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2021 DIGILAW 746 (GUJ)

MEGHJIBHAI VIRJIBHAI CHAUHAN v. BHAVNAGAR MUNICIPAL CORPORATION

2021-08-31

BHARGAV D.KARIA

body2021
ORDER : Heard learned advocate Ms.Muskan A. Gogia for the petitioner. 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs : “A. Your Lordships be pleased to admit and allow the present petition. B. Your Lordships may be pleased to hold, declare and direct that the punishment order of removal from service passed against the Petitioner Vide No. MAHEKAM/2/238 dated 28.11.2019 by Commissioner of Respondent Corporation annexed as Annexure-A and Appellate decision vide letter dated 11.06.2021 by Deputy Commissioner of Respondent Municipal Corporation at Annexure B are illegal, ineffective, null and void and be quashed and set aside, by further declaring and directing that Petitioner be treated as continuing in active service with all the consequential benefits of pay, seniority and all other benefits including full retirement benefits. C. Your Lordships may be pleased to hold, declare and direct that suspension order of the petitioner vide no. MAHEKAM/2/142 dated 25.01.2019 is illegal, invalid and be quashed and set aside. And may further be held, declared and directed that such invalid and prolonged suspension of the Petitioner was unjustified and the Petitioner is entitled to all the consequential benefits of full salary for the period of suspension and the suspension to be treated as period spent on duty for all purposes. D. Any other appropriate relief as deemed just, fit and proper, may please be granted. E. Cost of this petition be awarded to the Petition.” 2. Brief facts of the case are as under : 2.1. The Petitioner was appointed as a Jr. Clerk in the Bhavnagar Municipal Corporation on 14.11.1985. He was promoted as Sub-Inspector in Sanitation Department on basis of seniority and merit on 10.06.2009. His birth date as on record of Respondent is 03.12.1963 and hence his date of Superannuation shall be 31.12.2021. The Petitioner has been working as such since last about 34 years from the date of his appointment with full devotion to his duties. 2.2. The Petitioner was ordered to be suspended by the Commissioner of Respondent Corporation vide office order dated 25.01.2019 issued by Deputy Commissioner (Administration) of the Corporation. The Petitioner is suspended assigning the reason therein that he is found to be not fit to continue in active service in the interest of administration for the reasons of his negligency in duties and insubordination with his superiors. The Petitioner is suspended assigning the reason therein that he is found to be not fit to continue in active service in the interest of administration for the reasons of his negligency in duties and insubordination with his superiors. The said order of suspension was continued till the date of order of removal from service i.e. up to 28.11.2019. 2.3. The Petitioner submitted a representation to the Commissioner vide dated 05.02.2019 to revoke the suspension. Respondent Municipal Corporation did not reply the said representation. 2.4. The Petitioner was issued chargesheet-Memo vide No. MEHKAM/2/160 dated 28.03.2019 accompanying with statement of allegations and the list of documentary evidence. 2.5. The Commissioner appointed one of his Law Officer as an Inquiry Officer to hold the inquiry in the charges and the Executive Engineer of Solid Waste Management was appointed as Presenting Officer vide order dated 01.04.2019. 2.6. The Petitioner by representation dated 11.04.2019 requested the commissioner in details, explaining the correct facts and requested to drop the charge-sheet. However, the Petitioner did not receive any reply to the said representation. 2.7. Thereafter, the inquiry was held by the Inquiry Officer. The Petitioner received show cause notice dated 11.09.2019 from the Commissioner along with inquiry report calling upon him to submit the representation against the proposed punishment of removal from service in terms of Section 56(2)(g) of the Gujarat Municipal Corporation Act, 1949 (for short ‘GPMC Act’). The Petitioner replied to the said show cause notice by representation dated 16.09.2019 contending therein that the charges are not proved during the inquiry and that false case has been made out against him. The Commissioner of the Respondent Municipal Corporation passed an order mechanically vide order No. MEHKAM/2/238 dated 28.11.2019 removing the petitioner from service. 2.8. Dissatisfied with the same, the Petitioner filed Appeal dated 27.12.2019 before Standing Committee of Respondent Municipal Corporation, under Section 56(4) of GPMC Act. 2.9. After punishment of removal from service, the petitioner submitted the representation to commissioner vide his representation dated 01.09.2020 to review the punishment order issued against the petitioner. To this also there was no reply or decision. 2.10. The Appeal filed by the petitioner was not decided by Standing Committee therefore the Petitioner filed Special Civil Appication No.5823 of 2021 in March 2021 which came to be disposed off by this Court vide order dated 01.04.2021. 2.11. To this also there was no reply or decision. 2.10. The Appeal filed by the petitioner was not decided by Standing Committee therefore the Petitioner filed Special Civil Appication No.5823 of 2021 in March 2021 which came to be disposed off by this Court vide order dated 01.04.2021. 2.11. The petitioner has been granted compassionate pension by the orders dated 15.01.2021 and 21.01.2021 under Rule-77 of Gujarat Civil Services (Pension) Rules-2002. The Pension and Gratuity sanctioned and paid to him is at the reduced rate of 2/3 of the amount to which he would have received or would have been entitied on basis of his total service rendered in normal course. 2.12. Thereafter in accordance with order of this Court the petitioner moved the Standing Committee by Representation, vide Application dated 07.04.2021 for deciding his appeal. The Petitioner did not receive any reply or decision from Standing Committee, and therefore sent a letter to Respondent Authorities vide dated 06.07.2021 to supply him copy of decision of Standing Committee, if such decision is taken. Simultaneously, petitioner also inquired in person from Office of Respondent Corporation about outcome of his Appeal, to which he came to know that the Standing Committee has rejected his Appeal and petitioner was asked to apply for copy of decision by paying requisite charges, if he requires the copy of the decision. The petitioner was given copy of the Resolution dated 13.05.2021 passed by Standing committee, on Payment of requisite fee. Thereafter petitioner has received letter dated 11.06.2021 issued by Deputy Commissioner of Respondent Municipal Corporation. 3. Learned advocate Ms.Gogia submitted that the Commissioner of the Bhavnagar Municipal Corporation has passed the impugned order removing the petitioner from service under Section 56(2) of the GPMC Act which was confirmed by the appellate decision vide letter dated 11.06.2021 are contrary to the provisions of Section 56 of the GPMC Act. 3.1. It was submitted that the charges levelled against the petitioner are vague, so far as Charge No.1 is concerned, the same is silent, as to who was the higher authority and what was the nature of mis-behaviour and on what date and time the mis-behaviour was done by the petitioner. With regard to Charge No.2, it was submitted that it was not mentioned therein as to by whom and in what manner, the petitioner was informed to remain present in the meeting with Mayor. With regard to Charge No.2, it was submitted that it was not mentioned therein as to by whom and in what manner, the petitioner was informed to remain present in the meeting with Mayor. It was submitted that similarly Charge Nos.4 to 8 also lack necessary particulars to constitute the same as lapse or negligency on the part of the petitioner. 3.2. Learned advocate Ms.Gogia further submitted that the inquiry held is defective as the petitioner is highly prejudiced by such inquiry on various grounds such as (i) The Inquiry Officer appointed to hold inquiry was a Law Officer of the respondent and the alleged reports and documents referred to in the charge-sheet were of three years old. (ii) The documents submitted with the charge sheet were forming part of the record of the Solid Waste Management Department which is under the Executive Enginneer who suspended the petitioner. (iii) The presenting officer appointed by the Commissioner was Executive Engineer of Solid Waste Management who issued notices to the petitioner which are basis of the charge sheet. (iv) In the chargesheet, no witnesses are mentioned to be examined in the inquiry. (v) No copies of documents relied upon in the charge-sheets were supplied. (vi) Only the petitioner was examined by the presenting officer on the basis of the defense statement dated 11.04.2004 filed by the petitioner in reply to the chargesheet. (vi) The petitioner was not supplied with the copies of the proceedings of inquiry held or copies of the cross-examination of his own or of Presenting Officer or any other evidence, if any. 3.3. It was therefore submitted that in view of the above defects in the inquiry proceedings, the petitioner has been wrongly punished for the charges of negligence and failure in performing his duties. 3.4. It was submitted that the petitioner is subjected to the penalty of “removal of service” without following the procedure prescribed in Sub-section (3) of Section 56 of the GPMC Act. It was submitted that the charges levelled against the petitioner are based upon the stale complaints which could not have been considered as live after an inordinate delay of three to four years. 3.5. It was submitted that the charges levelled against the petitioner are based upon the stale complaints which could not have been considered as live after an inordinate delay of three to four years. 3.5. Learned advocate Ms.Gogia further submitted that the charges levelled against the petitioner are vague as none of the documents as mentioned in the list of documentary evidence along with the charge-sheet were supplied to the petitioner and no list of witnesses proposed to be examined to prove the charges is either decided or enclosed with the charge-sheet. It was therefore submitted that the inquiry proceedings from the initial stage was illegal, pre-judge and are contrary to the principles of natural justice. It was submitted that the Inquiry Officer has recorded the findings without any support of the evidence and without discussing any evidence resulting into perverse findings. 3.6. It was also submitted that the impugned punishment order is disproportionate, harsh and arbitrary as the concerned authority of the respondent has not considered the relevant aspects and factors with regard to the 34 years unblemished service of the petitioner and the right of the petitioner to serve for the rest of the period till 31st December, 2021 is deprived by the impugned order of removing the petitioner from service. It was submitted that the pensionary benefits which are granted to the petitioner on the basis of the compassionate pension at the rate of 2/3 of his entitlements is also required to be quashed in view of the impugned orders which are passed mechanically. 3.7. Learned advocate Ms.Gogia in support of her submissions relied upon the decision of the Supreme Court in case of Surath Chandra Chakravarty Vs The State of West Bengal, AIR 1971 SC 752 wherein, it is held that it is not permissible to hold an inquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defense. 3.8. Learned advocate Ms.Gogia therefore submitted that even the appellate authority has not considered whether the punishment imposed is proportionate to the charges levelled against the petitioner or not as the appellate authority was required to peruse and consider all proceedings including inquiry proceedings independently. 3.9. Learned advocate Ms.Gogia therefore submitted that even the order of suspension of the petitioner was illegal as such order would amount to a punishment under Section 56 of the GPMC Act. 3.9. Learned advocate Ms.Gogia therefore submitted that even the order of suspension of the petitioner was illegal as such order would amount to a punishment under Section 56 of the GPMC Act. It was submitted that the suspension order could be passed only if it is necessary for the purpose of holding inquiry where there is such provisions and rules. 4. Having considered the submissions made on behalf of the petitioner and having gone through the material produced on record, it appears that the disciplinary authority being the Commissioner of the respondent-Bhavnagar Municipal Corporation has passed the impugned order dated 28.11.2019 and held that except Charge No.3, all the charges were proved in the departmental inquiry. Moreover, the show cause notice was also issued to the petitioner under Section 56(2) of the GPMC Act and after giving an opportunity of personal hearing to the petitioner on 27.09.2019 as the charges were proved against the petitioner order of punishment was passed under Clause (g) of Subsection (2) of the GPMC Act i.e. removal from municipal service which does not disqualified from future employment. 5. The appellate authority has also dismissed the appeal in view of the Resolution No.108 dated 13th May, 2021 passed by the Standing Committee of the respondent-Corporation. Thus, it appears that as competent authority of respondent-Corporation after considering the findings of inquiry report has come to the conclusion to impose the punishment on petitioner of removal from service which does not disqualify him from future employment. 6. Thus, there are concurrent findings of fact arrived at by the Disciplinary Authority as well as the Appellate Authority who have also taken into consideration the Resolution passed by the Standing Committee of the respondent-Corporation. In that view of the matter, when the decision to award the punishment to the petitioner is confirmed by the Standing Committee of the respondent Municipal Corporation as observed by the Appellate Authority, the same cannot be said to be perverse. 7. Accordingly, no interference is required to be made while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India. The contentions raised on behalf of the petitioner with regard to vague charges and defective inquiry cannot be looked into as it would involve appreciation of evidence as well as review of concurrent findings which cannot be appreciated or considered in the writ jurisdiction. The contentions raised on behalf of the petitioner with regard to vague charges and defective inquiry cannot be looked into as it would involve appreciation of evidence as well as review of concurrent findings which cannot be appreciated or considered in the writ jurisdiction. On perusal of the impugned orders as well as the inquiry reports, it appears that adequate opportunity of hearing was given to the petitioner and after considering the reply of the petitioner, the impugned order is passed under Section 56(2)(g) of the GPMC Act. 8. In view of the foregoing reasons, the petition fails and is accordingly dismissed. No orders as to cost.