IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3153 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ISHWARBHAI H PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM THAKKAR for Petitioner MR SP HASURKAR for Respondent No. 1 M/S PATEL ADVOCATES for Respondent No. 2 NOTICE SERVED for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 1/02/2000 CAV JUDGEMENT Mr.Niraj Ashar, Learned Advocate appearing for Sr. Advocate Mr.P.M.Thakkar on behalf of the petitioner. Learned AGP Mr.V.M.Pancholi appears for M/s. Patel Advocates on behalf of the respondent no.1 and 2. The respondent no.3 is served but none is appearing on behalf of the respondent no.3. 2. In the present petition, according to the petitioner he was initially appointed by the respondents by an order dated 2.3.1981 as a Jr.Clerk in the pay scale of Rs.260 to Rs.400/- and was posted at Mahesana under the Director of Accounts and Treasury. Thereafter the petitioner was transferred to Unja District Mahesana on request in the month of May, 1981. During the employment, the petitioner had received 2 chargesheets for some alleged irregularities in his duties, wherein the respondent no.3 ultimately by an order dated 16.4.86 imposed penalty by way of disciplinary proceedings against the petitioner by withholding one increment for one year with future effect and in respect to the other incident dated 4.4.85, the respondent no.3 has imposed punishment to the petitioner by placing the petitioner in the lowest pay scale of Rs.260/- for a period of 5 years. 3. Thereafter, it appears from the record that the petitioner had received a third chargesheet dated 6.2.1987 interalia alleging therein that the petitioner had remained absent on 9.10.86 & 9.12.86 and after alleging in the chargesheet that on 15.12.1986, the petitioner had attended the office at 11:40 hours instead of 11:00 hours and also alleged that carelessness in performing regular work of his table and thereby the petitioner had committed misconduct which is unbecoming of a Government servant. In the said chargesheet, the fact of earlier 2 punishments imposed by the respondent no.3 against the petitioner has been mentioned. The said chargesheet is dated 6.2.1987 (Annexure A) Page 20 to the petition. In the said chargesheet, it is also mentioned by the authority that if the allegations made in the chargesheet are ultimately found to be proved then earlier 2 punishments imposed on the petitioner were required to be considered at the time of imposing punishment. The petitioner gave reply on 7.2.87 (Annexure D) Page 25 and pointed out that the said chargesheet has been issued with a prejudice and with malafide intention and ultimately the intention of the authority is to dismiss the petitioner from service and having being prejudiced, there is no necessity to give any representation or reply to the competent authority. The District Treasury Officer, Mahesana has ordered on 5.2.87 that there was some prima facie case against the petitioner for departmental inquiry in respect of wilful absence from duty, disobedience, ill-subordination and misconduct and therefore it was ordered by the District Treasury Officer, Mahesana that departmental inquiry against the petitioner in respect to the above misconduct is required to be initiated. After the reply filed by the petitioner dated 7.2.1987, the departmental inquiry was initiated against the petitioner. Inspite of receiving the call letters from the competent authority, the petitioner was not remained present in the departmental inquiry and ultimately exparte departmental inquiry was initiated against the petitioner and in absence of the petitioner 4 witnesses were examined in the departmental inquiry and after considering the exparte evidence laid in the departmental inquiry , the Inquiry Officer has come to the conclusion that misconduct alleged against the petitioner are found to be proved and also considered the earlier 2 punishments imposed by the Competent Authority to the petitioner. Therefore, the show cause notice was issued to the petitioner as to why he should not be dismissed from service by show cause notice dated 30.4.1987. The Competent Authority had issued show cause notice dated 30.4.87 to the petitioner and alongwith the said show cause notice, the report of the Inquiry Officer was sent to the petitioner. After receiving the show cause notice by the petitioner, the petitioner had submitted the detailed reply to the competent authority which is at Annexure E (Page 38) of the petitioner. Thereafter, the Competent Authority after considering the reply filed by the petitioner and considering the earlier 2 punishment imposed against the petitioner, respondent no.3 has passed dismissal order dated 26.6.1987. 4. The petitioner has challenged the dismissal order in SCA No. 4950 of 1987 before this Court which ultimately came to be withdrawn without entering in the merits of the matter in view of the fact that contention was taken by respondent no.3 in his affidavit in reply dated 6.11.87 that the termination order dated 26.6.87 has already been challenged by way of departmental appeal before the respondent no.2 and said departmental appeal is pending before the respondent no.2 and therefore the petitioner is not entitled to approach this Court. Thereafter, the respondent no.2 has decided the departmental appeal by order dated 10.2.88 and rejected the said appeal coming to the conclusion that the punishment of dismissal which has been imposed by the competent authority is quite just, reasonable and proper and there was no justification to interfere with such punishment. 5. In the present petition, the petitioner has challenged both the orders dated 26.6.87 i.e. dismissal order and appellate order dated 10.2.88. The contention which has been raised by the petitioner in the present petition are that both orders are bad in law, illegal and in violation of principles of natural justice and also suffering from the vice of malafide and personal bias. It was further contended by the petitioner that in the past, the petitioner was victimised by the competent authority for no fault on his side. According to the petitioner, that in present case the penalty of dismissal was imposed by the respondent no.3 on the ground that petitioner remained absent for one day on 2 occasions and on one occasion, the petitioner had attended the office at 11:40 hours. Therefore, the petitioner submitted that remaining absent on one day on 2 occasions cannot be said to be grave misconduct which requires termination of the services of the petitioner and therefore prima facie, the termination order is passed to victimise and it was passed with a view to satisfy the ego of the respondents. It was further contended that the competent authority having a serious prejudice against the petitioner and therefore there was no meaning to submit any reply to appear in the departmental inquiry. Even though the departmental inquiry was initiated exparte against the petitioner in violations of principles of natural justice mentioning the fact of earlier 2 punishments in the chargesheet itself show the prejudice and prejudge the issue by the competent authority and also pointed out that mandatory provisions of Gujarat Civil Services (Disciplinary and Appeal Rules), 1971 Rule 9 (5)(a)(b) and (c) have not at all been complied with by the Authority before ordering to hold the inquiry. In the departmental inquiry no Presenting Officer was appointed by the Authority. It was also contended that before giving reply to the chargesheet on 5.2.1987, the Competent Authority has decided to hold the inquiry against the petitioner which amounts to malafide and personal bias of the respondent no.3 against the petitioner. It was also contended by the petitioner that before passing the final punishment order against the petitioner, the detailed reply of the second show cause notice was not considered by the Competent Authority & the Appellate Authority has also not considered the detailed reply of the show cause notice and submissions made in the appeal. The order passed by the Appellate Authority is also not speaking order and it suffers from non-application of mind. In the said petition, the Rule has been issued by this Court on 24.6.1988 made returnable on 22.8.1988. Rule has been served to the respondent no.1 to 3 but no affidavit in reply has been filed by any of the respondents in the present petition. The Learned Advocate Mr.V.M.Pancholi, AGP appears on behalf of the respondent no. 1 & 2 and noone is appearing on behalf of respondent no.3 though rule was served upon respondent no.3. 6. Learned Advocate Shri Niraj Ashar appearing on behalf of the petitioner has submitted that prima facie looking to the misconduct in question itself and considering the reply of the show cause notice given by the petitioner at Annexure E Page 38, the punishment of dismissal is harsh, unjustified, arbitrary and based on prejudice as well as personal bias of respondent no.3 authority. The Learned Advocate on behalf of the petitioner submitted that the petitioner remained absent for 2 days in a period of 2 months i.e. 9.10.86 and 9.12.86. The petitioner gave reply of show cause notice wherein it was pointed out by the petitioner that on 9.10.86 he was not well and therefore he was not able to attend the duty and the same fact was informed on the next day to the Sub-Treasury Officer, Unja but there was no CL balance in the credit of the petitioner and therefore he has not given any CL Report and for one day EL or ML was not sanctioned by the department, therefore it was not possible for him to submit the report of EL or ML for one day. In respect to the second incident dated 9.12.86, the petitioner pointed out that on that day, due to unavoidable circumstances, he had remained absent and on the next day, it was orally informed to the Sub-Treasury Officer, Unja and he agreed to sanction the leave but on 15.12.86, one incident had occurred and therefore the leave was not sanctioned with prejudice against the petitioner. In respect to the incident dated 15.12.86, the petitioner had attended the office at 11:40 hours instead of 11:00 hours. The petitioner had pointed out in reply that on 14.12.86 it was Sunday and he had gone to his village and met his mother who was sick and patient of high blood pressure and her treatment was continued with hear specialist Dr.Shukla at Unja. While returning from the village on Monday i.e. 15.12.86 because the train was little late and therefore he could not attend the duty at 11:00 hours but late by 40 minutes but one Mr.Chauhan who is Oficer in Charge made certain allegations in presence of the Public in the office itself and spoken harsh words which amounted to insult of the petitioner and therefore because of the report submitted by one Mr.L.V.Chauhan, with a prejudice mind, the punishment has been imposed by the Competent Authority. The petitioner in reply submitted that there was no difficulty if the officer would have asked for the report of CL or to deduct the salary of remaining absent on 2 occasions but he was insulted by the officer in presence of the Public and other staff in the office and therefore the petitioner made a representation against Shri L.V.Chauhan to the Sub-Treasury Officer, Unja, but no action has been taken by the Sub-Treasury Officer against said Shri L.V.Chauhan. According to the petitioner, there was no work remaining pending on his table but because of some irregularities of the peon, this difficulty has arisen. He also pointed out that during the 10 month period, he remained absent for 3 days and respondent no.3 having personal grudge against the petitioner and therefore this inquiry was initiated and ultimately dismissal order has been passed. The Learned Advocates on behalf of the petitioner further submit that the petitioner in all completed more than 5 years service as a Junior Clerk with the respondent and except 2 punishments in past there was no other punishment imposed by the authority to the petitioner. The said punishment has been imposed by the authority upon the petitioner because of some personal bias and having prejudice against the petitioner and therefore this punishment of dismissal is shockingly disproportionate, unjustified and therefore it was required to be set aside. 7. Learned Advocate Shri V.M.Pancholi, AGP is appearing on behalf of the respondent submitted that the conduct of the petitioner is such that deliberately he remained absent and his nature is not good and his behavior is also not good with the officers and similar incident occurred on 2 occasions in past wherein he was punished by the Authority. Therefore such a punishment of dismissal cannot be considered to be unjustified or shockingly disproportionate to the misconduct and Competent Authority has considered each and every aspect of the misconduct, past misconduct and also considered the reply of the show-cause notice. Therefore, the punishment order passed by the authority dated 26.6.1987 is quite legal, valid and reasonable and there is no option to the department except to pass the dismissal order against the petitioner. 8. I have considered the submissions of both the advocates. The facts remain that the petitioner remained absent for 2 days i.e. on 9.10.1986 and 9.12.1986 and also not reported in time on 15.12.86 i.e. after 40 minutes on that day. Another allegation that the petitioner has not completed his normal work inspite of instructions issued by the Officer is also found to be proved by the Inquiry Officer. In light of these facts, it is required to be considered whether the punishment of dismissal which has been imposed by the Competent Authority against the petitioner considering the past 2 incident of punishment is legal, valid, proper or not. The main submission of the Learned Advocate of the petitioner is that because of the personal bias and prejudice, the harsh action was taken by the respondent authority. I have perused the reply of show cause notice filed by the petitioner which is at Annexure E Page 38 of the petition. The said reply is giving details of defence and explanation of the petitioner that on 2 occasions why he remained absent and on one occasion why he was present late by 40 minutes. Against this explanation and reply in the departmental inquiry there was no contrary evidence produced by the department. In the departmental inquiry, one Lavjibhai Chauhan was examined vide Exh.11. He deposed before the Inquiry Officer that on 9.10.86 and 9.12.86 without informing in advance to the officer, the petitioner had remained absent but it is also deposed by Mr.Chauhan that on 2 occasions of remaining absent on 9.10.86 and 9.12.86, the salary of that day was deducted from the salary of the petitioner and also the salary of 15.12.86 was also deducted from the salary of the petitioner. Against the said evidence of Shri Chauhan laid in the departmental inquiry, the petitioner had submitted the rely of show cause notice and gave detailed explanation and defence. The said reply was received by the Competent Authority. The Competent Authority while passing the final punishment order against the petitioner, though a detailed reply with explanation given by he petitioner was received by the Competent Authority, the same was not considered by the Competent Authority except to mention the fact that the petitioner had given reply to the show cause notice. It is the duty of the Competent authority to consider in detail the explanation and defence pointed out by the petitioner in his reply of show cause notice but the Competent Authority has not applied mind in respect to the reply of the show cause notice wherein a detailed explanation and defence was submitted by the petitioner. Looking to the documents on record and in presence of the reply, prima facie it shows that the Competent Authority was having some prejudice and personal bias against the petitioner and therefore without considering the reply of the show-cause notice and explanation tendered by the petitioner, the punishment of dismissal has been passed by the Authority. It is the duty of the Competent Authority to consider the gravity of misconduct mentioned in the chargesheet, the evidence on record and also required to consider the reply of the show cause notice submitted by the petitioner. It is not the case of the respondents that the explanation which has been tendered by the petitioner in reply of the show cause notice is not correct and false and got up and after thought. According to my reading of the reply of the show cause notice, it is a natural reply and explanation given by the petitioner who was really disturbed due to the prejudice and victimisation of the respondent authority. The language which has been used in the reply of the show cause notice certainly appears that the petitioner was so much disturbed by the respondent authority. Looking to the reply of the show cause notice, it was not a intentional misconduct committed by the petitioner to remain absent on 9.10.86 and 9.12.86 but due to unavoidable circumstances which was natural by the petitioner in his reply and on 15.12.1986 because of the train being late, he reported late by 40 months. Even that act also does not amount to intention to commit misconduct. Therefore the punishment which was imposed by the Competent Authority against the petitioner is prima facie passed on some personal bias, grudge and victimisation. 9. There are various decision on this point rendered by this Court and the Apex Court that in the case of remaining absent for one or 2 days by the employee whether the punishment of dismissal is justified or not or whether it is disproportionate or not? This question has been examined by this Court in a reported decision in 1987 LAB IC 685 in the case of Vijaykumar Muljibhai Jasani Vs. GSRTC. "4. Even though the Labour Court had come to the conclusion that dismissal from service is deprivation of bread and for such type of trivial misconduct, it was unreasonable and excessive, it imposed another excessive and unreasonable punishment. The Labour Court has rightly observed that the Corporation has not considered as to why lesser punishment should not be passed against the workman. However, the Labour Court itself fell into an error in not considering the alternative lesser punishment. There is a total non-application of mind on the part of the Labour Court in directing the respondent Corporation that refusal of 50% back wages is sufficient punishment, without considering as to why that 50% would amount to. The monthly wages of the workman are about Rs.1600/- including dearness allowance and other allowances. He was dismissed from service on 15th November, 1980 and was actually reinstated on 15.4.1984. Thus he was out of service for more than 3 & 1/2 hears. The total wages for this period would be running into a very large amount and even denial of 50% of the backwages would run into several thousands of rupees.The Labour Court does not appear to have realised as to what the substituted punishment would really amount to. For such a trivial misconduct of absence of two days the punishment should not have resulted into such a severe amount of find of several thousands of rupees. The Labour Court has rightly observed that the Corporation has not considered as to what lesser punishment than dismissal should be given. The Labour Court has also observed that the workman is an old servant of the Corporation and he should not be deprived of his bread and for such an act of misconduct. However, the Labour Court has itself deprived of his bread for such an act of misconduct. However, the Labour Court has itself deprived the workman of his bread for a very long period and a very large amount disproportionate to the misconduct of the workman. 5. In the case of Sardarsingh Devisingh v. District Superintendent of Police, Sabarkantha District, 1985 (2) 26 Guj LR 1368 this Court had considered the question of reasonableness and rationality of punishment of proportion to the misconduct. In para 6 of that judgment, the learned Judge (Ahmadi, J) has observed as under: " When an authority is conferred with the power to inflict one of the several penalties such as caution or censure, reprimand, extra drill or duty, fine, stoppage of increments, reduction in rank, removal or dismissal, it is obvious that the authority must give a serious thought to the question of choice of penalty. The choice cannot be arbitrary but must depend on the nature of misconduct established in a given case. Just as a road roller cannot be brought to crush a fly, so also the extreme penalty of dismissal cannot be inflicted for misconduct which is not equally grave. The consequences of removal or dismissal from service are severe, sometimes the entire family is ruined because another job or work may not be easy to find and, therefore, it is all the more necessary that the punishment of removal/dismissal should be invoked sparingly and in cases which can be described as gross, such as, receiving or defalcation of public funds, behavior which is morally reprehensible, gross abuse or misuse of authority, etc. However, is a policeman remains absent without leave, it certainly has an adverse effect on the disciplined force which can be remedied by imposing a lighter penalty such as withholding of increments or the like." In the present case we find that the punishment of refusal of 50% back-wages which actually runs into several thousands of rupees is disproportionate to the misconduct of the workman, which is very minor and which could not have been attracted any major penalty. No reasonable persons could have imposed a penalty or fine of several thousands of rupees or dismissal for remaining absent for two days and negligence. In the case of Jitendra Singh Rathor (1984 Lab IC 554) (supra) the Tribunal had directed reinstatement of the workman with half backwages and the employer had approached the High Court under Art. 227. The High Court vacated the order of reinstatement holding that the ends of justice would be served by directing payment of compensation quantified at Rs.15000/-. This modification of the High Court was assailed before the Supreme Court at the instance of the workman. In that case the Supreme Court observed that the workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. In the present case there is no particular reason shown to withhold 50% of the back wages which run into several thousands of rupees as punishment for a very minor misconduct. Such a minor misconduct could be punished only with a minor penalty like withholding of one or two increments without cumulative effect. The cumulative effect is also many a time not given proper consideration. Cumulative effect has the effect over the entire service career of the workman and there is permanent loss, and at the end of the service the cumulative loss would run into a very large figure and it would also affect the pensionary benefits. The punishment of stoppage of increments with cumulative effect is to be imposed after careful consideration and application of mind to be the resultant total consequence. 6. In view of the misconduct, here of absence from duty for two days and negligence, the maximum penalty that could have been imposed by any reasonable employer could not have been more than stoppage of two increments without cumulative effect, especially in view of the fact that the past record of the workman was not bad