IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1879 of 1994 with Special Civil Application No.1850 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 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 -------------------------------------------------------------- N.P. PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1879 of 1994 MR BP TANNA for the Petitioner. Ms. Harsha Devani, Assistant GOVERNMENT PLEADER, for Respondent No. 1 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 07/02/2002 ORAL JUDGEMENT 1. Both the petitioners were serving at the relevant time as Executive Engineers and after conclusion of the departmental enquiry, both of them were removed from service. The said action is impugned in the present Special Civil Applications. Since the issues involved in both these petitions are common, both these petitions are disposed of by this common judgment. 2. It is required to be noted that by an order dated 16.11.1992, both the petitioners were removed from the post of Executive Engineer. At the time of admitting these matters, the said removal order was stayed by this Court. Accordingly, both the petitioners are protected by way of interim relief. During the pendency of the Special Civil Applications, the interim relief remained in force till today and, in the meanwhile, both the petitioners have retired on attaining the age of superannuation. So far as Special Civil Application No.1879 of 1994 is concerned, the petitioner has retired by way of superannuation in December, 2000 and so far as the petitioner of Special Civil Application No.1850 of 1994 is concerned, he has retired as back as on 29th February, 1996 and by virtue of the interim relief granted by this Court, they continued in service irrespective of the said removal order. 3. The petitioners were subjected to departmental proceedings in connection with irregularities in the matter of drilling of tube wells during the scarcity, which ultimately led to the enquiry. The incident in question had taken place during the period between 1972 and 1973. So far as Special Civil Application No.1879 of 1994 is concerned, the petitioner therein was subjected to charge-sheet, dated 17.1.1980, Annexure `A', page 17. The charge-sheet contained five charges. The aforesaid charge-sheet was issued in connection with the tube well work, which was carried out during 1972-'73. It was alleged that because of the aforesaid irregularity on the part of the petitioner, the Government suffered loss of Rs.6,79.937.00. So far as Special Civil Application No.1850 of 1994 is concerned, the petitioner therein was subjected to charge-sheet dated 15.3.1980, and in the said charge-sheet, three charges were mentioned against him. So far as the charge in connection with classification of the layer of earth regarding soft rock and boulders is concerned, both the petitioners were subjected to the said charge on the ground that the aforesaid classification was not properly made, with the result that the Government was required to pay Rs.6,79,937/-. The said charge was common so far as each of the petitioners herein is concerned. However, so far as petitioner of Special Civil Application No.1879 of 1994 is concerned, the said charge is worded slightly differently in the sense that it is alleged against him that he had not done proper classification of strata, i.e. layers of the land, while so far as the petitioner of Special Civil Application No.1850 of 1994 is concerned, it is stated that even though he was aware that the classification is not proper, still, he permitted the work and payment was made. 4. The petitioners replied the said charge-sheet and pointed out that the charge levelled against them are not correct and they gave detailed reply to the said charge-sheet. It is required to be noted that for the alleged incident regarding drilling tube wells, at the relevant time, there were about 22 delinquents, who were subjected to the charge-sheet and, ultimately, there was a joint enquiry in connection with all the 22 delinquents. It is required to be borne in mind that even though the incident in question was of the year 1973, the charge-sheet was issued for the first time after lapse of a considerable time, i.e. in the year 1980. The enquiry thereafter commenced in December, 1981 and the same was completed in December, 1985. In May, 1986, the Enquiry Officer submitted his report to the State Government. However, the order of penalty was not passed at a time against each delinquent. As per the submission of the learned Advocate for the petitioners, penalty order was issued against 7 Officers in December, 1986 and by the said order, different penalty orders were passed in the nature of withholding of increment or passing reversion order, but it is not in dispute that none of the employees was subjected to either removal order or dismissal order. So far as the present petitioners are concerned, ultimately, second show cause notice was given to them, along with the finding of the Enquiry Officer's report, and both of them also submitted their final reply. Thereafter, by the final order of penalty dated 16.11.1992, both the petitioners were removed from service, though each of them was given separate removal orders. However, it is required to be noted that in the year 1992, the petitioners had filed Special Civil Application Nos. 8196 of 1992 and 8197 of 1992, as, at that time, the petitioners were apprehending punishment orders against them. Those petitions were filed at the stage when no final order was passed in the departmental enquiry, and it seems that, in each of those petitions, same interim order was passed. However, in view of the subsequent final order of removal, the present two Special Civil Applications have been filed by the petitioners, challenging the said order, and as far as the earlier two petitions were concerned, they were filed at the interim stage before any final order was passed and they were, ultimately, disposed of by this Court. So far as Special Civil Application No.8196 of 1992 is concerned, the same was filed by the petitioner of Special Civil Application No.1879 of 1994 and the same was withdrawn on the ground that final order was subsequently passed and the petitioner has challenged the said final order by filing Special Civil Application No.1879 of 1994. The other petition, i.e. Special Civil Application No.8197 of 1992, was rejected by the Court on the ground that the same was filed when the enquiry was in progress. However, none of the aforesaid petitions was adjudicated on merits by the Court and, ultimately, the present two Special Civil Applications have been filed against the final order passed by the Department against each of the petitioners. As stated earlier, since in both the present petitions interim relief was granted by this Court at the time of admitting the petitions, the petitioners were allowed to continue on the post and, ultimately, they have retired as Executive Engineers, but since both these petitions are pending and since the order of removal is questioned in these proceedings, naturally, they are not paid retiral dues or any other benefits and accordingly, now these petitions are disposed of finally. 5. At the time of hearing of this petition, it was argued by Mr.Kerial, who is appearing for Mr.Tanna, learned Senior Advocate, appearing for the petitioners, that the incident in question is as back as of the year 1972-'73. Here, the enquiry was initiated after a period of about 7 years, i.e. in the year 1980. He also further submitted that during the pendency of the enquiry proceedings, the Presenting Officer of the State Government has submitted his report and he has clearly stated that the charges can never be proved and there is no evidence against the petitioners as well as any of the delinquents (since a joint enquiry was held against 22 delinquent Officers at the relevant time) and that it is even otherwise a case of "no evidence", and yet, the Enquiry Officer found that certain charges against the petitioners were held to have been proved. Before even passing the final order of removal and before even issuing the second show cause notice to each of the petitioners, the Government had already sent necessary papers to the GPSC, seeking their approval for passing appropriate order of removal and that the GPSC has granted their approval and thereafter, after getting such approval, the petitioners were subjected to the second show cause notice. It is, therefore, submitted that the action of the Government in not sending the matter back to the GPSC, after getting reply from the petitioners regarding the second show cause notice, for fresh approval is bad and that before passing the final order, the necessary documents were not sent to the GPSC, which are in the nature of reply to the second show cause notice given to the petitioners and, therefore, the order of removal is vitiated. It is also submitted that, even otherwise, when there were similar charges levelled against other 20 Officers, there was no reason to single out the present petitioners for punishment in the sense that they were subjected to harsh punishment of removal, and lighter punishments were given to other similarly situated employees, who were also subjected to similar show cause notices, and especially when there was a joint enquiry of all the aforesaid 22 employees. It was lastly submitted that, in any case, there is an unreasonable delay after the conclusion of the departmental enquiry. The Enquiry Officer submitted his report in May, 1986 and even though, in 1986, about 7 delinquents were subjected to penalty order, no penalty order was passed against the present petitioners and, ultimately, punishment order was passed as late as on 16th November, 1992. It is, therefore, submitted that there is considerable delay between the conclusion of the enquiry proceedings and passing of the final order and that, in that view of the matter, it is clear that this is not a case in which such maximum penalty could have been given, as the Department itself was not so serious about the matter, otherwise, they could have passed the removal order moment the departmental enquiry concluded. It was also submitted that the penalty in question is otherwise also very harsh and even considering the misconduct, which is proved in the departmental enquiry, the punishment in the nature of removal is on the excessive side, as even in the enquiry, it is not proved that either of the petitioners was guilty of any serious misconduct and that no charge of misappropriation of any amount is proved against any of the petitioners. It is submitted that considering the fact that the petitioners also continued throughout in view of the interim order of this Court and since they have retired from service, it is a fit case in which minor penalty in the nature of censure or withholding of one increment is required to be passed by substituting the order of penalty passed by the Disciplinary Authority. It is argued that this Court should exercise the powers under Article 226 of the Constitution of India by substituting the punishment passed by the Disciplinary Authority. Mr.Kerial has relied upon the decision of the Apex Court in State of Punjab v. Ram Singh, AIR 1992 SC 2188 to substantiate his say that the act of misconduct attributed to the petitioners is mere error of judgment, carelessness or negligence in performance of duty. He has relied on the observations made by the Apex Court in paragraph 5 of the aforesaid judgment, which reads as under :- " ... ... ... 5. Thus it could be seen that the word `misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. ... ... ...." 6. Ms.Harsha Devani, learned AGP, on the other hand, submitted that on the basis of the evidence available on the record, the Enquiry Officer has reached the conclusion of guilt against the petitioners. She further submitted that this cannot be said to be a case of "no evidence", or that it is a case of mere negligence, and that, on the basis of the evidence on record, ultimately, the finding is given by the Enquiry Officer, which is accepted by the State Government. She further argued that so far as the argument regarding delay in instituting the enquiry is concerned, no such specific point is taken in the petition and, therefore, it is not possible for the Department to deal with the said point in reply. She further submitted that so far as the delay at the second stage, i.e. after conclusion of the enquiry, is concerned, the petitioners are not prejudiced by such delay and, in her submission, they are benefited, in the sense that, after the enquiry, the removal order was deferred for a long time and, all throughout, the petitioners continued in service. In her submission, the said delay, therefore, cannot be said to be prejudicial to the petitioners in any manner and, according to her, the same was favourable to them in the sense that the punishment order was deferred for a long time, by which it cannot be said that any prejudice is caused to the petitioners. She also further submitted that when there is some evidence available on record, based on which the Disciplinary Authority has taken action, this Court cannot substitute the finding of the Disciplinary Authority, as this Court is not sitting in appeal over the decision of the Disciplinary Authority. She further submitted that the role attributed to the present petitioners, as compared to other delinquent officers, is different and considering the facts and circumstances of each case, appropriate punishment order is passed. She also submitted that this Court cannot substitute the penalty imposed by the Disciplinary Authority and in case the Court comes to the conclusion that the penalty is disproportionate to the misconduct proved, then, the only alternative available to the Court is to send the matter back, instead of substituting the penalty. She further submitted that even consultation with the GPSC is not a sine qua non and that it is not a mandatory provision. Yet, in her submission, before taking final decision, the opinion of the GPSC was also taken into consideration. On all the aforesaid grounds, therefore, she has supported the decision taken by the Disciplinary Authority. 7. So far as Special Civil Application No.1879 of 1994 is concerned, the Enquiry Officer's report is produced at page 138. Three charges were held to have been proved by the Enquiry Officer, i.e. charges 1, 3, and 5. So far as charge No.1 is concerned, it has been found that the petitioner was responsible for not exercising his technical judgment correctly. The relevant observations in the Enquiry Officer's report is as under :- " ... ... ... If Shri Patel would have been a little more vigilant, in observing the time taken to drill the tube wells in bouldary formations and compared with the time taken, in those tube wells, where boulders are not encountered, probably Shri Patel would have come to the conclusion that the gradation of the bouldary formation done by him was not correct which would have saved Govt. large amount of money. Shri Patel is, therefore, considered responsible for not exercising his technical judgment correctly. ... ... ...." So far as charge No.3 is concerned, it is also proved against the petitioner. The same is in connection with the defect in civil and mechanical work at Dharnoj, Taluka Patan, Patra, Taluka Harij, and Vavol, Taluka Sami. In the Enquiry Officer's report, it is observed as under :- " ... ... ... As regards charge No.3, regarding defective civil and mechanical work at tubewell Dharnoj, Ta. Patan, Patra, Ta. Harij, Vavol, Ta. Sami, Shri N.P. Patel in his defence statement filed on 17.11.80 states that the tubewell at Dharnoj tenure and as such, he is not responsible for the same. Shri N.P. Patel is silent regarding other two tubewells viz. tubewell at village Patra, Ta. Harij and village Vavol, Ta. Sami. He is silent and hence, charge of defective works on these two tubewells stands and hence he is considered responsible for these defective tubewells. ... ... ...." Regarding charge No.5, which is in connection with drilling extra depth in 16 out of 54 tubewells, it is found that the petitioner should have been little more careful in his day-to-day supervision and that would have saved extra expenditure. Ultimately, the conclusion was reached by the Enquiry Officer that the petitioner is responsible in not exercising technical wisdom in restricting the drilled depth. The aforesaid three charges were accordingly held to have been proved against the petitioner of Special Civil Application No.1879 of 1994. 8. So far as Special Civil Application No.1850 of 1994 is concerned, the Enquiry Officer's report is produced at page 44. So far as charge No.1 is concerned, which is in connection with payment of extra amount, it is found that the petitioner is responsible for not exercising his technical expertise. Same finding is reached so far as charge No.3 is concerned, which is in connection with extra drilling. Regarding Charge No.5, which was in connection with incomplete civil work at Village Fatehpura, Taluka Dhanera, it is found by the Enquiry Officer that he has not substantiated whether the defects have been rectified and completed satisfactorily and his statement that the works have been got completed, leads to his indirect admission that at the time of investigation of these tube wells, the works were defective and tube wells and machinery were in a dilapidated condition. It is found that he is also responsible for the same. Ultimately, all the three charges levelled against the said petitioner were held to have been proved. The aforesaid report is accepted by the State Government in toto and, ultimately, final order, as stated earlier, was passed. It is no doubt true that in Special Civil Application No.1879 of 1994, it has been found by the Enquiry Officer that the petitioner of that Special Civil Application has not used his technical expertise properly. It is also required to be noted that in none of the aforesaid cases, there is any finding of any financial irregularity. It is also not proved that any of these petitioners tried to oblige some Contractor by way of carrying out some extra work. Therefore, in both the aforesaid cases, ultimately, it is found that the petitioners were, to some extent, negligent in using their technical knowledge properly. However, reading the Enquiry Officer's report, it is not possible for me to accept the say of Mr.Kerial that the said finding is perverse or based on no evidence at all. On the basis of the available material on record, he has reached the conclusion that the petitioners have failed to exercise their technical knowledge in a proper manner and accordingly, in substance, each of the petitioners is found to be negligent in performance of their duty in carrying out the aforesaid project work. Though, of course, it is not proved that either of the petitioners had acted in such a manner, by which they have got some financial benefit, yet, in my view, it is not possible for this Court to come to the conclusion that the finding on the part of the Enquiry Officer is based on no evidence at all, as the Enquiry Officer, in the facts and circumstances of the case, on the basis of the available material, reached the said conclusion. It is required to be observed that this court is not sitting in appeal over the decision of the Disciplinary Authority and, if there is some evidence on record on which the conclusion is based, the same cannot be interfered with by this Court in a petition filed under Article 226 of the Constitution of India. In my view, therefore, the argument of Mr.Kerial to the effect that the finding of the Enquiry Officer is either perverse or is a case of "no evidence', cannot be accepted and accordingly, the said argument is negatived. In that view of the matter, it cannot be said that the departmental proceedings are vitiated. It is not in dispute that the petitioners were given appropriate opportunity to defend their case and principles of natural justice were also complied with and, ultimately, the charges are held to have been proved against the petitioners. Apart from that, in the case of D.T. Makwana v. State of Gujarat & another, 1992(1) G.L.H. 46, this Court, while interpreting the words "for good and sufficient reasons", which are finding their place in the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, after considering the judgment of the Apex Court in the case of Union of India and others v. J. Ahmed, (1979) 2 SCC 286, held as under :- " ... ... ... 8. Reliance was placed by Mr.R.N. Shah on the judgment of Supreme Court in the case of Union of India v. J. Ahmed reported in 1979(2)SCC 286 in support of his contention that such irregularities cannot give any ground for holding departmental inquiry or imposing any penalty. Mr.Shah submitted that it is essential that there was some misconduct alleged and found to be proved against the delinquent before any penalty can be imposed on him under Rule 6. In the instant case, he submitted, there was no finding of any misconduct and the only finding arrived at by the competent authority was of irregularity and finding of irregularity cannot be made a base for imposing any penalty. Mr.Antani, on the other hand, submitted that the words to the effect that penalties enumerated in Rule 6 may "for good and sufficient reason" be imposed would imply that not only misconduct, but even irregularities and other conduct can be made a ground for exercising powers under Rule 6. The contention canvassed by Mr.Antani does not appear to be convincing because, Rule 6 only enumerates the penalties and it is while imposing such penalties that the question as to whether there is good and sufficient reason has to be examined. In other words, the phrase, "for good and sufficient reasons" is used in the context of penalties which are being imposed when a delinquent is found guilty. This rule is not intended to enumerate the nature of conduct for which penalties may be imposed, but is framed in order to lay down the types of penalties which can be imposed and it is at the stage when penalties are being imposed that the existence of good and sufficient reasons for imposing such penalties would be the relevant criteria. Before such penalties are imposed, procedure has to be undergone for coming to the conclusion that the delinquent is