Gujarat High Court
Sn Mirza vs State Of Gujarat on 25 February, 2005
Author: Akil Kureshi
Bench: Akil Kureshi
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 1339 of 2005
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SN MIRZA
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 1339 of 2005
NANAVATY ADVOCATES for Petitioner No. 1
GOVERNMENT PLEADER for Respondent No. 1-2
MR KASHYAP R JOSHI for Respondent No. 3
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CORAM : HON'BLE MR.JUSTICE AKIL KURESHI
Date of Order: 25/02/2005
ORAL ORDER
In the present petition, the petitioner has challenged order dated 24th January, 2005, by which he is ordered to be dismissed from service.
2.The petitioner was working as an Executive Engineer with the respondent No.3 Bharuch Nagar Palika. For certain alleged misconduct, the petitioner was served with a charge-sheet dated 24th July, 2001. The charge levelled against the petitioner was with respect to his involvement in misappropriation of funds of the respondent No.3. By subsequent order dated 24.11.2001, the petitioner was also placed under suspension. Though the charge-sheet has not been produced by the petitioner, the charges levelled against him have been reproduced extensively in the enquiry officer's report from which it can be seen that there were two charges levelled against the petitioner. The first charge was with respect to the failure on the part of the petitioner in issuing a legal notice against the contractor who had performed defective construction work for the Municipality. The second charge levelled against him was with respect to his involvement in misappropriation of funds.
3.At the end of the enquiry, the enquiry officer submitted his report dated 16.2.2004. In the said HC-NIC Page 1 of 4 Created On Sun Aug 20 03:57:39 IST 2017 report, the enquiry officer came to the conclusion that charge No.1 against the petitioner is proved, whereas charge No.2 levelled against the petitioner is not proved.
4.The disciplinary authority however, intended to disagree with the finding of the enquiry officer in so far as the same exonerated the petitioner of the second charge. Since the disciplinary authority was in the process of passing the final order of punishment without indicating its tentative decision and short reasons in support thereof and without giving any opportunity of being heard to the petitioner, he approached this Court by filing Special Civil Application No. 14934 of 2004. This petition came to be disposed of by an order dated 12.1.2005. By the said order, this Court set aside the communication dated 1.11.2004, seeking to dismiss the petitioner from service principally on the ground that the said decision was taken by the disciplinary authority holding that the charges against the petitioner are proved without giving an opportunity to the petitioner to make his representation with respect to this aspect of the matter when the enquiry officer had found that the second charge against the petitioner was not proved. The Court however, permitted the disciplinary authority to pass a fresh order in accordance with law after permitting the petitioner to make an additional representation if he so desired.
5.It appears that the petitioner made his additional representation on 24.1.2005. The Chief Officer of the Nagar Palika by the impugned order dated 24.1.2005, conveyed to the petitioner that the Nagar Palika does not agree with the enquiry officer's report and comes to the conclusion that the charges against the petitioner are proved and he is therefore, dismissed from service.
6.Challenging the said order, learned Counsel for the petitioner submits that the contentions raised by the petitioner in his representations submitted to the Nagar Palika have not been taken into account. It is contended that the enquiry officer had found that the charge of misappropriation of funds is not proved. The petitioner made his representations in response to the notice issued by the Nagar Palika and raised several grounds as to why the finding of the enquiry officer should not be disturbed. It is contended that the impugned order has been passed in total disregard to the contentions raised by the petitioner in his representations.
HC-NIC Page 2 of 4 Created On Sun Aug 20 03:57:39 IST 2017 Additionally it is contended that the State Government, by Notification dated 18.1.2005, had appointed an administrator to take charge of the Nagar Palika since the term of the elected body of Nagar Palika was to expire on 23.1.2005. The said Notification clearly provides that the administrator will take charge and exercise the powers and perform duties of Bharuch Municipality from 23.1.2005 (after noon). It is contended that when the administrator is already appointed and have taken over charge with effect from 23.1.2005, it was not open for the Bharuch Municipality to pass any order on 24.1.2005.
7.Counsel for the petitioner further points out that the respondent No.3 has dragged the departmental proceedings against the petitioner for long and since 2001, the petitioner is continued under suspension and the respondent No.3 is passing illegal orders only to keep the petitioner out of service. She points out that earlier the petitioner had approached this Court by filing Special Civil Application No. 5632 of 2003. This petition came to be disposed of by an order dated 26th July, 2004, by which this Court was pleased to direct the disciplinary proceedings to be completed within 3 months. She therefore, submits that the enquiry proceedings have been dragged endlessly against the petitioner and that he should not be made to suffer any longer.
8.Appearing for the respondent No.3, learned Advocate Shri K.R. Joshi sought to support the impugned order. He points out that the powers of the elected body of the Bharuch Municipality were delegated in favour of the Chief Officer and therefore, the Chief Officer was well within the powers to pass impugned order. He submits that the representations of the petitioner were taken into account by the Municipality and that therefore, the procedure as required under the law was properly followed.
9.Having considered the rival submissions, I find prima-facie case in favour of the petitioner. Hence, RULE.
10.I also find that there is absolutely no dispute about the fact that the State Government had appointed an administrator to take charge of the Municipality with effect from 23.1.2005 and administrator had in fact taken over charge on 23.1.2005 (afternoon). This aspect has been admitted by the respondent No.3 in his affidavit-in-reply also. Even otherwise there is no dispute about the fact that the term of the elected body HC-NIC Page 3 of 4 Created On Sun Aug 20 03:57:39 IST 2017 of the Bharuch Nagar Palika had come to an end with effect from 23.1.2005. Therefore, it is clear that neither elected body of the Municipality, nor its Chief Officer as a delegate of the powers, as suggested by the learned Counsel for the respondent No.3, would have any power to pass any order after that date. Counsel for the respondent No.3 also conceded that the order of dismissal was passed on 24.1.2005 and that it is not a mere communication of an earlier decision taken by the Municipality. In fact this is also clear from the impugned order itself, since the order takes into account the representation made by the petitioner on 24.1.2005. In that view of the matter, the order passed by the respondent No.3 is ex-facie illegal and without jurisdiction. During the pendency of the petition therefore, by way of interim relief the same is stayed. I have also prima-facie found substance in the contentions of the learned Counsel for the petitioner that the representations made by the petitioner were not considered by the authorities before passing the impugned order. Earlier also an attempt was made to dismiss the petitioner from service, but however, this action came to be set aside in the earlier matter. It would therefore not be desirable to continue the petitioner under suspension after his reinstatement pursuant to this interim order. It will be open for the administrator to assign non-sensitive duties to the petitioner. Direct service permitted.
(Akil Kureshi, J.) */Mohandas HC-NIC Page 4 of 4 Created On Sun Aug 20 03:57:39 IST 2017