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2017 DIGILAW 1566 (GUJ)

State of Gujarat v. P. R Gujarati

2017-09-04

A.S.SUPEHIA

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JUDGMENT : A.S SUPEHIA, J. 1. In the present writ petition, the petitioner has assailed the judgment and order dated 16.08.2004 passed by the Gujarat Civil Services Tribunal in Appeal No. 44 of 2002. 2. The brief facts of the petition are that, The present respondent was issued a charge-sheet dated 18.01.2000, inter-alia, alleging that was indulged in a scuffle with one-Shri. S.S Pandya, Store keeper/in-charge Instructor, on 07.05.1999 and had assaulted and abused him. The second charge was that he used to remain absent on authorized leave. The respondent categorically denied the charges vide letter dated 24.03.2000 3. After holding a Departmental Inquiry, the Inquiry Officer vide his report dated 25.05.2001, held the charges proved against the respondent. 4. The Disciplinary Authority agreed with the findings recorded by the Inquiry Officer and by order dated 09.11.2001, imposed penalty of placing the respondent under minimum pay of Rs. 4,500/- in the pay-scale of Rs. 4,500-7,000 with future effect for five years and simultaneously ordered stoppage of increments for that period. 5. The respondent challenged the aforesaid departmental proceedings and penalty order before the Gujarat Civil Services Tribunal, Gandhinagar by filing Appeal No. 44 of 2002. By the judgment and order passed on 16.08.2004 The Tribunal quashed and set aside order of penalty. 6. Learned Assistant Government Pleader, Mr. Soni appearing on behalf of the Petitioner-Authority has submitted that the Tribunal has erred in exceeding its jurisdiction and setting aside the penalty order as it is settled law that the Tribunal cannot examine the finding of the Inquiry Officer in an appeal before it. 7. He has also stated that the only witness in the present proceedings was one-Mr. Harijan, who was present on that day and in his statement dated 13.05.1999, he has clearly stated that respondent had physically assaulted one-Mr. S.S Pandya on 07.05.1999 Hence, in view of the said statement, which was given within a week from the incident, there was all reason to believe that the said statement was correct. Learned AGP has also stated that the Tribunal has erred in not taking into consideration the fact that even the defence witness one-Mr. Suthar in his cross-examination has stated that knew that scuffle had taken place during the recess on that very day. Learned AGP has also stated that the Tribunal has erred in not taking into consideration the fact that even the defence witness one-Mr. Suthar in his cross-examination has stated that knew that scuffle had taken place during the recess on that very day. It is submitted by learned AGP that all these facts clearly proved that the incident had taken place and, therefore, the respondent was confronted with the departmental inquiry. It is also contended by learned AGP Mr. Soni that after holding a detailed departmental inquiry, the Inquiry Officer held the charges as proved against the respondent and the Disciplinary Authority, placing reliance on the Inquiry Officer's report, imposed penalty vide order dated 09.11.2001 In such circumstances, he has urged that the Tribunal should not have interfered with the order of punishment imposed upon the respondent, hence, the same is required to be set aside. 8. Per contra, learned advocate Mr. Bhatt appearing on behalf of the respondent stated that though there was no stay order against the order of the Tribunal, the same is yet not implemented. In the meantime, the respondent has retired from service on 30.09.2013 He has stated that the departmental inquiry was initiated on the basis of statement made on 13.5.1999 by Shri. Harijan, and he had turned hostile. He has also stated the Mr. S.S Pandya who is said to be assaulted by the Respondent is also not examined in the departmental inquiry. In absence of his examination, the Tribunal has rightly quashed and set aside the impugned order. For the second charge of remaining absent on unathoirsed leave, Mr. Bhatt has submitted that all the leave taken by the respondent were sanctioned by the authorities. Thus, in view of the aforesaid facts, he has requested that the order and judgment of the Tribunal requires to be sustained. 9. I have perused the judgment of the Tribunal as well as the report of the inquiry officer. It appears that the entire departmental inquiry was held on the statement 13.05.1999 of one co-employee Shri. Harijan. As can be seen from the report of the Inquiry Officer, Shri. Harijan was declared hostile by the Inquiry Officer and hence, the basis on which the inquiry was initiated would not survive as Shri. Harijan has not supported the allegations against the present respondent. Another defect in the report of the Inquiry Officer is that Mr. As can be seen from the report of the Inquiry Officer, Shri. Harijan was declared hostile by the Inquiry Officer and hence, the basis on which the inquiry was initiated would not survive as Shri. Harijan has not supported the allegations against the present respondent. Another defect in the report of the Inquiry Officer is that Mr. S.S Pandya, who is alleged to be assaulted by the present respondent is not examined in the departmental inquiry. If it is the case of the disciplinary authority that he was the victim of assault made by the petitioner then in that case he was the most important witness in the case. The non-examination of Mr. Pandya in the departmental inquiry can be held to be fatal for the order of penalty. The Tribunal, after considering the Inquiry Officer's report in detail has arrived at the conclusion that the misconduct alleged against the respondent is not proved. As observed by the Apex Court in the judgment rendered in the case of Hardwari Lal v. State of U.P, reported in (1999) 8 SCC 582 : AIR 2000 SC 277 , the non-examination of witness would amount to violation of principles of natural justice and the same would prejudice the case of the delinquent. Hence, the departmental inquiry held against the present respondent suffers from violation of principles of natural justice, as a consequence the order of penalty also becomes unscrupulous. 10. So far as the second charge of the petitioner for remaining absent un-authorisedly is concerned, the grounds stated in present writ petition are silent on that aspect. The grounds in the writ petition primarily focus on the first charge of assault. In paragraph 7 of the judgment of Tribunal it is observed that all the sick leave and other leaves were sanctioned by the authorities. Learned AGP is unable to show from the record that leaves taken by the respondent were not sanctioned. Thus, the findings recorded by the Tribunal dealing with the second charge does not require any interference. 11. Considering the aforesaid lacuna in the departmental proceeding, I am of the opinion that the Tribunal has rightly exercised its jurisdiction in quashing and setting aside the penalty order. Hence, the present petition deserves to be dismissed and the same is dismissed. Thus, the findings recorded by the Tribunal dealing with the second charge does not require any interference. 11. Considering the aforesaid lacuna in the departmental proceeding, I am of the opinion that the Tribunal has rightly exercised its jurisdiction in quashing and setting aside the penalty order. Hence, the present petition deserves to be dismissed and the same is dismissed. If in case the order of Tribunal is not implemented, the petitioner-Authority is hereby directed to implement the same forthwith within a period of four weeks from today, and the other consequential benefits arising out of the said order shall be paid to the respondent. As the respondent has retired from service on 30.09.2013, his retirement benefits shall be revised accordingly. The petition is dismissed. Rule discharged. No orders as to cost.