
for the purpose for which it is constituted."
The annual general meeting of the Society
can be held as per Section 77 of 'the Act, 1961, wherein
the decision was in fact taken by the Society to sell the
land and before sale get sanctioned from the District
Registrar. So, a request made before the petitioner, who
happens to be District Registrar, Nadiad, accorded it as
aforesaid. It may be true that there is no express
provisions in 'the Act, 1961' which authorized the
District Registrar to grant such sanction but when
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Society having taken the decision in its Annual General
Meeting (AGM), whereby intended to sell its immovable
property which as per Section 37 can very well free to
do so, in absence of any such sanction. At the same time,
having approached the District Registrar - petitioner
with a request to accord his sanction, who inadvertently
granted conditional sanction passing the order on his
administrative side like other District Registrar also did
in past, no fault could have been found with it, in any
case, it would not constitute any 'misconduct'.
20. It requires to be considered that petitioner has not sold
the land of the Society, rather only accorded conditional
sanction to sell the land of the Society with stipulation of
13 conditions unlike others having imposed only few.
Having so referred hereinabove, as per Section 37 of 'the
Act, 1961', the Society was empowered to sell its land
even without getting such approval. So, keeping in mind
such fact, the grant of the conditional sanction by
petitioner pales into insignificance, and at cost of
repetition, not constitute misconduct as per Rule 3(1)(ii)
of the Rules, 1971, under which, he was charged. At best,
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it can be considered as erroneous administrative decision
on part of petitioner, having no authority to accord such
conditional sanction, albeit passed without any malafide.
At the same time, such administrative decision of
petitioner subjected to challenge as per the provisions of
'the Act, 1961', but neither respondent - State nor any of
the member of the Society have challenged such
administrative decision of the petitioner. Lastly, it has
also come on record that despite such sanction, the land
of the Society not sold, thus no serious prejudice caused
to anyone. Thus, in view of above, according to my view,
neither act of petitioner according conditional sanction to
the Society constitute 'Misconduct' nor charges levelled
against petitioner proved in the domestic inquiry. Point
No. (ii) answered accordingly.
POINT NO. (iii)
21. Learned Senior Counsel Mr. Joshi has vehemently
submitted that without any justifiable reasons, respondent
- Disciplinary Authority concluded the inquiry after
decade, then the impugned punishment order passed on
29.06.2019, requires to be quashed on this ground of
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delay in completing the domestic inquiry. As can be seen,
domestic inquiry initiated against petitioner by issuing
charge-sheet on 24.08.2009, ought to have been
completed within short span of time when Inquiry
Officer's report dated 25.03.2011 received by respondent.
Nonetheless, show-cause notice first issued to petitioner
by respondent on 17.08.2013 having shown his
disagreement with inquiry report, but no explanation
worth name coming forth from side of respondent for such
delay in issuance of said show-cause notice. Likewise,
after issuance of show-cause notice, matter remain
dormant at the end of respondent for more than six years
for which also no worth name explanation/justification
came from side of respondent. Thereafter, finally
respondent able to take the decision when passed
impugned punishment order on 29.06.2019. Even learned
AGP during course of her argument, unable to
countenance such submission of petitioner.
22. Prima facie, there is a force in the submission of learned
Senior Counsel Mr. Joshi, inasmuch as, when Disciplinary
Authority disagreeing with the reasons assigned by the
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Inquiry Officer in its report dated 25.03.2011 but took
more than two years to issue show-cause notice to
petitioner only on 17.08.2013, that too, for no good
reasons, and as such, no explanation coming forth from
the respondent for such huge delay in concluding the
inquiry, inasmuch as, matter remained dormant for almost
six years without any proceedings, it surely caused mental
trauma and harassment to the petitioner, especially when
he was about to retire in year 2020, when served with the
impugned order of punishment in year 2019.
23. At this stage, it would be apt to place reliance upon para-
18 of recent decision of the Hon'ble Apex Court passed in
the case of Amresh Shrivastava (Supra), reads thus;
18. Reference in this regard can be made to the decision
of this court in State of Madhya Pradesh vs. Bani Singh
and Another [1990 Supp SCC 738], wherein the court
noted that there was no reason to interfere with the
quashing as the disciplinary proceedings were initiated
after 12 years of delay. A reference should also be made
to the decision of this Court in P.V. Mahadevan vs. MD,
T.N. Housing Board [(2005) 6 SCC 636], where it has
been reiterated that continuing the departmental
proceedings after an undue delay would be unjust,
causing unnecessary mental distress and damaging the
reputation of the employee for the mistakes committed
by the department in initiating disciplinary
proceedings."
(emphasis supplied)
24. Having so observed above and considering the aforesaid
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peculiar facts of the present case, so also considering the
ratio of decision of the Hon'ble Apex Court including in
the case of Amresh Shrivastava (Supra), what it
emerges from the record that inordinate delay in
concluding domestic inquiry remained unexplained by
respondent, then continuing the departmental
proceedings after undue delay would be unjust, improper,
sheer mental harassment to petitioner, thus, requires to
be quashed. Point No. (iii) answered accordingly.
CONCLUSION:
25. The upshot of the aforesaid observations, discussion and
reasons would lead to inescapable conclusion as follow;
25.1.The Respondent - Disciplinary Authority has erroneously
without any just reasons/finding disagreed with reasons
assigned by the Inquiry Officer when exonerated the
petitioner from all charges.
25.2.Having so discussed and held hereinabove, there is no
misconduct, as such, germen from the charges levelled
against petitioner and could not have been held to have
committed any misconduct when accorded his conditional
sanction to the Society to sell its land. When such would
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irresistible position, respondent committed serious error
of law in holding petitioner guilty for the charges, which
otherwise, held not proved as per law.
25.3.Likewise, as observed hereinabove, the domestic inquiry
completed after so much inordinate unexplained gross
delay by respondent, which would also a ground to
interfere with such disciplinary proceeding.
26. In view of the foregoing conclusion, the present writ
petition requires to be allowed which is hereby allowed.
Accordingly, impugned punishment order dated
29.06.2019 passed by the respondent is hereby quashed
and set aside. Consequently, petitioner is entitled to
receive all consequential benefits including consideration
of promotion, if any, and other benefits withheld by the
respondent pursuant to the impugned order. It goes
without saying that as the impugned punishment order no
longer survived being quashed then, if respondent needs
to revise the pension of petitioner, it will have to do so,
without fail.
27. The respondent is hereby directed, and in fact shall have
to calculate and pay such withheld benefits to the
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petitioner on or before 31 st December, 2025, failing
which, directed to pay such benefits with interest at the
rate of 9% from 1st January, 2026 till its actual realization.
Direct Service permitted.
Sd/-
(MAULIK J.SHELAT,J.)
Lalji Desai
