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SCAJ/41712/0024 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4171 of 2002
With
CIVIL
APPLICATION No. 3780 of 2008
In
SPECIAL
CIVIL APPLICATION No. 4171 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
I.B.
DESAI - Petitioner(s)
Versus
GUJARAT
LABOUR WELFARE BOARD & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PARESH UPADHYAY for
Petitioner(s) : 1,
MR HS MUNSHAW for Respondent(s) : 1,
MR
DEVANG VYAS, APP for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 19/04/2010
CAV
JUDGMENT
The
petitioner is an ex-employee of respondent no.1 Gujarat Labour
Welfare Board( the Board for short). She has challenged an
order dated 25.8.2000/4.9.2000 passed by the Board dismissing her
from service with effect from 27.7.1998. The petitioner has further
prayed for direction to the respondents to give all consequential
benefits to her.
Short
facts leading to the petition are as follows.
2.1 The
petitioner was appointed initially as Assistant Welfare Commissioner
on 1.2.1968 under the control of respondent no.1 Board. She was
thereafter appointed as Labour Welfare Commissioner with effect from
11.10.1989.
2.2 As
per her age and rules of the Board, petitioner would have
superannuated with effect from 31.7.1998. However, on 16.5.1998
respondent no.1 issued a charge-sheet against the petitioner
levelling serious allegations of irregularities in discharge of the
duties. To the details of these charges, I will advert to at a
slightly later stage.
2.3 On
29.7.1998, i.e. two days before the petitioner would have crossed
the age of superannuation, an order was passed placing her under
suspension on account of her alleged misconduct for which
charge-sheet was already issued.
2.4 On
31.7.1998, petitioner was conveyed the decision of respondent no.1
that though she is permitted to retire with effect from 31.7.1998 on
reaching the age of superannuation, however in view of pending
departmental inquiry, she will continue in service notionally and
ultimate decision in such an inquiry will be binding on her.
2.5 Thus
even after crossing the age of superannuation, departmental inquiry
against her was continued. Inquiry Officer submitted his report
dated 26.4.1999, copy of which was supplied to the petitioner. The
petitioner made a representation to the authorities on 14.8.1999
against such inquiry officer’s report.
2.6 Respondent
No.1 however, passed impugned order dated 25.8.2000/4.9.2000 and
ordered to dismiss the petitioner with retrospective effect from
27.7.1998. It is this order which the petitioner has challenged in
the present petition.
2.7 The
petitioner had also filed Special Civil Application No.793/2000
praying for release of her Provident Fund dues. Previously, the
petitioner’s contribution of Provident Fund was already paid over to
her by an interim order. However, with respect to employer’s
contribution to Provident Fund, by an order dated 2.3.2010 in
Special Civil Application No. 793/2000 following order was passed:
Under
the circumstances, this petition is disposed of making the interim
order final. The amount of petitioner’s contribution to the
provident fund paid over to her shall be retained by her.
However, further relief must depend on the outcome of Special Civil
Application No.4171 of 2002 and shall be examined as part of the
consequential relief to setting aside the order of dismissal as
prayed for by the petitioner.
Subject
to the above observations, this petition is disposed of . Rule is
made absolute to the above extent.
Appearing
for the petitioner, learned counsel Shri Paresh Upadhyay challenged
the impugned order raising the following contentions :
3.1 That
the impugned order is passed without any authority of law. It was
contended that the petitioner having crossed the age of
superannuation, the Board had no authority to continue the
departmental proceedings against her.
3.2 It
was contended that in any case, order of dismissal could not have
been passed with retrospective effect.
3.3 It
was contended that inquiry was not properly conducted. The charges
were wrongly held to have been proved. It was also urged that the
petitioner was not generally questioned by the Inquiry Officer to
seek her explanation regarding factors against her.
3.4 Reliance
was placed on the decision of the Apex Court in case of Bhagirathi
Jena v. Board of Directors, O.S.F.C. and others reported in AIR
1999 Supreme Court 1841, wherein the Apex Court observed that once
the appellant had retired from service, there was no authority
vested in the Corporation for continuing the departmental inquiry
even for the purpose of imposing any reduction in the retiral
benefits payable to the appellant. In the absence of such authority,
inquiry had lapsed and the appellant was entitled to full retiral
benefits on retirement.
On
the other hand, learned counsel Shri Munshaw for the respondent
Board opposed the petition contending inter-alia that the petitioner
had committed grave misconduct by committing serious irregularities
in discharge of her duties. Huge amounts of Provident Fund and
Gratuity of the employees of the Board were invested in Cooperative
Banks against the Government Resolutions and directives. Investment
made was not safe. Ultimately, the Cooperative Bank went into
liquidation resulting into financial loss to the employees and the
Board. There were another illegalities committed by the petitioner
in making appointments to different posts in the Board. He further
contended that the Board through its rules namely Labor Welfare
Fund(Gujarat) Rules 1962 has decided to adopt various rules of the
State Government governing service conditions of the employees
namely Bombay Civil Services Rules, Gujarat Civil Services(Conduct)
Rules, 1971, Gujarat Civil Services(Discipline and Appeal) Rules,
due to which it was possible for the Board to proceed against the
petitioner departmentally even after the age of superannuation. He
contended that the petitioner was placed under suspension before the
date of superannuation by a specific order. Departmental inquiry was
continued even after her retirement.
4.1 He
contended that charges have been proved conclusively through
departmental proceedings. No interference is therefore, called for.
Having
thus heard the learned counsel for the parties, I may deal with last
contention first namely, that the charges were not established and
that reasonable opportunity was not given.
5.1 In
this regard it may be noted that charges levelled against the
petitioner pertained to two aspects. Charge article 1 pertained to
irregularities in financial matters. It was alleged that she had
invested huge amounts totaling to more than Rs. 1 crore and 40 lakhs
of Provident Fund and gratuity accumulation of the employees of the
Board in the Urban Cooperative Bank Ltd., Ahmedabad and Ahmedabad
Mahila Nagrik Cooperative Bank in disregard of Government circulars.
By such a conduct, she jeopardized the interests of the employees
and thus committed serious financial irregularities.
5.2 Second
charge which was subdivided into several different allegations
pertained to alleged irregularities committed by the petitioner in
filling up different posts under the Board. Certain instances have
been cited whereby she had made appointments disregarding the
reserved quotas. Instances have also been cited where she have made
appointments of different persons who were closely connected to her.
It is not necessary to reproduce all the charges in this order.
5.3 As
already noted, charge-sheet was served on the petitioner. Inquiry
Officer was appointed. Inquiry was conducted. Upon conclusion of the
oral inquiry, inquiry officer submitted his report dated 26.4.1999.
Such a report was supplied to her calling upon her to make a
representation. Her representation was taken into account.
Disciplinary Authority found that charges are proved and ultimately
passed the order of penalty.
5.4 Having
perused the contents of the inquiry officer’s report and the
representation of the petitioner to such a report, as also the
Disciplinary Authority’s order, it cannot be stated that the
petitioner did not have sufficient opportunity to defend herself. No
specific instance is pointed out wherein any of the principles of
natural justice can be stated to have been violated.
5.5 Further,
inquiry officer’s conclusions are based on evidence on record. Such
conclusions have been accepted by the Disciplinary Authority.
Nothing has been pointed out to suggest that the findings were
perverse. It is not the case of the petitioner that irrelevant
material was considered or that relevant evidence was ignored. In
particular, there is hardly any debate or dispute possible that the
petitioner had authorised investment of Provident fund and gratuity
amount of employees totalling to more than Rs. 1 crore and 40 lakhs
in the Cooperative Bank. It is also not the case of the petitioner
that the Government policy permitted such investment. In fact, it
has come on record that such investment was contrary to the
Government directives.
5.6 With
respect to the irregularities in filling up the posts of the Board,
there has been sufficient evidence which has been discussed by the
inquiry officer as well as by the disciplinary authority. With
such factual findings, I therefore, find no reason to interfere in
exercise of writ jurisdiction.
Contention
that inquiry officer did not question the petitioner generally to
explain the circumstances against her, it may be noted that no such
stand was taken either before the disciplinary authority or in the
petition. Such a contention is thus clearly an afterthought. When
neither before the inquiry officer nor before the disciplinary
authority nor in the petition, such a contention is raised, I do not
find it possible to permit taking such a contention only through
oral arguments without giving any opportunity to respondents to meet
with the same.
With
respect to the contention that the petitioner having crossed the age
of superannuation, the Board seized to have any authority to
continue with the departmental proceedings, one may recall that
after serving charge-sheet dated 16.5.1998, the petitioner was also
placed under suspension by order dated 29.7.1998. She would have
under normal circumstances superannuated with effect from 31.7.1998.
On that particular date, the Board passed an order stating that
though she is permitted to retire on crossing the age of
superannuation, since the departmental inquiry is pending against
her, her service shall continue notionally and she would be bound by
the ultimate result of the inquiry. Rule 19(B) of the Labour Welfare
Fund(Gujarat)Rules 1962 reads as under :
19B.
Conditions of service of the Welfare Commissioner and other
staff.-The provisions of the Bombay Civil Services Rules (except
Chapter X1 thereof) as amended from time to time by the Government
of Gujarat [as well as the State of Gujarat Civil Services (Conduct)
Rules, 1971 and the Gujarat Civil Services (Discipline and Appeal)
Rules] shall be applicable to the Welfare Commissioner and other
staff appointed under the Act;
Through
the said Rule, the Board has adopted several Rules of the State
Government concerning the service conditions of the employees.
In
case of Takhatray Shivadattray Mankad v. State of Gujarat
reported in 1989 Supp(2) Supreme Court Cases 110, the Apex Court on
the basis of Junagadh State Pension and Parwashi Allowances Rules,
1932 by which the employee was governed prior to his absorption in
the State Services, upheld continuation of departmental inquiry
initiated prior to retirement.
8.1 In
case of State of U.P. And another v. Shri Krishna Pandey
reported in AIR 1996 Supreme Court 1656, the Apex Court interpreting
Rule 351-A of the Central Civil Services (Pension) Rules 1972 which
reserved in the Governor right of withholding of pension of a
retired Government servant made following observations :
6. It
would thus be seen that proceedings are required to be instituted
against a delinquent officer before retirement. There is no
specific provision allowing the officer to continue in service nor
any order passed to allow him to continue on re-employment till
the enquiry is completed, without allowing him to retire from
service. Equally, there is no provision that the proceedings be
initiated as disciplinary measure and the action initiated earlier
would remain unabated after retirement. If Rule 351-A is to be
operative in respect of pending proceedings, by necessary
implication, prior sanction of the Governor to continue the
proceedings against him is required. On the other hand, the rule
also would indicate that if the officer caused pecuniary loss or
committed embezzlement etc. due to misconduct or negligence or
dereliction of duty, then proceedings should also be instituted
after retirement against the officer as expeditiously as
possible. But the events of misconduct etc. which may have
resulted in the loss to the Government or embezzlement, i.e., the
cause for the institution of proceedings, should not have taken place
more than four years before the date of institution of
proceedings. In other words, the departmental proceedings must be
instituted before lapse of four years from the date on which the
event of misconduct etc. had taken place. Admittedly, in this
case the officer had retired on March 31, 1987 and the proceedings
were initiated on April 21, 1991. Obviously, the event of
embezzlement which caused pecuniary loss to the State took place
prior to four years from the date of his retirement. Under these
circumstances, the State had disabled itself by their deliberate
omissions to take appropriate action against the respondent and
allowed the officer to escape from the provisions of Rule 351-A of
the Rules. This order does not preclude proceeding with the
investigation into the offence and taking action hereon.
8.2 In
case of State of Uttar Pradesh v. Shri Brahm Datt Sharma and
another reported in AIR 1987 Supreme Court 943, the facts were
that a Government servant’s dismissal was set aside by the High
Court only on the ground that he had not been afforded reasonable
opportunity. During the pendency of the petition before the High
Court the employee had already retired on attaining the age of
superannuation. The State Government therefore, issued a notice
calling upon him to show cause why order of forfeiture of pension
and gratuity not be issued. This action was challenged by the
employee. In this background, the Apex Court held and observed that
:
5 …Had
the respondent not retired from service on attaining the age of
superannuation it was open to the State Govt. to pass order awarding
punishment to him after issuing a fresh show cause notice and
supplying to him a copy of the recommendation made by the Inquiry
Officer. There was no legal bar against the State Govt. in
following such a course of action. There were serious allegations
of misconduct against the respondent which had been proceeded
against him during inquiry, those charges remained alive even after
quashing of the dismissal order and it was therefore open to the
State Govt. to take action against the respondent in accordance with
the rules. No disciplinary proceedings could be taken as the
respondent had retired from service, the Govt. therefore considered
it appropriate to take action against him under Art. 470 of Civil
Service Regulations. The Regulation vests power in the appointing
authority to take action for imposing reduction in the pension, as
the State Govt. is the appointing authority it was competent to
issue show cause notice to the respondent. The notice specified
various acts of omissions and commissions with a view to afford
respondent opportunity to show that he had rendered throughout
satisfactory service and that the allegations made against him did
not justify any reduction in the amount of pension.
If disciplinary proceedings against an employee of the Govt. are
initiated in respect of misconduct committed by him and if he
retires from service on attaining the age of superannuation, before
the completion of the proceedings it is open to the State Govt. to
direct deduction in his pension on the proof of the allegations
made against him. If the charges are not established during the
disciplinary proceedings or if the disciplinary proceedings are
quashed it is not permissible to the State Govt. to direct
reduction in the pension on the same allegations, but if the
disciplinary proceedings could not be completed and if the charges
of serious allegations are established, which may have bearing on the
question of rendering efficient and satisfactory service, it would be
open to the Govt. to take proceedings against the Govt. servant in
accordance with rules for the deduction of pension and gratuity.
In this view the High Court committed error in holding that the show
cause notice was vitiated.
8.3 In
case of State of Maharashtra v. M.H. Mazumdar reported in AIR
1988 Supreme Court 842, the Apex Court relying on the provisions
contained in Rules 188 and 189 of the Bombay Civil Services Rules
and Rule 33 of the Bombay Civil Services Conduct, Discipline and
Appeal Rules held that for misconduct, negligence or financial
irregularities committed by an employee during his period of
service, Government is competent to withhold or reduce pension after
giving opportunity of defence to the employee.
8.4 Under
such circumstances, considering the facts of the present case, I do
not find that the petitioner upon having crossed the age of
superannuation while departmental inquiry was still pending, all
proceedings would automatically come to an end.
Question
however, is what order could the disciplinary authority could have
passed. It is in this context that the last remaining contention of
the petitioner that the disciplinary authority had no power to pass
order of dismissal with retrospective effect needs to be examined.
9.1 Nothing
has been pointed out by the respondents to suggest that respondent
no.1 had power to pass an order with retrospective effect. In case
of Delhi Development Authority and another v. Joint Action
Committee, Allottee of SFS Flats and others reported in (2008) 2
Supreme Court Cases 672, the Apex Court observed that an executive
officer, in absence of any provision of a statute, cannot apply his
own decision with retrospective effect. Besides, Gujarat Civil
Services (Discipline and Appeal) Rules, 1971 which have been adopted
by the Board by virtue of Rule 19B of the Labour Welfare Fund
(Gujarat) Rules 1962, prescribes various major penalties. In Rule 6,
these penalties include reduction to a lower grade or post,
compulsory retirement, removal from service and dismissal from
service. These penalties can obviously be imposed only while a
Government employee is in service. None of these penalties can be
imposed after the employee has crossed the age of superannuation. If
the employee crosses the age of superannuation, employer can only
pass penal order withholding his post retrial benefits such as
pension which would include gratuity or the employee’s contribution
to provident fund as the case may be. Such withholding of pension
can either be partial or complete and for a limited period or
permanently. But in no case, a Government employee under the
Gujarat Civil Services (Discipline and Appeal) Rules, 1971, can be
dismissed from service after he crosses the age of superannuation,
even if inquiry was initiated while he was still in service.
9.2 For
the above reason, quite apart from the fact that dismissal order has
been passed with retrospective effect, I do not find that same can
stand the scrutiny of law.
9.3 Had
it been the order which could have been severed i.e. retrospective
operation of the order could have been separated, prospective
operation thereof could have been saved. In case of R.
Jeevaratnam v. State of Madras reported in AIR 1966 Supreme
Court 951, the Apex Court observed that :
4.
The order dated October 17, 1950 directed that the appellant be
dismissed from service with effect from the date of his suspension,
that is to say, from May 20,1949. In substance, this order
directed that ( 1 ) the appellant be dismissed, and (2) the
dismissal do operate retrospectively as from May 20, 1949. The two
parts, of this composite order are separable. The first part of
the order ,operates as a dismissal of the appellant as from October
17, 1950. The invalidity of the second part of the order,
assuming this part to be invalid, does not affect the first part of
the order. The order of dismissal as from October 17, 1950 is
valid and effective. The appellant has been lawfully dismissed,
and he is not entitled to claim that he is still in service.
9.4 In
the present case however, such is not the situation. On the date
when respondent no.1 passed the order of dismissal, petitioner had
already crossed the age of superannuation. No notice was also issued
by the Board that upon proving of the misconduct, petitioner’s post
retiral benefits could be withheld. The entire order must therefore
go. This would however, be without prejudice to the employer
considering passing any other order in accordance with law if
otherwise permissible.
Counsel
for the petitioner however, submitted that in absence of
applicability of Chapter 11 of Bombay Civil Services Rules which
pertains to pension and hence in absence of any powers flowing from
Rules 188 and 189 thereof, it is not even open for the employer to
withhold any part of the retiral benefits of the petitioner. This
question however has not arisen for my consideration so far.
10.1 The
petitioner appears to be covered by Provident Fund Scheme. Rules
regarding such provident fund are not on record. In addition to the
same, what other post retiral benefits, the petitioner would be
entitled to upon normal superannuation and under which rules is not
stated by either side. Question of authority of the Board to
withhold any part of such benefits is therefore, premature.
The
petitioner crossed the age of superannuation way back in the year
1998. Her post retiral benefits have been substantially withheld.
Entire issue must therefore come to an early end. Therefore, even
while reserving liberty to respondent no.1 to consider passing fresh
appropriate orders in accordance with law, a rigid time frame has to
be provided to conclude the issue expeditiously.
Under
the circumstances, the petition is disposed of with following
directions :
i) Impugned
order dated 25.8.2000/4.9.2000 is quashed. This is however, without
prejudice to respondent no.1 passing fresh order in accordance with
law, if otherwise permissible, after giving an opportunity of being
heard to the petitioner.
ii) If
respondent no.1 desires to proceed further in above terms, it shall
serve a notice to the petitioner within one month from today.
iii) In
absence of any notice within aforesaid period, it shall be presumed
that the Board does not wish to proceed further against the
petitioner.
iv) If
such a notice is served, petitioner shall have one month’s time from
the date of receipt of notice to make a representation.
v)
Final decision shall be taken expeditiously and in any case not
later than four months from today.
vi) If
no notice as permitted here-in-above is issued within the time
specified or for any other reason proceedings are dropped finally,
the petitioner shall be entitled to post retiral benefits which
shall carry either statutory interest or in case statute is silent,
shall carry simple interest at the rate of 9% per annum from the
date of her superannuation till actual payment.
The
petition is disposed of. Rule made absolute in above terms.
In
view of order passed in the main matter, Civil Application does not
survive. Disposed of accordingly.
(Akil
Kureshi,J.)
(raghu)
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