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2016 (2) TMI 814 - GUJARAT HIGH COURT

2016 (2) TMI 814 - GUJARAT HIGH COURT - TMI - Challenge to the orders passed by the Disciplinary Authority - failure to discharge official duties in relation to granting Registration Certificate under Section 30 of the Gujarat Sales Tax Act, 1969 - Held 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 adeq .....

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years have elapsed since then. It may be possible that the entire record may not be available either with the authorities or the petitioner. In the view of this Court, no fruitful purpose would be served by remanding the case to the Disciplinary Authority to open up another innings. - this Court does not consider it appropriate to remand the matter to the Disciplinary Authority.

The impugned order dated 05.11.2001, passed by the Disciplinary Authority, is hereby quashed and set aside. .....

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ent of ₹ 175/in the petitioner s payscale for a period of five years, with future effect, 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 12.05.1975. He was, thereafter, transferred to the Sales Tax Department on 20.11.1976, and promoted as a Senior Clerk. The petitioner was promoted as a Sales Tax Inspector on 30.09.1991, and posted at Navsari. Thereafte .....

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pur, 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 .....

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he registration number, indulged in billing activities without doing any commercial manufacturing activities. It is further stated that the State Government was entitled to collect tax from M/s.Shrinathji Industries but no tax has been paid by it due to which a gross loss has been suffered by the State Government. Thus, the petitioner, in the process of examining the application for registration, has shown lack of devotion to duty and doubtful integrity. Resultantly, the petitioner was charged w .....

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Inquiry by the end of November 1998. Subsequent thereto, the Departmental Inquiry against the petitioner commenced on 17.08.1998. The petitioner appeared before the Inquiry Officer and submitted his defence statement on 01.10.1998. 2.5 On 02.11.1998, the Inquiry Officer levied additional Charge. The petitioner gave a detailed reply to all the Charges on 11.11.1998. 2.6 After taking into consideration the entire material on record, the Inquiry officer, by his Report dated 04.01.1999, concluded t .....

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he penalty of withholding one increment of ₹ 175/in the petitioner s payscale for a period of five years, with future effect. 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 In .....

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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 fatal, therefore, the proceedings stand vitiated. As a result, the punishment is also vitiated and the order of punishment is required to be quashed and .....

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hed by the Inquiry Officer, for the reasons given in the Inquiry Report. Unless the Disciplinary 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 an .....

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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 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 .....

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175/in his current pay in the payscale of ₹ 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 .....

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nalty order dated 5.11.2001, is, therefore, perverse as no reasons or evidence is discussed for rejecting the representation of the petitioner. 9. It is submitted that by way of filing an affidavitinreply, the respondents have tried to justify the penalty order dated 5.11.2001, by supplying fresh reasons. That, it is settled law that the Government must defend its action on the basis of the order itself and cannot improve or justify its stand by filing a subsequent affidavit. 10. Learned counsel .....

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be able to represent his case effectively. Moreover, the Disciplinary Authority has filed an affidavit in the present petition on 24.12.2002, thereby delaying the proceedings of the petition. Therefore, it is submitted that in the interest of justice the proceedings may not be remanded back to the Disciplinary Authority to proceed further from the stage of issue of the second showcause notice. 11. Lastly, it is submitted that the petitioner was suspended from duty on 02.02.1996 and the suspensi .....

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ginath D.Bagde v. State of Maharashtra And Another ( 1997) 7 SCC 739 (para 29) (iii) D.L.Sharma v. D.S.Shukla and or his Successor in office and Anr. Special Civil Application No. 7007 of 2001 decided on 12.12.2007 (paras 8, 9, 10, 12 to 14) (iv) Mathura Prasad v. Union of India And Others ( 2007) 1 SCC 437 (paras 18 and 19) (v) Ranjit 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 su .....

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e (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 annuall .....

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tted serious misconduct amounting to dereliction of duty and showed lack of devotion to duty. 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 were communicated. Therefore, the requirements of the said rule were fulfilled. 17. Learned Assistant Government Pleader submitted that the reply of the petitioner to the Show Cause Not .....

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t 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 present case. 19. In the background of the above submissions, the main contention raised by Ms.Vidhi J.Bhatt, learned counsel for the petitioner, is that while issuing the reasons for disagreement with the findings of the Inquiry Officer, the Disciplinary Authority h .....

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ecord 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 Authorit .....

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) 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 consona .....

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e 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. (emphasis supp .....

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as issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show cause to disagree with the conclusions reached by the enquiry officer an that, therefore, the findings based on that show cause notice was bad in law, a TwoJudge Bench at page 161 observed as follows: The purpose of the showcause notice, in case of disagreement with the findings of the enquiry officer, is to enable th .....

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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 resul .....

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ngs 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 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 .....

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vailable 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 that the conclusion arrived at by the enquiry officer on the basis of materi .....

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own under subRules are required to be strictly followed. It is now well settled that a judicial review would lie 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 Indi .....

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mbent 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 .....

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irst 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. 28. If the grounds for disagreement issued by the Disciplinary Authority along with the second Show Cause Notice dated 11.04.2000 ar .....

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not comply with the departmental instructions in this regard. It is stated that by taking into account one month s production capacity of goods to be manufactured, one month s tax is calculated and accordingly surety amount is determined and in this manner the petitioner indirectly helped the businessman for his billing activities. 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 .....

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h 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 .....

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portunity 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. 32. Further, the tone and tenor of the socalled reasons for disagreement given by the Disciplinary Authority makes it clear that a conclusion has already bee .....

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