1. Petitioner has challenged order dated 9.1.2002 passed by respondent No.1 imposing penalty of withholding of three increments with future effect on the petitioner.
2. The petitioner was served with a chargesheet dated 22.1.2001 in which it was alleged that the petitioner while working as District Inspector of Land Records ('DILR' for short), Himatnagar had committed following irregularities in connection with Revenue mutation entries in certain land records of village Chandkheda, District Gandhinagar which he certified on 10.9.99:
(i) He had acted as DILR and Assistant Consolidation Officer (ACO), Gandhinagar which post did not exist. He was performing his duties as DILR, Himatnagar whereas another officer Shri Limbachia was posted as DILR, Gandhinagar. Thus by using totally false designation, he had acted beyond his jurisdiction and dealt with such entries.
(ii) Village Chandkheda is not notified under section 15 of the Prevention of Fragmentation and Consolidation of Holdings Act. No previous consolidation scheme has been approved in such village. Thus the entry did not pertain any consolidation proceedings. Representation of the delinquent that he had visited Chandkheda in connection with consolidation proceedings is therefore wholly incorrect.
(iii) In his diary for the month of September 1999, there is no tour of Chandkheda recorded on 10.9.99. Thus his visit to Chandkheda is in conflict with the entries in the diary in which subsequently wrong entries were created.
(iv) The land in question was sold on 2.6.99. On 8.6.99, objection application as filed which was recorded by the Talati. Thus the entry was disputed. The delinquent had dealt with the entry without hearing any party and without taking into account the objections.
(v) He had certified entries in village form No.6 in disregard to the established norms and procedure and acting beyond his jurisdiction.
3. The petitioner denied the charges. Departmental inquiry was conducted. The Inquiry Officer submitted his report holding the charges as proved. Copy of such report was supplied to the petitioner. His representation was taken into account. The Disciplinary Authority, eventually passed the impugned order on 9th January 2012. He concurred with the finding of the Inquiry Officer and ordered withholding of three increments with future effect.
4. When the petition was taken up for hearing, learned counsel for the petitioner mainly raised one contention, namely, that in terms of rule 9(17) of the Gujarat Civil Services (Discipline and Appeal) Rules, the Inquiry Officer had not questioned the petitioner on the circumstances appearing against him when the petitioner has not examined himself. According to the counsel, this was a fatal error.
5. In support of this contention, my attention was drawn to a decision of this Court dated 2.3.2010 in Special Civil Application No.10174 of 1994 in the case of G.R.Parmar v. H.C.Jain wherein referring to a decision of the Apex Court in the case of Moni Shankar v. Union of India & Anr., (2008) 1 SCC (L&S) 819, the petition was allowed and the Disciplinary Authority was permitted to thereafter place the matter before the Inquiry Officer afresh.
6. Learned AGP Ms.Pathak, on the other hand, opposed the petition contending that very serious charges were levelled against the petitioner. Through evidence on record, such charges were proved. No interference is therefore called.
7. Having thus the learned counsel for the parties, I do find that the charges against the petitioner were extremely serious. He is alleged to have not only disposed of and dealt with mutation entries but certified them without hearing any party including the objector despite objection having been placed on record. He had in fact, acted well beyond his jurisdiction. The allegation is that he was posted as DILR, Himatnagar and village Chandkheda which fell in Gandhinagar District did not come within his jurisdiction. He not only showed his visit to Chandkheda, he also manipulated tour diaries in this respect. He described himself as DILR and ACO which post neither existed nor was he posted at the relevant time in charge of Gandhinagar district. Thus, if these allegations are established, the fact that the petitioner acted absolutely malafide would become absolutely clear. Under the circumstances, I am rather surprised that the Disciplinary Authority even after holding that all the charges were proved imposed punishment not greater than withholding of three increments. To my mind, the petitioner got away rather lightly in the matter of imposition of punishment. This, of course, is subject to the charges being validly proved against him.
8. In this context, one must concur with the counsel for the petitioner that procedure laid down under rule 9(17) of the said Rules has not been followed. Rule 6(17) reads as under :
“(17) The Inquiry Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally, question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.”
In the petition, he has taken a clear stand that there is “breach of sub-rule (17) inasmuch as the petitioner was not questioned on the circumstances appearing against him since he had not been examined himself at the inquiry”. There is no reply to this clear averment of the petitioner.
9. Under the circumstances, I have no choice but to accept that the procedure laid down under rule 9(17) was not followed. In the decision in the case of G.R.Parmar (supra), referring to a similar provision contained in section 6(17) of the Regulations and the decision of the Apex Court in the case of Moni Shankar (supra), it was observed as under :
“5. Above Regulation is pari materia with similar provisions found in Service Rules of railway employees as well as government employees. With respect to railway employees, said provisions is to be found in Rule 9(21) of the Railway Service (Discipline and Appeal) Rules, 1968, which reads as follows :-
(21) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.
6. Interpreting such provision, the Apex Court in case of Moni Shankar V/s. Union of India & Anr. reported in(2008)1 SCC (L&s) 819 observed that:-
“28. The High Court also committed an serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub- rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied the said opportunity.”
7. It can thus be seen that mandatory requirement of the Regulation 6(17) was not followed. It is an admitted position that the petitioner had not examined himself during the inquiry. It is also admitted that Inquiry Officer had not followed the procedure of Regulation 6(17). I am of the opinion that the Disciplinary Authority's order is therefore vitiated on this ground.
8. Additionally, I have also found that the Disciplinary Authority in the impugned order disagreed with the findings of the Inquiry Officer with respect to charge I(b) and (d)(i), for which, he has given his reasons in the order. It is not in dispute that with respect to said charges, the Inquiry Officer had held the same not proved. It is not in dispute that before reversing the said findings of the Inquiry Officer, the Disciplinary Authority issued no show cause notice to the petitioner.”
10. Under the circumstances, the impugned order dated 9.1.2002 is set aside. The matter is placed back before the Disciplinary Authority for proceeding with the inquiry from the stage of following the procedural requirement under rule 9(17) of the Rules.
11. With the above directions, the petition is disposed. Rule is made absolute accordingly.
(Akil Kureshi, J.) (vjn)