1. The petitioner herein has challenged the order dated 12.11.1993 passed by the respondent Board dismissing the petitioner from the service of the respondents and the order dated 30.11.1993 passed by the appellate authority confirming the dismissal order dated 12.11.1993.
1.1 At the outset it is required to be mentioned herein that this court, after hearing the matter at length, vide judgement dated 17.01.2009 had modified the impugned order of dismissal by treating the services of the petitioner as discharge simplicitor in view of the fact that the learned advocate for the petitioner had contended therein that the disciplinary authority who had passed the order of dismissal was a witness in the inquiry proceedings.
1.2 The said order was carried in appeal before a Division Bench of this Court by the respondents by way of filing Letters Patent Appeal being LPA No. 977 of 2009 which was allowed and the judgement dated 17.01.2009 passed by this Court was quashed and set aside. The main ground raised therein and which weighed before the Division Bench was that the disciplinary authority Shri P.K. Das who had passed the order of dismissal was not the same as Shri P.K. Das who was a witness in the disciplinary proceedings and that the impugned judgement and order dated 17.01.2009 was based on incorrect and misleading facts stated before this Court without verification. This matter was, therefore, remitted to the learned Single Judge of this Court for hearing and decision afresh.
1.2 In the aforesaid peculiar facts and circumstances of the case, the matter has been placed before this Court as per the current roster.
2. The facts of the present case, in nutshell, as narrated in the present petition, could be set out as under:
2.1 The petitioner was appointed as a Junior Clerk in the office of respondent-Board in the year 1958 and thereafter was promoted to the post of Controller of Accounts (Revenue). It is the case of the petitioner that due to his outstanding performance, sincerity and loyalty as also because of good remarks in his Confidential Reports, he was promoted from time to time. However, on the basis of certain baseless and false allegations, on 25th July, 1990, he was served with a charge sheet and departmental inquiry was initiated. Pending the inquiry, the petitioner was ordered to remain under suspension. On completion of the departmental inquiry, without issuing any show cause notice and furnishing copy of the inquiry officer's report, the petitioner was dismissed from the service with effect from 12th November, 1993.
2.2. Being aggrieved by the order of dismissal, the petitioner preferred an appeal before the appellate authority. The appellate authority, after hearing the parties and after considering the evidence on record, vide order dated 30th November, 1993 dismissed the said appeal and confirmed the dismissal order. Hence, this petition.
3. Mr. Pradeep Patel, learned advocate appearing for the petitioner submitted that the petitioner started his career as a Junior Clerk and considering his hard work, sincerity and loyalty the petitioner earned promotions one after the other and was eventually promoted to the post of Controller of Accounts. He submitted that it shall not be out of place to mention that the confidential remarks earned by the petitioner during his service career are excellent from 1979 to 1989.
3.1 Mr. Patel submitted that however based on certain allegations the petitioner was issued with a charge sheet and was finally dismissed from service after holding a departmental inquiry.
3.2 Mr. Patel contended that after the disciplinary proceedings are concluded and the report of the inquiry officer is submitted to the disciplinary authority, the disciplinary authority is duty bound to issue show cause notice along with a copy of the inquiry officer's report so that the delinquent can suitably prepare for his defence. He contended that so far as the petitioner is concerned, he was neither given any show cause notice nor was provided with a copy of the inquiry report before passing of the order of dismissal dated 12.11.1993 by the disciplinary authority which is in gross violation of the principles of natural justice.
3.3 Mr. Patel further contended that in a departmental inquiry, an employer should give the delinquent an opportunity to cross examine the witnesses examined by the authority and then the delinquent should be asked to give explanation or evidence to rebut the evidence of the employer. He submitted that at the very commencement of the said inquiry, the delinquent employee should not be examined or cross examined before any other evidence was led against him. He contended that the detailed cross examination at the very commencement of the inquiry has vitally affected the defence of the petitioner because all that was required to be done thereafter by the Presiding Officer was to modulate the evidence of the management in a particular manner and this fact becomes clear from Note-I and II in the report of the inquiry officer dated 09.04.1992. In support of his submissions, Mr. Patel has relied upon a decision of the Apex Court in the case of State of Uttaranchal and Others vs. Kharak Singh reported in (2008) 8 SCC 236 (=(2008) 2 SCC (L & S) 698).
3.4 Mr. Patel also contended that the list of witnesses and the list of documents relied upon by the disciplinary authority were not provided to the petitioner.
3.5 Mr. Patel further contended that with a view to give effective reply to the charge sheet given to him, the petitioner requested the Member (Finance) who had issued the charge sheet to supply him with relevant documents on which the Board would like to rely upon during the course of inquiry. He submitted that inspite of his request for a number of times, no such documents were made available and in absence of those documents the petitioner replied to the charge sheet and thereby the petitioner was deprived of his valuable right to give effective reply qua the charges levelled against him.
3.6 Mr. Patel submitted that the names of witnesses namely Mr. AM Bhatt, Mr. MJ Gosai, Mr. PJ Bhatt & Ms. MT Chaudhary were co-delinquents for the same incidence but were examined as management witnesses and therefore also the inquiry is vitiated.
3.7 Mr. Patel contended that a preliminary inquiry was conducted before holding regular departmental inquiry by the Chief Finance Manager (Internal Audit) and was relied upon by the inquiry officer during the course of inquiry proceedings. He submitted that only after the cross examination of the petitioner was over at the initial stage in the inquiry, on making repeated requests, the petitioner was furnished with a copy of the report of the preliminary inquiry during the course of regular departmental inquiry.
3.8 Mr. Patel submitted that all these go to show that the respondents wanted to hold an inquiry against the petitioner with a pre-determined mind and finally dismiss him from service.
3.9 Mr. Patel submitted that after the order of dismissal was passed on 12.11.1993, the petitioner preferred an appeal before the appellate authority on 30.11.1993 and raised a number of contentions to set aside the order of dismissal passed against him which was rejected by the appellate authority by way of a non speaking one page order.
3.10 Mr Patel submitted that the appeal memo is produced on record but through oversight the impugned order passed by the appellate court could not be produced. However, it is not in dispute that the same is a non speaking order in view of the fact that the same is produced by the respondents at Annexure '2' at page 298 of the petition. He submitted that the appellate authority without giving any reasons and considering submissions made by the petitioner in his appeal has rejected the appeal which is contrary to the decision of this Court in the case of Chandrashanker Chuni Lal Vyas vs. State of Gujarat reported in 1977(2) SLR 270.
3.11 Mr. Patel submitted that the inquiry officer has erred in relying upon the evidence of other witnesses inspite of the fact that most of them were subjected to departmental proceedings themselves in the same incident. He submitted that Shri A.M. Bhatt, the then Superintendent of Cash was charge sheeted and after inquiry was punished, however the quantum of punishment is not known to the petitioner. Likewise, Shri P.J. Bhatt, the then Accounts Officer was also subjected to an inquiry and inspite of the fact that the inquiry was completed against him he was permitted to retire on 31.05.1993 and was paid all the terminal benefits. Similarly, Ms. M.T. Chaudhary and Mr. M.J. Gosai were also subjected to departmental inquiry and upon finding them prima facie responsible for the incidence in question were transferred to various other departments/sub-divisions of the respondent Board.
3.12 Mr. Patel submitted that even assuming for the sake of arguments without admitting that the charges levelled against him as proved, then also it was not the case of imposing extreme penalty of dismissal against the petitioner and that was a question which was required to be considered by the disciplinary authority while imposing punishment of dismissal upon him particularly when the officials who were higher in rank to the petitioner were either permitted to retire or resign from their duties.
3.13 Mr. Patel submitted that only three years were left before the petitioner was to be superannuated when the dismissal order was passed and therefore because of the said order entire terminal benefits which the petitioner would have otherwise earned were taken away. He submitted that after perusing the overall facts and circumstances of the case atleast the punishment may be modified, even for the sake of arguments without admitting if the charges are proved against the petitioner.
4. Ms. Lilu Bhaya, learned advocate appearing for the respondent Board has strongly objected to the present petition and submitted that the misconduct committed by the petitioner is of grave nature and the procedure followed by the respondents is in accordance with law.
4.1 Ms Bhaya submitted that due to the misconduct on the part of the petitioner huge monetary loss has been incurred by the respondent Board and the petitioner should not get away easily after committing such a financial irregularity while on duty more particularly when the petitioner was at a senior position, namely, Controller of Accounts.
4.2 Ms. Bhaya submitted that it is not a matter pertaining to simple late deposit of some cheques but there are allegations pertaining to deliberate inaction on the part of the concerned petitioner who has not timely deposited certain cheques running into crores of rupees which has caused tremendous financial difficulty to the respondent Board.
4.3 Ms. Bhaya submitted that the names of witnesses and list of documents were supplied to the delinquent before he was examined and it is not necessary to refer the same in the chargesheet.
4.4 Ms Bhaya submitted that all the necessary documents relied upon by the concerned authorities for issuance of charge sheet and for initiation of disciplinary proceedings were given to the petitioner and thus it would make it clear that principles of natural justice have been followed strictly and that the petitioner has been given a reasonable opportunity in this regard.
4.5 Ms. Bhaya submitted that considering the findings of the inquiry officer in the inquiry report, the disciplinary authority was pleased to pass an order of dismissal and observed that it would not be necessary to even issue a show cause notice upon the petitioner before inflicting penalty of dismissal.
4.6 Ms Bhaya submitted that the provisions contained under Rule 6(i) read with Rule 7 (1) & (2) precisely provide for exception in respect of giving show cause notice. She submitted that however the fact remains that inquiry report was submitted along with the order of dismissal.
4.7 Ms. Bhaya submitted that the petitioner is trying to make a false statement in stating that the delinquent's examination was not first and that much and overdue emphasis is put that delinquent is not examined first.
4.8 Ms Bhaya submitted that the preliminary inquiry report was furnished to the delinquent and whether it was supplied on earlier occasion or not is absolutely immaterial when the petitioner has himself admitted that he was furnished with a copy of the inquiry report.
4.9 Ms. Bhaya submitted that there were in all eight witnesses on the respondent Board's side out of which only four witnesses namely Mr. AM Bhatt, Mr. PJ Bhatt, Mr. MJ Gosai and Ms. MT Chaudhary had given their statements whereas the other witnesses namely Mr. MK Iyer, Mr. RB Bhayani, Mr. MC Shah and Mr. PK Das did not give their statements on 05.06.1992.
4.10 Ms Bhaya submitted that Column 18 & 19 of the Inquiry Report (General Particulars) list out the documents given to the petitioner by the respondent Board. She contended that the documents referred therein were given to the petitioner before the commencement of inquiry and that it is not required to be given along with the chargesheet.
4.11 Ms. Bhaya further contended that absolutely vague statement has been made by the petitioner in respect of non- furnishing of documents. She submitted that a vague statement in the nature of 'certain documents' would not lead the case of the petitioner unless he specifically states which are those documents. Nothing has been reflected in the petition or the appeal memo and no specific particulars are given and therefore it cannot be said that the necessary documents for initiation of proceedings were not given to the petitioner. In fact he was provided with the necessary documents as mentioned in column nos. 18 & 19 of the inquiry report.
4.12 Ms. Bhaya submitted that in fact the disciplinary rule does not lay down giving list of witnesses and documents along with the charge sheet.
4.13 Ms. Bhaya contended that the witnesses who are termed as co-delinquents by the petitioner are not similarly situated. She submitted that the contention of the petitioner that other employees have been subjected to lesser punishment or they have not been punished at all is absolutely beside the point when the petitioner himself being high ranking class I official deliberately played mischief and did not deposit cheques worth crores of rupees within reasonable time.
4.14 Ms Bhaya submitted that the illustrative cases in respect of other employees as mentioned by the petitioner are absolutely baseless and have no connection with the present subject matter. She submitted that some employees who had retired from service prior to the commencement of inquiry were given warning and other employees were given punishment as per the gravity of offence committed by them.
4.15 Ms. Bhaya submitted that in fact the inquiry officer has given a detailed report running into number of pages wherein all the aspects of the proceedings have been dealt with in detail.
4.16 Ms Bhaya submitted that all the norms of principles of natural justice have been scrupulously followed and reasonable opportunity as required under the Rules and Regulations have already been given to the petitioner.
4.17 Ms. Bhaya has also submitted that in fact the petitioner could have availed alternative remedy as provided under Clause 10 (Appeal)- Discipline and Appeal Procedure Rules and Regulation as second appeal is very much available before the Second Appellate Authority comprising of Members/Director of the Board.
4.18 Ms Bhaya submitted that on this ground itself the petition deserves to be dismissed and that even the order of the Appellate Authority is not annexed along with the petition.
4.19 Ms. Bhaya contended that as per the procedure under the law the inquiry report is required to be given along with the second show cause notice but in the present case second show cause notice was already decided to be dispensed with in accordance with law and detailed reasons were recorded and the inquiry report came to be supplied along with the final order of dismissal.
4.20 Ms Bhaya submitted that even before the appellate authority the petitioner was given full opportunity and after affording reasonable opportunity the appellate authority passed orders in the appeal after giving cogent reasons which is just and proper and does not call for any interference by this Court.
4.21 Ms Bhaya has not relied upon any decisions or judgments of the Apex Court or any other court and therefore the same are not mentioned in the judgment by this Court.
5. Mr. Pradeep Patel, in rejoinder to the aforesaid submissions made by Ms. Bhaya, has relied upon Gujarat Electricity Board Establishment Manual wherein in pages 170 & 171, it has been categorically stated that the delinquents should be given access to various official records like documents to which reference has been made in the statement of allegations and documents and records which the delinquent considers are relevant for the purpose of his defence.
5.1 Ms Bhaya submitted that reading the entire provision laid down therein it is clear that the list of witnesses and the list of documents should be drawn up at the time of framing the charge and that the delinquent should be permitted to access the documents mentioned in the list if he so desires.
5.2 In support of the aforesaid submission in rejoinder, Mr. Patel has relied upon the decision in the case of State of Uttaranchal (supra).
6. Having heard learned advocates for both the sides at length and having gone through the relevant documents and materials produced on record, this court finds it fit to at first summarize the basic contentions raised by both the sides so as to deal with them in a proper perspective. Accordingly, the main contentions raised by the learned advocate for the petitioner could be set out as under:
(i) The petitioner was not given list of documents and witnesses which he demanded and nothing of that sort was mentioned in the chargesheet.
(ii) The inquiry officer's report and show cause notice were not supplied to the petitioner before passing the impugned order.
(iii) The other co-delinquents were not given similar treatment and that they were either left scot free or given far lesser punishment.
(iv) There is no pecuniary loss and punishment is excessive.
(v) The order passed by the Appellate Authority is a non speaking one and does not lay down any reasons.
6.1 In response to this the contentions raised by the learned advocate for the respondents can be enumerated as under:
(i) The names of witnesses and list of documents were supplied to the delinquent before he was examined and it is not necessary to refer the same in the chargesheet. Sufficient time was given to cross examine the witnesses.
(ii) The inquiry report was submitted along with the order of dismissal and that show cause notice is not always necessary to be given before the final order.
(iii) Co-delinquents are not similarly situated and therefore the petitioner cannot claim parity considering his designation and nature of duties.
(iv) Non deposit of post dated cheques of around Rs. 1,80,00,000/- obviously led to heavy financial loss to the respondent Board and that the punishment is in consonance with the gravity of offence.
(v) The Appellate Authority has given reasonable opportunity to the petitioner and has recorded cogent reasons for upholding the departmental proceedings.
7. It is borne out from the records that the petitioner was actually not supplied with the list of documents and witnesses relied upon by the respondent board at the time of chargesheet. It is well established that a charge which makes a decision entailing civil consequences must offer a reasonable opportunity to the person affected to defend himself. This reasonable opportunity includes supply of copies of materials which weigh with the authority taking a decision qua the affected person. The report of the inquiry officer is a material which has weighed with the disciplinary authority in the present case and therefore it was incumbent upon the disciplinary authority to supply the same.
8. Considering the provisions laid down in pages 170, 171 & 172 of the Gujarat Electricity Board (Establishment Manual, First Edition (Compiled upto 31 December, 1965)), it is evident that the respondents have not followed the basic guidelines. It is mentioned therein that a list of documents which are proposed to be relied upon to prove the charge and the facts stated in the statement of allegations should be drawn up at the time of framing the charge as this will incidentally reduce the delay that usually occurs between the service of charge sheet and the submission of written statement.
8.1 It is also mentioned therein that the list so prepared should be supplied to the officers either along with the charge sheet or as soon thereafter as possible and that the officer should be permitted access to the documents mentioned in the list if he so desires. It is also mentioned in para 8 therein that the copies of statements of witnesses should be made available within a reasonable time before the witnesses are examined. It is, therefore, clear that the order of dismissal suffers from basic lacuna .
9. In this context, Mr. Patel, learned advocate for the petitioner has relied upon the decision in the case of State of Uttaranchal (supra) wherein para 20 reads as under:
“A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply affidavit filed by the department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.”
9.1 When an inquiry is proposed to be held, the disciplinary authority is required to frame a charge-sheet which shall contain a statement of all relevant facts and is accompanied by a list of document and a list of witnesses by which the charges are proposed to be sustained. The charge-sheet along with list of document and list of witnesses are required to be delivered to the delinquent. On the receipt of the aforesaid documents the delinquent is required to submit a written statement and if the disciplinary authority is not satisfied with his explanation he shall hold the Inquiry himself or otherwise appoint an Inquiry Officer and forward the charge-sheet, the list of documents, the list of witnesses, the written statement of defence and the copy of the statement of witnesses, if any, to the Inquiry Officer.
10. In the present case it is an admitted fact that the list of documents and the list of witnesses were not supplied with the charge-sheet. Inspite of demanding, the said documents were not produced before the Inquiry Officer. The inquiry is vitiated on the aforesaid ground. The decision of the Apex Court in the case of State of Uttaranchal (supra) is squarely applicable to the facts of the present case.
11. As far as the contention regarding petitioner being examined at the very commencement of the inquiry is concerned, it is borne out from the records that he was examined for almost a period of eight months at the commencement of the inquiry. Nothing materially affected the petitioner due to the same. Though the contention is factually correct, this court does not think that it has in any way affected the case of the petitioner. The petitioner has not tried to misguide the court by making any false statement as alleged by learned advocate for the respondent.
11.1 As far as the contention regarding other co-delinquents are concerned, the say of the petitioner is justified. The respondents have acted in an arbitrary manner in conducting the entire process of departmental inquiry. It is not in doubt that the petitioner ought to have taken utmost care in discharging his duties. However, the entire departmental proceedings conducted by the respondents is suffers from various lacuna.
12. Apart from that an attempt is made to take support of Regulations 7 (1)(b) of the Employees' Conduct, Discipline and Appeal Procedure. Learned advocate for the respondent has tried to rely upon clause 7(g) & 7(1)(b) which read as under:
“ ...
(g) When summary proceedings are held by the competent authority as provided in clause 8 in cases
(i) Where the employee is caught red handed having committed or while committing an act of misconduct.
(ii) Where there is obvious evidence to the misconduct.
OR
(iii) Where the misconduct or misbehaviour is considered to be grave and convincing to warrant or justify the normal proceeding to be followed. Provided that
1. No person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause.”
13. In view of this court, if the entire regulation is perused and the procedures are looked at, it is clear that clause 7 is an exception to clause 6 of the regulation. So far as the case of the petitioner is concerned, case of the petitioner does not fall within the clause 7(a) to (g) and therefore it is not open to the Board to invoke clause 7(1)(b) of the regulation. In the case of the petitioner, full fledged inquiry was conducted against the petitioner after suspending him from the service and the provisions under clause 6 (a) to (h) was followed and when it came to issuing notice with the report of the inquiry officer as per clause 6(i), the respondent did not give the notice and dismissed the petitioner from service by invoking provision of clause 7(1)(b) of the regulation.
14. It is required to be noted that once the inquiry is initiated and completed by invoking clause 6 of the regulation then at the stage of giving report and issuing second show cause notice, it is not open to the respondent to invoke provisions of clause 7(1)(b) which contemplates against the delinquent in an altogether different circumstance as mentioned in clause 7 (a) to (g). Further clause 7(1)(b) can be invoked in cases of summary inquiry as per clause 8 of the regulations. The proceedings initiated against the petitioner were not of summary nature and therefore provisions of clause 7(1) (b) could not have been invoked.
15. Even the order passed by the Appellate Authority is not a well reasoned order. The authority has failed to take into consideration the submissions and contentions of the petitioner while deciding the appeal. In this context, it shall be relevant to peruse the decision relied upon by learned advocate for the petitioner, Mr. Patel in the case of Chandrashanker Chunilal Vyas (Supra) wherein it is held that administrative authority discharging quasi-judicial functions must give reasons in support of its conclusion or decision. This Court relying on various other decisions has observed tht the condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made and it also enables an appellate or supervisory Court to keep the tribunals within bounds and that a reasoned order is desirable condition of judicial disposal. It is also observed therein that a speaking order will at its best be a reasonable one and at its worst be atleast a plausible one. It is required to be noted that the grounds mentioned in the appeal memo is not referred at all.
16. Principles of Natural Justice demands that the copy of a document, if any, relied upon against the party charged should be given to him and he should be afforded opportunity to cross examine the witnesses and to produce his own witness in his defence. If the findings are recorded against the charged employee, placing reliance on a document which might not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry, when demanded, would contravene the Principles of Natural Justice rendering the enquiry and the consequential order of punishment illegal and void. If copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied upon in holding the charges framed against the delinquent employee, the enquiry would be vitiated for the violation of Principles of Natural Justice.
17. Considering the fact that the entire disciplinary proceeding is vitiated from scratch, the normal course of action for this court shall be to quash and set aside the dismissal order and thereby restore the petitioner to his original post with backwages. However, considering the nature of charges proved against the petitioner and the huge financial loss incurred by the respondent board, the said proposition shall only put the petitioner into further advantageous position. The respondents shall have to make huge payment to the petitioner who has tried to put the respondent in a tremendous financial adversity. Instead of that, this Court is of the opinion that ends of justice will be served if the dismissal order is treated as discharge simplicitor, more particularly when the petitioner had accepted the same vide earlier order passed by this Court on 17.01.2009.
18. Accordingly, the impugned order dated 12th November, 1993 passed by the Disciplinary Authority dismissing the petitioner from service is modified and the services of the petitioner shall be treated as discharge simplicitor. It is also directed that the retirement dues, leave encashment, medical benefits, gratuity and other consequential benefits shall be paid to the petitioner within a period of three months from today. Moreover, the suspension period shall also be regularized. It is also directed that the petitioner shall be paid simple interest on the retirement dues @ 10% from the date of discharge (dismissal), i.e. from 12th November, 1993 till the payment is made. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
[K.S. JHAVERI, J.] Divya//