IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3279 of 1998 With SPECIAL CIVIL APPLICATION No. 1712 of 2003 For Approval and Signature:
HONOURABLE MR. JUSTICE PARESH UPADHYAY ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
2 3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the 4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================================= SARDAR MOHMED UMERBHAI MAKRANI - Petitioner(s) Versus GUJARAT RURAL HOUSING BOARD & Ors. - Respondent(s) ========================================================= ==== Appearance :
MR NIKHIL S KARIEL for Petitioner MR MEHUL H RATHOD and Mr SIRAJ R GORI for Respondent Board Government Pleader for State ========================================================= ==== CORAM : HONOURABLE MR. JUSTICE PARESH UPADHYAY Date : 29/02/2012 CAV JUDGMENT
1. By way of these two petitions, under Article 226 of the Constitution of India, the petitioner has challenged his non- promotion on the post of Executive Engineer, inspite of the fact that after due consideration by the competent committee, he was found fit for said promotion, and also the initiation of the disciplinary proceedings vide charge- sheet dated 7.5.1999 and its ultimate conclusion of holding the petitioner guilty and imposing punishment of withholding five increments with future effect, vide order dated 30.9.2000, as confirmed by the appellate authority on 8.1.2003.
2. The facts in brief are, as under:
2.1 The petitioner was appointed as Deputy Executive Engineer on 5.2.1982 with the respondent-Board. He had passed the departmental examination to make him eligible for promotion on the next higher post of Executive Engineer. On 2.7.1996, a decision was taken by the competent authority of the respondent-Board to appoint two persons on the post of Executive Engineer. Thereafter, on 23.1.1998, in the meeting of the respondent-Board, it was decided to fill-up those two posts of Executive Engineer by promotion from amongst the persons working in the feedar cadre, i.e. Deputy Executive Engineer. On the same day, pursuant to the decision by the respondent-Board, as aforesaid, the Selection Committee headed by the Chairman of the Board met to decide the suitability of the Deputy Executive Engineers for such promotion. In the said meeting, the case of the petitioner was also considered. The proceedings of the said meeting are on record at Annexure- C and it shows that the case of the petitioner was considered from different angles and it was found that the petitioner meets with the requirements of educational qualificatrion, passing of departmental examination, experience and his service record is also up to the marks. Considering these aspects, it was decided that the petitioner is eligible, suitable and fit for promotion on the post of Executive Engineer. The said proceedings, inter alia, records that one disciplinary issue was yet to be finalised against the petitioner. The said issue was, alleged irregularity committed by the petitioner while he was working as Deputy Executive Engineer at Vallabh Vidhyanagar in the year 1985, for which a show-cause notice was given to him in the year 1991, which the petitioner had responded immediately, and nothing adverse to the petitioner was done by the authorities in that matter thereafter. It was specifically noted in the DPC proceedings dated 23.1.1998 that since no charge-sheet was issued to the petitioner, his case need not be kept in sealed cover. It was decided to effect this promotion, after completing necessary procedures. The matter was left at that stage, but the fact remains that the petitioner was not given promotion on the post of Executive Engineer. This action of the respondent- Board is the subject matter of Special Civil Application No. 3279/1998. At admission stage of this petition, State of Gujarat, through Panchayat and Rural Housing Department and Gujarat Vigilance Commission were added as party respondents, as reflected in the order dated 9.7.1998. The petition was thereafter admitted vide order dated 12.10.1998. During pendency of the petition, petitioner has retired on attaining the age of superannuation on 30.7.2004.
2.2 The reason for not giving promotion to the petitioner on the post of Executive Engineer, inspite of he being found suitable for the said post by the Selection Committee on 23.1.1998, was the so-called irregularity committed by the petitioner, in the year 1985, due to which, as per the say of the respondent authority, the Board had suffered financial loss, for which, the charge-sheet was issued on 7.5.1999, to which the petitioner had responded vide reply dated 25.5.1999, denying the charges. The said explanation was not accepted by the authorities, and therefore, procedure under Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 was followed by appointing one Mr.
J.A. Pandya, retired Deputy Secretary as Enquiry Officer. Before Enquiry Officer, the petitioner made detailed submissions as to how he has not committed any misconduct. The Enquiry Officer recorded the finding that the petitioner is guilty of the charge levelled against him of at least negligence, and based on that report, after giving copy thereof to the petitioner, the punishment order dated 30.9.2000 was passed, whereby, five increments were withheld with cumulative effect. Against the said punishment order, departmental appeal was preferred by the petitioner, which is dismissed vide order dated 8.1.2003. Petitioner has challenged this disciplinary proceedings and its ultimate outcome by filing Special Civil Application No.1712 of 2003. Both these petitions are taken up for final hearing by this Court.
3. Mr. Nikhil Kariel, learned advocate is heard for the petitioner in both the petitions. On behalf of the respondent Board, in Special Civil Application No. 3279/1998 Mr. Siraj Gori learned advocate was heard, and in Special Civil Application No. 1712 of 2003 on behalf of the respondent Board, arguments were advanced on behalf of learned advocate Mr. Mehul Rathod.
3.1 Learned advocate for the petitioner Mr. Kariel contended that the action on the part of the respondent authorities of withholding promotion of the petitioner on the post of Executive Engineer, inspite of the fact that the selection committee, after considering all the aspects found the petitioner fit for promotion, is illegal and arbitrary and there was no reason to withhold that promotion under the guise of departmental enquiry, which was not only not initiated at that time, but was not even in contemplation, since no conscious decision by the Disciplinary Authority was taken in that regard. He pointed out that the selection committee had also recorded that the case of the petitioner need not be kept in sealed cover, which normally is done when departmental enquiry is pending. He has specifically made a point that timing of so-called departmental enquiry would show that the authorities had used the same as a tool to withhold the promotion of the petitioner and it was not a bonafide exercise on the part of the respondent authorities, to find out the truth in the alleged irregularity. So far initiation of the departmental enquiry is concerned, according to the petitioner, on merits, the enquiry ought not to have been initiated at all and in any case, after it was pointed out by the petitioner to the authorities, based on their own record, that it was not because of the negligence on the part of the petitioner that the Board had suffered any loss, there was no reason to continue with the said departmental enquiry. According to petitioner, the departmental enqiury is vitiated on more than one counts, and therefore, the ultimate punishment order dated 30.9.2000 and the order passed by the appellate authority dated 8.1.2003 are required to be interfered with. Even the very initiation of departmental enquiry has been challenged, as reflected in the prayer clause.
3.2 On behalf of the respondent-Board, to contest Special Civil Application No. 3279/1998 it is submitted that promotion was not released only because of the departmental enquiry, which is the subject matter of Special Civil Application No. 1712/2003 and in view of the fact that in the said departmental enquiry, the petitioner is found guilty, and he is punished also, the Court may not interfere with the same. So far as the challenge to the departmental enquiry, and outcome thereof is concerned, it is contended on behalf of the respondent authority that the enquiry is conducted in accordance with rules and considering the limited scope of judicial review in disciplinary matter, no interference be made by this Court.
4. I have considered the rival contentions of both the sides. The denial of promotion which is the subject matter of Special Civil Application No. 3279/1998, according to the respondent-authorities, is because of the departmental enquiry, which is the subject matter of Special Civil Application No. 1712 of 2003, and thus, going by the stand of the respondent authorities, the controversy in both the petitions are interwoven, and therefore, need to be dealt with simultaneously. Considering this aspect, both these matters are considered simultaneously.
5. First, it needs to be considered whether the respondent authorities were justified in withholding promotion of the petitioner on the post of Executive Engineer. Record shows that, decision was taken by the competent authority of the respondent Board to fill up two posts of Executive Engineer. Further, this appointment was to be made by way of promotion from amongst the persons working as Deputy Executive Engineer of respondent Board, as is evident from the decision of the Board dated 23.1.1998. The selection committee had met on 23.1.1998 under the Chairmanship of the Chairman of the respondent Board which had considered the suitability of eligible candidates. The petitioner was found fit for promotion on the post of Executive Engineer.
6. This court is conscious of the settled legal preposition that what is guaranteed under Article 16 of the Constitution of India, is consideration for promotion, as per rules and not the promotion, if the employee does not meet with the requirement prescribed by the employer, or there are other legally tenable reasons not to give promotion. Keeping this principle in mind, if we examine the facts of the present case, that consideration is already made by the competent authority. If on such consideration, the authorities find that the concerned employee though eligible, is not found suitable for the post and as a consequences thereof, if the promotion is not given to him, the authorities can contend that they have discharged their constitutional obligations of considering the case of its employee in accordance with rules and when he is not found suitable, the court would not direct the promotion of the concerned employee. That is not the case here. The authorities applied different tests like, educational qualification, departmental examination, experience, service record as reflected in Annual Confidential Report etc. Considering all these aspects, the authorities came to the conclusion that the petitioner is fit for promotion on the post of Executive Engineer. It is an undisputed position that on that day, neither any departmental inquiry was pending nor was in contemplation. That being the position, the recommendation of the selection committee could not have been kept in sealed cover, and was rightly not kept in sealed cover as recorded in the proceedings of the selection committee meeting dated 23.1.1998. Thus the outcome of consideration of the case of the petitioner for promotion by the competent authority in accordance with rules is that, the petitioner is found fit for promotion, that too on the vacant post decided to be filled in by promotion, and the said decision is not kept in sealed cover, and rightly so, but at the same time is not given effect to either. It is pertinent to note that the petitioner joined as Deputy Executive Engineer on 5.2.1982 and he has retired on 30.7.2004, as Deputy Executive Engineer. It is evident that in the entire service career, only one promotion accrued to the petitioner and even that was denied to him, that too, on non-existent, at least non-sustainable ground, as is discussed hereafter. It is not that, that the authorities subsequently decided not to fill up the post, but the reason advanced is some alleged irregularity of the year 1985, for which no charge sheet was issued to the petitioner till then.
7. At this stage, reference may be made to the judgment of the Hon'ble Supreme Court of India in the case of Union of India V/s. K.V.Jankiraman reported in AIR 1991 SC 2010, wherein, it is held that the disciplinary proceedings against the Government employee should be treated to have commenced only from the date of issuance of charge-sheet and not from any earlier stage, and that the “sealed cover procedure” should be resorted to only if the charge-sheet is already issued to the concerned Government employee in the case of departmental inquiry on or before the date of meeting of the Departmental Promotion Committee. This view is reiterated by the Apex Court time and again. One of such judgment is in the case of Union of India and others vs. Sangram Keshari Nayak, reported in (2007)6 SCC 704. This declaration of law was practiced more in breach than in its compliance by the authorities of the Government, which led to number of litigations and to see to it that the things are streamlined in this regard, Government thought it fit to reiterate this position of law by issuing Government Resolution dated 4th August, 2007. By the said resolution, Government has not evolved any new policy but only has reiterated the position of law in this regard which was already pronounced by the Hon'ble Supreme Court of India in the case of K.V.Jankiraman (supra).
8. Cumulative effect of the above referred preposition of law, coupled with the policy of the Government in this regard, is that, in the matter of promotion, position as on the date of the departmental promotion committee meeting is to be seen and subsequent development would not disentitle the concerned employee from getting his promotion, without prejudice to the right of the employer to continue with the departmental enquiry against such employee. Keeping these principles in mind, in the fact situation of this case, I find that even if it is accepted that the initiation of the departmental enquiry against the petitioner vide charge sheet dated 7.5.1999 was legal, and that the punishment order dated 30.9.2000 and the order passed by the appellate authority dated 8.1.2003 are not interfered with, then also, the action of the respondent authorities of denying promotion to the petitioner on the post of Executive Engineer is against the settled legal position and also contrary to the policy of the Government and therefore it is held to be illegal and arbitrary. Consequently respondents are required to be appropriately directed to undo injustice meted out to the petitioner, in this regard.
9. Now, coming to the next question of examining the challenge by the petitioner to the legality of the departmental enquiry initiated against him vide charge-sheet dated 7.5.1999 and its ultimate conclusion, culminating into punishment order dated 30.9.2000, at the outset it needs to be recorded that, the respondent authorities are right in contending that the scope of judicial review in disciplinary matters is very narrow. It is settled position of law that the courts of law would not interfere in disciplinary matters lightly, it would neither act as appellate authority nor would it substitute the satisfaction of the disciplinary authority, about the guilt. At the same time, disciplinary authority, can also not claim that its action is immune from any scrutiny, howsoever illegal and arbitrary it may be.
10. At this juncture, some of the observations of the Honourable the Supreme Court of India are required to be noted here.
10.1 In the case of M.V.Bijlani vs. Union reported in AIR 2006 SC 3475, it is observed as under.
25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceeding, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e. beyond all reasonable doubts, we can not lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he can not take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26. The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly.”
10.2 In the case of Kuldeep Singh Vs. The Commissioner of Police and others. reported in AIR 1999 SC 677 , it is observed by the Supreme Court, as under.
“42. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of “Reasonable Opportunity”, contemplated by Art.311(2) of the Constitution. The “Bias” in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which sqarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devil Khanpur their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the
appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed 'fix him up. ”
10.3 The aspect of delay in initiation and continuation of departmental enquiry is considered by the Honourable the Supreme Court of India in various judgements, some of which are, (1) P.V. Mahadevan vs. MD. T.N. Housing Board, reported in (2005)6 SCC 636, (2) State of A.P. vs. N. Radhakishan reported in (1998)4 SCC 154, (3) State of of Madhya Pradesh vs. reported in Bani Singh and Ors. reported in 1990 (supp) SCC 738, and (4) M.V. Bijlani vs Union of India and ors, reported in (2006)5 SCC 88, which has to be kept in mind.
10.4 In the case of P.V. Mahadevan (supra), while interfering in the initiation of departmental inquiry after ten years, the Hon'ble Supreme Court, inter alia, observed as under:
“11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.”
10.5 Further, this court, while following the judgement recorded in Special Civil Application NO: 3834 of 1998 dated 14.9.2004 , in the subsequent unreported decision rendered in case of H.M. Shah v/s. State of Gujarat in Special Civil Application No: 15128 of 2005, observed as under :
“... He invited attention to Rule 9(17) of the Rules, (i.e. Gujarat Civil Services (Discipline and Appeal) Rules, 1971), which reads as under:
“9(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.”
6. On the facts of the case it is found that there is non-compliance of Rule 9(17) of the Rules. This fact is not disputed by learned Assistant Government Pleader. It is also admitted that the petitioner had not examined himself during the inquiry. I am, therefore, of the opinion that the Disciplinary Authority's order is therefore vitiated on this ground...”
10.6. Keeping these broad principles in mind, while examining the impugned action of the authorities, the following picture emerges.
11. It is alleged against the petitioner that while the petitioner was working as Deputy Executive Engineer at Vallabh Vidhyanagar in the year 1985, the cement remained unused, and therefore, cement lost its strength and it became useless and thereby financial loss was caused to the Board. For this purpose, a show-cause notice was also given to the petitioner in the year 1991, which, he had responded immediately. Under these circumstances, the say of the authorities, that at the time of promotion of the petitioner in the year 1998, now we intend to initiate departmental enquiry for the said alleged irregularity, that too, after about 15 years, is the exercise of power more as a tool to withhold the promotion then to find out the truth. It is not the case of the respondent Board that they were not aware of this aspect, and therefore, there is delay. As a matter of fact, as noted above, a show-cause notice was issued in the year 1991 which was responded immediately by the petitioner. Under these circumstances, the action of the authorities just to keep that issue alive for years and decades and to pull it out from drawer at the time of his promotion, if not malafide, is certainly an exercise which lacks bonafide. Therefore, on this count alone, the inquiry in question can be interfered with. However the matter does not stop there. On merits, the case of the petitioner before the respondent authorities was that he had sent periodical statements to the higher authorities from time to time about the stock lying at the station where he was working. It is pertinent to note that not only at his place, but at other places also, under the administrative control of the respondent Board, cement was lying unused and had not remained usable, and therefore, even the policy decision was taken to write off the said loss. The said decision was taken by the highest decision making authority of the Board on 4.2.1997 after recording the fact that the activity of the Board had slowed down and new work did not come to the Board and therefore cement remained unused and became useless. This problem was at seven different stations including at the station where the petitioner was working. Based on this decision of the Board, consequential office order was issued on 4.4.1997, which inter alia records facts/ reasons, for the loss in question, to the effect that, the cement supplied to different stations of the Board was bought from the Gujarat State Civil Supply Corporation. The activity of the Board had slowed down and new work did not come to the Board and therefore cement remained unused and became useless. The details of such stock was as under.
12. Thus, it is evident that the cement, at seven different head quarters, totaling to more than 515 MT got spoiled which also included Vallabh Vidhyanagar where the petitioner was working. Even the reasons to write off this loss caused to the respondent Board as reflected in the office order are also that the Gujarat Civil Supplies Corporation had supplied this cement to the respondent Board, some part of which according to the respondent Board, was of poor quality, and therefore, some part thereof was replaced by the Gujarat Civil Supplies Corporation, but for some part, it had not agreed, and therefore, two corporations of the State Government i.e. Gujarat Civil Supplies Corporation and the respondent Board had entered into litigation which created a very bad scene before the Court and ultimately, the Chief Secretary vide letter dated 26.7.1993 intervened and the dispute was put to an end. The said office order further records that at the relevant time, the construction activity of the Board had slowed down, and therefore, the cement at all centres had remained unused. In this back-ground, when the turn of the petitioner for promotion on the post of Executive Engineer came, this chapter is used as a misconduct on the part of the petitioner to deny him the promotion. It is pertinent to note that, learned counsel for the respondent Board was at loss to respond to the query put by the Court, as to whether all officers of the seven centers were charge- sheeted, since the wastage of the cement is at seven different head quarters.
13. There is one more important aspect of the matter. Though the Enquiry Officer had recorded the defense of the petitioner in detail, inter-alia to the effect that he had already sent the periodical statements through proper channel to the head office about the unused cement, and that the use of cement was less because of less work with the respondent Board, and that the policy decision to write off loss was also taken by the Board and reasons reflected in office order in that regard, as recorded above, are also self explanatory, according to Enquiry Officer that was not sufficient for the petitioner and according to Enquiry Officer, the petitioner as a 'true officer', ought to have written in detail to the head office and the petitioner ought to have personally met the authorities at the head office and should have explained the situation, which he has not done, and thereby, he has exhibited negligence which is treated to be the basis by the Enquiry Officer to record that the charge against the petitioner is proved. Over and above the fact that, from the record it is not reflected that the petitioner had examined himself as a witness and therefore applicability of Rule 9(17) of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, and effect of non observance thereof would also have the play, in this fact situation, the following observations of the Hon'ble Supreme Court of India in case of KULDEEP SINGH (supra) which is already noted above, would apply with full force.
“42. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of “Reasonable Opportunity”, contemplated by Art.311(2) of the Constitution. The “Bias” in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devil Khanpur their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed 'fix him up'.”
14. In the present case, from the record, it is evident that, the Enquiry Officer has not only not acted as a judge, not even as a prosecutor, but has acted more as a complainant. The attempt on the part of the Enquiry Officer was not to find out the truth but anyhow to reach to the conclusion how the charge can be held to be proved against the petitioner. The reasonings and conclusion recorded by the Enquiry Officer is such, where no prudent man would arrive at. In this back ground, the following observation of Honourable the Supreme Court of India in case of M.V.Bijlani (supra), which is already noted above, would apply with full force.
“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceeding, however, being quasi-criminal in nature, there should be some evidences to the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e. beyond all reasonable doubts, we can not lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he can not take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26.The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly.”
15. Considering the totality of the facts and circumstances and position of law, with regard to departmental enquiry in question, as discussed above, I find that the very initiation and continuation of the departmental enquiry in question was bad on the ground of delay as well as on merits, further this is the case of no evidence, the approach of enquiry officer was biased and perverse, the Enquiry Officer has not only not acted as a judge, not even as a prosecutor, but has acted more as a complainant. The attempt on the part of the Enquiry Officer was not to find out the truth but anyhow to reach to the conclusion how the charge can be held to be proved against the petitioner. The reasonings and conclusion recorded by the Enquiry Officer is such where no prudent man would arrive at, and while doing so even statutory rules are also flouted. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. Further the timing demonstrates that the respondent authorities used this entire exercise as a tool to salvage the first illegality of withholding of promotion and thus it also smacks of lack of bonafide, and the same is required to be interfered with on more than one count.
16. There is one more facet to this fact situation. The Disciplinary Authority has passed the punishment order of withholding of increments, in exercise of powers conferred by Rule 6 of The Gujarat Civil Services (Discipline & Appeal) Rules, 1971. Punishments provided under said Rule 6 are as under :
(1) Censure
(2) Withholding of increments or promotion. (3)Recovery from his pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.
(4) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increment of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of pay.
(5) Reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further direction regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service.
(6) Compulsory retirement.
(7) Removal from service which shall not be a disqualification for future employment under Government.
(8) Dismissal from Service which shall ordinarily be a disqualification for future employment under Government.
17. From the perusal of the above rule, it is evident that sub rule (2) of Rule 6 of the said rules, empowers the Disciplinary Authority to impose punishment of either withholding of increment or withholding of promotion. In the present case, pursuant to the Departmental Enquiry in question, the Disciplinary Authority decided to impose punishment of withholding of increments and not the punishment of withholding of promotion. However, the Disciplinary Authority now, in effect contends that since punishment of withholding of increments is imposed therefore, consequently, the petitioner will have to undergo the punishment of withholding of promotion as well. The plain reading of the rule, which is statutory in nature, in my view, does not authorise the Disciplinary Authority to impose such double punishment. If we look at it differently, the Disciplinary Authority could also order withholding of promotion, but then, as the consequence thereof, withholding of increments could not have been ordered. Rule 6 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 empowers the Disciplinary Authority to impose any of the punishments prescribed under the said rule, however, it can not impose more than one punishments, on the delinquent officer. If that is done, then it would amount to double jeopardy and that can not be permitted in the eyes of law. In the present case, the respondent authorities have, in effect contended before this Court that, though they have exercised the power of withholding of increments as the punishment, and though their right to exercise that power under Rule 6 of The Gujarat Civil Services (Discipline & Appeal) Rules, 1971 got exhausted at that stage, still as the consequence of said exercise of power, they have also power to withhold promotion of the petitioner, which had accrued to him years before. In my view, this stand of the Disciplinary Authority, who is respondent authority in these petitions, cannot be countenance and needs to be interfered and set right.
18. To conclude I hold that, even if the departmental enquiry proceedings in question, were held to be legal and were not to be interfered with, then also, for the reasons recorded above, the said inquiry was not a valid ground to withhold the promotion of the petitioner. Further, in the present case, the only argument on behalf of the respondent authorities to justify the non-promotion of the petitioner, is the departmental enquiry, the dissection of which is made above. Looking from different angle, I also find that, even if the enquiry in question had no effect on withholding of promotion, or take it that the promotion was not due at all, then also, for the reasons and findings recorded above, the enquiry in question and ultimate punishment order can not be permitted to stand in the eyes of law.
19. Keeping both these findings in view, i.e. regarding withholding of promotion and departmental inquiry, appropriate relief is required to be granted to the petitioner. Hence the following order is passed and directions are issued.
(1) The punishment order dated 30.9.2000, passed by the disciplinary authority and order dated 8.1.2003, passed in appeal, both are quashed and set aside. Independently, it is also declared that the issuance of charge sheet dated 7.5.1999 was also illegal and arbitrary, but since the ultimate punishment order is quashed and set aside and it is held that this was the case of no evidence, no separate order is passed for quashing the charge sheet dated 7.5.1999, since it has already outlived its life. Petitioner is entailed to and shall be granted all consequential benefits.
(2) Arrears of the amount paid less to the petitioner, on the post of Deputy Executive Engineer, because of punishment of withholding of increments, shall be paid to the petitioner, as if regular increments were earned by the petitioner as per rules. The exercise of making calculation of amount to be paid to the petitioner on this count, shall be completed within a period of two months from today. The said calculation shall be intimated to the petitioner by registered post within a period of one week thereafter. The amount so calculated shall be paid to the petitioner within a period of three months from today.
(3) Considering the fact that the name of the petitioner was cleared in all respect for promotion on the post of Executive Engineer on 23.1.1998, liberally granting one full year to the respondent authorities, that they would have taken maximum, in issuing the actual promotion order, the petitioner shall be treated to have been promoted on the post of Executive Engineer w.e.f. 1.1.1999 and shall be entitled to all consequential benefits, with the rider that actual arrears of pay on this count shall be paid 50%. This payment shall be made within a period of four months from today.
(4) Since the petitioner by now has retired, his retirement dues shall be required to be recalculated, keeping in view both aspects, i.e. the punishment order of withholding of increments is quashed and set aside, and thereby even as Deputy Executive Engineer, petitioner would have drawn more pay, and further that now he is to be treated as having retired from the post of Executive Engineer, treating 1.1.1999 as the date of his promotion. This calculation shall be made within a period of five months from today and actual payment on this count shall be made to the petitioner within a period of six months from today.
20. Both the petitions are accordingly allowed. Rule is made absolute, in each petition, to the above extent. No order as to costs.
[PARESH UPADHYAY, J.] mandora/