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2023 DIGILAW 197 (GUJ)

Champak Chimanlal Morakhia v. State of Gujarat

2023-01-25

SANDEEP N.BHATT

body2023
JUDGMENT : 1. The present petition is filed praying for the following reliefs : “14(A) Quashing and setting aside the departmental inquiry against the petitioner as well as the order of dismissal dt.21.9.1999, the appellate order dt.23.3.2004 and the reviewing order dt.9.3.2011, and direct the Respondents to reinstate the petitioner in service with all consequential benefits including back wages with interest. (A) Your Lordships may be pleased to quash and set aside order of respondent authority dated 21.9.1999 as confirmed by respondent appellate authority by order dated 23.3.2004 as well as order of respondent authority dated 9.3.2011 refusing to review and reconsider punishment and be further pleased to declare that the punishment of dismissal imposed against petitioner is extremely harsh and same would be required to be replaced by any punishment other than dismissal and with such direction, be pleased to direct respondents to reconsider his case sympathetically. (B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to grant relief as prayed for in para 14(A) as interim or ad interim relief in interest of justice. (C) Grant such other and further reliefs deemed just and proper in facts and circumstances of case.” 2. The brief facts leading to filing of this petition are such that the petitioner was appointed as Junior Clerk on 1.9.1982 and worked as such upto 30.6.1987 in Technical Education Department, Old Sachivalaya, Gandhinagar. Thereafter, upon his selection through the GPSC as Taluka Development Officer (TDO for short), he had taken probationery training from 2.7.1987 to 30.6.1988 as directly recruited TDO. He worked at different places as TDO at different places from 2.7.1988 to 22.9.1999. Thereafter, on 21.9.1999, he was dismissed from service as per the order of the Panchayat and Rural Housing Department, Gujarat State, Gandhinagar. Against the order of dismissal, the petitioner preferred appeal dated 5.11.1999 and 23.1.2001 to the Principal Secretary to Hon’ble Chief Minister. As the appeal was pending for very long time, the petitioner preferred Special Civil Application No.10117 of 2003 challenging the dismissal order dated 21.9.1999. The said petition was disposed of vide order dated 18.7.2003 directing the appellate authority to decide the pending appeal. Thereafter, the petitioner again made a representation on 17.5.2004 to the respondent authority to reconsider and review the punishment of dismissal. As nothing proceeded further, the petitioner again made a representation dated 19.10.2010 as a reminder to the previous representations. The said petition was disposed of vide order dated 18.7.2003 directing the appellate authority to decide the pending appeal. Thereafter, the petitioner again made a representation on 17.5.2004 to the respondent authority to reconsider and review the punishment of dismissal. As nothing proceeded further, the petitioner again made a representation dated 19.10.2010 as a reminder to the previous representations. Finally, vide order dated 9.3.2011, the representations were rejected. Therefore, the petitioner filed this petition challenging the order of dismissal dated 12.9.1999, the order of appellate authority dated 23.3.2004 and refusal of the respondent authority to review his punishment of dismissal. 3. Heard learned advocate Mr. Vyas for the petitioner and learned APP Ms. Ashar for the respondent-state. 3.1 Learned advocate Mr. Vyas for the petitioner submitted that representations made by the petitioner to the respondent authority are not dealt with by the authority. He has further submitted that though advise of Gujarat Public Service Commission ('GPSC' for short) is taken into consideration but it is not supplied to the present petitioner which jeopardized the valuable right of the present petitioner. He relied on the judgment of the Hon’ble Apex Court in the case of Union of India and Ors. V/s S.K. Kapoor reported in 2011 (4) SCC 589 . He has further submitted that in view of the Rule (9)(17) of the Gujarat Civil Services (Disciplinary) Rules, 1971, the respondent has not applied that rule and the petitioner had no opportunity to explain the circumstances against him. He has relied on the judgment of this Court in Special Civil Application No.7317 of 2004 in the case of Faridaben Ahmedhusen Qureshi Wd/o. Ahmedhusen L. Qureshi Vs. State of Gujarat. 3.2 Learned advocate Mr. Vyas further submitted that when in the year 2004, his appeal was dismissed, he has immediately made representation for reviewing the order of dismissal but it was not paid any heed and therefore in the year 2010, he has made another representation and therefore he has submitted that it cannot be said that the petition is barred by delay and laches as the petitioner is pursuing his remedy throughout from the date of dismissal till the date of representation in the year 2010. He has lastly submitted that the punishment which is rendered by the disciplinary authority is disproportionate to the alleged act as no financial loss is occurred. He has lastly submitted that the punishment which is rendered by the disciplinary authority is disproportionate to the alleged act as no financial loss is occurred. He has further submitted that even at the time of such action taken against the petitioner, the petitioner was serving as probationer and therefore, referring to the necessary notes which is produced along with the petition, he submitted that the action taken against the petitioner is bad in law and required to be interfered with. 4. Per contra, learned APP Ms. Ashar has raised several contentions and has disputed the averments made in the present petition. She has also relied on the affidavit-in-reply filed by the respondent authority and has pointed out from the affidavit-in-reply that the petitioner has challenged his dismissal order dated 21.9.1999 and the order of appeal dated 23.3.2004, whereas the petition is filed on 31.5.2011 i.e. after a delay of seven years from the date of order passed in appeal and the petition is required to be dismissed on this sole ground only. She has further submitted that in the order passed by the respondent authority dated 9.3.2011, the authority has clarified that neither the representation dated 17.5.2004 nor any other letter before 19.10.2010 was received by the office of the respondent. It is also required to be noted that the petitioner being Class II officer, the authority can review his case, the case of the petitioner was reviewed by the authority. Therefore, once the case of the petitioner is reviewed, the same matter cannot be reviewed again by the same authority. 4.1 She has further submitted that the petitioner was charged with different charges in the chargesheet and most of them were proved and therefore the order passed by the authority is just and proper and not required to be interfered with. She has further submitted that the petitioner has joined services as Junior Clerk and thereafter he had appeared in the exam for direct recruitment of TDO and therefore, he being directly recruited person, there is no question of reverting him to a junior post. She has further submitted that during the period of probation, if any irregularity or illegality is found then the person can be removed from the services by giving notice only. In the present case, the respondent authorities have followed procedure of departmental inquiry, even though the petitioner was on probation. She has further submitted that during the period of probation, if any irregularity or illegality is found then the person can be removed from the services by giving notice only. In the present case, the respondent authorities have followed procedure of departmental inquiry, even though the petitioner was on probation. Therefore, the petitioner is not having any right of challenging the action of dismissal. 4.2 She has also pointed out from the inquiry report by mentioning that the defence witness cited by the petitioner himself, Shri G.D. Thaker who has deposed on 30.9.1995 has supported the version of the respondent authority and has also supported the factum that in the year 1990-91, the petitioner has granted loans/financial assistance in 144 cases of 11 villages. In addition to that, 38 other persons of Bildi village who are not included in the project are also provided loans and this shows the volume of the misdeed of the present petitioner. In any case, the disciplinary authority has given cogent and convincing reason for arrival of such punishment which cannot be considered as harsh or disproportionate from any angle looking to the gravity of the offence, which is also confirmed by the appellate authority and therefore, she has submitted that there is no case made out for any interference by this Court and the petition deserves to be dismissed. 5. I have considered the rival submissions and I have also considered the submission that the representations made by the petitioner is not considered by the authority. With regard to that, I have perused the affidavit-in-reply wherein it is categorically stated that no such representation is received by the respondent authority. Even otherwise, for the sake of argument, if we believe that the representation is made in the year 2004, then also till 2010, the petitioner has done nothing and remained silent, which conduct also speaks about the delay on the part of the petitioner and therefore that contention is required to be negatived. 6. Even otherwise, for the sake of argument, if we believe that the representation is made in the year 2004, then also till 2010, the petitioner has done nothing and remained silent, which conduct also speaks about the delay on the part of the petitioner and therefore that contention is required to be negatived. 6. Further, there is substance in the submission of the learned AGP on behalf of the present respondent authority that though the dismissal order is passed in the year 1999 and the order of appeal is passed in 2004, the petitioner has remained negligent and not pursued the remedy till 2011, as the petitioner was serving in Class II cadre as TDO and challenge to such action of the respondent authority taken in the year 1999 which is confirmed by the appellate authority in appeal in 2004 after such long delay of seven years cannot be considered sympathetically and therefore the petition is apparently hit by principle of delay and laches. 7. With regard to the other contention about the non-compliance of Rule 9(17) of the Disciplinary Rules, from the perusal of the entire record and more particularly, the entire process of the disciplinary authority that though the petitioner was on probation and the department could have terminated the services of the petitioner by issuing simple notice for termination, instead of doing so, the department thought it fit to go for full-fledged inquiry. Moreover, the communication of the GPSC is formal in nature and such non-supply of the document is apparently not causing any harm to the rights of the petitioner. 8. Moreover, looking to the serious charges levelled against the petitioner, which are serious in nature and which are proved conclusively cannot be viewed lightly considering the fact that the post which was held by the present petitioner in the cadre of TDO is very responsible post. Therefore, I find that disciplinary authority, after holding full-fledged inquiry, has not committed any error in awarding the punishment which is also found in proportionate to the charges proved against the present petitioner. 9. With regard to the submission on behalf of the petitioner that the petitioner being on probation, the authority could have extended the probation for the charges levelled instead of imposing such harsh punishment cannot have any relevance in deciding the present petition in view of the above discussion. 10. 9. With regard to the submission on behalf of the petitioner that the petitioner being on probation, the authority could have extended the probation for the charges levelled instead of imposing such harsh punishment cannot have any relevance in deciding the present petition in view of the above discussion. 10. With regard to the citations cited by learned advocate for the petitioner, there cannot be any disagreement with regard to the principles laid down therein but those judgments are not applicable to the facts of the present case as the facts of the present case are totally different. 11. The order of dismissal of the respondent authority dated 21.9.1999 as well as the order of the appellate authority dated 23.3.2004 are found just, legal and with proper reasons and no arbitrariness is found so as to warrant interference by this Court by exercising powers under Article 226 of the Constitution of India. 12. Accordingly, this petition is dismissed. Rule is discharged. No order as to costs.