N.R. Pardeshi vs State of Gujarat

Mr. Biren Vaishnav, J.(Oral) - By way of this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order of penalty dated 10.08.2005 as well as the letter dated 24.08.2005 by which the petitioner has been imposed with a penalty of 100% cut in pension.

It is the case of the petitioner that a charge-sheet was issued to the petitioner on 31.03.2002 for holding a departmental inquiry into the allegation interalia to the effect that though the petitioner was not an ''Adivasi'', he had produced a certificate to that effect and obtained appointment and promotion on the basis of such certificate. After a regular departmental inquiry held against the petitioner, a penalty of pension cut of 100% was imposed.

Mr. Ashok Purohit, learned advocate for the petitioner has, therefore, canvassed the submission that in view of the decision in the case of B.J. Jadav (supra) and the decision rendered by this court in Special Civil Application No. 15316 of 2004 dated 08.12.2004 and in view of the decision rendered in the case of Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589 and the decision in the case of Union of India & Others v. R.P. Singh, AIR 2014 SC 2541, non supply of the materials relied upon in the departmental inquiry would violate the principles of natural justice and therefore the GPSC advice which had formed a part of the decision making authorities'' discretion to impose the penalty ought to have been supplied to the petitioner. It was further submitted by Mr. Purohit that apparently from the perusal of the impugned order dated 10.08.2005, an order of penalty was a non-speaking order and in view of the judgement dated 10.09.2003 passed by this court in Special Civil Application No. 499 of 1999 which was confirmed by the Division Bench of this court in Letters Patent Appeal No. 50 of 2005 (Annexures J and K to the petition respectively), absence of reasons renders the order of penalty bad.

Mr. Pranav Trivedi, learned Assistant Government Pleader appearing for the respondents is not in a position to dispute the fact that though the order of penalty was passed after taking into consideration the advice of the GPSC, no such copy was furnished to the petitioner. He is not in a position to dispute the fact that the order of penalty impugned in the petition suffers from vice of non application of mind inasmuch as no reasons have been assigned in the order imposing reduction of pension to the extent of 100%.

Several contentions have been raised in this petition. However, this petition can be decided on the short ground raised herein that while imposing penalty of pension cut vide impugned order dated 10.08.2005, the respondents have relied upon an advice of the Gujarat Public Service Commission which has not been served to the petitioner before passing the impugned order dated 10.08.2005. The petitioner has with the petition produced a judgement of this court in the case of B.J. Jadav v. State of Gujarat, 2005(2) GLH 334 wherein this court taking into consideration the provisions of Article 311(2), 323 and the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 had observed that from the rule position, it can be seen that before imposing a penalty, the Gujarat Public Service Commission (hereinafter referred to as ''the GPSC'') is to be consulted. Under sub-rule (4) of Rule 10 of the said Rules, it is incumbent upon the Government to take into consideration the advice of the GPSC in every case where it is necessary to consult the commission before imposing any punishment on the Government Servant. Therefore, it is apparent that the advice of the GPSC would carry substantial persuasive value with the Government and form an important factor for the Government in arriving at the conclusion regarding the guilt or otherwise of the Government servant and the punishment to be imposed upon him. This court taking into consideration this rule position, therefore, held that the advice of the GPSC forms a vital material which the Government took into consideration before imposing the punishment on the petitioner and held that therefore in accordance with the judicial pronouncements it was incumbent upon the authorities to supply a copy of the advice of the GPSC so as to meet with the tenets of principles of natural justice.

On these counts alone, the present petition deserves to be allowed. Accordingly, the following order is passed:

(I) The order dated 10.08.2005 imposing 100% reduction in pension passed by the respondent authorities is therefore quashed and set aside.

(II) The matter is remanded to the respondent authorities so as to proceed further from the stage of the supply of the copy of the advice of GPSC to the petitioner and invite a representation from the petitioner with respect to the same.

(III) It is clarified that the copy of the advice referred to in the impugned order shall be supplied to the petitioner within a period of four weeks from the date of receipt of the writ of the order of this court and the petitioner on receipt of such copy of advice of GPSC shall make a representation within a period of two weeks therefrom.

(IV) Looking to the advanced age of the petitioner, the respondents shall on such representation being made by the petitioner, pass fresh order within a period of two weeks therefrom taking into account the representation made by the petitioner.

(V) It also needs to be mentioned that the order so passed subsequent to the copy of the advice being supplied and representation being made, would be a reasoned order and would not compel the petitioner once again to raise the grievance voiced in this petition.

(VI) Needless to say that once the order of reduction of penalty of 100% cut of pension is quashed, pending the exercise as aforesaid, the respondent shall consider paying the petitioner at least the provisional pension to the extent of 100% in view of the fact that once the order of penalty has been quashed and set aside, there exists no order and therefore the petitioner is entitled to pensionary benefits pending further action as directed herein above.

(VII) It is clarified that this court has not entered into the merits of the matter and therefore the authorities may not be influenced by the remand order passed by this court.

Petition is allowed to the aforesaid extent. Rule is made absolute accordingly.