Stating that it is “bad in law” and “unsustainable”, the Gujarat High Court on Wednesday quashed and set aside a decade-old suspension order and a pension cut penalty handed out to a retired government officer in five alleged charges of misconduct dating back to years 1999-2001 levelled against him.
The court considered the submission of the petitioner that the state government decision is “discriminatory” in nature.
The single judge bench of Justice Maulik J Shelat of the Gujarat High Court was hearing two petitions filed by Fazluraheman Shaikh, challenging his 2010 suspension as well as the subsequent order of punishment seven years later in 2017 imposing a pension cut of Rs 1,500 per month for 10 years under Rule 24 of the Gujarat Civil Service (Pension) Rules, 2002.
Shaikh, who had joined government service in 1982 as a Class-II officer under the Directorate of Employment and Training, Gujarat, was serving as Principal (Class-I) at ITI, Gondal, when he was abruptly suspended in May 2010. The suspension related to an alleged misconduct dating back to the years 1999–2001. The judgment noted that out of the five charges of misconduct levelled against Shaikh, only charge no. 4 was grave as it related to alleged financial irregularity while he was the principal in ITI, Dahod.
It was alleged that during a surprise inspection in April 2001 by the Deputy Director, Vadodara, it was found that 12 items recorded in the purchase register of the institution along with bills of Rs 2,90,890 were “missing”. A departmental inquiry had been initiated, with the petitioner accused of financial irregularity.
Shaikh’s counsel submitted to the court that a co-accused, supervisor instructor N D Sharma, who had certified receipt of the very same goods, was exonerated during the inquiry while the petitioner was held guilty. Citing discrimination, the petitioner’s advocate submitted, “It is a clear case of discrimination by the State when it has taken a different stand in the case of the petitioner. The role of the petitioner being Principal is not to routinely check the goods received by the institute.” The petitioner also submitted a 2016 letter from the ITI confirming that he had caused “no financial loss” to the institute.
The judgment noted that out of five charges framed against Shaikh, four could not be proved. The only charge to be partially proven was charge No. 5, which related to a delay in forwarding service book from ITI Visnagar to ITI Dahod in 1999. The petitioner argued that this lapse was “trifling in nature” and did not account for grave misconduct that would “entail a punishment in the form of a pension cut”. The other charges termed as “stale and trifling in nature” in the judgment, pertained to unauthorised absence from leave, which were not proven.
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Additional Government Pleader Rami opposed the submissions and stated that the petitioner should have raised the issue before the inquiry and by the fact that he participated in the inquiry, he “lost his right to question” the same.
The court held that the petitioner was served with a chargesheet in June 2010. In March 2013, the inquiry officer had concluded that four charges were not proven against the petitioner and only Charge 5 was partially proven. After serving a show-cause notice to the petitioner in 2013 – to which Shaikh had submitted a reply – the state government communicated its “disagreement with the inquiry report” in the context of Charges 1 to 4, in January 2015. When Shaikh sought a reason for the disagreement, the state authorities communicated to the petitioner that the four charges had been “proven against the petitioner as decided by the authority”.
The judgment of the HC states that although the scope of judicial review in the order of punishment is “very limited”, the court said that the “initiation of the inquiry by issuing a chargesheet (in June 2010) for alleged misconduct committed by the petitioner in the years 1999 to 2001 itself shows that there was delay in the initiation of the inquiry with “no cogent and justifiable reason” from (the state). The judgment also notes that although the inquiry report came to be submitted by the Inquiry Officer in March 2013 and the petitioner was called upon to submit a reply in context of the service book in September 2013, the impugned order of penalty was passed in June 2017.
Stating that petitioner was subjected to inquiry at the “fag end of his service career”, the court stated the inordinate delay in the completion of the inquiry had “caused immense mental distress to the petitioner and as he was put under suspension prior to the issuance of the chargesheet, it damaged his reputation as well. … the delay has caused great prejudice to the interest of the petitioner, inasmuch as the petitioner was put under suspension at the fag end of his service and accordingly, the petitioner was deprived of receiving service benefits.”
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Stating that a bare reading of the 2015 communication of the state government to the petitioner “clearly shows that the competent authority had already made up its mind”, the orders were “not only violation of the principles of natural justice but it amounts to arbitrariness on the part of the respondent.”
The court considered the letter from ITI Dahod to the petitioner confirming that no financial loss had been caused as alleged in charge no. 4 against the petitioner. The judgment states, “Since the impugned order of punishment is unsustainable in law, consequently, the impugned suspension order dated (May 2010) is also not sustainable in law… the impugned order of punishment dated (June 2017)… is bad in law… is hereby quashed and set aside.”
The court also ordered the state government to refund the amount of the pension cut imposed on Shaikh, along with an interest of 6% per annum by May 15, 2026, failing which, a penalty of Rs 50,000 would be imposed on the state.
The court order states, “The amount recovered by the (state) from the pension of the petitioner, i.e., the pension cut of Rs.1,500/- per month for 10 years, is required to be returned back to the petitioner with 6% interest p.a. from the date of its actual recovery till date of its refund…”
Shaikh had retired on superannuation in April 2011.
