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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 ..... on 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 application to the petitioner, for scrutiny. It is the case of the petitioner that on 13.11.1992, he heard the partner of M/s.Umiya Industries personally, scrutinised the documents on record and after visiting the business premises, on 14.12.1992, directed the Registration Certificate to be given to one M/s.Umiya Industries, on 17.12.1992. 2.3 The services of the petitioner were placed under suspension vide order dated 02.02.1996, passed by the Sales Tax Commissioner (respondent No.2), fixing the HeadQuarters at Junagadh, on the ground that the scrutiny of the documents produced by M/s.Umiya Industries in support of its application for registration under the Sales Tax Act was not carefully done by the petitioner and it was revealed that M/s.Umiya Industries committed an evasion of Sales Tax by practicing bogus billing activities. 2.4 A Chargesheet was issued to the petitioner on 24.01.1997. The single article of charge against him was to the effect that while discharging his duties at Unit No.2, Junagadh, the petitioner, in his capacity as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner were not proved. 2.8 On 11.04.2000, the Disciplinary Authority issued a Show Cause Notice to the petitioner, stating that it did not agree with the findings recorded by the Inquiry Officer and asking him to make a final representation. On 08.05.2000, the petitioner replied to the said Show Cause Notice, in detail. The Disciplinary Authority did not accept the reply of the petitioner and vide the impugned order dated 05.11.2001, imposed the penalty of deduction of Rs. 200/per month from the pension of the petitioner, for a period of five years. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 3. Ms.Vidhi J.Bhatt, learned advocate for the petitioner has submitted that as per subrule (2) of Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ("the Discipline and Appeal Rules"), if the Disciplinary Authority disagrees with the findings of the Inquiry Officer on any article of charge, then it has to record the reasons for such disagreement as also its own findings on such charge, if the evidence on record is sufficient for the purpose. 4. It is further submitted that the said Show Cause Notice does not specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded tentative reasons and findings for disagreeing with the Inquiry Officer's report. The act of issuing the second Show Cause Notice is only a farce to show that the Disciplinary Authority has complied with the principles of natural justice. In fact, the principles of natural justice have been violated in this case because the petitioner did not get a fair hearing before the Disciplinary Authority. 7. It is next submitted that the petitioner submitted his reply to the second Show Cause Notice dated 11.4.2000, on 8.5.2000. Unaware of the specific reasons for disagreeing with the findings of the Inquiry Officer, the petitioner gave a detailed reply dealing with allegations No. (2), (6) and the additional charge. On 5.11.2001, the Disciplinary Authority passed the penalty order of deducting Rs. 200 per month from petitioner's pension for a period of five years. In the said order, the Disciplinary Authority has simply stated that the representation made by the petitioner on 8.5.2000 to the second Show Cause Notice dated 11.4.2000, is rejected. 8. It is submitted that the findings of the Inquiry Officer were in favour of the petitioner. If the Disciplinary Authority wanted to ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents might not be available with the authorities and/or the petitioner's legal heirs. Further, the legal heirs of the petitioner may not be able to represent the case effectively. Therefore, in the interest of justice the proceedings may not be remanded back to Disciplinary Authority from the stage of the second Show Cause Notice. 13. Lastly, it is submitted that the petitioner was suspended from duty on 2.2.1996 and the suspension order was revoked on 2.9.1998. The respondent authority, while passing the penalty order has not said anything about the manner in which the suspension period is required to be treated, therefore, the Competent Authority may be directed to pass an order as to how the period of suspension should be treated. 14. In support of the above submissions, reliance is placed on the following decisions: (i) Yoginath D.Bagde v. State of Maharashtra And Another ( 1997) 7 SCC 739 (ii) Punjab National Bank And Others v. Kunj Behari Misra ( 1998) 7 SCC 84 (iii) Mathura Prasad v. Union of India And Others ( 2007) 1 SCC 437 (iv) Ranjit Singh v. Union of India And Others ( 2006) 4 SCC 153 (v) D.L.Sharma v. D.S.Shukla and or his Successor in office and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to lack of record, no specific statement can be made that the advice was not served prior to the passing of the penalty order, or otherwise. Assuming, but not conceding that the advice of the GPSC was not communicated at the relevant point of time, in that case, it would vitiate the proceedings only from the relevant stage and not prior thereto. 19. Learned Assistant Government Pleader has submitted that the reply of the petitioner to the Show Cause Notice has been considered by the Disciplinary Authority before passing the order of penalty, as stated in the order. It is submitted that, as tentative reasons for disagreement have been given by the Disciplinary Authority, the impugned order ought to be confirmed. Learned Assistant Government Pleader further contends that considering the nature of the charges, the punishment imposed is just and proper and may not be interfered with. 20. Regarding the judgments cited on behalf of the petitioner, it is submitted that they merely lay down propositions of law, which have been duly complied with by the respondents. Even otherwise, the facts of each case have to be seen before applying the ratio of those cases to the facts of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disciplinary authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that 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 office r 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 th e finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with." (emphasis supplied) 25. In Punjab National Bank And Others v. Kunj Behari Misra (supra), relied upon on behalf of the petitioner, the same principle of law has been reiterated in the following manner: "14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." (emphasis supplied) 26. In Mathura Prasad v. Union of India And Others (supra), the Supreme Court has held as below: "18. Even if the enquiry officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. SubRules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further enquiry may be issued in terms of subrule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance is missing. 29. Per contra, it has been argued on behalf of the respondentState that the reasons for disagreement have been stated in the impugned order, inasmuch as the first line of the Show Cause Notice dated 11.04.2000, contains the grounds for disagreement with regard to Charges and the rest of the paragraph(s) pertaining to the said relevant articles of charge contain the reasons. On the basis of the above argument, the learned Assistant Government Pleader has urged that the mandate of subrule (2) of Rule 10 has been followed. 30. If the grounds for disagreement issued by the Disciplinary Authority along with the second Show Cause Notice dated 11.04.2000 are perused, it is revealed that, insofar as Charge No.2 is concerned, the said article of charge has merely been reiterated and it has been stated that the petitioner did not take sufficient care in determining the surety amount based on the estimated annual tax. These can hardly be stated to be tentative reasons for disagreement with the findings of the Inquiry Officer, which are based on voluminous evidence discussed in the Inquiry Report. In fact, no tentative reasons have been given by the Disciplinary Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Disciplinary Authority makes it clear that a conclusion has already been arrived at after stating the Charge, indicating the predetermined mindset of the Disciplinary Authority. 36. Having arrived at the above conclusion, this Court does not consider it appropriate to deal with the contention regarding the nonPage communication of the advice of the GPSC before passing the impugned order. At this stage, it only remains to be decided whether the matter is to be remitted back to the Disciplinary Authority, for fresh hearing from the stage of the issuance of the reasons for disagreement, or not. 37. On this aspect of the matter, learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in Punjab National Bank And Others v. Kunj Behari Misra (supra), wherein, the Supreme Court has held as below: "21. Both the respondents superannuated on 31st December, 1983. During the pendency of these appeals Misra died on 6th January, 1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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