K.S. BASATHIA Vs. STATE OF GUJARAT
LAWS(GJH)-2021-10-1498
HIGH COURT OF GUJARAT
Decided on October 22,2021

K.S. Basathia Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

BIREN VAISHNAV,J. - (1.)By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:
"25(A) Quashing and setting aside the order dt. 22/5/2008 and order dt. 11/10/2005 and direct the petitioner to reinstate the petitioner in service with all the consequential benefits with 12% interest."

(2.)The facts in brief are as under:
2.1 The petitioner was appointed in the Gujarat Administrative Services, Class-I, in December 1989. During his posting as Deputy District Development Officer, Amreli, the petitioner was placed under suspension on 5/8/1992. After about one year, on 16/7/1993, the petitioner was served with a charge sheet for holding a departmental inquiry. The charges in brief were as under:

Charge-I

Shri K.S. Basathia, former Deputy District Development Officer, Amreli has committed serious misconduct amounting moral turpitude and unbecoming of a Govt. Servant with the trainee nurses, mentioned in the statement of imputation, of Female Health Workers Nursing School, Amreli and has, thereby, violated Rules 3(1)(3) of Gujarat State Civil Services (Conduct) Rules 1971.

Charge-II

He has misused different Govt. Vehicles for his personal work as mentioned in the statement of imputation and in order to conceal it, he made false entries in the logbook for travelling during period 11/7/1992 to 14/7/1992 in the vehicle No. 6438 and prepared a false record and has shown dishonesty in receiving daily travelling allowances wrongfully whereby has committed fraud with the Government in violation of Rule 3(1)(1) of Gujarat Civil Services (Conduct) Rules 1971 for which he is responsible.

2.2 The appellant filed reply dtd. 24/11/1993 and denied the charges. The State Government did not feel satisfied with the explanation of the appellant and appointed Commissioner for Departmental Enquiries, Gujarat and Ex-Officio Secretary to the Government, General Administration Department (hereinafter referred to as "the inquiry officer") to inquire into the charges levelled against the appellant. After conducting detailed inquiry in the matter, the inquiry officer submitted report dtd. 14/11/1995 with the conclusion that neither of the charges has been proved against the appellant. The State Government did not accept the report and passed order dtd. 1/10/1996 under Rule 10(1) of the Discipline and Appeal Rules, vide which the matter was remitted to the inquiry officer. The latter after conducting fresh inquiry, submitted report dtd. 31/12/1998 with finding that the charges have not been proved against the appellant.

2.3 The State Government accepted the findings and conclusion recorded by the inquiry officer in respect of charge No. 1 but partly disagreed with him in regard to his conclusion qua charge No. 1. Accordingly, notice dtd. 16/3/2001 was issued to the appellant proposing to take action against him by treating charge No. 1 as partly proved. The reasons recorded by the State Government for its disagreement with the findings and conclusion recorded by the inquiry officer in respect of charge No. 1 were also communicated to the appellant. In his reply dtd. 20/4/2001, the appellant pleaded that in view of the findings recorded by the inquiry officer he should be exonerated. He also pleaded that the report of the hand writing expert, which had been obtained at his back, could not be taken into consideration for holding him guilty.

2.4 A reply was filed by the petitioner on 24/11/1993 denying the charges. Having not accepted the explanation, the State Government appointed an Inquiry Officer to inquire into the charges against the petitioner. On 14/11/1995, the Inquiry Officer submitted a report concluding that both the charges were not proved. The State Government did not accept the report of the inquiry officer and passed an order on 01/10/1996 under Rule 10(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as the Discipline and Appeal Rules) by which the matter was remitted to the Inquiry Officer. The Inquiry Officer on conducting a fresh inquiry, submitted a report on 31/12/1998 once again holding that the charges have not been proved.

2.5 The State Government accepted the findings and conclusions recorded by the inquiry officer but disagreed as far as charge with regard to charge 1 as being not proved. With regard to Charge No. 2, the disciplinary authority had accepted the Inquiry Officer's exoneration of the petitioner. On 16/3/2001, the disciplinary authority issued a notice to the petitioner proposing to take action against the petitioner and asking him to show cause and respond to the disagreement with regard to charge No. 1. The petitioner filed a reply on 20/4/2001. On the reply so filed, by an order dtd. 11/9/2002, the petitioner was removed from service.

2.6 The order of removal was challenged by the petitioner by filing Special Civil Application No. 9246 of 2002. By a judgment and order dtd. 26/7/2004, the petition was dismissed. The petitioner challenged the order of the learned Single Judge by filing the Letters Patent Appeal No. 34 of 2005. The Division Bench of this Court by an order dtd. 22/3/2005, set aside the order of the learned Single Judge and after an extensive discussion allowed the appeal. The order of punishment of removal from service dtd. 11/9/2002 was set aside and a direction was given to the State Government to pass a fresh order in accordance with law.

2.7 The State Government issued a show cause notice dtd. 21/6/2005 asking the petitioner to remain present pursuant to the order of the Letters Patent Appeal. By an order dtd. 11/10/2005, the State Government once again passed an order of removal from service. The petitioner took the order in review before the State Government and by a communication dtd. 22/5/2008, the State Government rejected the review, hence the petition.

(3.)Heard Mr. Bhavyaraj Gohil, learned advocate appearing for Mr. A.J. Yagnik, learned advocate for the petitioner and Mr. Meet Thakkar, learned AGP for the State. Mr. Gohil, learned advocate submitted that what is apparent from the chronology of events is that on two occasions i.e. on 14/11/1995 and 31/12/1998, the inquiry officer on a detailed analysis of the evidence on record had exonerated the petitioner of the two charges. He submitted that after the first exoneration by the inquiry officer's report of 14/11/1995, the State Government by an order dtd. 01/10/1996 remitted the matter to the inquiry officer with certain observations inasmuch as with regard to charge no. 1, since the original diary was not produced by the Presenting Officer and only four of the 12 witnesses had remained present it was necessary to recall the witnesses and produce the original diary. Even with regard to second charge, certain observations were made and the inquiry officer was asked to follow the procedure under Rules 9(13) and 9(14) of the Discipline and Appeal Rules.
3.1. Mr. Gohil further submitted that what was therefore envisaged on the remission to the inquiry officer was to hold an inquiry afresh. That the inquiry was held and once again by a report of 31/12/1998, the inquiry officer exonerated the petitioner holding that the evidence inasmuch as that of the handwriting expert and that of one Mr. Nagori was not in the list of documents or charge-sheet as originally framed and therefore there was violation of Rule 9(4).

3.2. Mr. Gohil would take the court through the defence statement of the petitioner initially filed on 27/4/1993 and submit that after the order of the learned Single Judge when the petitioner preferred a Letters Patent Appeal, from the order of the appeal, he would submit that several contentions were raised as recorded in the order inasmuch as

(a) the alleged diary was not that of the petitioner;

(b) during the course of hearing of the case and examination-in-chief of the witnesses of the government, the Presenting Officer had neither raised the question of diary or any witnesses;
,
(c) the petitioner's handwriting was never taken and;

(d) Rule 9(14) was violated.

3.3. It was therefore submitted by Mr. Gohil, learned advocate for the petitioner that it was on certain observations of the Division Bench that the matter was sent back to the disciplinary authority to pass a fresh order. Further if the chronology of events that unfolded preceding the order of the Division Bench and when compared to the fresh order passed in purported compliance of the order of the Division Bench, the disciplinary authority has reiterated the order of dismissal dtd. 11/9/2002 as is evident from the impugned order dtd. 11/10/2005.

3.4. Mr. Gohil further submitted that the order of removal is beyond the charge-sheet as the contents of the show-cause notice on which the charge no. 1 is sought to be disagreed was never framed as a charge. Mr. Gohil, learned advocate would submit that Rule 9(14) of the Discipline and Appeal Rules envisaged only inquiry on the same set of evidence and could not be used to cure inherent lacuna or defects in evidence which was originally produced from the charge-sheet and the evidence produced before the inquiry officer originally on 14/11/1995 and 31/12/1998 and when on both the occasions the investigating officer exonerated the petitioner it is the fact that the original diary was not produced and therefore it was a case of no evidence. Apparently, the impugned order would indicate that the handwriting expert's opinion has been obtained in comparison with certain writings of the petitioner of which he was never confronted with. So also Mr. Nagori was never a cited witness in the charge-sheet. The order being in gross violation of the directions of Division Bench and Rule 9(14) of the Rules be quashed and set aside.



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