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SCA/6319/2001 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6319 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
=========================================================
B
V GOR - Petitioner(s)
Versus
GUJARAT
WATER SUPPLY AND SEWERAGE BOARD & 1 - Respondent(s)
=========================================================
Appearance :
MR
NALIN K THAKKER for
Petitioner(s) : 1,
MR HS MUNSHAW for Respondent(s) : 1,
RULE
SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 14/03/2011
ORAL
JUDGMENT
Petitioner
by way of this writ petition under Article 226 and 227 of the
Constitution, has prayed for the following reliefs.
“11 (A). Your Lordships
be pleased to issue a writ of mandamus or any other appropriate writ,
direction or other order under Article 226 of the Constitution of
India, and to quash and set aside the impugned penalty order dated
21.8.1999 (Annexure : G) and impugned letter dated 29.11.2000
(Annexure: I) and the impugned suspension order dated 20.6.1997
(Annexure : C) and to declare that the departmental proceedings
initiated against the petitioner are ab-initio void and illegal, and
not sustainable in the eye of law;
(B) Your Lordships may be
pleased to grant the stay of implementing the impugned penalty order
dt. 21.8.1999 (Annexure : G) pending admission, hearing and final
disposal of this petition;”
2. Brief
facts relevant for the purpose of deciding this petition can be
summarized as under:
2.1 Petitioner
was appointed as Junior Clerk at Bhuj in the office of respondent
No.2 vide order dated 21/07/1984. At the relevant point of time when
the petition was preferred, he was working as Junior Clerk in office
of respondent No.2. Respondent No.1 – Gujarat Water Supply and
Sewerage Board is State (within the meaning of Article 12 of the
Constitution). In the year 1997, a departmental inquiry was initiated
against the petitioner on some charges of misconduct.
2.2 To
put in brief petitioner was charged of having put an office note for
purchase of printing stationary and printing forms with Ambika
Stationary Manufacturer and Consumer Co-operative Societies Ltd., and
in this regard some irregularities in purchase of said printing
stationary were noticed by the authorities. Show-cause notice was
issued calling upon the petitioner to show-cause as to why
appropriate penalty should not be imposed upon the petitioner. Record
further reveals that the petitioner was placed under suspension by
Board vide order dated 20/06/1997 and was ordered to be reinstated in
service by order dated 20/06/1998. After a full fledged departmental
inquiry, the disciplinary authority came to a conclusion that
petitioner did indulge in some irregularities and therefore thought
fit to impose a penalty of withholding of one increment for a period
of two years. It deserves to be noted that the order of disciplinary
authority was a subject matter of challenge by way of appeal as
provided under the Rules.
3. Appeal
was preferred on 14/10/1999 before the authority viz., Member
Secretary of the Board. On 29/11/2000 petitioner was informed vide a
letter signed by one S S Pujar, Chief Administrative Officer of the
Board that the appeal has been ordered to be dismissed and the order
of the disciplinary authority imposing penalty of withholding of one
increment for two years stands confirmed. Communication to the
petitioner about the dismissal of his appeal is at page No.47.
4. This
matter was substantially heard on 07/03/2011. On that day, I called
upon learned Counsel for the Board, Mr.Munshaw to explain as to
whether Page No.47 is just a communication about dismissal of the
appeal or that a substantive well reasoned order, has been passed by
the appellate authority and that, if it has been passed whether it
has been communicated to the petitioner. Mr.Munshaw, on that day,
prayed for sometime to enable him to obtain instructions in this
regard.
4.1 Today,
when the matter is taken up, Mr.Munshaw, has placed before me the
original file to enable me to verify as to whether any substantial
order has been passed by the appellate authority or not. I have
personally perused the file. The file reveals that one Mr.M N
Randavi, Officer of Board, prepared a short note giving a fair idea
about the matter and about the decision taken by the disciplinary
authority. Below the note, some notings have been made handwritten
and it appears that it has been stated below the note that Member
Secretary is the competent authority to decide the appeal and
therefore with this note it appears that the same was placed before
the Member Secretary, who in his handwriting has put a small note “it
is not possible to allow the appeal”. Except this I do not
find anything to even remotely suggest that there was any serious
consideration by the appellate authority so far as the appeal of the
petitioner is concerned.
5. It
is abundantly clear from the notings in the file that there is no
order passed by the appellate authority which would indicate any
independent application of mind by the appellate authority. The
findings which are recorded by the disciplinary authority can always
be reappreicated by the appellate authority. As an appellate
authority, it can take a different view on the same set of evidence.
Appellate authority also owes a duty to see as to whether procedure
laid down in the rules was complied with, inquiry officer was
justified in arriving at the finding that the delinquent officer was
guilty of the misconduct alleged against him and, whether penalty
imposed by the disciplinary authority was excessive.
6. I
am of the view that the appellate authority has failed to discharge
his duty as the law demands. Appeal is a statutory remedy available
to the petitioner as a delinquent. It is a valuable right which the
rules has conferred upon the petitioner as a delinquent and,
therefore the delinquent is well within his rights to expect the
appellate authority to reconsider the entire matter being the final
fact finding authority.
7. I
am not at all satisfied with the manner in which the appeal is
decided and disposed of. It is a settled position of law that an
appellate order if it is in agreement with that of the disciplinary
authority may not be a speaking order but the authority passing the
same must show that there had been proper application of mind on his
part as regard the compliance of the requirement of the law while
exercising his jurisdiction under the Rules.
7.1 In
case of Apparel Export Promotion Council Vs. A.K. Chopra [1991 (1)
SCC 759], it has been stated as under:
“The
High Court appears to have overlooked the settled position that in
departmental proceedings, the disciplinary authority is the sole
judge of facts and in case an appeal is presented to the appellate
authority, the appellate authority has also the power/and
jurisdiction to re-appreciate the evidence and come to its own
conclusion, on facts, being the sole fact-finding authorities.”
(Emphasis
supplied)
7.2 In
case of Narinder Mohan Arya Vs. United India Insurance Co Ltd., &
Ors., [AIR 2006 SC 1748], in paragraph No.36 and 37 the Hon’ble
Apex Court has observed as under:
“36. The order of the
appellate authority demonstrates total non-application of mind. The
appellate authority, when the rules require application of mind on
several factors and serious contentions have been raised, was bound
to assign reasons so as enable the writ court to ascertain as to
whether he had applied his mind to the relevant factors which the
statute requires him to do. The expression ‘consider’ is of some
significance. In the context of the rules, the appellate authority
was required to see as to whether (i) the procedure laid down in the
rules was complied with; (ii) the Enquiry Officer was justified in
arriving at the finding that the delinquent officer was guilty of the
misconduct alleged against him; and (iii) whether penalty imposed by
the disciplinary authority was excessive.
37.In
R.P. Bhatt v. Union of India [(1986) 2 SCC 651] this Court opined:
“The
word “consider” in Rule 27(2) implies “due application
of mind”. It is clear upon the terms of Rule 27(2) that the
Appellate Authority is required to consider (1) whether the procedure
laid down in the Rules has been complied with; and if not, whether
such non-compliance has resulted in violation of any provisions of
the Constitution or in failure of justice; (2) whether the findings
of the disciplinary authority are warranted by the evidence on
record; and (3) whether the penalty imposed is adequate; and
thereafter pass orders confirming, enhancing etc. the penalty, or may
remit back the case to the authority which imposed the same. Rule
27(2) casts a duty on the Appellate Authority to consider the
relevant factors set forth in clauses (a), (b) and (c) thereof.
There is no indication in the
impugned order that the Director General was satisfied as to whether
the procedure laid down in the Rules had been complied with; and if
not, whether such non-compliance had resulted in violation of any of
the provisions of the Constitution or in failure of justice. We
regret to find that the Director General has also not given any
finding on the crucial question as to whether the findings of the
disciplinary authority were warranted by the evidence on record. It
seems that he only applied his mind to the requirement of clause (c)
of Rule 27(2) viz. whether the penalty imposed was adequate or
justified in the facts and circumstances of the present case. There
being non-compliance with the requirements of Rule 27(2) of the
Rules, the impugned order passed by the Director General is liable to
be set aside.”
7.3 In a
recent pronouncement of the Supreme Court in the matter of Divisional
Forest Officer, Kothagudem & Ors. Vs. Madhusudhan Rao reported in
(2008) 3 SCC 469, the Supreme Court has observed in paragraph
No.20 as under:
“20. It
is no doubt also true that an appellate or revisional authority is
not required to give detailed reasons for agreeing and confirming an
order passed by the lower forum but, in our view, in the interests of
justice, the delinquent officer is entitled to know at least the mind
of the appellate or revisional authority in dismissing his appeal
and/or revision. It is true that no detailed reasons
are required to be given, but some brief reasons should be indicated
even in an order affirming the views of the lower forum.”
7.4 In
the facts and circumstances of the case, it would also be appropriate
for me to quote the well known judgment of the Apex Court in
Bachhittar Singh Vs. State of Punjab. It was a case where a
Constitution Bench of the Apex Court had to consider the effect of an
order passed by a Minister on a file, which order was not
communicated. This is how the Apex Court dealt with the effect of
the noting by a Minister on a file: [AIR 1963 SC 395 (Para No.9)].
‘9. The question, therefore,
is whether he did in fact make such an order. Merely writing
something on the file does not amount to an order. Before something
amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor as
required by clause (1) of Article 166 and then it has to be
communicated. As already indicated, no formal order modifying the
decision of the Revenue Secretary was ever made. Until such an order
is drawn up the State Government cannot, in our opinion, be regarded
as bound by what was stated in the file. As long as the matter
rested with him the Revenue Minister could well score out his remarks
or minutes on the file and write fresh ones.’
(emphasis
supplied)
8. In
this view of the matter, I am left with no other option, but to remit
the matter to the appellate authority viz., Member Secretary of
respondent No.1 – Board for fresh consideration of the appeal
in accordance with law, rules and regulations. I deem it fit and
proper to dispose of this petition with the following directions.
The
appellate authority viz., Member Secretary of respondent No.1 Board
shall reconsider the entire appeal of the petitioner afresh.
Since it
is an appeal, the appellate authority shall also give reasonable
opportunity to the petitioner to make good his case in person. The
appellate authority shall hear the petitioner in this regard.
It will
be open for the petitioner to add few grounds of challenge, if at
all thought fit in the facts and circumstances of the case.
After
giving an opportunity of hearing to the petitioner, the appellate
authority shall record reasons in brief at least to prima-facie
indicate as to what has been considered by him; what has weighed
with him and, what is his final conclusion in this regard.
The
appellate authority shall issue a notice to the petitioner of the
date of hearing and on that particular date petitioner may remain
present to make his submissions, if thought fit, otherwise it will
be open for the appellate authority to proceed in accordance with
law and decide the appeal afresh. This exercise shall be undertaken
by the appellate authority within a week from the date of receipt of
the writ of this Court and shall complete the same with final orders
within six weeks from thereafter.
In the
event, if the order passed by the appellate authority is adverse, it
will be open for the petitioner to challenge the same on all grounds
available to the petitioner.
9.
Petition is disposed of in terms of the directions issued above. It
is clarified that this petition is disposed of on this small issue
and I have not expressed any opinion so far as the merits of the
matter are concerned. Rule is made absolute to the aforesaid extent.
(J
B PARDIWALA, J.)
sompura
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