S.R. Brahmbhatt, J. (Oral) - Heard learned counsels appearing for the parties.

2. The petitioner, by way of this petition, has approached this Court with following prayers:

"(A) quash and set aside the impugned order dated 28.7.2005, Annexure - A to this petition, and

(B) direct the respondent authorities to reinstate the petitioner in active service with all consequential benefits, as if the impugned order dated 28.7.2005 was not passed, and

(C) award the cost of the petition, and

(D) grant any other relief or pass any other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and

(E) pending admission and final hearing of this petition, the Honourable Court may be pleased to grant the mandatory injunction against the further implementation and operation of the impugned order dated 28.7.2005 Annexure-A to this petition."

Thus, what is essentially under challenge in this petition is the order of punishment of compulsory retirement from government service, dated 28.07.2005 on the ground that the charges against him were proved and punishment of compulsory retirement was imposed.

3. Facts in brief, as could be culled out from the memo of petition deserve to be set out as under:

3.1. The petitioner had joined the service as Sales Tax Officer, Class-II, on 05.03.1973 and in due course, the petitioner was promoted as Assistant Commissioner of Sales Tax with effect from 05.09.1979 and was further promoted as Deputy Commissioner of Sales Tax with effect from 07.01.1984. The petitioner continued to work on the said post of Deputy Commissioner of Sales Tax till impugned order of punishment came to be passed.

3.2. The officers working in the Sales Tax Department re-designated one step higher w.e.f. November, 2004 and accordingly the petitioner is called as Joint Commissioner of Sales Tax and the pay scale continued to be that of Deputy Commissioner of Sales Tax.

3.3. The date of birth of petitioner is 31.08.1947 and accordingly the petitioner would have retired on attaining the age of superannuation with effect from 31.08.2005, however, before that the impugned order dated 28.7.2005 is passed.

3.4. The petitioner was served with a show cause notice dated 28.09.1993 asking the petitioner to show cause his position with regard to few orders which the petitioner had passed in discharge of quasi judicial powers under Section 62 of the Gujarat Sales Tax Act, 1969. The petitioner has filed detailed explanation to the authorities on 05.11.1993. Thereafter, no steps were taken against the petitioner and therefore, it was believed by the petitioner that chapter is closed.

3.5. Surprisingly the petitioner was served with charge-sheet on 10.12.1997 for the same points for which the show cause notice was given to the petitioner. Inspite of instructions of the Government, the documents based on which the said charge-sheet was issued, were not only supplied to the petitioner but they were not even with the Disciplinary Authority before forming an opinion that the charges are required to be framed against the petitioner. The documents based on which the charge-sheet was issued to the petitioner were supplied to the petitioner by the Commissioner of Sales Tax, Gujarat State, by communication dated 05.09.1998.

3.6. The explanation furnished by the petitioner dated 05.11.1993 had not been accepted by the Finance Department and therefore the matter was required to be further investigated by the Inquiry Officer and accordingly, the Inquiry Officer was appointed vide order dated 12.01.1999 and in turn was changed vide order dated 20.09.1999.

3.7. After completing the formalities of hearing, the Inquiry Officer hold that the charges leveled against the petitioner are proved and before doing so, the petitioner was asked to put his case before him and therefore, the petitioner had given his written defence statement dated 25.07.2000 and 16.08.2000. The Presiding Officer had submitted his written brief on 11.10.2000. The petitioner had submitted his written brief on 05.12.2000. Thereafter, the Inquiry Officer has submitted his report to the Government on 29.01.2001. The said report was forwarded to the petitioner by Government along with letter dated 12.02.2001. Thereafter the petitioner had responded to the said inquiry report on 02.03.2001.

3.8. Thereafter for years together the authorities did not do anything and only a month before the superannuation of the petitioner, the authorities have passed the impugned order dated 28.07.2005, whereby, the petitioner was inflicted the major punishment of compulsory retirement from the service. It is this order, which is impugned in the present petition filed under Article 226 of the Constitution of India.

4. Learned counsel appearing for the petitioner invited Courts attention to the order impugned and submitted that the same ought not to have been passed, as the misconduct alleged against the petitioner could not have been classified to be a misconduct in stricto senso of the terms, as the petitioner was charged with passing orders in as many as three cases, which were ordered in his capacity as quashi judicial authority and it was attributed to him that by passing those orders he had favoured the traders/dealers and caused financial loss to the State in terms of revenue otherwise would have arisen on account of sales tax. Thus, the misconduct by and large is attributed on account of quashi judicial orders passed by the petitioner and for which there could not have been any charge sheet.

5. Learned counsel for the petitioner invited Courts attention to the fact that the said orders are said to have been passed when the petitioner was working as Deputy Sales Tax Commissioner (Legal), Ahmedabad from 16.06.1989 to 27.01.1993, he passed orders in as many as nine matters whereby the traders/dealers were helped and the State exchequer caused loss to the tune of Rs. 25,16,237/-. The charge-sheet was issued on 10.12.1997 and it culminated into order of punishment for compulsory retirement in the year 2005, to be more precise, on 28.07.2005. This would be sufficient to persuade this Court to quash the order of punishment, as there could not have been inordinate delay in conducting the inquiry of such a prolonged period.

6. Learned counsel appearing for the petitioner invited Courts attention to the order impugned and submitted that sum and substance of the charge, as could be gathered from the charge-sheet produced on record, would indicate that the petitioner was acting in his capacity as quashi judicial officer and discharging adjudicatory functions and in that view of the matter in absence of any specific instance leading to a clear prove of dishonesty, the charge-sheet could not have been sustained.

7. learned counsel for the petitioner gave reply to the charge-sheet refuting the charges, which resulted into initiation of inquiry by appointing inquiry officer. Learned counsel has invited Courts attention to the impugned order and submitted that the order is incapable of being defended even on the ground of non compliance of the principles of natural justice and inasmuch as the settled principles of law of observing the principles of natural justice have been blatantly violated on two counts namely; the inquiries prolonged and the prolonged inquiry has resulted into causing tremendous breaches to the petitioner and the order impugned clearly indicate that the respondent authorities sought advice of Gujarat Public Service Commission (hereinafter referred to as the GPSC for the sake of brevity) and obtain the same and after taking into consideration the same into consideration passed the impugned order. Therefore, in light of the catena of decisions rendered by this Court as well as High Court, the decision of punishment which was passed without affording the petitioner a copy of the report of GPSC, could not have been passed, therefore, there is clear violation of principles of natural justice.

8. Learned counsel for the petitioner relied upon the following decisions:

(i) In case of B.J. Jadav v. State of Gujarat, reported in 2005 (2) G.L.H. 334;

(ii) In case of Union of India & Others v. S.K. Kapoor, reported in 2011 (4) SCC 589 [LQ/SC/2011/412] ;

(iii) In case of S.N. Narula v. Union of India and Others, reported in (2011) 4 SCC 591 [LQ/SC/2004/143] ;

(iv) In case of Union of India v. R.P. Singh, reported in (2014) 7 SCC 340 [LQ/SC/2014/599] ;

(v) In case of Himachal Pradesh State Electricity Board Limited v. Mahesh Dahiya, reported in (2017) 1 SCC 768 [LQ/SC/2016/1458] ;

(vi) In case of J.R. Dahiya v. State of Gujarat, passed in Special Civil Application No. 18388 of 2005 on 23.06.2017;

(vii) In case of Union of India and Others v. J. Ahmed, reported in (1979) 2 SCC 286 [LQ/SC/1979/183] ;

(viii) In case of R.S. Patel v. State of Gujarat, passed in Special Civil Application No. 684 of 2002 on 28.01.2016;

It was contended, based thereupon, that it is a clear violation of principles of natural justice.

9. Per contra, Shri. Hardik Soni, learned AGP, invited Courts attention to page No. 251, which is affidavit in reply on behalf of the State, and submitted that decisions passed in B.J. Jadav v. State of Gujarat (supra) is quite distinguishable, as he emphatically placed reliance upon the averments made in paragraph Nos. 9, 10, 11 and 12, which reproduced hereunder.

"para-9 : With reference to para-4.1 of the petition, it is submitted that the determination orders as passed by the petitioner under Section-62 of Gujarat Sales Tax Act, 1969 speaks volumes about his devotion to duty as well as create doubt about his integrity. The determination orders passed by the petitioner have caused a loss of Rs. 25,16,237/- to the State exchequer. It is also pertinent to note that if the orders revising the petitioners determination orders were not issued, the exchequer would have lost Rs. 2,08,91,603/-. The details of the orders passed by the petitioner will be placed before the Hon. High Court at the time of hearing of the petition. It is submitted that before passing the impugned penalty order every opportunity as envisaged in Gujarat Civil Services (Disciplinary & Appeal) Rules, 1971 were accorded to the petitioner.

Para-10 : With reference to para 4.2 of the petition, it is submitted that the observation of the Sales Tax Tribunal as mentioned in the petition is in respect of the case of M/s. Krishi Seva Agency, Ahmedabad. The said observation was made by the Hon. Tribunal in its order Dated 5- 8-99 (Annex. N to the petition, page- 226). The orders of the Tribunal are published by various publications. Non-supplying of the said judgment to the petitioner cannot be said to be breach of natural justice. It is pertinent to note that the Petitioner had determined in that reference that "Hybreed Cotton Seed Shankar-4" is Agriculture Implements and they are covered in Entry 19 of Schedule I of Gujarat Sales Tax Act, 1969 i.e. tax free.

It is submitted that The Commissioner of Sales Tax had revised that order under Section 67 of Gujarat Sales Tax Act, 1969 and decided that the said goods falls within Entry 13 of Schedule III of the Act and hence taxable at the rate prescribed therein. The dealer preferred appeal to the Gujarat Sales Tax Tribunal, which in turn decided that the said goods will fall within Entry 6 of the Schedule-II B, which attracted tax @ 4% Though the Tribunal set aside the order of Commissioner passed in Revision, it cannot be ignored that the petitioner had in his original order determined that "Hybreed Cotton Seed Shankar-4" are Agricultural Implements and hence Tax free, whereas Tribunal held that the said goods are Oil Seeds and hence are covered in Entry 6 of the Schedule II B, which attracted tax @ 4%.

para-11: With reference to the Para-4.3 of the petition, it is submitted that the relevant provisions of Gujarat Civil Services (Discipline & Appeal) Rules, 1971 have been adhered to before the impugned order was passed. Accordingly, the petitioner had been given the reasonable opportunity to defend his actions at every stage of the departmental proceedings. So it cannot be said that the respondent authoritys actions are violative of Principles of Natural Justice. As per the provisions of Gujarat Civil Services (Discipline & Appeal) Rules, 1971, the Gujarat Public Service Commission (G.P.S.C.) was consulted and the G.P.S.C. Had concurred with the punishment proposed by the respondent authorities. A copy of the said communication of concurrence is annexed herewith and marked as Annex.R-2. It is submitted that as per the provisions of Rule-10(4) of Gujarat Civil Services (Discipline & Appeal) Rules, 1971, the delinquent need not be given the opportunity of making representation on the penalty proposed to be imposed. The said rule reads as under:

"Rule 10(4): If the Disciplinary Authority having regard to its finding on all or any of the articles of charge & on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Govt. servant, it shall make an order imposing such penalty and its shall not be necessary to give the Government Servant any opportunity of making representation on the penalty to be imposed"

It is submitted that Article 311(2) of the Constitution as amended after the 42nd amendment to the Constitution also provides for the same, which reads as under:

"311(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed."

It is submitted that the facts of the case mentioned in the petition-Special Civil Application No. 13860 of 2004-B.J. Jadav S. State of Gujarat and in the instant case are not similar. A copy of the order of the Hon. High Court in S.C.A. 13860 of 2004 is annexed and marked as Annex.R-3. In that case, the penalty proposed by the Disciplinary Authority and communicated for consultation of G.P.S.C was to revert the petitioner to the lower post in the feeder cadre of Class II from the present position for a period of two years and to be placed in the same pay scale which the petitioner was receiving on the date of punishment upon completion of the said period of penalty; while preserving his seniority in the Class-I post; whereby, the G.P.S.C had advised to increase the penalty by way of reversion for five years instead of two years as proposed by the Disciplinary Authority, who in turn accepted the advice of the G.P.S.C and imposed the penalty of reversion for five years. It is clear that the penalty was increased as per the advice of the G.P.S.C and that non-providence of the said letter of G.P.S.C to the petitioner and opportunity to represent his case viz-a-viz increase in penalty before the order of penalty has been treated as breach of Principle of Natural Justice, whereas in the instant case, the penalty proposed and communicated to G.P.S.C, was concurred to by the G.P.S.C as is clear from the letter of the G.P.S.C, annexed as Annex.R-2. As the facts of the case referred (Special Civil Application No. 13860/2004) are not similar to the instant case, the judgment of that case cannot be applied in the instant case.

It is also submitted that, if the copy of the said communication is supplied to the delinquent, then if the same penalty is inflicted as proposed to the G.P.S.C., then the delinquent will come with the plea that the Disciplinary Authority was pre-determined on the quantum of punishment.

Para-12: With reference to the para-4.5 of the petition, it is submitted that the averments are denied. There is no mala fide in the decision of the Disciplinary Authority, which is also conferred by G.P.S.C and which is quite proportionate to the grave charges against the petitioner, that were held as proved in the departmental inquiry."

It was contended relying upon these paragraphs that factual aspect of the matter is quite distinct and it would not have made any difference to the delinquent, as the GPSC merely concurred with the view expressed by the disciplinary authority while inviting GPSCs opinion and advice. It goes without saying that the PSCs advice is not binding upon disciplinary authority, as held by Supreme Court in catena of decisions.

10. Learned AGP appearing for the State further submitted that the charge levelled against the officer indicate that there was a deliberate attempt on his part to help those dealers and if the Commissioner has not undertaken suo motu exercise of reviewing the orders, the exchequer would have suffered greater losses than what has been imputed in the charge-sheet. Therefore, such an officer i.e. petitioner cannot be helped on mere technical ground of non furnishing of the copy of the advice of GPSC, which in fact would not have made any difference as such, as GPSC merely concurred with the view of the disciplinary authority, when disciplinary authority communicated its tentative decision of punishment.

11. Learned AGP appearing for the State further submitted that the decisions cited at the bar thus distinguishable and this Court may take that into consideration, as in both the cases i.e. B.J. Jadav v. State of Gujarat (supra) as well as Union of India & Others v. S.K. Kapoor (supra), there was a disagreement in the opinion or at least enhancement of punishment suggested or proposed by PSCs where in the instant case the opinion of the PSC was merely that of concurring with the view of the disciplinary authority, which in fact would not have made in dent into the defence that would have been coming forward from the delinquent and in that view of the matter, the petition does not deserve to be allowed and rather it is meriting dismissal, at this stage.

12. Learned AGP relying upon decision in case of Union of India and Others v. Duli Chand, reported in (2006) 5 SCC 680 [LQ/SC/2006/360] , submitted that the proposition of law sought to be canvassed on behalf of the petitioner that a quashi judicial officer is beyond the clutches of inquiry so far as its decision making process is concerned, is unfortunately not supported by the observation of the Supreme Court in case of Union of India and Others v. Duli Chand (supra), as the Supreme Court has laid principles in which even quashi judicial authority is required to be acting in accordance with law and when there is established deviation from duty or recklessness or negligence, then the disciplinary proceeding would lie against him.

13. Learned AGP invited Courts attention to the provision of Rule 32, as referred to in Union of India & Others v. S.K. Kapoor (supra) and submitted that the Rule there did provide for consultation and copy of the PSCs advice, whereas in the instant case Rule 10(4) is merely about consultation only and it cannot be read i.e. requirement of supplying of copy also.

14. This Court has heard learned counsel appearing for the parties and perused the record and proceedings. The following indisputed facts emerged therefrom which required to be set out as under:

(i) The petitioner had joined the service as Sales Tax Officer, Class-II on 05.03.1973 and in due course, the petitioner was promoted as Assistant Commissioner of Sales Tax with effect from 05.09.1979 and was further promoted as Deputy Commissioner of Sales Tax with effect from 07.01.1984.

(ii) It is not in dispute that petitioner has continued to work on the said post of Deputy Commissioner of Sales Tax till impugned order of punishment came to be passed. The officers working in the Sales Tax Department re-designated one step higher w.e.f. November, 2004 and accordingly the petitioner is called as Joint Commissioner of Sales Tax.

(iii) The petitioner was served with a show cause notice dated 28.09.1993 asking the petitioner to show cause his position with regard to few orders which the petitioner had passed in discharge of quasi judicial powers under Section 62 of the Gujarat Sales Tax Act, 1969.

(iv) The petitioner has filed detailed explanation to the authorities on 05.11.1993. Thereafter, no steps were taken against the petitioner and therefore, it was believed by the petitioner that chapter is closed.

(v) The petitioner was served with charge-sheet on 10.12.1997 for the same points for which the show cause notice was given to the petitioner on 28.09.1993 i.e. after a period of about 4 years. The documents based on which the charge-sheet was issued to the petitioner were supplied to the petitioner by the Commissioner of Sales Tax, Gujarat State by communication dated 05.09.1998.

(vi) The matter was further investigated by the Inquiry Officer and the Inquiry Officer was appointed vide order dated 12.01.1999 and in turn was changed vide order dated 20.09.1999 and after completing the formalities of hearing and written defence statement given by the petitioner on 25.07.2000 and 16.08.2000, the Inquiry Officer has submitted his report to the Government on 29.01.2001 and the same was forwarded to the petitioner by Government along with letter dated 12.02.2001. Thereafter the petitioner had responded to the said inquiry report on 02.03.2001.

(vii) Thereafter for years together the authorities did not do anything and only a month before the superannuation of the petitioner, the authorities have passed the impugned order dated 28.07.2005, whereby, the petitioner was inflicted the major punishment of compulsory retirement from the service.

15. Against the aforesaid factual backdrop, this Court is of the considered view that the provision of law is required to be examined in detail. The prevalent Rule, so far as, the present case is concerned, is Rule 10(4) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. It is required to be set out as under:

"Rule 10(4): If the Disciplinary Authority having regard to its finding on all or any of the articles of charge & on the basis of the evidence adduced during the inquiry is of that opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Govt. servant, it shall make an order imposing such penalty and its shall not be necessary to give the Government Servant any opportunity of making representation on the penalty to be imposed"

In this Rule the provision is for consulting Public Service Commission only. Learned AGP is correct in his submission that in this Rule there is no express provision qua supply of the copy.

16. As against this, Rule 32, as its stood, and after its amendment, as it is reproduced in the decision of Union of India v. R.P. Singh (supra) would indicate that thereafter, after the Court rendered judgment in case of Union of India & Others v. S.K. Kapoor (supra), there was a specific amendment made in the Rules under which the copy of PSCs advice was required to be supplied. While parting with the judgment, Supreme Court did observe that relying upon decision in case of ECIL v. B. Karunakar, the supply of copy was also required on count of compliance with the principles of natural justice, as it is bounden principle. The Court is unable to accept the contention raised on behalf of the State that in absence of any specific provision and the Rule for supplying copy, the same cannot be read into it, as the Supreme Court and our High Court in case of B.J. Jadav v. State of Gujarat (supra) held that this is a requirement of principles of natural justice which provides that anything which is being considered by the disciplinary authority for coming to the conclusion of imposing punishment, the copy thereof is required to be supplied to the delinquent and his comments are required to be invited. In absence thereof, the provision becomes empty formality and the order, therefore, rendered itself would be vitiated.

17. In that view of the matter, when the copy is admittedly not supplied and it was sought to be defended on account of it being absolutely of non consequence, the same could not be countenanced by this Court under Article 226 of the Constitution of India. The facts remained to be noticed that communication which was sent to the delinquent petitioner was not even indicating any tentative punishment. The delinquent was in an absolute darkness, so far as the tentative decision was concerned. The delinquent was only invited to offer his comments by the Inquiry Officers findings which was accepted by the disciplinary authority. But the disciplinary authoritys communication to the delinquent for inviting his comments on the Inquiry Officers report was silent qua any tentative decision also for imposing punishment, as the deponent of the Affidavit-in-Reply has expressed its apprehension that in such a scenario sometime delinquent taking away plea that the authority has pre-determined the case.

18. Be that it may. The question here is to assess whether the principles of natural justice have been complied or not In the instant case, the communication which was sent to the petitioner was merely inviting his comments and his defence on the inquiry and in absence of finding which was accepted by the disciplinary authority while the communication sent to the GPSC, as its seen from the order impugned in which it is mentioned that the proposed punishment, meaning thereby the communication which was sent to GPSC, did contain tentative decision of imposing punishment and the commission accepted the same. Now had this communication been also sent to the petitioner The petitioner would have known as to how and in what manner the P.S.C. has concurred with the tentative proposition in which the petitioner would have chance to ask for more lenient view to be taken by the authorities in respect of his defence and the inordinate delay occurred in conducting the proceedings.

19. In absence thereof, when the advice was taken into consideration on its tentative proposition of punishment, it can well be said that there was definitely a breach of principles of natural justice, as the delinquent petitioner did not have opportunity to reflect upon the advice upon the commission, which though having effect of merely expressing commissions concurrence with the view of the disciplinary authority, but that view of disciplinary authority was also not known to the petitioner. It can be said that the entire communication was taken into consideration by the authority in arriving at a decision to impose punishment of compulsory retirement.

20. In that view of the matter, this Court has no hesitation to come to the conclusion that disciplinary proceedings at least would vitiate from the stage of non supplying of the copy and therefore, the resultant order is required to be quashed and set aside and accordingly quashed and set aside. The consequential benefits shall follow. The disciplinary authority would be at liberty to resume their proceedings from supplying of the copy of the report, as envisaged in case of Union of India & Others v. S.K. Kapoor (supra) in accordance with law and in such situation it would be open to the petitioner to take up all the available defence including delay and lapses of time.

21. In that view of the aforesaid observations and directions, the petition is allowed. Rule made absolute.