State of Gujarat and Another vs V.B. Kachot

V.M. Sahai, J.—We have heard Mr. N.J. Shah, learned Assistant Government Pleader for the Appellant and Mr. Shalin Mehta assisted by Ms. Vidhi J. Bhatt appearing for the Respondent.

This Letters Patent Appeal has been filed challenging the judgment and order of the learned Single Judge dated 04.08.2010 passed in Special Civil Application No. 94 of 2002.

The Respondent was working as Junior Clerk with the Sales Tax department in Junagadh District. A charge-sheet was issued to him on 08.04.1994 and the departmental proceedings were held and the Inquiry Officer submitted a report on 31.05.1999 and he found that all the three charges levelled against the Respondent were not proved. The Disciplinary Authority disagreed with the report of the Inquiry Officer and informed the Respondent on 11.04.2000 calling for his explanation within 15 days. The Respondent submitted his reply on 24.04.2000. After considering the reply of the Respondent, order dated 05.11.2001 was passed by the Disciplinary Authority holding that the Respondent was guilty of the charges of misconduct and imposed punishment reducing the Respondent to the lowest pay in the scale for a period of 10 years with future effect. It was also clarified that during the period of punishment, the Petitioner shall not draw any increment. The Petitioner challenged the order dated 05.11.2001 in the writ petition. The learned Single Judge has allowed the writ petition by assigning following reasons:

6.1 The Disciplinary Authority has passed a short order differing from the report of the Inquiry Officer and has chosen not to assign any reason worth a name for differing from the view taken by the Inquiry Officer. He has failed to deal with the reasoning adopted by the Inquiry Officer on the basis of the evidence led before the Inquiry Officer. The Disciplinary Authority has observed that it is an accepted administrative fact that the issue register is kept by the Junior Clerk concerned. This is done to brush aside the reasoning adopted by the Inquiry Officer to the effect that there is no evidence to show that these forms etc. were kept in the custody of the Junior Clerk, i.e. the Petitioner and the instructions contained in the Circular dated 3.6.1992 also makes it abundantly clear. That Circular is at Annexure-Q and if that circular is examined, the last few lines of the Circular make it clear that Assistant Commissioner, while making inspection, should verify whether the Officer keeps the "C" Form book in his custody properly and whether while issuing "C" forms to the businessman, he verifies the identity of the businessman or not and whether rubber stamps are affixed or not, along with the entry number. This would mean that the register has to be kept by the Officer and not by the Junior Clerk and it is an administrative duty of that officer to verify the identity of the businessman to whom the forms are issued and to make proper entries in the register and corresponding endorsement on the form as to the entry number along with his seal. All these factors are brushed aside by one sentence that it is an accepted administrative fact.

6.2 As regards charge No. 2, the Inquiry Officer has observed that it is the fact that the Petitioner did not hand over the charge of the issue register while handing over the charge, but there is no evidence to show that the said register was being kept by the delinquent Petitioner and that it was lost while it was in custody of the delinquent. The successor in office of the delinquent who took charge on 7.4.1994 has also not raised any objection or point on this aspect until an inspection by the Collector on 17.7.1995. The successor in office has not drawn attention of any superior about non-receipt of the issue register. The Inquiry Officer concluded that it is difficult to come to a conclusion that it was lost during the tenure of the Petitioner. There is no material to know that it was given to the Petitioner when he took charge of the office or that it was with him while he was in the office. In fact, it is found that the superior of the Petitioner, who came to be retired after the Petitioner was transferred had signed that register, as it emerges from the evidence before the Inquiry Officer. In that eventuality, it could not have been concluded by the Inquiry Officer that the register was lost during the tenure of the Petitioner. In this regard, the Disciplinary Authority has only observed that the Petitioner has kept silent about the absence of register during his tenure and he has not reported the fact that the charge is not handed over to his successor in office.

6.3 As regards charge No. 3 to the effect that some of the books were found by the Collector when he inspected the place, which were lost during the time of the Petitioner, the Inquiry Officer observed that those forms which were found and seized by the Collector were not placed before him and, therefore, whether they were original and genuine is a question. Assuming for a moment that they were original and genuine, it connects Capt. Satish involved in the scam. The entire scandal appears to have been executed with refined pre-planning including preparation of rubber-stamp etc. and, therefore, possibility of those forms being not genuine has to be visualised. The view taken by the Inquiry Officer has not even been considered by the Disciplinary Authority while differing from him in the order dated 1.6.1999.

Thus, the order dated 1.6.1999 whereby the Disciplinary Authority concluded that the charges are proved against the Petitioner is unsustainable and if that order is unsustainable, the consequential order passed after completing the formality of hearing the Petitioner on 5.11.2001 would also be rendered unsustainable. Both the orders cannot be permitted to stand.

We are in agreement with the view taken by the learned Single Judge. We do not find any illegality in the impugned order passed by the learned Single Judge. This appeal fails and is accordingly dismissed.

In view of the order passed in the main appeal, no orders are required to be passed in Civil Application and it is also dismissed accordingly.