F H SHAIKHversusSTATE OF GUJARAT THROUGH PRINCIPAL SECRETARY

 C/SCA/17655/2017                                   CAV JUDGMENT DATED: 11/03/2026




                                            Reserved On   : 25/02/2026
                                            Pronounced On : 11/03/2026

       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 17655 of 2017
                            With
        R/SPECIAL CIVIL APPLICATION NO. 6624 of 2010

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT
=============================================
          Approved for Reporting                    Yes           No
                                                     √
=============================================
                    FAZLURAHEMAN HADERBUX SHAIKH
                                 Versus
                           STATE OF GUJARAT
=============================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR SIDDHARTH RAMI, AGP for the Respondent(s) No. 1
=============================================

 CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                        COMMON CAV JUDGMENT
1.     Both these batches of writ petitions are interconnected
with    each        other   as   the   petitioner    has    challenged         his
suspension in connection with the misconduct allegedly
committed by him in the years 2000-2001 and also challenged
the order of penalty inflicted upon him for the very
misconduct. Thus, both these matters were heard and decided
together by way of this common judgment.


1.1    Heard Mr.Vaibhav Vyas, learned                     advocate for the
petitioner and Mr.Siddharth Rami, learned AGP appearing for
the respondent-State at length.


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2.     The writ present petition, being Special Civil Application
No.17655 of 2017 is filed under Article 226 of the Constitution
of India, seeking the following reliefs:


       “(A) Quash and set aside the impugned punishment order dated
       2.6.2017, Annexure-A to this petition, and
       (B) pending admission and final disposal of this petition the
       Honourable Court may be pleased to stay the operation,
       implementation and execution of the impugned order dated
       2.6.2017, Annexure-A to this petition, and
       (C) Award the cost of this petition, and”



2.1    The writ present petition, being Special Civil Application
No.6624 of 2010 is filed under Article 226 of the Constitution
of India, seeking the following reliefs:


       “(A) quash and set aside the impugned suspension order dated
       28.05.2010, Annexure-A to this petition, and
       (B) pending admission and final disposal of this petition the
       Honourable Court may be pleased to grant the mandatory
       injunction against the further the implementation and operation of
       the impugned suspension order dated 28.5.2010, Annexure-A to
       this petition, and
       (C) Award the exemplary cost of this petition, and”



SHORT FACTS OF THE CASE:

3.     It is the case of the petitioner that the petitioner had
initially joined service on 10/05/1982, as a Class-II officer
under      the      administrative    control      of   the     Director        of
Employment and Training, Gujarat State. The appointment of
the petitioner was as Principal (Class-II). The next higher post
in the said hierarchy is Assistant Director (Training) (Class-I).




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3.1    The Gujarat Public Service Commission had issued an
advertisement in the year 1985 inviting applications for direct
recruitment to the said post. The petitioner appears to have
applied pursuant to the advertisement and got selected and
due to the intervention of this Court, the petitioner was
appointed to the said post.


3.2    While the petitioner was posted as Principal (Class-I) at
I.T.I., Gondal, he was placed under suspension on 28/05/2010
which was revised on 25/06/2010, in connection with the
misconduct allegedly committed by the petitioner before a
period of one decade in the years 1999-2001. The petitioner
appears to have challenged the said order of suspension
before this Court by way of a writ petition, being Special Civil
Application No.6624 of 2010, which is admitted by this Court.


3.3    The petitioner was served with a charge-sheet on
21/06/2010 in connection with the said alleged misconduct. As
can be seen from the aforesaid charge-sheet that there were
in all five charges levelled against the petitioner, out of which
only charge No.4 was in relation to a financial irregularity and
the other charges are trifling in nature. Upon conclusion of
the inquiry, the     Inquiry Officer vide his           report dated
20/03/2013, exonerated the petitioner from four charges but
held that charge No.5 was partly proved against the
petitioner. It is not in dispute that the petitioner retired from
service on 30/04/2011 on attaining the age of superannuation.

3.4    It requires to be noted here that one Mr.N.D.Sharma,
Supervisor Instructor working in the institute where the

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petitioner was serving as Principal was also subjected to a
charge of financial irregularity in connection with the Charge
No.4 levelled against the petitioner. The record suggests that
said Mr.Sharma was exonerated from such charge by the
Inquiry Officer and the same was accepted by the respondent.

3.5    The disciplinary authority initially had accepted the said
inquiry     report   by   issuing   a    show   cause      notice      dated
18/09/2013 by supplying a copy of the inquiry report to the
petitioner. The petitioner had requested him to grant him a
personal hearing which was granted by the respondent vide
its communication dated 04/12/2013. The petitioner appears
to have submitted his written reply on 06/12/2013 contending
inter alia that even charge No.5 was not partially proved
against him as there was no delay on his part in not sending
his service-book in time.



3.6    After about more than a year on 20/01/2015, the
respondent had called upon the petitioner to submit his
defence/additional reply as the Competent Authority of the
respondent – State was not in agreement with the finding of
the Inquiry Officer so far as Charge Nos.1 to 4 and the partial
proving of Charge No.5 were concerned. The petitioner
appears to have sought the reasons for the disagreement from
the respondent vide his letter dated 28/01/2015. Thereafter,
the respondent vide its letter dated 16/02/2015 supplied the
the so-called reason for disagreement. It requires to be noted
here that a bare reading of the said communication would
indicate that the Competent Authority has held that Charge


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No.1 to 4 are proved. As such, it is not a letter containing the
reason for disagreement but the guilt of the accused in
connection with Charge No.1 to 4 is believed to have been
proved.


3.7    The petitioner submitted his detailed defence/reply on
23/02/2015. The aforesaid reply of the petitioner was not
accepted by the State, rather it had initially taken a decision
to impose a penalty of a pension cut of Rs.1,500/- per month
for five years but upon consultation with the Gujarat Public
Service Commission (GPSC), the Commission vide its letter
dated 04/10/2016 disagreed with the aforesaid punishment to
be imposed upon the petitioner and suggested a pension cut
of Rs.1,500/- per month for 10 years. Thus, the show cause
notice dated 27/10/2016 was served upon the petitioner
before imposing aforesaid punishment. The same was replied
by the petitioner vide his replies dated 08/11/2016 and
14/03/2017.


3.8    After considering the aforesaid, the State vide its
impugned order dated 02/06/2017 imposed a punishment of a
pension cut of Rs.1,500/- per month for 10 years, as per Rule
24 of the Gujarat Civil Service (Pension) Rules, 2002
(hereinafter referred to as “the Rules, 2002”). The aforesaid
impugned order is challenged by the petitioner before this
Court by filing a writ petition, being Special Civil Application
No.17655 of 2017.




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SUBMISSIONS OF THE PETITIONER:

4.     Mr.Vyas,      learned   advocate           for     the    petitioner       has
assiduously argued and made the following submissions:

4.1    The      petitioner   was      served       with       charge-sheet          on
21/06/2010 in connection with alleged misconduct on his part
committed by him over a period of one decade ago in the
years between 1999 and 2001. It is a clear case of
victimization as none of the charges were proved on record
but to deprive the petitioner from getting a promotion to a
higher post, he was subjected to departmental proceedings,
thereby order of suspension was passed in connection with
the said alleged misconduct.


4.2    The State has miserably failed to justify the delay in the
initiation of the departmental inquiry against the petitioner,
that too on charges trifling in nature except Charge No.4,
which was also not proved as recorded by the Inquiry Officer
in his report. The inquiry was not concluded for more than
seven years from its initiation after the service of charges and
the petitioner though retired from service on 30/04/2011 has
to face a pension cut vide the impugned order dated
02/06/2017.


4.3    The State is not in a position to justify the change of its
stand by disagreeing with the reasons assigned by the Inquiry
Officer by holding that Charge No.1 to 4 are not proved and
Charge No.5 is partially proved. At the first instance, in the
year 2013, the State called upon the petitioner to submit his

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reply qua Charge No.5 which was held to be partially proved
against him by the Inquiry Officer, whereby the rest of the
charges held to be not proved by the Inquiry Officer were
accepted by the State. Nonetheless, the State vide its show
cause notice dated 20/01/2015 called upon the petitioner to
submit his reply against all the charges as the Competent
Authority of the State had shown disagreement with the
reasons of the Inquiry Officer exonerating the petitioner from
Charge Nos.1 to 4.


4.4    The State has not assigned any independent reason for
the disagreement with the Inquiry Officer, which is a sine qua
non while issuing the show cause notice dated 20/01/2015.
The letter dated 16/02/2015 alleged to have been issued by
supplying the reason for disagreement by the State would
clearly indicate that the Competent Authority of the State has
already decided that Charge No.1 to 4 are proved. Thus, no
purpose would have been served by allowing the petitioner to
submit his reply to the aforesaid show-cause notice as the
Competent Authority had already made up its mind. There is a
clear violation of the principles of natural justice at the hands
of the State.


4.5    The impugned order of punishment is a non-speaking
order, inasmuch as no reasons were assigned by the
Disciplinary Authority disagreeing with the reply of the
petitioner. It is settled law that any order passed by an
Administrative Authority must assign reasons; otherwise, such
order is unsustainable in law.


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4.6        The impugned order of penalty is not passed in
consonance with Rule 24 of the Rules, 2002; rather it is
passed without jurisdiction. As per the aforesaid Rule, unless
there is grave misconduct or negligence on the part of the
pensioner during the course of his service which caused
financial loss to the Government, no pension cut could have
been imposed upon the pensioner. There is nothing on record
to show any financial loss caused to the Government rather
letter dated 29/09/2016 issued by the Industrial Training
Institute, Dahod in which the petitioner was Principal, to the
Deputy Director, Employment and Training, Gandhinagar,
states that upon checking the contingency bill Nos.420, 425
and 426 dated 29/03/2001, the purchased goods were
received by the Institute, and thereby there is no financial loss
caused to the State, thus, it is not necessary to initiate any
recovery proceedings.


4.7    After        the    submission     of       the   inquiry      report,       the
departmental              notes   would     clearly        indicate       that      the
department concerned is in agreement with the report of the
Inquiry Officer. None of the charges are proved against the
petitioner and they are, as such, trifling in nature. So far as
charge No.5 is concerned, there was as such no delay on the
part of the petitioner in sending his service-book as he was on
leave at the relevant point of time. Assuming without
admitting that the petitioner’s reply dated 09/08/1999 may be
factually incorrect as ITI, Visnagar sent his service-book to
ITI, Dahod on 11/04/1999, then also, for such conduct of the


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petitioner, he would not entail with a punishment in the form
of a pension cut.


4.8    The petitioner was wrongly held guilty of charge No.4 as
for   the      very   charge,   one     Mr.N.D.Sharma,         Supervisor
Instructor was exonerated by the Inquiry Officer and the same
was accepted by the State. 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
Presenting Officer failed to examine the inspecting authority
i.e. the Regional Deputy Director, Vadodara at whose instance
the State framed charge No.4 against the petitioner. The
witnesses examined by the Presenting                 Officer have not
supported the case of the department. For all these reasons,
the petitioner cannot be held guilty for charge No.4. The
impugned order of punishment be quashed and set aside.


4.9    Once the charges are not proved against the petitioner
and as such, no penalty could have been imposed upon the
petitioner as per Rule 24 of the Rules, 2002, then the order of
suspension would not sustain in law and the same may also be
quashed and set aside.


4.10 To buttress his argument, Mr.Vyas, learned advocate for
the petitioner has relied upon the following judgments:


       (i)  Judgment dated 26/06/2024 passed by Division
       Bench of this Court in case of Ea Singh (Edwin Annett


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       Singh) and others vs. State of Gujarat, being Letters Patent
       Appeal No.934 of 2015.

       (ii)  Union of India and others vs. P. Gunasekaran – 2015
       (2) SCC 610.

       (iii) Kranti Associates Private Limited and another vs.
       Masood Ahmed Khan and others – 2010 (9) SCC 496.

       (iv) Bongaigaon Refinery & Petrochemicals Ltd. vs. Girish
       Chandra Sarma – (2007) 7 SCC 206.

       (v)   State Of Andhra Pradesh vs. N. Radhakishan – 1998
       (4) SCC 154.

       (vi) Decision dated 10/11/2025 passed by this Court in
       case of Rasiklal Ambalal Makwana vs. State of Gujarat,
       being Special Civil Application No.14341 of 2019.


4.11      Making the above submissions, Mr.Vyas,                  learned
advocate for the petitioner would pray to this Court to allow
the present petition.


SUBMISSIONS OF THE RESPONDENT:

5.     Per Contra, Mr. Rami, learned AGP, has vehemently
opposed the submissions made by the learned advocate for
the petitioner as well as the prayers made in this petition, by
making the following submissions:


5.1    The allegations of delay and laches in the initiation and
conclusion of the inquiry are unsustainable. At the relevant
point of time, the petitioner ought to have raised such issues.
Once the petitioner participated in the inquiry, he lost his
right to question the inquiry on the ground of delay in its
initiation.



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5.2    The petitioner has failed to show any prejudice caused to
him due to the alleged delay in the initiation of the inquiry.


5.3    Along         with   the   petitioner,       the     Store      Keeper       and
Assistant Store Keeper were also charge-sheeted for Charge
No.4 in question and all were found guilty of serious
misconduct, whereby punishment was imposed upon them.


5.4    The case of the petitioner was referred to the Gujarat
Public Service Commission who recommended to increase the
period of the pension cut from five years to ten years and after
observing the principles of natural justice, the impugned
order of penalty was passed by the respondent.


5.5    The          respondent     had     supplied           the     reasons        for
disagreement           to   the    petitioner       vide       its    letter     dated
16/02/2015. The charge No.4 was serious in nature and
having been found proved against the petitioner, an order of
penalty was imposed upon him.


5.6    At the relevant point of time, upon receipt of the inquiry
report, the department concerned had not referred the matter
to the Additional Chief Secretary of the Gujarat Administrative
Department of State, which is a sine qua non in the case of
the petitioner being a Class-I officer. The department required
to send a copy of the inquiry report as the Inquiry Officer had
not found that charge Nos.1 to 4 proved against the petitioner
and in those circumstances, whether to accept such report as



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it is, the opinion/decision of the Secretary of the concerned
department as well as the Additional Chief Secretary of G.A.D.
would be final. Thus, when such report was brought to the
notice of G.A.D., it had disagreed with the reasons of the
Inquiry Officer and advised the department concerned to issue
show-cause notice in this regard to the petitioner.


5.7    The file notings upon which strong reliance is placed by
the petitioner would have no effect unless any decision based
upon such noting was communicated to the petitioner.


5.8    Since the petitioner was subjected to penalty having
been found guilty of serious charges, the petitioner was
correctly put under suspension and such period of suspension
cannot be regularized.


5.9    Mr.Rami, learned AGP, has relied on the following
judgments in support of arguments:

       (i)     Mahadeo vs. Sovan Devi – 2023 (10) SCC 807.
       (ii)    The State Of Madhya Pradesh vs Akhilesh Jha
        - 2021 (12) SCC 460.
       (iii) Union of India and others vs. P. Gunasekaran –
       2015 (2) SCC 610.
       (iv) State of U.P. & Anr. v. Man Mohan Nath Sinha
       & Anr. – 2009 (8) SCC 310.
       (v) 1996 (3) SCC 157 - Prohibition & Excise Dept.
       v. L. Srinivasan.

5.10 By making the above submissions, Mr.Rami, learned
AGP would urge this Court to dismiss the present petition.



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6.     No other and further submissions have been made by
the learned advocates for the respective parties.

ANALYSIS :

7.     Having heard the learned advocates for the respective
parties      and    after   going   through     their    pleadings        and
documents, the following would emerge:


7.1    The petitioner was serving as a Principal (Class-I) at
I.T.I., Gondal and he was suspended vide order dated
28/05/2010, which was revised on 25/06/2010. The petitioner
was suspended in connection with the misconduct allegedly
committed by the petitioner before a period of one decade in
the years 1999-2001, which was challenged by him by way of
a writ petition, being Special Civil Application No.6624 of
2010.


7.2    The petitioner was served with a chargesheet on
21/06/2010 for the said alleged misconduct committed by him.
There were in all five charges levelled against him. Out of five,
only charge No.4 was grave in nature as it speaks of a
financial irregularity alleged to have been committed by the
petitioner in regard to the purchase of 12 items worth
Rs.2,90,890/-, though it was registered in the Purchase
Register but during a surprise check by the Deputy Director,
Vadodara on 07/04/2001, it was not found in the store. So far
as the rest of the charges are concerned, they were not as
serious as Charge No.4 and as such, they would not amount to



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grave misconduct or negligence as per Rule 24 of the Rules,
2002.


7.3     The Inquiry Officer vide his report dated 20/03/2013
arrived at a conclusion that charge Nos.1 to 4 are not proved
against the petitioner and so far as charge No.5 is concerned,
it is partially proved.


7.4     The department concerned appears to have sent a copy
of the inquiry report with its show-cause notice dated
18/09/2013 and after giving an opportunity of hearing to the
petitioner vide its letter dated 04/12/2013 and after the
receipt of the detailed written reply dated 06/12/2013 of the
petitioner, the respondent sat tight over the matter for a long
time.


7.5     The respondent vide its letter dated 20/01/2015 shown
his disagreement with the inquiry report so far as Charge
Nos.1 to 4 are concerned and called upon the petitioner to
submit his reply. The petitioner appears to have submitted
detailed reply on 28/01/2013 and requested the respondent to
give the reason for the disagreement.


7.6     Instead of supplying the reasons for disagreement, the
respondent vide its letter dated 16/02/2015 communicated to
the petitioner that charge Nos.1 to 4 are proved against the
petitioner as decided by the authority. Thereafter, on the
premise of showing disagreement with the inquiry report, the



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reasons were communicated to the petitioner. But the fact
remains that the respondent has already reached to the
conclusion that charges Nos.1 to 4 are proved against the
petitioner.


7.7    After the receipt of the additional and final reply of the
petitioner dated 23/02/2015, without dealing with any of his
contentions, the respondent passed an order of punishment
whereby a penalty of a pension cut of Rs.1,500/- for ten years
was imposed upon him as per Rule 24 of the Rules, 2002. It
appears that initially the respondent was of the view that the
aforesaid pension cut may be considered for five years but on
the recommendation of the GPSC finally decided to impose it
for ten years.


8.     I am conscious of the fact that the scope of judicial
review of this Court in the order of punishment imposed by
the disciplinary authority is very limited. It is trite that this
Court cannot sit in appeal over the order of punishment
passed by the authority. Yet, upon appreciation of the
aforesaid submissions canvassed by the learned advocates for
the respective parties and due to the following reasons, this
Court would like to interfere with the impugned order of
punishment and suspension, by exercising its discretion in
favour of the petitioner.


DELAY IN INITIATION AND CONCLUSION OF INQUIRY :


9.     The initiation of the inquiry by issuing a charge-sheet on
21/06/2010          for   alleged    misconduct      committed          by     the

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petitioner in the years 1999 to 2001, itself shows that there
was delay in the initiation of the inquiry against the petitioner.
There is no reasonable justification forthcoming from the side
of the respondent for causing such inordinate delay in the
initiation of inquiry except the excuse that the matter was
pending         between     the      departments           and       necessary
opinion/approval      was     sought          for   from      the     Vigilance
Department.


9.1    The inquiry report came to be submitted by the Inquiry
Officer on 20/03/2013 and the petitioner was called upon on
18/09/2013 to submit his reply qua charge No.5 which was
partially proved as per the Inquiry Officer’s report and later
on the respondent showed its agreement with the report of
the Inquiry Officer on 20/01/2015 followed by the so-called
reasons for disagreement on 16/02/2015 and finally the
impugned order came to be passed on 02/06/2017.


9.2    If the starting point of the inquiry by issuing charge-
sheet on 21/06/2010 culminated into order of penalty on
02/06/2017, the aforesaid period itself shows that there was
delay in the initiation of the inquiry and further inordinate
delay in the completion of the inquiry which caused immense
mental distress to the petitioner and as he was put under
suspension prior to the issuance of the charge-sheet, it
damaged his reputation as well. It is not out of place to
mention here that the petitioner came to be retired on
30/04/2011 on attaining the age of superannuation. Therefore,
the petitioner was subjected to inquiry at the fag end of his


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service career for the alleged misconduct committed before
one decade.


9.3    At this stage, it would be apt to refer to and rely upon
the decision of the Hon’ble Apex Court in the case of Amresh
Shrivastav vs. State of Madhya Pradesh and others -
2025 SCC Online SC 693, wherein it was held thus :

        “18. Reference in this regard can be made to the decision
        of this court in State of Madhya Pradesh vs. Bani
        Singh and Another [1990 Supp SCC 738], wherein the
        court noted that there was no reason to interfere with the
        quashing as the disciplinary proceedings were initiated
        after 12 years of delay. A reference should also be made to
        the decision of this Court in P.V. Mahadevan vs. MD,
        T.N. Housing Board [(2005) 6 SCC 636], where it has
        been reiterated that continuing the departmental
        proceedings after an undue delay would be unjust,
        causing unnecessary mental distress and damaging
        the reputation of the employee for the mistakes
        committed      by     the    department      in   initiating
        disciplinary proceedings.”
                                                          (emphasis supplied)


9.4    It is also not out of place to refer to and rely upon the
pertinent observations of the Hon’ble Apex Court in the case
of N. Radhakrishnan (supra) in regard to what would be
the effect of delay in the disciplinary proceedings at the hands
of authority :

        “19. It is not possible to lay down any pre-determined
        principles applicable to all cases and in all situations where
        there is delay in concluding the disciplinary proceedings.
        Whether on that ground the disciplinary proceedings are to
        be terminated each case has to be examined on the facts
        and circumstances in that case. the essence of the matter
        is that the court has to take into consideration all relevant
        factors and to balance and weight them to determine if it is
        in the interest of clean and honest administration that the
        disciplinary proceedings should be allowed to terminate
        after delay particularly when delay is abnormal and there is


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        no explanation for the delay. The delinquent employee has
        a right that disciplinary proceedings against him are
        concluded expeditiously and he s not made to undergo
        mental agony and also monetary loss when these are
        unnecessarily prolonged without any fault on his part in
        delaying the proceedings. In considering whether delay has
        vitiated the disciplinary proceedings the Court has to
        consider the nature of charge, its complexity and on what
        account the delay has occurred. if the delay is unexplained
        prejudice to the delinquent employee is writ large on the
        face of it. It could also be seen as to how much disciplinary
        authority is serious in pursuing the charges against its
        employee. It is the basic principle of administrative justice
        that an officer entrusted with a particular job has to
        perform his duties honestly, efficiently and in accordance
        with the rules. If he deviates from this path he is to suffer a
        penalty prescribed. Normally, disciplinary proceedings
        should be allowed to take its course as per relevant rules
        but then delay defeats justice. Delay causes prejudice to
        the charged officer unless it can be shown that he is to or
        when there is proper explanation for the delay in
        conducting the disciplinary proceedings. Ultimately, the
        court is to balance these two diverse consideration.”
                                                  (emphasis supplied)


9.5    Thus, considering the aforesaid facts and circumstances
and in the absence of any cogent and justifiable reason on the
part of the respondent in initiating and concluding the inquiry
within a reasonable period of time, and applying the ratio of
the aforesaid decisions to the case on hand, according to my
view, 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.


NON-SUPPLY OF REASON FOR DISAGREEMENT RATHER
BELIEVED THAT CHARGES ARE PROVED PRIOR TO
PASSING OF FINAL ORDER :

10.    It is a settled legal position that if the disciplinary
authority does not agree with the report of the inquiry officer,


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it is supposed to assign its reasons for disagreement while
issuing a show-cause notice calling upon the delinquent to
submit his reply. Even after the receipt of the reply of the
delinquent, if the disciplinary authority does not agree with
the reply of the delinquent, it is required to issue a final show-
cause notice to the delinquent.


10.1 At this stage, it would be apt to refer to a decision of the
Division Bench of this Court in the case of Ea Singh (Edwin
Annett        Singh)    and     others           (supra),    wherein,         after
considering the entire case law, the Division Bench held thus:


       “48. From the conspectus of the aforementioned observations
       of the Supreme Court and this Court, the following aspects are
       required to be maintained when the Disciplinary Authority
       disagrees with the findings of the Inquiry Officer.


               (a) There has to be tentative/proposed findings of
               the Disciplinary Authority disagreeing with the
               Inquiry Officer’s report recorded in the show-cause
               notice.
               The show-cause notice of disagreement should be
               issued to the delinquent calling upon him as to
               “why the findings which are in his favour is/are
               not required to be reversed.”
               (c) While issuing the show-cause notice, the expression
               “charges are proved” should be avoided, since the same
               will reflect a predetermined application of mind by the
               Disciplinary Authority.
               (d) Such show-cause notice shall not stipulate the
               imposition of a particular penalty, minor or major. The
               expression “why any of the penalty/punishment shall
               not be imposed” should be avoided.
               (e) After considering the reply of the delinquent to
               the show-cause notice of disagreement, the
               Disciplinary Authority has to pass an order


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               recording a definite finding of guilt reversing the
               findings of the Inquiry Officer, by holding the
               charges as proved or not proved.
               (f) After recording such findings, it is essential
               that the delinquent is issued a final show-cause
               notice calling upon his explanation for the
               imposition of punishment [Vide Lav Nigam
               (Supra)].
               (g) After receipt of the reply to the show-cause notice,
               the Disciplinary Authority has to pass a reasoned and
               speaking order imposing appropriate punishment
               prescribed under the Rules governing disciplinary
               proceedings.


       49. The theory of prejudice will also not apply in such
       cases. Thus, the procedure adopted by the Disciplinary
       Authority does not meet the parameters enunciated by the
       Supreme Court in the aforementioned decisions. Hence, the
       punishment order, which is premised on such a faulty
       approach, cannot be sustained.”
                                                              (Emphasis supplied)


10.2 It is not in dispute that in the case of hand, at the
relevant point of time instead of showing the reasons for
disagreement, which is a sine qua non, the department
concerned issued a show-cause notice to the petitioner on
18/09/2013 calling upon him to submit his reply qua charge
No.5     partially       proved    in    the       inquiry.    Thereafter,         on
20/01/2015 informed to the petitioner that the competent
authority is not in agreement with the inquiry report.
Thereafter,         on    demand        by     the    petitioner,        vide      its
communication dated 16/02/2015, the petitioner was supplied
with so-called reasons for disagreement. A bare reading of the
aforesaid communication dated 16/02/2015 clearly shows that
the competent authority had already made up its mind and as



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such observed in the said communication that it was decided
that charge Nos.1 to 4 are proved. Since the respondent had
already decided that the aforesaid charges are proved, it
would be an empty formality to call upon the petitioner to
submit his final reply. This would not only violation of the
principles of natural justice but it amounts to arbitrariness on
the part of the respondent.


10.3 Apart from the aforesaid, after receiving the final reply
from the petitioner dated 23/02/2015, when the disciplinary
authority had not accepted his explanation, as per the
aforesaid judgment of Division Bench more particularly
decision of Hon’ble Apex Court in the case of Lav Nigam vs.
Chairman and M.D., ITI - 2006 (9) SCC 440, it was
incumbent upon the disciplinary authority to issue a final
show cause notice calling upon the petitioner to submit his
final     explanation        before      imposition       of     punishment.
Undisputedly,         such    recourse     was    not     adopted       by     the
respondent as no final show cause notice came to be issued
and served upon the petitioner, which is per se illegal.


10.4 Thus, in view of the aforesaid, the respondent has not
observed the principles of natural justice after issuing notice
dated 20/01/2015 and as such taken a decision that charge
No.1 to 4 are proved as stated in its communication dated
16/02/2015          while    supplying     the    so-called      reasons       for
disagreement tantamount to pre-judge the issue and the
recourse adopted by the respondent is not in consonance with
law.


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NON-SPEAKING PUNISHMENT ORDER :


11.       Even      the    impugned      order      of   punishment         dated
02/06/2017 is a non-speaking order, inasmuch as neither any
findings nor any reasons were recorded by the disciplinary
authority insofar as proving of charge Nos.1 to 4 and partial
proving of charge No.5, as the case may be; rather, the
disciplinary authority has accepted the guilt of the petitioner
by reiterating the said charges served upon the petitioner
along with the charge-sheet.


11.1 There is no cavil that any order passed, either by an
administrative        or    quasi-judicial        authority,     must      assign
reasons. In a case where, the order impugned is found to be a
non-speaking order, this Court feels that such interference is
required. [See-Masood Ahmed Khan and others (supra)].


11.2 Thus, having found that the impugned order is a non-
speaking order and that it has not dealt with any of the
submissions/contentions raised by the petitioner in his written
reply, then impugned order is not sustainable in law,
inasmuch as the impugned order was passed in violation of
the principles of natural justice.



NON-PROVING OF CHARGE NO.4 :

12.    As observed hereinabove, out of five charges, only
charge No.4 was grave in nature as it relates to alleged
financial irregularity by the petitioner when he was Principal



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in I.T.I., Dahod. It was alleged that on 07/04/2001, there was a
surprise inspection by Deputy Director, Vadodara, at the said
Institute. At the time of such surprise inspection, it was found
that though 12 items were found in the Purchase Register
being received through bills but on its physical check, the
same were missing, so it was alleged that by submitting
wrong bills of Rs.2,90,890/- for 12 items, financial irregularity
committed by the petitioner.


12.1     The inquiry officer in his report has categorically
recorded that department witnesses examined in the inquiry
have given different depositions then what was agreed by
them in the minutes recorded on 07/04/2001. It has been
further observed that Trade Instructor has confirmed that
goods     are       received   in    good       condition     and     issued the
certificate in this regard which was counter-signed by the
Deputy Director, Vadodara. According to the Inquiry Officer,
these evidence cannot be ignored.


12.2 It also appears from the statement of Store Keeper
Mr.Moghia that goods were returned back at 11.00 a.m. on
07/04/2001          as   found      defective,       whereas      the     surprise
inspection taken place at about 16.00 hours on 07/04/2001. It
is further stated by him that vendor has replaced the goods on
09/04/2001 which was not informed to the Deputy Director,
Vadodara on the date of his surprise visit on 07/04/2001.


12.3 It is also not in dispute that Mr.N.D.Sharma, who was
Supervisor Instructor in the said I.T.I. on 07/04/2001, also

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faced with similar charge like charge No.4 in question,
wherein finally he was exonerated by the respondent vide its
office order dated 10/07/2017. This would clearly show that
the disciplinary authority has picked and conveniently chosen
the petitioner and, as such, the petitioner was made a
scapegoat. [See-Girish Chandra Sarma (supra)].


12.4 It is true that learned AGP Mr.Rami during the course of
his submission informed this Court that so far as Store Keeper
/ Assistant Store Keeper are concerned, both were found
guilty of a similar charge like charge No.4 in question and
accordingly,        order   of   penalty          is   imposed       upon      them.
Nonetheless, there is nothing on record to substantiate the
aforesaid submission.



12.5 Be that as it may, the fact remains that Presenting
Officer has failed to bring evidence on record to substantiate
and prove charge No.4 against the petitioner who was
Principal of the said I.T.I. The witnesses of the department
examined before inquiry officer had not supported the case of
the department. Rather their version would support the case
of the petitioner. Furthermore, when said Mr.Sharma has
been exonerated from charge of financial irregularity in
question, who issued a certificate about receipt of good
quality of all 12 items received by said I.T.I., according to my
view, such charge No.4 cannot be said to have been proved by
Presenting Officer. Even considering the aforesaid facts and
designation of the petitioner being Principal, he was not in-



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charge of the store, by no stretch of imagination, the
disciplinary authority could not have held the petitioner guilty
for charge No.4.


ORDER OF PENALTY PASSED CONTRARY TO RULE 24
OF THE PENSION RULES, 2002 :

13.    So far as rest of the charges are concerned, they are
either stale or trifling in nature. Charge No.1 speaks about
temporary absence of the petitioner on 07/04/2001 as he was
not available during surprise inspection of Deputy Director,
Vadodara. The charge No.2 speaks about unauthorized
absence of the petitioner on 09/08/1999, 10/08/1999 and
27/08/1999 as his leave was not sanctioned by Deputy
Director, Vadodara, whereby the petitioner violated Rule 44 of
Leave Rules. The charge No.3 was in regards to absence from
duty on 24th and 25th January, 2000, though his miscellaneous
leave was cancelled. So far as charge No.5 relates to not
sending his service-book in time and also not incorporating
the order of penalty in his service-book.


13.1 The inquiry officer had dealt with all these charges and
during the course of submissions, Mr.Rami, learned AGP is
unable to substantiate that findings recorded by the inquiry
officer exonerating the petitioner from all charges except the
finding that charge No.5 is partially proved, i.e., not sending
the service-book in time, are either erroneous or perverse or
contrary to the evidence brought on record during the course
of inquiry.



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13.2 In view of above, I am of the view that the aforesaid
charges were also not proved and as such charge No.5 which
is held to be partially proved as per inquiry report, even if
taken as it is, it would not amount to any grave misconduct or
negligence by the petitioner as required under Rule 24 of the
Rules, 2002 for imposing penalty of pension cut .


13.3 At this stage, I would like to refer Rule 24 of the Rules,
2002 which reads as under :



        “24. Right of Government to withhold or withdraw pension :
        (1) Government may, by order in writing, withhold or
        withdraw a pension or any part of it, whether permanently
        or for a specified period, and also order the recovery from
        such pension, the whole or part of any pecuniary loss
        caused to Government, if, in any departmental or judicial
        proceedings, the pensioner is found guilty of grave
        misconduct or negligence during the period of his service
        including service rendered upon re-employment after
        retirement :

        Provided that the Gujarat Public Service Commission shall
        be consulted before any final order is passed in respect of
        officers holding posts within their purview :

        Provided further that where a part of pension is withheld or
        withdrawn, the amount of remaining pension can be
        reduced below the minimum fixed by Government.

        (2) (a) The departmental proceedings referred to in sub-
        rule (1), if instituted while the Government employee was
        in service whether before his retirement or during his re-
        employment, shall, after the final retirement of the
        Government employee, be deemed to be proceedings
        under this rule and shall be continued and concluded by
        the authority by which they were commenced in the same
        manner as if the Government employee had continued in
        service.

        (b) The departmental proceedings, if not instituted while
        the Government employee was in service, whether before
        his retirement or during his re-employment-



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        (i) shall not be instituted save with the sanction of the
        Governer,
        (ii) shall not be in respect of any event which took place
        more than four years before such institution, and
        (iii) shall be conducted by such authority and at such place
        as the Government may direct and in accordance with the
        procedure applicable to the departmental proceedings in
        which an order of dismissal from service could be made in
        relation to the Government employee during his service.
        (3) In case of a Government employee who has retired on
        attaining the age of superannuation or otherwise and
        against whom any departmental or judicial proceedings are
        instituted or where departmental proceedings are
        continued under sub-rule (2), a provisional pension as
        provided in rule 144 to 146 shall be sanctioned.

        (4) Where Government decides not to withhold or withdraw
        pension but orders recovery of pecuniary loss from
        pension, the recovery shall not, subject to the provision of
        sub-rule (1) of this rule, ordinarily be made at a rate
        exceeding one-third of the pension admissible on the date
        of retirement of a Government employee.

        (5) For the purpose of this rule :-
        (a) departmental proceedings shall be deemed to be
        instituted on the date on which the statement of charges is
        issued to the Government employee or pensioner, or if the
        Government employee has been placed under suspension
        from an earlier date, on such date, and
        (b) judicial proceedings shall be deemed to be instituted -
        (i) in case of criminal proceedings, on the date on which
        the complaint or report is made by a police officer of which
        the Magistrate takes cognizance, and
        (ii) in case of civil proceedings, on the date of presenting
        the plaint in the court.”


13.4 The bare reading of sub-rule 1 of Rule 24 of Rules, 2002
is clearly suggests that in a case of grave misconduct or
negligence of a pensioner – Government employee, which
caused financial loss to the Government, in that eventuality,
Government can recover such loss from amount of pension.


13.5 It would be apt to note here that vide letter dated
29/09/2016 issued by said I.T.I., Dahod to the respondent that


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there is no financial loss caused in regard to purchase of 12
items are concerned and accordingly, it is stated in the said
letter    that there   is   no     need          to   initiate any recovery
proceedings. Therefore, as per the department concerned,
there is no financial loss caused as alleged in charge No.4.



13.6 Assuming for the time being that charge No.1, 2, 3 and 5
are proved but when the petitioner is already retired from
service as on the date of passing of impugned order of
penalty, as per Rule 24 of the Rules, 2002, no penalty in the
form of pension cut could have been imposed upon him.
According to my view, respondent is unable to substantiate
that aforesaid charges are so grave in nature, whereby it can
impose punishment of pension cut as per Rule 24 of the Rules,
2002.



13.7 Thus, in view of the aforesaid facts and in absence of any
grave misconduct or negligence on the part of the petitioner
causes financial loss to respondent – State, which is sine qua
non to impose penalty of pension cut as per Rule 24 of the
Rules, 2002, it is hereby held that impugned order whereby
imposing penalty of pension cut of Rs.1,500/- per month for 10
years is without jurisdiction and uncalled for penalty.


14.        In view of the aforesaid, this Court is of the view that
apart from delay in initiation and conclusion of inquiry, there
is basic infirmity remains on part of the disciplinary authority
in issuing the aforesaid communication dated 16/02/2015 and


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having found that the impugned order is a non-speaking one,
this goes to the root of the matter. For the aforesaid reasons, I
am not at all impressed with any of the submissions of learned
AGP Mr.Rami and the judgments cited by him are not
applicable to the facts of the present case.



15.    Thus, in view of the foregoing reasons, the impugned
order cannot be allowed to stand anymore. Since the
impugned order of punishment is unsustainable in law,
consequently,       the   impugned       suspension      order       dated
28/05/2010 is also not sustainable in law.


CONCLUSION:

16.    In view of the foregoing observations, discussions and
reasons, I am of the view that the impugned order of
punishment dated 02/06/2017 is bad in law. Accordingly, the
impugned order dated 02/06/2017 is hereby quashed and set
aside.


16.1 Since the impugned order of penalty dated 02/06/2017 is
quashed and set aside, a fortiori, the impugned suspension
order dated 28/05/2010 is also hereby quashed and set aside.


16.2 Once the impugned order dated 02/06/2017 is no longer
survives as quashed, the amount recovered by the respondent
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



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 its actual recovery till date of its refund.


 16.3 The respondent is hereby directed to calculate the
 amount of refund including interest and the same shall be
 paid to the petitioner on or before 15/05/2026, failing which
 the respondent – State shall have to pay an additional amount
 of Rs.50,000/- as cost/penalty for such delayed payment.


 17.        In view of the foregoing conclusions, the present petition
 is allowed. Rule is made absolute to the aforesaid extent.
 There shall be no order as to costs.


 18.        Direct service is permitted.


                                                                                (MAULIK J. SHELAT, J)
 GAURAV J THAKER
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: GAURAVKUMAR JANARDANBHAI THAKER(HC00951), Principal Pvt. Secretary, at High Court of Gujarat on 11/03/2026 11:48:44




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