MAHESH BABULAL JAIN (NOW, MAHESH BABULAL SHAH) v. MANAGING DIRECTOR

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8413 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== Whether Reporters of Local Papers may be allowed to see the judgment ? NO

2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== MAHESH BABULAL JAIN (NOW, MAHESH BABULAL SHAH)....Petitioner(s) Versus MANAGING DIRECTOR & 3....Respondent(s) ========================================================== Appearance: HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR KRUNAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 RULE SERVED for the Respondent(s) No. 1 - 2 , 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/09/2016

1. By this writapplication under Article 226 of the Constitution of Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Oct 22 06:48:37 IST 2016 India, the writapplicant a former employee of the Gujarat State Civil Supply Corporation Limited, has prayed for the following reliefs: 9(a) to admit and allow this petition; (b) to issue writ of mandamus and/or writ of certiorary and/or any other appropriate writ, order or direction quashing and setting aside the order dtd.25.5.98 passed by respondent no.3 (AnnexureJ), and order dtd.15.6.2002 passed by respondent no.2 (AnnexureM) and order dtd.19.8.2002 passed by Personnel Manager of respondent Corporation (AnnexureO) and thereby issue directions to the respondent authorities to give all the consequential benefits of the petitioner. (c) pending hearing and final hearing of this petition, to stay the execution, implementation and operation of orders which are at AnnexureJ and M annexed with petition. (d) to award cost of this petition. (e) to grant such other and further reliefs as deemed fit, just and proper in the interest of justice.

2. It appears from the materials on record that the writapplicant joined the services of the Corporation sometime in the year 1983. While he was holding the temporary charge of a Godown Manager at Vadodara, a departmental chagesheet came to be issued on the ground that his negligence and carelessness led to loss of 33 quintals 99 kgs. and

300 gms. of Pamolin Oil.

3. The Inquiry Officer exonerated the writapplicant of the alleged charge of misconduct.

4. The Disciplinary Authority issued a second showcause notice dated 08/01/1998 stating that he was not in agreement with the findings recorded by the Inquiry Officer and held the charge to be proved and called upon the writapplicant to showcause as to why a major penalty should not be inflicted in accordance with the Rule 6 of Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Oct 22 06:48:37 IST 2016 the GCSR (Discipline and Appeal) Rules, 1971.

5. The writapplicant gave a detailed reply to the said showcause notice.

6. The Disciplinary Authority, thereafter, proceeded to pass an order imposing the penalty of withholding of three annual increments with future effect and also, ordered recovery of Rs.33,426=45ps.

7. The writapplicant being dissatisfied with the order of penalty preferred an Appeal before the Appellate Authority. The appeal was ordered to be dismissed vide order dated 15/06/2002.

8. Being dissatisfied, the writapplicant has come up with this writ application.

9. Mr. Pandya, the learned counsel appearing for the writapplicant vehemently submitted that since his client was exonerated by the Inquiry Officer, it was incumbent upon the Disciplinary Authority to record reasons for his disagreement with the findings recorded by the Inquiry Officer and such reasons for disagreement should have been tentative. According to Mr. Pandya, the Disciplinary Authority not only failed to record the reasons for disagreement, but straightway called upon the writapplicant to showcause why a major penalty be not imposed in accordance with Rule6 of the Rules, 1971. Mr. Pandya would submit that the procedure adopted by the Disciplinary Authority was quite contrary to one prescribed under Rule 10 of the GCSR. He would submit that the procedural lapse ultimately vitiated the order imposing the punishment and the same deserves to be quashed. Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Oct 22 06:48:37 IST 2016

10. On the otherhand, Mr. Munshaw, the learned counsel appearing for the Corporation clarified that the GCSRs are not applicable in the case in hand. The Corporation has framed its own rules called the Gujarat State Civil Supply Corporation Limited (Discipline and Appeal) Rules, 1984. Mr. Munshaw, however, clarified that by and large, they are identical to the GCSRs, 1971.

11. Mr. Munshaw would submit that the disciplinary authority did record few reasons for his disagreement with the findings recorded by the Inquiry Officer. According to Mr. Munshaw, the disciplinary authority did state in the second showcause notice that it was not possible for him to concur with the Inquiry Officer's report as although there was a mechanism by which the quantity of the oil could be measured, the same was not done by the writapplicant thereby reflecting on his lack of good faith and devotion towards the duty.

12. Mr. Munshaw would submit that the charge against the writ applicant is quite serious as he was dealing with the Essential Commodities like the Pamolin Oil. He would further submit that the order passed by the disciplinary authority was also affirmed by the appellate authority. He would submit that there being no merit in this writapplication, the same be rejected.

13. 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 writapplicant is entitled to any of the reliefs prayed for in this writapplication.

14. I am not convinced with the manner in which the disciplinary authority acted while issuing the second showcause notice. In my view, Page 4 of 13 HC-NIC Page 4 of 13 Created On Sat Oct 22 06:48:37 IST 2016 the issue is squarely covered by the decision of this Court in the case of 'Harshaben B. Patel Vs. State of Gujarat and Ors.'; Special Civil Application No.9424 of 2003, decided on 29/08/2016. I may quote the observations made in Paragraphs13 to 14, as they are relevant, are as under: 13.In my view, the error is apparent on the face of the order. As noted above, there were two charges levelled against the writ applicant. First of unauthorized absence for the period between 20th May, 1993 and 25th June, 1994, and secondly, applying for the passport for the purpose of visiting London without obtaining the No Objection Certificate from the head of the department. So far as the second charge is concerned, the Inquiry Officer found the same to have been established. If the Disciplinary Authority wanted to disagree with the findings recorded by the Inquiry Officer in this regard, then he should have recorded reasons for such disagreement and should have conveyed such reasons to the writ applicant with a view to give her an opportunity to meet with the same. Having failed to do so, the same has rendered the impugned order vulnerable and illegal. In this regard, I may profitably refer to the decision of the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra reported in AIR 1999 SC 3734 where the Supreme Court in the light of rule 9 of the maharashtra civil services (discipline & appeal) rules, 1979, made the following observations; What action would be taken on this report and in what manner will this report be dealt with is indicated in Rule

9. Relevant portions of this Rule are quoted below : "9. Action on the inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report, and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 8 of these rules as far as may be. (2) The disciplinary authority shall if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. If it disagrees with the findings of the inquiring Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Oct 22 06:48:37 IST 2016 authority on any article of charge, it shall record its reasons for such disagreement. (3) ................................ (4) (i) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the major penalties should be imposed on the Government servant, it shall (a) furnish to the Government servant, a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge expressly stating whether or not it agrees with the findings of the inquiry authority, together with brief reasons for its disagreement, if any, with the findings of the inquiring authority; and (b) give to the Government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 8 of these rules.

(ii) (a) ................................. (b) .................................

(iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under clause (i)(b) of this subrule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the inquiry held under rule 8 and make such order as it may deem fit."

28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Oct 22 06:48:37 IST 2016 to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty' by the Inquiring Authority, is found `guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.

29. We have already extracted rule 9(2) of the maharashtra civil services (discipline & appeal) rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Oct 22 06:48:37 IST 2016 he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.

30. Recently, a threeJudge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra (1998) 7 SCC 84 = AIR 1998 SC 2713, relying upon the earlier decisions of this Court in State of Assam vs. Bimal Kumar Pandit (1964) 2 SCR

1 = AIR 1963 SC 1612; Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. (1986) 4 SCC 537 as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors. (1993) 4 SCC 727 and the decision in Ram Kishan vs. Union of India (1995) 6 SCC 157, has held that : "It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."

31. The Court further observed as under : Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Oct 22 06:48:37 IST 2016 "When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry office and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."

32. The Court further held that the contrary view expressed by this Court in State Bank of India vs. S.S. Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs. M.C. Saxena (1998) 3 SCC

385 was not correct.

33. In view of the above, a delinquent employee has the right of hearing not only during during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Oct 22 06:48:37 IST 2016 or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article

309 of the Constitution.

34. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (Enquiry Officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. It is true that along with the showcause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in rule 9(4)(i)(a)&(b). He was called upon to showcause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21st June, 1993 which provide as under: "Decision : Discussed. For the reasons recorded in Annexure "A" hereto, the Committee disagrees with the finding of the Enquiry Officer and finds that the charges levelled against the delinquent Judicial Officer have been proved. It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service. Let notice, therefore, issue to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Oct 22 06:48:37 IST 2016 Rules, 1979 should not be imposed upon him. Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee." These minutes were recorded after the Disciplinary Committee had considered the Enquiry Report and differed with the findings and recorded its final opinion in para 10 of its reasons as under: "10. The Disciplinary Committee is of the opinion that the findings recorded by the Enquiry Officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a Judicial Officer who has failed to maintain the absolute integrity in discharge of his judicial duties."

35. Pursuant to the above minutes, a notice dated 24.6.93 was issued to the appellant which after reproducing the minutes of the Meeting of the Disciplinary Committee proceeded to say as under: "As required by the Disciplinary Committee I issue this notice calling upon you to showcause why the penalty of dismissal from service should not be imposed upon you in view of the charges held established. Time of 15 days, from the date of receipt of this notice, is given to you for submitting your reply, failing which it shall be presumed that you do not wish to make any representation regarding the penalty. A copy of the report of the Enquiry Officer dated 21.12.92 and a copy of Annexure `A' are enclosed herewith for ready reference. Yours faithfully, Registrar"

36. Along with the showcause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to showcause only against the punishment proposed by the Disciplinary Committee which had already Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Oct 22 06:48:37 IST 2016 taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a tentative decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.

37. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a ThreeJudge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra, (1998) 7 SCC 84 = AIR 1998 SC 2713, referred to above, were violated. [emphasis supplied by us]

14. Applying the above principle to the facts of the present case, it is apparent that the Disciplinary Authority not having formed a tentative opinion regarding its findings disclosing reasons for disagreement with the view adopted by the inquiring authority on the charge No.2 and having simply issued a notice to showcause why the delinquent should not be dismissed from the service, on the basis of such showcause notice, the writ applicant herein could not have been dismissed from the service.

15. Let me assume for the moment as contended by Mr. Munshaw that some reasons have been assigned by the Disciplinary Authority. However, it was not told to the writapplicant that the Disciplinary Authority had come only to a tentative decision and that he could show cause against that too. Along with the showcause notice, the copy of the findings recorded by the Inquiry Officer as also the socalled reasons recorded by the Disciplinary Authority for disagreeing with those findings were communicated to the writapplicant, but it was immaterial as he was required to showcause only against the punishment proposed by the Disciplinary Authority, which had already taken a final decision that the charges against the writapplicant were proved.

16. In view of the above, this writapplication succeeds in part. The Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Oct 22 06:48:37 IST 2016 impugned orders passed by the Disciplinary Authority as well as the Appellate Authority are hereby ordered to be quashed and set aside. The matter is remitted to the Disciplinary Authority. The Disciplinary Authority shall assign reasons for disagreement and give an opportunity to the writapplicant to meet with those. After the reply of the writ applicant, the Disciplinary Authority shall proceed further in accordance with law as explained by this Court in the above referred judgment. Let this exercise be undertaken within a period of two months from today. If the writapplicant is dissatisfied with the order, that may be passed by the Disciplinary Authority, it shall be open for him to challenge the same by availing of an appropriate legal remedy before the appropriate forum in accordance with law. Rule is made absolute to the aforesaid extent. (J.B.PARDIWALA, J.) aruna Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Oct 22 06:48:37 IST 2016