Oral Judgment:
1. Heard Mr. Rashesh Rindani, learned Assistant Government Pleader for the petitioner â State.
2. In the present petition, the petitioner has prayed that :-
âYour Lordships be pleased to issue appropriate writ, order or direction quashing and setting aside the order passed by the Learned Gujarat Civil Services Tribunal at Gandhinagar in Appeal No.20 of 2007 dated 25.10.2011, in the interest of justice.â
3. Thus, the petitioner is aggrieved by order dated 25.10.2011 passed by learned Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.20 of 2007.
4. So far as the said order dated 25.10.2011 is concerned, the relevant â operative part of the order reads as under : -
âThe appeal succeeds partly. The order of Inspector General of Prisons dated 02.10.2007 is quashed and set aside. The matter is remanded back to the disciplinary authority to start proceeds from the stage of issuing a fresh chargesheet and conduct of proceedings as discussed in the body of judgment. Pronounced this on 25th day of October, 2011.â
5. On examination of the record and particularly the impugned order, it emerges that after considering the entire material on record, learned Tribunal found that proceedings before the disciplinary authority and the order passed by disciplinary authority suffer from certain serious infirmities which render the decision of disciplinary authority i.e. order dated 25.10.2011 defective. Therefore, learned Tribunal considered it appropriate to remand the matter for fresh decision after conducting the proceedings afresh from the stage of issuing fresh chargesheet. For the said purpose, learned Tribunal has remanded the matter to the disciplinary authority with directions to conduct the proceedings afresh from the stage of fresh chargesheet.
6. The petitioner State is aggrieved by the said decision.
7. Learned AGP for the petitioner State has submitted that there is no defect in the inquiry proceedings and / or the order passed by disciplinary authority. He also submitted that learned Tribunal has committed error in holding that the proceedings conducted pursuant to the chargesheet were defective. He also submitted that relevant and applicable procedure was followed by Inquiry Officer and disciplinary authority and order came to be passed after considering the material on record and, therefore, there was no justification for the learned Tribunal to hold that the proceedings were defective and to set aside the order of penalty or for remanding the proceedings to disciplinary authority.
8. I have considered the submissions made by learned AGP and also examined the material available on record of the present petition.
9. So as to appreciate the challenge raised by the petitioner State against the impugned order passed by learned Tribunal, it is appropriate to take into consideration certain factual background.
10. It appears that in or around May, 1999, in view of reported act of omission and / or commission amounting to misconduct, the respondent was served with a chargesheet alleging, inter alia, that the respondent - employee was responsible for misappropriation of Rs. 34,615/-. One Mr. T.N. Patel, Incharge Office Superintendent was also served with a chargesheet. It appears that before issuing chargesheet the petitioner had also conducted preliminary inquiry and after such preliminary inquiry, the chargesheet was issued. The allegations â charge seems to be related to misappropriation. Thus, the allegations appear to be of serious nature, more so because such acts were allegedly going on for since long time and money / earnings of prisoners were allegedly siphoned away / misappropriated.
11. The respondent submitted his reply in response to the said chargesheet. It appears that disciplinary authority did not find the reply satisfactory and, therefore, decision to conduct regular departmental inquiry against the respondent â employee was taken. In view of the said decision, Deputy Superintendent was appointed as Inquiry Officer. The Inquiry Officer conducted the proceedings and upon conclusion of the inquiry proceeding, the Inquiry Officer submitted his report / conclusion to the disciplinary authority.
12. According to the Inquiry Officer, the department failed to prove the charges. The disciplinary authority, after considering the report in light of the material on record, differed with the conclusion with the Inquiry Officer and that therefore, issued a show cause notice calling for petitioner's explanation and reply. The respondent â employee submitted his reply to the said show cause notice. After considering the entire material including the reply submitted by the respondent â employee in response to the said notice, the disciplinary authority came to the conclusion that charge is proved and, therefore, imposed penalty by order dated 17.10.2007. The disciplinary authority directed, by way of penalty, that the respondent - employee may be placed at the minimum stage of his payscale of Rs. 5,500 â 9,000/- for a period of one year with future effect. The disciplinary authority also held that the period of suspension may be considered as suspension. The disciplinary authority also held that since criminal case was lodged, the final decision as regards punishment would be considered after the decision in the said criminal case.
13. Aggrieved by the said order dated 17.10.2007 passed by the disciplinary authority, the respondent herein filed appeal before the learned Tribunal. The appeal was registered as appeal No.20 of 2008. After considering the material on record and the contentions raised by the respondent, the tribunal found that procedure followed by the inquiry officer was defective and the disciplinary authority's order deserves to be set aside.
14. The learned tribunal also found that the department should be permitted to conduct the proceedings afresh. Therefore, the learned Tribunal has remanded the matter to the disciplinary authority for fresh decision after conducting the proceedings afresh from the stage of chargesheet.
15. The petitioner â State is aggrieved by the said decision.
16. It is relevant to mention that learned Tribunal has recorded its reasons in support of its order dated 25.10.2011 and to justify the directions issued with order dated 25.10.2011.
17. In this context, it would be appropriate to refer to the observations made by learned Tribunal with regard to the proceedings of the departmental inquiry as well as the proceedings by and before the disciplinary authority. The relevant portion of learned Tribunal's order i.e. Para 10 and 11, read as under : -
â10. We have carefully gone through the inquiry report. In this report, the inquiry officer has mentioned the deposition made by the witnesses in the case including what is stated in the cross examination and then in the end, suddenly in one paragraph given, his finding that the charges are proved on the basis of recorded evidence and documents. The inquiry report mentioned about the arguments given by the presenting officer but there is no detail of what arguments were made by the Presenting Officer. The inquiry officer has to give a brief to the inquiry officer and copy of the same is provided to the delinquent employee for his response. The delinquent employee then has to give his final written defence statement. Thereafter, the inquiry officer should analys the pints raised for and against the charge and then give his finding. In the present case, there is no brief by the presenting officer, there is no final defence statement and the Inquiry officer has thus, given his finding without going through the procedure. As per rule-9(22)(c)(d) of Gujarat CivilServices (Discipline and appeal) rules, the report prepared by the inquiry officer should contain the assessment of evidence in respect of each articulate charge and the finding of the inquiry officer on each articulate of charge with reasons. It is quasi judicial function where the inquiry officer has to apply his judicial mind compare the evidence for and against and give his finding with justification on the basis of the available evidence. Since, the inquiry report lacks the provision of rule-9 cited above, the entire report in our view is vitiated. Moreover, as we want through report, it appears to us that there is a preliminary inquiry by Shri P. Gohil, Dy. Superintendent of Baroda Central Jail. The witnesses in their depositions before the inquiry officer have stated that they have given their statements before the preliminary inquiry officer. The inquiry officer also in his report has relied upon the statements recorded during preliminary inquiry. But, as we see in the chargesheet, the statements recorded before the preliminary inquiry officer was not a part of the documentary evidence. The Inquiry Officer has mentioned that the witness were shown their statements during preliminary inquiry but we do not find anything on record as to where from the inquiry officer got the preliminary inquiry statement when those statements were not part of the documentary evidence. We therefore, feel that the inquiry officer has given his finding, on the basis of records which were not produced during the inquiry and examination. The inquiry report is therefore totally vitiated.
11. It is a case where number of employees have been proceeded departmentally and it is also a case of misappropriation of money that was going on for years. The entire blame has gone on the office staff of various ranks. No doubt, it is a very serious matter that the money of prisoners are siphoned away by the officials. A criminal case has been instituted against Shri Mahida which is pending trial. The disciplinary authority is of opinion after holding the departmental inquiry that the appellant is guilty of negligence in his supervisory capacity, hence he is punished, the delinquent employee requires a fair trial before being punished. We feel that in this case, the departmental inquiry should have been conducted by an officer outside the department and following a proper procedure as prescribed in the rules. We do not find in the inquiry report and the proceeding that the presenting officer gave his brief after examination of witnesses and the appellant being given the opportunity to submit his defence statement. The inquiry officer while conducting a departmental inquiry has to apply his mind judiciously. He has to listen both the parties carefully, give them opportunity to express themselves on each count freely and analyse the same to came to a decision. In this case, the inquiry proceeding was held in a manner that shows a fair trial was not done. In view of the aforesaid discussions, we are of the view that the matter has to be remand back to the disciplinary authority to hold a departmental inquiry as per prescribed procedure as discussed in the body of the judgment.
In view of above discussions, the following order is issued. The appeal succeeds partly. The order of Inspector General of Prisons dated 02.10.2007 is quashed and set aside. The matter is remanded back to the disciplinary authority to start proceeds from the stage of issuing a fresh chargesheet and conduct of proceedings as discussed in the body of judgment. Pronounced this on 25th day of October, 2011.â
(emphasis supplied)
18. It emerges from the order that Inquiry Officer appears to have substantially relied on the statement recorded and material collected during preliminary inquiry i.e. in absence of â at the back of â the respondent and without his knowledge. On the other hand, what is relevant and material is the fact that though the said material was not supplied to the delinquent employee (i.e. respondent) and though the said material was not amongst the documents forming part of (and was not supplied with) the chargesheet, the inquiry officer substantially relied on the said material and he also formed / based his conclusion on the said material.
19. Thus, the statement/s recorded during preliminary inquiry and the material gathered during preliminary inquiry which were not recorded in respondent's presence and / or not gathered in his presence have been relied on by the Inquiry Officer to arrive at final conclusion. The reliance placed on the documents or statement/s which were not part of the documentary evidence of the chargesheet and which were not supplied to the delinquent amount to breach of fair play and principles of natural justice and vitiate the proceedings and Inquiry Officer's report.
19.1 This is one of the reasons in light of which disciplinary authority found the departmental inquiry and the proceedings defective.
20. The said view and decision can not be faulted. Any material or documents which is collected in absence of or at the back of delinquent, but are not supplied to the delinquent or the statements which are recorded in absence of the delinquent can not be relied on by the Inquiry Officer (to reach conclusion and to base his findings) without supplying the said material or documents or statements to the delinquent and without affording opportunity to the delinquent to rebut or explain the said material or documents or statements.
20.1 If any statements are recorded in absence of or at the back of â the delinquent and / or if any material is collected in absence of the delinquent (e.g. during preliminary inquiry or outside the proceedings of inquiry) and if the Inquiry Officer relies on such statements or material and if he forms and rests his conclusion on such material without supplying such material or documents or statements etc. to the delinquent and proceeds in light of and on strength of such material without affording opportunity to rebut or explain such material and / or to place on record other material to counter such material, then such irregularity would constitute fatal irregularity for the inquiry proceedings and the report / findings by the Inquiry Officer would be rendered vitiated on ground of breach of fair play and violation of principles of natural justice.
21. After scrutinizing the record of inquiry proceedings the learned Tribunal also, found that the Presenting Officer has not followed the procedure prescribed under Rule 9 (22) (c) and (d) of Gujarat Civil Services (Discipline and Appeal) Rules.
21.1 After examining the report of the Inquiry Officer the learned Tribunal has also held that the Inquiry Officer has not discussed and has not analysed the evidence and there is no application of judicial mind to the evidence submitted by delinquent and the Presenting Officer and the evidence is not duly evaluated by the Inquiry Officer before recording final conclusions.
22. When the Inquiry Officer submits his report, it should contain and reflect Inquiry Officer's own and independent findings and conclusions and such findings must be based on material / documents, statements etc. placed before him by the delinquent and the Presenting Officer.
22.1 Therefore, the report should reflect analysis and evaluation of evidence on the record, by the Inquiry Officer. Such evaluation and appreciation of evidence should be evident from the discussion in the report.
22.2 Absence of such discussion and evaluation of evidence would mean non-application of mind and casual or mechanical approach by the Inquiry Officer. This also is fatal for any inquiry proceedings.
22.3 When the material on record and the report of Inquiry Officer are examined in juxtaposition with the observations by the learned Tribunal, it emerges that the observations by the learned Tribunal are not incorrect or baseless or perverse or contrary to material available on record before the learned Tribunal. The discussion by learned Tribunal is based on the material on record placed before the learned Tribunal.
22.4 It is pertinent to note that even during the hearing of present petition, the petitioner â State could not assail the conclusion of the learned Tribunal that the material gathered during the inquiry i.e. statements which were recorded and the documents or other material which were collected during preliminary inquiry, was not supplied to the respondent, and they were also not made part of the chargesheet and the petitioner â State is also not able to assail the conclusion by the learned Tribunal that the proceedings are infected by breach of principles of natural justice and fair play and the inquiry officer failed to analyse and appreciate evidence and the petitioner â State also could not show anything from material on record that the findings by learned Tribunal are incorrect or contrary to record and contrary to evidence, then it cannot be said that the learned Tribunal committed any error in passing the order.
22.5 The State is also not able to demonstrate that the material collected and statements recorded during preliminary inquiry was supplied to the respondent i.e. the delinquent or that the said material was not at all relied by the Inquiry Officer in reaching the final conclusions.
22.6 In this view of the matter, it follows that the learned Tribunal has not erred in holding that the inquiry proceedings and the report of the Inquiry Officer are defective inasmuch as the report is based on such material, which was not supplied to the delinquent and which did not form part of the documentary evidence of the inquiry.
22.7 In present case the learned Tribunal has found such fatal irregularities and defects in the proceedings and in the report by the Inquiry Officer. It is not in dispute in present case that the said irregularities caused prejudice to the respondent and his defence.
23. Though learned Tribunal found such fatal irregularities, having reached such conclusion and findings and having regard to the gravity of charge â allegation, the learned Tribunal considered it appropriate to allow the petitioner â State to conduct the proceedings afresh so that the respondent may not go unpunished because of, and merely on strength of, any technical defect in conducting departmental inquiry. With the said object, learned Tribunal considered it appropriate to remand the matter to the disciplinary authority.
23.1 When such fundamental defects are noticed by the learned Tribunal which go to the root of the conduct of the proceeding and evaluation / appreciation of evidence by the Inquiry Officer and when the learned Tribunal also found breach of fair play and principles of natural justice, then in that event, decision of learned Tribunal to remand the matter for fresh proceedings and fresh decision cannot be faulted.
24. Having regard to the aforesaid aspects, it is not possible to hold that the order of learned Tribunal suffers from any infirmity or it has committed any error of law or jurisdiction.
25. The findings recorded by learned Tribunal cannot be said to be incorrect or unjust or arbitrary, much less perverse. The conclusion by the learned Tribunal are based on the material available on record. The conclusion is duly supported by the cogent reason and, therefore, the order does not call for any interference in petition under Article 227 of the Constitution of India.
26. Thus, on overall consideration of the facts and circumstances of the present case, it has emerged that the petition should fail and cannot be accepted. Accordingly, the petition fails and is rejected. No order as to costs.