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2024 DIGILAW 1668 (GUJ)

District Development Officer v. S. H. Taviyad

2024-08-06

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : Vaibhavi D. Nanavati, J. 1. Heard Mr. H.S. Munshaw, learned advocate appearing for the petitioner and Ms. Mamta Vyas, learned advocate appearing for the respondent no.1. 2. By way of the present petition, the petitioner herein has challenged the order passed by the Gujarat Civil Service Tribunal, Gandhinagar in Appeal No.164 of 2008 dated 30.07.2011/01.08.2011 duly produced at Annexure-K. 3. Brief facts leading to the filing of the present petition read thus:- 3.1. The respondent no.1 born on 12.12.1961, having joined the service on 09.07.1984 and was granted inter-district transfer and accordingly, reported for duty on 17.01.1994 at Limkheda Taluka Panchyat. The respondent no.1 was an Extension Officer and appointed as administrator of Shasta Gram Panchayat, Taluka: Limkheda through order dated 27.07.2000 and he worked in that capacity till 27.02.2002. The respondent no.1 was administrator of the said Gram Panchayat wherein, it was found that there were number of financial irregularities and, therefore, a report dated 01.08.2003 was submitted by the Taluka Development Officer, Limkheda to the petitioner on 01.08.2003 subsequent to the instructions issued on 30.05.2002. The copy of report is duly produced at Annexure-A. 3.2. It is the case of the petitioner that the respondent no.1 misappropriated an amount to the tune of Rs.2,48,000/- in collusion with the then Talati-cum-Mantri - Mr. Rathod. The grant that was provided for public project was siphoned away. The chargesheet came to be issued to the respondent no.1 on 12.09.2003 in view of the fact that prima facie, it was found that the respondent no.1 was involved in serious irregularities. The same is duly produced at Annexure-B. 3.3. The respondent no.1 did not reply to the said chargesheet and in view thereof, the inquiry officer was appointed for initiating the departmental inquiry. The report was submitted on 31.12.2004 holding that the charges levelled against the respondent no.1 stood proved. Immediately thereafter, the show-cause notice was issued to the respondent no.1 on 27.01.2005 under Rule 8(11)(k) of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 (for short, the “said Rules”), which is duly produced at Annexure-D. 3.4. The letter was addressed to the Gujarat Panchayat Service Selection Board at Ahmedabad, seeking opinion on the issue of penalty and the same was replied to by the Board opining for the penalty of dismissal, which is duly produced at Annexure-E. 3.5. The letter was addressed to the Gujarat Panchayat Service Selection Board at Ahmedabad, seeking opinion on the issue of penalty and the same was replied to by the Board opining for the penalty of dismissal, which is duly produced at Annexure-E. 3.5. Considering the material on record and defense of the respondent no.1, the Gujarat Panchayat Service Selection Board thought it fit to impose the penalty of dismissal vide order dated 06.03.2006 at Annexure-F. The said order of dismissal was challenged by the respondent no.1 before the appellate authority i.e. the Additional Development Commissioner, Government of Gujarat by way of filing Appeal No.14 of 2006. The same came to be rejected on 31.08.2006. 3.6. Being aggrieved by the same, the respondent no.1 approached the Gujarat Civil Service Tribunal, Gandhinagar by preferring Appeal No.164 of 2008 but, vide order dated 21.04.2007, the learned Tribunal remanded the matter to the petitioner to initiate a fresh departmental inquiry. The said order is duly produced at Annexure-G. The petitioner herein initiated fresh inquiry by order dated 26.06.2007. The respondent no.1 represented his case by filing a reply on 28.10.2007. 3.7. The respondent no.1 was issued fresh notice on 09.01.2008 under Rule 8(11)(k) of the said Rules. The respondent no.1 offered explanation on 15.01.2008 in writing. The opinion of the Board was sought for the same charges of earlier departmental inquiry and in view thereof, fresh opinion was not sought for, considering the proved charges on the basis of the facts and record and order dated 01.02.2008 came to be passed, dismissing the respondent no.1 from service. The said order is duly produced at Annexure-J. 3.8. The respondent no.2 herein rejected Appeal No.9 of 2008 vide order dated 24.06.2008 to which, the respondent no.1 preferred Appeal No.164 of 2008, which came to be allowed by the learned Tribunal vide the impugned order dated 01.08.2011 which is the subject matter of challenge in the present petition wherein, the petitioner herein has prayed for the following reliefs:- “(A) Be pleased to admit the present Special Civil Application; (B) Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, mandamus or directions quashing and setting aside the judgment dated 30.7.11/1.8.11 passed by the Hon’ble Gujarat Civil Service Tribunal at Gandhinagar in Appeal No.164/08 annexed as Annexure-K in the interest of justice. (C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution & operation of Judgment dated 30.7.11/1.8.11 passed by the Hon’ble Gujarat Civil Service Tribunal at Gandhinagar in Appeal No.164/08 annexed as Annexure-K in the interest of justice. (D) Be pleased to call for the record of case bearing Appeal No.164/08 from the Hon’ble Gujarat Civil Service Tribunal at Gandhinagar. (E) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order.” 4. Mr. H.S. Munshaw, learned advocate appearing for the petitioner placed reliance on the aforesaid facts and submitted that the respondent no.1 herein was an administrator of the Shasta Gram Panchayat for a period between 27.07.2000 and 27.02.2002 and in control and supervision of the gram panchayat and it was the duty of the respondent no.1 to take care of all the projects of the gram panchayat given by the State Government and to see to it that huge grants made available by the State Government are utilized for implementation and execution of the projects. It is submitted that the respondent no.1 was signatory to the cheques in capacity of the administrator of the gram panchayat and was required to issue firstly cross check with full details about the projects and schemes for which the same were issued. It is submitted that in the facts of the present case, the respondent no.1 issued cheques to the tune of Rs.2,48,000/- for three public wells as well as construction of the rooms for primary school however, the said funds were misused and siphoned away by the Talati-cum-Mantri. 4.1. It is submitted that the aforesaid was a casual approach at the end of the respondent no.1 and in view thereof, the same resulted into non-compliance of the Rules and Regulations meant for administration of the gram panchayat, more particularly, in the case of financial discipline. It is submitted that the respondent no.1, while issuing the cheques, did not bother to know about the progress and execution of the projects for which, the cheques were issued. It is submitted that the respondent no.1, while issuing the cheques, did not bother to know about the progress and execution of the projects for which, the cheques were issued. It is submitted that the respondent no.1, who was in-charge for one and half years has not bothered to know the schemes and projects as well as the record maintained for it and it was in collusion with the Talati-cum-Mantri. It is submitted that the criminal case is also filed against the respondent no.1 as well as the Talati-cum-Mantri. It is submitted that the learned Tribunal ought to have appreciated the documentary evidence produced on record and the fact that the monitory loss caused to the gram panchayat by the aforesaid action of the respondent no.1. 5. Ms. Mamta Vyas, learned advocate appearing for the respondent no.1 submitted that no interference is called for in the impugned order passed by the respondent no.3. Reliance is placed on the affidavit-in-reply filed by the respondent no.1 wherein, it is submitted that the present petition is not maintainable at the instance of the District Development Officer. It is submitted that the representation filed by the respondent no.1 against the show-cause notice is not considered by the respondent authority which amounts to non-application of mind. Placing reliance on the ratio laid down by this Court in the judgment dated 22.11.2011 passed in Letters Patent Appeal No.1006 of 2006, it is submitted that it was necessary to obtain the opinion of the Gujarat Panchayat Service Selection Board and the opinion taken earlier was not sufficient. It is submitted that the fresh opinion should have been obtained and a copy thereof should have been given to the respondent no.1 in advance. 5.1. It is submitted that while passing the earlier order of dismissal on 06.03.2006 also, the respondent no.1 was not given copy of the advice of the Selection Board in advance. It is submitted that the learned Tribunal exercised its appellate powers under Section 11 of the Act and hence, the impugned order is passed upon appreciating the evidence on record and in view thereof, the learned Tribunal has rightly quashed the order of dismissal and no interference is called for in the said order. 6. In the rejoinder, Mr. It is submitted that the learned Tribunal exercised its appellate powers under Section 11 of the Act and hence, the impugned order is passed upon appreciating the evidence on record and in view thereof, the learned Tribunal has rightly quashed the order of dismissal and no interference is called for in the said order. 6. In the rejoinder, Mr. Munshaw, learned advocate submitted that the petitioner herein, in the statement, has accepted the fact that said cheques were issued by the respondent no.1 herein however, because of administrative exigencies, the respondent no.1 could not grant further time to the same. It is submitted that in view thereof, the impugned order is required to be quashed and set aside on the aforesaid ground alone. 7. Ms. Vyas, learned advocate submitted that the petitioner herein has never accepted the aforesaid and there is no admission on the part of the respondent no.1. It is also submitted that no amount is directed in the account of respondent no.1 or there is no evidence worth the name to show that the respondent no.1 has siphoned the amount for the interest of the respondent no.1. Placing reliance on the aforesaid, it is submitted that in absence of any evidence adduced by the petitioner herein, no interference is called for in the impugned order passed by the learned Tribunal. 8. Having heard the learned advocates appearing for the respective parties, it emerges that the respondent no.1 herein was an administrator of the Shasta Gram Panchayat. It was found that there were number of financial irregularities and, therefore, a report dated 01.08.2003 was submitted by the Taluka Development Officer, Limkheda to the petitioner on 01.08.2003 subsequent to the instructions issued on 30.05.2002. The said report stated that there was misappropriation of an amount of Rs.2,48,000/- in collusion with the then Talati-cum-Mantri – Mr. Rathod. The chargesheet came to be issued to the respondent no.1 on 12.09.2003. As the respondent no.1 did not reply to the said chargesheet, the inquiry officer was appointed for initiating departmental inquiry. The report was submitted holding respondent no.1 guilty of the charges levelled against respondent no.1 having been proved. Immediately thereafter, the respondent no.1 was issued the show-cause notice on 27.01.2005 under the provisions of Rule 8(11)(k) of the said Rules. As the respondent no.1 did not reply to the said chargesheet, the inquiry officer was appointed for initiating departmental inquiry. The report was submitted holding respondent no.1 guilty of the charges levelled against respondent no.1 having been proved. Immediately thereafter, the respondent no.1 was issued the show-cause notice on 27.01.2005 under the provisions of Rule 8(11)(k) of the said Rules. Considering the material on record, defense of the respondent no.1, inquiry report and the opinion having sought from the Gujarat Panchayat Service Selection Board, the petitioner herein thought it fit to impose the penalty of dismissal vide order dated 06.03.2006. The said order was challenged before the appellate authority i.e. the Additional Development Commissioner, Government of Gujarat by the respondent no.1 by filing Appeal No.14 of 2006, which came to be rejected on 31.08.2006. 9. The respondent no.1 preferred appeal and in the said appeal, vide order dated 21.04.2007, the learned Tribunal remanded the matter back to the petitioner to initiate fresh departmental inquiry. The petitioner herein issued fresh notice on 09.01.2008 under Rule 8(11)(k) of the said Rules. The respondent no.1 offered explanation on 15.01.2008 in writing. The petitioner did not seek fresh opinion of the Gujarat Panchayat Service Selection Board and proceeded to pass the order of dismissal of the respondent no.1 from the service on 01.02.2008. The respondent no.1 preferred Appeal No.9 of 2008, which came to be rejected by order dated 24.06.2008. The respondent no.1 challenged the said order before the learned Tribunal wherein, the said appeal came to be allowed by the learned Tribunal by the impugned order dated 01.08.2011. While passing the impugned order, the learned Tribunal, considering the evidence on record and the facts germane for adjudication of the dispute, allowed the appeal filed by the respondent no.1, directing the petitioner herein to reinstate the respondent no.1 at his original post with the benefit of continuity of service from the date of his dismissal from service and as a result of reinstatement, it was ordered to pay the respondent no.1 herein the consequential benefits as accrued. 9.1. In light of the aforesaid, it emerges that the District Development Officer, who is the petitioner before this Court and the officer, whose order has been set aside by the learned Tribunal, is bound by the decision of the learned Tribunal. 9.1. In light of the aforesaid, it emerges that the District Development Officer, who is the petitioner before this Court and the officer, whose order has been set aside by the learned Tribunal, is bound by the decision of the learned Tribunal. The aforesaid was considered by this Court in Special Civil Application No.6003 of 1987 wherein, it was held that “It appears that against the order passed by the then D.D.O., an appeal was preferred to the Gujarat Civil Services Tribunal by the employee, who was dissatisfied by the order of the D.D.O. and that appeal was allowed by the Tribunal and against that order, the D.D.O. had filed Special Civil Application. 9.2. It emerges that the order passed by the learned Tribunal under Section 16(2) of the Gujarat Civil Services Tribunal Act, 1972 does not provide for any appeal by the concerned officer. Neither the Panchayat Rules nor the Gujarat Civil Services Tribunal Act provide for an appeal by the concerned officer. When the Legislature did not think it proper to provide for an appeal by the officer, whose order has been set aside in appeal and when the Rule making authority did not deem it fit to provide for an appeal by the officer, whose order has been set aside by the appellate authority, it is questionable whether such petition would be maintainable under Article 226 of the Constitution of India. 9.3. The learned Tribunal, while passing the impugned order dated 30.07.2011/01.08.2011 in Appeal No.164 of 2008, quashing and setting aside the orders dated 01.02.2008 and 24.06.2006, has considered the facts of the case and the documentary evidence. Upon perusal of the record of the departmental inquiry, the learned Tribunal held as under:- (A) The Presenting Officer has cross-examined delinquent - Mr. Taviyad i.e. the respondent no.1 herein on 18.10.2007, who has submitted his written statement in his defense. On perusal of the rojkam, the learned Tribunal held that the Presenting Officer neither recorded the statement of any witness nor produced any evidence. The learned Tribunal has further held that it is the responsibility of the department to prove the charges i.e. to prove evidence thereof and the Presenting Officer cannot interrogate the delinquent. On perusal of the rojkam, the learned Tribunal held that the Presenting Officer neither recorded the statement of any witness nor produced any evidence. The learned Tribunal has further held that it is the responsibility of the department to prove the charges i.e. to prove evidence thereof and the Presenting Officer cannot interrogate the delinquent. Without taking into consideration the previous judgment, the Presenting Officer once again interrogated the delinquent i.e. respondent no.1 herein and has not produced any of his evidence prior to that and in view thereof, failed to comply with the previous order rendered by the learned Tribunal. In light of the aforesaid, the learned Tribunal has held that the Presenting Officer and investigating officer have conducted the procedure of departmental inquiry without having knowledge of law. When the evidence has not been taken by the department in case of departmental inquiry, the inquiry officer cannot give such findings in his report that the charges have been proved and such finding, without any evidence is baseless and on such grounds, the impugned order of awarding punishment cannot be passed. (B) Upon issuance of the show-cause notice on 09.01.2008, the respondent no.1 submitted detailed explanation on 15.01.2008. Upon considering the documents on record, the learned Tribunal has held that the disciplinary authority has not cared to consider the explanation of the delinquent employee. It is held that the employee has produced the fact that he has not been given opportunity to cross-examine the witnesses and thereby, the aforesaid is a significant fact. It is also held that “In his report, the investigating officer believed the charge of withdrawing of Rs.14000/- on 29.03.2002 as proved. However, I was not administrator at that time and this cheque has been issued by the Sarpanch. Thus, the investigating officer has falsely believed this charge against me without verifying the duration or timing of my duty.” (C) The learned Tribunal held that the aforesaid defense discloses the significant fact before the disciplinary authority and with regard to the facts stated by the respondent no.1 herein, the disciplinary authority was required to take decision of awarding punishment after verifying and studying the entire record. Considering the aforesaid, the learned Tribunal has held that when the disciplinary authority awards major punishment on the basis of the facts without verifying the record, the delinquent employee has to face dire consequences for life time. Considering the aforesaid, the learned Tribunal has held that when the disciplinary authority awards major punishment on the basis of the facts without verifying the record, the delinquent employee has to face dire consequences for life time. (D) In the facts of the present case, the disciplinary authority has not carried out any such verification of the departmental inquiry record in respect of the explanation submitted by the delinquent employee i.e. the respondent no.1 herein and has lightly passed the order of major punishment. In absence of vital issues having been failed to be considered by the disciplinary authority and the order having been passed without evidence, punishment of dismissal awarded to the respondent no.1 herein came to be quashed and set aside. 10. It emerges that the learned Tribunal, while passing the impugned order, has considered the documents on record. It is apposite to refer to the impugned order passed by the learned Tribunal. Paragraphs 7.2 to 8 of the said order read thus:- “(7.2) In this regard, if the proceeding of the departmental inquiry on record is considered, the Presenting Officer has conducted the cross-examination of the delinquent Mr. Taviyad on 18/10/07, who has submitted his written statement in his defence. Prior to this, the Presenting Officer has not recorded the statement of any witness, and neither he has produced any evidence nor he has stated that he wants to produce any evidence. It becomes very clear from the Rojkam. It is a question whether the evidence of the delinquent employee can be recorded until the Presenting Officer produces his evidence in a departmental inquiry. And in these circumstances, it is a question whether the Presenting Officer can conduct the cross-examination of the delinquent employee or not. It has been clarified by this Tribunal that the responsibility of proving the charges, i.e. the responsibility of submitting the evidence for first time lies with the department and the Presenting Officer cannot ask questions to the delinquent employee. Without considering the earlier judgments, the Presenting Officer has again asked questions of cross-examination to the delinquent employee. Prior to this, he has not produced any of his evidences, and thereby, he has not complied with the earlier judgment delivered by this Tribunal by understanding its essence. In these circumstances, the Presenting Officer and the Inquiry Officer have conducted the procedure of the departmental inquiry with complete ignorance of law and rules. Prior to this, he has not produced any of his evidences, and thereby, he has not complied with the earlier judgment delivered by this Tribunal by understanding its essence. In these circumstances, the Presenting Officer and the Inquiry Officer have conducted the procedure of the departmental inquiry with complete ignorance of law and rules. In these circumstances, as no evidence has been recorded by the department in the departmental inquiry, the Departmental Inquiry Officer cannot give findings of proving the charges in the report and such findings without evidence is considered as baseless and perverse and no order of penalty can be made on the basis of the same. (7.3) The copy of the report was given to the appellant along with the show-cause notice dated 09/01/08 issued to him. The appellant submitted the explanations of the said show-cause notice as well as of this notice on 15/01/08. The appellant has made a detailed representation in the said explanation. However, the Disciplinary Officer has not made deliberation with respect to the facts such as, whether any evidences have been produced to come to the findings as per the facts mentioned in the report with respect to the facts submitted by the appellant in the said explanation, as to how the procedure of the departmental inquiry was conducted in that regard, whether the procedure of the departmental inquiry has been conducted as per the rules and whether the findings have been given thereafter or not, nor has he made any note along with reasons after making such deliberation in the order of penalty. It means that, as the Disciplinary Officer might not have even bothered to consider the explanation given by the delinquent, the said employee has submitted the fact that the opportunity of cross-examination has not been given after examining the witnesses in this departmental inquiry, and has produced an important fact in this manner. “The Inquiry Officer considered the charge against me of withdrawal of Rs.14000/- on 29/03/02 as proved in his report. But at that time, I was not the administrator at all and the said cheque has been written by the Sarpanch. “The Inquiry Officer considered the charge against me of withdrawal of Rs.14000/- on 29/03/02 as proved in his report. But at that time, I was not the administrator at all and the said cheque has been written by the Sarpanch. The Inquiry Officer has considered the charge without checking the time of my duty.” This defence produces an important fact before the Disciplinary Officer in the explanation regarding which the Disciplinary Officer has to take the decision of penalty with respect to the facts stated by the delinquent after complete examination of the record and complete study of the report. The Disciplinary Officer imposes a serious and ultimate penalty of dismissal and passes an order for recovery of Rs.1,24,000/-. If the Disciplinary Officer quite easily imposes a penalty having grave consequence in the life of the employee only by noting the facts asked and without checking the records, its consequences in the life of the employee will be very serious. This fact is required to be considered before passing the order of penalty. The Disciplinary Officer has not checked any such record, nor he has carried out the procedure of checking the record of the departmental inquiry with respect to the explanation of the delinquent, and in this manner, he has passed the order of imposing the ultimate penalty very lightly. It is evident from the record that all these issues have also not been taken into consideration in the first appeal. In these circumstances, as the evidence of misconduct does not appear in the departmental inquiry and the procedure of the departmental inquiry is vitiated and the findings of the Inquiry Officer are given without evidence, the penalty cannot be imposed on the basis of the same. Further, two penalties cannot be imposed together. In such circumstances, it appears that as the said order is completely unlawful and inappropriate, it is liable to be cancelled. (8) For the above stated reasons following order is passed. // Order // The appeal of the appellant is granted. The order dated 01/02/08 passed by the Respondent No.1, District Development Officer, Dahod, imposing penalty of dismissal on the appellant and the order dated 24/06/06 passed by the Respondent No.2 confirming the said penalty in the First Appeal are held unlawful and inappropriate and the same are cancelled. The Respondents in this case are ordered to reinstate the appellant Mr. The order dated 01/02/08 passed by the Respondent No.1, District Development Officer, Dahod, imposing penalty of dismissal on the appellant and the order dated 24/06/06 passed by the Respondent No.2 confirming the said penalty in the First Appeal are held unlawful and inappropriate and the same are cancelled. The Respondents in this case are ordered to reinstate the appellant Mr. S.H. Taviyad on his original post from the date of dismissal with continuation of service. Further, the order is passed to pay the consequential and ancillary benefits as a result of reinstatement. Pronounced on July 30, 2011.” 11. The contention raised by Ms. Vyas, learned advocate for the respondent no.1 that the present petition is not maintainable at the instance of the District Development Officer was considered in an identical issue raised in Special Civil Application No.6003 of 1987. It is apposite to the refer to the relevant part of the said order, which reads as under:- The first question which arises for consideration is whether this petition under Article 226/227 of the Constitution is maintainable. The learned advocate Mr. P.B. Majmudar drew my attention to the order passed by this Court in Special Civil Application No.344 of 1978 preferred by the then D.D.O., Vadodara against the order of the Services Tribunal and that Special Civil Application was dismissed by this Court at the admission stage on 06.03.1978 observing that the D.D.O. has no locus standi to file the petition. No reasons have been given while taking this view and hence, it is not possible to ascertain as to what were the reasons for which this view was taken by this Court at the time of dismissing the said petition. It appears that against the order passed by the then D.D.O. an appeal was preferred to the Gujarat Civil Services Tribunal by the employee who was dissatisfied with the order of the D.D.O. and that appeal was allowed by the Tribunal and against that order the D.D.O. came before this Court by filing Special Civil Application. In the present case, the respondent preferred appeals to the Development Commissioner under Rule 19 of the Gujarat Panchayats Service (Discipline & Appeal) Rules, 1964 and those appeals were decided by the Addl. Development Commissioner, as stated earlier. Sub-rule (3) of Rule 19 says that the order passed by the appellate authority under Rule 19 shall be final. In the present case, the respondent preferred appeals to the Development Commissioner under Rule 19 of the Gujarat Panchayats Service (Discipline & Appeal) Rules, 1964 and those appeals were decided by the Addl. Development Commissioner, as stated earlier. Sub-rule (3) of Rule 19 says that the order passed by the appellate authority under Rule 19 shall be final. It appears that even against the original or appellate orders of the officers passed under the Panchayat Act or the Rules, an appeal is provided by sections 11 and 12 of the Gujarat Civil Services Tribunal Act, 1972. Section 11 provides for appeal by a specified civil servant if he is aggrieved by the original or appellate order, while section 12 provides for an appeal by the State Government. It is pertinent to note that neither the Panchayat Rules nor the Civil Services Tribunal Act provide for an appeal by the concerned officer. When the Legislature did not think it proper to provide for an appeal by the officer whose order has been set aside in appeal and when the rule-making authority also did not think it proper to provide for an appeal by the officer whose order was set aside by the Appellate Authority, it is doubtful whether the officer whose order has been set aside by the Appellate Authority can approach this Court by filing an application under Article 226 or 227 of the Constitution. It is in this light that probably this Court dismissed the Special Civil Application earlier by observing that the D.D.O. had no locus standi. Even if we may say so that he has locus standi to file such a petition, in my opinion, such a petition should not be entertained. An officer whose order has been set aside by the Appellate Authority is bound by the said decision and he cannot make a grievance before any other authority that the Appellate Authority has wrongly set aside his order. If there are any remarks made against that officer while disposing of the appeal by the Appellate Authority, he may certainly have some remedy for getting the remarks expunged. But when the matter is decided on its own merits, the officer whose order is set aside cannot, by any stretch of imagination, approach this Court and say that the orders of the Appellate Authority are not correct either on facts or on law. But when the matter is decided on its own merits, the officer whose order is set aside cannot, by any stretch of imagination, approach this Court and say that the orders of the Appellate Authority are not correct either on facts or on law. In that sense, the D.D.O. has no locus standi to file this petition. This petition, therefore, deserves to be rejected on this ground alone. But assuming for the sake of argument that this petition is maintainable, then also I am inclined to dismiss the same at the admission stage for the reasons which I have recorded in the order passed today in Special Civil Application No.5420 of 1987. As discussed in that order, it is doubtful whether an Aval Karkun who has been appointed as head Clerk can be transferred back as Aval Karkun. Apart from this, there is no post of Head Clerk in the same scale with the Rural Development Agency to which the respondent was transferred by the second order passed by the D.D.O. The material produced in that petition shows that there is no such post available on the establishment of the Rural Development Agency. There is no post even of any Head Clerk on that establishment, as discussed therein. In view of this, this petition deserves to be dismissed at the admission stage and is accordingly dismissed at the admission stage. Before parting with this order, I am constrained to observe here that the D.D.O., Vadodara took a very unusual attitude in not complying with the orders passed by the Appellate Authority, viz. Additional Development Commissioner. The D.D.O. passed an order on 30.04.1987 which was set aside by the Addl. Development Commissioner in Appeal No.42 of 1987 by the order dated 04.06.1987 and directed the D.D.O. to give appointment to the respondent as Head Clerk on the establishment of the Panchayat. Thereafter, even though no post of Head Clerk was available on the establishment of Rural Development Agency to which the respondent could be posted, the D.D.O. surprisingly enough passed an order on 05.06.1987 posting the respondent on the establishment of Rural Development Agency. This shows that he wanted to avoid and defy the orders passed by the Addl. Development Commissioner. This order passed by the D.D.O. was required to be set aside by the Addl. Development Commissioner in Appeal No.63 of 1987 by order dated 06.07.1987. This shows that he wanted to avoid and defy the orders passed by the Addl. Development Commissioner. This order passed by the D.D.O. was required to be set aside by the Addl. Development Commissioner in Appeal No.63 of 1987 by order dated 06.07.1987. Inspite of the order passed on 06.07.1987 by the Addl. Development Commissioner giving directions to the petitioner to post the respondent as Head Clerk as directed in the earlier appeal and directing the petitioner to pay salary to the respondent from 02.05.1987 treating the period from 02.05.1987 till the date of posting as Head Clerk on the establishment of the Panchayat as joining time, the D.D.O. did not care to obey those directions given by the Appellate Authority. The D.D.O. did not comply with the said orders and, therefore, the respondent was constrained to file Special Civil Application No.5420 of 1987 on 12.10.1987. It appears that the petitioner moved the Government to file appeal before the Services Tribunal as provided by the Gujarat Civil Services Tribunal Act. Even if, in the opinion of the petitioner, the order passed by the Addl. Development Commissioner was required to be challenged by either moving the Government to file an appeal before the Services Tribunal or by filing this petition, the petitioner should have obeyed the orders passed by the Addl. Development Commissioner. He could not have himself stayed the order passed by the Addl. Development Commissioner in appeals. Such attitude adopted by the D.D.O. showing complete defiance of the orders of the Addl. Development Commissioner. It is not understood why the D.D.O. took up such attitude inspite of the orders passed by the Addl. Development Commissioner in appeals. A copy of this order may be sent to the Chief Secretary, Government of Gujarat for information and such action as may be deemed fit.” 12. In light of the aforesaid position of law, in the opinion of this Court also, the petitioner herein passed the order of imposing penalty of dismissal on 06.03.2006 at Annexure-F. The said order was the subject matter of appeal before the appellate authority i.e. the Additional Development Commissioner, Government of Gujarat by filing Appeal No.14 of 2006, which was rejected on 31.08.2006. The said order was challenged before the learned Tribunal whereby, by order dated 21.04.2007, the learned Tribunal remanded the matter back to the petitioner to initiate a fresh departmental inquiry. The said order was challenged before the learned Tribunal whereby, by order dated 21.04.2007, the learned Tribunal remanded the matter back to the petitioner to initiate a fresh departmental inquiry. Upon such direction issued by the learned Tribunal, the petitioner herein once again passed the order, dismissing the respondent no.1 herein on 01.02.2008. The respondent no.1 once again preferred appeal being Appeal No.9 of 2008 before the appellate authority, which was rejected by order dated 24.06.2008. 12.1. Being aggrieved by the said order passed by the appellate authority, the respondent no.1 preferred an appeal being Appeal No.164 of 2008 before the learned Tribunal, which was allowed by order dated 30.07.2011. 12.2. In opinion of this Court, the facts of the present case are identical to Special Civil Application No.6003 of 1987 wherein, identical issue came to be considered. The petitioner herein, rather than complying with the directions of the appellate authority, has filed the present petition, challenging the order passed by the learned Tribunal. 12.3. The question of maintainability of a writ petition by the subordinate authority is considered by the Apex Court and the High Court in various decisions. It is apposite to refer to the ratio laid down by the Apex Court in the case of Jain Exports Pvt. Ltd. vs. Union of India reported in AIR Online 1988 SC 15. Paragraphs 10 and 11 thereof, read as under:- “10. Massive arguments were built up by learned counsel for the appellants on the basis that the decision of the Central Board and the Central Government rendered in similar matters were binding on the collector and he could not have acted to the contrary. Several precedents have been cited during the hearing. In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi-judicial Tribunals are also bound by this discipline. 11. In Broome v. Cassell and Co., [1972] 1 AER 801, the Lord Chancellor delivering the opinion of the House observed: "I hope it will never be necessary to say so again that in the herichical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." 12.4. It is apposite to refer to the ratio laid down by this Court in the case of Regional Provident Fund Commissioner Vs. It is apposite to refer to the ratio laid down by this Court in the case of Regional Provident Fund Commissioner Vs. Employees Provident Fund Appellate Tribunal and another reported in AIR Online 2023 GUJ 2447. Relevant part thereof, reads as under:- “6. Thus, the principle is that the authority which has adjudicated the lis and has passed the order in exercise of quasi judicial powers vested in it will not be entitled to challenge such order before the higher court. Neither such authority has locus standi nor it can said to have litigative interest to call in question the order where the dispute was adjudicated by itself exercising quasi judicial powers.” 12.5. It is apposite to refer to the ratio laid down in the case of Perfect Importers and Distributors (India) P. Ltd. and another vs. Union of India reported in 2022 SCC OnLine Guj 2304. Paragraphs 9, 10 and 13 thereof, read as under:- “9. Law on the subject is no more res integra as this Court as well as the Apex Court has time and again held that the directions given by the higher authority is binding upon the lower authority and therefore, such directions cannot be ignored on any count. Respondent no.2 was bound to pass the order-in-original upon remand made by the appellate authority vide order dated 22.01.2019. The attempt on part of the respondent no.2 to justify that the petitioners are not entitled to refund in the affidavit in reply cannot be sustained. 10. The respondent no.2 in the affidavit in reply has disclosed the grounds for not granting refund to the petitioners justifying the stand of the respondents for not passing the order in original after remand and has reiterated that the order dated 15.03.2018 rejecting the refund claim was just and proper though the same order is quashed and set aside by appellate authority by order dated 22.01.2019. Such attitude and action of the respondent no.2 authority is required to be deprecated as the same is contrary to the judicial propriety. 13. Such attitude and action of the respondent no.2 authority is required to be deprecated as the same is contrary to the judicial propriety. 13. We are therefore of the opinion that as the respondent authority has not carried out the directions issued by the appellate authority and has tried to justify the order which is set aside by filing the affidavit in reply on merits in this proceeding, it would be a futile exercise to direct the respondent n.2 for passing the order as per the directions of the appellate authority.” 12.6. Rules 14(1) of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 provides that a member of the panchayat service may appeal against an order imposing any penalty other than suspension on him to the authority specified as appellate authority in the Appendix Appended to those rules within a period of forty five days from the date on which he receives the order. It further provides that the appellate authority may entertain an appeal after expiry of the said period, if it is satisfied that the appellant has had sufficient cause for not submitting the appeal in time. 12.7. Rule 19 of the said Rules provides that the authority which made the order appealed against, shall give effect to the orders passed by the appellate authority. 12.8. Rule 20 of the said Rules provides that where an appeal has been preferred and an order is passed thereon by an authority specified in column 5 of the Appendix second appeal against the decision in such first appeal, shall lie to the authority specified in column 6 of the said Appendix. Such second appeal may be preferred within a period of forty five days from the date of the receipt of the order passed in first appeal. 12.9. On perusal of the aforesaid Rules, it appears that neither the Panchayat Rules nor the Gujarat Civil Services Tribunal Act provide for an appeal by the concerned officer. When the Legislature did not think it fit to provide for an appeal by the officer, whose order is set aside, it is questionable whether such an officer can approach this Court by filing an application under Article 226 of the Constitution of India. 12.10. Mr. When the Legislature did not think it fit to provide for an appeal by the officer, whose order is set aside, it is questionable whether such an officer can approach this Court by filing an application under Article 226 of the Constitution of India. 12.10. Mr. Munshaw, learned advocate for the petitioner placed reliance on the order dated 28.06.2022 passed by the Division Bench of this Court in Letters Patent Appeal No.517 of 2022 wherein, appeal filed by the District Development Officer was entertained by the Division Bench of this Court. 12.11. Assuming that the petition is held to be maintainable, the petition is required to be dismissed for the reasons recorded by the learned Tribunal, which do not require any interference. 13. The learned Tribunal has considered the significant question for determination wherein, it is alleged against the respondent no.1 that the respondent no.1 has been instrumental in siphoning the amount of Rs.2,48,000/-. The learned Tribunal held that the disciplinary authority ought to have verified the aforesaid before awarding the punishment of dismissal with recovery of the amount of Rs.1,24,000/-. 14. Under the aforesaid circumstances, the learned Tribunal held that the entire departmental inquiry and the procedure of the departmental inquiry is vitiated and the punishment is awarded without evidence and that, two punishments cannot be imposed simultaneously. 15. Considering the aforesaid facts, the learned Tribunal proceeded to quash the order dated 01.02.2008 passed by the petitioner herein and the order dated 24.06.2006 passed by the respondent no.2 herein in first appeal. 16. This Court has also considered the documents that are produced on record and on perusal of the same, this Court is not inclined to sit in appeal over the order passed by the learned Tribunal. This Court does not find any infirmity in the order passed by the learned Tribunal and in light of the aforesaid, no case is made out to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. 17. Ms. Vyas, learned advocate submitted that the petitioner herein has been retired from the service pending the present petition. 18. In light of the aforesaid, the petitioner is entitled to all the consequential retirement benefits accrued in favour of the petitioner. 19. For the foregoing reasons, the present petition fails and the same is dismissed. Interim relief, if any, stands vacated. Rule is discharged.