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2018 DIGILAW 6 (GUJ)

C D PATEL v. STATE OF GUJARAT

2018-01-08

A.S.SUPEHIA

body2018
JUDGMENT : 1. By way of the present writ petition, the petitioner has prayed for quashing and setting aside the order dated 22.03.2010, whereby the petitioner has been imposed penalty of 100% pension cut on permanent basis. 2. The brief facts giving rise to the present petition are that: 3. The petitioner was serving as Auxiliary Nurse and Mid-Wife at Primary Health Centre, Chanvai, Taluka and District: Valsad. She retired on superannuation on 31.07.2008. The petitioner was served with the chargesheet dated 21.07.2004 for unauthorised absence since 01.07.1988. By the letter dated 24.08.2004, Additional District Health Officer, Valsad appointed as Inquiry Officer for holding departmental inquiry. After holding departmental inquiry, the Inquiry Officer submitted his report on 12.04.2006. The petitioner has filed her representation to the inquiry officer’s report on 14.05.2008. By the order dated 28.07.2006 passed by Block Health Officer, Valsad, the petitioner was allowed to retire from service subject to final decision of the departmental proceeding. 4. Learned advocate Ms.Harshal Pandya has pointed out that by letter dated 05.10.2006, Administrative District Health Officer, Valsad cancelled inquiry officer’s report dated 12.04.2006 on the ground that the Inquiry Officer who was appointed, was in fact appellate authority and hence, the same was not in consonance with rules. She has stated that in view of the letter dated 05.10.2006, the respondent authorities were not justified in relying upon the inquiry officer’s report for imposing penalty vide letter dated 22.03.2010. She has drawn attention of this court to the impugned order, wherein the respondent authority has specifically relied upon the inquiry officer’s report dated 13.04.2006 (12.04.2006) for imposing penalty of 100% pension cut. In view of the glaring defect in the impugned order, she requests for quashing and setting aside the impugned order. 5. Learned AGP Mr.Chintan Dave appearing on behalf of the State has submitted that the petitioner has remained absent since 01.07.1988 and even though the disciplinary authority has relied upon the inquiry officer’s report, which is subsequently set aside and he requests not to interfere with the order of respondent authorities. 6. The short question falls for consideration is that whether the impugned order of penalty dated 22.03.2010 could have been passed in wake of inquiry officer’s report, which was cancelled by the letter dated 05.10.2006? 7. 6. The short question falls for consideration is that whether the impugned order of penalty dated 22.03.2010 could have been passed in wake of inquiry officer’s report, which was cancelled by the letter dated 05.10.2006? 7. The undisputed fact remains that by letter dated 05.10.2006, appointment of the Inquiry Officer for holding departmental inquiry is held to be in violation of rules. It is pertinent to note that aforesaid letter is passed in view of advice obtained by Gujarat Panchayat Service Selection Board vide letter dated 16.06.2006. The impugned order dated 22.03.2010, specifically refers to inquiry officer’s report dated 12.04.2006 for imposing penalty of 100% cut in pension of the petitioner. 8. Thus, in the opinion of this court, reliance placed by the disciplinary authority on the inquiry officer’s report, which was already set aside in view of the advice of Gujarat Panchayat Service Selection Board, is misconceived and unjustified. Once the appointment of the inquiry officer is held to be illegal and inquiry officer’s report is also set aside, the disciplinary authority could not have relied upon the same for imposing penalty on the petitioner. 9. In view of the foregoing observations, the impugned order is hereby quashed and set aside. Matter is remanded to the disciplinary authority for fresh reconsideration. If any, action is to be taken against the petitioner, an appropriate opportunity shall be granted to the petitioner. 10. The petition is allowed. Rule is made absolute to the aforesaid extent.