IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4188 of 1986 with SPECIAL CIVIL APPLICATION No 1104 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? Yes. 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? No. 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? No. 5. Whether it is to be circulated to the Civil Judge? : NO No. -------------------------------------------------------------- HR MISHRA . Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR RK MISHRA, for Petitioner MR CC BHALJA ASSTT. GOVT. PLEADER for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision:-28/07/1999. C.A.V. JUDGEMENT Both these petitions arise out of the removal order of the petitioner. Hence, both these petitions are being disposed of by this common judgment. 2. In Special Civil Application No. 1104/90 the petitioner has prayed for quashing the order of removal dated 9-2-1990 and for a direction to the respondents to reinstate the petitioner in the service with back wages and all other consequential benefits. While other petition being Special Civil Application No.1188 of 1986 was filed by the petitioner for quashing the order of removal dated 27-6-1986 and for restraining the respondents from removing the petitioner from service pursuant to the aforesaid order. 3. The petitioner was working as a Section Officer in the Home Department as Gazetted Class-II Officer. He was placed under suspension by the resolution dated 26-5-1986 and a regular departmental inquiry was directed to be held against the petitioner on the allegations that an application dated 5-3-81 was made by Smt. Rajendra Kaur wife of Shri Bhupendrasingh Chauhan who was working as Company Commander, S.R.P. Group-VII, Nadiad and that application was for transferring her husband at Ahmedabad or Godhara and that application dated 5-3-81 was received by the petitioner on 9-4-1981. A written proposal dated 6-4-1981 was made for transfer of Shri Chauhan at Ahmedabad or Vadodara. With the purported signature of Shri N. Gopalaswami, the then Joint Secretary dated 16-4-1981 taking such action as if sanction has been accorded to the proposal regarding the transfer by sending a copy of the application of Shrimati Rajendra Kaur to Shri H.C. Oza, Administrative Officer, the office of I.G.P., Ahmedabad vide confidential letter dated 1-5-1981 of the Home Department for taking action of transferring her husband at Ahmedabad and the petitioner had given direction in the name of the Government. In this manner, the petitioner by making a false signature of the Joint Secretary N. Gopalaswami committed irregularity and misused his own designation. On the basis of the aforesaid allegations, the petitioner was placed under suspension by order dated 26-5-86 and the charge sheet was prepared on 10-9-82 and served on the petitioner and the petitioner also filed his defence statement by the letter dated 9-11-1982. The departmental inquiry against the petitioner was directed to be conducted by the Special Officer for the departmental inquiries (for gazetted officers), Ahmedabad. The Inquiry Officer after completing the departmental inquiry submitted his report to the Government by the letter dated 27-2-1984 wherein the charges levelled against the petitioner were said to be proved. In the inquiry, the charges against the petitioner were found proved and looking to the seriousness of misconduct and indiscipline in taking personal active interest in making transfer of one police officer and in doing irregular activities and misuse of his designation, the Government came to the conclusion that the petitioner shall be discharged by resolution dated 27-6-86 from the government service with immediate effect under Rule 9 and 10 read with Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1976 and the petitioner was removed from 27-6-86. 4. Gujarat Public Service Commission has already given its consent and the petitioner was removed from the Government service. 5. The petitioner Preferred Special Civil Application No. 4188 of 1986 before this Court. This Court vide order dated 26-9-1988 allowed the petition in part and the impugned order dated 17-6-1986 passed by the Disciplinary Authority i.e. the State Government removing the petitioner was set aside and the petitioner was directed to be reinstated in service and status-quo as to which existed before passing of the impugned order of the Disciplinary Authority was restored. Since the petitioner was under suspension before the order of removal was passed, he was directed to continue to remain under suspension. The respondents were also directed to pay arrears of subsistence allowance permissible under the Rules from the date of passing of the order of removal to the date of his reinstatement in service and to pay regularly every month until final order is passed by the Disciplinary Authority. The Disciplinary Authority was further directed to supply inquiry report to the petitioner and continue the inquiry from the stage of submissions of the Inquiry Officer's report and complete it before December, 1988 as the copy of the inquiry report was not supplied to the petitioner before passing the impugned order of removal. 6. The State Government went in Letters Patent Appeal before the Division Bench against the decision of the learned Single Judge. The Letters Patent Appeal being No. 498/98 was admitted but the order of the learned Single Judge was not suspended by the Division Bench of this Court, the State Government preferred Special Leave to appeal before the Supreme Court. The Special Leave Petition was withdrawn on 30-5-89 with the permission of the Court. The Division Bench of this Court on 25-11-1993 allowed Letters Patent Appeal and set aside the order of the learned Single Judge passed in Special Civil Application No. 4188/86 and the Special Civil Application No. 4188/86 was directed to be remitted back to the file of the learned Single Judge for disposal a fresh in light of the observations made in the judgment. 7. The Division Bench of this Court allowed the Letters Patent Appeal holding that it is not obligatory for the disciplinary authority to provide copy of the inquiry report to the petitioner if rules do not require and directed learned Single Judge to pass appropriate order ignoring the fact that the copy of the inquiry report was not supplied to the petitioner. But before the order of the Division Bench of this Court was passed the order of the learned Single Judge was already implemented and a copy of the inquiry report was supplied to the petitioner and the petitioner required the copy of the few documents and he submitted his defence statement against the show cause notice. The Gujarat Public Service Commission had agreed with the proposal of the State Government dated 22-1-90 for removal of the petitioner. The petitioner was again removed from the Government service by fresh removal order dated 9-2-1990. Hence the petitioner filed another writ petition being Special Civil Application No. 1104/90. The Division Bench of this Court passed the order dated 25-11-1993 wherein it is stated that Special Civil Application No. 1104/90 is between the same parties as in, and the controversy has stemmed out practically out of the controversy subject matter of, Special Civil Application No. 4188/86. The Division Bench allowed Letters Patent Appeal NO. 498/88 arising out of Special Civil Application No. 4188/86 and remitted Special Civil Application No.4188/86 for a disposal de-nova. It is further directed that it would be appropriate that that Special Civil Application No. 1104/90 should be dealt with with Special Civil Application No. 4188/86 and directed to list Special Civil Application No. 1104/90 along with Special Civil Application No. 4188/86 for disposal before the learned Single Judge. Hence, these two petitions were heard together and are being disposed of finally by this common judgment. 8. Learned counsel for the petitioner contended that in the present case no preliminary inquiry has been held. As such, regular inquiry in absence of preliminary inquiry is bad and is not sustainable in the eye of law. On the contrary learned State Counsel submitted that it is not necessary in each case that preliminary inquiry should be conducted and in absence of preliminary inquiry, regular departmental inquiry if held will not be vitiated on this ground and he relied on two decisions (i) in the case of The Secretary to Government of Tamil Nadu Vs. D. Subramanyam Rajadevan, reported in 1996 (4) S.L.R. 498, wherein it is held that there is no such principles of natural justice that before holding a regular departmental enquiry the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for written statement of defence before taking a decision to hold a regular departmental inquiry and (2) in the case of Kaushik T. Patel Vs. Gujarat Water Resources Development Corporation Ltd. reported in 1997 (4) S.L.R 82, wherein it has been held that it is not necessary that formal charge-sheet or statement of allegations must be issued to an employee. It is, no doubt, true that before taking an action of suspension, it is open to an employer to hold preliminary inquiry. But, it is not incumbent to the employer that in all cases preliminary inquiry must precede regular inquiry or such inquiry must be conducted before forming an opinion as to whether departmental proceedings should be initiated. It depends upon facts and circumstances of each case and in the light of attendant circumstances, an employer can take appropriate decision in accordance with law. In view of the decisions of two cases stated above the contention of the learned counsel for the petitioner that the preliminary inquiry should precede to the regular departmental inquiry is not sustainable in the eye of law. 9. Learned counsel for the petitioner referred to the note dated 26-9-81 of Shri N. Gopalaswami from which it appears that Shri N. Gopalaswami doubted his signature only on the basis of the word "a" after the word "l" in his signature was missing and suspected the mischief of the petitioner on the ground that the application dated 5-3-81 was received by him personally and a letter was sent under the signature of Mr. Mishra. He further referred to statement of Shri N. Gopalaswami recorded by the Inquiry Officer wherein the witness has stated "When he inquired from petitioner about the signature, in the beginning the petitioner had not admitted as to something has been done by him in the matter. But subsequently immediately he had tendered apology before me at that time." Learned counsel for the petitioner submitted that the petitioner has never admitted that the signature of Shri N. Gopalaswami was fabricated by him. In this connection, he put a question to the witness Shri N. Gopalaswami before the Inquiry Officer to which he replied that he did not remember of having asked that Mishra had informed him at that time this letter was issued by him without verifying his signature. he could not give any opinion with regard to the fact that as to whether Mishra had reached his house for confession of this thing or for any other work. But it was true that he had reached his house with one file. He has also referred to from the defence statement filed by him in reply to the show cause notice wherein he has stated that he had not confessed the matter and he requested to apologize him for not verifying the signature of Shri N. Gopalaswami before taking any opinion thereon and he also placed reliance on the defence statement made against the charges at the initial stage that he requested for apology only for the fact that he had not closely verified the signature of Shri N. Gopalaswami and forwarded the file to the higher authority for action. Thus, the learned counsel for the petitioner contended that the petitioner had never confessed that he had forged the signature of Shri N. Gopalaswami. He asked Shri N. Gopalaswami to apologize him only for the fact that he had not closely verified the signature of Shri N. Gopalaswami. The signature might have been forged by other person against whom he has enmity and he had also made proposal for transferring him from the department. As such, the fault on the part of the petitioner was only that he had not closely verified the signature of Shri N. Gopalaswami and forwarded the same to the higher authority for action. In this regard he referred the observations, of Hon'ble Parikh, J. in the order dated 16-1-1996 wherein it is observed that after some amount of submission it has transpired that the Disciplinary Authority has not assigned any reasons with regard to the defence set up by the petitioner, which is inter alia based upon the report of the Hand Writing Expert. However, the gist of the petitioner's defence in the light of the circumstances placed on the record of the Inquiry Proceedings would indicate that in any case the petitioner had displayed some inadvertence in the matter of processing the file without verifying the genuineness of the signature of Shri N. Gopalaswami. It is no doubt true that the charge which the petitioner faced was that he had forged the signature of said Mr. N. Gopalaswami and that on account of some circumstances coming on the record of the inquiry proceeding, the petitioner has been held to have committed the said misconduct of forging the signature of said Mr. N. Gopalaswami. As against this, the petitioner has in his favour the report of the Hand Writing Expert as stated above. In the facts of the petitioner's case, particularly the aforesaid salient feature of the matter, the defence of the petitioner would require appropriate consideration at the hands of the Disciplinary Authority. Pending this submission it has been submitted by Mr. Joshi learned advocate appearing on behalf of the petitioner, who is also present in the Court, that if, instead of the penalty of removal, some lighter penalty is imposed, the petitioner would consider to forego his other contentions taken in this petition. The suggestion made on behalf of the petitioner is with regard to imposition of lighter/minor punishment of stoppage of one or two increments. Under the aforesaid circumstances, it would be just and proper for the State Government, who is Disciplinary Authority, to consider the aforesaid suggestion and communicate its decision to this Court within a period of two months from the date of the order. 10. Learned State Counsel submitted that the the observation of the learned Single Judge is not based on the material on record as the complete record was not placed before the Court, only the argument was advanced by the learned counsel for the petitioner that there is no evidence or material on record to show that the petitioner made forged signature of the Joint Secretary, the probability is not excluded that some enmical official committed this mischief. It is only fault of the petitioner that he had not verified closely the signature of Shri N. Gopalaswami. For this purpose the petitioner deserves only for minor or lighter penalty in place of major penalty awarded to him. He further contended that the Government reconsidered the case of the petitioner in the light of the observation made by this Court and come to the conclusion by the order dated 14-3-1996 that it is the petitioner who deserves major penalty on the basis of the following circumstances. (i) The application dated 5-3-81 was received by the petitioner himself and he noted in the margin "Given personally to me on 9/4. as J.S. & U.S. were not available", after the note he made his own initial with the date 9/4 but he prepared note for higher officer on 6-4-81 which processing the application once the application was received on 9-4-81 how can it be possible for him to prepare note on 6-4-81, while processing it as such application was not received by him on 9-4-81. (ii) In the application dated 5-3-81 the transfer was sought for either at Ahmedabad or Godhara but in the note dated 6-4-81 to I.G P. he suggested for the transfer to Ahmedabad or Baroda after signing the said note he marked to J.S.. After making the aforesaid note he did not send it to Shri N. Gopalaswami for approval, instead he made forged signature of Shri N. Gopalaswami dated 16.4. (iii) The petitioner kept the file with him till 29-4-81 as it should have been sent to Clerk concerned for registering it in the Branch diary. It was registered for the first time on 29-4-81 in the branch diary and its movement should have been noted in this branch diary but no movement of 9/4, 6/4 and 16/4 is noted therein. The file was with the petitioner from 9/4 or 6/4 to 29/4 and made forged signature of Shri N. Gopalaswami. (iv) The petitioner gave the file to the Typist on 29-4-81 to get typed D.O. letter prepared by him and got it dispatched on 1-5-81. In the application the transfer was requested for Ahmedabad or Godhra which in the note prepared by him on 6-4-81 he proposed to transfer him to either Ahmedabad or Baroda. After this note the petitioner directed the Administrative Officer of I.G.P. Office vide letter dated 1-5-81 to transfer him at Ahmedabad. This direction was not in consonance of proposal. (v) In the marginal note dated 9-4-81 in the application dated 5-3-81 the petitioner made mention that the applicant could not met Joint Secretary while in the D.O. letter dated 1-5-81 to the Administrative Officer, I.G.P. Office, the petitioner has written that the applicant had personally met the Joint Secretary, this statement recorded is false in the D.O.letter. (vi) In the note prepared by him on 6-4-81 he proposed for transfer either to Ahmedabad or Baroda but in the D.O. letter dated 1-5-81 he had written that it was Government's order to consider sympathetically to transfer applicant's husband at Ahmedabad. Thus, this statement is also false. (Vii) From the deposition of Shri N. Gopalaswami it appears that the petitioner tendered apology only for forging the signature of Shri N. Gopalaswami and not for any other count. Shri N. Gopalaswami stated at that time in the beginning he had not admitted that he had done anything in the matter but subsequently he had tendered apology before him at that time. When he went to home the petitioner went with another file between 3 or 4, at that time he supplicated to give another opportunity. 11. On the facts and circumstances stated above, it was the petitioner who kept the file with him from 9/4 or 6/4 to 29/4 and he did not send it to the clerk concerned for registering it in the Branch Diary regarding inward entry and forged signature of the Joint Secretary purported on 16/4, on or before 29-4-81. For this mischief committed by him he tendered apology to the Joint Secretary. Thus, there was no other person except the petitioner for making forged signature of Shri N. Gopalaswami. He might have committed this act himself or got it done by him from any other person. 12. It was only advertence or negligence on the part of the petitioner but the act of forging the signature is intentional and deliberate. For that he requested the Joint Secretary to apologize him. The contention of the petitioner's counsel foregoing the other contentions at the most the charge of negligence or inadvertence for not verifying carefully the signature of Shri N. Gopalaswami is made out and for that charge the petitioner should be awarded minor or lesser punishment is not sustainable in view of the fact that on the basis of the statement of the learned counsel for the petitioner this Court made an observation that for lighter punishment and asked the Government to reconsider it. As the Government has taken into consideration the suggestion made by this Court and came to the conclusion that the petitioner is not entitled for any lesser or lighter punishment and the whole matter was not argued before the Hon'ble Mr. Justice M.S. Parikh. As such, the question of awarding lesser punishment to the petitioner does not arise. 13. I have considered the submissions made on behalf of the parties. It appears that the learned counsel for the petitioner argued before the Hon'ble M.S. Parikh J. that at the most the charge of negligence of verifying carefully the signature of Shri N. Gopalaswami appears to have been made and complete matter was not produced before Hon'ble Judge concerned. As such, the petitioner's contention regarding lesser punishment without going through the entire material on record the observation or suggestion of Hon'ble M.S. Parikh, J. cannot be considered to have passed after going through all the materials on record. As such, the petitioner's contention for awarding lesser punishment is not sustainable. Moreover, pursuant to the Court's direction the matter was reconsidered by the Government and it was found on the basis of gravity of charges that the petitioner does not deserve for the minor punishment. 14. Learned counsel for the petitioner next contended that the petitioner was not provided copies of certain documents and copies of statements of certain witnesses recorded during investigation and relied on the inquiry which violates the rule of natural justice and deprives him of an opportunity of hearing for making his defence and effective examination of the witnesses produced in the inquiry and relied on the case of Committee of Management, Kisan Degree College Vs. Sambhu Saran Pandey & Others, reported in 1995 (2) LLJ 625 (SC), the Supreme Court has held as under : "If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of the documents need to be supplied to the delinquent. If that opportunity was not given, it would violate the principles of natural justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent. If he seeks cross examination of the witness examined in proof of the charge him. He should be given the opportunity to cross-examine. In case he was to examine his witness or himself to rebut charge, that opportunity should be given. 15. He further relied on the rule of law laid down by the Supreme Court in the case of State of Madhya Pradesh V/s. Chintaman Sadashiva Waishampayan, reported in AIR 1961 SC 1623, wherein the rule of law has been laid down which reads as under : "When it was urgued before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the inquiry and amounted thereby to a denial of a reasonable opportunity to the public officer, the High Court repelled the argument and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before Enquiry Commissioner and was relied upon by him. "When, however, the report was not at all exhibited in the case, nor was it referred to nor relied upon by the Commissioner" said the High Court "there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions." In our opinion, this decision cannot assist the appellant's case because, as we have already pointed out, the documents which the respondent wanted in the present case were relevant and would have been of invaluable assistance to him in making his defence and cross-examining the witnesses who gave evidence against him. In such a case it would