1. By way of this petition, the petitioner has challenged the order of penalty passed against the petitioner by the Executive Engineer, Panchayat R & B Division No.2, Jamnagar dated 16.03.2002. By the impugned order,the petitioner is subjected to penalty of withholding of increment with future effect. The said penalty order is challenged before this Court. The Learned Single Judge of this Court as back as on 16.12.2002 admitted the petition which has now reached for final hearing. The petitioner, at the relevant time, was serving as a permanent work-charge Mistry under respondent No.3 i.e. Executive Engineer, Panchayat R & B Division No.2, Jamnagar.
2. The petitioner was placed under suspension by an order dated 13.04.2001 which was followed by a show- cause notice dated 31.05.2001. In the show-cause notice, the petitioner has been informed as to why his services should not be terminated on the ground that even though certain works were not carried out, which was to be carried out through section officer, payment for the same was made, without informing the same to the higher authority, which resulted into financial loss. The aforesaid first show-cause notice dated 31.05.2001 was replied by the petitioner. The petitioner pointed out that he was not concerned with the work in question. According to him, he has to carry out his duties as per the orders of the Higher Officers.
3. Subsequently, another show-cause notice was issued on 18.10.2001 informing him as to why he should not be dismissed from service. The impugned order was passed on 16.3.2002. In the meanwhile, the petitioner had also asked for certain documents by his application dated 05.11.2001 which is at page-32 in the compilation, in which he requested to provide duty roster of work-charge Mistry and particulars about when the tenders were issued etc. However, it is an admitted fact that no documents were supplied to the petitioner as demanded and subsequently, the impugned order was straightaway passed. In the impugned order, the Disciplinary Authority has considered report given by the Inquiry Officer in case of another co-employee wherein reference in connection with present petitioner was made. The Disciplinary Authority has found that Superior of Mr. Joshi, Assistant Engineer found guilty and he accepted his mistake. In the order, it is found that the petitioner was negligent in performing his duty and accordingly his one increment was withheld with future effect.
4. The aforesaid order is challenged by the petitioner on various grounds. It is argued by Mr.P.H. Pathak, learned advocate for the petitioner, that the impugned order is in violation of principles of natural justice. Though the petitioner requested for certain documents, a reference to which is made earlier, no such documents were made available and straightaway on the basis of the reply of the petitioner to the show-cause notice, the impugned order was passed. It is argued by Mr.P.H. Pathak that imposition of penalty of withholding increment with future effect is a major penalty and, therefore, without conducting the proceeding of major penalty, without considering the relevant documents, the copies of document which he demanded and without giving opportunity of hearing to the petitioner, the said order of penalty could not have been passed. In the original petition, the petitioner has also challenged the vires of Panchayat Services (Discipline and Appeal) Rules, 1964 on the ground that the said penalty should not be treated as minor penalty but should be treated major penalty under the Rules.
5. Learned Counsel, Ms. Hathi appearing for respondent No.3, vehemently argued that since the alternative remedy of appeal is provided against the impugned order, this petition under Article 226 of the Constitution of India should not be entertained on the ground of adequate alternative remedy on merits. It is also argued that the petitioner gave reply to the show-cause notice and, therefore, since the Disciplinary Authority has considered his reply, it cannot be said that there is any violation of principles of natural justice. It is submitted by Ms. Hathi that if in any case procedure for minor penalty is already complied with then it cannot be said that any prejudice is caused to the petitioner, therefore, the impugned order may not be interfered with by this Court.
6. I have heard both the advocates at length. At this stage, a reference is required to be made under Rule 6 of the Panchayat Service (Discipline & Appeal) Rules, 1997. The relevant part of Rule 6 provides as under:
“6. Penalties:- The following penalties may for good and sufficient reasons, and hereinafter provided to imposed on a member of the Panchayat Service, namely:-
(1) With holding of increments of promotions
(2) Recovery from pay of the whole or part of any pecuniary loss caused to the Panchayat by negligence or breach of orders.
(3) Reduction in rank including reduction to a lower post or time-scale or to a lower stage in a time-scale.
(4) Compulsory retirement.
(5) Removal from service not disqualifying for future employment.
(6) Dismissal from service which shall ordinarily be a disqualification for future employment.”
7. Rule 8 provides that the procedure for imposing major penalty. Rule 8 provides as under:
“8. Procedure for imposing major Penalties:- (1) No order, imposing on a member of the Panchayat Service any of the penalties specified in clauses (3) to (6) of Rule 6, shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided.
(2) In case where the allegations against a member of the Panchayat Service are grave or are such as would entail a major punishment such as reduction in rank, compulsory retirement, removal or dismissal from service, a preliminary inquiry shall, as far as possible, be held by an officer superior to the person against whom the allegations are to be inquired into:
Provided that, if there has been an investigation or inquiry by police in the matter and a report has been received thereon, the same may be considered an equivalent to a preliminary inquiry and no further preliminary inquiry shall be necessary:
Provided further that where, however, the disciplinary authority thinks that any matter needs to be clarified further it shall refer the matter to the police for such further clarification and shall not entrust it to the departmental officers.
(3) On receipt of the preliminary inquiry or the police report, the disciplinary authority shall determine -
(i) whether there is a prima facia case for a formal inquiry.
(ii) whether the member of the Panchayat Service should be prosecuted in a court of law.
(4) When an order for formal inquiry has been made, the disciplinary authority shall frame definite charges on the basis of allegations and shall communicate such charges along with the statement of the allegations to the member of the Panchayat Service and also require him to submit within such time as may be specified a written statement of defence and also to state whether he desires to be heard in person.
(5) The person against whom inquiry is to be held shall for the purpose of preparing the defence, be permitted to inspect and take extracts from such records as he may specify:
provided that such permission may be refused if for reasons to be recorded in writing in the opinion of the inquiry officer such records are not relevant for the purpose or it is against the public interest to allow his success thereto.
(6) On receipt of the written statement of defence or if any such statement is not received within the time specified, the disciplinary authority may himself enquiry into such of the charges as are not admitted or appoint an enquiry Officer to hold the inquiry and forward to him his report and, if advised, his recommendation along with all inquiry papers.
(7) the disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. A member of the Panchayat Service may present his case with the assistance of any other panchayat servant approved by the Enquiry Officer, but may not engage a legal practitioner for the purpose, unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case so permits.
1[Note:- The Panchayat servant may also take the assistance of a retired Panchayat servant to present the case on his behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time.]
(8) If the member of the panchayat service desires to be heard in person, he shall be so head. If he so desires or if the disciplinary authority so directs, an oral enquiry shall be held by the Enquiry Officer. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross examine the witnesses, to give evidence in person, to produce documentary evidence, if any, and to have such witnesses called as he may wish:
Provided that the Enquiry Officer, may, for reasons to be recorded in writing, refuse to call a witness.
(9) At the conclusion of the inquiry, the Enquiry Officer shall prepare a report of the inquiry, recording his findings on each of the charges together with reasons therefore. If in the opinion of the Enquiry officer, the proceedings of the inquiry established charges different from those originally framed, he may record findings on such charges:
Provided that findings on such charges not be recorded unless the Panchayat Servant has admitted the facts constituting such charges or has had an opportunity of defending himself against such charges.
(10) The proceedings conducted against the person charged shall contain sufficient record of-
(i) the charges framed against such person and the statement of allegations;
(ii) the written statement of defence, if any;
(iii) the oral evidence taken in the course of the inquiry;
(iv) the documentary evidence considered in the course of inquiry;
(v) the orders, if any, made by the Enquiry Officer or the disciplinary authority as the case may be, with regard to the inquiry;
(vi) a report setting out the findings on each charge and the reasons therefore.
(11) The Enquiry Officer, if he is other than the disciplinary authority, shall submit the records of the proceedings mentioned in clause (10) above to the disciplinary authority without recommendation relating to the penalty to be imposed, unless the disciplinary authority has specifically called for such recommendation. The disciplinary authority shall consider the record of the enquiry and its findings on each charge, having regard to the findings on the charges and the record of the proceedings, he is of the opinion that any of the penalties specified in clause (3) to (6) of rule 6 should be imposed, be shall-
(a) furnish to the person charged a copy of the report of the Enquiry Officer and, where the disciplinary authority is not the Enquiry Officer, a Statement of its findings together with brief reasons for disagreement, if any, with the findings of the Enquiry Officer,
(b) [x x x]
(12) (a) In every case in which it is necessary to consult the Board in accordance with the rules framed in that behalf the record of the inquiry, [x x x] shall be forwarded by the disciplinary authority to the Board for its advice. On receipt of the advice, the disciplinary authority shall consider the representation if any, made by the person charged, and the advice given by the Board and determine what penalty should be imposed on the person charged and pass appropriate orders in the case.
(b) In a case in which it is not necessary to consult the Board or the Selection Committee, the disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine what penalty, if any, should be imposed and shall pass appropriate order on the case.
(13) If the disciplinary authority, having regard to the findings, is of the opinion that any of the penalties specified in clauses (1) to (3) of rule 6 should be imposed, it shall pass appropriate order in the case subject to the condition that in every case in which it is necessary to consult the Board the record of the inquiry shall be forwarded to the Board for its advice and such advise shall be taken into consideration before passing final orders.
(14) the orders passed by the disciplinary authority shall be communicated to the member of the Panchayat service who shall also be supplied with a copy of the report of the inquiry officer and where disciplinary authority is not the Enquiry Officer, a Statement of its findings of the Enquiry Officer unless they have already been supplied to the person charged, and also a copy of the advice, if any, given by the Board.”
8. So far as procedure regarding minor penalty is concerned, it is provided under Rule 9, which provides as under:-
“9. Procedure for imposing minor Penalties:- (1) No order imposing any of the penalties specified in clause (1) and (2) of rule 6 shall be passed except after-
(a) the person charged is informed in writing of the proposal to brake action against him and of the allegations on which such action is proposed to be taken and is given an opportunity to make any re- presentation which he may wish to make;
(b) such representation, if any, is taken into consideration by the disciplinary authority; and
(c) the Board is consulted in case where such consultation is necessary.
(d) the Board is consulted in case where such consultation is necessary
(2) The record of the proceedings in such cases shall include-
(i) a copy of intimation to the person charged of the proposal to take action against him;
(ii) a copy of the statement of allegations communicated to him, his representation, if any, the advise of the Board and the orders on the case together with the reasons therefore.
(3) A copy of the orders passed along with a copy of the allegations, if any, if not already supplied, and a copy of the advice of the Board if any, shall be supplied to the member of the Panchayat Service charged.”
9. Relying upon the same, learned counsel, Ms.
Hathi, argued that withholding of increment is to be considered as minor penalty under Rule 6. It is no doubt that withholding of increment simplicitor is treated as minor penalty under Rule 6 (1). However, the question which requires consideration is whether the withholding of increment with future effect can still be considered under sub-rule (1) of Rule 6. In this behalf, learned Single Judge of this Court (Coram: C.K. Thakkar, J. as his Lordship then was). In the case of Ishwarlal C. Patel Vs. District Collector, Valsad which is finding place in 1992(1)
G.L.H. (U.J.) 10, the learned Single Judge has considered the provisions of Rules 6, 9 and 11 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971. In the aforesaid case, the employee was subjected to penalty of stoppage of two increments with cumulative effect. The learned Single Judge, after considering the judgment of Supreme Court in the case of Kulwant Singh Gill Vs. State of Punjab reported in (1990) 4 JT 70, found that order directing stoppage of two increments with cumulative effect would fall within one of the major penalties. In the aforesaid basis, the learned single Judge came to the conclusion that the procedure, which is followed as prescribed for minor penalty in this behalf is not proper. It is argued by Mr. Pathak that so far as Rule lower stage in a time-scale and if that be so, it would fall under Rule 6 (3) which is a major penalty. Since the earlier view has been taken by the learned Single Judge of this Court, withholding of increment with future effect may result into reduction to a lower stage in a time-scale. Withholding of increment simplicitor falls under Rule 6 (1) and with future effect, it may attract the provisions of sub-rule (3) of Rule 6 and it may result into reduction to a lower stage in a time-scale. Considering the same, since in the present case, the procedure of only minor penalty is imposed under Rule 9, the impugned order which is passed without holding inquiry for major penalty under Rule 8 is clear in violation of Panchayat Service (Discipline and Appeal) Rules and the same is required to be set aside. The State Government through Panchayat issued circulars to various Development Commissioners and District Panchayats on 27.9.1996 which is at page 46 in the compilation. It is clearly mentioned in the circular that the said circular was issued on the basis of Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964. In the said circular, it is provided that in a case where an employee is subjected to withholding of increment with future effect, procedure for major penalty is required to be implemented and in such case Gujarat Panchayat Service Selection Board is required to be consulted.
10. In view of the said circular, it is also made clear that withholding of increment with future effect is considered as major penalty. Considering the said aspect, the impugned order which is passed only after considering the reply of the petitioner, is not sustainable. It is also required to be noted that even assuming that the case falls under the provisions of minor penalty, in my view even before imposing minor penalty, principles of natural justice are required to be complied with in its true spirit that is giving proper opportunity of hearing. In the present case, the petitioner had asked for certain documents in order to prove his innocence. As according to the petitioner, he was not required to supervise the work of his Superior Officer and was not required to inform the department about performance of the Superior Officer i.e. one Mr. Joshi, Assistant Executive Engineer. Admittedly, no documents were given nor it was informed to the petitioner that these documents are not relevant and the impugned order is passed withholding of increment with future effect. Even in the case of imposing minor penalty at least reasonable opportunity of being heard is required to be given so that a person can effectively put his case. Looking to the order passed in a casual manner, even on that ground the impugned order is required to be struck down.
11. Learned Counsel, Ms. Hathi, however, submits that the petitioner, at the relevant time, was work-charge employee and as per the Government Resolution dated 25th may, 1989, all benefits of Panchayat is not made available to work-charge employee regarding pay scale etc. As per the same, it is provided that since the said employees are not considered to be Panchayat employees, Rules of Panchayat Service (Discipline and Appeal) may not be made applicable to them. However, even in the case of misconduct, principle of natural justice is required to be complied with and employee is required to be given charge-sheet and his say is required to be taken into account. The principles of natural justice would include fair hearing.
12. In my view, the petitioner was not given sufficient opportunity to defend his case as most relevant documents were not even supplied to him and only on the basis of show-cause notice, the impugned order was passed and point raised by the petitioner has not been considered at all. In view of the same, even assuming that the petitioner is not entitled to get benefit of Panchayat Service (Discipline and Appeal) Rules, at least he is entitled to principles of natural justice and so it is required to be considered in a proper manner by the Disciplinary Authority. After going through the impugned order, it is clear that the say of the petitioner is not considered at all and even for imposing any penalty worth the name at least appropriate opportunity of hearing is required to be given. Petitioner is not even informed by the Disciplinary Authority that the demand of the documents is not relevant and after considering his reply straightaway, the impugned order is passed. It is therefore, difficult to sustain the impugned order.
13. Learned Counsel, Ms. Hathi, however argued that since the alternative remedy is available, this petition may not be entertained. It is required to be noted that the petition is admitted as back as in the year 2002. In view of the decision of the Supreme
matter is admitted at the time of final hearing, the matter is not required to be dismissed on the ground of alternative remedy. The relevant observation of the Supreme Court in this behalf as under:-
“1. Leave granted.
2. By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents' alleged right of re-entry on the disputed property in accordance with sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid rules contain a mechanism for adjudication of a dispute relating to the alleged breach of term of the agreement and the manner in which it is to be resolved.
3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.
4. We, therefore, set aside the impugned order of the High Court and remit the matter to it for taking a decision on merits, after hearing the parties, within the earliest possible period.
5. The appeal is, accordingly, allowed.”
14. A reference is also required be made in decision of the Supreme Court in the case of M.P. State Agro Industries Development Corpn. Ltd. and another Vs. Jahan Khan reported in (2007) 10 SCC 88 wherein it has been held by the Supreme Court that exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental right (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the aforesaid case, it was found that imposing penalty on the employees stood vitiated in view of breach of principles of natural justice.
15. It is also required to be noted that the petitioner had already challenged the vires of Rule 5 of Panchayat Service (Discipline and Appeal) Rules. In that view of the matter, the Alternative Forum has no jurisdiction to consider that aspect of vires. Since the matter is already admitted since long, this Court now would not relegate the petitioner for alternative remedy.
16. In view of what is stated above, the said petition deserves to be allowed. So far as Special Civil Application No.8812 of 2002 is concerned, the petitioner was work-charge employee, same show-cause notice was issued to him and by very order, he was subjected to penalty of withholding of increment with future effect. Both the petitions are accordingly allowed.
17. Both the impugned orders withholding of increment at Annexure-F are set aside.
18. It is clarified that if the Disciplinary Authority so chooses, it will be open to the Disciplinary Authority to proceed with the matter in accordance with law as this order is passed only on the ground that the procedure adopted is not found to be in consonance with the principles of natural justice. It is always open for the Disciplinary Authority to proceed in accordance with law, if so desire. Rule is made absolute.
(P.B.MAJMUDAR, J.)
piyush