JUDGMENT
M.S. Shah, J.
1. This appeal is directed against the judgment and order dated 19th/21st January 2006 of the learned Single Judge, rejecting the petitioner’s claim for interest on delayed payment of pension and other retrial benefits and also giving certain directions, particularly the directions to the State Government to entrust the investigation to the Central Bureau of Investigation (CBI) regarding alleged financial irregularities at the Medical College, Bhavnagar during the period from 1996 to 1998, and to allow access to CBI to all other material and record related to the misconduct alleged against the petitioner. The learned Single Judge also directed that the report of investigation shall also be submitted to this Court within three months.
2. The facts leading to filing of this appeal are as under:
2.1 The appellant-petitioner who was holding the substantive post of a Professor in Government Medical Colleges was permitted to voluntarily retire in December 1999. However, he was not being paid the retiral dues and was subjected to two departmental inquiries by issuance of chargesheets in May/July 2002 in respect of irregularities to the tune of Rs. 3.5 lakhs in the matter of purchases made when the appellant was the Director of Central Stores Organization between June 1998 and December 1999. Hence the appellant herein filed three petitions – two petitions for challenging the above departmental inquiries commenced after his retirement and the third petition for his retiral dues. By order dated 2.8.2004, a learned Single Judge of this Court (Coram : Hon’ble Ms Justice RM Doshit) disposed of those two petitions by directing the Government to complete the inquiries within six months, failing which the inquiries shall stand quashed. In view of non-completion of the inquiries within six months, the order of the learned Single Judge operated by its own force. The application made by the Government for extension of the time-limit came to be rejected by the learned Single Judge on 17.6.2005. In this appeal, we are not concerned with the orders passed in those petitions, except for the fact that quashing of those inquiries enabled the appellant to press the third petition.
2.2 The third petition was Special Civil Application No. 9583 of 2003 (giving rise to the present appeal) in which the appellant had prayed for the following substantive reliefs:
(A) direct the respondent-authorities to finalise the pension case of the petitioner and make payment of pension, gratuity and commutation of pension, and
(B) direct the respondent authorities to make payment of interest for the delayed payment of the retirement benefits to the petitioner, at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case.
2.3 Affidavit-in-reply dated 24.8.2003 was filed by the Accounts Officer for contesting both the prayers. In the said affidavit, it was stated that when the appellant was In-charge Dean, Medical College, Bhavnagar between April 1995 and May 1998, certain grave irregularities were allegedly committed during the appellant’s tenure as Dean and the irregularities ran into approximately Rs. 45 lakhs for which the purchase record was missing from the college and for which no contingency vouchers were placed on record explaining the same. It was also stated that the Secretary, Health & Family Welfare Department directed the Additional Director, Medical Education to look into the matter expeditiously as 31 bills amounting to Rs. 81 lakhs were missing from the record and police complaint with regard to the same was to be filed. Hence time taken for non-payment of pension was sought to be explained with reference to the alleged irregularities during the period when the appellant was Dean of the Medical College, Bhavnagar from 29.4.1995 to 21.5.1998.
It is clear that while the appellant was served with charge-sheets in two departmental inquiries in May/July 2002 (referred to in para 2.1 above) in respect of purchases made when the appellant was Director of Central Medical Stores Organization in 1998-1999, the subject matter of those inquiries was alleged irregularity involving amount of Rs. 3.50 lakhs in each departmental inquiry, the appellant was not served with any charge-sheet regarding the alleged irregularities at Bhavnagar.
2.4 When the petition reached hearing before another learned Single Judge on 19.1.2006, (other than the learned Single Judge who had disposed of the other two petitions) it was stated by the learned Asstt. Government Pleader that since the departmental inquiries initiated against the appellant were decided to be dropped, the pension case of the appellant would be finalised within a period of one month. The learned Single Judge accordingly recorded that the first and main prayer in the petition would not survive. As regards the second prayer for interest for the delay of more than five years, during which period the appellant was deprived of the retiral benefits except the provisional pension and provisional gratuity paid during pendency of the proceedings but after the due date/s, the appellant pressed his claim for interest.
2.5 In order to contest the appellant’s claim for interest on delayed payment of provisional pension and provisional gratuity, on behalf of the respondents, two more affidavits dated 28.12.2005 and 12.1.2006 were filed before the learned Single Judge indicating the reasons for no progress being made in the matter of inquiry/ police case against the appellant in relation to the irregularities during the period when the appellant was Dean, Medical College at Bhavnagar (April 1995 to May 1998).
2.6 Ultimately, the learned Single Judge passed the following operative order dated 19/20.1.2006 which is under challenge in this appeal:
15. Accordingly, it is directed that:
(i) The Secretary, Health & Family Welfare Department shall supply to the Central Bureau of Investigation at its office in Gandhinagar the copies of the memo dated 24.8.1999, enquiry report dated 11.10.1999 and audit report forwarded with the letter dated 14.8.2002, alongwith the earlier audit reports dated 1.7.1999 and 28.4.2000 which were submitted by the Commissioner (Health), Health Services & Medical Education, regarding the alleged financial irregularities at the Medical College, Bhavnagar during the period from 1996 to 1998; and allow access to the CBI to all other material and record related to the misconducts alleged against the petitioner. The officers of the State Government and the officers of the Accountant General’s office at Rajkot shall co-operate with the CBI in investigation of the aforesaid matters.
(ii) The CBI shall investigate the whole matter as stated in para 13 hereinabove and take necessary steps in accordance with law in the matter of the alleged irregularities, missing bills, breach of trust and misappropriation, if any, and any other offences as may be found to have been committed, including conspiracy to facilitate siphoning of public money, destruction or concealment of evidence etc. The report of investigation shall also be submitted to this Court as expeditiously as practicable and preferably within three months.
(iii) This order along with the order dated 2.8.2004 in SCA No. 9634 of 2002 and SCA 9584 of 2002 shall be placed before the Bench taking up contempt matters for appropriate action as may be deemed proper in view of the above prima facie finding of contempt of Court insofar as the direction to complete the enquiries within six months was not complied, with the result that not only the order was frustrated but it was abused to end the enquiries and exonerate the petitioner at the cost of the public exchequer.
(iv) A copy of this order shall be sent to the Chief Secretary and the Vigilance Commission of the Government of Gujarat for taking necessary actions for improvement of the administration and prevention of wasteful delays in the matter of departmental actions so as to avoid unnecessary litigations and liabilities caused by insincere initiation of punitive actions against its officers. It may be worthwhile to consider the feasibility of fixing time-limits for every stage of disciplinary proceedings and fixing personal responsibility of the officers entrusted with or in charge of different parts of the disciplinary proceedings.
(v) In view of the facts and for the reasons discussed hereinabove and major part of the retiral dues having been already paid to the petitioner, his prayer for interest on delayed payment of retiral benefits is rejected.
16. Subject to the above directions and acknowledging the candid disclosures made and fair attitude adopted by the learned Government Pleader Mr. Arun D.Oza, the petition is disposed and Rule is discharged with no order as to costs. The matter shall be listed on 24.4.2006 before this Court for taking on record report of the CBI and for appropriate further orders, if required. The office shall immediately carry out the direction in para 15 (iii) in view of the limitation for initiating action under the Contempt of Courts Act, 1971 and place the matter before the appropriate Court latest by 01.2.2006.
2.7 Pursuant to direction (iii), the office placed the suo motu contempt petition before the Bench taking up contempt applications. When the said matter came up for first hearing before the Bench to which one of us was a party (M.S. Shah, J), order dated 1.2.2006 came to be passed and a brief summary of the order under appeal was also incorporated in the said order. It is not necessary to set out the entire order, but paragraphs 1 and 10 of the said order dated 1.2.2006 read as under:
Dr. A.R.N. Setalvad, who was an Officer in the State Government service, was allowed to retire voluntarily with effect from 20.12.1999 as a special case on condition that he will have to pay the amount, if any, recoverable from him under the departmental inquiries contemplated against him. Chargesheets dated 21.5.2002 and 30.7.2002 were issued against him after his retirement. The chargesheets pertained to financial irregularities which were initially estimated to be for amounts running into approximately Rs. 45 lacs. Subsequently, it was noticed that the amounts ran into Rs. 81 lacs.
2 to 9…
10. It appears that the facts noticed by the learned Single Judge from the affidavits-in-reply in Special Civil Application No. 9583 of 2002 and other facts referred to in the aforesaid judgment dated 19.1.2006 were not brought to the notice of the learned Single Judge who passed the orders dated 2.8.2004 and 17.6.2005. It would, therefore, be in the fitness of things if this Misc. Civil Application for suo motu contempt proceedings is placed before the Bench of which Honourable Miss Justice R.M. Doshit is a Member.
Considering the fact that the time limit of one year for initiation of the contempt proceedings would expire on 2.2.2006, the Registry is directed to place this matter before the Honourable Chief Justice for passing appropriate orders in this behalf.
We are informed that the matter was thereafter placed before another Division Bench of this Court (Coram : Hon’ble Mr Justice AR Dave & Hon’ble Ms Justice RM Doshit) and notice was issued on the said contempt application. Since the said proceedings are pending before another Bench, we need not say anything more on that aspect of the matter.
3. After admission, the appeal has been heard from time to time. On 21st April 2006, when the time limit stipulated by the learned Single Judge was about to expire after hearing the learned Counsel for the parties, by way of ad-interim relief, it was directed that the report, if any, prepared by the CBI pursuant to the directions given by the learned Single Judge shall be produced on the record of this Letters Patent Appeal and that the Court will thereafter take up the matter for further hearing and orders.
4. At the hearing on 27th April, 2006, the learned AGP tendered compilation of papers pertaining to the purchases made during the appellant’s tenure as In-charge Dean of the Medical College, at Bhavnagar. The confidential note dated 20th April 2006 of the CBI was made available to the learned AGP for perusal before concluding the hearing so as to enable her to make submissions on behalf of the State Government. At the joint request of the learned Counsel for the parties, the appeal was posted for final disposal on 29th April 2006. On 29th April 2006, Mr. Upadhyay, learned Counsel for the appellant addressed the Court at length on the questions of fact as well questions of law arising in this appeal and relied upon several decisions of the Apex Court in support of his submissions. Today, we have heard the learned Assistant Government Pleader and also the learned Counsel for the CBI.
Having heard the learned Counsel for all the parties, we are finally disposing of this appeal.
5. Mr Paresh Upadhyay, learned Counsel for the appellant has challenged all the directions given by the learned Single Judge, particularly direction Nos.(i) to (iii) and (v) in the order under appeal.
5.1 The learned Counsel for the appellant has raised the following contentions:
(A) The directions contained in the impugned judgment, [(except 15(v)] are beyond the scope of the petition filed by the appellant- original petitioner. Such directions i.e. directions contained in para 15(i) to 15(iii) could not have been given, while deciding prayer Clause 8(B) of the petition, which was merely for payment of interest on the delayed payment of retiral dues.
(B) These directions, in any case, could not have been given, without first putting the parties to notice, which is not done in the present case.
(C) The directions to CBI to investigate and find out whatever offence committed by the appellant, could not have been given by this Court, much less by the learned Single Judge. The directions are also in the nature of directions to be given in public interest litigation which could not have been entertained by the learned Single Judge.
(D) Government has taken the stand that, though pension case of the appellant is now finalised (PPO dated 13.3.2006) payment pursuant thereto cannot be made in view of the directions of the learned Single Judge to conduct inquiry against the appellant by CBI. By this, an anomalous situation is created wherein the appellant is not being paid principal amount of his sanctioned retiral dues because his request for interest is rejected.
5.2 The order under appeal proceeds on certain incorrect factual premises.
The impression created by the order of the learned Single Judge (and the said impression is also apparent from the first para of the order dated 1.2.2006 in MCA 330 of 2006 noted in para 2.7 above) that the two charge-sheets dated 21st May and 30th July 2002 pertained to ‘financial irregularities which were initially estimated to be for an amount of approximately about Rs. 45 lakhs and subsequently, it was noticed that the amount ran into Rs. 81 lakhs’.
It is submitted that the order of the learned Single Judge would create an impression as if the appellant had suppressed such relevant facts before the learned Single Judge who disposed of the two petitions challenging the two departmental inquiries by directing that if inquiries were not completed within six months, the charge-sheets shall stand quashed and that if the gravity of the irregularities which were subject matter of the departmental inquiries had been brought to the notice of the learned Single Judge, conditional order quashing the charge-sheets might not have been passed. It is submitted that apart from annexing the two charge sheets to the other two petitions challenging the departmental inquiries, the appellant himself had produced along with the memo of the petition giving rise to this appeal, the Commissioner’s memo dated 24.8.1999 at Annexure-F and the appellant’s reply thereto dated 6.9.1999 at Annexure-G. It is, therefore, submitted that there was no suppression or concealment of any fact. A very serious grievance is made that the learned Single Judge has not even referred to the said explanation dated 6.9.1999 (Annexure SG), nor permitted the appellant to address the Court on the merits of the alleged irregularities and that the explanation given by the appellant on 6.9.1999 has not been considered either by the authorities or by the learned Single Judge and still straightway directions have been issued for entrusting the investigation to CBI.
5.3 It is also submitted that the learned Single Judge has observed that if the allegations against the petitioner were motivated or without any substance, exercise of preliminary enquiries, reports, recommendations of the Vigilance Commission, audit reports, framing of charges and holding of enquiries were a sheer waste of resources and distressing demoralization of the delinquent. But if the charges had any substance and huge amounts were to be recovered after holding the inquiries, the administration consciously failed to complete the process, even formally, despite an express judicial direction to do so.
It is submitted that the judicial direction pertained to the two departmental inquiries in relation to the period when the appellant was Director, Central Medical Stores Organization (where the alleged irregularities of Rs. 81 lakhs did not take place), but there was no judicial direction in respect of the period when the appellant was Dean, Bhavnagar Medical College. The other observations in the judgment do contain an innuendo that the State administration was trying to shield the appellant, that the State agencies may not be able to discharge their function to investigate properly, impartially or expeditiously and that, therefore, the learned Single Judge has given the directions for entrusting the investigation to the CBI.
5.4 Strong reliance has been placed on the decisions of the Apex Court in Common Cause, a Registered Society v. Union of India and in VK Majotra v. Union of India, in support of the submission that such directions cannot be issued when the scope of the petition did not warrant such directions and also in support of the submission that a man cannot be hounded by the police or CBI merely to find out whether he has committed any offence or is living as a law abiding citizen. Even where the Court may make an observation that the CBI shall carry out the investigation without being influenced by any observations made by the Court or the findings recorded by the Court it is mere lullaby or in the nature of a palliative. The CBI would not be in a position to brush aside the serious observations made by the learned Single Judge against the appellant.
5.5 It is submitted, without prejudice to the above submissions, that at least if an opportunity was given to the appellant through his counsel to explain the alleged irregularities, the appellant would have given explanation and would have persuaded the learned Single Judge that there was no such case as to warrant entrusting investigation to the CBI. It is also submitted that even the CBI was not directed to give any hearing to the appellant with the result that after passing of the order of the learned Single Judge, the CBI has never called the appellant for any explanation or clarification in the last three months. Once the CBI submits the report before the learned Single Judge, no Court would sit in appeal over such a report of the CBI which may then proceed to launch criminal prosecution against the appellant ensuing further consequence of arrest etc. and even the Court hearing the bail would not hear the appellant on merits if the CBI is shown to have submitted an adverse report, if any, against the appellant. The appellant will not get any opportunity to give his explanation till the Criminal Court decides the matter finally on merits, but the acquittal after long delay will not be any solace for the agony and ordeal that the appellant will have to undergo in case the criminal prosecution is launched against him. All this only because the appellant has not been given an opportunity of hearing either by the administration or by the learned Single Judge. It is, therefore, submitted by Mr Upadhyay that serious prejudice has been caused by the directions given by the learned Single Judge, which if not set aside, would cause irreparable harm and prejudice to the appellant.
5.6 Strong reliance is also placed by the learned Counsel for the appellant on various decisions which will be discussed at the appropriate place.
6. On the other hand, Ms. Hansa Punani, learned Assistant Government Pleader has submitted that, all that the learned Single Judge has done is to direct the CBI to look into the serious allegations against the petitioner, and that, no adverse action has been taken against the appellant so far, and therefore, this is not the stage where this Court should intervene. It is also submitted that the CBI has prayed vide confidential note dated 20th April 2006 of the CBI for extension of time limit for completing the inquiry/investigation and therefore, without interfering with the order of the learned Single Judge, this Court may simply grant extension of time limit.
7. Mr. Nigam Shukla, learned Counsel for the CBI has made submissions, on the basis of the status report dated 20th April 2006 of the Superintendent of Police, C.B.I., ACB, Gandhinagar, as forwarded with the letter dated 23/4/2006, and also under the instructions of Mr. Anil Shridhar, Inspector of Police, CBI, ACB, Gandhinagar.
7.1 Mr. Shukla has submitted that, upon receiving the order dated 19th January 2006 of this Court, a preliminary inquiry was registered on 27th February 2006. The State Government in the Health & Family Welfare Department had provided photocopies of audit reports dated 1/7/1999, 11/10/1999 and 14/8/2002, memo dated 24/8/1999 and Enquiry Report dated 28/4/2000 along with their relevant Annexures. The audit reports point out the instances of purchases without following the prescribed guidelines/procedures of the Government of Gujarat, failure to maintain prescribed records related to purchase and its payments, purchases of prohibited items like Colour T.V., passing of bills, without proper documentation, payments made exceeding the financial powers and in some cases, failure to obtain proper approval or sanction from the competent authorities prior to purchase/release of payments.
7.2 Subsequent to the registration of the preliminary inquiry, scrutiny of the above mentioned documents was carried out. The investigating officer, CBI examined and recorded statements of Mr. V.R. Oza, (Retired), the then Accounts Officer at the Medical College, Bhavnagar, during the period between October 1995 and March 1997, Mr. R.M. Makwana, the present District Treasury Officer, Bhavnagar; Mr. K.K. Shah, presently the Officer on Special Duty, who had conducted preliminary inquiry; Mr. M.B. Kayasth, the then Cashier of the Medical College, Bhavnagar; Mr. M.P. Gopinath (Retired), the then Professor, Department of Physiology and holding an additional charge as Professor, In-charge of `Instruments’ in the Stores of Medical College, Bhavnagar; Mr. S.S. Bhagora, Accounts Officer, Medical College, between 1/5/1998 to 7/5/199 and Mr. M.C. Modi, the then Librarian, Medical College, Bhavnagar. The investigating officer also collected the copies of the List of Medicine Bills and the copies of correspondence relating thereto and audit objections placed by the Accountant General, Rajkot, copies of internal audit reports and its compliance report, list of officials posted at various sections and faculties of the Medical College during the relevant period, copies of treasury records regarding receipt of bills and their passing by treasury officer and copies of State transactions forwarded by the treasury officer to the Accountant General’s Office, Rajkot for the relevant years.
7.3 It is submitted by Mr. Shukla that, during the course of preliminary inquiry, it was noticed that the 31 bills and accompanying vouchers were found missing during the audit conducted by the Department of Medical Education & Research, Government of Gujarat from 24th June to 6th July 2002 as the College authorities had failed to present these 31 bills valued at Rs. 80,99,515/- for the year 1996-97. Subsequently, these bills were reported to be missing by the Dean of Medical College.
7.4 During the course of inquiry, it was learnt that the bills for payment are prepared in duplicate at the Medical College from where the original is sent to the District Treasury Office for passing. From the Treasury Office, these paid bills are forwarded to the Accountant General’s Office, at Rajkot for their reconciliation. The preliminary inquiry has revealed that the said bills are also not available with the Accountant General’s Office, Rajkot, since they have been destroyed (such bills are required to be retained by the Accountant General’s Office only for a period of 3 years after which they become due for destruction). The inquiry has also revealed that the cheques issued by the District Treasury (drawn on the State Bank of Saurashtra) were also sent to the A.G. Office, Rajkot, but those cheques were also destroyed (cheques are required to be retained for five years only). In absence of actual bills, it will be very difficult to comment upon the genuineness of the transactions and also ascertain if there is any criminal culpability on the part of the appellant. It also cannot be said with certainty if the appellant or any other person on his behalf was responsible for the missing bills. The Medical College, Bhavnagar was started in September 1995 and its office was re-located 4 to 5 times till it shifted to its present location. The possibility of the bills getting misplaced during such shifting also cannot be ruled out.
7.5 It is also submitted by Mr. Shukla that, efforts are made to trace out the identities of the parties to whom the payments were made so that their identification may lead to re-construction of the missing 31 bills. It is further submitted that the investigating officer approached the State Bank of Saurashtra, Bhavnagar where it was found that the list of cheques issued by the District Treasury Office which were subsequently presented to the Treasury was available, but details like names of the payee or the bank which presented the cheque etc. were not available. But, those details may have to be obtained from respective service branch of the concerned bank. It is also submitted that, however, it would be a major exercise to ascertain the complete details from such bank records and would require substantial time running into more than one year. After ascertaining the identity of the accounts where the cheques/demand drafts were credited, persons/firms would have to be located and contacted to get the details of their transactions with the Medical College, Bhavnagar for cross verification. But, it will be difficult, if not impossible, to make such cross verification because those parties would not have preserved their papers relating to the transactions in question during years 1996-97 i.e. after more than nine years. In view of the passage of nine years, it would not be possible to expect those parties to supply any details or documents for the purpose of cross verification. It is only after ascertaining the genuineness of those transactions that it can be concluded whether the missing bills were genuine/bogus/fake. Mr. Shukla has, therefore, submitted that, still in case this Court directs the CBI to go ahead with the inquiry, as directed by the learned Single Judge, this Court may also indicate specific points on which the inquiry is to be conducted.
8. After hearing the learned Counsel for the parties, we also called upon the learned AGP to indicate whether there was any specific allegation against the appellant whether the items shown to have been purchased and paid for at the relevant time were not actually found to be physically delivered at the relevant time or whether the bills were inflated i.e. there was any finding in any inquiry i.e. whether there was allegation of any misappropriation by the appellant. The learned AGP after taking instructions from the Under Secretary, Health & Family Welfare Department, stated that there was no such specific allegation.
9. Having heard the learned Counsel for the parties, before dealing with the contentions raised on behalf of the appellant, we may first set out the relevant dates during which the appellant was posted as In-charge Dean, Medical College, Bhavnagar, and his subsequent postings till the date of his retirement on 20/12/1999:
September 1995
Bhavnagar Medical College was to start from September 1995.
April 1998
The appellant, who was Professor and Head of Department of Preventive and Social Medicine Department at Medical College, Jamnagar, was given the additional charge of the post of Dean of Bhavnagar Medical College (To start the College).
29.4.1995 to 19.7.1995
The appellant continued as Professor at Jamnagar and in-charge Dean of Medical College, Bhavnagar.
21.7.1995
The appellant was transferred as a Professor (PSM) from Jamnagar to Bhavnagar.
21.7.1995 to 11.9.1995
Professor (PSM) at Bhavnagar and in-charge Dean, Bhavnagar.
12.9.1995 to 11.10.1996
Professor (PSM) only at Bhavnagar, since regular Dean at Bhavnagar was Mr. V.S. Tomar.
12.10.1996 to 21.5.1998
Professor (PSM) and Dean, at Bhavnagar.
22.5.1998
Dr.Subramaniam joined as regular Dean at Bhavnagar.
22.5.1998 to 29.7.1998
Professor (PSM) at Bhavnagar.
29.7.1998
Vide order dated 29-7-1998 (Annexure SA), the appellant was transferred and posted as Director, CMSO, Gandhinagar. The additional charge of the Post of Professor at Bhavnagar, continued till 17-10-1998.
18.10.1998 till 20.12.1999
From 18-10-1998 till retirement i.e. 20-12-1999, the appellant was Director, CMSO, at Gandhinagar.
10. There is no dispute about the fact that two departmental inquiries which were instituted against the appellant in the year 2002 did not pertain to the allegations about missing bills during the appellant’s tenure as In-charge Dean, Medical College, Bhavnagar, nor did they pertain to the office memorandum dated 24th August 1999. Since the two inquiries which were subject matter of the two charge sheets issued on 21st May 2002 and 30th July 2002 are not the subject matter of the petition giving rise to this appeal, we do not have to refer to them elaborately. Nonetheless, since those departmental inquiries have a bearing on the question of denial of interest on delayed payment of retiral benefits, we have thought it fit to refer to the gist of those charge sheets.
10.1 In the first charge sheet dated 21st May 2002, the charge against the appellant was that, while working as Director, Central Medical Stores Organization, the appellant caused loss to the Government to the tune of Rs. 3.50 lakhs (rupees three lakh fifty thousand), because the medicine capsules (Amoxicilin) were purchased with a price difference of Rs. 50/- from the supplier i.e. the capsules were purchased at Rs. 699/- per 1000 capsules in July 1999 instead of purchasing them at Rs. 649/- per 1000 capsules which was the rate for the subsequent period. The Department, therefore, alleged that, had the capsules been purchased at Rs. 649/- in July 1999, the Government would not have been required to suffer loss to the tune of Rs. 3.5 lakhs.
10.2 As far as the second departmental inquiry is concerned, the charge sheet dated 30th July 2002 also contained allegations on the similar lines where also it was alleged that the supplier had quoted lower rates for the subsequent period and still the appellant had purchased the capsules at higher rate and thereby, caused loss to the tune of Rs. 3.50 lakhs.
10.3 The appellant’s explanation in the replies to the chargesheet was that there was a purchase committee comprising of five officers who had met on 12th July 1999 to finalise purchase of different drugs and other items, in all 300 drugs, and purchase orders for such 300 items were finalised on the basis of prevailing and valid rate contracts as on that date i.e. 12/7/1999. As on that date, for capsule (Amoxicilin) the rate was Rs. 699 per one thousand capsules.
It so happened that in respect of the contract for the subsequent period which was signed in October 1999, the new rate for the item was Rs. 649/- per one thousand capsules which was supplied in the sealed cover. The question of opening the sealed cover for the subsequent period did not arise as on 12/7/1999 because the rate contained in the sealed cover could be higher or lower depending on the offers which may be made by the suppliers. In any case, the contract for the period including July 1999 was already made earlier at the rate of Rs. 699/- per one thousand capsules. Subsequently, when the sealed cover was opened, it transpired that the new rate was Rs. 649/- per 1000 tablets.
10.4 On perusal of the appellant’s replies, it would appear that the purchases made in July 1999 were made on the basis of the existing rate contract entered into between the Government and the supplier, which had already provided for rate of Rs. 699/- per 1000 capsules. The ‘Amoxicilin capsules’ was only one of the 300 items for which the Committee had finalised the purchase in July 1999. The rates for the capsules in question for the subsequent period opened in October 1999 could have been quoted above or below Rs. 699/-. How could the purchase committee be expected to take that risk?
11. As already indicated earlier, those charge sheets dated 21/5/2002 and 30/7/2002 came to be challenged by the appellant in Special Civil Application Nos.9584 of 2002 and 9634 of 2002. During pendency of those petitions, by order dated 28th October 2002, the learned Single Judge of this Court directed the Government to deposit the amount of gratuity payable to the appellant. Direction was complied with and the amount was ordered to be paid over to the appellant in December 2002. Accordingly, the appellant was paid the amount of provisional gratuity in December 2002. Since no progress was made in the departmental inquiries initiated in May/July 2002, by order dated 2nd August 2004, the learned Single Judge directed the Government to complete the inquiries within six months failing which the charge sheets issued against the appellant shall stand quashed. As already indicated earlier, the application moved by the Government in June 2005 for extension of the time limit for completing the inquiries came to be dismissed by the learned Single Judge on 17th June 2005. In view of the aforesaid orders of this Court, the State Government passed order dated 7th December 2005 [Annexure III] dropping the two inquiries against the appellant which were initiated through charge sheet dated 21st May 2002 and 30th July 2002. In view of the said orders, when Special Civil Application No. 9583 of 2002 filed by the appellant for directions to the Government to pay pension, gratuity and other retiral dues reached hearing, the learned AGP made a statement on 19th January 2006 that since the departmental inquiries initiated against the appellant were decided to be dropped, the pension case of the appellant would be finalised within a period of one month. On the basis of that statement, ultimately, the State Government passed the Pension Payment Order (PPO) dated 13th March 2006. However, that order, while sanctioning the pension, also stipulated that the amounts payable to the appellants shall not be released on account of the directions given by the learned Single Judge in the judgment under appeal rendered on 19th January 2006, directing the State Government to entrust the investigation to the CBI.
12. Since the judgment under appeal does not indicate that the learned Single Judge had given any opportunity of hearing to the appellant on the merits of the allegations made against the appellant or permissibility of such directions being given to the CBI at this stage after passage of nine years from the date of the alleged misconduct, it is necessary to deal with the submissions of the learned AGP that no adverse action has been taken against the appellant and therefore, the CBI investigation ought to be permitted to be continued.
13. Mr. Upadhyay, learned Counsel for the appellant has vehemently submitted that the directions given by the learned Single Judge for the CBI investigation against the appellant (who is presently serving as Secretary, Medical Council of India) have not only resulted into a cloud being thrown over his reputation (as will be clear from the newspaper report dated 3rd February 2006, prominently publishing the contents of the judgment dated 19th January 2006 of the learned Single Judge under appeal), but have also resulted into denial of payment of legitimate retiral dues of the appellant which the State Government has otherwise already sanctioned on 13th March 2006.
14. In Institute of Chartered Accountants of India v. L.K. Ratna , the Apex Court has made the following pertinent observations:
There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. ‘Not all the King’s horses and all the King’s men’ can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientèle. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blasé attitude towards the noble values of an earlier generation, a man’s professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, need to ensure that there is no breach of fundamental procedure in the original proceedings, and to avoid treating an appeal as an overall substitute for the original proceeding.’
In view of the above weighty observations of the Apex Court, we have considered the submissions made on behalf of the appellant with the seriousness which they deserve.
15. We may also consider at this stage the decisions of the Apex Court relied upon by the learned Counsel for the appellant in support of his submissions that since the subject matter of the two departmental inquiries which were the subject matter of the two petitions (wherein the learned Single Judge granted directions for completion of departmental inquiries within six months) did not at all pertain to the period during which the appellant was the In-charge Dean, Bhavnagar Medical College, and that, the appellant’s conduct during the period when he was In-charge Dean, Bhavnagar Medical College was not subject matter of any of the petitions, nor were there any prayers in the petitions, the learned Single Judge could not have proceeded to examine either the conduct of the appellant during the period when he was In-charge Dean, Bhavnagar Medical College or the alleged inaction on part of the Government authorities in respect of the allegations during that period.
15.1 In State of Karnataka v. Registrar General, High Court of Karnataka, reported at , the Apex Court held that judicial decorum requires that judgments and orders should confine to the facts and legal points involved in the particular cases which Judges deal with. The Court reiterated the following observations of the Apex Court in State of Uttar Pradesh v. Mohammad Naim – Sin the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before a Court of law in case to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct, it has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.
15.2 In V.K. Majotra v. Union of India , the Court held that the High Courts should not overstep their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course of the arguments. The writ courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case, keeping in view the facts and circumstances of the case, any additional points are to be raised, then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise.
16. In view of the aforesaid decisions, we find some substance in the submissions made by the learned Counsel for the appellant that the alleged irregularities during the appellant’s tenure as In-charge Dean, Medical College, Bhavnagar, were not the subject matter of either of the two petitions in which the appellant had challenged the departmental inquiries initiated against him on 21st May 2002 and 30th July 2002. Even in the third petition wherein the appellant had sought directions for payment of pension and other retiral benefits, the main and the first prayer already stood granted once the time limit stipulated by the learned Single Judge for completing the departmental inquiry expired and the learned Single Judge also refused to grant any extension of time limit. In fact, there was specific government order dated 17th December 2005 dropping those inquiries. As far as the second prayer regarding claim for interest on delayed payment of retiral benefits was concerned, if on facts the learned Single Judge was of the view that the delay on part of the Government authorities in sanctioning/ releasing the retiral benefits was not unreasonable, the learned Single Judge could have, on that ground, declined to grant the relief for payment for interest. However, without calling upon the appellant to show cause why the appellant should not be subjected to any investigation by CBI for the alleged irregularities during his tenure as In-charge Dean of the Bhavnagar Medical College, the learned Single Judge has given very sweeping directions which are bound to result into the kind of irreparable loss which has already been referred to in the decision of the Apex Court in the case of Institute of Chartered Accountants (supra).
17. Before giving such directions for CBI investigation, the Courts are required to take into account the principles laid down by the Apex Court in the following three decisions:
17.1 In Common Cause, A Registered Society v. Union of India , the Apex Court has laid down the following principles in paragraphs 149 to 170:
(i) A direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person’s involvement is prima facie established, but a direction to the C.B.I. to investigate whether any person has committed an offence or not cannot be legally given.
(ii) A man cannot be hounded out by the Police or C.B.I. merely to find out whether he has committed any offence or is living as a law-abiding citizen. Even under Article 142 of the Constitution, such a direction cannot be given.
(iii) The direction to the CBI not to be influenced by any observations made by the Court in the judgment, or the findings recorded by it, (no such caveat is to be found in the order under appeal), is a mere lullaby.
17.2 Again in Secretary, Minor Irrigation and Rural Engineering Services, U.P. v. Sahngoo Ram Arya, reported at , the Apex Court reiterated the above principles and elaborated the first principle in the following terms:
A decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of ‘ifs’ and ‘buts’ and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause (supra).
In the said decision, the Apex Court set aside the directions given by the High Court, which did not take into consideration the reply given by the Minister. The Court observed that the High Court must record a prima facie finding as to the truth of such allegations with reference to the reply filed.
17.3 In State of Karnataka v. Arun Kumar Agarwal reported at , the Apex Court has made the following observations:
The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. The High Court has looked at different circumstances in the case with a jaundiced eye…. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forth coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.
18. We do not find any such exercise as mandated by the Supreme Court having been undertaken by the learned Single Judge before the issuance of the directions. Having heard the learned Counsel for the CBI, (benefit of which submissions was not available to the learned Single Judge) and having gone through the compilation of the papers produced by the learned Assistant Government Pleader and having heard the learned Counsel for the parties, in order to determine whether it is possible to take the prima facie view that the appellant was involved in the serious irregularities referred to in the order of the learned Single Judge, we have gone into the merits of the defence urged by the learned Counsel for the appellant for the limited purpose of deciding whether it is possible to arrive at any such prima facie conclusion.
19. Before referring to those submissions on merits, we may also set out the provisions of Rule 189A of the Bombay Civil Service Rules, which Rule prohibits the Government from initiating any departmental inquiry against a retired government officer where the allegations pertain to any incident which had taken place more than four years before the date of commencement of the inquiry. Admittedly, the period of four years had expired on 31st March 2001 or in any case, on 31st March 2002 and the attempt which was made by the learned Government Pleader before the learned Single Judge to get over this Rule, cannot be countenanced very lightly.
189A – (1) The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including services rendered upon re-employment after retirement:
Provided that –
(a) Such departmental proceeding, if instituted while the Government servant was in service whether before his retirement or during his reemployment shall after the final retirement of the Government servant be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service:
(b) such department proceeding if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-
(i) shall not be instituted save with the sanction of the Governor;
(ii) shall not be in respect of any event which took place more than 4 years before such institution; and
(iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relations to the Government servant during his service;
(c) no such judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and
(d) the Gujarat Public Service Commission shall be consulted before final orders are passed.
20. Coming to the alleged irregularities committed by the appellant herein during his tenure as In-charge Dean of Bhavnagar Medical College during the period between 12/10/1996 and 21/5/1998, it appears that the allegations revolve around two basic issues:
(1) The alleged irregularities in connection with the bills submitted by the Accounts Officer Mr. V.R. Oza on 31st March 1997, and
(2) The bills submitted by the appellant as In-charge Dean without any regular Accounts Officer holding the post on 31st March 1998.
21. The learned Assistant Government Pleader states that, in respect of those bills, the audit reports dated 1/7/1999 and 11/10/1999 contained adverse remarks against the appellant and all those who were concerned with submission of the bills. Admittedly, all the bills covered by the said audit reports were available for the audit parties to examine. However, in respect of a large number of items, the audit reports mention that Store Keeper Mr. Shaikh was not available and therefore, the various files containing quotations/tenders/comparative statements and the files pertaining to the procedure for purchases, rate contracts and purchase procedure files, could not be verified. The auditors also commented adversely on the purchase of materials for amounts more than Rs. 20,000/- without inviting tenders for such purchases as required under the Rules framed by the Government. It also appeared to the auditors that the purchases were made piece-meal and excess prices higher than the market prices were paid for such purchases. Various minor discrepancies and procedural lapses were noticed, such as, the office stamps not being affixed or signatures of the officers not being placed on the certificates put on the bills.
22. It is not necessary to go into the detailed discussion about all the remarks made in the audit reports, because, the auditors have shown absolute petty mindedness even in criticizing the payments for refreshment when the office staff was required to be detained in office for long hours beyond the usual office hours and payment of Rs. 40/- towards rickshaw fare. Similarly, adverse remark was made about xerox copies of documents being made outside at Ahmedabad when the Medical College, at Bhavnagar itself had a xerox machine. Similarly, job work was got done through private computer centers when the Medical College had its own computers.
23. Those remarks were incorporated in the office memorandum dated 24th August 1999 (Annexure SF) which was replied to by the appellant on 6th September 1999 (Annexure SG).
23.1 The first and foremost explanation offered by the appellant was that the Medical College at Bhavnagar was established in the year 1995 with very inadequate infrastructure; the inspection by the Medical Council of India was imminent in May 1997 and therefore, as In-charge Dean of the College, it was the appellant who was entrusted with all the responsibility of ensuring that the Medical College is found to be well-equipped with all the instruments, gadgets, library books and all the office requirements in order to ensure that the Inspection Team of the Medical Council of India would not find any shortcomings. We also find from the statement of the appellant recorded by preliminary inquiry committee headed by Deputy Director Mr. K.K. Shah on 20th April 2000 that when the appellant was the In-charge Dean, Medical College, Bhavnagar, more than 50% administrative posts were lying vacant and even those who were posted at Bhavnagar, were inexperienced and right from day one, they were expecting to be transferred out of Bhavnagar and were discharging duties reluctantly; hence it was not possible to run the administrative and financial affairs of the office of the Dean with any efficiency or as per the norms. It was also mentioned in the said statement that all the items purchased for Medical College, Bhavnagar were purchased as per the decision of the joint Purchase Committee for the Rajkot Medical College and Bhavnagar Medical College and comparative statements were also being prepared and furnished to the members of the Purchase Committee and their signatures were being obtained on the comparative statements. Since the Medical College came to be established in Bhavnagar in 1995, most of the items were not available with the local traders at the relevant time and were, therefore, purchased from traders outside Bhavnagar and they were not prepared to accept the cheques payable at Bhavnagar and therefore, in view of the impending Medical Council of India inspection, the Dean’s office had no other alternative but to make payments in cash or by demand drafts. Since such purchases were being made in the month of March from out of the grants made available at the fag end of the year and the purchases were required to be completed by 31st March 1997, large amounts of cash were required to be kept on hand, and all those amounts were required to be spent for making various purchases as they were essential in order to satisfy the requirements of Medical Council of India. In the circumstances, keeping in view the development/progress of the medical college at Bhavnagar, as well as to ensure that no shortcomings were noticed during the course of inspection by the Medical Council of India for grant of recognition and continuation thereof, in the interest of the institution, the Government and the students, the appellant had discharged his duties with utmost expedition.
23.2 We also find from the statement of Dr. M.P. Gopinath recorded on 24th April 2000 that he was posted as Professor of Physiology at the Medical College, Bhavnagar between 19th January 1995 and 9th May 1997 and during that period, there was shortage of even teaching staff. That inspite of fact that, as per the Rules he was required to take 60 lectures in a month, on account of shortage of Teaching Staff, he was required to take as many as 250 lectures. Even with this excessive teaching load, he was also asked to work as Officer In charge (Stores & Instrument). Even as In-charge Dean of the Medical College, Bhavnagar from 19th October 1995 to 14th December 1995, he (Dr Gopinath) had to write the bills himself and also to write the cash book. All the decisions regarding the purchase of furnitures, instruments, books etc. for the Medical College, Bhavnagar were being done as per the decisions of the Purchase Committee.
23.3 We may also take judicial notice of the defence pleaded by Mr. Upadhyay at the hearing that a decade back the colour xerox machines were not easily available at all places. Mr Upadhyay has pointed out that the colour xerox machines were available only at Ahmedabad, and therefore, all the coloured charts which were essential requirements in the Medical College Laboratories were required to be procured from the other Medical Colleges (the appellant had already worked as a Professor at Jamnagar Medical College) and their colour xerox copies had to be prepared at Ahmedabad and all this had to be done on emergency basis.
23.4 It also transpires from the Government Resolutions dated 25th September 1996 and 6th October 1997 produced by Mr. Upadhyay that the Government had constituted a Joint Purchase Committee for the Medical College, Bhavnagar as well as the Medical College, Rajkot, and the Deans of both the Colleges were members of the Purchase Committee along with other officers of the department. Whatever items were purchased for Medical College, Bhavnagar, were also purchased for the Medical College, Rajkot, but no objections were raised in respect of Medical College, Rajkot as no inquiries were made. It is submitted by Mr. Upadhyay that the preliminary inquiry was entrusted to a Committee headed by the Deputy Director, who was Professor at the Medical College, at Rajkot at the relevant time, and therefore, the appellant who was at Bhavnagar neither got a fair hearing, nor an opportunity to satisfy the Preliminary Inquiry Committee that the appellant and his team had done what was in the best interest of the Medical College, Bhavnagar. Mr. Upadhyay has also pointed out that when the said preliminary inquiry committee had recorded the statement of Mr. V.R. Oza, Accounts Officer, he had stated that the cash of Rs. 29,000/- which was found in the cupboard which came to be sealed by the preliminary inquiry committee, belonged to him (Mr. V.R. Oza), and that, no person has levelled any accusation against the appellant about any misappropriation. All the allegations in the audit reports were about the procedural lapses.
23.5 Mr. Upadhyay has further pointed out that, when the abstract bills for the year ending on 31st March 1997 were submitted from the office of the Dean, Bhavnagar Medical College, it was Mr. Oza who had submitted such bills. Hence, when the appellant as In-charge Dean was required to give the certificate on 31st March 1998, the appellant had no knowledge about the procedural lapses committed by Mr. Oza while submitting the bills on 31st March 1997. There was no Accounts Officer after retirement of Mr. Oza during the year 1997-98.
23.6 It is submitted by Mr. Upadhyay that since the auditors had never sought any explanation from the petitioner, all these practical difficulties were never placed before the auditors and therefore, the auditors may have gone strictly by the rules in the book in noticing procedural defects without trying to find out the facts and circumstances of the case which necessitated persons in-charge of administration of the Medical College, at Bhavnagar in performing their job and accomplishing the task entrusted to them. If the In-charge Dean and the other officers had only tried to go by the rules in the book, the necessary equipments etc. could not have been purchased within the time limit before the arrival of the inspection team of the Medical Council of India and that would have resulted into withdrawal of recognition of the Medical College at Bhavnagar.
24. We, thus, find that, at the relevant time, when the appellant was In-charge Dean of the Bhavnagar Medical College, there was acute shortage of teaching staff as well as administrative staff. The administrative staff was less than the 50% of the sanctioned strength and whatever administrative staff was there, was inexperienced, and all the purchases were also required to be made from traders who were outside Bhavnagar.
25. Having regard to the explanation offered on behalf of the appellant, the foundation of which is already to be found in the appellant’s reply dated 6/9/1999 (Annexure SG to the petition), we are of the view that the allegations against the appellant about the alleged irregularities involving amount of Rs. 45 lakhs which was subject matter of memorandum dated 24th August 1999 (Annexure SF), were not such as to warrant any direction to the Central Bureau of Investigation to investigate into the affairs of the Medical College, Bhavnagar at the relevant time.
26. Coming to the missing office copies of the 31 bills involving amounts to the tune of Rs. 81 lakhs, we have heard Mr. Nigam Shukla, learned Counsel for the CBI. We find that, pursuant to the directions given by the learned Single Judge, vide order dated 19th January 2006, Mr. Anil Shridharan, CBI, Gandhinagar had undertaken the exercise of collecting the necessary details to ascertain to whom the payments of the 31 missing bills were made. However, the record being of the years 1996-97, A.G. Office, at Rajkot and Treasury Officer, at Bhavnagar do not have the record, as under the Rules, they are not supposed to retain/maintain such record beyond the period of three/five years. It is also pointed out by Mr. Shukla, learned Counsel for the CBI that, four Deans have changed during the relevant period. There is no procedure followed while handing over of the charge and taking over the charge, so it cannot be said with certainty as to since when the record from the Medical College at Bhavnagar is missing and there has also been frequent shifting of the office along with the record. The restructuring of these 31 bills after a period of almost ten years by taking inspection of the record of service branch of State Bank of Saurashtra for the relevant period and then to further proceed to identify as to which particular bank has presented these negotiable instruments being DD, Pay Order or Cheques, and after identifying these banks, to know exactly at which branch of a particular bank negotiable instruments have been presented for clearance, the record of service branch of each of these banks is to be identified and thereafter, to check the record of the respective branches to ascertain as to in whose account the negotiable instruments were deposited and thereby, identify the beneficiaries and on identification of the beneficiaries from the available record of the names and addresses; to question them as to reasons for receiving money from Bhavnagar Medical College and to call for the record like duplicate bills, pass book, delivery challans, in case of goods supplied or the bills of services put up by such beneficiaries is to be ascertained; but one cannot ignore the fact that after ten years, whether the record of the different banks, their branches and the record of each individual bank of the transactions ten years back and the existence of the beneficiaries in the same name and address, availability of the record with the beneficiaries for putting their claims with the Medical College, Bhavnagar would ever be available because the banks are not supposed to maintain the record beyond the period of seven years and the beneficiaries also are not supposed to maintain the record of their claim which is otherwise settled by the College as no claim for this period is lodged against the College and thus, this entire exercise which would not take less than one year, but at the end, the result is also not expected to yield any outcome to definitely conclude that these 31 bills were raised and paid for no legal claims against the Medical College, Bhavnagar to fictitious persons or for inflated amounts. At no point of time, from the year 1996 – 97 till 2002, any efforts were made to reconstruct the details of these 31 missing bills and had such exercise been undertaken within a period of 2 – 3 years, there was possibility of reconstructing the 31 bills. Mr. Nigam Shukla has fairly submitted that the time to be further expended by the investigating officer would be a futile exercise and in view of the bleak possibility, it cannot be said that the entire inquiry would lead to any definite finding. On the negative impact of such inquiry, in the course of inquiry, not only the appellant, but all others who officiated as Deans, Accounts Officers, Professors, Store-Keepers and other administrative staff of the Medical College from time to time will also be required to be questioned along with the staff of the Treasury and the Banks. When no procedure was followed while giving away or taking the charge; the office premises of the college had changed more than four to five times and several other records are missing as reported; the investigating officer would necessarily be required to grill all those employees or officials under the assumption and presumption that some wrong might have been committed.
27. In view of the above submissions made by the learned Counsel for the CBI, we are of the view that, inspite of the best efforts made by the Investigating Officer Mr. Anil Shreedharan, whom the Court has questioned on various aspects of the investigation carried out so far, no useful purpose would be served by directing the CBI to continue with the investigation.
28. In view of the above discussion, we are of the view that it is not possible to record a prima facie finding, which would be absolutely necessary before entrusting the investigation to the CBI, that the appellant was prima facie guilty of serious malpractices, of misappropriation or siphoning of the government funds when the appellant was In-charge Dean of the Medical College, Bhavnagar, but was holding the substantive post of Professor and Head of the Department of Preventive and Social Medicine at the same College.
In the result, directions No. (i) and (ii) given by the learned Single Judge in the judgment dated 19th January 2006 under appeal will have to be set aside.
29. As regards the appellant’s grievance that retiral dues have still not been paid to him inspite of the order dated 7th December 2005 dropping the two departmental inquiries and subsequent payment order dated 13th March 2006, we find that, as mentioned in the said order dated 13th March 2006 itself, the retiral benefits payable to the appellant are being withheld only on account of the directions given by the learned Single Judge for CBI investigation, and now that those directions are being set aside, there can be no impediment to the Government releasing the retiral benefits in favour of the appellant.
30. Coming to the prayer for interest on delayed payments, it is true that, ordinarily, the Government officer is required to be paid his pension, gratuity and other retiral benefits as soon as he retires, but that would be true in case of retirement on superannuation, because knowing the date of superannuation well in advance, both the officer as well as the Government can initiate the process and start preparing the papers at least a year in advance. However, in case of voluntary retirement, which came to be accepted in December 1999, in the case of appellant, the Government could not have been expected even in absence of any inquiry, to pay the appellant the retiral payment right from January 2000. Making that concession in favour of the government authorities and considering the fact that, in any view of the matter, the period of four years contemplated under Rule 189A of the B.C.S.R. for the date of commencing the departmental inquiry into the alleged irregularities during the appellant’s tenure as In-charge Dean of the Medical College, Bhavnagar, expired in May 2002 and considering the fact that two departmental inquiries already commenced in May and July 2002 in respect of alleged irregularities during appellant’s tenure as Director (MSO) ought to have been completed within a reasonable period of one year all factors taken together – on taking an overall view of the matter, we find that the respondents ought to have started paying the retiral benefits to the appellant at least from 1st August 2003. Accordingly, we are of the view that the appellant should be paid interest at the rate of 6% per annum for the period from 1st August 2003 till the date of payment.
31. Before concluding, we may also refer to the note of despair sounded by Mr Upadhyay that the hanging sword on the appellant for the positive work done for Medical College, Bhavnagar on the eve of inspection by Medical Council of India has deterred successor deans from doing similar positive work for increasing the admission capacity from 50 seats to 100 seats in the Government Medical Colleges at Bhavnagar and Rajkot.
We are, therefore, of the view that the Chief Secretary to the Government of Gujarat may impress upon the auditors as well as the authorities taking decisions for initiating departmental inquiries against Government officers or employees the need to have proper perspective before making any decision against the Government officers/employees especially when the allegations against the officer pertain to violation of procedural rules without any allegation of misappropriation, corruption or similar factual mala fides. In Hinaben R. Chauhan v. State of Gujarat 2002(4) GLR 3421, one of us had an occasion to voice this concern in the following terms:
The Court would further like to observe that the submission of the learned A.G.P. not only overlooks the object of the statutory provision but reflects typical bureaucratic mentality and attitude which has been causing tremendous harm to public administration in our country. The impression seems to have gone round amongst various statutory functionaries and holders of public offices, high and low, functioning in the midst of a maze of procedural rules in any field that if any action required to be taken in public interest is likely to expose the functionary to the charge of violation of technical procedure, the functionary considers it safe in personal interest not to act at all rather from take the risk of facing any proceedings for such action. If no work is done, nobody is going to find fault with him, because if he does not work, there would be no possibility of charge of violation of procedural rules. This approach aggravated by insensitivity to the needs and hardships of the people has become so endemic that the initiative of a large number of public functionaries and officials has been curbed to the detriment of the society.
17. This is not to say that public functionaries or officials in discharge of their public duties are not required to follow the prescribed procedure, but in a given case when there is any allegation of violation of the prescribed procedure, the disciplinary authority or the concerned authority must consider not only the factum of violation of the procedural rule but also the object of the procedural rule, the financial stakes involved in the transaction in question and in other transactions being ordinarily handled by the concerned individual as a part of his official duties, urgency of the work, time being ordinarily consumed in following the prescribed procedure or the time being ordinarily taken by the higher authority for granting prior sanction, whether the procedure is substantially complied with, whether the action is capable of ex-post facto approval, whether the decision was taken by an individual or a body, whether the body had relied upon the qualifications, skill and judgment of the individual in question, the nature and extent of the responsibilities cast upon such individual, the nature and extent of the positive work, if any, done by the public functionary/official, certainty and magnitude of the loss caused to the public authority by the act or omission in question, the nature and extent of the work not done by the concerned individual who is charged with not utilizing the funds for the purpose earmarked and the possibility of too pendantic an application of a procedural rule with only a fault finding approach paralysing honest public functionaries/officials in the discharge of their discretionary duties for the fear of some proceedings being initiated against them. The authority will have to judge the cumulative effect of all such relevant considerations in the facts and circumstances of a given case.
This is also not to say that any malafide act done by a public functionary/official in violation of a mandatory rule is to be condoned on the ground that the violation was only of a procedural rule. It is trite saying that bonafides or malafides are not to be judged merely on the basis of compliance or violation of a procedural rule because an act may be in compliance with a procedural rule and still be malafide, just as an act may be bonafide notwithstanding the violation of a procedural rule. What is being emphasized is the need not to overlook the broad perspective discussed earlier. Unless this perspective is kept in mind, too technical and pendantic an approach on the part of disciplinary authorities or authorities exercising similar powers with single minded obsession to the breach of a procedural rule per se can do, and has been doing, considerable damage to the morale of the public functionaries and officials acting honestly and bonafide and their initiative has been curbed; and has even been making a large number of honest and talented persons shun such responsible public offices.
Operative Order:
32. We accordingly allow this Letters Patent Appeal and set aside the impugned judgment and order dated 19th January 2006 of the learned Single Judge. We particularly set aside directions No. (i) and (ii) in paragraph 15 of the said judgment for entrusting the investigation to Central Bureau of Investigation and also the order contained in direction No. (v), rejecting the appellant’s claim for interest on delayed payment of retiral benefits.
We direct the respondents to pay the appellant all the arrears of difference of pension, arrears of difference of gratuity and all other retiral benefits due and payable to the appellant under the Pension Payment Order dated 13th March 2006 within a period of three months from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier. The computations shall be made within two months from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier.
We further direct the respondent authorities to pay the appellant interest at the rate of 6% per annum on the delayed payments of retiral benefits, for the period from 1st August 2003 till the date of payment/s. Such amount of interest shall be paid within one month from the date of payment of retiral benefits, as already directed earlier.
We clarify that any initiation of suo motu contempt proceedings against any government officer on account of non-completion of departmental inquiries within a period of six months is not intended to be affected by our judgment and we may not be treated to have expressed any opinion on that issue. However, since the suo motu proceedings have commenced pursuant to direction No. (iii) given by the learned Single Judge in the judgment dated 19th January 2006 and we have set aside the entire judgment dated 19th January 2006, except direction Nos.(iii) and (iv), a copy of this judgment shall also be placed by the Registry on the record of the suo motu proceedings being Misc. Civil Application No. 330 of 2006.
The appeal is accordingly allowed to the aforesaid extent.
A copy of this judgment shall also be served upon the Chief Secretary to the Government of Gujarat for consideration of the observations made in para 31 of this judgment.