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2022 DIGILAW 1053 (GUJ)

Sureshbhai Manoharbhai Patel v. State of Gujarat

2022-09-20

A.Y.KOGJE

body2022
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India is filed for following reliefs: “(A) YOUR LORDSHIP may be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned termination order dated 25.11.2013 as per Annexure-I as being violative of Articles 14 and 16 of the Constitution of India and further be pleased to direct the respondents No. 3 and 4 to reinstate the petitioner on original post of Junior Clerk forthwith and further be pleased to declare that the petitioner is entitled and eligible to continue as Junior Clerk with continuity of services. (B) YOUR LORDSHIP may be pleased to issue an appropriate writ, order or direction by staying further execution, implementation and operation of the impugned termination order dated 25.11.2013 as per Annexure-I and further be pleased to direct respondents No. 3 and 4 to allow the petitioner as Junior Clerk to perform his duty, pending admission hearing and final disposal of this petition. (C) YOUR LORDSHIP may be pleased to issue an appropriate writ, order or direction, directing respondent No. 2 District Education Officer not to pay any amount of the grant to respondent No. 4 till the petitioner is allowed to perform his duty as Junior Clerk, pending admission hearing and final disposal of this petition.” 2. Essentially, case of the petitioner is for the purpose of setting aside the order of the respondent-school authority which has ordered termination of the petitioner pursuant to the inquiry initiated for five charges of misconduct. It is brought on record that the petitioner has attained age of superannuation on 31.03.2018 and therefore, prayer of reinstatement to the post of junior clerk would not survive. 2.1 The ground for challenging inquiry as well as order of termination is that the school authority is required, under the provisions of the Gujarat Secondary and Higher Secondary Regulations, 1974 (“the Regulations” for short), to receive sanction for proposal of termination. 3. Learned Advocate for the petitioner submitted that though the respondent-school authority forwarded the proposal for sanction and its resolution to terminate, the State Government has refused to grant such sanction. In absence of sanction, it would not be open for the respondent-school authority to terminate services of the petitioner. Still, the respondent-school authority has proceeded to pass the impugned order. Learned Advocate for the petitioner submitted that though the respondent-school authority forwarded the proposal for sanction and its resolution to terminate, the State Government has refused to grant such sanction. In absence of sanction, it would not be open for the respondent-school authority to terminate services of the petitioner. Still, the respondent-school authority has proceeded to pass the impugned order. 3.1 Learned Advocate for the petitioner submitted that even on merits, the charges, for which inquiry was initiated against the petitioner are baseless and apparently, for the purpose of targeting the petitioner. It is submitted that one of such charge against the petitioner was with regard to the petitioner not disclosing fact that during his service period, he had rendered honorary service as Internal Auditor in a society. In this connection, it is submitted that one of the trustees of the school authority himself was office bearer in such society and therefore, at his insistence, the petitioner had given honorary service as such. This, therefore, cannot be a ground of inquiry. Likewise, learned Advocate has also submitted regarding other grounds, one of them being registration of an FIR being I-CR No. 62 of 2012 dated 16.10.2012 for offences under Sections 406, 408 and 114 of the Indian Penal Code. It is submitted that the petitioner is not named in the FIR and only being office bearer, during the course of investigation, charge against the petitioner has been filed. 3.2 It is lastly submitted that now as the petitioner has retired, case of the petitioner for the purpose of pension be expedited. 4. Learned AGP, in support of their decision not to sanction proposal for terminating the services of the petitioner, has drawn attention of this Court to the provisions of the Regulations, especially Regulation No. 27, which provides for major punishment and the procedure required to be adopted therein. It is submitted that the inquiry committee set up in case of inquiry against the petitioner was not constituted as per the provisions and for that reason, sanction was not given to the proposal. 5. Learned Advocate for the respondent-school authority makes a statement under instructions that the school has no objection to withdraw the order of termination against the petitioner. However, the school authority may not be burdened with any financial liability in this regard. 5. Learned Advocate for the respondent-school authority makes a statement under instructions that the school has no objection to withdraw the order of termination against the petitioner. However, the school authority may not be burdened with any financial liability in this regard. It is submitted that highest representative of the respondent-school authority is ready and willing to file an affidavit before this Court in this regard. 6. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, the question which comes up for consideration is whether order of termination of the petitioner by the respondent-school authority can be upheld. The chronology of events would indicate that the petitioner was issued with the show cause notice along with imputation of charges on 18.03.2003, where 6 charges were made against the petitioner, against which the petitioner filed detailed reply on 23.05.2003 and thereafter, inquiry was instituted and the inquiry report was submitted on 24.05.2013. The report was given by the committee consisting of the representative of the college trust, representative of the college and the representative of the charged employee. Regulation 27(A)(2) provides for constitution of inquiry committee consisting of representative of the trust, representative of the charged employee and also representative from the panel prepared for the purpose by the Board of District. In the facts of this case, no member from the Board of District panel was part of the inquiry committee and that appears to be the reason why by order dated 11.11.2013, proposal forwarded by the school on 21.06.2013 for termination of the petitioner came to be rejected. It appears that it is after rejection of the proposal by the District Education Officer that the impugned order of termination has been passed. In the opinion of the Court, the impugned order of termination is unsustainable in view of lack sanction of the District Education Officer. 7. At this stage, it would also be relevant to refer to the stand taken by the respondent-school authority where a statement is made under instructions that they are ready and willing to withdraw the impugned order of termination. The highest representative of the respondent-school authority to file an affidavit in this regard before this Court within a period of two weeks from today. 8. In view of the aforesaid, the impugned order dated 25.11.2013 is ordered to be quashed and set aside. The highest representative of the respondent-school authority to file an affidavit in this regard before this Court within a period of two weeks from today. 8. In view of the aforesaid, the impugned order dated 25.11.2013 is ordered to be quashed and set aside. As the petitioner has now retired upon attaining age of superannuation on 31.03.2018, it would be appropriate to direct the respondent-school authority to sent pension proposal of the petitioner as expeditiously as possible, preferably within a period of three months from the date of receipt of this order. 9. The petition is allowed in the aforesaid terms. Rule is made absolute. No order as to costs.