Issuance Of Charge-Sheet At The Fag End Of Service Indicates That The Same Is Done With A Mala Fide Intention: Gujarat HC Imposes Rs 10K Cost On Officer

The Gujarat High Court was considering an appeal filed under Clause 15 of the Letters Patent, 1865 directed against the order of the Single Judge rejecting the writ petition filed by the appellant – original petitioner challenging the charge-sheet.

The Division Bench of Justice A. S. Supehia and Justice Gita Gopi held, “Thus, on the overall analysis of the facts and the manner in which the charge-sheet is issued at the fag end of service of the appellant, indicates that the same is done with a mala fide intention.”

Advocate Vaibhav A Vyas represented the appellant while Advocate Sahil B. Trivedi represented the respondent.

The appellant in this case, who was serving as a Director of Accountants and Treasury (Class-I), was to retire on attaining the age of superannuation on 30.09.2022. He was issued a charge-sheet dated 24.05.2021 containing three charges. The first charge pertained to procuring a passport without obtaining NOC in the year 2003. However, the said charge had been dropped since it was subsequently found that the appellant had obtained the NOC from the State Government. The second charge No.2 referred to renewal of the passport in the year 2013. The third charge referred to foreign travels to Australia and Nepal without intimation and prior permission of the State Government. The first and third charges were dropped but not the second one. The second charge manifested that the appellant had been charged with a misconduct of renewing her passport without obtaining the NOC in the year 2013.

Referring to the Rule 3(1) of the Gujarat Civil Services (Conduct) Rules, 1971, Vyas contended that the charge No.2 would not fall under the definition of misconduct. It was further argued that the passport of the appellant was renewed by her in the year 2013 and on the verge of her retirement, a charge-sheet had been issued and on the ground of delay also, such charge was required to be quashed and set aside.

At the outset, the Bench opined that the entire charge-sheet was blissfully silent, so far the aspect of delay was concerned and the affidavit-in-reply did not mention any reason as to why for a renewal of a passport in the year 2013, for which it was alleged that the appellant has not obtained the NOC, the charge-sheet had been issued at the fag end of retirement. The Bench further added, “Hence, on this sole ground, the charge No.2 or the charge-sheet is required to be quashed and set aside.”

The Bench further explained, “Rule 3(1) of the Gujarat Civil Services (Conduct) Rules, 1971, refers to three aspects, which the Government servant has to maintain ; (i) absolute integrity, (ii) devotion to duty, and (iii) do nothing which is unbecoming of a Government servant.”As per the Bench, the appellant had obtained NOC at the time of getting the passport, but she did not obtain the same at the time of renewal. “Such an act will not fall in either of the clauses to Sub-Rule (1). It cannot be said that non-obtaining of NOC at the time of renewal of the passport will tantamount to “lack of integrity” or “lack of devotion towards duty”, the Bench added.

“The act of the appellant can at the most be termed as “lapse” on her part and the same cannot be stretched to an extent to clause(iii), which refers to the act of unbecoming of a Government servant. The act of the appellant is neither gross nor habitual negligence nor can it be said that her conduct was so egregious, which resulted into grave consequences and irreparable damage is caused to the Government”, the Court observed.

The respondent had placed reliance on the Office Memorandum dated 5.10.2009 issued by the Government of India where paragraph No.3(d) stipulated that the NOC is required for reissuance of passport to Government employees on expiry of passport or exhaustion of VISA however, no police verification is required at reissue stage. On this argument, the Bench opined that if the instructions were brought to the appellant’s notice, she would have obtained the NOC in the same manner, when she applied for the passport for the first time in the year 2003. “The non-observance of the administrative instruction of paragraph No.3(d) by the appellant cannot qualify as misconduct unless she was informed that violation of the instructions will amount to misconduct inviting disciplinary proceedings”, the Bench said.

It was also brought to the Court’s attention that the appellant in her writ petition in paragraph No.(f) had made a categorical statement against the officer Umesh M Oza, who had issued the charge sheet. She mentioned that he was having personal grudge against her since when he was working as a Deputy Director, the appellant filed various complaints/FIR’s against him.

Further noting that Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002 empowers the Government to withhold or withdraw pension only when the pensioner is found guilty of “grave misconduct or negligence” during the period of service, the Bench stated, “The Charge No.2 of the chargesheet will not in any manner satisfy the expression “grave misconduct or negligence”. The bench also observed that the charge-sheet by the Officer by exhuming stale lapse appeared to jeopardize the retirement benefits of the appellant by continuing the departmental proceedings beyond her retirement benefits as the appellant had already retired from service on reaching the age of superannuation.

Thus, quashing the second charge and imposing a cost of Rs 10,000 on the erring Officer for issuing the chargesheet, the Bench allowed the appeal

Cause Title: Charu Narendrabhai Bhatt vs The State of Gujarat [Case No.- C/LPA/540/2024]

Appearance:

Appellant: Advocate Vaibhav A Vyas

Respondent: Advocate Sahil B. Trivedi

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