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TMI Blog2016 (2) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sales Tax Officer No.III, UnitII, Junagadh with effect from 02.12.1992. Thereafter the petitioner was transferred to the office of Sales Tax Officer No.II, UnitII, Junagadh, with effect from 18.05.1993. 2.2 The services of the petitioner were placed under suspension vide order dated 02.02.1996, with his Head Quarter at Junagadh, on the ground that during the scrutiny of the documents produced by one M/s.Shrinathji Industries (Oil Mill), Shahpur, Taluka: Vanthali, in support of its application for granting Registration Certificate under Section 30 of the Gujarat Sales Tax Act, 1969, no proper scrutiny was carried out by the petitioner before the Registration Certificate was granted to the said firm. The said firm had collected sales tax and committed evasion of sales tax by indulging in bogus billing activities. 2.3 A Chargesheet dated 24.01.1997, containing one Article of Charge, was issued to the petitioner. The allegation against the petitioner was that while discharging his duties at Unit2, Junagadh, the petitioner was asked to examine the application of M/s.Shrinathji Industries, Shahpur, for obtaining the Registration Certificate under the local and Central Sales Tax Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 specify on what grounds the Disciplinary Authority does not agree with the Inquiry Officer's findings. In fact, the notice only reiterates allegations No.(2), (6) and the additional charge. The Disciplinary Authority has not recorded its tentative reasons for disagreement with the findings of the Inquiry Officer. The Disciplinary Authority has exercised power in a manner not provided for in subrule (2) of Rule 10 of the Discipline and Appeal Rules, resulting in a breach of the said mandatory provisions. It is submitted that the noncompliance of the above mandatory provisions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reeing 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 stoppage of one increment of Rs. 175/in his current pay in the payscale of Rs. 55001759000 with reduction to a lower stage by one stage for a period of five years with future effect. 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 overturn the said findings, there had to be an application of mind to the record of inquiry and specific findings for rejecting the case of the petitioner have to be recorded. The Disciplinary Authority is akin to an Appellate Authority and therefore, while exercising power, it has to disclose the reasons for disagreeing with the findings recorded by the Inquiry Officer. The Disciplinary Authority has not relied on any document/evidence to arrive at a different finding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njit Singh v. Union of India And Others ( 2006) 4 SCC 153 (para 21) 13. The petition has been opposed by Ms.Vacha Desai, learned Assistant Government Pleader. It is submitted that a huge scam was unearthed by the Collector, Junagadh, involving ten employees. After proper verification, necessary action was initiated, resulting in delay in the initiation of proceedings. However, it cannot be contented that petitioner was victimized or prejudicial treatment was given to him. 14. It is submitted that the Inquiry Officer, in his Report, has held that the charges against the petitioner are not proved. The provisions of Rule 10 (2) and 12 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, have been duly complied with by the Disciplinary Authority and there is no procedural lapse. 15. It is contended that in the statement of disagreement by the Disciplinary Authority, the charge and tentative reasons are specifically stated. In the reasons for disagreement, the first line states the facts whereas the second line states the reason that sufficient care is not taken while determining the amount of surety based on the tax to be calculated annually. Therefore, the first line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (3) ... ... ... (4) ... ... ..." (emphasis supplied) 20. A perusal of the above rule, therefore, makes it amply clear that the Disciplinary Authority is obliged to record reasons for disagreement with the findings of the Inquiry Officer on any article of charge, as also its own findings on such charge, if the evidence on record is sufficient for the purpose. In the present case, the evidence on record is, no doubt, sufficient to allow the Disciplinary Authority to record reasons for disagreement with the findings of the Inquiry Officer and its own findings on such charge. 21. 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. 22. 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 disciplin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report of he may offer additional reasons in support of the findings by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree 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 art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided fo r in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review." (emphasis supplied) 25. In Ranjit Singh v. Union of India And Others (supra), relying upon the judgment of the Supreme Court in Punjab National Bank And Others v. Kunj Behari Misra (supra), similar principles of law have been propounded. 26. 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 def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surety amount based on the estimated annual tax. Neither have the socalled flaws found by the Disciplinary Authority in the findings of the Inquiry Officer, been discussed. 29. The above statements are more in the nature of conclusions rather than tentative findings or reasons for disagreement with the findings of the Inquiry Officer. It is not the conclusion that the Disciplinary Authority proposes to arrive at that is relevant at this stage, but the tentative reasons for disagreement with the findings of the 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. 30. 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. 31. The net result of the above discussion is that, due to the lack of tentative reasons being communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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