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2009 DIGILAW 19 (GUJ)

D. N. Desai v. Chairman

2009-01-17

K.S.JHAVERI

body2009
JUDGMENT : K.S. Jhaveri, J. 1. By way of this petition, the petitioner has challenged the order dated 12th November, 1993 passed by the Disciplinary Authority, whereby he was dismissed from the service as also the order dated 30th November, 1993 passed by the appellate authority. 2. The facts in brief are as under :- 2.1. The petitioner was appointed as a Junior Clerk in the office of respondent-Board in the year 1958 and thereafter was promoted to the post of Controller of Accounts (Revenue). It is the case of the petitioner that while discharging his duties certain allegations were levelled against him and therefore, on 25th July, 1990, he was served with a charge sheet and departmental inquiry was initiated. Pending the inquiry, the petitioner was ordered to remain under suspension. On completion of the departmental inquiry, the petitioner was dismissed from the service with effect from 12th November, 1993. 2.2. Being aggrieved by the order of dismissal, the petitioner preferred an appeal before the appellate authority. The appellate authority, after hearing the parties and after considering the evidence on record, vide order dated 30th November, 1993 dismissed the said appeal. Hence, this petition. 3. Mr. Pradeep Patel, learned counsel for the petitioner has mainly contended that the petitioner has not been supplied with the documents which he has demanded and that the Inquiry Officers' report was not supplied to him, before passing the impugned order of dismissal from the services. He has further contended that Mr. P.K. Das, who has conducted the preliminary inquiry, was also one of the witness to the inquiry. Hence, the impugned order of dismissal deserves to be quashed and set aside. 4. As against that Mr. Hasurkar, learned counsel for the respondent has contended that the Inquiry Officer has first examined the witnesses and thereafter, has examined the delinquent. He has further contended that the documents which were demanded by the petitioner, were not relied upon by the authority for arriving at the conclusion. Looking to the conduct of the petitioner, the respondent-authority has exercised power under Section 7(1)(b) of the Board's Employees' Conduct Disciplinary and Appeal Procedure and has come to the conclusion to dismiss the petitioner from service. Hence, no interference is required from this Court in this petition. 5. Heard learned counsel for the respective parties at length. The main contention raised by the petitioner is that one Mr. Hence, no interference is required from this Court in this petition. 5. Heard learned counsel for the respective parties at length. The main contention raised by the petitioner is that one Mr. P.K. Das who had conducted the preliminary inquiry was one of the witness in the inquiry proceedings. From the record, it transpires that the said Mr. P.K. Das, who had conducted the preliminary inquiry, was also witness to the inquiry proceedings and that he is the Disciplinary Authority who had passed the final order. Even if the contention raised by the respondent-authority that it has exercised powers under Clause 7(1) (b) of the Board Employees' Conduct, Discipline and Appeal Procedure, after carefully considering all the aspects of the case is accepted, the fact remains that the disciplinary authority who had passed the final order was a witness in the inquiry proceedings. Hence, even if the powers under Clause 7(1)(b) are found to be exercised in accordance with the relevant provisions of law, it could not be upheld once it is found that the disciplinary authority was a witness in the inquiry proceedings. Looking to the serious charges levelled against the petitioner, it will not be appropriate to restore him in service. 5.1. In view of the above, the matter deserves to be remanded to the respondent-authority for fresh consideration. However, keeping in mind the fact that a period of almost 13 years has elapsed and the age of the petitioner, it would not be appropriate to remand the matter to the respondent-authority. 5.2. At this juncture, it would be relevant to note that during the course of hearing, a suggestion was put forward by this Court to the petitioner keeping in mind the aforesaid factual background as regards treating the services of the petitioner as discharge simpliciter. The petitioner, who is present in the Court has given his consent to the same through his advocate. Therefore, in the interest of justice, the impugned order of dismissal is modified by treating the services of the petitioner as discharge simpliciter. 6. Consequently, the petition is partly allowed. The impugned order dated 12th November, 1993 passed by the Disciplinary Authority dismissing the petitioner from service is modified and the services of the petitioner shall be treated as discharge simpliciter. 6. Consequently, the petition is partly allowed. The impugned order dated 12th November, 1993 passed by the Disciplinary Authority dismissing the petitioner from service is modified and the services of the petitioner shall be treated as discharge simpliciter. It is also directed that the retirement dues, leave encashment, medical benefits, gratuity and other consequential benefits shall be paid to the petitioner on or before 31st March, 2009. It is also directed that the petitioner shall be paid simple interest on the retiremental dues @ 10% from the date of discharge (dismissal), i.e. from 12th November, 1993 till the payment is made i.e. 31st March, 2009. Rule is made absolute to the aforesaid extent. No order as to costs.