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Gujarat High Court · body

2014 DIGILAW 659 (GUJ)

B. H. Patel v. State of Gujarat

2014-06-17

R.P.DHOLARIA

body2014
ORDER : R.P. Dholaria, J. As both these petitions arise out of the common impugned order dated 25.05.2001 passed by the Under Secretary, Health and, Family Welfare Department, Government of Gujarat, both these petitions are decided and disposed of by this common judgment. 2. By way of present petitions, the petitioners have prayed to: "(A) quash and set aside the impugned punishment order dated 25.05.2001, Annexure-A to this petition, and (B) quash and set aside the impugned order dated 4.1.2008, Annexure-B to this petition, and" 3. The short facts leading to the present petitions are that both the petitioners i.e. Shri B. H. Patel and Shri N. B. Nayee, while working as Head Clerk and Senior Clerk respectively with the respondent authorities did not bring the true facts regarding services of one Shri Arvind R. Parmar to the notice of the higher officer. The petitioners had made detail noting with regard to regularisation of services of Shri Arvind Parmar. The aforesaid noting was forwarded to the Superior Officer and consequently the services of Shri Arvind R. Parmar came to be regularised dehors the provisions of Government Resolutions dated 21.07.1989 and 29.05.1984. 3.1. After about 8 years, the present petitioners were served with the chargesheet wherein it is alleged that the petitioners failed to bring true facts regarding the services of Shri Arvind Parmar to the notice of their superior and they also failed to verify as to whether the provisions of Government Resolutions dated 21.07.1989 and 29.05.1984 can be applied in the case of Shri Arvind Parmar or not. The petitioners have interpreted the Government Resolutions as per their convenience and thereby processed to regularise the services of Shri Arvind Parmar for the purpose of his regular appointment on the establishment of the respondent authorities. Thus, the petitioners have shown sheer negligence while discharging their duties. 3.2. Upon receipt of the aforesaid charge-sheet, both the petitioners have tendered their written explanation which are annexed with the petitions at Annexure-D. Both the petitioners have given a detailed explanation as regard to the allegations made in the charge-sheet. 3.3. Thereafter, it appears that regular departmental inquiry was initiated against the present petitioners and one Shri I. L. Qureshi, Retired Deputy Secretary was appointed as an Inquiry Officer. After affording reasonable opportunity to the petitioners, he rendered his report on 17.01.2000 holding both the petitioners guilty of the charges leveled against them. 3.4. 3.3. Thereafter, it appears that regular departmental inquiry was initiated against the present petitioners and one Shri I. L. Qureshi, Retired Deputy Secretary was appointed as an Inquiry Officer. After affording reasonable opportunity to the petitioners, he rendered his report on 17.01.2000 holding both the petitioners guilty of the charges leveled against them. 3.4. On receipt of the report of Inquiry Officer, the petitioners were served with a notice issued by the Government inter alia indicating that the inquiry report has been accepted by the Government and the petitioners have been called upon to submit their explanation on the findings recorded by the Inquiry Officer against them. 3.5. Thereafter, it appears that the respondent authorities, vide order dated 25.05.2001, inflicted punishment of stoppage of one increment with future effect against each of the petitioners. 3.6. On receipt of aforesaid order of punishment, the petitioners have preferred representations in the nature of appeals before the Government of Gujarat in the year 2001 itself. The aforesaid representations/appeals were decided by the Government on, 04.01.2008 thereby dismissing the said representations/appeals. Therefore, the petitioners have preferred present petitions. 4. Heard Shri Vaibhav Vyas, learned advocate for the petitioners and Shri Harsheel Shukla, learned AGP for the respondents at length as well as perused the record of the petitions. 5. Shri Vyas, learned advocate for the petitioners has submitted that the charge leveled against the present petitioners is vague and general in nature and no specific allegations are made against the petitioners. It is also submitted that the petitioners have explained in their reply that while processing the case of regularisation of services of Shri Arvind Parmar, the petitioners had vide their noting, clearly and categorically mentioned that as per the Government Resolution dated 21.07.1989, the provision with regard to absorption of the daily wagers who have completed 365 days as on 01.04.1984 on regular basis has been made. It is also mentioned in the said noting that the decision may be taken considering the fact that after 01.04.1984 and during the period from 1989 to 1991, said Shri Parmar has served as dailywager. However, nowhere the petitioners have given any indication that the services of Shri Arvind Parmar may be regularised for the purpose of his absorption as regular employee. However, nowhere the petitioners have given any indication that the services of Shri Arvind Parmar may be regularised for the purpose of his absorption as regular employee. Shri Vyas has also drawn the attention of this Court to the order which came to be passed in similar inquiry made against Shri S. D. Vaghela, Retired Senior Administrative Officer (Class II) dated 3rd December 2001 and he has drawn the attention of this Court to para 3 of the aforesaid order wherein the respondent authority Government has recorded the finding that after taking into consideration the material available on the record and on reappreciation of the inquiry report, it is clearly emerging out that while passing the order of regularisation of services of Shri Arvind Parmar, the subordinate officers to Shri Vaghela, i.e. Senior Clerk and Head Clerk (the petitioners herein) have clearly and categorically mentioned the provisions of Government Resolution dated 21.07.1989, even though Shri Vaghela, retired Senior Administrative Officer, with a view to favour Shri Parmar, passed the order and thereby the services of Shri Parmar has been regularised and he has been appointed as Class - IV employee at Gandhinagar. Shri Vyas has submitted that thus in the case of Shri Vaghela, the respondent authority has clearly and categorically mentioned that the petitioners herein have, while making their noting, clearly and categorically mentioned about the provisions of G.R. dated 21.07.1989 and even though Shri Vaghela, with a view to favour Shri Arvind Parmar, passed the order appointing Shri Parmar as Class-IV employee at Gandhinagar. 5.1. Shri Vyas has also submitted that in the matter of processing the file of Shri Arvind Parmar for regularisation of his services, inquiry was initiated against five officials including Shri S. D. Vaghela, Retired Senior Administrative Officer as well as both the petitioners herein. 5.2. Shri Vyas has invited the attention of this Court to the charges levelled against Shri S.D. Vaghela, Retired Senior Administrative Officer and submitted that the charges levelled against the subordinate officers to Shri Vaghela i.e. the Head Clerk and Senior Clerk (present petitioners) are contrary to the charges leveled against Shri S. D. Vaghela. 5.2. Shri Vyas has invited the attention of this Court to the charges levelled against Shri S.D. Vaghela, Retired Senior Administrative Officer and submitted that the charges levelled against the subordinate officers to Shri Vaghela i.e. the Head Clerk and Senior Clerk (present petitioners) are contrary to the charges leveled against Shri S. D. Vaghela. In the case of both the petitioners, the allegations were made that they have not drawn the attention of their superior officer and they have not given the correct factual position as to whether the services of Shri Parmar can be regularised or not and also the petitioners failed to draw the attention of their superior officer to the Government Resolutions dated 21.07.1989 as well as 29.05.1984, whereas in the chargesheet made against Shri S. D. Vaghela, Retired Senior Administrative Officer, it is alleged that inspite of the clear noting on the part of his subordinate, i.e. both the petitioners herein, who have clearly and categorically noted the provisions of G.R. dated 21.07.1989, Shri Vaghela took the decision of regularising the services of Shri Parmar. Thus, the chargesheet filed against Shri Vaghela itself indicates that the present petitioners have narrated every factual details including the provisions of G.R., which governs the case of regularisation of services of Shri Arvind Parmar. Notwithstanding that factual note, Shri Vaghela had gone against the aforesaid note submitted by the present petitioners and passed the order in favour of Shri Parmar. Thus, the charges leveled against Shri Vaghela, Retired Senior Administrative Officer itself exonerates the present petitioners from any misconduct so far. 5.3. Shri Vyas has submitted that the inquiry has been initiated against all the persons whosoever involved in regularisation of services of Shri Arvind Parmar and even though the present petitioners as well as Shri Vaghela were working in the same office and they were in the same hierarchy, their inquiry were carried out separately and their cases have been dealt with separately as a result of which cross and counter charges were leveled against them. Shri Vyas has submitted that the charges leveled against the petitioners as well as Shri Vaghela are not coherent and consistent with each other. Shri Vyas has submitted that the charges leveled against the petitioners as well as Shri Vaghela are not coherent and consistent with each other. Shri Vyas has also submitted that while inflicting the punishment of stoppage of one increment with future effect, no show cause notice has been served upon the petitioners regarding quantum of punishment and the petitioners have not been afforded any reasonable opportunity of personal hearing. Precisely, Shri Vyas has argued that the decision suffers from vice of principles of natural justice as well as the decisions of the Inquiry Officer and the Government are on vague and general allegations. Shri Vyas has also submitted that even though the petitioners have given detailed explanation, the same has not been taken into consideration by the respondent authority and punishment disproportionate to the charges leveled against the petitioners have been inflicted and therefore the orders impugned in these petitions are not sustainable in the eyes of law. 6. Per contra, Shri Harsheel Shukla, learned AGP has supported the inquiry report as well as ultimate decision taken by the respondent authority - Government. Shri Shukla has submitted that the scope of judicial review in departmental inquiry is very limited unless and until there is a breach of natural justice or there is apparent error on the face of the record. 7. On going through the papers, which are available on the record of these petitions, it is clearly emerging out that both the petitioners have clearly and categorically put up the noting indicating that in view of Resolution of Health and Family Welfare Department dated 21.07.1989, Shri Parmar has rendered services of 411 days in piecemeal. However, nowhere it is revealing that the present petitioners have indicated or made any positive remark regarding regularisation of services of Shri Parmar. On the contrary, it is revealing that aforesaid both the resolutions are coming in the way of regularisation of services of Shri Parmar. However, the ultimate decision is taken by Shri S. D. Vaghela, Retired Senior Administrative Officer. On the contrary, it is revealing that aforesaid both the resolutions are coming in the way of regularisation of services of Shri Parmar. However, the ultimate decision is taken by Shri S. D. Vaghela, Retired Senior Administrative Officer. As mentioned above, against him also, a departmental inquiry was initiated and he has been held guilty wherein the respondent authority - Government has clearly recorded the findings that though the subordinate officers to Shri Vaghela, i.e. Senior Clerk and Head Clerk have clearly and categorically mentioned the provisions of Government Resolution dated 21.07.1989, Shri Vaghela, Retired Senior Administrative Officer, with a view to favour Shri Parmar, passed the order and thereby the services of Shri Parmar has been regularised and he has been appointed as Class - IV employee at Gandhinagar. 8. Thus, from the aforesaid decision of the respondent authority itself in the case of Shri S.D. Vaghela, Retired Senior Administrative Officers under whom the present petitioners had been working as Head Clear and Senior Clerk, it emerges out that the decision taking authority i.e. the Government, on one hand, had given the findings that the subordinate officers to Shri Vaghela, i.e. Senior Clerk and Head Clerk (the petitioners herein) have clearly and categorically mentioned the provisions of Government Resolution dated 21.07.1989, even though Shri Vaghela, Retired Senior Administrative Officer, with a view to favour Shri Parmar, passed the order and thereby the services of Shri Parmar has been regularised and he has been appointed as Class - IV employee at Gandhinagar and on the other hand, inflicted punishment of stoppage of one increment with future effect upon the present petitioners holding the petitioners guilty for not disclosing true and correct facts to their superior officer. 9. Thus, taking into consideration the order passed by the Government of Gujarat on 3rd December 2001 in the case of Shri S. D. Vaghela, the fact becomes clear that the allegations and charges made against the present petitioners are baseless. It is also clearly emerging out from the impugned order passed by the Government of Gujarat that reasonable opportunity of personal hearing has not been afforded to the petitioners and no notice for infliction of punishment as contemplated under Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules was ever served upon the present petitioners. It is also clearly emerging out from the impugned order passed by the Government of Gujarat that reasonable opportunity of personal hearing has not been afforded to the petitioners and no notice for infliction of punishment as contemplated under Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules was ever served upon the present petitioners. Therefore, the decision of inflicting punishment upon the petitioners is violative of principle of natural justice as well. As stated above, the charges leveled against the petitioners as well as Shri Vaghela are not coherent and consistent with each other. On the contrary, the charges leveled against present petitioners and Shri Vaghela are mutually exclusive to each other. If one believes the charges against Mr. Vaghela then the charges against the present petitioners prove to be false and baseless. Thus, the charges leveled against Shri S. D. Vaghela, Retired Senior Administrative Officer itself exonerates the petitioners from the charges leveled against them. 10. In view of the aforesaid discussion, the impugned orders dated 25.05.2001 (Annexure-A to both the petition) as well as orders dated 4.1.2008 (Annexure-B to both the petitions) deserves to be quashed and set aside. 11. For the reasons aforementioned, impugned orders dated 25.05.2001 (Annexure-A to both the petition) as well as orders dated 4.1.2008 (Annexure-B to both the petitions) cannot be sustained and accordingly they are quashed and set aside. Rule is made absolute accordingly. In the facts and circumstances of the case, however, there shall be no order as to costs. Petition allowed.