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2011 DIGILAW 555 (GUJ)

Hasmukhlal M. Kothari v. State of Gujarat

2011-07-22

JAYANT PATEL

body2011
JUDGMENT : Jayant Patel, J. The short facts of the case are that the petitioner was initially appointed as Registrar of the respondent no.2 Council on 24.05.1968 and he was confirmed in service in the year 1969. On 18.08.1983, the petitioner came to be suspended by the Director, Indian Medicine and Homeopathic System, Ahmedabad. Thereafter, on 16.05.1984, respondent no.2 Council withdrew the order of suspension. Special Civil Application No.2862/84 was preferred wherein this Court restrained the petitioner from functioning as the Registrar of respondent no.2 Council. Thereafter, the respondent no.2 Council appointed one Shri N.K. Upadhyay as Registrar vide order dated 19.04.1985. Thereafter, Special Civil Application No.2862/84 came to be withdrawn in the year 1993. The petitioner was asked to resume the duty as Registrar and it is the say of the petitioner that has functioned as Registrar from 03.04.1993 to 08.04.1993. But subsequently on 08.04.1993, respondent no.1 cancelled the order dated 03.04.1993, whereby the petitioner had resumed the duty. On 07.04.1993, respondent no.2 passed an order dropping and cancelling all inquiry proceedings against the petitioner. However, since on 08.04.1993 the order passed in favour of the petitioner permitting him to resume the duty was cancelled, he preferred Special Civil Application No.4072/93 before this Court and the said Special Civil Application was admitted and when it came up for final hearing on 14.05.2009, it was brought to the notice of the Court that the departmental proceedings are concluded vide order dated 21.08.1998 and since the petitioner came to know about the said order for the first time, he expressed desire to challenge the said order of imposition of punishment by separate proceedings. Under the circumstances, the following order was passed by this Court on 14.05.2009 - “1. When the matter is taken up for final hearing, Mr.Kirit Patel, for the respondent No.2 states that pending the petition, the departmental proceedings are concluded and vide order dated 21.08.1998, the punishment has been imposed upon the petitioner and he has placed on record the copy of the order. He also submitted that the order was communicated to the petitioner by Speed Post, receipt of which is xeroxed over the page of the order. He also submitted that the order was communicated to the petitioner by Speed Post, receipt of which is xeroxed over the page of the order. Mr.P.J.Patel, for the petitioner, under the instruction of his client, who is present in the Court, states that the petitioner has not received the order which was forwarded by Speed Post and he states that the petitioner would like to challenge the said order by appropriate proceedings. Under the aforesaid circumstances, as the present petition was at the stage where the petitioner was under suspension, and the departmental proceedings were pending and now as the departmental proceedings are concluded vide order dated 21.08.1998, the cause as such, in the present proceedings can be said as would not survive. However, as the petitioner is desirous to challenge the order of imposition of punishment dated 21.08.1998, by separate proceedings, the disposal of the present petition may not be read as the issue concluded on the aspects of requirement of approval of the State Government and other questions relevant thereto. Hence, the present petition is disposed of as having become infructuous in view of the order dated 21.08.1998 passed by the Council for imposition of punishment, but with the liberty that the petitioner may challenge the order dated 21.08.1998 by proper proceedings as may be permissible in law and in such proceedings, rights and contentions of both the sides including the contentions which are raised in the present petition shall remain open. Rule discharged accordingly.” 2. It appears that thereafter the petitioner filed the present petition before this Court challenging the order dated 21.08.1998 and the subsequent orders based on the said order. 3. I have heard Mr.Patel for the petitioner, Ms. Thakker, learned AGP for respondent no.1 and Mr. K.I.Patel for respondent no.2. 4. It is an undisputed position that the petitioner reached to the age of superannuation on 31.07.1995 and the order has been passed for imposition of punishment on 21.08.1998. The perusal of the order shows that initially departmental inquiry was in contemplation and pending the said inquiry, the petitioner was placed under suspension and thereafter, as observed earlier, at one point of time, the suspension was revoked. That revocation was cancelled and the petitioner had preferred SCA No.4072/93. The perusal of the order shows that initially departmental inquiry was in contemplation and pending the said inquiry, the petitioner was placed under suspension and thereafter, as observed earlier, at one point of time, the suspension was revoked. That revocation was cancelled and the petitioner had preferred SCA No.4072/93. The punishment imposed is of recovery of Rs.1,61,131/- from the petitioner on the basis that the petitioner was paid subsistence allowance of Rs.3,01,958/- and since the petitioner was placed under suspension, the another officer was required to be appointed vice him and he was paid salary of Rs.4,48,276/- and after totalling both the amount at Rs.7,50,234/-, the amount of Rs.5,90,103/- on the premise that the same was the amount of salary payable to the petitioner had he continued on duty and the said amount is deducted and hence, the net amount comes to Rs.1,60,131/- recoverable from the petitioner and the said amount is ordered to be recovered. 5. The allegation in the charge-sheet was that the petitioner has committed serious irregularities and illegalities and therefore, the appropriate action for imposition of punishment may be taken. It is not a matter where the authority after having found that the charges are proved has taken decision for dismissal in service. It has been stated that the service of the petitioner is not a pensionable service and therefore, no greater punishment than dismissal from service could be imposed. Such punishment has not been imposed may be on the ground that the petitioner has already reached to the age of superannuation. However, the punishment imposed is of recovery of the amount of Rs. 1,60,131/- on a novel calculation and the assessment of the loss. It is hardly required to be stated that subsistence allowance already paid to any employee during the period of suspension is not recoverable at all. Further, if any employee is placed under suspension and vice him another person is appointed or allowed to work, his salary can never be recovered from the person who is placed under suspension. Under these circumstances, when neither subsistence allowance nor the salary of the person appointed vice the petitioner are not recoverable from the petitioner, the subsequent calculation or the deduction made of the amount of salary had the petitioner continued in service is without any premise available for the calculation. 6. Under these circumstances, when neither subsistence allowance nor the salary of the person appointed vice the petitioner are not recoverable from the petitioner, the subsequent calculation or the deduction made of the amount of salary had the petitioner continued in service is without any premise available for the calculation. 6. Under these circumstances, it can be said that the amount of Rs.1,60,131/- which is forming part of subsistence and/or the salary of the employee concerned, who was posted vice the petitioner during his period of suspension is not at all recoverable. It is hardly required to be stated that if any employee has committed misconduct in service, he may be placed under suspension or his services may be terminated or he may be dismissed from service. But the subsistence allowance paid pending the inquiry is non-recoverable. Further, at the conclusion of the inquiry, any loss caused to the Council may be recoverable, but such loss has to be while on duty if caused to the Council. It is an admitted position that the amount as incorporated in the calculation are not pertaining to any loss caused to the Council when the petitioner was on duty, but are calculated loss when the petitioner was not at all on duty. Under these circumstances, the alleged loss as that of the subsistence allowance or that of the salary paid to the other employees who was posted vice the petitioner when he was under suspension are not the loss contemplated at the conclusion of the inquiry which may be recoverable. 7. The learned counsel for the respondent no.2 has not been able to show any authority or any service regulation applicable to the employees of the Council under which such amount of subsistence allowance or the salary paid to the officer who was posted vice the another employee placed under suspension can be recovered. Hence, it appears that the order passed is absolutely without any authority and competence nor can be termed as reasonable as it would violate Article 14 of the Constitution. 8. Hence, it appears that the order passed is absolutely without any authority and competence nor can be termed as reasonable as it would violate Article 14 of the Constitution. 8. The attempt was made by the learned counsel for the respondent no.2 to contend that the order was passed as back as in the year 1998 and the challenge is made for the first time in the year 2011 and therefore, it will operate against petitioner and hence, this Court may decline the entertainment of the petition and the relief prayed. 9. Two aspects are relevant, one is that as per the order dated 14.05.2009 passed by this Court, it is apparent that as per the petitioner he was never aware about the impugned order passed and on the contrary, he was pursuing the matter against cancellation order for revocation of his suspension in the proceedings of Special Civil Application No.4072/93 and therefore, once he came to know about the order dated 21.08.1998, he desired to challenge the same and it was so permitted by this Court. The another important aspect is that if the order itself in view of the reasons recorded herein above was without their being any authority in law, the delay would hardly operate as a bar for invoking power of this Court under Article 226 of the Constitution. On the contrary, it appears that if such an order is allowed to operate, it would perpetuate injustice. Hence, the contention on behalf of the respondent no.2 cannot be accepted. 10. In view of the aforesaid observations and discussion, the impugned order dated 21.08.1998 is quashed and set aside. Consequently, further orders passed based on the said order which are annexed would also not survive. 11. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs. Petition allowed.