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2019 DIGILAW 942 (GUJ)

Shashikant Dayalal Patel v. State of Gujarat

2019-10-16

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : Vikram Nath, J. 1. The present Letters Patent Appeal is filed under Clause 15 of Letters Patent against the order passed by the learned Single Judge dated 07.08.2019 in Special Civil Application No. 13477 of 2019 whereby, the petition came to be dismissed. 2. The background of the fact which has given rise to this Letters Patent Appeal is that the appellant - original petitioner was at the relevant point of time In-charge of the position of the Deputy Director of Animal Husbandry at Gandhinagar under the Gauchar Development Board and allegations levelled against the appellant was that he exceeded his powers and authority and sanctioned huge financial assistance irregularly and unauthorizedly to the tune of more that Rs. 10,15,90,910/-. This payment has been made in respect of about 125 applications month wise, and, thereby, having generated an opinion with respect to his guilt, appears to have been placed under suspension vide order dated 10.07.2019 passed by respondent no. 2 - authority. While passing the said order of suspension, head quarter is fixed at Bhavnagar, main office Veterinary Polyclinic. This order of suspension has been challenged by the appellant - original petitioner by raising multiple contentions. The learned Single Judge after hearing the original petitioner and the learned Assistant Government Pleader, found no merit in challenge. Resultantly, vide order dated 07.08.2019, the petition came to be dismissed and it is this order of dismissal of petition, is made the subject matter of present Letters Patent Appeal before us. 3. Shri Vicky B. Mehta, learned counsel appearing on behalf of the appellant has vehemently contended that while passing the order of suspension, no opportunity of hearing is given, nor principles of natural justice are complied with in any form and on the basis of the unilateral version, the order of suspension came to be passed. It has further been contended that the respondent - authority has no power to pass an order of suspension so long as inquiry is contemplated and as such in absence of such contemplation, to put the appellant under suspension is an act of want of authority and, therefore, also the order must be set aside. 3.1. It has further been contended that the learned Single Judge has not examined the issue, as a result of this, the order requires to be corrected. 3.1. It has further been contended that the learned Single Judge has not examined the issue, as a result of this, the order requires to be corrected. It has been further submitted that the appellant - original petitioner is an innocent person, on the contrary, power is invested in him by the Board itself and the authority to make the payment of pending applications by virtue of communication dated 22.02.2019, 27.02.2019 as well as 09.05.2019. As a result of this, now, it cannot be alleged by the Board that the appellant has exceeded his power in releasing the payment. It has further been contended that there were several complaints and representations received about the non-payment of many such pending applications and as such it is the Board who directed the appellant on 09.05.2019 to immediately release the payment in respect of the application of Ranpur Taluka. Hence, the same has been released, which cannot be termed as misconduct in any manner. 3.2. Shri Mehta, learned counsel has further contended that the impugned order which has been passed is in violation of the provisions contained under the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 (hereinafter referred to as the "Rules"), precisely Rule 5 of the Rules has not been observed. As a result of this, the order of suspension is not sustainable in the eye of law. Accordingly, the same deserves to be examined. Having not done so, the order of learned Single Judge requires to be interfered with. Shri Mehta, learned counsel, by relying upon certain documents, has made an attempt to ventilate the grievance that ultimately, at the instance of the Board itself, the payments have been released and as such now, the appellant cannot be made a scapegoat of the situation. By referring to certain documents, an attempt is made by Shri Mehta, learned counsel to see that the order may be interfered with. No other submissions have been made. 4. As against this, Ms. Aishwairya Gupta, learned Assistant Government Pleader appearing on behalf of the respondent - authority has vehemently contended that there are serious allegations of embezzlement of funds and misapplication of huge government money and the allegations levelled are to the tune of huge financial release in favour of the appellant unauthorizedly, irregularly, resulting into release of more than Rs. Aishwairya Gupta, learned Assistant Government Pleader appearing on behalf of the respondent - authority has vehemently contended that there are serious allegations of embezzlement of funds and misapplication of huge government money and the allegations levelled are to the tune of huge financial release in favour of the appellant unauthorizedly, irregularly, resulting into release of more than Rs. 10 crores and it has been submitted that there is an inbuilt power in the authority to pass an order the moment it has been found that the allegations are serious enough. Ms. Gupta, learned Assistant Government Pleader has submitted that this order of suspension is passed at which stage no need for granting any opportunity of hearing as the same is during the pendency of the contemplated action. On the contrary, there is no violation of Rule 5 of the Rules at all as agitated. It has further been contended by Ms. Gupta, learned Assistant Government Pleader that before passing the order, preliminary inquiry had already been conducted by the authority and based upon preliminary inquiry report, which was referred to vide communication dated 30.05.2019, the authority has examined and found prima facie that such release of huge financial assistance is without prior permission and it was also not within the competence of the appellant. Resultantly, the authority has pending such ensuing action has passed an order of suspension. Ms. Gupta, learned Assistant Government Pleader has further submitted that in this case, pursuant to the order of suspension, the charge sheet has also been prepared against the appellant- original petitioner, which has been sent to the concerned department on 05.10.2019 and as such, the inquiry is already set into motion by submission of the charge sheet and, therefore, looking to the object of suspension, keeping the person aware from the field of influence, the authority has passed the order of suspension and as such there is hardly any case made out by the appellant to assail the order of suspension. 4.1. Ms. Gupta, learned Assistant Government Pleader has further submitted and drawn attention to the attachment of yadi of agriculture farmers welfare and co-operative department dated 04.10.2019 placed before us, to indicate that the authority has proceeded in respect of the allegations levelled against the appellant. Considering this submission, Ms. Gupta, learned Assistant Government Pleader has requested that there is no case made out to call for any interference. Considering this submission, Ms. Gupta, learned Assistant Government Pleader has requested that there is no case made out to call for any interference. On the contrary, after thoroughly examining the issue and submissions made by the learned counsel for the original petitioner, the learned Single Judge thought it fit not to exercise extra ordinary jurisdiction in absence of any perversity and when such huge embezzlement of fund is alleged, it is always open for the authority to pass the order of suspension. Resultantly, no case is made out to interfere with. Ms. Gupta, learned Assistant Government Pleader on construction of Rule 5 of the Rules has already submitted that since the department has already contemplated the disciplinary proceedings, the grievance about violation of Rule 5 of the Rule agitated by the appellant is no longer available. Accordingly, there is no merit in appeal, the same deserves to be dismissed. 5. Having heard the learned counsel for the respective parties and having gone through the material on record, it appears that the original order of suspension which is under challenge dated 10.07.2019 is based upon the preliminary inquiry which has been conducted and on the basis of such inquiry, in the year 2015 onwards, it has been found that huge fund has been released without any prior permission in respect of the pending applications and such fact has been revealed in the report which has been sent to the department on 30.05.2019 and it is only based upon such prima facie material, it has been noticed by the authority that Rule 5 of the Rules deserves to be invoked for placing the appellant under suspension. Apart from that it has been projected before us that the departmental inquiry has already been contemplated, charge sheet related to these allegations has already been sent to the concerned department for onwards action, we deem it proper not to allow such appeal to be precipitated further, since the action has already been set in motion. 5.1. We are also apprised of the fact that there are serious allegations about financial irregularity to the extent of Rs. 10 crores and the action is already initiated by placing the appellant under suspension there is no serious prejudice likely to cause. 5.1. We are also apprised of the fact that there are serious allegations about financial irregularity to the extent of Rs. 10 crores and the action is already initiated by placing the appellant under suspension there is no serious prejudice likely to cause. The reason behind is that suspension is not cessation of service and it is taken as a measure to keep person away from the field of influence so that impartial inquiry can be undertaken. When that be so, we are also of the considered opinion that this background of fact does not require any interference in the order passed by the learned Single Judge. Accordingly, the appeal stands dismissed having no merit. 6. However, while parting with this, we may observe that looking to the seriousness of charge against the appellant, and looking to the public money involved in this incident, the authorities are directed to see that the inquiry be conducted impartially as expeditiously as possible, to be concluded preferably within a period of six months. 7. In view of the above, the appeal along with the connected civil application stand dismissed.