Petitioner challenged compulsory retirement order via writ petition. Court found high Court erred in re-appreciating evidence and interfering with valid departmental inquiry. Petition dismissed; order upheld.
Petition under Article 226 dismissed; order of compulsory retirement against petitioner upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/9642/2004 JUDGMENT DATED: 22/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 9642 of 2004 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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SHANTILAL C CHAUDHARY
Versus
GUJARAT STATE KHADI GRAMODYOG BOARD & 1 other(s)
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Appearance:
MR JA ADESHRA(107) for the Petitioner(s) No. 1 MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 22/08/2022
ORAL JUDGMENT
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illegality in passing of the loans in favour of certain institutions for which the petitioner was issued show-cause notice and the petitioner had submitted his reply. Pursuant to the inquiry held against the petitioner, an inquiry report came to be submitted, which was provided to the petitioner and in response to such inquiry report, the petitioner submitted his representation and ultimately, by the impugned order, the petitioner was imposed with the penalty of compulsory retirement.
2.1 Learned advocate for the petitioner submitted that the root of the allegations is with regard to sanctioning of loan in favour of one Gopeshwar Khadi Gramudhyog of Village:Matar, Dist:Kheda and that on account of the illegality committed by the petitioner in not verifying the documents, which were filed in support of the loan application and merely on a site visit had recommended the loan to the said society. It is submitted that the sanctioning of the loan is a long drawn process in which over and above the petitioner, other officers and stakeholders are also involved, which included Auditors, Financial Advisers, Secretary etc. and against them the respondents have not proceeded though they also had played the equal role for sanctioning of the role. It is submitted that the entire action is malafide, as the petitioner is singled out and held responsible for the sanction of the loan.
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to examine the genuineness of such documents and in fact, it was the duty of the Chief Auditor and Financial Adviser, who would be undertaking the exercise of verification of documents. The petitioner, in his capacity, as Director is not expected to carry out any verification of genuineness of the documents.
2.3 Learned advocate has, thereafter, taken this Court through step by step procedure involved in sanctioning of the loan and how the loan application is scrutinized at various stages, and therefore, the petitioner cannot be held solely liable for any defect in the loan application. It is submitted that though the loan sanction was to the tune of Rs.24,47,000/- still the disbursement was only to the tune of Rs. 10 lac and odd, and therefore, the Board had not suffered any financial loss. It is submitted that in fact, the petitioner had addressed a letter dated 04.12.2000 to the supervisor of the respondent for carrying out the inspection with regard to the progress and utilisation of the fund provided under the loan and it was only then that the supervisor made the visit and submitted the report. This report indicated the status, but such report is not part of the record, as the same would benefit the petitioner to show that the petitioner had vigilantly acted and had also called up the respondents to act. Despite this, it is the petitioner, who is made the scapegoat.
2.4 Learned advocate for the petitioner submitted that the disciplinary proceedings were also flawed, as the charge-sheet was issued by the Member Secretary and not the Chairman of the Board, as the Chairman of the Board is the Disciplinary
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Authority for the petitioner. It was the Chairman, who is authorized to issue charge-sheet and not the Member Secretary. The inquiry is also assailed on the ground that the Presenting Officer was holding the office of Executive Officer in the respondent-board and on behalf of the Disciplinary Authority, the Presenting Officer himself made the noting on the file for taking necessary steps, and therefore, the Presenting Officer had acted in a dual capacity.
2.5 It is submitted that the Presenting Officer along with the report to the Disciplinary Authority had added two more documents, which were never the part of the charge-sheet for the inquiry proceedings and these documents are heavily relied upon by the Inquiry Officer. It is submitted that the documents are till date, not provided to the petitioner and for that reason only, this Court at various stages had passed orders for placing such documents on record.
2.6 Learned advocate has referred few of such orders in this very proceedings i.e. order dated 10.04.2019, 05.07.2019 and 01.10.2019 and despite these orders, the stand taken by the respondents is that of no record is available with the respondentboard. In that view of the matter, the impugned decisions required to be interfered with.
2.7 On merits, it is submitted that the ground on which the loan was sanctioned is not the the site report, but all the other factors, which were considered by the Appraisal Committee before sanctioning of the loan, and therefore, the entire blame cannot be placed on the head of the petitioner.
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2.8 Learned advocate has relied upon the decision of the Apex court in case of State of Gujarat vs. Umedbhai M. Patel reported in 2001 (3) SC 2461 , more particularly, Paragraph Nos.11 and 12 of the said decision.
3.1 It is submitted that the board has considered in detail the evidence on record and has also taken into consideration the submissions of the petitioner, and thereafter, having found satisfactory evidence, has held the petitioner guilty and imposed the penalty of compulsory retirement.
3.2 Learned advocate submitted that the inquiry report has taken into consideration. The required procedure and the lapse committed by the petitioner which had financial implication, and therefore, only, punishment was inflicted. It is submitted that the inquiry report observes that the petitioner was duty bound not only undertaking the site inspection, but also ascertain the genuineness of the documents, which was found to be fabricated. These documents were to secure the public money before being given, as loan facility to the Society and as the recommendation was by the petitioner, he was correctly held responsible.
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responsibility may not be accepted in view of the fact that each of the committee members, who are involved in the process of sanctioning loan has definite role to play, wherein the role of the petitioner was for verification of the documents, whereas other persons had to rely upon the recommendation of the petitioner in this regard. The petitioner, therefore, cannot simply wash his hand by shifting the burden on the other members of the committee.
3.4 Learned advocate for the respondents has relied upon the decision of this Court passed in Special Civil Application No.14737 of 2003 dated 18.03.2005 to submit that the scope of judicial review to examine the conclusion by the Disciplinary Authority in a validly conducted departmental inquiry is extremely narrow. He has also relied upon the decision of this Court passed in Special Civil Application No. 1506 of 1992 dated 25.8.2004 to submit that the misconduct which has financial implication is a gross misconduct and derelection of duty, and therefore, the order of compulsory retirement was not interfered with. He also relied upon the decision of this court passed in the case of N.C.Navin vs. General Manager, Bank of India reported in 2005(1) LLJ 969 to submit that the job requirement of like of the petitioner requires high standard honesty and integrity, and therefore, as per the gravity of the charge against the petitioner, the punishment cannot be treated to be shockingly disproportionate for this Court to interfere.
3.5 It is submitted that the application by the Gopeshwar Khadi Gramudyog was forwarded on 17.03.1999 along with the
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documents and when the application was received and processed at that time circular dated 09.04.1999 was in existence and applicable and at that time, the petitioner was duty bound to give his clear opinion for the project, which was for an amount of more than Rs.1,50,000/-.
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applicant-Gopeshwar Khadi Gram Udhyog Sangh for the purpose of Dangar Processing Unit (Rice Mill). On the report from the DIC, Supervisor dated 19.12.2000, it was informed to the board that the documents produced along with loan application were fake and fabricated, and therefore, by communication dated 01.05.2002, the nature of misconduct was communicated to the petitioner indicating that manner in which the petitioner has misused his position and with malafide intention of illegally providing financial benefit to the institute, fabricated bogus documents and got approved proposal for the same and get sanctioned significant loan amount of Rs.6,07,750/- for the first phase of the construction and get completed the payment of the same. He has not maintained integrity in the service and his conduct is not befitting to an Officer of the Government / Board. Moreover, he produced false and bogus documents from the institute and participated in the malafide intention of committing a scam and caused financial loss to the Board / Government. Thus, by committing serious misconduct, have violated Rule-3 of the Gujarat Civil Services (Conduct) Rules, 1971. He is responsible for the same and accordingly it has been resolved to conduct a regular departmental inquiry against him.
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submitting his brief. The Presenting Officer has presented his brief against which the petitioner was given an opportunity to place his defense and accordingly, the same are on record at Annexure-D and E, respectively. The report of the Inquiry Officer dated 13.02.2003 was also furnished to the petitioner to which the petitioner has placed on record his reply (Page No.81).
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officer whose signs and stamps were made. The report of the petitioenr misled all the concerned. If report is submitted by conducting superficial inspection of the place at the time of spot inspection. The petitioner has not verified authenticity of any document submitted by the organization. In his explanation dated 18/27.05.2002, he has stated that he has recommended on presumption that the record are true or authentic. This is a weak argument and not befitting to the designation of the petitioner. No recommendation can be made through presumption.
9.1 In the departmental inquiry, it clearly appeared that all the documents submitted by the organization were found to be bogus. Inquiry officer also visited Ratanpur in that regard and depositions of the concerned persons were recorded on 03.12.02, which are included vide Exhs-6 to 10. As per the crux of all these depositions, it is clear that the petitioner had not visited any office or got it verified and he had authorized the documents submitted by the organization and thus indirectly helped the organization.
9.2 If the deposition of Sarpanch/ Talati is taken into account, it becomes clear that the record was entirely fabricated. The society did not submit any application for construction at Survey Nos.421 and 422 at the outskirt. The letter pad on which certificate was given, did not belong to village panchayat. Thus, it becomes clear that the documents submitted were bogus and the society obtained grant by misguiding the board. Therefore, it becomes important that the records were not verified by the
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petitioner. If petitioner did not just verify the land and if he had verified the authenticity of all the concerned record submitted, with the village panchayat, Talati-cum-Mantri/ Sarpanch in person, then the true details would have surfaced at that time. The further proceedings and the process of approving the recommendation would not have taken place and the grant would not have been approved to the society and the monetary loss could have been prevented. Thus, it becomes clear that the grant was sanctioned to the organization as the result of and because of the proceeding of the petitioner. The proceedings at the board in that regard was due to the said error. Hence, any other arguments presented by the petitioner in this regard are irrelevant.
9.3 By not doing so, the petitioner has indirectly helped and misused his authority in approving the grant to the organization on the basis of false and fabricated documents. He has caused monetary loss to the Government/ Board by not showing integrity towards his duties and by acting in a manner not befitting to the officer of Government/ Board and by participating in the act to commit scam by submitting false/ fabricated documents by the organization. If the petitioner had showed diligence and conducted appropriate verification, then he could not have approved recommendation to sanction grant and the other erroneous proceeding would not have taken place.
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Chief Auditor, who had put his endorsement, the Financial Advisor viz. Mr.V.G.Gadekar, who also put his remarks, and thereafter, the Member Secretary, Administration, the Member Secretary, Development and lastly, by the Appraisal Committee, which had appraised the project and granted approval on 21.12.1999. However, it would be appropriate to refer to the documents which are placed on record. It was also found that, thereafter, as information from the Unit was not received, the District Supervisor was assigned investigation in the aforesaid matter of the aforesaid place on 04.12.2000. A report thereof has been submitted by the supervisor only after carrying out the investigation of the institution on 19.12.2000. Alongwith it, certificates of the Talati-cum-Mantri, extracts of 7/12, certificate of Grampanchayat, Rojkam carried out on site, etc. have been submitted. An entry thereof has been submitted by the branch on 30.12.2000. To which the coordinator has considered it seriously and submitted to the Director (Gramodhyog) on the same day alongwith his clear opinion but thereafter, the Director Gramodhyog has not made any note on the file and has not submitted the whole fact to someone Higher Officer or that the institute has not committed any irregularity. Despite knowing such, in the report of the field supervisor, there is substance of forged signatures and has produced false documents before the board for obtaining financial loan/assistance and the whole matter that the loan/assistance which has been obtained in the name of a fake person is a very huge financial conspiracy. Despite knowing such, no actions have been taken by the Director, Gramodhyog. Therefore, the matter indicates that the petitioner had intentionally suppressed the entire chapter.
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“11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
12. In the instant case, there were absolutely no adverse entries in respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and
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in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly. However, three months' time is given to the appellant-State to comply with the directions of the Division Bench, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him.”
The aforesaid was in the fact where the departmental enquiry was not completed and the Review Committee had not recommended for compulsory retirement.
“7. The jurisdiction of this Court in examining the conclusions arrived at by the disciplinary authority pursuant to a validly conducted departmental inquiry is extremely narrow. In the decision of Nirmala J. Jhala v. State of Gujarat, reported in 2004 (3) GLH 708, Division Bench of this Court had made following observations :
"49. From the above decisions, following legal principles can be culled out :
(i) A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.
(ii) The High Court cannot sit in appeal over the decision of the domestic tribunal. Therefore, where there are some relevant materials, which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 of the Constitution of India to review the materials and to arrive at an independent finding on the materials.
(iii) If the inquiry is properly held, the question of adequacy or reliability of evidence cannot be gone into by the High Court. High Court cannot interfere with the penalty if the conclusion of the competent authority is based on evidence, even if some of it is found to be irrelevant or
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extraneous to the matter.
(iv) In case of disciplinary inquiry, technical rules of evidence have no application.
(v) The only consideration that court has in its judicial review is to consider whether the conclusion is based on evidence and supports the findings or whether the conclusion is based on no evidence. To put it differently, the High Court can interfere if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonably prudent person would have ever reached."
“13. In another judgment reported as Union of India v. P. Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554] , this Court held that while re-appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings : (SCC p. 617, para 13)
“13. Under Articles 226/227 of the Constitution of India, the High
Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
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(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
“7. The disciplinary authority has taken into consideration the evidence led before the IO to return a finding that the charges levelled against the respondent stand proved.
xxx xxx xxx
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B.C. Chaturvedi [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law.”
GIRISH
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3 issues framed by the court
Whether the High Court was justified in interfering with the order of compulsory retirement by re-appreciating evidence from a validly conducted departmental inquiry.
Whether the High Court erred in holding the findings of the enquiry officer perverse or unsupported by evidence.
Whether the penalty of compulsory retirement was disproportionate to the misconduct proved.
Colour shows how this judgement treated each authority
State of Gujarat vs. Umedbhai M. PatelExplained¶39
State of Gujarat vs. Umedbhai M. Patel reported in 2001 (3) SC 2461
Special Civil Application No.14737 of 2003 dated 18.03.2005Referred¶47
Special Civil Application No. 1506 of 1992 dated 25.8.2004Referred¶47
N.C.Navin vs. General Manager, Bank of IndiaReferred¶47
N.C.Navin vs. General Manager, Bank of India reported in 2005(1) LLJ 969
Nalikant Sundarlal Sheth vs. Administrator Government Press and Stationary DepartmentReferred¶94
Nalikant Sundarlal Sheth vs. Administrator Government Press and Stationary Department
Nirmala J. Jhala v. State of GujaratApplied¶95
Nirmala J. Jhala v. State of Gujarat, reported in 2004 (3) GLH 708
Union of India v. P. GunasekaranExplained¶106
Union of India v. P. Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC 610 · Who else cites this
State Bank of India & Anr. vs. K.S.VishwanathExplained¶105
State Bank of India & Anr. vs. K.S.Vishwanath reported in AIR 2022 SC 2531 · Who else cites this
Allahabad Bank v. Krishna Narayan TewariDistinguished¶118
Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 · Who else cites this
State of A.P. v. S. Sree Rama RaoDistinguished¶122
S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] · Who else cites this
B.C. Chaturvedi v. Union of IndiaDistinguished¶122
B.C. Chaturvedi [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 · Who else cites this
2 provisions across 2 enactments
SHANTILAL C CHAUDHARY
GUJARAT STATE KHADI GRAMODYOG BOARD
A.Y. KOGJE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
