Gujarat High Court
Vyas Din Jones Vasudev vs State Of Gujarat on 24 December, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/11340/2007 JUDGMENT DATED: 24/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11340 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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VYAS DIN JONES VASUDEV & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1,1.1,1.2
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/12/2024
ORAL JUDGMENT
1. The petitioner herein is aggrieved by the impugned order
dated 24.06.2006 dismissing the petitioner passed by the
respondent No.2. Being aggrieved by the said order, the
petitioner herein has preferred an appeal being Appeal
No.171/2006/23 before the Gujarat Civil Services Tribunal at
Gandhinagar which also came to be dismissed by order dated
03.01.2007. Being aggrieved by the impugned orders
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dismissing the petitioner from the service, the petitioner has
approached this Court and has prayed for the following reliefs:
“A) This Hon’ble Court may kindly be pleased to quash and set aside
the dismissal order dt.24.6.2006 passed by the Respondent No.2
bearing Dismissal Order No.VJK/MKM/06-07 2120 to 2125.
B) Be pleased to quash and set aside the judgment and order
dt.3/6 Jan.2007 passed by the Gujarat Civil Services Tribunal at
Gandhinagar in Appeal No.171/2006/23.
C) Pending the hearing and final disposal of this petition be pleased
to stay the execution and implementation of the order dt.3/6th
January 2007, passed by Gujarat Civil Services Tribunal, Gandhinagar
in Appeal No.171/200/23.
D) Be pleased to declare that the present petitioner is entitled to
get the benefits, as per the prevailing rules of the Government during
the suspension period, and also for the pay for the month of June, 2006
and Regular Salary for subsequent months regularly.
E) Cost of this petition may kindly be provided.”
2. Heard Ms. Mamta R. Vyas, learned advocate appearing
for the petitioner and Ms. Pooja Ashar, learned AGP appearing
for the respondents.
3. Briefly stated that the petitioner herein was taken into
service by the respondent authority as Junior Clerk w.e.f.
01.10.1983 and was promoted as Social Welfare Supervisor at
Botad, District : Bhavnagar. It is the case of the petitioner that
there is no stigma attached to the petitioner for the services
rendered however, when the petitioner found that certain
irregularities and illegalities are committed by the respondent
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No.2 and other IAS officers in the State of Gujarat, the
petitioner started filing complaint against such persons before
the higher authority and in view thereof, to take revenge
against the petitioner, the petitioner was dismissed from
service by order dated 24.06.2006.
3.1 That, the petitioner’s wife is under medical treatment and
suffering from mental disease and therefore, the petitioner was
required to take leave and before taking leave, prior
permission was obtained by the petitioner. The said leave
reports are duly produced at Annexure – B to the petition.
3.2 The respondent No.2 suspended the petitioner by order
dated 06.04.2004 for the certain irregularities. The respondent
No.2 prepared chargesheet on 11.10.2004. One Mr. J.P. Mehta
was appointed as Inquiry Officer for the departmental inquiry.
The petitioner remain present on all the dates before the
Inquiry Officer and produced necessary documents and
statement of defence on 13.05.2005 before the said authority
and requested that the petitioner be declared innocent along
with necessary details. The said statement dated 13.05.2005 is
duly produced at Annexure – E to the petition.
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3.3 Upon completion of inquiry, the Inquiry Officer prepared
Inquiry Report consisting of 69 pages on 04.06.2005 and
served to the petitioner wherein, it was held that the charges
levelled against the petitioner were proved. The said Inquiry
Report is duly produced at Annexure – F to the petition. The
petitioner came to be reinstated in service by order dated
23.06.2005 and held that the suspension order which was
passed earlier stood cancelled. The said order dated
23.06.2005 is duly produced at Annexure – G to the petition.
3.4 It is the case of the petitioner that the subsistence
allowance during the suspension period is not provided to the
petitioner and is entitled to 75% as per the rules and
regulations of the Government. The petitioner also stated that
Mr. R.M. Patel, Sudhaben Patel, Renukaben Patel and Mr. D.M.
Trivedi are also involved in the offence of corruption but no
action is taken against them; inspite of the fact that sufficient
necessary documents were produced before the Superior
Authority. Such letters addressed by the petitioner were not
taken into consideration and the petitioner is penalized and
hence, action taken by the respondent No.2 of dismissing the
petitioner from service is illegal. Pursuant to the
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communications addressed by the petitioner with respect to
the alleged corruption activities for appointment of teachers as
well as other administrative work in Ashram Shala, and
creating false certificates of Baxi panch and with necessary
facts and evidences, against Mr. K.G. Vanjara, Mr. M.P.
Thakker, Mr. Kanara, Mr. Vaghani, Mr. Khundla and Mr. N.C.
Shah; the respondent No.1 addressed a letter to the petitioner
on on 10.11.2005 stating that the same is received and
necessary documents be provided within 10 days.
3.5 The petitioner sent another letter on 16.11.2005 to the
respondent No.1 stating the fact that the Deputy Director, Mr.
D.M. Trivedi and Mr. M.P. Thakker are connected with the
irregularities of corruption and therefore, necessary actions be
taken against them. Further documents were also provided to
the respondent No.1 by communication dated 27.06.2006
stating that Smt. Renukaben Patel was also a corrupt lady and
connected with the activities of corruption and charges are
also proved against her though, no action is taken. This fact
was also brought to the notice of the respondent No.2 by letter
dated 22.06.2003. The said letters are duly produced at
Annexure – K to the petition. In view of the aforesaid
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irregularities committed by the others which were brought to
the notice of the higher officer namely the respondent No.1, for
the irregularities committed by the respondent No.2, the
respondent No.2 issued a dismissal order on 24.06.2006
without hearing the petitioner and without providing sufficient
opportunities to him and in view thereof, the action taken by
the respondent No.2 is illegal and arbitrary.
3.6 The petitioner when addressed a letter to the respondent
No.2 stating the fact that the petitioner is going on hunger
strike on 26.06.2006, the same was affixed on the residential
premises of the petitioner and hence, the same is illegal,
arbitrary, unconstitutional and against the settled principles of
natural justice. Before passing the order of dismissal on
26.06.2006, no opportunity was given to the petitioner. On the
other hand, in the order itself, Mr. D.P. Parmar, who was the
highest officer of the petitioner, has approved, sanctioned and
disbursement of amount, no such harsh punishment is
awarded to the petitioner; he is awarded only order of
deduction of Rs.1200/- from the pension amount. The aforesaid
is harsh on the part of the Government but, simultaneously it
was held that the order of dismissal from service of the
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petitioner is just and proper and from the aforesaid, it can be
said that there is soft corner of the respondent No.2 against
Mr. D.P. Parmar and hence, the whole departmental inquiry
initiated against the petitioner is based on prejudice mind and
to harass the petitioner and in view thereof, the order of
dismissal dated 24.06.2006 is illegal and is required to be
quashed and set aside and the order passed by the Gujarat
Civil Services Tribunal dated 3/6.01.2007 dismissing the appeal
filed by the petitioner, is also required to be quashed and set
aside.
4. Ms. Mamta R. Vyas, learned advocate appearing for the
petitioner, submitted that the order impugned is required to be
quashed and set aside on the ground that the chargesheet
dated 11.10.2004 is unclear, unspecific and inconsistent with
the statement of allegations. It is submitted that it was stated
in the chargesheet that the petitioner was to be imposed major
penalty under Rule 6 of the Gujarat Civil Services (Discipline
and Appeal) Rules, 1971 whereas, in the statement of
allegations, it is stated that the petitioner has committed
breach of sub-rule (1), (2) and (3) of Rule 3(1) of the Gujarat
Civil Services (Conduct) Rules, 1971. Besides, the charges in
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the chargesheet are 13 in number whereas, the charges in the
statement of allegations are 17. It is submitted that in
response to the show cause notice dated 04.07.2005, the
petitioner made a representation raising substantial points
which read thus:
“(a) The evaluation of evidence by the Inquiry Officer was faulty and
the reasons for holding the charges proved by the Inquiry Officer were
to based on no evidence.
(b) The documents were not produced by the witnesses themselves
before the Inquiry Officer.
(c) The Preliminary statements of witnesses were accepted by the
Inquiry Officer as true and were relied upon by him.
(d) The defence witnesses were not called for evidence by the
Inquiry Officer.”
4.1 Ms. Vyas, learned advocate submitted that every finding
of the Inquiry Officer was challenged charge-wise in the said
representation dated 04.07.2005. The petitioner has stated
that some of the beneficiaries did not belong to the areas
which fell under the petitioner and yet, the petitioner is held
guilty. The petitioner was not the sanctioning authority. It is
submitted that the disciplinary authority and the Tribunal have
referred to these points but, they have not assigned any
reasons for rejecting the same. It is submitted that the
disciplinary authority was required to apply mind to the points
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raised in the representation in reply to the show cause notice
and required to deal with each and every point raised in the
representation by the delinquent and assign reasons on such
points.
4.2 Reliance is placed on the guidelines duly produced at
Annexure – N to the petition and copies of some judgments
duly produced at Annexure – O colly. to the petition. It is
submitted that Rule 9(17) of the Gujarat Civil Services Rules,
1971 is not complied with by the respondent authority
wherein, it was incumbent upon the Inquiry Officer to put the
evidence recorded by him to the petitioner in order to enable
him to explain the same. There was no statement in the
Inquiry Report that the petitioner was given an opportunity to
explain the evidence against him or that any intimation to that
effect was sent to him. It is stated in the Inquiry Report in
paragraph 2.2 that last two departmental witnesses were
examined on 14.02.2005 and the matter was kept on
28.02.2005 for examination of defence witnesses. However, no
defence witness was produced and therefore, the Presenting
Officer was asked to send his brief by 05.03.2005 and the
petitioner was to send defence statement by 20.03.2005. It is
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submitted that no explanation of the petitioner was called for
as required in accordance with the aforesaid Rule.
4.3 Ms. Vyas, learned advocate submitted that the penalty of
dismissal is shockingly disproportionate to the charges levelled
against the petitioner. It is submitted that there is no charge of
corruption or misappropriation against the petitioner. It is
submitted that the disciplinary authority had in the
chargesheet determined to impost the major penalty under
Rule 6 of the Rules, 1971 upon the petitioner, which is also
illegal. Placing reliance on the aforesaid, it is submitted that
the prayers, as prayed for in the present petition, are such that
the same be allowed and the impugned orders be quashed and
set aside.
5. Ms. Pooja Ashar, learned AGP appearing for the
respondents relied on the affidavit-in-reply filed by the
respondent No.2 duly produced at page 297. Placing reliance
on the same, it is submitted that the impugned order of
termination dated 24.06.2006 passed by the respondent No.2
bearing No.VJK/MKM/2006-07-2120-2125 is duly confirmed by
the Tribunal constituted under the Gujarat Civil Services
Tribunal Act, 1972 which is an appellate authority over the
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respondent No.2, is just and proper and all the aspects of the
matter are considered while passing the said order. In view
thereof, the present petition is required to be dismissed.
5.1 Ms. Ashar, learned AGP submitted that the petitioner first
approached this Court wherein, the petitioner was directed to
approach the Tribunal; the Tribunal being the appellate
authority. It is submitted that the order passed by the Tribunal
is a well reasoned order which requires no interference. It is
submitted that it is not true that the petitioner has taken prior
sanction before going on leave because of the illness of the
petitioner’s wife. In fact, time and again the petitioner
remained absent without getting the leave sanctioned. To
substantiate the aforesaid, reliance is placed on the statement
of leave period/chart duly produced at Annexure – R-I, page
303.
5.2 Ms. Ashar, learned AGP submitted that the subject matter
of the impugned order is not the ‘leave’ of the petitioner. In
fact, there were grave allegations of financial irregularities
against the petitioner and in view thereof, the petitioner was
suspended during the initial period of Inquiry. It is submitted
that full fledged inquiry was conducted by an officer of a rank
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of Joint Secretary to the Govt. (Retd.). It is submitted that the
petitioner was served notices and was given adequate
opportunities to be heard. It is submitted that the respondent
authority has conducted the disciplinary inquiry following the
principles of natural justice and upon considering the relevant
material pertaining to the case after granting the petitioner all
the opportunities to defend himself; a reasoned order dated
24.06.2006 came to be passed. It is submitted that the
allegations levelled against the petitioner having been proved
to be correct, the petitioner was dismissed from service. The
said order of dismissal was upheld by the Tribunal with a
speaking order.
5.3 Ms. Ashar, learned AGP submitted that the petitioner has
not remained present in the Head Quarter and in view thereof,
the notices were issued by the respondent No.3 on 08.08.2005,
10.08.2005, 01.09.2005, 08.11.2005, 21.11.2005 and
02.12.2005. To substantiate the aforesaid contention, reliance
is placed on the copies of the notices duly produced at
Annexure – R- II, page 304. It is submitted that in accordance
with the Government Resolution dated 15.07.1993 and
23.03.2005, the petitioner was reinstated pending the inquiry
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but, the aforesaid cannot mean that the petitioner was
absolved from the charges or given a clean chit in view of the
fact that the inquiry was continued.
5.4 Ms. Ashar, learned AGP also placed reliance on the
further affidavit filed on behalf of the respondent No.2 and
that, the contention raised by the petitioner that the petitioner
is not granted opportunity of cross-examination during the
course of departmental inquiry, is controverted. It is submitted
that at no point of time, either before the appropriate authority
or before the Tribunal, had the petitioner advanced the
aforesaid contention that the petitioner was not granted
opportunity to counter. Reliance is placed on Annexure – R1 at
page 371 and it is submitted that the petitioner was granted
opportunity to examine/cross examine the witnesses on
24.01.2005 and 14.02.2005. It is submitted that the petitioner
himself signed a statement wherein, the petitioner has stated
that the petitioner does not want to produce any further
witnesses and desired to take inquiry on further stage which
was also endorsed before the Inquiry Officer on 14.02.2005.
Reliance is placed on the said document which is duly
produced at Annexure – R2, page 379. Placing reliance on the
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aforesaid submissions, it is submitted that it is erroneous on
the part of the petitioner to state on oath that no opportunity
of being heard was granted to the petitioner. The aforesaid has
also been endorsed by the learned Tribunal in its order dated
03.01.2007. It is submitted that the petitioner was provided
with all the possible opportunities to defend his case and that,
there is no procedural lapse on the part of the respondent
authority while passing the impugned order.
5.5 Ms. Ashar, learned AGP submitted that the petitioner has
given example of the case against Shri M.P. Thakar wherein,
the petitioner has alleged that Shri Thakar is given lighter
punishment. Answering to the said contention, it is submitted
that both the inquiries have been conduced on different
ground and different period with different charges. It is
submitted that the petitioner is wrongfully associating or
linking these cases to take advantage under Article 14 by
alleging discriminatory treatment and thereby, misleading the
Court. It is submitted that the petitioner herein has also chosen
not to avail the benefit of Rule 9(16) of the Gujarat Civil
Services (Discipline and Appeal) Rules, 1971 which provides for
the delinquent to examine the witnesses. It is submitted that
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the chargesheet of the petitioner as also the other employees
is examined by the fact finding and evidence taking authority.
In each case of inquiry, different punishments can be imposed
by the disciplinary authority in the same departmental
proceedings also. Reliance is placed on the ratio laid down by
the Hon’ble Supreme Court in case of Obettee (P) Ltd. vs.
Mohd. Shafia Khan reported in (2005) 8 SCC 46.
5.6 Ms. Ashar, learned AGP lastly submitted that the scope of
judicial review under Article 226 of the Constitution of India, is
very limited. It is for the disciplinary authority or the appellate
authority to decide the nature of punishment to be given to a
delinquent employee keeping in view the seriousness of
misconduct committed by such employee. To substantiate the
aforesaid submission, reliance is placed on the ratio laid down
by the Hon’ble Supreme Court in case of State Benk of India
vs. A.G.D. Reddy reported in 2023(11) Scale 530 and in case of
Lucknow K. Gramin Bank (Now Allahabhad, U.P. Gramin Bank)
vs. Rajendra Singh reported in 2013 (12) SCC 372.
6. Ms. Mamta R. Vyas, learned advocate appearing for the
petitioner in rejoinder emphasized on the contentions raised
earlier and submitted that Mr. M.P. Thaker was also charged
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for corruption and the charges were also serious in nature. The
said charges were held to be proved however, Mr. Thaker is
imposed minor punishment whereas, the petitioner is ordered
termination. It is submitted that the petitioner has very clear
service record and it is only upon the petitioner’s wife illness
that the petitioner has not accepted the promotion and made a
representation to the higher officer to transfer the petitioner
from Botad to Ahmedabad. It is submitted that because the
petitioner had made complaint against the higher officer for
certain irregularities committed by them, the petitioner is
dismissed from service. It is submitted that one charge put
against the petitioner is with regard to the Kisan Vikas Patra
wherein, the petitioner pointed out that documents were
prepared by one Shri J.B. Prajapati who was working as a Social
Welfare Officer and Superintendent and he was in the charge
of entire Kalol Taluka and the entire project of ‘Kunvarbai
Mameru’ was in his supervision. He has signed all the
documents and approved the same and is duly signed by him
in the Register. The petitioner was never in charge of the said
project. In spite of this, the Inquiry Officer, Mr. M.P. Thaker and
other officer, held the charge to be proved without considering
the documents on record.
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6.1 Ms. Vyas, learned advocate for the petitioner submitted
that the Gandhinagar District was divided in 4 Talukas for
different project work and the petitioner was given the charge
of Dehgam Mansa, and therefore, the charge put up of
misappropriation for the project of ‘Kunvarbai Mameru’ of Kalol
Taluka is false and fabricated. It is submitted that in 1 to 56
KVPs, the addresses are wrongly shown but, that was done by
the Project Officer who was handling the aforesaid project and
the very Supervisor. It is submitted that the petitioner is
nowhere concerned in the aforesaid project. Further, the
charge was put up that the KVP was delivered late but, the
same was the responsibility of Shri J.B. Prajapati and District
Social Welfare Officer Shri D.P. Parmar, Class – II, who were in
the aforesaid project. It is submitted that Shri J.B. Prajapati is
required to be punished whereas, since the petitioner has
made complaint against the higher officer about
misappropriation and irregularities, the aforesaid charges are
put on the shoulder of the petitioner which is completely
illegal.
6.2 Ms. Vyas, learned advocate submitted that Shri R.M. Patel
was handling the charge of aid for home ‘Kunvarbai Mameru’s
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project, Manvav Garima Project and other projects for
Gandhinagar District wherein, Shri Patel was collecting the
amount of Rs.2500/- per Form; from the persons which was
illegal. It is submitted that though the home is not constructed,
the same is sanctioned by him and though, the norms are not
fulfilled in the construction, in spite of that loans are
sanctioned. It is submitted that when all these things were
brought to the notice of the petitioner, the petitioner made
representation for such irregularities for all these charges; the
names which are mentioned in the earlier affidavit, the inquiry
was held against them for misappropriation of the charge and
though, the charges are proved against them, they are
imposed only minor punishment. It is submitted that
considering the entire documents, there should be no charge
against the petitioner because the entire work under the
different projects are done by other officers who are
responsible for the same and they are given clean chit
whereas, the petitioner is dismissed from the service. It is
submitted that the order of dismissal is illegal and it is required
to be quashed and set aside. It is submitted that there are no
adverse remarks against the petitioner till 2006.
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6.3 Reliance is placed on the following decisions:
1. 2017 (2) SCC 308
2. 2015 (5) SCC 549
3. 2010 (2) SCC 497
4. 2011 (14) SCC 379
5. 1985 AIR 504
6. 1984 (3) SCC 316
7. 2009 (15) SCC 620
8. 2009 (7) SCC 30
9. 1995 (6) SCC 749
Analysis:-
7. Having heard the learned advocates appearing for the
respective parties, the following emerge:
7.1 The petitioner herein came to be appointed as Junior
Clerk w.e.f. 01.10.1983 by the respondent authority and
thereafter, promoted as Social Welfare Supervisor at Botad,
Bhavnagar. The petitioner herein made complaint before the
higher authority with respect to irregularities prevailing in the
State of Gujarat wherein, the said complaint was with respect
to Shri K.G. Vanjara – respondent No.2 herein, who is a Director
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of Social Welfare Department having connected with the
corruption activities for the appointment of teachers as well as
other administrative work in Ashram Shala and creating false
certificates of Baxi Panch; with necessary evidences. The
complaints were also filed against Mr. M.P. Thaker, Mr. Kanara,
Mr. Vaghani, Mr. Khundla and Mr. N.C. Shah before the higher
authority and copy thereof were sent to the Governor of
Gujarat and Hon’ble Chief Justice of the High Court. The said
complaints were also sent for publication in daily newspaper.
7.2 The petitioner came to be suspended w.e.f. 06.04.2004.
The petitioner was served with the chargesheet on 11.10.2004
for irregularities in housing grants under the Pandit Dindayal
Upadhyay Awas Yojana as well as other individual irregularities
in sanctioning the grants under the said scheme, which read
thus: (true translation)
“(1) Shri D.V. Vyas has, without following the provisions, terms and
conditions of the Pandit Dindayal Upadhyay Awas Yojana, prepared
and sent the proposals/ recommendations of sanctioning grants for
already existing houses and got the grants sanctioned from the District
Officer.
(2) He has sent proposals/ recommendations, to the District Officer,
for sanctioning grants to the applicants who used to live in joint
families, who were well-to-do and not in need of a house.
(3) Proposals/ recommendations as to sanctioning grants were sent
to the District Officer on the basis of the applications drafted under the
Pandit Dindayal Upadhyay Scheme which came into effect vide the
Resolution dated 28/01/2004 as well as other earlier material records.
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Fresh material records, as required under the aforesaid scheme which
came into effect, had not been obtained.
(4) Housing Grant Application Register has not been maintained in
the prescribed format and applications of the applicants have not been
sanctioned in order of their inward.
(5) Physical verification of the sites and drawing of the panchnamas
with regard to the applications for housing grants have not been done.
(6) The applications as to proposals/ recommendations for Second
and Third installments have been forwarded to the District Social
Welfare Officer and have got the grants sanctioned without due
verification as to the First Installment was sanctioned under which bill
number and on which date and whether there was a need for the
second or third installment or not.
(7) Grants have been sanctioned for the bogus applicant and
thereafter, got the records thereof misplaced, directly or indirectly.
(9) The ceiling for sanctioning housing grants has been determined
qua the resolutions from time to time. The proposals/
recommendations as to sanctioning grants, over and above the ceiling,
have been made for the second and the third installments and thus,
government funds have been misappropriated.
(10) The proposals/ recommendations as to sanctioning grants for
the third installments for the applicants who had not utilized even the
first and second installments to construct houses have been forwarded
and got the grants sanctioned and thus, government funds have been
misappropriated.
(11) Shri Vyas, the Inspector, Social Welfare Department, took bribe
from the applicants who were not entitled to the housing grants and
got their grants sanctioned by sending their proposals/
recommendations to the District Officer. Thus, irregularities have been
committed in collusion with the ineligible applicants by sending their
proposals/ recommendations to the District Officer.
(12) The Talati-cum-Mantri, Borij, Taluka & District Gandhinagar has
fabricated records in his name and the same was informed to the
District Social Welfare Officer. The letter informing the same has not
been brought to the notice of the District Officer. Thus, the issue of
fabricated records have been concealed intentionally to give an open
space for the irregularities.
(13) The cheques issued to the individual beneficiaries of the
schemes as well as the Kisan Vikas Patras have been withhold at the
office for six months to two years and thus, deprived the beneficiaries
from the benefits entitled to them.”
7.3 The departmental inquiry came to be initiated vide memo
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dated 11.10.2004 against the petitioner herein regarding his
work and conduct while performing duties at Dahegam and the
petitioner had the additional charge of Mansa wherein, the
explanation was sought for from the petitioner. The petitioner
herein submitted explanation by letter dated 09.11.2004
wherein, it was requested to exonerate him from all the 17
allegations as there was no truth in the said allegations.
Considering the defence statement of the petitioner herein, it
was decided to initiate departmental inquiry as per the rules
with respect to the allegations levelled against the petitioner
herein vide order dated 14.12.2004.
7.4 This Court has perused the Inquiry Report which is duly
produced at page 122 to the petition. The charges are
extensively considered by the Inquiry Officer which read thus:
(true translation)
“3.1) The Presenting Officer has discussed in his brief the details
about various allegations, the defence of the delinquent and the
details as to how the allegations are proved for each of the allegation.
Further, he has opined that all the allegations against the delinquent
are proved.
3.2) The Presenting Officer has discussed the first allegation against
Mr. Vyas that while Mr. Vyas was performing duties at Dahegam,
irregularity was observed in the submission for granting housing
subsidy to total 15 beneficiaries under the housing subsidy scheme in
the year 2003-2004 and in the recommendation made for which
beneficiary for granting first installment of Rs.10,000/- as the housing
subsidy.
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3.3) He has argued that he has not taken into consideration the
existing instructions before sending the applications of 15 applicants
for housing subsidy and thus he has got the subsidy granted.
3.4) Since 12 out of the 15 beneficiaries had constructed houses in
the previous years and the subsidy was not permissible on constructed
houses, however, Mr. Vyas had submitted recommendation for
payment of housing subsidy. Thus, he had wrongfully submitted
recommendation for subsidy, in collusion with the beneficiary and
misused the Government funds.
3.5) Moreover, three of the applicants used to reside in joint family
and as there were other houses in the village. Therefore, there was no
requirement of houses and they were financially sound. However, Mr.
Vyas had submitted recommendation without verification. Further, the
necessary documents were not annexed along with application form
and Mr. Vyas had submitted recommendation for approval without
verification of the material evidence.
3.6) Mr. Vyas did not maintain the application registers in the
prescribed proforma and submitted the applications for approval
arbitrarily. Further, the provision of the resolution dated 28/01/2004
was not complied with, yet Mr. Vyas has erred by not preparing the
panchnama of the condition of place as the person who conducted site
inspection in 15 cases. Mr. Vyas has defended in this regard that the
aforesaid allegation is uncorroborated. The Presenting Officer stated
that the arguments made by Mr. Vyas in that regard are not
reasonable. The Presenting Officer stated that this explanation of Mr.
Vyas cannot be accepted because he was shown the original record in
person and Mr. Vyas had not prepared the recommendations of
housing subsidy in accordance with the scheme of the resolution dated
28/01/2004. The Presenting Officer opined that Mr. Vyas had submitted
recommendation of housing subsidy to 12 beneficiaries who had
constructed houses in the previous years and he had submitted
recommendation of three beneficiaries who did not need house.
Thereafter, on the basis of report of Preliminary Inquiry Officer and
statement of a Government witness, recorded during departmental
inquiry, the Presenting Officer argued that the recommendations of the
beneficiaries were not prepared as per rules. The Presenting Officer
has also opined that Mr. Vyas has not been able to challenge the
statements of the Preliminary Inquiry Officer. Therefore, there is
reason to believe the details submitted on record during the
preliminary inquiry as true.
3.7) In allegation no.1(C), it has been stated that the original
application forms of the 15 beneficiaries which were prepared by Mr.
Vyas, were shown to him. The Presenting Officer has argued that upon
checking these original application forms, the documents to be
obtained along with the application forms were not prepared but the
material evidence annexed with the old application form was taken
into consideration. Thereafter, the Presenting Officer has described in
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detail about the allegation of not maintaining the register, as
mentioned in allegation no.1 (D) and he has argued that Mr. Vyas has
not maintained the register as per existing rules and therefore, the
defence of Mr. Vyas can not be considered in this regard. In allegation
no.1(E), it is mentioned that panchnama was not submitted in any
case. Therefore, the Presenting Officer has opined that this allegation
is proved since it is a record based matter.
3.8) In other allegation leveled against Mr. Vyas, it is stated that he
had submitted recommendation for payment of subsidy as third
installment on the basis of certificate about completion of construction
by Mr. Punjsinh Adarsinh Rathod and Mr. Chandarsinh Takhatsinh
Chauhan. In another case, Mr. Vyas has submitted recommendation for
payment of subsidy as second installment. Mr. Vyas had also
submitted recommendation for payment of subsidy for another
applicant. However, on the basis of statements of the applicants, the
houses were not constructed from the subsidy. It has been alleged that
Mr. Vyas has committed irregularity and wasted the Government funds
by getting sanctioned the subsidy, in collusion with the applicants,
without site verification and without checking as to when the first
installment was paid in this regard and whether the application of the
applicant is at the office or not. Mr. Vyas has defended in this regard
that the necessary details are not provided to him in the evidence.
Therefore, it is not proved that the defects were committed by him.
The Presenting Officer has refuted this argument and stated that the
applicants mentioned in the allegation have given statement before
the Inquiry Officer and Mr. Vyas has been given the evidences in that
regard. On the basis of this detail, it is proved that the applicants who
received the subsidy, have not constructed house from that subsidy.
The Presenting Officer has also argued that original application forms
of four beneficiaries are not available but as per the certificates of the
Additional Assistant Engineer, the beneficiaries have carried out
construction upto lintel level and Mr. Vyas has recommended to pay
the subsidy behind these certificate. All of these evidences have been
provided to Mr. Vyas and he has been shown the same and a copy of
these certificate is provided to the delinquent. If Mr. Vyas had
conducted site verification, the payment of second/ third installment to
the beneficiaries could have been prevented. Thus, the Presenting
Officer has argued that Mr. Vyas has wrongfully submitted
recommendation for subsidy without verification, in collusion with the
beneficiaries.
3.9) As per allegation no.3, a person named Suraji Chanduji Thakor
was sanctioned the amount of Rs.10,000/- as third installment on the
basis of recommendation for approval of housing subsidy. However, as
per the statement of the Sarpanch of the village, no person named
Suraji Chanduji Thakor is residing in the village. Therefore, it has been
alleged that Mr. Vyas has committed financial irregularity by getting
sanctioned the subsidy, based on his recommendation arbitrarily,
without site verification and without checking. The delinquent has
argued that he had submitted recommendation for the payment of
third installment on the basis of the certificate and the District Social
Welfare Officer had approved the same. He has argued that
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recommendation note is not included in the evidence and the
application is not taken on record, such statement is without direct
evidence. He has argued that in order to know the truth, it is not
inquired that who received the cheque which was sent to the applicant
through registered post and it was encashed by whom. Therefore, the
allegation based only on the statement of the Sarpanch is not true.
3.10) The Presenting Officer has refuted the aforesaid defence and
argued that the beneficiary Suraji Chanduji Thakor was paid the
amount of Rs.10,000/- as third installment on 22/10/2003. Therefore,
the defence of Mr. Vyas can not be accepted that the cheque was sent
after his suspension because Mr. Vyas was suspended on 06/04/2004.
The Presenting Officer has also argued that the installment of subsidy
was sanctioned on the basis of recommendation made behind the
certificate by Mr. Vyas. The Presenting Officer has also argued that this
defect could have been prevented if he had made site inspection or
verification regarding the applicant before making recommendation on
the certificates for payment of subsidy. Therefore, the Presenting
Officer has argued that Mr. Vyas has submitted recommendation for
payment of subsidy on fabricated record arbitrarily, without
verification or checking, in collusion with the beneficiaries.
3.11) In allegation no.4, it has been alleged that defect was
committed in payment of Rs.10,000/- as second installment under the
housing subsidy scheme to Mr. Udesinh Punjaji Thakor. As per the
statement of the aforesaid applicant dated 24/03/2004, he had
constructed house valued at Rs.2,00,000/-. Therefore, it has been
alleged that Government funds were wasted on the basis of
recommendation submitted by Mr. Vyas even though the value of the
constructed house was higher than the prescribed limit.
3.12) The delinquent has argued that there is no documentary
evidence as to when the first application of the applicant was
submitted, who verified it, who sanctioned it and when the first
installment was paid. The house valued at more than Rs.2,00,000/- is
not owned by the applicant only but it includes the value of his
brother’s house as well. Moreover, Udesinh Thakor is an advocate and
he has constructed house with terrace after obtaining money from
bank. Therefore, the delinquent has argued that the allegation is made
without considering the increased prescribed limit for rural and urban
areas and he denies the aforesaid allegation.
3.13) The Presenting Officer by refuting this argument has contended
that it is clear from the records that Mr. Vyas only has made
recommendation for the payment of subsidy for the second installment
to the beneficiary; and Mr. Vyas has made recommendation for the
payment of subsidy for the third installment based on the certificates.
Thus, Mr. Vyas has made recommendation for the second and third
installments; and thereby it is the reason to believe that despite being
aware of the value of the house, Mr. Vyas made recommendation for
the payment of subsidy in collusion with the beneficiary for the
constructed house having the value exceeding the ceiling.
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3.14) In the fifth allegation leveled against Mr. Vyas that he has
granted Rs.10,000/- for the second installment to the applicant namely
Shri Thakor Maganji Punjaji, under the Housing Subsidy Scheme.
However, as per the statement dated 24-03-2004 of the said applicant,
he has not constructed a house from the subsidy received. It is alleged
that Mr. Vyas has misappropriated the money by getting the subsidy
granted through recommendation for the second/third installment,
without conducting site verification or confirmation.
3.15) The delinquent has defended here by stating that he made
recommendation for making payment on the basis of certificate issued
by the officer of the Taluka Panchayat, Dehgam after making
verification of construction of the house by site visit; but the complaint
has been registered due to dispute between the two brothers. He
contended that the allegations have been fabricated without including
in the evidences- the concerned documents, affidavit filed by Thakor
Udesinh in the Court and the statements regarding the receipt of the
cheque by the inquiry authority the next day.
3.16) The Presenting Officer has contended here that as per the
statement of the beneficiary produced by the Preliminary Inquiry
Authority, he has not constructed the house from the amount of
subsidy. According to the statement recorded by the Preliminary
Inquiry Authority as per the site condition, the grant was allotted to
both the brothers; but only one house has been constructed; and its
apparent evidence is found from that evidence-33. Mr. Vyas has been
apprised of this evidence. Therefore, it is clear that Mr. Vyas did not
conduct the procedure according to the rule; and thereby, he made
recommendation for allotment of subsidy, in collusion with the
beneficiary.
3.17) In allegation no. 6, three applicants were granted Rs.10,000-00
each under the House Subsidy Scheme. However, it is the matter of
misappropriation of Government money to have granted the subsidy
by making proposal/recommendation for getting the subsidy granted in
collusion with the beneficiaries without verifying or ascertaining as to
when, by which order no., and date the applicants were granted the
first installment as also without conducting site verification or
ascertaining the records.
3.18) Mr. Vyas has defended here by stating that the
recommendations for the grant of first application of all three
applicants and the payment for the first installment were made by his
predecessor. Hence, wrongly the allegation has been leveled against
him, and denies the same as it is without corroborating evidence and
false.
3.19) The Presenting Officer by refuting this argument contended that
during the inquiry in the office, Mr. Vyas could not produce the
applications of the applicants mentioned in the allegation; and as per
the office record, Mr. Vyas has made recommendation to make the
payment of subsidy for the second and third installments on the
photocopies of certificates without confirming the records. The mention
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made by Mr. Vyas regarding the responsibility of the predecessor
inspectors is inappropriate. Mr. Vyas did not confirm the certificates;
however, has made recommendation in collusion with the
beneficiaries, to make the payment of subsidy by relying upon the
photocopies.
3.20) In allegation no. 7, it is alleged of falsely granting to the
applicants Mr. Jagatsinh Sartansinh and Rathod Jugatsinh Cherusinh,
the amount of Rs. 10,000-00 for the third installment under Housing
Subsidy.
3.21) The delinquent has contended in his defense herein that he
made inquiries by visiting the village after production of the
certificates; and both the applicants had shown their own houses to
him. Though, he made recommendation to pay the third installment
after verification of ascertainment that both the applicants had
constructed the houses. Thus, there is no misappropriation of
Government money and, thereby, he denies the allegation.
3.22) The Presenting Officer has contended here that Mr. Vyas wanted
to examine the beneficiaries; but could not produce them at the time
of inquiry. In both the cases, Mr. Vyas has only conducted site
verification of the beneficiaries and has made recommendation for
grant of subsidy on the certificates issued by Taluka Panchayat.
However, Mr. Vyas did not confirm these certificates; and it is brought
on record that as per the statements of the beneficiaries, they did not
construct the houses.
3.23) In allegation no. 8, it is alleged that six beneficiaries were
granted the subsidy of Rs.10,000-00 each for the second and third
installment under Housing Subsidy Scheme; which is not as per the
rules. The house constructed by the beneficiaries or the subsidy
received was not utilized for house construction; and therefore,
allegation is levelled against Mr. Vyas that the payment has been
made inappropriately.
3.24) Mr. Vyas has contended here that the allegation is fabricated on
the basis of evidences in the form of statements of the beneficiaries;
which bears no substance; and he would produce his statement of
defense in detail only after examining the deponents as witnesses and
after production of the application and certificates pertaining to the
installments. Thereafter, he described the situations regarding each
applicant; and contended that he denies the allegation by terming it as
fabricated.
3.25) The Presenting Officer contended here by mentioning the
evidence no. 38, 39, 40, 41 and 42 that the house has not been
constructed despite total amount of subsidy is paid. Mr. Vyas made
recommendation for making payment of subsidy on the application
sheet of these six beneficiaries. Thereafter, the Presenting Officer has
furnished the detail of each applicant; and contended that Mr. Vyas has
not confirmed or examined the certificates of competent authority
regarding completion of the house. Mr. Vyas has made
recommendation without confirming whether the beneficiaries have
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constructed the house from the subsidy paid. The Presenting Officer
opined that the delinquent did not examine during the inquiry the
beneficiaries as the defense witnesses or even the inquiry authority.
3.26) In allegation no. 9, it is alleged that three beneficiaries were
incorrectly granted Rs.10,000-00 each under the Housing Subsidy
Scheme for the second installment. Rathod Manusinh Kodarsinh and
Rathod Amrutsinh Kodarsinh, as per the statement of his father, did
not construct the house from the subsidy received; but received the
subsidy on the constructed house. Furthermore, as per the statement
of third applicant namely, Rathod Abhesinh Naransinh, the house is not
constructed on the plot mentioned in the application. Despite this, Mr.
Vyas falsely made proposal for making the payment of subsidy without
conducting any site verification regarding the condition of the
applicant’s house only by relying upon the certificate of Taluka
Panchayat; thereby, in collusion with the applicants, misappropriated
Government money.
3.27) The delinquent, Mr. Vyas, has refuted the allegation in his
defense here and clarified that Mr. Manusinh and Amrutsinh are
brothers; and they have constructed the house from the subsidy;
however, their father’s statement has been recorded; who is suffering
from mental illness; and therefore, he has made false deposition. In the
case of the third applicant namely, Abhesinh, house has not been
constructed on the plot mentioned in the application due to dispute
among the brothers. However, he has constructed the house on an
open plot of his ownership. In this connection, Mr. Vyas has stated that
he has made recommendation after confirming the construction of the
house on the basis of certificate issued by the Panchayat in that
regard. He has also requested to examine the applicants as witnesses.
3.28) The Presenting Officer by refuting this argument has contended
that the delinquent could not produce the witness during the inquiry;
but Mr. Vyas has made recommendation for making payment of
subsidy to all the three applicants. Mr. Vyas did not confirm or examine
before making the recommendation. But, the houses were not
constructed till the in-person visit of the inquiry authority. The
Presenting Officer also contended that the delinquent stated that
Kodarsinh is suffering from the mental illness; however, the delinquent
could not produce any supportive evidence in that regard. However, it
is the fact that the beneficiary has not constructed the house from the
subsidy.
3.29) In allegation no. 10, Rathod Pruthvisnh Sardarsinh was granted
Rs.10,000-00 as subsidy under the Housing Subsidy Scheme for the
third installment; however, as per the statement of the applicant, he
has not constructed the house from the subsidy but has utilized it for
personal expenses. Thus, it is alleged that Mr. Vyas has
misappropriated the Government money by making proposal/
recommendation for grant of subsidy in collusion with the applicants
without conducting site verification.
3.30) The delinquent has defended here that after the application for
the subsidy was made, his son has constructed a pucca house on his
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ancestral land by utilizing the subsidy. He wants to examine the
deponent as the witness. He has made submission that the allegation
is false. The delinquent has also contended that the applicant and his
wife are suffering from mental illness.
3.31) The Presenting Officer by refuting this argument submitted that
the delinquent wanted to examine the applicant, but could not do so
during the inquiry. Despite the statement of the beneficiary that the
house is not constructed from the subsidy, Mr. Vyas has made
recommendation to make the payment of subsidy for the third
installment in collusion with the beneficiary without confirmation or
site verification.
3.32) In allegation no. 11, it is alleged that a false recommendation
has been made for the grant of Rs.10,000/- for the second and third
installments to the two applicants under Housing Subsidy Scheme.
However, as per the statement of the applicant’s wife, the applicants
have constructed the house which bears the value exceeding the
prescribed ceiling.
3.33) The delinquent has contended here that both the applicants
have utilized the amount of subsidy for the construction of the house.
Thereafter, he has contended by stating the details of applicant’s
occupation that they have constructed good quality houses by adding
the amounts from savings. The delinquent wants to examine the
witnesses and denies the allegation.
3.34) The Presenting Officer has contended here that both the
beneficiaries have constructed the houses that bear value exceeding
the prescribed ceiling; and Mr. Vyas has made recommendation in that
regard. Mr. Vyas neither confirmed the certificate of house completion
issued by the Taluka Panchayat nor could he produce the applicant as
the witness. Thereby, the Presenting Officer has contended that Mr.
Vyas has made recommendation for making payment of subsidy in
collusion with the applicants.
3.35) In allegation no. 12, it is alleged that while making the
recommendation for the payment of subsidy of Rs.10,000-00
irregularly for the second and third installment under the Housing
Subsidy Scheme to the two applicants, Mr. Vyas has misappropriated
the Government money by making the proposal / recommendation
without conducting site verification.
3.36) The delinquent has defended here by stating that the statement
of Mahotji has not been recorded, but the allegation has been
fabricated by recording the statement of his wife who is under-
educated; and therefore, he wants to examine the beneficiary as
witness. The delinquent contended that the second beneficiary has
accepted the facts of house construction; thereby, the delinquent
termed the allegation as fabricated and false; and demanded to
examine the witnesses who gave statements.
3.37) The Presenting Officer has contended here that as per the
statement of the wife of the first applicant, the house is not
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constructed from the subsidy; but Mr. Vyas has made recommendation
for payment of subsidy by relying upon false certificates. He further
contended that Mr. Vyas wanted to examine the witness; but he could
not produce the applicant as a witness; and likewise, he could not
produce the second applicant as a witness.
3.38) The contention of the Presenting Officer is such that Mr. Vyas
has made recommendation by relying upon the certificates of house
construction, issued by the Taluka Panchayat, despite the fact that
house was not constructed; and thus, he has made recommendation
for the grant of subsidy in collusion with the beneficiaries without any
confirmation or verification.
3.39) In allegation no. 13, it is alleged that the applicant namely, Mr.
Chauhan Pathubhai Kalabhai and Thakor Bhathiji Khodaji were
incorrectly granted the subsidy of Rs.10,000-00 each for the second
and third installment under Housing Subsidy. In both the cases, the
applicants have not utilized the subsidy for the construction of the
house as per the rule, but spent it for other purposes. It is alleged that
an applicant has paid Rs.2,400-00 to the Social Welfare Inspector for
getting the subsidy. Allegation on Mr. Vyas is that he committed
irregularity by making false proposal/recommendation after receiving
the bribe amount of Rs.2,400-00.
3.40) The delinquent here has defended by saying that the plot was
open when Chaudhary Pathubhai made the application for subsidy; and
he was living in a rented house. His financial transactions were not
clear and as the applicant was addicted, he deposed in intoxicated
state. He has also requested to examine the applicant.
3.41) The delinquent made such representation against the second
applicant that he is a heavy headed person and when they went for
site-inspection, he showed the house next to it and told it to be of his
own and thus, he has recommended for the certificate. This person is a
heavy headed person and often complaints against government
officers/employees and is a black-mailer. Also, he has given false
statement for him being offered bribe and so, he denies the charges.
3.42) Presenting Officer, herein has contended that as per the
statement of beneficiary Pathubhai, he did not utilise the subsidy
amount for construction of house, but Mr. Vyas has recommended for
the sanctioning the subsidy on the basis of certificate of completion of
house issued by the Panchayat. By forwarding such contention that Mr.
Vyas has made such recommendation without conducting site
inspection or verification, it has been submitted that the delinquent
could not produce Pathubhai as witness during formal inquiry.
3.43) It is an argument of the Representing Officer that as per the
statement of the beneficiary, he did not construct house but he has
paid Rs.1400/- in cash to Mr. Vyas and also as a prosecution witness he
has stated during departmental inquiry that he has given Rs.2400/- to
Mr. Vyas towards bribe.
3.44) Thereafter, another beneficiary Mr. Bhathiji also accepted
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during his formal departmental inquiry that he has given Rs. 1400/- to
Mr. Vyas towards bribe, such is the argument of the Representing
Officer. By citing here reference of a departmental inquiry conducted
against another employee thereby mentioning deposition of
beneficiary Mr. Ramanji, he states that he has given bribe of Rs. 1500/-
to Mr. Vyas, such reference has been given by the Presenting Officer.
3.45) In the charge no.14, there is no signature of the Talati-cum-
Mantri in the material evidences to be adduced by him, false signature
has been made in his name, and false evidences have been created,
thereby subsidy is obtained falsely, such is an allegation. But it is an
allegation that Mr. Vyas has committed financial irregularity by not
bringing details of the letter into knowledge of the District Officer. The
delinquent herein, contended in defence that Borij village belongs to
Gandhinagar Taluka and the district is not under his jurisdiction.
Hence, it is not a matter of his concern. The accused defended that
such an accusation is funny and false. Presenting Officer herein, has
contended that when Mr. Prajapati drew attention of Mr. Vyas vide
letter dated 9/2/2001, Mr. Vyas was serving as Social Welfare
Inspector, Gandhinagar, he has signed the endorsement for the receipt
of letter but he did not bring the letter to the knowledge of the
concerned authority.
3.46) In the charge no.15, Despite of the instruction to dispatch the
cheques to the beneficiaries under various schemes within seven days
through R.P.A.D, three cheques under various schemes by the
Gandhinagar office were kept until being time-barred and thus, due to
the dereliction of duty and negligence by Mr. Vyas, beneficiaries have
been devoid of the subsidy and did not receive timely benefits.
3.47) It is herein defended by the delinquent that cheques of various
scheme are to be delivered to the beneficiaries at their respective
address, but as the area is backward, and there being lack of
awareness among applicants, necessary procedure was carried out by
filling up forms on visiting their homes and obtaining necessary
documents within the stipulated time limit. The delinquent said that as
the girls were illiterate and their parents having no knowledge, and
there being election work, and because of the newly wedded couples
having gone to trip, there was difficulty in obtaining their signatures,
and as the deadline was over, it were sent to the District Treasury
Office for necessary amendment, but Social Welfare Officer was on
leave. He did not keep the cheques on hold either deliberately or by
negligence. Moreover, cheque of Rs. 9000/- was sent to the office of
Post Master after marriage of applicant’s daughter but as there were
lack of Development Papers (Vikaspatra), it caused delay.
3.48) Presenting Officer, on condemning the contentions of the
delinquent presented that there is clear instruction to send the cheque
to the beneficiaries within seven days. Despite of it, Mr. Vyas has
shown negligence towards duty by keeping on hold the cheques dated
3/10/2002 and 17/12/2003 in office till April 2004. It is fact that
cheques mentioned in the charges were recovered from the drawer of
Mr. Vyas and thus, it is established that no procedure was done by Mr.
Vyas for the said cheques.
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3.49) In the charge no.16, Development papers (Vikaspatra) of 56
beneficiaries were pending in the office for more than six months,
details of which are mentioned in Charge no. 16. It is accused that by
not taking timely action, Mr. Vyas has kept the beneficiaries devoid of
their benefits.
3.50) Delinquent has contended for the negligence in various
instances. He has given contention that he is not concerned with the
schemes “Dikri Rudi Sachi Mudi” and “Kunvarbai nu mameru” and
hence, he is not answerable in that regard. Delinquent has presented
various justifications for delay in few cases and he was very much
over-burdened with responsibility. It is represented by the delinquent
that despite of this, there has not been any gross-delay.
3.51) Presenting Officer on citing the statement of defense and facts
mentioned on record, contended that, it is a matter of fact that savings
certificate of total of 56 beneficiaries were kept pending by Mr. Vyas
because of keeping Mr. Vyas under suspension on 07/04/2004, while
opening the drawer of his table, these savings certificate were
recovered. Presenting Officer herein, has also cited the copy of
panchnama in which there is mention about the details of savings
certificate being recovered from the drawer of the table of Mr. Vyas.
3.52) In the charge no.17 also, the savings certificate of 9 different
beneficiaries were dispatched, but by keeping them pending for more
than two years on being returned, it is alleged against Mr. Vyas to
have shown negligence towards duty. Herein, the delinquent
contended that because of the applicant’s being migrated or their
address being changed, these cheques were kept pending, so there is
no negligence towards duty in it.
3.53) Presenting Officer herein contended that these savings
certificate which belonged to 9 beneficiaries, are recovered from the
drawer of Mr. Vyas on 7/4/2004. During this time, Mr. Vyas was serving
as Social Welfare Inspector, and so, he was required to hand over the
Kisan Bachatpatra (Farmers’ Savings Certificate) to his successor in
charge, but as he did not carry such procedure, his attempt to defend
himself from having shown negligence towards duty is futile and
cannot be accepted. Presenting Officer has even stated that all these
records were shown in person to Mr. Vyas and even his signatures for
it being shown to him were obtained on 30/10/2004.
3.54) Thus, Presenting Officer has contended that Mr. Vyas has
caused gross-negligence by misappropriation of government subsidys
to the tune of Rs. 4,20,000/- and has shown lack of dedication and
honesty towards duty and thus, is responsible for behaviour, which is
unbecoming of a government employee.”
7.5 While preparing the Inquiry Report, the defence
statement of the petitioner herein was also considered by the
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Inquiry Officer. The charges levelled against the petitioner are
held to be proved beyond doubt wherein, it is discussed in
detail how the 17 charges are proved against the petitioner.
(true translation)
“5.1) In charge number-1, Mr. Vyas had sent a proposal for
disbursement of subsidy to 15 applicants under the Housing Grant
Scheme in the survey year 2003-04 which was defective. He had not
taken into consideration the existing instructions in this regard. Mr.
Vyas has defended that new forms were issued vide the resolution
dated 28/1/2004. But he was not given any kind of instruction or
guidance in this regard. But he himself had called for the incomplete
forms and submitted the necessary documents and had himself done
proper verification and made a recommendation. No any document
was incomplete. He has explained the situation of the applicant in
which circumstances he made the recommendation in the case of 15
beneficiaries. The arguments made by Mr. Vyas that he was not given
any kind of instruction or guidance are hollow. Lame defence Because
it is the duty of every employee to act as per the existing rules and it is
not necessary to give instruction or guidance to every employee
everywhere. Mr. Vyas has not presented any supporting evidence
regarding the situation described in the case of each applicant. But,
during the investigation of the investigating officer, even though 12
beneficiaries had constructed houses, Mr. Vyas proposed to disburse
subsidy to them. Although 3 beneficiaries did not need houses, he
recommended for subsidy and thus it is clear that Mr. Vyas is
responsible for making the proposal without considering the existing
instructions. In this way, he has committed irregularities and
sanctioned subsidy arbitrarily.
Summary: Allegation-1 is proved.
5.2) In charge-1(a), out of the 15 beneficiaries mentioned
above, 12 cases of beneficiaries are such that they had constructed
houses but Mr. Vyas has recommended for disbursement of subsidy
without any verification. According to the report of the investigating
officer, Mr. Vyas has not verified this as per the rules and has proposed
to receive subsidy in an irregular manner. The investigating officer was
produced as a witness for the government side and he also testified
that he had constructed houses in these 12 cases. In these
circumstances, charge-1 (a) is proved.
5.3) In allegation-1(b), out of the 15 mentioned in allegation-
1, 3 applicants were living in a joint family and since they had other
habitable houses in the village and were well-off, there was no need for
a house, yet Mr. Vyas has wrongly proposed in the beneficiaries’
meeting. Mr. Vyas’s defense in this regard is that the investigating
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officer has taken a statement based on the established facts. But, the
charge sheet cannot be considered as evidence. Mr. Thakar’s
testimony is in support of the allegation. Therefore, Mr. Vyas’s
argument cannot be accepted because Mr. Thakar was produced as a
witness for the Government. However the accused has not been able
to prove that his testimony is not as per the rules. Mr. Thakar has
clearly stated that all the statements taken by him were taken in his
presence. In these circumstances, charge-1(b) is completely proved.
5.4) In charge – 1(a), Mr. Vyas had made a proposal for
sanction of grant without verifying the necessary evidences to be
obtained in the pending applications for housing grant. Similarly, in
charge – 1(d), the applications were to be sanctioned as per the order
of priority and the registers were to be maintained accordingly, but Mr.
Vyas has committed a mistake by not maintaining the registers. Here
also, the inquiry officer had submitted an inquiry report regarding the
mistake noticed during his inquiry in this regard, and the proposal has
not been prepared as per the rules, and since the inquiry is based on
the records at the respective time, there are no reasons for not
believing it. Therefore, charges (a) and (d) are also clearly proved.
5.5) In charge – (e), Mr. Vyas has not conducted a detailed
panchnama of the condition regarding verification of all the evidences
submitted with the application. As per the provision of the resolution
dated 28/01/2004, a detailed panchnama of the condition of the place
has to be submitted after ensuring that all the evidences have been
verified, but it is clear from the original application of the beneficiaries
that no such panchnama has been submitted in any case. (I have
verified the original record sent by the presenting officer and it can be
seen in it that the panchnama has not been conducted.) In such
circumstances, the mistake of not submitting the panchnama is clearly
proved as it is based on the record and Mr. Vyas is fully responsible for
this mistake. In this way, charge – 1, 1(a), 1(b), 1(c), 1(d) and 1(e) are
completely proved.
5.6) In Charge No.2, as per the statement of the applicant, it
is clear from his statement that the applicant Mr. Chandrasingh did not
build a house from the grant but the expenditure was incurred for the
illness of his wife. Similarly, as per the statement given by the
applicant Vikramsingh, the house was not built from the grant, while as
per the statement given by applicant Mr. Ramaji, the house in which
he lives was built about seven years ago and thus, the
recommendation made by Mr. Vyas to pay grant on the completed
house is erratic. The recommendation made by Mr. Vyas without
properly verifying as to when the previous instalments were paid to
the applicant and whether the applications are available was erratic.
5.7) The delinquent has argued here that the inquiry officer
has taken false statements of the villagers. This argument of Mr. Vyas
cannot be accepted because the applicant himself has admitted that
he did not build a house from the housing grant but used it to cover
the expenses of his wife’s illness. Whereas one of the applicants died a
year ago and his son did not build a house from the amount received
but used that amount for personal purposes.
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5.8) There is no reason to believe that the in-person
statements of the applicants are false, and it is clear that Mr. Vyas
made recommendation for grant in collusion with the applicant on the
basis of the Panchayat certificate only without conducting any on-site
inspection or verification and thus, committed irregularities and
misappropriation of funds.
5.9) In Charge No.3 also, Rs.10,000/-00 has been wrongly
sanctioned as the third instalment of housing grant, and here, as per
the statement of the Sarpanch of Dehgam, the person named Thakor
Suraji Chanduji to whom the grant has been sanctioned is not residing
in Sampa village at all, and yet Mr. Vyas has made the
recommendation without any verification on the basis of the certificate
of the Taluka Panchayat. The delinquent has argued here that the first
instalment was paid to Mr. Suraji by the earlier Social Welfare
Inspector, and all the records were kept confidential as Mr. Patel was
caught in bribery, and since he was not aware of the application, the
scheme of Rs.20,000-00 was implemented for the applicant. This
argument of Mr. Vyas cannot be accepted because the payment of
Rs.10,000/- to a person named Mr. Suraji was made on 22/10/2003 and
Mr. Vyas was placed under suspension on 06/04/2004. Therefore, the
excuses that he was not aware of the application and the charge was
not handed over cannot be accepted. If he had inspected the place,
the fake records would have come to light and the said grant would
not have been paid and thus, the misappropriation of government
money could have been prevented. In this way, Charge No.3 is clearly
proved.
5.10) In the fourth charge against Mr. Vyas, it is alleged that
though an applicant, Mr. Thakor Udesinh, has been sanctioned
Rs.10,000-00 for the second instalment and Rs.10,000-00 for the third
instalment on the recommendation of Mr. Vyas, Mr. Vyas has
recommended the payment of grant to the beneficiary in collusion with
the applicant without verifying that the applicant has constructed a
house worth Rs. 2,00,000/- and without verifying that the construction
of the house exceeding the ceiling has been carried out, and thereby,
he has committed misappropriation of the government money.
5.11) Here, as per the explanation of Mr. Vyas, the cost of the
house mentioned includes not only the cost of Mr. Udesinh Pujaji’s
house but also the cost of his brother’s house and the submission has
been made by him that the evaluation of the house does not come
under his purview, the presenting officer has refuted the submission
and argued that Mr. Vyas had recommended for payment of the
second and third instalments on the basis of the certificate of the
Taluka Mantri. Therefore, he would be completely aware of the cost of
the house.
5.12) The delinquent has argued in his defence that as per the
rules, the first instalment is to be paid on the basis of material
evidence and on the open plot. The second instalment is to be paid
when the work is done up to the lintel level and the third instalment is
to be paid when the certificate is issued that the entire house is
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completed. He has argued that the recommendation for the payment
of the third instalment was made as the applicant has built his own
house and he cannot know the cost of the house and it is not his duty
to check it.
5.13) This argument of Mr. Vyas cannot be accepted because in
every case, the grant is paid only after site inspection and when the
third instalment is sanctioned, the house is completed. Mr. Vyas was
aware of such recommendation to pay the grant and since he had
conducted site inspections at many places, it cannot be believed that
he could not estimate the cost of the house. The applicant himself has
also constructed a house worth approximately Rs.2,00,000/-, whereas
the ceiling was Rs.40,000/-. Therefore, when even a common man can
understand such a big difference, the argument of Mr. Vyas that it did
not come to his notice is not reasonable. It is his duty to inspect the
house and to inspect the site, and in the same manner, it is also his
duty to verify that the house constructed is worth the amount
admissible, which he has not performed, and therefore, he has
committed a mistake in this regard and it is clear that he has
committed misappropriation of the government money by making
recommendation in collusion with the applicant. And therefore, the
charge remains as proved.
5.14) In Charge No.5, the second instalment of Rs. 10,000/- has
been sanctioned to the applicant Thakor Maganji, but as per his
statement, though he has not constructed the house, it is alleged that
Mr. Vyas has committed misappropriation of the money by
recommending the payment of the grant on the basis of fabricated
certificate without any verification.
5.15) Here, Mr. Vyas stated in his defence that the applicant
Maganji’s (Charge-4) brother Udesinh is advocate and Maganji is poorly
literate and Mr. Udesinh used to manage houses of both of them. But
the applicant Maganji has given a statement that the cheque was not
received due to a quarrel between the two brothers. He argues that
evidences including the copy of the affidavit submitted in the court
etc. in this regard was given to the inquiry officer but it was not proved
in the evidence and therefore, since the charge is not true, he denies
it, and he wants to examine the person who gave the statement as per
Evidence – 33.
5.16) The Presenting Officer has argued here that the grant of
both the brothers has been sanctioned but Mr. Maganji has given a
statement that only one house has been built.
5.17) It is also the contention of the Presenting Officer that Mr.
Vyas did not carry out the procedure of inspecting the site condition or
the house of the applicant before he recommended payment of grant
on the certificate of Talati-cum-Mantri. Therefore, Mr. Vyas has
recommended payment of grant in collusion with the beneficiary.
5.18) The contentions of Mr. Vyas in this regard are lame and
he had stated at the respective time that he wanted to examine the
witness, but even during the regular departmental inquiry, he neither
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examined nor could produce any witness. He has argued that the
houses of both the brothers have been verified. This argument by him
is also not valid as this fact has come to the notice at the time of
inspection of the site by the inquiry officer. Even in the defense
statement, the submission that the deponent has not been produced
as a witness and thereby, he was not given an opportunity for cross-
examination is unfounded because in the preliminary statement, he
assured to produce a witness, but later he himself turned hostile for
some unforeseeable reason and admitted that he did not want to
produce any witness. In these circumstances, the mistake committed
on his part is clear and it is clear that he has wrongly recommended
payment of grant in collusion with the beneficiaries and hence, the
charge stands proved.
5.19) In Charge No.6, three applicants were sanctioned
Rs.10,000/- under the Makan Sahay Yojana but as per the statement of
an applicant Mr. Bharatsinh, the house was not constructed from the
grant received. While the second applicant, Solanki Dashrathji, has not
constructed the house as per the rules. It is alleged that Mr. Vyas
misappropriated the government money by recommending the
sanction of grant without any site verification. Mr. Vyas, while giving
explanation here, argued that the construction certificate before
paying the third instalment, was issued by the Panchayat and though
the approval was given by the District Social Welfare Officer, he has
been falsely charged.
5.20) The Presenting Officer has argued that during the
investigation of the office, Mr. Vyas could not provide the application of
the three applicants and Mr. Vyas made recommendation for payment
of second/third instalment on the xerox copy of Panchayat certificate
but he did not make any verification regarding the same. As per the
statements of the beneficiaries, they have not constructed the house
from the housing grant and the presenting officer has opined that this
fact is based on the report.
5.21) Mr. Vyas has stated in his defence that all these three
applications were approved by Mr. M.D. Patel and thereafter, two other
employees were serving there, but as he did not receive the charge
from these employees, he could not submit the applications.
Thereafter, a xerox copy of the certificate was given to Mr. Gohil and a
recommendation was made after verification in person at the site. The
delinquent has also contended that the inquiry officer has recorded
statements of other persons. His contention is that the all the three
applicants have used the money only for the purpose of housing, but it
is not his fault if the original records are lost, and the recommendation
was made for the payment of grant on the basis of the certificate given
by them. Therefore, he has requested that this charge be considered
as unproved.
5.22)| The defence of the delinquent is very lame, because
when the new employee is appointed, he should systematically take
over the charge from the previous employee. If the applicants had
submitted the xerox copy of the certificate, he should have gone to the
Panchayat office to verify the same and only then made an appropriate
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recommendation. The applicants themselves have admitted that they
have not constructed the house out of the grant, therefore the
contention of Mr. Vyas cannot be accepted in these circumstances.
Therefore, the charge is clearly proved.
5.23) In the Charge No.7, it is alleged that though the two
applicants who received grant did not construct the house out of the
grant received, the recommendation was wrongly made to sanction
grant without verifying the site.
5.24) The delinquent stated in his defence that, on production
of Taluka Panchayat certificate, when he went to the village and made
inquiries, both the applicants had shown the house constructed, and
upon making other verifications, when it appeared that the houses
were constructed, he recommended payment of the third instalment
on the basis of the certificate, and the District Social Welfare Officer
had given the approval. Here also, the delinquent requested to
examine the persons who gave the statements and denied the
charges.
5.25) The Presenting Officer has argued that Mr. Vyas could not
produce the witnesses during the inquiry. In both the cases, Mr. Vyas
has done the site verification and Mr. Vyas had made recommendation
for payment of grant based on certificates. But Mr. Vyas did not verify
the certificate prodced or carried out verification of the site, and the
presenting officer has argued that as per the statements of the
beneficiaries, they have not constructed the houses, which is on
record.
5.26) The delinquent has stated in his defence that the first
instalment was sanctioned after verifying the site, while the second
instalment was recommended to be paid on the basis of the certificate
of the Taluka Panchayat, and he had ensured that the certificates of
Manasa were genuine. Here also, he demanded to examine the
beneficiaries as witnesses to support the statement, but he stated in
defence that the presenting officer’s submission is not tenable as he
did not get an opportunity for cross-examination by not producing
them.
5.27) This contention of Mr. Vyas is irrelevant as the
statements of the applicants are given at Serial Nos.36 and 37 of
evidence. Since the beneficiaries themselves have given the
statements before the inquiry officer, there is no reason to believe
them to be false. It is clear that Mr. Vyas has not done verification or
site inspection for the certificates on the basis of which he had made
recommendation for sanctioning the grant. His argument to not
produce the person who made statement as a witness is a misleading
because he was granted ample opportunity to produce defense
witnesses, however, he could not produce any witness and therefore,
he has not utilized such opportunity and now, he makes false
arguments. In these circumstances, he could not challenge the truth of
the allegations and hence, the allegations are proved.
5.28) It is alleged in imputation no.8 that subsidy has been
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credited to six beneficiaries without entitlement and it is alleged that
the subsidy is not utilized for construction. Mr.Vyas has taken defense
here that the imputation is fake as original application and certificates
prior to installments are not there in the evidence and there is no
truth. Thereafter, he contended that he shall produce his detailed
statement of defense after examining the persons giving statement
and after production of evidences of concerned certificates /
recommendations / approvals regarding application and installments.
Thereafter, he has discussed the condition of each candidate and he
has not clarified about so called fake certificate of the said person and
made up imputation recording the statement of other officer and
therefore, he has contended that he denies the same.
5.29) Rejecting such defense of Mr. Vyas, the Presenting
Officer has contended that one out of six beneficiaries has constructed
the house of the amount beyond ceiling limit. Whereas, another one
beneficiary stays in joint family and owns another residential house.
Moreover, though one beneficiary did not complete the construction of
the house at the time of visit of inspection officer, he is paid total
amount of subsidy. It is also contended by the presenting officer that
as per evidence-41 and 42, though the beneficiary has not constructed
the house, he has availed housing subsidy. Thus, Mr. Vyas has
recommended to sanction subsidy on the application of these
beneficiaries but no site inspection or verification has been carried out
before making endorsement on the certificate and bogus subsidy has
been paid due to non-verification of the completion certificates of the
houses of the applicants. The Presenting Officer has also contended
herein that Mr. Vyas could not produce his beneficiaries as their
defense witnesses.
5.30) Mr. Vyas has contended in the statement of defense
against the contention of the presenting officer that he has rightly
made recommendations for the subsidy and therefore, he has narrated
applicant wise condition, made site inspection in person and the
applicants have spend the amount as per the rules for the houses fit
for residence only. He has challenged the report of the inspection
officer and he is of the view that the report submitted by him is not
reasonable. He has also contended that six beneficiaries have not
constructed the house of the amount beyond ceiling limit and
applicant neither stay in joint family nor own any residential house. He
contended that only in two cases, due to land dispute between
brothers and due to illness, the plinth was constructed and remaining
amount of subsidy remained unused. It is his contention that he
inspected the house constructed by the applicant in person.
5.31) This contention of Mr. Vyas is lame because the
evidences given in the statement of evidence are clear and is post to
the visit of the preliminary inquiry officer in person. Therefore, there is
no reason to not believe the same nor Mr. Vyas could produce any
cogent evidence / witness thereof. Mr. Vyas was given opportunity to
produce the witness during the preliminary statement but as he knew
that his case was weak, he could not produce any witness. In all these
cases, Mr. Vyas has made recommendations to grant subsidy on the
applications of the beneficiaries. Mr. Vyas is shown all the evidences /
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documents in person and he could not challenge the same. In these
circumstances, it appears clear that Mr. Vyas has made
recommendations for subsidy without ensuring or verifying the
certificate. The charge is proved.
5.32) In contention no.9, Mr. Vyas made recommendations to
pay Rs.10,000/- to the applicants towards second installment for house
subsidy without site inspection, however, it is alleged that the
recommendations made for all these three applicants were not as per
rules.
5.33) As per the statement given by the first applicant
Manushsinh Kodarsinh and second applicant Amrutsinh Kodarsinh’s
father before the Inspection Officer, both the applicants have not
constructed the house from the subsidy received but they have
received the subsidy on the ready house. Whereas, the third applicant
himself has given statement that he has not constructed the house on
the plot mentioned in the application. It transpires from the same that
Mr. Vyas made recommendations to grant subsidy without any kind of
site verification regarding the certificate issued and misappropriated
money getting subsidy granted in collusion with the applicants.
5.34) Mr. Vyas has contended that first two applicants have
constructed the house from the subsidy only and statement of their
father has been recorded instead of their statements, who is suffering
from mental illness and as both sons are not helping him financially, he
has given false statement in order to place them under difficulty. Mr.
Vyas himself admits that third applicant has not constructed the house
on the plot mentioned in the application and contended that he has
constructed the house on adjoining plot owned by him due to dispute.
Here also, he stated in the explanation that he wants to examine all
three applicants as witness. This defence of Mr. Vyas cannot be
accepted because if he was true, he could not produce the applicants
as witnesses. The presenting officer was of the opinion that before
making recommendations on the construction certificates, Mr. Vyas
has not verified or made inspection. The presenting officer has
submitted that the house is not constructed till the date of site visit of
the inspection officer and thereafter, rejecting the view of Mr.Vyas
regarding illness of father of first two beneficiaries, it is contended that
Mr. Vyas has just made assumption that Mr.Kodarsinh is suffering from
mental illness and he could not produce any documentary evidence
thereof. Mr. Vyas has against contended regarding the statement of
father of first two applicant in the statement of defense that both sons
were living separate and they were not useful to their father and as his
father was addicted and old aged, he has dictated such statement. In
the case of the third applicant also, it is opinion of Mr.Vyas that he has
made recommendations as per rules and thus, as he has made
recommendations after studying site condition of the house of the
applicants, it is contended by him that he has not misappropriated
money.
5.35) This contention of Mr. Vyas cannot be accepted because
in the first explanation, Mr. Vyas made contention that the father of
the applicant was suffering from mental illness and he could not
produce any documentary evidence thereof. Now, it is contended that
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the said father of the applicants residing separate from his sons and he
is addicted and old aged. In this manner, his own defense contentions
are contradictory. In fact, when the inspection officer visited the site,
the houses were not constructed and therefore, it is apparent that Mr.
Vyas did not make necessary verification or inspection before making
recommendations on the certificates and the imputation that the false
recommendations has been made in collusion with the applicants for
subsidy, is proved.
5.36) In the imputation no.10, it is allegation regarding grant of
the third installment of Rs.10,000/- under housing subsidy falsely and
not constructing the house from the said subsidy, it is utilized for
personal purpose and therefore, it is alleged that Mr. Vyas has made
the recommendation falsely.
5.37) Mr. Vyas has given explanation here that after the
application of subsidy by the applicant, due to mental illness of wife,
his son got constructed the house on the land of forefathers from the
amount of subsidy and therefore, the money is not misappropriated.
He has mentioned in the explanation that he wanted to examine the
person who gave statement as a witness.
5.38) Rejecting the contention of the delinquent, the
presenting officer has submitted that Mr.Vyas wanted to examine the
beneficiary as witness but he could not. As per the statement given to
the preliminary inquiry officer, the house is not constructed from the
subsidy and therefore, it is submitted by the presenting officer that Mr.
Vyas has made recommendations to grant subsidy on the certificates
without verification or site inspection in collusion with the applicants.
5.39) Mr. Vyas has contended in his defense that the applicant
was paid first installment on the open plot and dilapidated building and
the applicant also unloaded the material for constructing the house,
but as he suffered with grave disease, he used the money in the
expenditure of medicines. He has submitted that the applicant could
not construct the house on time as his wife was suffering from disease.
Rising the question about the witness, he has contended that the
presenting officer should produce the person who gave statement as a
witness and he made representation that he wanted to examine the
witness but as it was not done, he did not cross-examine the witness.
5.40) The defense of the delinquent is irrelevant as he has
himself admitted that the applicant was suffering from grave disease
and the money was utilized in the medical expenses and as the wife
was suffering from disease, the house was not constructed on time.
The beneficiary himself has given statement that the house is not
constructed from the subsidy and therefore, it appears clear that Mr.
Vyas made recommendation to grant subsidy falsely without site
inspection or verification.
5.41) Mr. Vyas was clearly stated at the time of preliminary
statement that there is no prosecution witness and therefore, he can
use the opportunity of his defense by producing any defense witness,
however, by not doing so, he he could not use the opportunity of
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defense as he was dubious himself about the correctness of own case.
In these circumstances, he has misappropriated the government
money by making recommendation falsely and therefore, the charge
against him is proved.
5.42) As per imputation-11, it is alleged that by making
recommendations falsely to grant Rs.10,000/- to the applicants
towards second and third installments under housing subsidy scheme,
Mr.Vyas has committed financial misappropriation.
5.43) Two residents of Mahudi, who have received subsidy of
Rs.10,000/-, have constructed the house of the value beyond ceiling as
stated by Nitaben in her statement dated 01/04/2004. The presenting
officer has contended for the same that both the applicants were
prosperous and not entitled to the subsidy, despite that, Mr.Vyas
misappropriated money by getting subsidy sanctioned without site
inspection of the houses.
5.44) The delinquent has taken defense that the applicant has
constructed the house of more value and it is not within his purview.
However, they have constructed the big houses by adding monies. He
verified the certificate and the applicants have constructed eligible
house. Therefore, as the submission of the presenting officer does not
survive, the delinquent has prayed to consider imputation-11 to be
unproved.
5.45) This contention of Mr.Vyas does not survive because he
could notice the condition if he would have done site inspection and it
is not appropriate to make recommendation only on the basis of the
certificate. In these circumstances, the defense of Mr.Vyas is not
acceptable and hence, the charge against him is proved.
5.46) In the imputation-12, two applicants were paid the
housing subsidy but the house is not constructed from the same and
despite that, Mr. Vyas has misappropriated money by granting
subsidy.
5.47) The presenting officer has contended that as per the
statement given by wife of applicant Motaji, the house is not
constructed from the housing subsidy. Despite that, Mr. Vyas has
made recommendation to pay subsidy on the basis of construction
certificate of the Taluka Panchayat. The presenting officer has also
contended that the delinquent made contention in the explanation that
he wanted to examine the witness but could not produce any witness
at the time of departmental inquiry as per rules.
5.48) As per the statement given by the other applicant
himself, he has constructed the house beyond amount of subsidy and
he was having an another residential house. Rejecting the explanation
of the delinquent here, the presenting officer has contended that here
also, he could not produce the beneficiary as a witness and it appears
clear that the subsidy is granted without verifying the certificate of
panchayat in collusion with the beneficiaries.
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5.49) The delinquent has contended in his defense that as wife
of Thakore Motaji was illiterate, he stated lie due to fear. He verified
himself and made recommendation to pay the benefit on the basis of
certificate. He has contended that as it was within his duty to bring and
drop back all the applicants, he could not call her, however, as the
presenting officer has not produced her also as a witness, he did not
get the opportunity to cross-examine her and therefore, the charge is
baseless and false and hence, it is requested to treat the same as not
proved.
5.50) The contention of the delinquent is lame because as per
the statement given by the wife of the applicant, the house is not
constructed from the subsidy. If Mr.Vyas knew that his wife lied as she
was illiterate, then he could prove his contention by producing her as a
witness. It appears clear from the same that he is making unnecessary
arguments by not using the opportunity to produce the witness which
was given to him. He could not challenge the imputation nor he could
prove reasonable documents or evidence. Under these circumstances,
it appears clear that money is misappropriated due to
recommendation made by him. Therefore, the charge is proved.
5.51) Allegation No.13 includes allegation regarding wrongfully
sanctioning first and second installment of housing subsidy for two
beneficiaries under Housing Scheme. In addition to that, it is alleged
that, one applicant gave bribe of Rs.2400/- to Shri Vyas and he
comitted the malpractice by accepting the same.
5.52) The Presenting Officer has contended here that, as per
the statement given by a beneficiary namely Shri Pathubhai, house has
not been built by the sanctioned amount of subsidy but, the subsidy
amount has been used for the construction of veranda in an already
completed house. Whereas, as per the statement of other beneficiary
namely Bhathiji, house has not been constructed from the subsidy
amount but, it was spent on an old house and to obtain the subsidy,
Rs.2400/- was given to Shri Vyas. The argument of the Presenting
Officer is such that, the beneficiaries have admitted by giving
statement that, they have not built house and therefore it becomes
clear that, Shri Vayas has given recommendation without examining
the place or verifying the certificate of the Panchayat. Here too, the
Presenting Officer has mentioned about the inability of the delinquent
to produce any witness. Moreover, the Presenting Officer has also
considered the statement of a witness that, Shri Vyas was given
Rs.2400/- for sanctioning the subsidy.
5.53) Here, the Presenting Officer has also given reference
that, as per the statement of a beneficiary Shri Ramanji in connection
with the Departmental Inquiry against Shri Patel, a delinquent in a
similar type of Department Inquiry, bribe was given to Shri Vyas. This
beneficiary Mr. Ramanji was produced as a government witness in the
formal inquiry against Shri R.M. Patel and he has deposed before me
on 24/01/2005 that he does not know Shri Patel but he gave the
money to Shri Vyas. Delinquent has taken the defense that when
Chaudhari Pathubhai filled the form for subsidy, he had an open plot
and he was residing on rent in the adjoining house, thereafter, he
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constructed his own house and produced a certificate from the
Panchayat office to avail the second and third installments and after
verifying the same, he made the recommendation himself. Therefore,
as per the inquiry officer, it is not true that, the petitioner has used the
money only for the work of veranda.
5.54) Thereafter referring to the case of the other beneficiary
Bhathiji, it was stated that, as his house was dilapidated and he had an
open plot adjacent to the same, the first installment was paid on the
basis of the documentary evidence and thereafter as I was unaware of
the modifications made in the house by the beneficiary, I made the
recommendation on the basis of the building completion certificate of
the Panchayat. He has argued about the statement of Shri Thakor
Bhathiji regarding the bribe, that the applicant is illiterate, unaware
and has given a false statement due to the instigation of other
persons. Thereafter, he has contended that, on the day deposition was
recorded, Shri Ramanji went to the Office of the Social Welfare Officer
and there he was told to depose against himself. This contention of the
delinquent is flawed, because there is no need for one to make a false
representation if he has properly utilized the received subsidy and
therefore there is no reason to believe that the statement given by the
beneficiaries is false. Here also the question raised by him regarding
the witness is irrelevant and as discussed in the previous paragraphs
he was given an opportunity but he did not avail it. The contention of
the delinquent is also not reasonable in the question of the bribe given
by one of the petitioners to Mr. Vyas because as a witness for the
Government, the witness has stated in his deposition what he thought
was right and true, it is not reasonable to believe that he did so at the
behest of someone. If the delinquent believed so, he could have
brought out the true situation by producing this beneficiary as his
witness, but by not doing so, it is clear that the contentions of Mr. Vyas
are baseless and unwarranted. Allegation is proved.
5.55) In allegation No.14, the question regarding forged
records for availing the benefit of hosing subsidy scheme by putting
false signatures was in the knowledge of Mr. Vyas, but it was not
brought to the attention of the District Development Officer and it is
about committing financial malpractice by sanctioning the subsidy
wrongfully.
5.56) Rejecting the argument made by Mr. Vyas that ‘Borij
village is in Gandhinagar Taluka, it is not under his jurisdiction and
therefore he has no connection with this allegation, rejecting this
argument, the Presenting Officer has clarified that Shri Prajapati, vide
letter dated 9/2/2001 had informed the District Social Welfare Officer,
Gandhinagar, about false evidence was being fabricated by putting his
false signatures and that letter was given in person to Shri Vyas which
has been received by Shri Vyas. Therefore, the Presenting Officer
argued that the explanation given by the accused is not admissible.
5.57) Accused has made defense here that as the villages in
question do not come under his jurisdiction, he denies it and brought
the same to the attention of the officer by receiving the letter. As Shri
Prajapati’s and his own jurisdiction are different, he himself has not
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recommended to pay any subsidy on the basis of true or false
certificate of Prajapati and therefore the allegation is requested to be
dismissed.
5.58) This contention of Shri Vyas is irrelevant as Shri
Prajapati’s letter dated 9/2/2001 clearly stated that false evidence has
been fabricated by using his false signatures. Shri Vyas received this
letter but could not produce any supporting evidence of him showing
the same to the superior officer. Even for the contention which He has
made that he himself brought the same in the attention of the officer,
he cannot provide any supporting evidence for the same. Therefore, it
is clear that false signatures of Shri Prajapati were used to create
fabricated records to avail the Housing Subsidy Scheme which was in
the knowledge of Shri Vyas. Therefore, as the sanctioned subsidy is
improper, it is clear that Shri Vyas is responsible for the financial
malpractice. Allegation is proved.
5.59) In allegation number-15, Shri Vyas has been held
responsible for not granting the amount of subsidy admissible to the
beneficiary under the individual schemes of the Department on time
and the details of those who have not received the amount on time in
such three schemes have been mentioned in the charge sheet and Shri
Vyas has been held responsible for the delay caused therein.
5.60) The Presenting Officer has argued here that after
receiving the cheques received under these schemes from the treasury
office, the same are to be sent to the concerned beneficiary within
thorugh RPAD within seven days and clear instructions have also been
given for the same, despite that, as mentioned in the charge, Shri Vyas
kept the cheques pending till the cheques became time barred. The
defense made here by the delinquent has not been allowed by the
Presenting Officer arguing that cheques 10/2002 and 12/2003 were
kept lying in the Office till April-2004 and the cheques were found
pending with Shri Vyas, which is based on the record.
5.61) Accused has argued here that due to dictatorial regime in
the office, the tickets were not received on time but he himself make
the covers and gave them to the junior clerk for dispatch on the next
day but there would be one or two cheques pending due to changed
address of the applicant. He has also argued that since the
beneficiaries are from Madari community, they are illiterate, unaware
and superstitious and as they return after two to three months from
marriage, the cheques was expired and he himself willfully or
intentionally did not keep his work pending.
5.62) This contention of Shri Vyas is very flawed as it is on
record that he did not send the cheques to the beneficiary within the
prescribed time limit. If in any case if the R.P.A.D. is returned, caution
should also have been taken to get proper address by reporting the
same to the superior officer but Shri Vyas did not do so and it is on
record that the cheques were pending with him till the check expired
as admitted by himself. In these circumstances, Shri Vyas is fully
responsible for this negligence and his defense in this regard cannot
be accepted, therefore the allegation is proved.
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5.63) In allegation No.16, allegation of depriving the
beneficiaries from the benefit of the Kisan Vikas Patra admissible to 56
beneficiaries by not taking any action to deliver them to the
beneficiaries for six months or more.
5.64) The Presenting Officer has argued here that in view of
the affidavit and facts on record, Shri Vyas kept the savings certificates
mentioned in the charge belonging to the 56 beneficiaries pending and
while placing him under suspension on 07/04/2004, these savings
certificates were seized from the drawer of the table under his
possession.
5.65) Shri Vyas has argued here that the savings certificates of
these 56 beneficiaries were sent on time but as the same were
returned from the office, they were kept for the purpose of
safekeeping. Even though other employees were doing this work, the
cheques were kept in his drawer due to lack of table and he kept them
with helpful motive. He has also argued that the officer himself took
eight months to took over the charge and showed no interest despite
repeated reminders. He has argued that he is not responsible for the
few cheques left in his table and the panchanama which has been
made in this regard is also without truth.
5.66) The above arguments of Shri Vyas are irrelevant and
flawed and cannot be accepted. He himself has admitted that the
cheques were returned, if it was the duty of someone else and that
they have kept the cheques in Shri Vyas’s room due to lack of table,
then Shri Vyas should have produced these persons as witnesses for
him so that the facts could have been known. But, Shri Vyas did not try
to produce any witness because he knew the fact that the Cheques
were withheld.
5.67) The table of Shri Vyas was personally checked by more
than one officer and the panchnama of the items found in it was drawn
accordingly. It is clearly proved that Shri Vyas kept the savings
certificates which are to be sent and have deprived the beneficiaries of
their benefits. Allegation is proved.
5.68) In allegation number-17 also, it is alleged that Shri Vyas
has deprived the concerned beneficiaries of their benefits by keeping
the savings certificates pending for more than two years. In this
regard, fact of the beneficiaries and how long the cheques were kept
pending in the office has been shown in the charge on the basis of the
record.
5.69) The Presenting Officer has argued here that the savings
certificates of the nine beneficiaries mentioned in allegation No.-17
were found from the drawer of Shri Vyas on 07/04/2004. These checks
were pending for more than two years and two years ago Shri Vyas
was serving as Social Welfare Inspector, Gandhinagar, so he himself
have kept the Kisan Bachat Patras pending. He should have given
these savings certificates to their successors in charge but by not
doing so and putting responsibility on others head is the flawed
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defense made by Shri Vyas and the Presenting Officer has opined that
the allegation against Shri Vyas is proved.
5.70) The accused has argued here in his defense that the
procedure of the total 9 certificates was not in his hand and the charge
was not handed over.
5.71) This contention of the delinquent is very absurd because
if it was not his work and the charge was not assigned to him then
these savings certificates would not have been found in his drawer on
07/04/2004, Therefore, the lame arguments of Shri Vyas to wrongly
put the responsibility on others can not be accepted. All the
allegations against Shri Vyas are therefore proved.
5.72) The record sent by the Presenting Officer along with his
brief includes the report of the Rojkam regarding the record obtained
by breaking open the table which is very clear. On the basis of the
same, it becomes clear that, Shri Vyas has committed grave mistake
by not sending the cheques/ savings certificates admissible to the
beneficiaries mentioned in the case of allegation No.16 and 17, which
is based on the record.
5.73) Shri Vyas has argued in his defense that he was deprived
of the opportunity of cross-examination by not producing witnesses at
more than one instances which is also irrelevant.
5.74) Shri Vyas was clearly asked during the preliminary
statement whether he wanted to produce any defense witness and at
that time he stated about producing the witness but later he said that
he does not want to produce any witness. In these circumstances the
contention that the witness was not given an opportunity of cross-
examination is without merit.
5.75) Mr. Vyas was shown all the records he wanted to see and
he has put his signature acknowledging the same. He also admitted
that he had seen them and did not want to see any other records. He
could not challenge the fact of record at any stage. In these
circumstances, the question of record cannot even arise. Considering
in it’s entirety, Shri Vyas has been afforded fair and reasonable
opportunities of defense at all times. Despite that, he was not able to
produce any claims or any argument that disprove the allegation. In
such circumstances, all the allegations against him are proved beyond
doubt.
5.76) Allegations No. 1 to 17 against Mr. Vyas are proved
beyond doubt.”
7.6 Pursuant to the said Inquiry Report, a notice along with a
report of departmental inquiry was served to the petitioner
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herein on 24.06.2005 to which, the petitioner herein replied on
04.07.2005 mainly on the ground that the statements recorded
during the preliminary inquiry have been relied on to establish
the charges, which is not admissible. That, the petitioner
herein is deprived of the opportunity to cross-examine the
witnesses as demanded qua the statement of defence. The
petitioner is denied opportunity to defend himself. The
petitioner has followed due procedure for processing the
applications of the beneficiaries and made recommendations
only who are entitled for the same at all the levels. The District
Social Welfare Officer had sanctioned 15 files. Had the
applications been incomplete, the same would not have been
approved. The 12 beneficiaries who got their houses
constructed have not been examined as witnesses. That,
though the Inquiry Officer has relied on the statement given by
the Sarpanch at Dahegam, he has not been examined as a
witness. It is the Supervisor/ Engineer who determine the value
of house. The earlier statements have not been corroborated
by producing witnesses concerned before the authority. The
petitioner has not made any false recommendation to sanction
the grants. The letter of Shri Prajapati was not subject matter
under the area of operation and the same has not been
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marked to the petitioner therefore, it had been returned. Upon
receipt of a letter by any staff member at office, the letter is
put before the Officer for his perusal. The cheque issued in
favour of Thakor Vishnuji Babaji was pending because his
address was not available. The petitioner was not in charge of
the operation of ‘Kunvarbai nu Mameru Yojna’. The statements
recorded by the Inquiry Officers in the preliminary inquiry have
been admitted as true and bonafide. The inquiry is a tainted
and the cannot be a ground of awarding the penalty.
7.7 The Gujarat Civil Services Tribunal considered all the
aforesaid contentions raised by the petitioner herein and
passed the following order dated 03.01.2007: (true translation)
“8. Mr. A.U. Saiyad and Mr. D.T. Vala, Social Welfare Officers, have
remained present for the Respondent who have mainly relied on the
para-wise remarks. He has submitted that, while drawing a proposal
for grant, one is required to examine all the details carefully. The
information provided by the appellant have been proved as wrong. The
statement of imputation contains detailed description of the charges.
As the applicant was not stationed in a headquarter, his suspension
allowance is not determined at the rate of 75%. The appellant admits
to have drawn the grant-proposals. A state-level inquiry has been
conducted against Mr. D.P. Parmar. The decision as to file the
application made by the appellant was taken by the Vigilance
Commissioner after an inquiry. The Inquiry Officer of the Departmental
Inquiry has examined four witnesses. Under these circumstances, Mr.
Saiyad and Mr. Vala has urged to reject the appeal preferred by the
Appellant.
9. The Inquiry Officer of the Departmental Inquiry has examined
the following witnesses.
(1) Shri Mahendrabhai P. Thakar who performs duty as the Social
Welfare Officer (Developing Castes) has conducted the preliminary
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inquiry. He has described the details of the statements recorded by
him during the preliminary inquiry. He had also conducted site-
inspections, wherein it was observed that many of the individuals had
already constructed their houses before receiving the grants, some of
the individuals had not constructed their houses at all, whereas some
of them had constructed their houses beyond the ceiling-value,
whereas some of the beneficiaries utilized the grants for their other
expenses. Shri Mahendrabhai has stated details facts in this regard.
Not any such fact has emerged during the cross examination of Shri
Mahendrabhai on the basis of which the facts stated by him can be
refuted as not bonafide.
(2) Shri D.B. Parmar used to perform duty as Talati-Cum-Mantri at
Lihoda. Shri D.B. Parmar has clearly stated that the Completion
Certificates as to the houses of Thakor Udesinh Punjaji, Thakor Maganji
Punaji have not been signed by him as the Talati-cum-Mantri and he
had not issued any such certificate. In this regard, not any cross
examination has been conducted on the part of the appellant.
(3) Shri Bhathiji Khodaji Thakor has stated that the statement
recorded by the Officer of Social Welfare Department contains his
signature. He had received total two installments, Rs. 10,000/- each,
aggregating to Rs.20,000/- as the housing-grants and he has got his
house constructed out of the grants. He has stated that, he had paid
Rs.3000/- for getting the grants sanctioned to one person not
acquainted to him, however, on the second occasion, Rs.1400/- were
handed over to Shri Vyas, who is seated next to him and he identifies
him. Shri Bhathiji Thakor has also stated that, on remitting Rs.1400/-,
he had received the cheque for the Second Installment. The appellant
has not conducted any cross examination of this witness.
(4) Shri Jayman Somabhai Prajapati was the Talati-cum-Mantri. He
has stated that, “the applicants who were to sign the application forms
for the grants had told him that their signatures were already present
on the application forms for the grants.” When the matter came to his
notice, he had written a letter on 09/02/2001 in this regard to the
Social Welfare Officer and informed the issue. At that time, he had
handed over the letter dated 09/02/2001 to Shri Vyas who is seated
next to him and he identifies him. Talati Shri Jayram Prajapati has
further stated that, Dahyabhai refused to receive the letter in the
beginning, but as it was about a serious issue, he accepted the letter
and signed on the acknowledgment. In a reply to a question during his
cross examination, Shri Jayram Prajapati has stated that, he had
neither filled any form nor signed any.
(5) Shri D.G. Parmar, who used to perform duty as the Chief Officer,
Mansa Municipality, has accepted that the signature in his statement
dated 04/10/2004 was made by him. After examining the Completion
Certificates pertaining to the houses of three persons, Shri D.G. Parmar
had stated that they had not been signed by him. The seals therein
seems to be his office-seals, but the signatures are not his.
10. Learned Advocate for the Appellant has argued that, there are
13 Charges in the Charge-Sheet, whereas the Statement of Imputation
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reads 17 charges. Whereas in reality, the Charge-Sheet reads the
charges as per their nature, whereas the Statement of Imputation
contains detailed description of the 17 charges. Therefore, there is no
contradiction between the two and there is nothing suspicious in the
Charge-Sheet. Therefore, this argument made by the Learned
Advocate for the appellant is of no use.
11. As stated in the Rojkam on 14/02/2005 during the Departmental
Inquiry, the Defendant (Appellant) wanted to produce witnesses and
he would produce their details as to their names and addresses before
the next date and would remain present with the witnesses on the
date. However, as per the remarks on the backside of the Rojnama of
even date, the appellant had declared that he did not want to produce
any witness and it was decided to take up the case for the ‘brief’. All
the parties, including the appellant, have signed thereunder. Thus, the
appellant has been given sufficient opportunity to defend himself.
12. The Inquiry Officer in the Departmental Inquiry has given the
opinion that the charges against the appellant are established. The
Preliminary Inquiry was conducted by Shri Mahendra P. Thakar, Social
Welfare Officer. As stated earlier, he has been examined as a witness.
As deposed by Shri Mahendra P. Thakar, he had conducted the site
inspections as well as recorded the statements of the concerned
persons. Shri Mahendra P. Thakar has given his opinion on the basis of
the site-inspections the statements recorded. In his deposition before
the Inquiry Officer presiding the Departmental Inquiry, Shri Mahendra
P. Thakar has stated detailed facts in this regard. During the cross
examination of Shri Mahendra P. Thakar on behalf of the Appellant, the
Appellant could not bring out any such fact on the basis of which the
facts stated in his examination-in-chief can be considered as not
bonafide.
13. It is an admitted fact that the recommendations made by the
Appellant Shri D.V. Vyas in capacity of the Inspector, Social Welfare
Department for sanctioning housing grants, accompanied by the
certificate duly signed by the concerned Talati-cum-Mantris. But, the
concerned Talati-cum-Mantri has refused to have signed such
certificates and have rejected the signatures thereon as not theirs.
Witness Shri Bhathiji Khodaji Thakor has admitted to have received the
grants and admits to have given Rs.1400/- to the Appellant for
receiving the second installment of the grant. The witness has not
been cross examined by the Appellant. Shri D.P. Parmar, Talati-Cum-
Mantri, Lihoda, Shri Jayrambhai Somabhai Prajapati and the Chief
Officer, Mansa have refuted to have signed the certificates appended
to the respective recommendations. It is clear that recording of
evidence of all the beneficiaries is not possible. Moreover, it is obvious
that where a beneficiary has availed benefits against the rules would
not testify against the appellant. As stated earlier, the Appellant
himself has not given any evidence proving contrary to what has been
stated here. The oral evidence produced have been corroborated by
the documentary evidence.
14. In the aforesaid facts and circumstances, on the basis of the
evidence produced and in view of the report of the Inquiry Officer in
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the Department Inquiry, there are sufficient grounds to accept that the
charges against the appellant are established. The report submitted by
the Inquiry Officer clearly raises suspicion against the appellant and
the same is found to be admissible. Not any error is apparent in the
report on the basis of which it would become inadmissible. The
Discipline Authority has accepted the report of the Inquiry Officer,
issued a notice to the Appellant and has heard the appellant. Sufficient
opportunities have been given to the appellant during the
Departmental Inquiry and the Departmental Inquiry has been
conducted in adherence to the principles of natural justice and
accordingly, the Discipline Authority has issued the Termination Order
against him. Learned Advocate for the Appellant has not presented any
strong argument showing any appropriate or reasonable ground to
interfere in the penalty-order. Under these circumstances, the
submissions made on behalf of the appellant are not found to be
admissible and the appeal preferred by the appellant is liable to be
dismissed. Therefore, the following order is passed.
ORDER
The Appeal preferred by the Appellant herein is, hereby, dismissed.”
8. At this stage, it is apposite to deal with the decisions
relied upon by Ms. Mamta R. Vyas, learned advocate appearing
for the petitioner:
8.1 The decision rendered in SLP (Civil) No.29758 of 2018
wherein, the Hon’ble Apex Court has held that recording of
evidence in a disciplinary proceeding proposing charges of a
major punishment is mandatory. The evidence recorded in a
preliminary inquiry cannot be used for regular inquiry as the
delinquent is not associated with it and the opportunity to
cross-examine persons examined in preliminary inquiry is not
given; the same would be violative of principles of natural
justice.
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In the facts of the present case, the Inquiry Officer has
examined himself as also the prosecution witnesses i.e. Shri
M.P. Thaker who conducted the preliminary inquiry, Shri D.B.
Parmar, Talati-cum-Mantri at Lihoda, Shri Bhathiji Khodaji
Thakor, Shri Jayman Somabhai Prajapati, Talati-cum-Mantri and
Shri D.G. Parmar. The petitioner herein refused to cross-
examine the said witnesses. The petitioner also chose not to
produce his own witness as provided under Rule 9(16) of the
Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
8.2. (1998) 2 SCC 407 in case of Director General of Police &
Ors. vs. G. Dasayan wherein, placing reliance on the same, it is
stated that the identical treatment is required to be granted
qua the petitioner herein.
In the facts of the present case, the charges levelled
against the petitioner and Shri M.P. Thakar are separate and
are tried by separate disciplinary inquiries. This Court has
perused the Rojkam. Upon perusal of Rojkam which is
produced on record by Ms. Pooja Ashar, learned AGP, the
aforesaid is substantiated and in view thereof, the said
decision is not applicable in the facts of the present case.
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9. This Court has also perused the remarks in the Rojkam
wherein, the petitioner declared that the petitioner did not
want to produce any witness and it was decided to take up the
case for the ‘brief’. All the parties including the petitioner have
signed on the said Rojkam.
10. The contention raised by Ms. Mamta R. Vyas, learned
advocate appearing for the petitioner that the preliminary
inquiry was conducted by Shri M.P. Thaker, Social Welfare
Officer who examined himself as a witness. It was deposed by
Shri Thaker that site inspections were conducted and recorded
statements of the concerned persons. It was opined on the
basis of the site-inspections and the statements recorded. In
his deposition before the Inquiry Officer, Mr. M.P. Thaker stated
the facts in detail. During the cross examination of Mr. Thaker,
it is held by the disciplinary authority that the petitioner could
not bring out any fact on the basis of which, the facts stated in
the examination-in-chief could not be considered bonafide.
11. It is undisputed that the recommendations made by the
petitioner herein in his capacity of Inspector, Social Welfare
Department for sanctioning housing grants, accompanied by
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the certificate duly signed by the concerned Talati-cum-
Mantris. The concerned Talati-cum-Mantri have refused to have
signed such certificates and stated that the signatures are not
theirs.
11.1 The witness Shri Bhathiji Khodaji Thakor has admitted to
have received the grants and admits to have given Rs.1400/-
to the petitioner for receiving the second installment of grant.
The said witness is not cross examined by the petitioner
herein.
11.2 Shri D.P. Parmar, Talati-cum-Mantri, Lihoda, Shri
Jayrambhai Somabhai Prajapati and the Chief Officer, Mansa
have refused to have signed the certificates appended to the
respective recommendations.
11.3 In light of the aforesaid, it is held by the Tribunal that the
recording of evidence of all the beneficiaries is not possible.
Moreover, it is further held that the beneficiary has availed
benefits against the rules would not testify against the
petitioner. The petitioner himself has not given any evidence
to prove contrary to what has been stated there. The oral
evidence produced have been corroborated by the
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documentary evidence.
12. At this stage, it is apposite to refer to the ratio laid down
by the Hon’ble Supreme Court in case of Lucknow K. Gramin
Bank (Now Allahabad, U.P.Gramin Bank) vs. Rajendra Singh,
reported in 2013 (12) SCC 372 wherein, the Hon’ble Apex
Court has held that the judicial review of quantum of
punishment has very limited scope. Only if the penalty is
shockingly disproportionate, the Courts can interfere. Relevant
paragraphs of the said decision read thus:
“12. Indubitably, the well ingrained principle of law is that it is the
Disciplinary Authority, or the Appellate Authority in appeal, which is to
decide the nature of punishment to be given to a delinquent employee
keeping in view the seriousness of the misconduct committed by such
an employee. Courts cannot assume and usurp the function of the
Disciplinary Authority. In the matter of Apparel Export Promotion
Council vs. – A.K.Chopra reported in 1999 (1) SCC 759 this principle
was explained in the following manner:
“22 …….The High Court in our opinion fell in error in interfering
with the punishment, which could be lawfully imposed by the
departmental authorities on the respondent for his proven
misconduct. …..The High Court should not have substituted its
own discretion for that the authority. What punishment was
required to be imposed, in the facts and circumstances of the
case, was a matter which fell exclusively within the jurisdiction
of the competent authority and did not warrant any interference
by the High Court. The entire approach of the High Court has
been faulty. The impugned order of the High Court cannot be
sustained on this ground alone. …..”
Yet again, in the case of State of Meghalaya & Ors. Vs. Mecken
Singh N.Marak reported in 2008 (7) SCC 580, this Court
reiterated the law by stating:
“14. In the matter of imposition of sentence, the scope of
interference is very limited and restricted to exceptional cases.
The jurisdiction of the High Court, to interfere with the quantum
of punishment is limited and cannot be exercised withoutPage 56 of 63
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sufficient reasons. The High Court, although has jurisdiction in
appropriate case, to consider the question in regard to the
quantum of punishment, but it has a limited role to play. It is
now well settled that the High Courts, in exercise of powers
under Article 226, do not interfere with the quantum of
punishment unless there exist sufficient reasons therefor. The
punishment – imposed by the disciplinary authority or the
appellate authority unless shocking to the conscience of the
court, cannot be subjected to judicial review. In the impugned
order of the High Court no reasons whatsoever have been
indicated to why the punishment was considered
disproportionate. Failure to give reasons amounts to denial of
justice. The mere statement that it is disproportionate would
not suffice.
15&16 xxxxxxxxxxxxxxxx
17. Even in cases where the punishment imposed by the
disciplinary authority is found to be shocking to the conscience
of the court, normally the disciplinary authority or the appellate
authority should be directed to reconsider the question of
imposition of penalty. The High Court in this case has not only
interfered with the punishment imposed by the disciplinary
authority in a routine manner but overstepped its jurisdiction by
directing the appellate authority to impose any other
punishment short of removal. By fettering the discretion of the
appellate authority to impose appropriate punishment for
serious misconducts committed by the respondent, the High
Court totally misdirected itself while exercising jurisdiction
under Article 226. Judged in this background the conclusion of
the Division Bench of the High Court cannot be regarded as
proper at all. The High Court has interfered with the punishment
imposed by the competent authority in a casual manner and,
therefore, the appeal will have to be accepted.”
13. As is clear from the above that the Judicial Review of the
quantum of punishment is available with a very limited scope. It is only
when the penalty imposed appears to be shocking disproportionate to
the nature of misconduct that the Courts would frown upon. Even in
such a case, after setting aside the penalty order, it is to be left to the
disciplinary/Appellate Authority to take a decision afresh and it is not
for the court to substitute its decision by prescribing the quantum of
punishment. In the present case, however, we find that the High Court
has, on the one hand directed the appellate authority to take a
decision and in the same breath, snatched the discretion by directing
the Appellate Authority to pass a particular order of punishment. In
normal course, such an order would clearly be unsustainable, having
regard to the legal position outlined above.
14. The peculiar feature, however, is that the High Court has done
so proceeding on the presumption that these three respondents are
equally and identical placed as the other three employees who had
admitted the charges, though this parity is not spelled out in the
impugned order. Whether this approach of the High Court is tenable,
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looking into the facts of this case, is the moot question.
15. If there is a complete parity in the two sets of cases imposing
different penalties would not be appropriate as inflicting of any/higher
penalty in one case would be discriminatory and would amount to
infraction of the doctrine of Equality enshrined in Article 14 of the
Constitution of India. That is the ratio of Rajendra Yadav‘s case,
already taken note above. On the other hand, if there is some
difference, different penalty can be meted out and what should be the
quantum is to be left to the appellate authority. However, such a
penalty should consumerate with the gravity of misconduct and cannot
be shockingly disproportionate. As per the ratio of Obettee (P) Ltd.
Case even if the nature of misconduct committed by the two sets of
employees is same, the conduct of one set of employee accepting the
guilt and pleading for lenient view would justify lesser punishment to
them than the other employees who remained adopted the mode of
denial, with the result that charges stood proved ultimately in a full-
fledged enquiry conducted against them. In that event, higher penalty
can be imposed upon such delinquent employees. It would follow that
choosing to take a chance to contest the charges such employees
thereafter cannot fall back and say that the penalty in their cases
cannot be more than the penalty which is imposed upon those
employees who accepted the charges at the outset by tendering
unconditional apology.
16. This, according to us, would be the harmonious reading of
Obettee (P) Ltd. and Rajendra Yadav cases. The principles discussed
above can be summed up and summarized as follows:
(a) When charge(s) of misconduct is proved in an enquiry the
quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities;
(b) The Courts cannot assume the function of
disciplinary/departmental authorities and to decide the
quantum of punishment and nature of penalty to be awarded,
as this function is exclusively within the jurisdiction of the
competent authority;
(c) Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in cases
where such penalty is found to be shocking to the conscience of
the Court;
(d) Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed
against the delinquent employee, the appropriate course of
action is to remit the matter back to the disciplinary authority or
the appellate authority with direction to pass appropriate order
of penalty. The Court by itself cannot mandate as to what
should be the penalty in such a case.
(e) The only exception to the principle stated in para (d) above,
would be in those cases where the co-delinquent is awardedPage 58 of 63
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lesser punishment by the disciplinary authority even when the
charges of misconduct was identical or the co- delinquent was
foisted with more serious charges. This would be on the
Doctrine of Equality when it is found that the concerned
employee and the co-delinquent are equally placed. However,
there has to be a complete parity between the two, not only in
respect of nature of charge but subsequent conduct as well
after the service of charge sheet in the two cases. If co-
delinquent accepts the charges, indicating remorse with
unqualified apology lesser punishment to him would be
justifiable.
17. It is made clear that such a comparison is permissible only when
the other employee(s) who is given lighter punishment was co-
delinquent. Such a comparison is not permissible by citing the cases of
other employees, as precedents, in all together different departmental
enquiries.
18. Applying these principles to the facts of the present case, we
may observe that, no doubt the charges in respect of two sets of
employees were identical. Though the other set of employee accepted
the charges on the first day of enquiry, a factor which is to be kept in
mind, that even those employees had denied the charges in the first
instance and accepted these charges only in the departmental enquiry,
that too after realizing that similar charges had been proved against
the respondents herein in the departmental enquiry. Therefore, it was
not a case where those employees had expressed the unconditional
apology in the first instance. This may be a mitigating circumstance for
the appellants herein. At the same time, we are of the opinion that all
these aspects are to be considered by the appellate authority. The
High Court did not look into all these aspects and mandated the
appellate authority to pass orders imposing a specific penalty only.
This direction of the High Court is, accordingly, set aside and the
matter is remitted back to the appellate authority to take a decision
imposing appropriate penalty on the respondents herein. We are
confident that the mitigating circumstances pointed out by the
respondents herein would be given due consideration by the appellate
authority, keeping in view the ratio of Rajendra Yadav‘s case as well. It
would be open to the respondents herein to make representation in
this behalf to the appellate authority on the basis of which the
respondents want to contend that they should be given same
treatment as meted out to other three employees. Such a
representation will be given 15 days from today. Appellate Authority
shall pass appropriate orders deciding the appeals afresh within 2
months from today.
12.1 It is also apposite to refer to the ratio laid down by the
Hon’ble Supreme Court in case of State Bank of India vs.
A.G.D. Reddy, reported in 2023 (11) Scale 530. Relevant
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paragraphs of the said decision read thus:
“32. From the above discussion, it is clear that it could not be said
that the Enquiry Report, the findings of the Disciplinary Authority and
the order of the Appointing Authority are based on no evidence or are
perverse. Even if we eschew the report insofar as the aspect of non-
submission of control form, the transgression of the area of operation
and non-declaration of the immovable property and certain other
charges are concerned, the order of penalty can be sustained.
33. As has been demonstrated above, the aspects of failure to
conduct periodic inspection and the negligence in not stipulating the
taking of immovable property as collateral security in the case of M/s
Saraswathi Fabricators in spite of the party offering it, constrain us to
conclude that there was material on record for the appellant to pass
the order of penalty.
34. Mr. S.N. Bhat, learned Senior Counsel, relying upon the
judgments of this Court in Nand Kishore Prasad vs. State of Bihar and
Others, (1978) 3 SCC 366 and Anil Kumar vs. Presiding Officer and
Others, (1985) 3 SCC 378 contends that the Disciplinary Authority
should arrive at its conclusion on the basis of some evidence with
some degree of definiteness pointing to the guilt of the delinquent in
respect of the charge against him. He would contend that a suspicion
cannot be allowed to take the place of proof and scrupulous care must
be taken to see that the innocent are not punished by recording
findings merely based on ipse dixit of the Enquiry Officer. We are
unable to accept the contention that the principles laid down in the
above judgments are attracted to the present case. The judgments
cited are clearly distinguishable, for the reasons that we have set out
hereinabove, while analyzing the facts of the present case.
35. Shri Sanjay Kapur, learned counsel for the Bank relies on State
Bank of India vs. Ram Lal Bhaskar and Another, (2011) 10 SCC 249. In
that judgment the scope of judicial review of departmental
proceedings was set out and the principle laid down in State of A.P. vs.
S. Sree Rama Rao, AIR 1963 SC 1723, was reiterated, which reads as
follows:-
“This Court has held in State of A.P. and Others v. S. Sree Rama
Rao (AIR 1963 SC 1723, para 7):
“7. … The High Court is not constituted in a proceeding under
Article 226 of the Constitution a Court of appeal over the
decision of the authorities holding a departmental enquiry
against a public servant: it is concerned to determine whether
the enquiry is held by an authority competent in that behalf,
and according to the procedure prescribed in that behalf, and
whether the rules of natural justice are not violated. Where
there is some evidence, which the authority entrusted with the
duty to hold the enquiry has accepted and which evidence may
reasonably support the conclusion that the delinquent officer isPage 60 of 63
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guilty of the charge, it is not the function of the High Court in a
petition for a writ under Article 226 to review the evidence and
to arrive at an independent finding on the evidence.”
13. Thus, in a proceeding under Article 226 of the Constitution,
the High Court does not sit as an appellate authority over the
findings of the disciplinary authority and so long as the findings
of the disciplinary authority are supported by some evidence
the High Court does not re-appreciate the evidence and come
to a different and independent finding on the evidence. This
position of law has been reiterated in several decisions by this
Court which we need not refer to, and yet by the impugned
judgment the High Court has re- appreciated the evidence and
arrived at the conclusion that the findings recorded by the
enquiry officer are not substantiated by any material on record
and the allegations leveled against the respondent no.1 do not
constitute any misconduct and that the respondent no.1 was
not guilty of any misconduct.”
36. It is now well settled that the scope of judicial review against a
departmental enquiry proceeding is very limited. It is not in the nature
of an appeal and a review on merits of the decision is not permissible.
The scope of the enquiry is to examine whether the decision-making
process is legitimate and to ensure that the findings are not bereft of
any evidence. If the records reveal that the findings are based on some
evidence, it is not the function of the court in a judicial review to re-
appreciate the same and arrive at an independent finding on the
evidence. This lakshman rekha has been recognized and reiterated in a
long line of judgments of this Court.
37. In the present case, it could certainly not be said that the report is
based on no evidence or that it is perverse. The learned Single Judge
transgressed the limits of judicial review in setting aside the enquiry
proceedings and the punishment imposed. The Division Bench, in a
short order has, after extracting a part of the learned Single Judge’s
judgment, gone on to hold that having perused the records of the
enquiry they do not find that the charges have been dealt with in any
manner of specificity. Thereafter they conclude that the learned Single
Judge was justified in arriving at its conclusion. We are not able to
sustain the orders of the learned Single Judge and the Division Bench.
12.2 At this stage, this Court also deems it fit to refer to the
ratio laid down by the Hon’ble Supreme Court in case of
Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V.
Gawde etc. etc. reported in 2024 SCC Online SC 3722.
Paragraphs 19 and 20 of the said decision read thus:
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19. We now proceed to consider the second relief claimed in the
writ petition of the respondents, i.e., the challenge laid to the order
passed by the Inquiry Officer. It is well settled that decisions rendered
by administrative authorities can be interfered with by high courts in
exercise of Article 226 powers, however, sparingly. Recently, this Court
in W.B. Central School Service Commission v. Abdul Halim while
considering the scope of interference under Article 226 in an
administrative action held that:
“31. In exercise of its power of judicial review, the Court is to
see whether the decision impugned is vitiated by an apparent
error of law. The test to determine whether a decision is vitiated
by error apparent on the face of the record is whether the error
is self- evident on the face of the record or whether the error
requires examination or argument to establish it. If an error has
to be established by a process of reasoning, on points where
there may reasonably be two opinions, it cannot be said to be
an error on the face of the record, as held by this Court in
Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa
Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a
statutory rule is reasonably capable of two or more
constructions and one construction has been adopted, the
decision would not be open to interference by the writ court. It
is only an obvious misinterpretation of a relevant statutory
provision, or ignorance or disregard thereof, or a decision
founded on reasons which are clearly wrong in law, which can
be corrected by the writ court by issuance of writ of certiorari.
32. The sweep of power under Article 226 may be wide
enough to quash unreasonable orders. If a decision is so
arbitrary and capricious that no reasonable person could have
ever arrived at it, the same is liable to be struck down by a writ
court. If the decision cannot rationally be supported by the
materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the
reasonableness of an order of the authorities does not enable
the Court to look into the sufficiency of the grounds in support
of a decision to examine the merits of the decision, sitting as if
in appeal over the decision. The test is not what the Court
considers reasonable or unreasonable but a decision which the
Court thinks that no reasonable person could have taken, which
has led to manifest injustice. The writ court does not interfere,
because a decision is not perfect.’ (emphasis supplied)”
20. The decision was approved by a further decision of this Court in
Municipal Council, Neemuch v. Mahadeo Real Estate, wherein it was
held that:
“14. It could thus be seen that the scope of judicial review of an
administrative action is very limited. Unless the Court comes toPage 62 of 63
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a conclusion that the decision-maker has not understood the
law correctly that regulates his decision-making power or when
it is found that the decision of the decision-maker is vitiated by
irrationality and that too on the principle of ‘Wednesbury
unreasonableness’ or unless it is found that there has been a
procedural impropriety in the decision-making process, it would
not be permissible for the High Court to interfere in the
decision-making process. It is also equally well settled that it is
not permissible for the Court to examine the validity of the
decision but this Court can examine only the correctness of the
decision-making process.
***
16. It could thus be seen that an interference by the High Court
would be warranted only when the decision impugned is
vitiated by an apparent error of law i.e. when the error is
apparent on the face of the record and is self-evident. The High
Court would be empowered to exercise the powers when it finds
that the decision impugned is so arbitrary and capricious that
no reasonable person would have ever arrived at. It has been
reiterated that the test is not what the Court considers
reasonable or unreasonable but a decision which the Court
thinks that no reasonable person could have taken. Not only
this but such a decision must have led to manifest injustice.”
(emphasis supplied)”
13. In light of the aforesaid facts and the position of law, as
referred above, in the facts of the present case, the order
passed in Appeal No.171/2006/23 by the Gujarat Civil Services
Tribunal dated 03.01.2007 is well reasoned order; having
considered the documents that were produced on record as
also discussing the evidence in detail. In view thereof, no case
is made out to exercise extra-ordinary jurisdiction under Article
226 of the Constitution of India. The present petition stands
dismissed accordingly. Rule is discharged.
(VAIBHAVI D. NANAVATI,J)
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