SCA/7758/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7758 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== BAKULCHANDRA LALJIBHAI BHATT Versus GUAJRAT STATE ROAD TRANSPORT CORPORATION LTD. & others ====================================== Appearance : Mr. A.K. Clerk for the petitioner Mr. H.S. Munshaw for respondent Nos. 1 to 3 Mr. Vipul A. Mistry, AGP, for respondent No.4 ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/04/2008 ORAL JUDGMENT 1 The petitioner, in this writ petition under Article 226 of the Constitution of India, has, in paragraph 74, prayed as under: SCA/7758/2005 2/7 JUDGMENT “74. In view of the aforesaid premises, Your Lordships may issue a writ of certiorari or any other appropriate writ, direction or order:- [a] quashing and setting aside the charge sheet dated 27.2.2003 [b] quashing and setting aside the order dated 28.2.2003 retiring the petitioner from service of the Corporation on reaching the age of superannuation in so far as it withholds the retirement benefits of gratuity and leave encashment benefit from the petitioner. [c] restraining the respondents from continuing or proceeding further with the departmental inquiry being held against the petitioner and further restraining the respondents from imposing any penalty on the petitioner pursuant to such an inquiry. [d] directing the respondent authorities to pay retirement benefits of leave encashment as per the rules of the corporation forthwith with running interest @ 18% per annum.” 2. The facts, briefly stated, leading to filing of the petition, are as under: 2.1 After rendering about 40 years of service, the petitioner retired on reaching the age of superannuation on 28th February 2003 from the post of General Manager [Traffic] from the Gujarat State Road Transport Corporation [for short, the Corporation]. The petitioner came to be served with a charge sheet on 27th February 2003, a day prior to his retirement, with regard to certain allegations that the petitioner had given Hawkers' Licenses in breach of the policy of the Corporation. The petitioner replied to the charge sheet on 10th March 2003 and it was submitted by the petitioner in detail that all the charges were devoid of merit and based on no evidence and, on the contrary, the Corporation in its 528th and 529th meetings of the Board of Directors had taken a decision twice with reference to the application in respect of policy of issuance of Hawkers' Licenses and subsequently the General Board of the Corporation had taken a decision not to inquire into the matter of grant of Hawkers' Licenses, therefore, it was not open for the Managing Director of the Corporation to initiate inquiry in violation of or contrary SCA/7758/2005 3/7 JUDGMENT to the decision taken by the General Board of the Corporation. Even on merits also, the petitioner submitted in his reply that no wrong was ever committed by the petitioner and the decision was taken by the Board as per the prevalent policy. 3. Therefore, according to Shri A.K. Clerk, learned counsel for the petitioner, when the Corporation had no power whatsoever with regard to continuation of departmental inquiry after retirement of employee or officer and, even on merits also, there was no case established against the petitioner, the very act of issuance of charge sheet dated 27.2.2003 a day prior to date of superannuation of the petitioner and denial of retiral benefits by order dated 28.2.2003 of the petitioner is nothing, but arbitrary, unreasonable, in colourable exercise of power of the respondent-Corporation, in violation of Article 14 of the Constitution of India, and deserves to be quashed and set aside. 4. Shri H.S. Munshaw, learned counsel for respondent Nos. 1 to 3, has tried to justify the action of the Corporation on the ground that there was violation of guidelines contained in circular dated 16.8.1991 issued by the Corporation with regard to grant of bogus Hawkers' Licenses at various bus-stands of the Corporation and proper procedure is followed by the Corporation in initiation of inquiry and opportunity is given to the petitioner. Considering the report of the Enquiry Officer submitted, the Corporation may be permitted to impose final punishment after following the procedure since, in view of the stay granted by this Court, no decision is taken. 5 In rejoinder, Shri A.K. Clerk, learned counsel for the petitioner, has reiterated that, even no directions or recommendations were ever issued by the Vigilance Commission and even the report of the Enquiry Officer SCA/7758/2005 4/7 JUDGMENT and the findings contained therein are not indicating about established guilt or misconduct of the petitioner in any manner. What is found by the Enquiry Officer is about not seeking any prior clarification from the authority and, so far as the financial loss of the Corporation is concerned, even according to the Enquiry Officer, no specific charge is levelled and the method and manner by which the calculation of financial loss was arrived at. On the contrary, what is observed by the Enquiry Officer is that, time and again, the Officer of the Corporation has to take decision as per the recommendations and instructions made by the Chairman of the Corporation or the Minister concerned of the Department of Transport and keeping the above factors in mind, the decision is to be taken against the petitioner. 5.1 Therefore, according to Shri A.K. Clerk, learned counsel for the petitioner, even on merits also, no case is established from the charges levelled against the petitioner and, therefore, the decision to withhold the retiral dues and initiation of inquiry both deserve to be quashed and set aside by this Court in exercise of its extraordinary power under Article 226 of the Constitution of India. 6 Having heard learned advocates for the parties and considering the facts and circumstances of the case and the case-law on the subject matter, in my opinion, the prayers made by the petitioner deserve acceptance by this Court on both counts, namely, there is no specific provision with regard to continuation of disciplinary proceedings against the employee of the Corporation, who ceases to be in service of the Corporation and, therefore, in absence of any specific Rule, continuation of departmental inquiry and the outcome thereof deserves to be quashed and set aside and, secondly, even on merits also, a bare perusal of the SCA/7758/2005 5/7 JUDGMENT relevant record, namely, charge sheet, reply filed by the petitioner, material produced before the Inquiry Officer and even the conclusion of the Inquiry Officer in his report submitted to the Corporation, which is annexed with the affidavit in reply does not reveal any specific role of the petitioner qua the alleged misconduct. On the contrary, the Inquiry Officer, in the report, which is produced at pages 299 to 305 of the compilation, only indicates that the petitioner failed to obtain prior permission and/or clarification. At the same, what is concluded by the Inquiry Officer is that no specific charge is levelled against the petitioner with regard to financial loss to the Corporation and the important factor to be taken into consideration is about the instructions issued by the then Chairman, the Minister of Transport and other appointees in the Corporation with political consideration, and, pursuant to such recommendation, if any decision is taken by the officer concerned, the same is taken into consideration. 6.1 The letter of Vigilance Commissioner dated 20th October 2003 also reflects that the action of the Corporation in issuing charge sheet to the petitioner without there being any recommendation by the Vigilance Commissioner is contrary to the instruction issued by the State Government and, once the decision is taken as per the provisions of Section 11(3) of the Gujarat State Transport Corporation Act, 1950 by the Board of Directors as constituted and amended under section 5(1) of the Act and such decisions are taken by majority of votes as per the Regulation 13, which are also framed in exercise of powers under clause (b) of sub-section (2) of Section 45 of the Act in its 528th and 529th meetings, the issue was already finalized by the Board of the Corporation and, therefore, there was no justification for reopening the case and to deny the retiral dues to the petitioner by the impugned order dated SCA/7758/2005 6/7 JUDGMENT 28.2.2003. Regulation 13 of the Gujarat State Road Transport Corporation [Conducting of Meetings] Regulations 1966 provides that all questions at the meeting of the Board of Corporation shall be decided by a majority of votes of the Directors present. Thus, even on examination of the whole record of the inquiry, there is no justification in exercise of such powers by the Corporation for continuing the departmental inquiry against the petitioner after retirement in absence of such power. 7. Learned counsel for the petitioner has relied upon the decisions of the Apex Court in the case of State Bank of India vs. A.N. Gupta and others, reported in (1997) 8 Supreme Court Cases 60 and in the case of Bhagirathi Jena vs. Board of Directors, O.S.F.C. and others, reported in (1999) 3 Supreme Court Cases 666 and submitted that, as per the above decisions of the Apex Court, in absence of specific power conferred upon the Disciplinary Authority to continue enquiry against an officer even after retirement, no such enquiry can be permitted to be continued and the case on hand is covered by the above decisions. It is further submitted that, when the petitioner retired on 28.2.2003, in the order of superannuation, it is observed that the enquiry is pending against the petitioner and, just a day prior to the date of superannuation, the petitioner was served with charge sheet. 8 Learned counsel for the S.T. Corporation is unable to dispute the above proposition to the extent that there is no such provision under any Rules and Regulations of the Corporation particularly under Disciplinary & Appeal Rules to continue departmental enquiry against the employee after retirement. 9 In A.N. Gupta [supra], the Apex Court, after interpreting Rules, 7, 10, 11 and 26 and regulations of the Imperial Bank of India Pension and Guarantee Fund, held that proceeding in the garb of disciplinary SCA/7758/2005 7/7 JUDGMENT proceedings cannot be permitted after employee has ceased to be in the service of the Bank as Service Rules do not provide for continuation of disciplinary proceedings after the date of superannuation. 10 In the present case also, there is nothing on record to show that the Corporation has framed relevant rules for continuation of departmental inquiry against the officer and to withhold the retiral dues and, therefore, the impugned orders of issuance of charge and denial of retiral benefits deserve to be quashed and set aside. 11 In Bhagirathi Jena [supra], the Apex Court found that there is no specific provision in Orissa Financial State Corporation Staff Regulations, 1975, for deducting any amount from the provident fund consequent to any misconduct determined in departmental inquiry, nor is there an provision for continuance of departmental enquiry after superannuation. In absence of such provision, it was held by the Apex Court that the respondent-Corporation had no legal authority to make any deduction in the appellant's retiral benefits. 12 Considering the above two decisions of the Apex Court, it is clear that the proposition of law laid down by the Apex Court in the above- referred two cases is squarely applicable to the present case. 13 In the result, this petition succeeds. The charge sheet dated 27.2.2003 and the order dated 28.2.2003 to the extent of denial of retiral dues to the petitioner are quashed and set aside. The respondents are directed to release the retiral dues of the petitioner with 9% interest from the date when it became due till realization within six weeks from the date of receipt of writ of this Court. Rule is made absolute with no order as to costs. (ANANT S. DAVE, J.) (swamy)