Partly allowed

H M Zala v. Gujarat Water Supply & Sewerage Board

Gujarat HC21 Dec 2018SCA/7658/2010

Case brief

AI extract

What is this about?

The High Court quashed penalty and appeal orders imposed on retired Junior Engineers by the Gujarat Water Supply & Sewerage Board. The Court held the orders were liable to be set aside for violating principles of natural justice due to non-assignment of reasons and non-application of mind, directing authorities to pass fresh reasoned orders.

What did the court decide?

Impugned penalty and appeal orders quashed; authorities directed to pass fresh reasoned orders considering defenses within three months.

H M Zala Vs Gujarat Water Supply & Sewerage… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/7763/2010 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7763 of 2010

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With R/SPECIAL CIVIL APPLICATION NO. 7501 of 2010 With R/SPECIAL CIVIL APPLICATION NO. 7658 of 2010

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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H M ZALA

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Versus

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GUJARAT WATER SUPPLY & SEWERAGE BOARD

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Appearance:

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MS MAMTA R VYAS(994) for the PETITIONER(s) No. 1 MR RC JANI(357) for the RESPONDENT(s) No. 1,2 RULE SERVED(64) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 21/12/2018

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COMMON ORAL JUDGMENT

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The present group of petitions is arising out of the

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identical questions of facts and law and hence, as per the request of the learned advocates appearing for both sides, the same are being dealt with by the present common judgment and order.

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So far as Special Civil Application No.7763 of 2010 is concerned, it is the case of the petitioner that the petitioner was appointed as a Junior Engineer on 10.7.1973 and later on promoted to the post of Deputy Executive Engineer on 20.12.1984 and lastly promoted as Executive Engineer on 24.7.2002 and was thereafter compulsorily retired from the services on 17.7.2004. It is the case of the petitioner that a charge sheet came to be submitted on 6.5.2005 for holding departmental inquiry into 5 charges inter alia alleging that while the petitioner was serving as Executive Engineer at Limdi, he committed certain irregularities to which the petitioner has submitted a defense statement on 3.6.2005 denying the charges. It has been submitted that in the said defense statement, said alleged irregularities had taken place between November and December, 2001 prior to almost 4 years from his retirement and, therefore, no charge sheet could have been issued to him. Ultimately, after appointing Inquiry

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Officer, the proceeding was conducted and Inquiry Officer submitted a report on 9.12.2005. The Disciplinary Authority concurring with the report of the Inquiry Officer has issued a show-cause notice for penalty on 24.1.2006 to which in February, 2006, a reply was submitted and then, vide order dated 7.12.2007, respondent board inflicted a penalty of monthly cut in pension of Rs.300/- on permanent basis. The petitioner having aggrieved by the same has submitted an appeal on 15.12.2007 before respondent No.2, however, the appeal came to be rejected vide order dated 24.3.2009 and it is against these two concurrent orders that the petitioner has invoked extra-ordinary jurisdiction of this Court.

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So far as Special Civil Application No.7501 of 2010 is concerned, it is the case of the petitioner that the petitioner was appointed as a Junior Engineer on 10.7.1973 and later on promoted to the post of Deputy Executive Engineer on 20.12.1984 and lastly promoted as Executive Engineer on 24.7.2002 and was thereafter compulsorily retired form the services on 17.7.2004. It is the case of the petitioner that a charge sheet came to be submitted on 20.9.2005 for holding departmental inquiry

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inter alia alleging that while the petitioner was serving as Executive Engineer from 25.7.2002, he committed certain irregularities to which the petitioner has submitted a defense statement on 29.9.2006 denying the charges and after appointing Inquiry Officer, the same was conducted and Inquiry Officer submitted a report on 10.7.2006 and did not find charges proved against the petitioner. However, while differing with the said conclusion, the Disciplinary Authority has served a notice on 17.10.2006 finding the petitioner as guilty of the charges and then issued show cause notice for penalty. The petitioner submitted a detailed representation on 2.11.2006 but later on the respondent board vide order dated 22.10.2007 inflicted a penalty of monthly cut in pension of Rs.500/- for a period of five years with effect from 1.10.2007. It is against this order that the petitioner has submitted an appeal on 20.11.2007 before respondent No.2. However, the appeal came to be rejected vide order dated 21.3.2009, which is made the subject matter of Special Civil Application No.7501 of 2010.

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So far as Special Civil Application No.7658 of 2010 is concerned, the petitioner joined the services as Junior

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Engineer on 10.7.1973 and then promoted as Deputy Executive Engineer on 20.12.1984 and lastly promoted as Executive Engineer on 24.7.2002 and was compulsorily retired from the services on 17.7.2004. It is the case of the petitioner that a charge sheet came to be submitted on 25.6.2004 alleging that while serving as Executive Engineer with effect from 25.7.2002 to 30.9.2003, he committed certain irregularities. Ultimately, a departmental inquiry was initiated and later on the Inquiry Officer holding the petitioner as responsible submitted his report on 4/10-11-2006 and while concurring with the said report, the Disciplinary Authority has issued a letter of penalty to which the petitioner has replied by letter on 29.3.2007 and ultimately, the respondent board inflicted a penalty vide order dated 22.10.2007 of a pension cut on monthly basis of Rs.1000/- on permanent basis. The petitioner feeling aggrieved by the same has submitted an appeal before respondent No.2 on 21.11.2007. The same having been partly allowed vide order dated 21.3.2009 whereby the modification has been done in respect of deduction instead of 10 years, for 7 years and it is against these orders, Special Civil Application No.7658

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of 2010 has been filed.

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Since the background of the cases is similar in all the three petitions, a common contention has been raised by the learned advocate appearing for the petitioners firstly that the orders in question are not only unjust and arbitrary but contrary to principles of natural justice. It has been submitted that every exercise of power must be backed by cogent reasons and the decision making process must reflect an application of mind on the part of the authority. The learned advocate has submitted that a bare look at the order would clearly indicate that the orders are not supported by any reasons much less a valid reason and, therefore, on this count alone, the impugned orders deserve to be set aside. It has been submitted that there is a gross delay in initiation of the proceedings against the petitioners and after retirement, for the cause which apparently took place prior to almost 4 years, the departmental inquiry was held and ultimately, order was passed which, in no circumstance, is sustainable in the eye of law. The learned advocate for the petitioners has further submitted that by virtue of provisions contained in the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, holding

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departmental proceedings must be after proper procedure which has been laid down under the rules so much so that there is a guideline also issued by the authority that every inquiry must be done at length and while passing final order, Chapter IX has postulated a specific procedure. It has further been contended that if there is consultation with the Gujarat Public Service Commission, then a copy of the advice will have to be served to the petitioner which has not been served prior in point of time and, therefore, there is a breach of guideline issued by the General Administration Department, which is reflecting on page 59. In any case, even the appellate authority also has brushed aside all the contentions without dealing with the same and the order dated 24.3.2009 is absolutely dehors the requirement of law and, therefore, on that count alone, the impugned orders deserve to be quashed. The learned advocate has submitted that by now it is well recognized that reasons are part and parcel of compliance of principles of natural justice and, therefore, the petitions deserve to be allowed by setting side the impugned orders as they suffer from the vice of non-application of mind and not backed by valid reasons. No other

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submissions have been made.

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To meet with the stand taken by the learned advocate for the petitioners, Mr. R.C.Jani, learned advocate for the respondent board has contended that a detailed inquiry was undertaken by the authority and after following proper procedure only, a conclusion is arrived at about the guilt of the petitioners and, therefore, it cannot be said that any procedure is curtailed by the board while inflicting penalty upon the petitioners. Mr. Jani has submitted that due process of law has already been undertaken and for that purpose has invited the attention to the averments contained in affidavit-in-reply filed to oppose the petitions, however, candidly has not been able to withstand the main contention that reasons are not reflecting in the decision making process, either at the original order or in appeal orders but then has submitted that there is a delay even in approaching the Court by the petitioners and, therefore, the petitions deserve to be dismissed.

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Having heard the learned advocates appearing for the parties and having gone through the materials produced on record, first and foremost consideration for the Court

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is the decision making process of the respondent authority. The Court, while examining the grievance of the petitioner, has found that original order dated 5.12.2007 even if looked into, the same perusal is not reflecting any reason. After narration of the particulars upto the stage of final submission, independent reasons are not reflecting at all and, therefore, this order appears to be absolutely untenable. Now same is the case with respect to an appeal order which has been submitted on page 58 dated 24.3.2009 wherein also, no reasons are reflecting as to under which circumstance the appeal is not accepted. As against that, the appeal memo, which has been submitted dated 15.12.2007 has got specific contentions and the detailed explanation to each charge is also submitted. Now none of the contentions appear to have been dealt with as is clearly visible and, therefore, under this set of circumstances, the Court is not in a position to examine the decision making process of the respondent authority nor is in a position to examine the issue whether the petitioner has been rightly punished or not and, therefore, irrespective of any other merit and the contentions, the Court is of the considered opinion that only on this ground of non-

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assigning of reason, the petitions are to be allowed with consequential directions.

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The Court, while coming to the conclusion, is mindful of a propositions enunciated in the cases of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in AIR 1998 SC 2713 and in the case of S.B.I. & Ors. Vs. Arvind K. Shukla reported in 2001 AIR SCW 2472 that reasons are heart beats of the decision making process and further by now, it has also been well recognized that reasons are part and parcel of principles of natural justice and, therefore, the orders which does not support with reason deserve to be held as violative of this recognized principle. Some relevant observations contained in the decision delivered by the Hon'ble Apex Court in Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in AIR 1998 SC 2713 are reproduced hereinafter:

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“The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry

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officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. “

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Under this set of circumstances, without entering into the merits or demerits of the petitions, the Court is inclined to set aside the impugned orders passed by the authorities below as being violative of principles of natural justice and suffers from the vice of nonapplication of mind. The Court deems it proper to issue following direction while allowing the petitions in part:

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Impugned orders of penalty as well as appeal orders in all petitions are quashed and set aside with consequential direction to the respondent authorities to consider the defense of the petitioners and shall pass a fresh order by assigning reasons in detail.

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For this exercise, the petitioners are at liberty to produce again the representation in detail and the documents, which were forming part of earlier proceedings and the authority may permit the

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petitioners to represent while taking proper decision.

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Since the petitioners have already retired, the respondent authority shall take appropriate decision in accordance with law afresh within a period of three months from the date of receipt of writ of this Court.

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Since the Court has set aside the impugned orders only on this ground, the Court has not expressed any opinion with regard to merits or demerits of the case of the petitioners or any other contentions and it is independently left it open for the authority to take appropriate decision in accordance with law.

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With these observations, the petitions stand disposed of. Rule is made absolute.

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(A.J. SHASTRI, J)

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RADHAKRISHNAN K.V.

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H M Zala v. Gujarat Water Supply & Sewerage Board

Case brief

What is this about?

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H M Zala v. Gujarat Water Supply & Sewerage Board

Case brief

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