JUDGMENT
J.N. Bhatt, J.
1. The petitioner, in this petition under Article 226 of the Constitution, has assailed the punishment imposed by the State of Gujarat, whereby, the amount of Rs.1000/= per month is directed to be reduced from the pension amount of the petitioner for a period of five years, by virtue of an order recorded by the State of Gujarat, dated 13.9.2001, interalia contending that such a major penalty has been imposed without holding and conducting regular inquiry and more so, when there has been no allegation of financial loss and, therefore, the impugned departmental penalty imposed on the petitioner is alleged to be illegal, erroneous, arbitrary, and contrary to the provisions of law and in violation of principles of equity before law and equal protection before law and, hence, in violation of Article 14 of the Constitution of India.
2. A skeleton projection of the material facts giving rise to this writ litigation may initially be highlighted so as to appreciate the merits of the petition and the challenge against the petition. Following factual profile and aspects are no longer in controversy and which are very relevant material for the purpose of adjudication of the controversy involved in this petition under Article 226.
(1) The petitioner joined service with the State of Gujarat as Sales Tax Inspector in the year 1969 and came to be promoted as Sales Tax Officer in 1998.
(2) At the relevant point of time, the petitioner was working as Sales Tax Officer at Kadi in Mehsana district and subsequently, he was transferred to Ahmedabad as Sales Tax Officer from where, he retired from the service on 29.2.2000.
(3) The Government had taken a decision to initiate the departmental inquiry against the petitioner in connection with the auction sale of property of Mohit ReRolling Mills for the recovery of arrears of dues of Sales Tax Department;
(4) Consequently, show cause notice came to be issued to the petitioner by the respondent State of Gujarat, on 28.9.99, which was responded and replied by the petitioner on 17.11.99.
(5) The respondent State of Gujarat directed for framing of chargesheet against the petitioner.
(6) Upon completion of the departmental inquiry against the petitioner and observing other requisite requirements, the respondent State of Gujarat passed an order to reduce the pension at the rate of Rs.1000/- per month for a spell of five years, by way of punishment, which came to be imposed on 13.9.2001.
3. The petitioner, at the relevant point of time, was working as a Sales Tax Officer at Kadi in Mehsana district between the period from 29.5.1998 to 12.11.1999 and, thereafter, he was transferred to Ahmedabad and as stated earlier, he completed his superannuation age in service with effect from 29.2.2000. However, the petitioner was informed on 17.2.2000 that respondent Government had decided to initiate departmental inquiry against the petitioner in light of the provisions of Section 189-A of the Bombay Civil services Rules,1959 (Rules for short ), which provides and prescribes the procedure for disciplinary action or proceedings initiated and continued after retirement and its effect on pension.
4. Rule 189-A, since it is a very important and relevant provision for the purpose of consideration of the merits of the petition, it would be appropriate to reproduce it hereinasunder:-
189: 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 reemployment after retirement:
5. Learned counsel Mr.Gandhi has raised the following contentions, while criticizing the impugned order of imposition of penalty against the petitioner.
(1) The charges against the petitioner are not established, as no witness examined ;
(2) The charges against the petitioner are seriously challenged and refuted and, therefore, it was incumbent upon the Department to prove all the charges against the petitioner ;
(3) In the alternative, principles of natural justice are violated, as no opportunity of hearing is afforded to the petitioner before imposing penalty as per the impugned order;
(4) The question of proportionality of the penalty is raised, contending that the respondent State has not suffered any loss and the State has not given statutory reasons for imposition of harsh penalty of reduction at Rs.1000/- per month from the pensionary benefits for a spell of five years;
6. The learned Assistant Government Pleader, Mr.Dabhi, while supporting the impugned order of imposition of penalty against the petitioner, and countering the submissions raised by Mr.Gandhi, has also raised the following pleas and contentions.
(1) That the establishment of the charges against the delinquent in the departmental inquiry in each and every case, examination of oral evidence, like that the witness, is not imperative;
(2) That in the present case, fate of the charges against the petitioner can be decided and adjudicated on the basis of the documents produced on record, which are not in dispute by anybody;
(3) That the correspondence exchanged between the parties, which is forming important documentary evidence for the decision rendered against the petitioner in a domestic Tribunal and other relevant and material evidence, which are no longer in controversy, have established the charges against the petitioner without any difficulty and doubt.
7. Both the parties have placed reliance on the case law, to which reference will be made, as and when required hereinafter, at an appropriate stage.
8. This Court, has dispassionately threadbare heard the learned counsel Mr.Gandhi, appearing for the petitioner and Mr.Dabhi, learned Assistant Government Pleader, who in course of their submissions have also taken to the exsertion of entire documentary evidence and relevant proposition of law arising in this matter of service jurisprudence. The case law relied upon by both the sides has been extensively examined, the provisions of BCSR, as well as, departmental guidelines, bulletins and manual are also examined and taken into consideration.
9. Needless to reiterate that a petition under Article 226 against the order, decision or imposition of punishment after holding the domestic Tribunal, are very much circumscribed and the jurisdictional sweep of the writ Court and its circumference is in a very narrow compass as per the celebrated and propounded projection of the principles of law, emerging from the service jurisprudence. It may also be noted that role of the writ Court, while hearing the petition against the decision of the departmental inquiry, is not that of an appelalte Judge or an appelalte forum. The main anxiety of the writ Court in such a factual, situational reality is to see not the quality of the judgment or verdict of the order impugned in the petition, by way of judicial review, by invocation of provisions of Article 226 of the Constitution, but is only restricted to examine as to whether the decision making process is in any way influenced or affected by any extraneous consideration, malafide or non observance of principles of natural justice or the petitioner is visited with civil and evil consequential, without having received any opportunity of hearing, in violation of the celebrated doctrine of audi alterm partem. The submission cannot be accepted that the impugned decision of the departmental inquiry against the delinquent- officer, the writ Court as a right constitutional powers and jurisdiction and can act as a right. Suffice to say again that a judicial review power against the departmental inquiry, decision or verdict is only to satisfy the conscience of the Court that the impugned departmental order or decision adversely affect the delinquent is not the outcome of the breach of principles of natural justice or by any extraneous consideration or is in any way found to be malafide, arbitrary, unreasonable, or passed without any evidence against the delinquent. If the petitioner or the delinquent is given a fair chance and is afforded with an opportunity of hearing, in terms of the principles of natural justice and the decision of the departmental inquiry is based on material on record and in absence of malafide, ordinarily, writ Court will be at loath to interfere with the impugned orders or decision of the departmental inquiry and the imposition of the penalty by the disciplinary authority.
10. The factual profile in the spectrum material facts emerging from the record of the case and virtually, which is not in controversy before this Court may be articulated at this juncture.
11. The petitioner, who at the relevant point of time was working as Sales Tax Officer, Class II at Kadi in Mehsana district. During his tenure, there was a case of recovery of arrears of Sales-tax of one Mohit Rerolling Mills, which had been long over due. The said defaulting party had the property comprising of land and building at Kadi taluka, district Mehsana. In the year 1966, the party against whom the recovery was outstanding since long, was done by engaging a commission or panchas and, who independently had valued that the property would be worth of Rs.8,50,000/= and had given a valuation report, dated 27.11.1996.
12. The petitioner written a letter to the Assistant Commissioner of Sales Tax, Circle 13, Gandhinagar requesting him to grant permission to hold auction of the said property. A copy of the said letter dated 16.11.1998 has been placed on record, which is examined. In turn, the Assistant Commissioner of Sales Tax, Gandhinagar accorded permission to the petitioner in his official capacity to hold the auction on the basis of the valuation report by writing a letter of permission dated 17.11.1998. The upset prize of the said property was fixed at Rs.8,50,000/-
13. Pursuant to the letter dated 16.11.1998 and permission letter dated 17.11.1998, the auction was scheduled to be held on 23.11.1998. As stated earlier, the upset prize Rs.8,50,000/- the petitioner who was a responsible officer of Sales Tax Department holding Class II post of an officer for the reasons best known to him, finalized the auction bid at Rs.5,31,000/- and has accepted 25% of the deposit towards the said auction, transaction which obviously, was undervalued.
14. It will be also interesting to mention that the petitioner, has however, requested the Competent Authority like Assistant Commissioner of Sales Tax, Circle 13, Gandhinagar to permit him and allow the process held on 23.11.1998 as “valid auction” by letter dated 24.11.1998, which competent authority by letter dated 24.11.1998 had rejected. It is, therefore, very clear and undisputed that the request of the petitioner to permit the auction to be labelled as “valid auction” by his letter, was not approved but rejected by the competent authority.
15. It is in this context, the disciplinary authority after issuing the show cause notice, framed the charges for the purpose of holding the departmental inquiry against the delinquent petitioner. Without any reasonable ground or any logical reason within a short period, the valuation of the property to be put in public auction for the recovery of sales tax dues for the period of 1980-87, registered numbers 27807259, the valuation report, which was initially to be at Rs.8,50,000/- on the basis of the report of the Talati cum Mantri of Nani Kadi taluka village came to be reduced by Rs.4,50,000/-. There is no dispute about the fact that the upset prize which was initially fixed at Rs.8,50,000/- for the purpose of auctioning the property of the defaulter for the sales tax dues payment, without any prima facie or reliable or logical reasons and grounds, again on the basis of the report of the Talati cum Mantri, came to be fixed at Rs.4,50,000/- less. It will be interesting to mention that arrears of sales tax dues during the period of 1980-87 had been Rs. 513160/- and the 25% of the upset prize, which was subsequently fixed less by Rs.4,50,000/= was paid by the prospective purchaser, one Patel Pankajkumar Ambalal and the remaining amount of 75% had to be deposited by the said party within 15 days. Public auction held by virtue of the Notification issued by the petitioner on 16.9.1998 and it is found from the record that it was without the permission of the competent authority.
16. It is in this context, the respondent authority after serving show cause notice, framed the charge sheet against the petitioner interalia mentioning that there was non observance of the established and prescribed procedure for valuation of the property to be auctioned for the recovery of sales tax dues and payment for fixity of the upset prize. The petitioner could not satisfactorily explain the reasons for reduction of the value and the resultant upset prize of the said property, which was to be put for public auction for recovery of sales tax dues, outstanding since very long from 1980-87 from Rs.8,50,000/= to Rs.4,00,000/=. A faint attempt was sought to be made in course of the proceedings in the departmental inquiry that since the property was closed for many years, the valuation was lowered down and reduced. The evaluation of the upset prize, which came to be fixed, whether or otherwise, on the basis of the report of the Talati cum Mantri, on 27.11.1996 came to be reduced less by Rs. 4,50,000/= within two years time, without any reasonable and logical ground and reason on record and it is in this context, the Department’s allegation that the petitioner, who has been a responsible officer of the Sales Tax Department and public servant, not only failed to follow the requisite procedure and indulging irregularity but also violated settled principles of fixation of the upset prize and the valuation of the property to be put in a public action and it is in this context, the Department relied on a Manual/ Bulletin No.9 from page 129 to 131 to show that as to how the valuation and the fixation of the upset prize was prescribed to be undergone and be followed. The charge that the petitioner violated the provisions of Gujarat Civil Services (Conduct) Rules of 1971, the respondent authority ,therefore, charged that the petitioner has committed breach of provisions of Section 3(i) sub rule (1) and (2) of Gujarat Civil Service (Conduct ) Rules, 1971, and since the petitioner had retired on 29.2.2000 on superannuation, and the departmental inquiry, which was initiated during his service, could not be completed till his retirement, it was directed and decided to continue the further proceedings of the inquiry by following the provisions of Rule 189 and 189-A of the BCSR.
17. Since most of the factual aspects were no longer in controversy, the department was found not necessary to examine any witness as nothing materially was required to be proved by leading the oral evidence of an officer or of the witness of the department. It cannot be said that the provisions of Rule 189 and 189-A of the BCSR are not followed or the requisite formalities under the Rules came to be violated.
It is also found from the record that the charges framed against the delinquent for dereliction of his duty in indulging in misconduct and creating such circumstantial situational reality in the backdrop of the facts established on the record and later on trying to show that the reduction of the upset prize and valuation of the property of the defaulter to be placed in the public auction for the recovery of arrears of sales tax tax dues from Rs.8,50,000/- to only Rs.4,00,000/- less by Rs. 4,50,000/= and other circumstantial evidence and events led to the belief and doubt to the disciplinary authority that the impugned action of the petitioner was such, it could be considered as dishonest and affecting integrity of the officer.
18. In light of the factual profile of the relevant proposition of law and celebrated projection of the proposition of service law jurisprudence and the limited jurisdictional sweep of the writ court in exercise of the powers under Article 226 of the Constitution, this Court has no hesitation in finding that there is no any deficiency or any extraneous consideration or violation of principles of natural justice in reaching to a departmental adjudication adverse to the petitioner, is in any way requiring interference of this Court by invocation of Article 226 of the Constitution of India.
19. In so far as the case law relied on by the counsel is concerned, it may be mentioned that the learned counsel Mr.Gandhi has placed reliance on the following four decisions.
(1) Meenglas Tea Estate Vs. The Workmen reported in AIR 1963 SC 1719
(2) Sur Enamel and Stamping Works Ltd., Vs. The Workmen, reported in AIR 1963 SC 1914
(3) Gujarat State Road transport Corporation Vs. Chndulal G.Rasadiya reported in 1993 (1) GLR 442
20. This Court, has , dispassionately, examined the said decision relied in support of the petition by the learned counsel Mr.Gandhi, appearing for the petitioner. All these decisions are highlighting the relevant material, principles to be observed in course of holding departmental inquiry before the disciplinary authority and imposing the penalty against the delinquent employee or the officer on any permissible ground or misconduct committed by him or her. Nobody can dispute the proposition laid down therein. The question which falls for consideration, at this juncture, is as to whether the proposition, principles laid down and propounded in the said decisions are attracted to the profile of the facts of the present case on hand or not ? To which the spontaneous reply would be positively in the negative. Nothing has been ,successfully, shown nor nothing has been spelt out from the record that the principles propounded in the said decisions are violated or not followed in imposition of the penalty challenged in this writ petition after holding in a domestic tribunal.
21. It will be interesting to refer at this juncture, that the latest two decisions of the Hon’ble Apex Court, which are relied upon by the learned Assistant Government Pleader, are very relevant and material in light of the facts of the present case, one in Union of India Vs. P.Chandramouli reported in (2003) 10 SCC 196- and second in the case of State of Rajasthan and others Vs. Sujata Malhotra, reported in (2003) 9 SCC- 286. The extent and ambit of the judicial review on departmental punishment being under challenge, it has been succinctly propounded in the said decision that in the matter of power of punishment of the master or the employer after observing necessary and requisite procedure in departmental inquiry, the Court would not ordinarily interfere with the discretion of the employer, more so, when there is no infirmity with the procedure. In the present case also, it is found that the procedure and the proceedings followed in the departmental inquiry, cannot be faulted with. There is no breach of the principles of natural justice. Mere non examination of a witness or not leading oral evidence in a departmental inquiry, ipso facto would not be sufficient to lead to an inference that the charges are not established. There are several modes of proving the charges. No doubt oral evidence of a person, who is conversant, is a good evidence but in order to prove any other case, the charges against the delinquent in a departmental inquiry or for that purpose any other inquiry, leading oral evidence is not a sine quo none. The Court is concerned with the proof of the facts in dispute, it could be by direct evidence or by in direct evidence, it could be by circumstantial evidence or by raising inference from the surrounding facts, which are on record, and which are not in dispute. It is successfully noticed in the present case that most of the facts are no longer in controversy. It is in this context, the department or the employer had chosen not to examine any officer or the employee or to lead the oral evidence, as other evidence, which was not in dispute, was sufficient to transpire the delinquency of the petitioner in a departmental inquiry and upon scrutiny, incidentally, this Court is found that they were reliable circumstances and events, which would give serious doubt and suspicion of tainted integrity of the petitioner and, therefore, the quantum of punishment imposed in the background of the facts and admitted dereliction of duty and established misconduct of the petitioner, could not be said to be disproportionate to delinquency. Therefore, the doctrine of proportionality of punishment vehemently argued by learned advocate Mr.Gandhi appearing for the petitioner in course of hearing is also failed. Ordinarily, the discretion of the employer or the master in imposition of the punishment should not be interfered with unless, it is shown to the very harsh or was disproportionate, which shocks the conscious of the Court, which is not so, in the present case.
22. Incidentally, it may be stated that the disciplinary proceedings initiated and continued after retirement and resultant effect on pensionary benefits and gratuity, provisions have been laid down in Rules 189-A and 189-B of the BCSR, which have been referred hereinabove in course of the discussion of this judgment. However, it will be also interesting to state that Rule 189 provides that good conduct is an implied condition of every grant of pension. The Government is empowered to withheld, or withdraw or reduce the pension or any part of it, if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct, either during or after the completion of the service of course, subject to order of this effect, as required and as provided in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules, so that the power of Government to reduce pension or amount of gratuity is very well laid down. Nonetheless, it is found from the record that the reduction of pension by Rs.1000/= per month for a spell of five years from the pensionary amount of the petitioner are after observing, the necessary procedure prescribed in the BCSR and in terms of provisions of Rule 189-A and in light of the backdrop of the undisputed facts and the correspondence documentary evidence exchanged between the officers and the delinquent petitioner, it is amply clear that the disciplinary authority after holding the departmental inquiry, following the requisite and prescribed procedure and afforded an opportunity of hearing to the petitioner, has imposed permissible punishment, which is challenged in this petition, under Article 226 of the Constitution of India. On correct appraisal of the entire factual profile and principles of relevant proposition of law and submissions, this Court is unable to uphold any one of the contentions advanced on behalf of the petitioner. There is no fit and appropriate case for interference with the impugned Notification and order imposing the penalty for punishment of reduction of pension at Rs.1000/- per month for a spell of five years in view of the proved misconduct, dereliction of duty and the charges held proved. Petition therefore deserves to be rejected. Accordingly, the petition is rejected. However, without any order as to costs. Rule is discharged.
23. As the Special Civil Application is rejected, the Civil Application is also rejected. Obviously, interim relief granted earlier, if any, shall stand vacated.