SCA/7514/1997 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7514 of 1997 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 ? ========================================================= MAHASANKAR M JOSHI - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MS ASMITA PATEL ASST. GOVERNMENT PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 10/04/2008 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India, is filed by the petitioner for issuance of writ of mandamus or any other appropriate SCA/7514/1997 2/12 JUDGMENT writ, order or direction for quashing and setting aside the order dated 4.9.1996 passed by respondent No.2 and order dated 10.3.1997 passed by respondent No.1 as illegal. 2. By order dated 4.9.1996, the competent authority imposed the punishment of Rs.50/- ordered to be deducted from the monthly pension of the petitioner for a period of five years in exercise of power conferred under Rule 189 (A) of BCSR, 1959 which came to be confirmed by the appellate authority vide another impugned order dated 10.3.1997. 3. It is the case of the petitioner that when the petitioner was serving as Special Officer for departmental inquiry (Gazetted Officer) was to retire on 30th June, 1994 and on the very same day on the eve of his retirement, the petitioner was served with a charge sheet in respect of an incident dated 7.1.1986 was in the capacity of Dy. District Development Officer, Gandhinagar, the petitioner had signed an order which was not in conformity with the original one. It is to be noted that the charge sheet dated 30th June, 1994 reveal that the petitioner has shown gross negligence and carelessness in performance of his duties as Dy. District Development Officer, Gandhinagar and by not mentioning certain words in the order communicated, committed breach of Sub-Rule (1) and (2) of Rule 3 of Gujarat Civil Services (Conduct) Rules, 1971. The above communication was in respect of an order passed by the District SCA/7514/1997 3/12 JUDGMENT Development Officer and a decision taken by the District Panchayat, Gandhinagar to impose penalty equivalent to 10 assessments and directing the holder of the land to remove the illegal action but while communicating the order, the petitioner by slip of pen (Sherthchuk) did not mention the important word of “removing the action”. In support of the above charges, the petitioner was supplied with all the documents related on by the authority to reveal the above charges. 4. By reply dated 1.7.1994, the petitioner submitted that allegations levelled against him were baseless and in fact while performing the duties as Dy. District Development Officer, Gandhinagar, the petitioner had himself prepared the proposal in respect of the construction made by the holder of the land which was unauthorized and required to be removed. It was also submitted that order was to be communicated in the prescribed form and only the blanks to be filled in and as per the manual of office administration concerned Clerk and Typist had committed mistakes and the petitioner was no way responsible for the same and charges were required to be cancelled/dropped and the charge sheet to be withdrawn. 5. The inquiry officer came to be appointed and the departmental inquiry was held and after the report dated 28.2.1995 submitted by the Commissioner and Additional Chief Secretary of the State of Gujarat SCA/7514/1997 4/12 JUDGMENT exonerating the petitioner completely and it was found during the course of the inquiry that the petitioner was not responsible for the charges levelled against him. 6. However, not agreeing with the findings of the inquiry officer, the disciplinary authority addressed a letter dated 21st June, 1995 and asked the petitioner to render his explanation for the reasons stated in the above communication for not agreeing with the findings of the inquiry officer and as per the above reasons, it was stated that not comparing the order communicated to the holder of the land with the original, indicate dishonest intention on the part of the employee. It further raised that certain words which were missing in the order communicated and signed by the petitioner tantamount tempering with the record and thus amount gross misconduct on the part of the petitioner. Pursuant to that once again the petitioner in detail rendered his explanation by reply dated 27.1.1995 and rather reiterated what was stated before the inquiry officer in his defence and refuted the charges. The above reasons for not agreeing with the findings of the inquiry officer were beyond the charges levelled against the petitioner and first time reflected in the communication addressed to the petitioner. It was also submitted that such inadvertence on the part of the petitioner or even negligence for that, cannot be compared with dishonest intention or certain missing words in the order communicated and signed by SCA/7514/1997 5/12 JUDGMENT the petitioner cannot be said to be tempering with record as stated in the said communication. After the above reply for a period of one year and three months, impugned order dated 4.9.1996 came to be passed imposing the penalty of Rs.50/- per month from the pension for a period of five years against which an appeal was filed before the Chief Secretary, State of Gujarat on 16.10.1996 and it was contended that the original charges were never proved and the petitioner was punished for the charges which were never levelled against. However, the appeal came to be rejected confirming the order passed by the competent authority. 7. Shri G.M.Joshi, learned advocate, appearing for the petitioner has challenged the aforesaid impugned orders passed by the competent authority, as well as, the appellate authority by contending that issuance of charge sheet on the eve of the retirement i.e. on 30th June, 1994 for the instances, alleged to have taken place before seven years on 15.6.1987 itself is illegal inasmuch as such belated action on the part of the authority when their was no evidence in support of the charges is nothing but arbitrary, unreasonable and illegal exercise of power by the authority in violation of Article 14 of the Constitution of India. Learned advocate further submits that when in a full fledged departmental inquiry by the high ranking officer who was appointed as inquiry officer of the rank of Additional Chief Secretary of the State had exonerated the petitioner, SCA/7514/1997 6/12 JUDGMENT there was no justification for the authority to arrive at a different conclusion altogether for which no basis or material was available. Not only that but according to learned advocate in the communication addressed to the petitioner while disagreeing with the finding of the inquiry officer a new charge of dishonest intention and tempering with record have surfaced, which cannot be permitted to be sustained. Learned counsel submit that suspicion cannot take place of proof. It is further submitted that even as per the charge sheet only charge against the petitioner was negligence and carelessness based on the allegation of slip of pen (sherthchuk) therefore, a charge in the notice of disagreement which is alien to the charges levelled in the charge sheet is basis for passing the impugned order of deduction of pension the same deserves to be quashed and set aside. 7.1. It is further submitted by learned advocate for the petitioner that though reply was submitted by the petitioner on 27.1.1995, specifically raising the above contention while passing the impugned order, the competent authority has reiterated the reasonings of show cause notice and the authority has failed to deal with the above aspects specifically and passed the order without application of mind. It was further contented that even considering the charge of negligence and explanation rendered by the petitioner and the material available, no case was made out for imposing the penalty after retirement of deduction of SCA/7514/1997 7/12 JUDGMENT Rs.50/- per month from the pension received by the petitioner and considering the over all aspects, it is submitted that decision of the respondents namely the disciplinary authority, as well as, the appellate authority deserves to be quashed and set aside. 8. Learned AGP Ms. Asmita Patel, appearing for the respondents have made efforts to justify disagreement on the part of the disciplinary authority by submitting that what is contained in the above communication of disagreement are the reasons and not the conclusions and the above reasonings are based on over all dissatisfaction of the disciplinary authority with the inquiry officer who failed to look into the relevant materials which indicated gross negligence and carelessness in performance of the duties and, therefore, doubt raised with regard to honesty of the petitioner in performance of the duties cannot be said to be a new charge or independent finding of the disciplinary authority. Similarly, reasons of tempering with the record is consequential to the omission/Sherthchuk in mentioning the relevant words in the order communicated by the petitioner to the holder of the land and, therefore, when the notice is given to the petitioner to explain about this aspect, imposition of punishment of deduction of pension of Rs.50/- per month for a period of five years is commensurate with above reasonings of the disciplinary authority and, therefore, power under Article 226 of the Constitution of India in a case of disciplinary SCA/7514/1997 8/12 JUDGMENT action need not to be exercised particularly, when the order passed by the competent authority is confirmed by the appellate authority also. According to learned AGP even on merits, the order passed by the disciplinary authority has taken into consideration relevant aspects about passing of resolution by the Execution Committee of Gandhinagar i.e. District Panchayat of removal of unauthorized construction and such vital aspect was not mentioned in the order communicated and signed by the petitioner deserves such punishment and, therefore, the petition is to be rejected. 9. Having heard learned advocates appearing for the parties, and upon consideration of the submissions and perusal of the record, I am inclined to accept the submissions of learned advocate appearing for the petitioner that the disciplinary authority has acted beyond the scope of charge sheet, in as much as, reasons narrated therein were based on the similar findings of the inquiry officer and the material produced during the departmental inquiry and commenting on the dishonest intention and attitude of the petitioner along with tempering with the record first time surfaced in the communication of above disagreement which was based on no material other than what was produced in the departmental inquiry. That a different perspective on the part of disciplinary authority on the material and the evidence appreciated by the inquiry officer reasons must disclose the basis for forming an opinion about SCA/7514/1997 9/12 JUDGMENT attempt and conduct of the petitioner. Mr. Joshi, learned counsel is right in his submissions that suspicion cannot be a substitute of proof. 9.1. If the allegations against the petitioner are perused as per the charge sheet and the documents supplied along with, it was not beyond negligence and carelessness in performance of the duties while communicating and signing the order to the holder of land by slip of pen namely “Sherthchuk”. Accordingly, the inquiry officer has examined and evaluated the material produced in the form of evidence and found the petitioner not guilty. The inquiry officer has in detail considered relevant aspects and noticed that it was not a case of any ill intention on the apart of the petitioner and at the most Typist and Clerk concerned with the subject may have committed the mistake. Not only that but the authority has warned the Typist and Clerk and also supervisory staff in the year 1994 and chapter was closed. Having found no material against the petitioner in unequivocal terms, it was concluded that the petitioner was not responsible for the alleged charges. 10. If the communication dated 21st June, 1995 of Dy. Secretary of the Department is perused, the remarks about honesty of the petitioner of doubtful nature is based on the aspect of not comparing the order communicated by the petitioner with the original and about tempering with the record is based on not SCA/7514/1997 10/12 JUDGMENT verifying meticulously cyclo-style forms to be filled in and signed. Both the above reasoning of the authorities are not based on any material on record or failure on the part of the inquiry officer to consider relevant materials or taking into consideration irrelevant materials. On the set of similar facts and circumstances of the case and evidence on record, it is not open for the disciplinary authority to come to a different conclusion other than what is concluded by the inquiry officer unless such findings of the inquiry officer are perverse and contrary to the evidence on record, therefore, the disagreement on the part of the disciplinary authority with the findings of the inquiry officer and such disagreement based on altogether different charge and consideration cannot be sustained. 11. Though it was submitted and reiterated by the delinquent officer that disagreement of the disciplinary authority having no basis at all and attribution of new charges cannot be sustained which were not in consonance with the original charges of 30th June, 1994, conclusion of dishonest conduct of the petitioner and tempering of the record attached severe stigma on the petitioner, the authority passing the impugned order failed to consider the above aspect and without dealing with contentions raised in the reply simply reiterated the reasons recorded in the communication of disagreement and passed the order which is nothing but a case of non- SCA/7514/1997 11/12 JUDGMENT application of mind being devoid of reasons deserves to be quashed and set aside. 12. The above order in appeal when challenged by the petitioner, a cryptic order dated 10.3.1997 i.e. the second order impugned in this petition passed by the appellate authority also suffers from the vice of lack of reasoning and conclusions, simply mentions concurrence on the part of the appellate authority without dealing with the grounds raised in the appeal and, therefore, deserves to be quashed and set aside. 13. The cumulative effect of the reasonings, discussion and observations in the aforementioned paragraphs, the impugned orders dated 4.9.1996 passed by respondent No.2 and 10.3.1997 passed by respondent No.1, are quashed and set aside as violative of Article 14 of the Constitution of India being unreasonable and arbitrary, and it is declared that the petitioner is entitled to receive the pension as if no order imposing the penalties passed by the respondents. If any amount of pension is not paid by the respondents pursuant to the impugned order, the same shall be released within eight weeks from the receipt of the order of this Court. 14. This petition is allowed. Rule is made absolute with no order as to costs. [ANANT S. DAVE, J.] SCA/7514/1997 12/12 JUDGMENT //smita//