Gujarat High Court
Girishbhai Somabhai Jansali vs State Of Gujarat on 20 February, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/12930/2016 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12930 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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GIRISHBHAI SOMABHAI JANSALI
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR. RAJESH G BAROT(7134) for the Petitioner(s) No. 1
MUKESH P BRAHMBHATT(8477) for the Petitioner(s) No. 1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/02/2025
ORAL JUDGMENT
1. By way of present petition, the petitioner herein has
challenged the impugned order dated 06.06.2005 duly
produced at page 15, Annexure – A, whereby, pursuant to the
disciplinary actions undertaken against the petitioner, the
petitioner is imposed penalty of stoppage of 3 increments for
3 years with future effect. Being aggrieved by the aforesaid
order, the petitioner herein is constrained to approach this
Court invoking Article 226 of the Constitution of India praying
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that the said order dated 06.06.2005 be quashed and set
aside. It is further prayed that the period of suspension from
06.10.1998 to 03.11.2004 be directed to be regularized and
the petitioner also be paid compensation of Rs.2,00,000/- for
the mental agony suffered by the petitioner for 18 years.
2. Heard Mr. Rajesh G. Barot, learned advocate appearing
for the petitioner and Ms. Pooja Ashar, learned AGP appearing
for the respondent – State.
3. Briefly stated that the petitioner herein joined the
services of the respondent in the year 1978 as Junior
(Assistant) Engineer. The petitioner came to be promoted as
Deputy Executive Engineer in the year 1983. The petitioner
was promoted to the post of Executive Engineer on 22.10.1997
with deemed date of effect from 22.05.1994 upon
departmental representation by the petitioner. In view of
deemed date effect in promotion, the petitioner became Senior
Executive Engineer in updated seniority list of Executive
Engineers. In view thereof, the petitioner applied to the
respondent by communication dated 22.11.2000 to enter the
petitioner’s name ahead of the other juniors in Executive
Engineers’ seniority list. That, the juniors to the petitioner were
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promoted as Superintending Engineer in the year 2006. The
petitioner’s promotion was held up by the respondent due to
the alleged act of misconduct on the part of the petitioner.
3.1 For the period between 22.10.1997 to 06.10.1998, the
petitioner was serving as Executive Engineer at Irrigation
Project Division No.2, Rajpipla. The petitioner retired as
Executive Engineer upon attaining the age of superannuation
on 30.06.2010.
3.2 The petitioner was issued show cause notice on
20.06.1998 by the respondent No.1 for the alleged misconduct
relating to the period between 22.10.1997 to 06.10.1998 when
the petitioner was serving as Executive Engineer at Irrigation
Project Division No.2, Rajpipla. The petitioner requested for
documents vide letter dated 31.08.1998 however, the same
were not made available by the respondent. Thereafter, the
petitioner replied to the show cause notice on 04.11.1998 on
the basis of incomplete documents. Without considering the
reply filed by the petitioner on 04.11.1998, the petitioner was
placed under suspension by order dated 06.10.1998.
3.3 On 27.02.2001, the chargesheet for the alleged
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misconduct was served to the petitioner after a period of about
2 and half years from the date of suspension order. By order
dated 06.06.2005, the petitioner came to be punished for the
alleged misconduct relating to the year 1997-1998 which took
7 years to conclude the disciplinary proceedings initiated
against the petitioner from the date of suspension i.e.
06.10.1998.
3.4 The petitioner made several representations dated
27.11.2013, 09.05.2014 and 18.10.2015 to the respondent
No.1 regarding the injustice meted out against the petitioner.
In the representation dated 18.10.2015, the petitioner narrated
in detail the factual aspects of the case and the injustice
meted out against the petitioner which was not replied to or
considered by the respondent authority.
3.5 By communication dated 29.01.2016, the petitioner was
informed that the petitioner’s requests were rejected. On
13.05.2016, the petitioner sent legal notice to the respondent
regarding the same subject matter but, no reply was received
from the respondent. The aforesaid impugned order of
punishment dated 06.06.2005 is subject matter of challenge
by way of present petition wherein, the petitioner herein is
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imposed punishment of stoppage of 3 increments scale for 3
years with future effect.
4. Mr. Rajesh Barot, learned advocate appearing for the
petitioner submitted that the impugned order of punishment
dated 06.06.2005 is a non-speaking order. It is submitted that
the chargesheet in case of the petitioner was filed on
27.02.2001 and the impugned order of punishment is of
06.06.2005 which means that it took 4 years and 4 months to
complete the inquiry after filing of the chargesheet, which is in
violation of the fundamental rights of the petitioner. It is
submitted that the petitioner was given to understand that
upon expiry of 90 days from the date of order of suspension, if
no review meeting took place to extend the said order of
suspension, the said order would stand revoked and that, the
petitioner is legally entitled to all the benefits of a regular
employee. It is submitted that the act of misconduct on the
part of the petitioner is over-payment to one Shah Enterprise
and that, for the same transaction, Shah Enterprise filed
arbitration case against the State of Gujarat and fought the
legal battle all the way to Hon’ble Apex Court and the final
orders were in favour of the said Shah Enterprise. The
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respondent had to pay Rs.1,84,35,046/- to the said Shah
Enterprise and this fact makes the whole premise of initiating
the inquiry against the petitioner dubious and thus, want of
any sort of credit.
4.1 Reliance is placed on the ratio laid down by the Hon’ble
Apex Court in case of Union of India Vs. Dipak Mali, reported in
2010 (2) SCC 222, wherein, it is held that the suspension order
was not reviewed within 90 days; the same was not amenable
to review. Placing reliance on the aforesaid, it is submitted that
the aforesaid ratio laid down by the Hon’ble Apex Court
governs the field and that, admittedly, in the facts of the
present case, the order of suspension was not reviewed within
90 days and in view thereof, the said period of suspension
between 06.10.1998 to 03.11.2004 is required to be
regularized and the petitioner herein is entitled to the
consequential benefits to the same. Placing reliance on the
aforesaid, it is submitted that the prayers as prayed for in the
present petition be allowed.
5. Ms. Pooja Ashar, learned AGP appearing for the
respondent relied on the affidavit-in-reply duly produced at
page 56 to the petition and submitted that the present petition
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is barred by delay and latches. The order of punishment dated
06.06.2005 is challenged in the year 2016 without any
explanation with respect to delay. It is submitted that the
petitioner herein retired in the year 2010 i.e. 30.06.2010. It is
submitted that after the petitioner was promoted as Executive
Engineer, Karjan Canal Division, Rajpipla, in the year 1998,
there were some allegations against the petitioner herein at
the same division for mismanagement. A preliminary show
cause notice was issued to the petitioner and the petitioner
was suspended on 06.10.1998. It is submitted that the
petitioner’s case was referred to Quality Control Division and
having formed an opinion that prima facie case against the
petitioner was made out, the said case was referred to the
Vigilance Commission on 23.06.1999 and the Vigilance
Commission by letter dated 16.08.1999 recommended for
major penalty. The petitioner was issued chargesheet on
27.02.2001, which was replied to by the petitioner by letter
dated 21.04.2001. The relevant documents are attached at
Annexure – 1 colly.
5.1 Ms. Ashar, learned AGP submitted that Inquiry Officer was
appointed on 16.07.2001 and Inquiry Report was prepared on
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16.01.2003 which concluded that the charges levelled against
the petitioner were held to be proved and in view thereof, a
show cause notice issued to the petitioner on 03.07.2003 to
which, the petitioner replied on 05.09.2003 duly produced at
Annexure – R-2 colly. It is submitted that as per the inquiry, the
punishment order was passed on 06.06.2005 in consonance
with the provisions of law and the Gujarat Civil Services
(Discipline and Appeal) Rules, 1971, Rule 6 Sub-Rule (4). It is
submitted that as per the relevant provisions of law, the
petitioner was Class – I officer and his case was sent to the
General Administrative Department and in consultation with
the said department, the petitioner was imposed the penalty of
reduction in pay by three stages in last three years. The pay
scale with future effect and with condition that the petitioner
would not get increments during the said period. The penalty
imposed is in line with the rules and regulations.
5.2 Ms. Ashar, learned AGP submitted that the Commission
vide its letter dated 04.11.2004 agreed to the punishment
suggested by the department and hence, the order dated
06.06.2005 was effected. The petitioner was suspended for a
period between 06.10.1998 to 03.11.2004 for the same matter
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for which, punishment order dated 06.06.2005 was passed. It
is submitted that the punishment is a major penalty and in
view thereof, suspension cannot be regularized as ‘on duty’ as
per the Rules 69 and 70 of the Gujarat Civil Services
(Suspension) Rules, 2002. It is submitted that the suspension
period was regularized by order dated 10.11.2009 duly
produced at Annexure R-3. It is submitted that the petitioner
made representation on 08.06.2014 and 18.10.2015 against
the Government regarding the order dated 10.11.2009 which
were also considered and it was decided that the period of
suspension can be counted as notional and the tenure of
suspension be considered for pensionable job and other
benefits as stated in the order. A copy of the order dated
10.08.2016 is duly produced at Annexure R-4.
5.3 Ms. Ashar, learned AGP submitted that the contention of
the petitioner that the suspension was not reviewed timely,
was considered by the respondent authority by consulting the
General Administration Department wherein, it was replied that
the suspension order is valid till the competent authority
abolish or amend it. The petitioner was under suspension from
1998 to 2004 so the petitioner’s suspension should be
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reviewed according to the Rule 5(5)(C) of the Gujarat Civil
Services (Discipline and Appeal) Rules, 1971. It is submitted
that taking into consideration the guidance of the General
Administration Department, there is no violation of Rules
regarding the petitioner’s suspension and hence, placing
reliance on the same, it is submitted that the present petition
be dismissed.
5.4 Answering the petitioner’s contention, it is submitted that
the petitioner herein had approached the respondent authority
subsequently upon an information received under Right to
Information Act on 01.02.2016 wherein, it was informed that
the order of suspension dated 06.10.1998 was not reviewed
thereafter and in view thereof, the said period be considered
as regular period. It is submitted that by communication dated
10.08.2016, it was replied by the respondent authority that in
view of pendency of the petition being Special Civil Application
No.628 of 2006 filed by the respondent – State, the
representation of the petitioner dated 18.10.2005, 27.11.2005
and 27.12.2005 were kept pending till the final order passed in
the said SCA. It is submitted that the impugned order dated
06.06.2005 requires no interference; the same having been
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passed upon following the principles of natural justice and the
applicable rules and regulations. It is however, candidly
submitted that if the petitioner were to file a review under Rule
22 of the Gujarat Civil Services (Discipline and Appeal) Rules,
1971, the same would be considered by the respondent
authority, the litigation which was pending between the
respondent – State and M/s. Shah Enterprise, the reason for
which the petitioner was imposed the punishment, has
attained finality.
6. Mr. Rajesh Barot, learned advocate appearing for the
petitioner, in rejoinder, reiterated the contentions raised earlier
and submitted that the prayers as prayed for are such that the
same are required to be allowed.
Analysis:-
7. Having heard the learned advocates appearing for the
respective parties and upon perusal of the record, it emerges
that the petitioner herein was issued show cause notice dated
20.06.1998 duly produced at page 64 to the petition.
Subsequent thereto, the petitioner was suspended on
06.10.1998. The said show cause notice was replied to by the
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petitioner on 04.11.1998. The case of the petitioner was
referred to the Quality Control Division and prima facie case
was made out against the petitioner. In view thereof, the case
of the petitioner was referred to the Vigilance Commission on
23.06.1999 wherein, by communication dated 16.08.1999, the
Vigilance Commission recommended major penalty.
7.1 The petitioner was issued chargesheet on 27.02.2001
duly produced at page 80 to the petition along with the list of
witnesses, page 87, wherein, three charges came to be framed
against the petitioner duly produced at page 82 to the petition,
which was replied to by the petitioner on 05.08.2003 duly
produced at page 240 to the petition. Considering the reply
filed by the petitioner herein and documents on record, the
impugned order came to be passed on 06.06.2005 duly
produced at page 15, Annexure – A to the petition.
7.2 Upon perusal of the said order, it emerges that all the
three charges levelled against the petitioner herein stand
proved. By the impugned order dated 06.06.2005, the
petitioner herein was imposed the punishment of stoppage of 3
increment scale for 3 years with future effect. Pursuant
thereto, it emerges that the petitioner made representation to
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the respondent authority dated 18.08.2009 to regularize the
period of suspension wherein, by order dated 10.11.2009 duly
produced at page 257, it is ordered that the leave admissible
to the petitioner during the period of suspension from duty will
not be taken into account as also, the said period will not be
taken into account for the purpose of pension. Further, the
petitioner is to be retired in the near future and therefore, it
has been decided to treat the increments admissible to him as
notional increments and accordingly, the increments withheld
during the period of suspension from duty will have to be
released but, the arrears of the period of suspension from duty
will not have to be paid.
7.3 The petitioner herein again filed a representation on
08.06.2014 and 18.10.2015 against the said order dated
10.11.2009, which were also considered whereby, by order
dated 10.08.2016, it was decided that the said period of
suspension be considered as notional and the tenure of
suspension will also be considered for pensionable job and
other benefits as stated in the said order, which is duly
produced at page 258, Annexure – R-4. It is apposite to refer to
the relevant paragraph of the said order dated 10.08.2016,
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which reads thus :
“ORDER:-
It is hereby ordered that period of suspension from 06/10/1998 to
03/12/2004 of Mr. G.S., Executive Engineer (Retired), in the manner
that he shall not be entitled for the amount of difference in pay
allowance (arrears) during the same, shall be taken into consideration
only for the purpose of increment and shall be treated as service for the
purpose of calculating pension benefits (to take this period into
consideration for the purpose of pensionable service, pensionable pay
and increment) in such a manner that it does not adversely affect his
pension benefits.”
8. Upon perusal of the record, it emerges that the petitioner
chose not to challenge the impugned order dated 06.06.2005
in the interregnum period and approached the competent
authority with prayer to seek the regularization of the
suspension period. It is only after the said order came to be
passed on 10.08.2016 and that, it is only on 24.07.2016 that
the petitioner herein approached this Court challenging the
said order dated 06.06.2005 with a prayer to consider the
suspension period between 06.10.1998 to 03.11.2004 to be
regularized.
9. In the opinion of this Court, the impugned order dated
06.06.2005 duly produced at Annexure – A, page 15, requires
no interference; the same having been passed considering the
Inquiry Report wherein, the respondent authority has accepted
the Inquiry Report filed by the Inquiry Officer; approved by the
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GPSC on 04.11.2004 and the charges having been proved
against the petitioner. It is apposite to refer to the relevant
paragraphs of the said order dated 06.06.2005, which reads
thus : (true translation)
“In response to the above charge sheet, Mr. Jansali submitted a
defence statement vide letter dated 21.04.01 as mentioned at
Reference-2. Taking the said defence statement into consideration, the
case was handed over to the Inquiry Officer vide the order dated
16.07.01 as mentioned at Reference-3 for further detailed
investigation. The Inquiry Officer completed the prescribed inquiry and
submitted the inquiry report vide letter dated 16.01.03 as mentioned
at Reference – 4. The inquiry report concluded that the Charges No. 1
to 3 against Mr. Jansali were proven. Considering the said inquiry
report, the Government decided to accept the said inquiry report and
considered the Charges No. 1 to 3 against him as proven.
Accordingly, a copy of the inquiry report along with the show
cause notice dated 03.07.03 as mentioned at Reference – 5 was sent
and it was informed to make a representation in that regard. The
Government took into detailed consideration the final special
representation made by Mr. Jansali vide the letter dated 05.08.03 as
mentioned at Reference – 6 with respect to it. At the end of the said
consideration, the Government considered the charges No. 1 to 3
against Mr. Jansali as proven. Thus, after considering the graveness of
the said proven charges, the Government, at the end of careful
consideration, decided to impose penalty of withholding increments for
three years with future effect for three stages in the present pay scale
without any increment during the execution of penalty on Mr. G.S.
Jansali, Executive Engineer and a proposal was submitted to the
Gujarat Public Service Commission through the letter mentioned at
Reference – 7 to seek the advice of the Commission under the Gujarat
Public Service Commission (Exemption from Consultation) Regulations.
As the Gujarat Public Service Commission has given its consent to the
proposal of the Government vide the letter mentioned at Reference –
8, the decision to impose the above mentioned penalty has been
taken.
Order:
In the present inquiry against Mr. G.S. Jansali, Executive
Engineer (C), the order is passed hereby to impose a penalty of
withholding increments for three years with future effect for three
stages in the present pay scale without any increment during the
execution of penalty.”
9.1 The aforesaid order of punishment dated 06.06.2005 was
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passed under Rule 6, sub-rule (4) of the Gujarat Civil Services
(Discipline and Appeal) Rules, 1971. As per the relevant
provisions of law, the petitioner was Class- I Officer and the
case of the petitioner was sent to the General Administrative
Department and in consultation of the General Administration
Department, the petitioner was imposed the penalty of
reduction in pay three stages in the last three years. The pay
scale with future effect and with condition that the petitioner
would not get increments during the said period. The aforesaid
is a major penalty as per Rule 6(4) of the Rules, 1971. The
Gujarat Public Service Commission was also consulted for
deciding the punishment. The Commission vide letter dated
04.11.2004 agreed with the punishment suggested by the
department and hence, the order dated 06.06.2005 was given
effect too. The petitioner was under suspension from
06.10.1998 to 03.11.2004 for the same matter for which, the
punishment order dated 06.06.2005 was passed. The
petitioner herein having been imposed major penalty by
impugned order dated 06.06.2005, the period of suspension is
held not to be regularized as on duty as per the Rule 69 and 70
of the Gujarat Civil Services (Suspension) Rules, 2002.
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9.2 By order dated 10.11.2009 duly produced at Annexure R-
3, the suspension period of the petitioner was regularized.
10. Upon such order having been passed, the petitioner has
approached the competent authority for the regularizing the
said period of suspension wherein, the competent authority by
the order dated 10.08.2016 passed the order of pensionery
benefits, as referred above, considering the period of
suspension. The aforesaid order is passed taking into
consideration the representations filed by the petitioner from
time to time. While passing the said order, the competent
authority has taken into consideration the following aspects:
“(1) Order No. TaPaSa / 1598/ M.329/ (33)/ E4 Cell dated 06/10/1998
of the Narmada, WRWS and Kalpsar Department;(2) Order to reinstate in the government service from the
suspension vide Order No. KhaTaPa / 1699/ 90/ Bhag-2/ E4 dated
06/06/2005 of the Narmada, WRWS and Kalpsar Department;(3) Penalty Order in Order No. KhaTaPa / 1699/ 90/ Bhag-2/ E4 dated
06/06/2005 of the Narmada, WRWS and Kalpsar Department;(4) Representations dated 09/12/2008 and 18/08/2009 of Mr. G.S.
Jansali, E.E.;
(5) Order regularizing suspension tenure vide even number order
dated 10/11/2009 of the Department;
(6) Representations dated 08/05/2014 and 18/10/2015 of Mr. G.S.
Jansali, E.E. (Retired).”
11. The said order has attained finality as back as in the year
2016. As pointed out by Ms. Ashar, learned AGP that the
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petitioner having availed all the remedies, has challenged the
order dated 06.06.2005 after a lapse of more than 10 years. In
light of the aforesaid also, the petition can be said to be barred
by the delay and latches.
12. In light of the aforesaid, no case is made out to exercise
extra-ordinary jurisdiction under Article 226 of the Constitution
of India. Accordingly, the present petition stands dismissed.
(VAIBHAVI D. NANAVATI,J)
NEHA
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