At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE J.B. PARDIWALA
For the Applicant: D.S. Vasavada, Advocate. For The Respondents: Maya S. Desai, Advocate.
1. This Court disposed of the main matter i.e. Special Civil Application No.1795 of 2002 vide judgment and order dated 19/07/2016 in the following terms:
By this writ- application under Article 226 of the Constitution of India, the petitioner, a former Executive Engineer of the erstwhile Gujarat Electricity Board, has prayed for the following reliefs:
(A) Be pleased to allow this petition with cost by issuing a writ of mandamus or any other appropriate writ to the respondents under Article 226 of the Constitution of India;
(B) Be pleased to hold that the action of the respondents in issuing termination order dated 11.12.98 and confirmed by Appellate Authority in March, 2000 and the copy of the order was served on 12.4.2001, is illegal, arbitrary, contrary to the law and therefore, violative of Article 14 of the Constitution of India;
(C) Be pleased to hold that the petitioner has not committed any misconduct and the finding arrived at by the Inquiry Officer is illegal and perverse and not supported by any evidence and therefore, the findings are perverse and contrary to law;
(D) Be pleased to quash and set aside the termination order which is issued to the petitioner dated 11.12.98 and the order issued by the Appellate Authority to the petitioner on 12.4.2001 rejecting the Appeal;
(E) Be pleased to direct the respondent to reinstate the petitioner on his original post and place with payment of full backwages with continuity of service and with all consequential benefits including the benefit of promotion;
(F) Pending hearing and final disposal of the present petition, the respondents may be directed to reinstate the petitioner on such terms and conditions as may be imposed by the Honble Court;
(G) Be pleased to grant such other and further relief(s) as are deemed fit in the interest of justice;
The facts of this case may be summarised as under:
The petitioner joined the services of the erstwhile Gujarat Electricity Board as a Junior Engineer in 1972. Later on, he was promoted on the post of the Executive Engineer. On 30th June 1997, he tendered his resignation in the prescribed proforma.
It appears before the resignation could be finally accepted, a departmental charge-sheet came to be issued against the petitioner dated 14th August 12997. The statement of allegations reads as under:
STATEMENT OF ALLEGATI
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NSShri R.N.Patel, while working as Dy. Engineer at 66 KV Rajkot S/S and now working Executive Engineer, Construction Division, Limbdi, is reported to have committed following acts of misconduct in terms of Board's Employees Conduct, Discipline and Appeal Procedure.1. His wife, Smt.Kantaben R.Patel was a partner in the factory named Alfa Electrictals, Sitaram Road, Rajkot. The factor was doing transformer repairing. In his written statement to the Vigilance Deptt., of GEB, he has stated that his wife is looking after the household activities only. However, this has been confirmed from the Registrar of Firms, Rajkot that Smt.Kantaben Rameshchandra Patel was a partner in Alfa Electricals. He has deliberately submitted wrong statement and thereby tried to mislead the authority.2. As per details collected from Registrar of Firms, Rajkot for the factories, namely E.M.F. Controls, Rajkot, Kiran Electricals, Jamkandorna, Alfa Electricals, Rajkot his relatives were partners for transformer repairing works and this fact was not declared to the GEB authority upto 7.1.1995 in accordance with the Establishment Circular dtd.19.2.1986 in his submission of yearly statement of moveable/immoveable properties and declaration for having no participation with GEB activity by him or his relatives. Thus he had deliberately hidden official information from GEB authority, which an employee possesses.3. He has constructed his residential house in Rajkot on a plot measuring 107.15 Sq.Mtr. having built up area of 1500 Sq.Ft. at the cost of Rs.2,17,000/- As indicated in completion certificate given by Town Planner, Rajkot Municipal Corporation dtd. 9.11.1989, construction has completed during November 1989, whereas he has availed the loan for H.B.A. on 25.2.1991. He has informed in his written statement to Inquiry Officer that he has constructed the house from GEB loan and he has declared this matter in his immoveable Property Return on 7.1.1995. But he has constructed the house well before the sanction of loan and as such he has submitted false information to GEB authority.4. He has purchased/held shares worth Rs.50,970/- in the year 1992 against his yearly income of Rs.74,939=10 in 1992. He has failed to submit convincing clarification for this transaction.From the above facts and acts, it reveals that Shri R.N.Patel, Executive Engineer Const. Division, Limbdi has committed acts of misconduct as narrated under Article of charges forming part of this Charge Sheet as Annexure-'A'.An Inquiry Officer was appointed, and on conclusion of the inquiry, he filed his report stating as under :Conclusion:The reply given by the delinquent during the personal inquiry and the statement given by him in reply of charge sheet vide his let. Dtd.25.9.97 he has not accepted any charges except clarified in his reply.i. It is true that his wife Smt.Kantaben R.Patel was a partner in the factory named Alfa Electricals, Sitaram Road, Rajkot the factory was doing the transformer repairing this can be confirm from the register of firms Rajkot.ii. It is true that his brother was partner in the firm named EMF controls Rajkot which was registered with registrar of firms.iii. It is not established that his relative were partner in the firm Kiran Electricals, Jamkandorana.iv. The delinquent could not proved from where he brought the amount for repayment of HBA loan and notice pay.v. It is true that the charge sheet was issued to RN Patel the then EE (Const) Limbdi after tendering the resignation. The delinquent has tender the resignation which was forwarded by EE (Const) Limbdi vide his let.No.1804/30.6.97 after recovering all dues from him, the said resignation was forwarded by SE (TR) Nadiad vide his let.No.NTC/EST/Adv/5928 Dtd.5.7.97 to H.O.vi. The delinquent has submitted in his reply that in Alfa Electrical Rajkot his wife was non-working partner which was closed its business in the year 1995 but not produced any evidence from Registrar of firms regarding cancellation of registration.vii. It has been stated by delinquent it is not true that his relative were partners in the EMF control Jamkandarna.viii. It is not established that due to his relatives were partners in the said firms, the Board is put into any financial loss.Thereafter, the disciplinary authority, by order dated 1st December 1999, terminated the services of the petitioner, observing as under :I have carefully gone through the papers of Inquiry and reply dated 19.12.1999 to the Show Cause Notice given by Shri R.N.Patel, Ex.Engineer, Limbdi Const. Dvn. I concur with the findings of the enquiry officer about the charge No.27 regarding doing private business which has been proved.In view of above, I decide to terminate your service from the Board services.I, therefore, pass the following orders :-The services of Shri R.N.Patel, Ex.Engineer (Const.) Division, Limbdi are hereby terminated with immediate effect.Being dissatisfied with the order passed by the disciplinary authority referred to above, he preferred an appeal before the appellate authority, i.e. the Chairman of the erstwhile Board. By communication dated 6th March 2000, the petitioner was informed that his appeal before the appellate authority, i.e. the Chairman of the erstwhile Board, was ordered to be dismissed. The order reads thus :ORDERSub : An appeal agaisnt punishment preferred by Shri R.N.Patel, Ex.Engineer, Limbdi (Now terminated)Ref: 1. Punishment order No.CAO/EST/VI/DA/1225/ RNP/486 dtd.1.12.1999.2. Appeal dtd. 11.12.1999.The competent appellate authority i.e. Chairman of the Board has carefully gone through the appeal preferred by Shri R.N.Patel, Ex.Engineer, Limbdi Const. Dvn. against the punishment order dtd. 1.12.1999 awarding punishment of terminating him from the Boards service and other connected papers and has come to a conclusion that the punishment awarded is in order and the same needs no review. Therefore, the competent appellate authority i.e. Chairman has decided to reject the appeal.Accordingly, the appeal preferred by Shri R.N.Patel, Ex.Engineer is hereby rejected and the punishment order No.CAO/EST/VI/DA/1225/RNP/486 dtd. 1.12.1999 awarding punishment of terminating him from the Boards services issued by Member (Tech) stands.By orderSd/-SECRETARYBeing dissatisfied, the petitioner has come up with this writapplication.Mr.Vasavada, the learned counsel appearing for the petitioner, vehemently submitted that the impugned order terminating the services of the petitioner is erroneous and not tenable in law. According to him, the inquiry was carried in a most slipshod manner. He would submit that the report of the Inquiry Officer does not make it clear as to which of the charges stood established. According to him, the report is absolutely vague.Mr.Vasavada submitted that the order passed by the disciplinary authority is also a non-speaking order and deserves to be quashed only on this ground alone. He further pointed out that the order passed by the appellate authority is also a non-speaking order and deserves to be quashed on this ground alone. He submitted that his client committed no misconduct of any nature. His client was not engaged in any private business, although it may be true that his wife was a partner in a partnership firm engaged in the business of electrical appliances. Mr.Vasavada would submit that there being merit in this writ-application, the same may be allowed and the impugned orders be quashed.On the other hand, this writ-application has been vehemently opposed by Ms.Desai, the learned advocate appearing for the respondents. She submits that no error, not to speak of any error of law, could be said to have been committed by the authorities concerned in terminating the services of the petitioner. According to her, no interference is warranted at the hands of the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. She, therefore, prays that there being no merit in this writ-application, the same may be rejected.Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the authorities committed any error in passing the impugned orders.I have yet to come across a vague report of an Inquiry Officer like the one which is in the present case. The report of the Inquiry Officer is so confusing that it is difficult for me to understand which of the charges, according to him, stood established and which not established. It is also very difficult for me to understand what he wants to convey in his report. As if the report of the Inquiry Officer is so clear that the disciplinary authority also thought fit to accept the same without any discussion worth the name and proceed to pass the order dismissing the petitioner from service.It appears from the impugned order dated 1st December 1999 that only the Charge No.2(27) was taken into consideration and held to be established. The appellate authority, i.e. the Chairman of the Board, without assigning any reasons or any discussion worth the name, dismissed the appeal. In fact, it is the Secretary who is informing about the dismissal of the appeal. To put it in other words, the Secretary is informing about the decision taken by the Chairman of the Board to dismiss the appeal. What weighed with the Chairman, as the appellate authority, is not known.After a period of almost 14 years from the date of the filing of this writ-application, for the first time, affidavit-in-reply has come on record.In the case of Ramesh Chandra Maganbhai Oza v. State of Gujarat, reported in (2016)2 GLR 1607, this Court observed as under:8.1 Legal importance of the reasons in an order was explained by the Supreme Court in Daya Ram v. Raghunath, [(2007) 11 SCC 241], in the following words:Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking order.8.2 Recording of reasons is an aspect of natural justice. The reasons properly recorded in support of an order is the natural justice duly complied with in that part. The principle that the reason in an order is an ingredient of natural justice becomes clear from the following judgment of the Supreme Court in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla & Bros., [(2010) 4 SCC 785], the Apex Court observed as under :The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities....... (Para 14)In B.V.Gor v. Gujarat Water Supply And Sewerage Board & Anr., reported in 2011 (4) GLR 3211, I have explained what is expected of the appellate authority and how he supposed to decide the appeal. I may quote the observations as under:5. It is abundantly clear from the notings in the file that there is no order passed by the appellate authority which would indicate any independent application of mind by the appellate authority. The findings which are recorded by the disciplinary authority can always be reappreicated by the appellate authority. As an appellate authority, it can take a different view on the same set of evidence. Appellate authority also owes a duty to see as to whether procedure laid down in the rules was complied with, inquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him and, whether penalty imposed by the disciplinary authority was excessive.6. I am of the view that the appellate authority has failed to discharge his duty as the law demands. Appeal is a statutory remedy available to the petitioner as a delinquent. It is a valuable right which the rules has conferred upon the petitioner as a delinquent and, therefore the delinquent is well within his rights to expect the appellate authority to reconsider the entire matter being the final fact finding authority.7. I am not at all satisfied with the manner in which the appeal is decided and disposed of. It is a settled position of law that an appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirement of the law while exercising his jurisdiction under the Rules.7.1 In case of Apparel Export Promotion Council v. A.K. Chopra , [1991 (1) SCC 759], it has been stated as under :The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact¬finding authorities.7.2 In case of Narinder Mohan Arya v. United India Insurance Co Ltd., & Ors., [AIR 2006 SC 1748], in paragraph No.36 and 37 the Hon'ble Apex Court has observed as under :36. The order of the appellate authority demonstrates total nonapplication of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression 'consider' is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive.37. In R.P. Bhatt v. Union of India, [(1986) 2 SCC 651] this Court opined:The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being noncompliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.7.3 In a recent pronouncement of the Supreme Court in the matter of Divisional Forest Officer, Kothagudem & Ors. v. Madhusudhan Rao, reported in (2008) 3 SCC 469, the Supreme Court has observed in paragraph No.20 as under :20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.7.4 In the facts and circumstances of the case, it would also be appropriate for me to quote the well known judgment of the Apex Court in Bachhittar Singh v. State of Punjab. It was a case where a Constitution Bench of the Apex Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This is how the Apex Court dealt with the effect of the noting by a Minister on a file: [AIR 1963 SC 395 (Para No.9)].9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.In view of the above, the right thing for me to do would have been to quash both the orders and remit the matter to the disciplinary authority to consider afresh and pass appropriate reasoned order. However, I am reluctant to remit the matter after almost more than 19 years.As a result, both the impugned orders are hereby ordered to be quashed. Even otherwise, the petitioner has crossed the age of superannuation way back on 31st August 2006.As both the orders have been quashed, the petitioner would be entitled to all his retiral benefits otherwise available under the rules and regulations. The same may be worked out within a period of four weeks from today and shall be paid to the writ-applicant. Rule made absolute.2. It appears that after the order came to be passed by this Court, the petitioner has been paid his retiral benefits. I take note of the letter addressed to the petitioner which is at Page-29:-No.GETCO/HR/Legal/RNP/15Gujarat Energy Transmission Corp. Ltd.Sardar Patel vidyut Bhavan,Race Course, Vadodara-390007.Date- 01-02-2017To,Shri R.N. PatelDhara 26/B, Shree Colony,B/H Panchvati Society,Kalawad Road,RAJKOT – 360001Sub: Legal Notice dtd.24.12.2016 of advocate Shri D.S. Vasavada regarding Oral Judgment Dtd. 19.07.2016 in SCA:1795/ 2002Ref:1. Oral Judgment Dtd.19.07.16 passed by H'ble High Court in SCA: 1795/022. Your representation vide letter Dtd.05.10.20163. I/c SE (Tr), Surendranagar Letter No.STC/HR/Legal/RNP/ 6123 Dtd.30.12.2016.Anent to the above subject and correspondence, we are in receipt of your legal notice Dtd.24.12.16 through advocate Shri DS Vasavada regarding Oral judgment Dtd.19.07.16 in SCA: 1795/2002.In this regard, it is clarified that H'ble High Court has clearly mentioned in the aforesaid judgment Dtd.19.07.2016 that “the petitioner would be entitled to all his retiral benefits otherwise available under the rules and regulations.” Accordingly, the retiral benefits have been paid to you and the same was also conveyed to you by I/c SE (Tr), Surendranagar vide above referred letter Dtd.30.12.2016. There are no directives of H'ble High Court regarding your claim for other benefits as per the said notice.In view of the above, the Order Dtd.19.07.2016 of H'ble High Court is complied and hence your case is hereby treated as closed.3. The dispute now is with regard to the retiral benefits. According to Mr. Vasavada, what has been paid, is not in accordance with the rules and regulations.4. “In my view, the issue that has now cropped up, is a fresh cause of action. The petitioner could initiate an appropriate proceedings in this regard in a disposed of writ application. The Misc. Civil Application cannot be filed for the purpose of seeking a fresh relief.”5. With a liberty to initiate an appropriate proceedings, this application is disposed of.