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TMI Blog2016 (2) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... priate to remand the matter to the Disciplinary Authority. - SPECIAL CIVIL APPLICATION NO. 2109 of 2002 - - - Dated:- 23-2-2016 - SMT. ABHILASHA KUMARI, J. FOR THE PETITIONER : MS VIDHI J BHATT, ADVOCATE FOR THE RESPONDENT : MS VACHA DESAI, ASSISTANT GOVERNMENT PLEADER C.A.V. JUDGMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioner (since deceased, through his legal heirs), has challenged the order dated 05.11.2001, passed by the Disciplinary Authority (respondent No.1), whereby, the penalty of reduction in pension by ₹ 200/per month, for a period of five years, has been imposed upon him. 2. Briefly stated, the factual matrix of the case is as follows: 2.1 The petitioner was initially recruited and appointed as a Junior Clerk, with effect from 02.05.1964. Thereafter, he was promoted as a Senior Clerk and, later on, as a Sales Tax Inspector, with effect from 16.08.1971. 2.2 One M/s.Umiya Industries (Oil Mill) had tendered an application for getting a Registration Certificate under Section 30 of the Gujarat Sales Tax Act, 1969, on 23.10.1993. The Sales Tax Officer No.II, Junagadh, forwarded the said appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner commenced on 17.08.1998. The petitioner appeared before the Inquiry Officer and submitted his defence statement on 01.09.1998. 2.6 On 02.11.1998, the Inquiry Officer levied an additional Charge to the effect that after issuing the Registration Certificate to M/s.Umiya Industries on 17.12.1992, the petitioner did not verify as to whether the firm was still functioning, whether there is any change in the type of business and whether the requisite registers have been maintained, or not. The additional charge also included the aspect that the petitioner did not conduct any verification with regard to the representations made by the firm and though the actions of the firm were found to be suspicious, the petitioner showed dereliction of duty by not initiating appropriate action against it. The petitioner gave a detailed reply to all the Charges on 11.11.1998. 2.7 After taking into consideration the entire material on record, the Inquiry officer, by his Report dated 04.01.1999, concluded that the Charges levelled against the petitioner were not proved. 2.8 On 11.04.2000, the Disciplinary Authority issued a Show Cause Notice to the petitioner, stating that it did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Authority gives specific reasons for disagreement in the Show Cause Notice, it would be difficult for the delinquent to satisfactorily give reasons as to why the Disciplinary Authority ought to have agreed with the findings of the Inquiry Officer. In the absence of any grounds or reasons in the Show Cause Notice, it would remain an empty formality, causing grave prejudice to the delinquent officer and resulting in injustice to him. 6. It is further contended that in the present case, it seems that the Disciplinary Authority, with a predetermined mind, issued a second Show Cause Notice to the petitioner, who is merely being used as a scapegoat to make him responsible for the alleged bogus billing activities done by M/s.Umiya Industries. This is evident from the fact that the Disciplinary Authority, while issuing the second Show Cause Notice, did not give any tentative reasons or record its own findings for disagreeing with the findings of the Inquiry Officer. If the Disciplinary Authority had anything substantial against the petitioner, it would have recorded tentative reasons and findings for disagreeing with the Inquiry Officer s report. The act of issuing the second Show Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in (2011) 4 SCC 589, in the case between Union Of India v. S. K. Kapoor, the Supreme Court has held that if the authorities consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Otherwise, it would result in a violation of the principles of natural justice. 11. Further, Rule 12 of the Discipline and Appeal Rules, also states that the Disciplinary Authority is required to provide a copy of the advice taken from the Gujarat Public Service Commission. 12. Learned counsel for the petitioner has submitted that the petitioner passed away on 14.01.2008, and his heirs and legal representatives have been brought on record. Nineteen years have passed since the Chargesheet was issued. The penalty order was passed on 5.11.2001. As more than fourteen years have elapsed since the penalty order was passed, the entire record, evidence or relevant documents might not be available with the authorities and/or the petitioner s legal heirs. Further, the legal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been done . Thus, the reasoning is there. 18. The second reason for disagreement is about the spot inspection on 02.02.1993. It is stated that there is reason to believe that the petitioner gave a wrong report and no steps were taken to cancel the registration certificate and no noting on the file was made or communicated to the Sales Tax Inspector. The petitioner indirectly helped the businessmen and thus amounting to a serious dereliction of duty and lack of devotion to his duty. The petitioner has acted in a manner that raises suspicion about his integrity. The Disciplinary Authority has, therefore, recorded the reasons for disagreement, and its own findings as required under Rule 10(2). Moreover, as required under Rule 12, a copy of inquiry report, reasons for disagreement and a brief statement of the reasons for such non acceptance, and the advice of the GPSC were communicated, therefore, the requirements of the said rule were fulfilled. Learned Assistant Government Pleader submits that the advice of the GPSC dated 30.06.2001 was sent along with the penalty order. As the matter is an old one, due to lack of record, no specific statement can be made that the advice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to allow the Disciplinary Authority to record reasons for disagreement with the findings of the Inquiry Officer and its own findings on such charge. 23. It is settled law that the findings recorded by the Disciplinary Authority while disagreeing with the findings recorded by the Inquiry Officer, are to be tentative in nature, as has been laid down by the Apex Court in several judgments. 24. In Yoginath D.Bagde v. State of Maharashtra And Another (supra), the Supreme Court has held as below: 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the showcause notice it amount to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. ... ... ... 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Misra (supra), similar principles of law have been propounded. 28. From the principles of law enunciated in the abovequoted judgments of the Supreme Court, read with the provisions of subrule (2) of Rule 10 of the Discipline and Appeal Rules, it can clearly be deduced that in the event that the Disciplinary Authority disagrees with the findings of the Inquiry Officer, it is incumbent upon it to record tentative reasons for such disagreement and to provide an opportunity of hearing to the delinquent officer. If no reasons have been indicated in the Show Cause Notice communicating the reasons for disagreement, the delinquent employee cannot be expected to put up an effective defence, as he would not be in a position to know the tentative reasons why the Disciplinary Authority disagrees with the findings of the Inquiry Officer. He would, therefore, be put in a thoroughly disadvantageous position, even if he is granted an opportunity of hearing. Such an opportunity of hearing would be ineffective and inadequate and more in the nature of an empty formality, giving the impression of an outward compliance with the principles of natural justice, even when the spirit and substance of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Inquiry Officer, that are required to be communicated to the delinquent employee so that such employee gets an adequate opportunity of meeting with the tentative reasons. 33. It clearly transpires from a perusal of the reasons for disagreement recorded by the Disciplinary Authority that the requirements of Rule 10(2) of the Discipline and Appeal Rules have not been met with, as no reasons have been recorded. It is clear that the Disciplinary Authority has failed to communicate the reasons for disagreement, as laid down by the Supreme Court in the abovequoted judgments. 34. The net result of the above discussion is that, due to the lack of tentative reasons being communicated to the petitioner, he is unable to make a representation addressing those specific reasons. The opportunity of hearing granted to the petitioner can hardly be called effective or adequate. It is more in the nature of an empty formality to show an outward compliance with the Rules and law. In effect, the principles of natural justice have clearly been violated and the petitioner has suffered prejudice and injustice due to such violation. 35. Further, the tone and tenor of the socalled reasons for disa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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