1. By way of this application under Article 226 of the Constitution of India, the petitioner [since deceased], through his heir and legal representative-widow seeks to challenge the order dated 31st July, 2000 passed by the Additional General Manager [P & A] of Gujarat Agro Industries Corporation Ltd.-
respondent no.2 ["the Corporation" for short], seeking recovery of Rs. 4,96,000/- for the alleged loss caused to the Corporation, and other ancillary reliefs as prayed for in the petition.
2. The facts relevant for the purpose of deciding this petition can be summarized as under:
2.1 The petitioner was appointed as a Bio-gas Supervisor in the respondent Corporation on 28th March, 1983. He retired from service w.e.f. 1.5.2000 under the Voluntary Retirement Scheme. Just before about three months from the date of his retirement, a charge-sheet came to be served to the petitioner on 17.2.2000 on the premise that during 1997-98, the petitioner recommended 371 beneficiaries for being given materials on loan basis as against subsidy for putting up bio- gas plants. Out of these 371 beneficiaries in respect of 196 beneficiaries, the subsidy claims were produced by the petitioner but in respect of the remaining 175 beneficiaries the subsidy claims were not produced by the petitioner and hence, according to the Corporation, there was monetary loss of Rs. 4,96,968/- to the Corporation. This is the basic substratum of the charge which was levelled against the petitioner in the charge-sheet.
2.2 The petitioner filed written statement to the charge-sheet on 25.2.2000. A joint departmental inquiry along with other Supervisors was conducted. The Inquiry Officer, in his inquiry report dated 10.5.2000 held Svavlambi Supervisors and farmers responsible, and also recommended to file civil suits against them to recover the amount. The record reveals that three charges came to be proved against the petitioner, namely; [i] dishonesty in connection with business or property of the Corporation as per Rule 6[1] of the Gujarat Agro Industries Corporation Ltd. Conduct, Discipline and Appeal Rules; [ii] acting in a manner prejudicial to the interests of the Corporation as per Rule 6[7] and; [iii] neglect of work or negligence in the performance of duty including malingering as per Rule 6[11]. The Inquiry Officer, however, in his report observed that there was no evidence in support of the charges of wilful insubordination or disobedience or any lawful and reasonable order of the superior. The Inquiry Officer also came to the conclusion that there was no damage to any property of the establishment. Thus, two charges of misconduct, as per Rule 6[8] and Rule 6 [12] were not held to be proved.
2.3 The respondent Corporation, therefore, issued a show cause notice dated 6th July, 2000, calling upon the petitioner as to why an amount of Rs. 4,96,000/- should not be recovered from him. The show cause notice also called upon the petitioner to file reply within seven days from the date of receipt of the notice. It appears from the record that the show cause notice dated 6th July, 2000 was served upon the petitioner on 31st July, 2000. The acknowledgment of receipt of the notice also bears the date as 31st July, 2000. However, the day, the show cause notice was received by the petitioner, i.e. on 31.7.2000, the impugned order also came to be passed by the Corporation. It appears that the Corporation remained under the impression that the show cause notice dated 6.7.2000 has been served upon the petitioner and he has failed to tender his reply within seven days and therefore, under this misconception, the Corporation proceeded to pass final order on 31.7.2000, ordering recovery of Rs. 4,96,000/- from the petitioner. It also appears that the order dated 31.7.2000 which is under challenge was not served upon the petitioner till 9.8.2000 and therefore, on receipt of the show cause notice dated 9.7.2000 on 31.7.2000, the petitioner also filed his reply on 9.8.2000, but by that time, it was too late in the day, because, the Corporation had already passed final order on 31.7.2000.
2.4 It appears that the impugned order dated 31.7.2000 was passed by the authority concerned without taking into consideration the reply and the explanation of the petitioner. The petitioner, thereafter, preferred an appeal against the said order and after hearing the petitioner, the respondent no.2, vide letter dated 4.5.2001 informed the petitioner to pay an amount of Rs. 90,376/-, as a sum of Rs. 4,05,624/- came to be adjusted towards his dues. The position as reflected from the record is as under:
Rs. 4,96,000-00 to be recovered as per the order.
Rs. 3,19,121-00 the amount which the petitioner was entitled to receive under the Voluntary Retirement Scheme came to be deducted and;
Rs. 86,503-00 the amount towards the medical bills which also came to be deducted.
2.5 Thus, on the date of the order passed by the appellate authority, a sum of Rs. 90,376/- was yet to be recovered from the petitioner. It is this order passed by the respondent no.2 as well as the appellate authority which is the subject-matter of challenge in this petition.
[I] CONTENTIONS OF THE PETITIONER:
3. Mr. A.S.Supehia, learned advocate appearing on behalf of the petitioner vehemently contended that the order under challenge can be termed as an illegal order as the same is in violation of the principles of natural justice. He submitted that the authorities concerned ought to have confirmed as regards the date of receipt of the show cause notice dated 6.7.2000 and should not have proceeded to pass an order of penalty on 31.7.2000. He submitted that the record speaks for itself. He further submitted that the show cause notice dated 6.7.2000 came to be served upon the petitioner for the first time on 31.7.2000 and immediately on receipt of the said notice on 31.7.2000, the petitioner tendered his reply on 9.8.2000. However, the petitioner was shocked to learn that on 31.7.2000 itself, the final order had already been passed. In support of his contention, Mr. Supehia relied upon the decision of the Hon'ble Supreme Court in the case of Raj Kumar Mehrotra v. State of Bihar and others, reported in [2005] 12 Supreme Court Cases 256, wherein the Supreme Court in para-5 has held as under:
" Without going into other issues raised, we are of the view that the impugned order of the respondent authority imposing punishment on the appellant cannot be sustained. Even if we assume that Rule 55-A which pertains to minor punishment was applicable and not Rule 55 which relates to major punishments, nevertheless Rule 55-A requires that the punishment prescribed therein cannot be passed unless the representation made pursuant to the show-cause notice, has been taken into consideration before the order is passed. There is nothing in the impugned order which shows that any of the several issues raised by the appellant in his answer to the show-cause notice were, in fact, considered. No reason has been given by the respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, cannot be sustained and must be and is set aside."
Thus, Mr. Supehia submitted that the punishment prescribed cannot be passed unless the representation made pursuant to the show cause notice has been taken into consideration before the order is passed.
3.1 Mr. Supehia also placed reliance upon another decision of the Hon'ble Supreme Court in the case of Chairman-cum -Managing Director, Coal India Limited and others v. Ananta Saha and others, reported in [2011] 5 Supreme Court Cases, 142, wherein, in para-32 has held as under:
"It is a settled legal position that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls."
Relying upon the above decision, Mr. Supehia submitted that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same and in such a fact situation, the legal maxim sublato fundamento cadit opus would be applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
3.2 Mr. Supehia also contended that the Inquiry Officer has not directly attributed anything to the petitioner for loss said to have been sustained by the Corporation, but on the contrary, recommended to file civil suits against other persons.
3.3 Lastly Mr. Supehia contended that the Corporation has no power or jurisdiction to recover the amount from the retiral benefits of the petitioner as the petitioner had effectively retired from service w.e.f. 1.5.2000 whereas the impugned order of recovery was passed on 31st July, 2000, i.e after the retirement took effect. Mr.Supehia has brought to the notice of the Court that the Corporation has paid a sum of Rs. 2,29,887/- on 30th December, 2002 towards the Provident Fund. However, amount of medical bills to the tune of Rs. 86,503/- and the amount of gratuity to the tune of Rs. 88,626/- has been withheld by the Corporation and there is no pension scheme in the Respondent Corporation. Mr. Supehia very fairly submitted to the Court that if the retirement benefits i.e. gratuity and the amount of medical bills is paid to the widow of the petitioner, then, he may not press for quashing of the impugned order which has been the subject-matter of challenge in this petition.
[II] CONTENTIONS OF THE RESPONDENT CORPORATION:
4. Ms. P.J. Dawavala, learned counsel appearing on behalf of the respondent Corporation submitted that no illegality can be said to have been committed by the Corporation in passing the impugned order of recovery of Rs. 4,96,000/- which is under challenge in the petition. She submitted that as per the inquiry report, three charges are held to be proved against the petitioner. However, she has not been able to tender any satisfactory explanation so far as receipt of the show cause notice dated 6.7.2000 on 31.7.2000 is concerned.
[III] ANALYSIS:
5. I have heard the learned counsel for the respective parties and having gone through the materials on record, I find that the show cause notice dated 6.7.2000 issued to the petitioner was received by the petitioner on 31.7.2000. However, without waiting for the reply of the petitioner, the Corporation proceeded to pass final order on 31.7.2000 itself. I have also found that the petitioner did file his reply to the show cause notice on 9.8.2000 after receiving the show cause notice on 31.7.2000, because, the petitioner was not aware that the order had already been passed on 31.7.2000. Therefore, the contention of Mr. Supehia can be easily accepted. However, even if I accept the contention of Mr. Supehia, the only option that could have been made available was to remand the matter for fresh consideration after taking into consideration the reply of the petitioner dated 9.8.2000. But it is too late in the day, because, the petitioner passed away on 23rd October, 2009 and the exercise of remand would be a an exercise in futility. Under such circumstances, Mr. Supehia fairly submitted that if the amount of gratuity is paid to the widow of the petitioner, then, he may not press the main prayer. I am of the view that otherwise also the amount of gratuity should not have been withheld by the Corporation, because, Section 4[6] of the Payment of Gratuity Act [39 of 1972] makes it abundantly clear that gratuity payable to an employee may be wholly or partially forfeited if the services of such employee have been terminated for his riotous or disorderly conduct or any other act or violence on his part, or if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment, or the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of damage or loss so caused. Mrs. Dawavala has also very fairly conceded that the case of the petitioner does not fall in any of the clauses of Section 4 of the Payment of Gratuity Act. In that event, the petitioner is entitled to the amount of gratuity, i.e. Rs. 88,626/-.
6. In the result, the petition is partly allowed. The respondent Corporation is directed to release a sum of Rs. 88,628/- in favour of the petitioner [widow of late A.M. Arora] towards the gratuity and a sum of Rs. 20,000/- from the medical bills of Rs. 86,503/-. Thus, total amount of Rs. 1,08,628/- be paid to the petitioner by way of a demand draft drawn in the name of the widow of the petitioner-late A.M.Arora, within three months from today. It is further clarified that there shall be no further deduction of any amount, meaning thereby, the amount of Rs. 90,376/- which is yet to be recovered as per the case of the respondent Corporation shall not be recovered in view of the above order.
7. Rule is made absolute to the aforesaid extent.
[J.B. PARDIWALA, J.] pirzada/-