SCA/5173/2002 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5173 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= MR PARIKH - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : PARTY-IN-PERSON for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/01/2008 ORAL JUDGMENT 1. Heard Mr. Mahesh Parikh, party-in-person and Ms. Varsha Brahmbhatt, learned AGP appearing for the State. SCA/5173/2002 2/21 JUDGMENT 2. The petitioner, party-in-person has approached this Court under Article 226 of the Constitution of India challenging the order of penalty dated 14.02.2002 whereunder the petitioner had been compulsorily retired after conclusion of the departmental proceedings against him. 3. The facts in brief deserve to be set out as under: 3.1 The petitioner who was at the relevant time serving as Assistant Director, Animal Husbandry received a charge-sheet on 13.10.99 containing serious allegations namely for insubordination and sexual harassment to a lady farmer attending the training programme. The petitioner submitted his reply to the charge-sheet under communication dated 16.12.99 denying the charges and opting for inquiry. The concerned authorities on 21.01.2000 appointed an inquiry officer for holding inquiry into the charges levelled against the petitioner vide charge-sheet dated 13.10.99. A retired Joint Director of Agriculture was appointed as inquiry officer. The petitioner vide letter dated 11.02.2000 was informed about the first hearing which was slated on 22.02.2000. The copy of the letter is at Annexure 'N' to the petition. The petitioner received the said letter only on 21.02.2000 i.e. a day before the scheduled sitting of the inquiry. The petitioner submitted that the said sitting was cancelled. SCA/5173/2002 3/21 JUDGMENT Thereafter another letter was sent on 29.03.2000 informing the petitioner that the next sitting of the inquiry was slated on 11.04.2000 at Bhuj. The petitioner submitted that he received this letter only in the afternoon of 10.04.2000. He was infact to proceed on a pre-arranged tour programme and therefore he communicated his inability to attend the inquiry which was slated on the next date i.e. 11.04.2000 to one Shri Vyas and proceeded for his tour programme. 3.2 It deserves to be noted at this stage that the petitioner infact was transferred from Bhuj to Songadh vide transfer order dated 27.03.2000 and the petitioner was ordered to be relieved with immediate effect and accordingly he was relieved on 30.03.2000. It deserves to be noted that pursuant to the transfer order dated 27.03.2000, the petitioner did not report for duties at Songadh. The petitioner did not remain present in the inquiry. The inquiry authority therefore was constrained to address a communication at the address of the petitioner available with the office which was of Nadiad where the petitioner's wife and other family members were residing. The petitioner's Nadiad address was the address where the communications were sent intimating him of the dates of inquiry. 3.3 Ultimately the I.O had to conclude the inquiry and the report of the inquiry officer wherein he had found the charges to be proved was sought to be SCA/5173/2002 4/21 JUDGMENT communicated to the petitioner at his Nadidad address under the communication dated 15.11.2000. The concerned authorities did not receive any reply on the report of the I.O and ultimately the order of punishment in consultation with the Gujarat Public Service Commission was passed imposing punishment of compulsory retirement upon the petitioner for the charges proved against him. 3.4 The petitioner infact was called upon to resume his duties by issuing a press release which is produced on record. After the press release the petitioner ultimately on 07.02.2002/08.02.2002 resumed his duties at Songadh i.e. the place of his transfer and finally the order of punishment came to be served upon the petitioner at Songadh. The same is impugned in the present petition. 4. Mr. Mahesh Parikh, party-in-person submitted that the impugned order is required to be quashed and set aside as it is a result of inquiry which is conducted ex-parte and in disregard of the principles of natural justice as well as the provisions of Gujarat Civil Service (Discipline & Appeal) Rules, 1971(hereinafter referred to as the 'Disciplinary Rules' for the sake of brevity). Mr. Parikh has submitted that the inquiry ought not to have been initiated by the incharge director of animal husbandry as he was not competent to initiate any inquiry proceedings against the petitioner who was a class-II officer at the relevant time. In SCA/5173/2002 5/21 JUDGMENT alternative, without prejudice to the submissions he further submitted that assuming for the sake of submission that the departmental head was authorized to initiate proceedings against a class-II officer then also the said officer who was merely holding charge of the post could not have issued the charge- sheet as he was not a full-fledged officer or departmental head and the issuance of charge-sheet being a duty cast upon him should be exercised in accordance with disciplinary rules and the incharge officer who was appointed as a stop gap arrangement could not have issued the charge-sheet. 4.1 Mr. Parikh in support of his submission has relied upon the decision of the Apex Court in the case of Ajaib Singh vs. Gurbachan Singh and others reported in AIR 1965 SC 1619 and submitted that the Apex Court has held that the incharge Magistrate could not have exercised the statutory functions of a regularly appointed Magistrate. Relying upon this decision of the Apex Court, he has submitted that the said incharge officer who issued the charge-sheet could not have issued the charge-sheet legally and as the charge-sheet itself was not issued legally, the resultant inquiry and the order of punishment deserves to be quashed and set aside. 4.2 Mr Parikh has also submitted that the transfer order was also issued illegally as the authority transferring him was not entitled to transfer him. He made several representations to the Director and SCA/5173/2002 6/21 JUDGMENT Secretary concerned against the said transfer but it was of no avail. He has submitted that his transfer was by way of victimization and therefore he did not join his duty at Songadh. However, he ultimately in public interest joined Songadh on 07.02.2002. In the meantime, he kept representing to the authorities for cancellation of his transfer. 4.3 Mr Parikh has further submitted that the inquiry has wrongly been proceeded exparte as the opportunity of being heard has cleverly been denied to him and it is projected as if the authority has attempted to serve him. Though the authority was under the knowledge that he was residing at Bhuj, the authority kept sending the communications at Nadiad where his wife and family members are residing. He has also submitted that infact he had authorised the Post Master, Sub Post Office, Nadiad under his communication dated 12.04.2000 that any post/RPAD receipts in his name be passed to his family members in his absence and in the event of their absence the same may be handed over to his neighbour or the watchman. The said letter is produced at page 83 of the compilation. Mr Parikh has submitted that but this letter did not authorize the post master to pass on or deliver the official letters also to the authorised persons named in the authority letter. This authority letter given to the post master was only for the purpose of avoiding the insistence of remaining personally present in the post office for receiving RPAD posts in his name. He has submitted SCA/5173/2002 7/21 JUDGMENT that all along till the inquiry proceedings got completed he did not receive any letter at Bhuj. He also submitted that infact if at all the authorities were interested in informing him about the inquiry proceedings and the date of hearing, they ought to have sent the communication either to Songadh or at Bhuj. However, for reasons best known to the authorities they had chosen to send letters at the address of his wife at Nadiad. This in itself goes to show that the respondents were not interested in conducting inquiry in accordance with provisions of disciplinary rules. 4.4 The petitioner also submitted that the authority ought to have appreciated the fact that in absence of the lady who complained about the alleged sexual harassment the charge could not have been said to be proved. The lady who complained had not been examined which becomes obvious from the report of the inquiry officer and therefore to that extent the disciplinary authority was wrong and it could not have imposed punishment of compulsory retirement which is a major punishment under the disciplinary rules. Mr Parikh has further submitted that the inquiry proceedings had been vitiated on account of non application of mind and therefore the resultant order of penalty also deserves to be quashed and set aside. He has submitted that the disciplinary authority has imposed penalty of compulsory retirement upon the petitioner which does not disclose any reason on the part of the disciplinary SCA/5173/2002 8/21 JUDGMENT authority and therefore the impugned order deserves to be quashed and set aside. Mr Parikh has submitted that the disciplinary authority was under obligation to apply its mind to the report of the inquiry officer and pass reasoned order for imposing punishment. He has submitted that therefore the order of punishment deserves to be quashed and set aside. 4.5 The petitioner has submitted that there were about 20 witnesses cited and the inquiry was concluded after examining only 3 witnesses and that out of the 17 witnesses one witness is 'Prajapati' by caste and the rest are “Patel'. He has submitted that there was an attempt to help and engage Patel lady farmers and as the petitioner was acting strongly in accordance with law he was deliberately subjected to these kind of proceedings as could be seen from the names of the witnesses majority of which are 'Patel' and only one is 'Prajapati'. 5. Ms. Varsha Brahmbhatt, learned AGP appearing for the respondent State has submitted that the impugned order is absolutely just and proper and the court under Article 226 of the Constitution of India may not interfere with the same. She has invited the attention of this court to the fact that the serious allegations were contained in the charge-sheet dated 13.10.99 and that the petitioner was said to have been harassing the trainee farmer ladies who used to attend the training on payment of some stipend. The SCA/5173/2002 9/21 JUDGMENT stipend was about Rs. 70/- for attending the training course. The petitioner being a responsible officer of the State could not have indulged into such type of activities when such serious allegations were levelled against the petitioner as the respondent received a letter which is on record from the lady concerned. The respondents were left with no choice but to initiate inquiry proceedings. The letter is produced at page 33 of the petition. The incharge director in his discretion was justified in initiating the proceedings against the petitioner. No government officer of the stature of incharge director could have brooked any delay in initiating proceedings when such serious allegations were levelled against the officer who was directly in contact with the trainee ladies and therefore het initiation of proceedings cannot be said to be activated with any malafide as alleged. The initiation of proceedings by the incharge director also cannot be said to be in any way contrary to law as could be seen from the provisions of the disciplinary rules. 5.1 Ms. Brahmbhatt further submitted that the petitioner's approach during the inquiry and his conduct throughout deserves to be borne in mind while examining his plea for quashing the penalty of compulsory retirement. The petitioner who replied to the charge-sheet by denying the charges thereafter has constantly evaded and avoided attending the inquiry proceedings. The petitioner was required to SCA/5173/2002 10/21 JUDGMENT be transferred in the public interest and he was accordingly transferred from Bhuj to Songadh with immediate effect vide order dated 27.03.2000. The petitioner as per his own submission and documents on record received this letter latest by 01.04.2000. He did not resume his duties at Songadh for no reason and granted stay unto himself and chose to stay at the place of his liking without bothering to attend the inquiry or even attending the duty at the place of his transfer. Infact the respondent authorities had to issue advertisement through press informing him that his unauthorised absence for about 21 and half months would be viewed very seriously and he should report for duty immediately at Songadh pursuant to the transfer. This itself goes to show that the petitioner had a design to evade and avoid the inquiry for the reasons best known to him. The conduct of the petitioner has disentitled him from agitating breach of principles of natural justice though there is none in the present case. 5.2 Ms Brahmbhatt has further submitted that the petitioner did not report at his transfer place i.e. Songadh but as he was transferred from Bhuj, the correct way of communicating him was writing a letter at his permanent address which in this case is at Nadiad where his wife and other family members were residing. The petitioner's son also addressed a letter which is produced on record informing that they received all the letters. Now when this letter is addressed way back on 15.07.2001 by the son of the SCA/5173/2002 11/21 JUDGMENT petitioner it cannot be said that the petitioner did not have knowledge about the inquiry proceedings against him. This in itself would go to show that the petitioner did not bother to remain present before the inquiry officer. He was not interested in availing the opportunity offered to him nor did he bother to report at his transfer place i.e. Songadh. Apart from the misconduct alleged against him as per the charge-sheet he also misconducted himself by not reporting for duty at Songadh. 5.3 Ms. Brahmbhatt has also submitted that the authorities on inquiry with the Post Master concerned came to know that the petitioner had authorised the post master to deliver letters to the person named in his letter of authority. The respondents received the communication which accompanied the authority given by the petitioner to the Post Master. This also clearly indicates that the letters addressed to the petitioner at Nadiad were given to the persons authorised by the petitioner. When the letters were given to the persons authorised by the petitioner, then the petitioner cannot be permitted to make grievance about not receiving the communication and having no knowledge of inquiry. Therefore the petition deserves to be dismissed with costs. She has relied upon a decision of the Apex Court in the case of Major U.R. Bhatt vs. Union of India reported in AIR 1962 SC 1344 and submitted that even if it is evident that there was some deviation from the rules still if an opportunity to defend the case was SCA/5173/2002 12/21 JUDGMENT afforded to the petitioner then the order of punishment cannot be interfered with. The observations made in paragraph 6 were relied upon by Ms. Brahmbhatt in support of this submission. 5.4 She has further relied upon the decision of this Court in the case of Mansukhlal K. Bhalal vs. Bank Of India and Ors. reported in 2006(3) GLH 234 and submitted that the delinquent who has evaded the inquiry proceeding cannot be permitted to urge the breach of principles of natural justice especially when in the given set of circumstances it becomes evident that the delinquent had to thank himself for not availing opportunity which was time and again afforded to him by way of communications sent to his permanent address which infact was said to have been received by his family members. It was the petitioner's own volition of not remaining present during the inquiry and defending his case. In the given set of circumstances, the inquiry proceedings cannot be found fault with and therefore the resultant order of penalty also deserves to be upheld and the petition deserves to be dismissed. 7. This Court had heard the learned counsel for the parties and perused the papers on record. The charges levelled against the petitioner were very serious in nature and any officer was therefore required to attend the same with all probity and promptness. The charges were so grave as to warrant prompt action on the part of the concerned SCA/5173/2002 13/21 JUDGMENT authorities. The concerned authority therefore was justified in issuing the charge-sheet against the petitioner. The petitioner infact replied to the charge-sheet denying the charges. Thereafter as could be seen from the record for the reasons best known to him, the petitioner chose not to participate in the inquiry proceedings. The inquiry proceedings therefore had to be concluded in absence of the petitioner. The inquiry officer examined the witnesses and came to the conclusion that the charges were proved. 7.1 It deserves to be noted at this stage that at all the time the petitioner was afforded an opportunity of being heard. The letter dated 29.03.2000 was infact, as per the say of the petitioner himself, received by him on 10.04.2000 when he was planning his tour or he was to prepared to go for a pre-planned tour. The petitioner ought to have made appropriate request in writing to the concerned authority but instead of that he thought the inquiry proceedings not to be so important as to postpone his tour and chose to proceed with the tour programme after, as per his own say, telephonically informing one Shri Vyas. This conduct of the petitioner deserves to be viewed in a proper perspective especially when the petitioner who was a class-II officer (Gazetted) and was subjected to such grave charges chose not to appear and attend the inquiry for his pre-planned tour programme. It goes without saying that the petitioner's conduct right at SCA/5173/2002 14/21 JUDGMENT that point of time leaves much to be said about his approach to the entire proceedings. 8. The subsequent development of his transfer and his receiving the order of transfer and not joining the transfer place coupled with his adamant attitude in not attending the inquiry proceedings and taking up a technical plea though ill founded for avoiding inquiry indicate not only a casual and recalcitrant approach but also a lack of regard to the proceedings itself. It was expected of a government servant to act with utmost uprightness in the proceedings and take the available defence under the law. Under the guise of some misconceived technical defence available, the petitioner chose to avoid the inquiry proceedings. Now therefore when the order is passed, a question arises whether can he be permitted to agitate breach of principles of natural justice. The answer here would be an emphatic NO. The petitioner has chosen not to appear either before the inquiry authority or before the disciplinary authority at any stage for defending his case and for pointing out the so called lacuna in the inquiry proceedings. The petitioner now in the writ petition under Article 226 of the Constitution of India cannot be permitted to agitate these grounds when he did not avail them at all at the relevant time. Assuming for the sake of examining the plea of lacuna it can well be said that the inquiry officer did not commit any error as the petitioner created such a situation when the officers were left with no choice but to send various SCA/5173/2002 15/21 JUDGMENT communications at Nadiad where his family, his wife and other family members reside. 8.1 This Court is unable to accept the submission of the petitioner that he did not receive the communications. Infact the letter addressed by the petitioner's son to the authority placed on record by Ms. Brahmbhatt, learned AGP itself speaks volumes about the conduct of the petitioner and the approach to the proceedings. This in itself would go to show that the petitioner was aware about the proceedings going on and deliberately chose not to participate and rather constrained the authority to go ahead with the proceedings exparte in his absence and pass the order of penalty. When such an order of penalty is passed after affording the opportunity to the delinquent to attend which he did not avail then he cannot be permitted to agitate this under Article 226 of the Constitution of India that the inquiry was conducted exparte and hence it may be set aside on that ground. As against this it also deserves to be noted that the petitioner himself had given an authority letter to the concerned Post Office authorizing the Post Master to pass up his communication to his family members and even in their absence to the neighbour and even the watchman. The authority letter is also placed on record. It also would go to show that the letters addressed at Nadiad address would have reached the petitioner. In light of this it cannot be said that there was any SCA/5173/2002 16/21 JUDGMENT infirmity or breach of any rule on the part of the inquiry authority in sending the communication. It also deserves to be noted that the respondents have produced on record the document which is in the form of Rojkam at Annexure V which contains description of the bunch of letters which appears to have been sent back by the wife of the petitioner to the authority which contains as many as 61 letters. The description therein indicates that there were enough attempts to intimate the petitioner and infact the narration goes to show that the petitioner cannot be permitted to say that he did not have knowledge of the ongoing process of inquiry. The material produced on record indicate that all the possible efforts were taken by the inquiry officer and the respondent authority to procure the presence of the petitioner for participating in the ongoing inquiry. As it is stated hereinabvoce, the petitioner for the reasons best known to him abstained from participating in the inquiry and attempted to create a technical defence which was not defence in true sense in light of the material on record that he was never served. 8.2 Ms. Brahmbhatt, learned AGP has also indicated that the petitioner was subjected to as many as 7 other inquiries and the charge-sheets were issued on different dates. All these go to show that the petitioner was under a misconception or self nourished notion that he could create a technical defence and can successfully avoid the inquiry and SCA/5173/2002 17/21 JUDGMENT ultimately can successfully challenge the order of punishment. The observation of this Court in the case of Mansukhlal(supra) would on all it fours applicable to the facts and circumstances of the present case also. This court has clearly observed in that case that when an opportunity is given and the same is not availed then the delinquent cannot later on complain about the breach of principles of natural justice. In the instant case, the material on record clearly indicates that more than adequate opportunity was afforded to the petitioner who for the reasons best known to him did not avail the same. When the court called upon the petitioner to explain as to why would he insist for letters and communications only at Bhuj when the fact remains that he was infact transferred to Songadh, the petitioner replied that his wife was staying at Nadiad alongwith his family and he was all alone at Bhuj but the petitioner could not point out any communication indicating that he ever bothered