Gujarat High Court
Krishnakant Ramanlal Desai (Deceased) vs State Of Gujarat on 15 February, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17613 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
KRISHNAKANT RAMANLAL DESAI (DECEASED)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR CJ VIN(978) for the Petitioner(s) No. 1.1,1.2
MR SANJAY UDHWANI, AGP for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR SHALIN MEHTA, SR. ADVOCATE with MR HEMANG M SHAH(5399)
for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 15/02/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Page 1 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined Heard learned advocate Mr. C.J. Vin for the petitioners, learned Assistant Government Pleader Mr. Sanjay Udhwani for respondent no.1 State and learned senior advocate Mr.Shalin Mehta assisted by learned advocate Mr. Hemang Shah for the respondent no.2, at length.
2. In the present petition filed under Article 226 of the Constitution, the petitioner has prayed to call for the record and proceedings of Inquiry Case No. 2 of 1991, further prayed is to set aside the said inquiry proceedings, which resulted into order of dismissal dated 25.01.1995 passed against the petitioner by contending that the said inquiry proceedings and the order of dismissal are illegal.
2.1 It is next prayed to set aside the order dated 31.01.1996, communicated on 01.02.1996, whereby the review petition of the petitioner preferred under Rule 24 of the Gujarat Civil Services (Conduct and Appeal) Rules, 1971, came to be rejected by the competent authority of the Legal Department.
2.2 Yet another prayer was made to set aside the order dated 24.12.2010, whereby the representation seeking voluntary retirement made by the petitioner came to be rejected.
Page 2 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined
3. The petitioner was a judicial officer who was selected initially as Civil Judge (Junior Division) and Judicial Magistrate, First Class, at Nadiad, Kheda. Subsequently, the petitioner came to be selected as Assistant Judge, Baroda, the link Court at Chhotaudepur, which was conducted for 14 days. During the said tenure of the petitioner as Assistant Judge, Baroda, Regular Civil Suit No. 4 of 1989 was pending before his Court for hearing the application below exhibit 5 for injunction, which was kept for hearing on different dates. The controversy involved therein was under the Design Act. On 25.10.1989, the order was pronounced in the said application.
3.1 Learned advocate named Mr.Sharad Bansilal Vakil appearing in the said proceedings on behalf of one of the parties filed a complaint dated 12.03.1990 addressed to the then Hon'ble Chief Justice of the High Court. In the detailed complaint, it was inter alia highlighted by the complainant-lawyer that the Rojkam was tampered with and an artificial attempt was made to produce evidence that the interim application was made on a particular date. After narrating the details of the happenings, the complainant stated that, "In view of the state of record of the trial In court and the said A.O. No.381 of 1989 of this Hon'ble Court it would be necessary to Page 3 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined verify whether the disputed contents of the Roznama are correct and whether the suit was actually listed for hearing on the trial court's daily boards of 13/9/1989, 30/9/1989, 7/10/1989 and 35/10/ 1989. One way have to check this would be by referring to the daily boards of the trial court to find out whether the suit was listed on the daily boards on the aforesaid dates. Therefore, it is humbly requested that the daily boards of the court of the Extra Assistant Judge Shri.K. R.Desai be called for."
3.1.1 The departmental proceedings were initiated against the petitioner along with statement of imputations. The charges were as under, "Mr. K.R.Desai, was working a Extra Assistant Judge, Vadodara:
One R.C.S.No.4/89 was pending in the Court of Mr. K.R.Desai, Mr. Desai heard the argument of ex.5 of the said suit and the same were concluded on 5.8.89. Mr.Desai has made it clear that the arguments are concluded and he will pronounce the order on 28.8. 89. Thereafter Mr. Desai with a malafide intention, did not pronounce the order on ex.5 and also dishonestly did not list the matter on the regular daily boards of Mr.Desai's Court. Mr.Desai directed and instructed Mr.N.S.Pathan, his Bench Clerk to interpolate and show the matter falsely and incorrectly in the previous daily boards in order to create an impression that the matter was being from time to time adjourned for hearing the reply of the plaintiff.Page 4 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024
NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined Mr.Desai has dishonestly directed Mr. Pathan to obtain three applications ex.37, 38 and 39 in the said suit of the back dates, purporting to have been given on 11.8.89, 13.9.89 and 30.9.89 respectively. These applications are actually obtained on 24.10.89 and thereafter Mr.Desai has subsequently placed these applications ex.37, 38 and 39 on record of the case, writing ante dated orders on them with a view to show as if the rojnama and daily bords aere correct and the matter was pending for hearing of reply of the plaintiff. Mr.Desai has thereby made interpolation of the f records, of the case with an ulterior motive to adjust the rojnama of the case and to falsely show that the matter was pending for hearing of the reply of the case. Mr.Ashokbhai P.Shah one of the advocate of the defendant met Mr.Desai on 24.10.89 to ascertain the date of order. Mr.Desai told him that he has not fixed the date of any order. Ultimately Mr. Desai has pronounced the order on 25.10.89 in the absence of defendant's advocates.
Mr.Desai has also demanded illegal gratifi- - cation of Rs.20000/- from the defendant of the said suit for favourable order below ex.5 through his brother Chandrakant R.Desai practising advocate at Ahmedabad from the defendant's advocate Mr.Y.J. Trivedi."
3.1.2 It was stated that the above acts of the delinquent judicial officer tantamount to acts of unbecoming of a judicial officer and they were the acts of grave misconduct to violate the provisions of Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971.
Page 5 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined 3.1.3 The petitioner came to be suspended by order dated 07.09.1990. The copy of the imputation of charges along with the list of documents and witnesses were sent to the petitioner along with the notice dated 10.10.1990 calling upon the petitioner to submit written defence to further put to notice that if the charges were held proved, the petitioner may become liable for imposition of any of the major penalties specified in Rule 6 of the Gujarat Civil Services (Conduct) Rules, 1971.
3.1.4 The petitioner thereafter corresponded with the authorities for inspection and supply of documents and having received them, filed detailed statement of defence. The inquiry officer, at the end of the inquiry, held the charges to be proved. On 02.12.1992, second show-cause notice was issued along with supply of inquiry report dated 24.08.1992. The petitioner was given further opportunity about the tentative decision of the High Court-the disciplinary authority.
3.1.5 At the conclusion of the inquiry, and after intervening unsuccessful litigation by the petitioner to challenge the stages in the proceedings and after the second show-cause notice dated 02.12.1992, the order of dismissal was passed on 25.01.1995 and served upon the petitioner. Thereafter, review petition under Rule 24 of the Page 6 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined Gujarat Civil Services (Discipline and Appeal) Rules, 1971, which was made to the State Government against the order of dismissal, was also dismissed.
3.2 It is to be stated that at that stage, the petitioner filed Special Civil Application No. 1857 of 1997, in which the petitioner sought to call in question the legality of second show-cause notice dated 02.12.1992 and the order of dismissal dated 25.01.1995. The petitioner also challenged the order of rejection of review application dated 31.01.1996, mentioned above.
3.2.1 The said petition was withdrawn as per the following order, "On the oral request made by Shri T.S. Nanavati, learned counsel for the writ petitioner and with the consent of Shri J.B. Pardiwala, learned counsel for the High Court, this petition has been taken up for hearing out of turn.
Shri T.S. Nanavati, upon instructions of his client who is present in the Court makes a request that his client may be permitted to withdraw the Special Civil Application with liberty to make representation to the High Court on administrative side for voluntary retirement from service.
Shri J.B. Pardiwala, learned counsel for the High Court says that he does not have any objection. In view of the above, the Special Civil Application is dismissed as withdrawn Page 7 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined with liberty in terms of the prayer made. Rule is discharged.
We hope and trust that representation, if any made by the applicant for voluntary retirement would be considered and decided by the High Court on administrative side at an early date."
3.2.2 As could be seen from the above order, the petition was withdrawn as instructed by the petitioner seeking liberty to make application to the High Court on its administrative side for seeking voluntary retirement from service. The petition was dismissed as withdrawn by order dated 20.06.2005.
3.3 The petitioner made representation on 16.06.2005. In the representation, after stating about his critical financial position and other aspects, the petition challenging the order of dismissal was unconditionally withdrawn and that he shall make request to permit him to retire voluntarily. It appears that the High Court's response to the said representation was awaited for long. It appears that the related papers were not traceable.
3.4 On 19.03.2010, the petitioner made an application before the Registrar General, High Court of Gujarat for reconstruction of his file regarding representation for voluntary retirement.
Page 8 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined Along with the said communication dated 19.03.2010, the petitioner annexed several documents (The list figures at Annexure-Y, page 477), which included the copy of the representation dated 16.06.2005, which was received by the High Court on 20.06.2005.
3.4.1 It was requested by the petitioner that after reconstruction of the file, his representation for voluntary retirement be placed before the Hon'ble Chief Justice and other Hon'ble Judges of the High Court of Gujarat for consideration. The request for voluntary retirement for the petitioner pursuant to the said representation came to be declined.
3.4.2 The petitioner was communicated by Registrar General as per the letter dated 24.12.2010, was placed before Hon'ble the Chief Justice and the Judges of the High Court and upon consideration of the matter, the request for voluntary retirement from 30.11.2004 was not acceded to.
3.5 Affidavit-in-reply came to be filed on behalf of respondent no.2 High Court of Gujarat to the present petition and the prayers made therein. The petitioner had again raised in detail, submissions in respect of order of dismissal dated 25.01.1995. In the affidavit-in-reply, since the challenge was Page 9 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined again raised on merits in respect of the dismissal, the allegations were dealt with to mention that the departmental proceedings against the petitioner were initiated pursuant to the letter dated 12.03.1990 addressed by the senior advocate Shri S.B. Vakil.
3.5.1 That the inquiry officer submitted his report, which was divided into two parts, (i) receipt of three applications exhibits 25, 26 and 27 in Regular Civil Suit No. 4 of 1989 and (ii) Rojkam written by one Shri Pathan. It was stated that Hon'ble Acting Chief Justice permitted the petitioner to serve the copies of the documents asked for. It was contended that petitioner could not make out any ground to show that the order of dismissal was bad in law and that the previous petition was withdrawn in which the same order was under challenge.
3.5.2 It was contended in the averments in paragraph 15 that even otherwise, the examination of the witnesses and other documents proved the charges against the petitioner as discussed in the report of the inquiry officer. It was stated that firstly the Standing Committee and thereafter, the Full Court took the decision, which was forwarded to the State Government for issuing appropriate notification.
Page 10 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined 3.5.3 It was contended in the affidavit that the Bench Clerk Mr. N.H. Pathan who had accepted the fact that three applications had been received by him at the instance of the petitioner and thereafter the dates were interpolated to show that the matter was listed on particular dates, the inquiry officer recorded the findings, discussing the evidence on the said aspect, which was highlighted.
3.5.4 Extracting the relevant part of the affidavit, "It would be relevant to refer to the findings of the Inquiry Officer in reference to the acceptance of the three applications for interpolation of dates:
"32....... Turning now to the applications exhs.25, 26 and 27, which have been mentioned in Roznamas dated 11/8/89, 13/9/89 and 30/9/89, respectively. I may mention here at the cost of repetition that the copies of these applications are to be found at exhs. 117, 118 and 119 in this inquiry proceeding. These three applications exhs.25. 26 and 27 in R.C.S. No.4/89 appear to have been written in stereotype manner. Further they do not bear any date i.e.. the learned advocate for the plaintiff Shri Vyas who is purported to have given these 3 applications, has not put the dates on all the 3 applications. The only dates mentioned on those 3 applications are in the hand writing of Shri Pathan who has Page 11 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined written the surkhis of these applications. Even the learned Judge has not chosen to put the date on which they are granted. Admittedly the endorsement "Granted G.O.A." are in the hand writing of Mr.Pathan, the bench clerk on all the 3 applications. These 3 applications bear the signature of Mr.K.R.Desai but no dates are written below his signature. Further more the court fee stamps affixed on these three applications bear the date 24/10/89. It is the case of the department that these 3 applications exhs.25, 26 and 27 in R.C.S.No.4/89 were obtained from the plaintiff subsequently on 24/10/89 before pronouncing the order on 25/10/89 and ante-dated orders on those applications were passed with a view to know as if the Roznama and daily boards were correct and the matter was pending for hearing the reply of the plaintiff from time to time. It is also the case of the department that the delinquent dishonestly directed the bench clerk Shri Pathan to obtain three applications in the said suit of the back dates purporting to have been given on 11/8/89, 13/9/89 and 30/9/89, respectively. Shri Pathan who has been examined at exh.105 has categorically stated in para.4 of his deposition that these three applications exhs.25, 26 and 27 were obtained by him subsequently as per the say of the delinquent Mr.Desai with a view to adjust the dates. Again in para.5 of his deposition, he has stated that he has obtained these 3 applications from the plaintiff on 24/10/89 before the pronouncement of the order on exh.5 in R.C.S.4/89 on 25/10/89.
3.5.5 It was further stated, Page 12 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined "Not only that but he has also stated that the endorsements "granted, C.O.A." on all the 3 applications are in his hand writing and the signature of the delinquent were obtained on all the 3 applications at time of adjusting the dates. Admittedly Shri Pathan was the bench clerk in the court of the delinquent during his tenure as Extra Assistant Judge at Baroda. He has stated that on the board of 11/8/89 of the court of Shri K.R.Desai which has been produced in this inquiry proceeding at exh.110, the entries Nos.1 to 47 are in the hand writing of the junior clerk while entries nos.48 and 49 are in his hand writing. R.C.S. 4/89 is at serial no.49. On that day, according to him, the R. & P of that case were with the delinquent and the delinquent asked him to enter the matter on board and write "for reply" in the column of subject and he wrote accordingly. Thus, according to him, in the board of 28/8/89 of the court of the delinquent, entries nos.1 to 20 are in the hand writing of the junior clerk. In this board, exh.111. R.C.S.4/89 has not been entered. Then according to him, in the board of 13/9/89, entries nos.1 to 31 are in the hand writing of junior clerk while the entries nos.32 to 34 are in his hand writings. The R.C.S. 4/89 has been entered at serial no.34 and this entry according to the witness, is made as per the say of the delinquent and has also written in the column of subject "for reply"."
3.5.6 The inquiry officer discussed further, "33..... Then in the daily board of 30/9/89 of the court of the delinquent, as per the say of the delinquent, entries nos.1 to 55 are in the hand writings of Page 13 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined Junior clerk Mr.Bhatt and entry nos.56 to 58 are in his hand writing. R.C.S.4/89 has been entered at serial no.58. So in this daily board exh.113 also, this suit R.C.S.4/89 has been entered at the bottom of the board and at the instance of the delinquent. Again in the board of 7/10/89 of the court of the delinquent Shri Desai, entry nos. 1 to 64 are in the hand writings of Jr.clerk Shri Bhatt while the entry no.65 which is regarding R.C.S.4/89 is in the hand writing of this witness and according to him in the evening as per the direction of Shri Desai, the delinquent, he made an entry and wrote that the matter is adjourned for judgment, as no reply is given. He also states that in the column of subject he has written in red ink "for judgment" at the instance of Mr.Desai. Regarding the board of 24/10/89, exh.115, the say of witness is that entry nos.1 to 42 are written by the junior clerk and nos. 43 and 44 are written by him. In the daily board of 25/10/89 of the court of the delinquent, entry nos.1 to 41 are written by the junior clerk Shri Bhatt, while entry no.42 is written by this witness and the R.C.S.4/89 is entered at serial no.42. So in the board of 25/10/89, as per the say of this witness, this matter R.C.S.4/89 has been entered at the bottom and the witness further states that this entry he has written at about 4-45 or 5 P.M. at the instance of the delinquent. So from the say of this witness, it is explicitly clear that on 11/8/89, 13/9/89, 30/9/89, 7/10/89 and 25/10/89, this matter R.C.S.4/89 has been entered in the daily board at the bottom of the board at the instance of the delinquent."
Page 14 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined 3.5.7 The explanation of the delinquent petitioner was found not acceptable, "34..... Now the say of the delinquent is that it is common practice that a particular matter which has been fixed on a particular day, does not come up on the board i.e. if it has not been entered on the board it would be listed at the bottom if it is brought to the notice of the court of the bench clerk either by the delinquent or their advocate or it comes to the notice of the presiding Judge or the bench clerk. We have no dispute as regards the said practice. At times, in courts where the file is very heavy, some such do occur and matter are required to be listed on the board, if they have been left out for one reason or the other. But in the instance case there is a specific say of the witness Shri Pathan that R & P of this case R.C.S.4/89 were with the Presiding Judge, i.e. the present delinquent. The witness has categorically stated that even on 11/8/89 the R & P were with the delinquent which impliedly goes to suggest that the hearing of Exh.5 in this case must have been completed on 5/8/89 and dated 11/8/89 must be a formal date. The explanation offered by the delinquent that this matter also must have been listed on the board of 11/8/89, 13/9/89, 30/9/89 and 7/10/89 by the concerned clerk through oversight and, therefore, they have been listed at the bottom cannot be believed in view of the specific say of witness Shri Pathan to the effect discussed herein above."
Page 15 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined 3.6 In the proceedings of the present petition, this Court passed the order dated 06.06.2023, whereby the respondent no.2 was directed to file additional affidavit explaining the reason as to why the petitioner would not be entitled to voluntary retirement. It was observed in the said order that the impugned order dated 24.12.2010, whereby the petitioner was communicated on 29.12.2010 about rejection of the representation of the voluntary retirement did not bear any reason. It was therefore required that the affidavit to be filed by the respondent no.2 shall contain the reasons and the grounds on which the representation of the petitioner for seeking voluntary retirement was rejected.
3.6.1 Pursuant to the aforesaid order dated 06.06.2023, additional affidavit dated 22.06.2023 came to be filed by the Registrar General. It was stated inter alia that upon receipt of the representation dated 19.03.2010 of the petitioner, a submission note was prepared by including all particulars about the petitioner and the same was placed before Hon'ble the Chief Justice and that the request was rejected by Hon'ble the Chief Justice on 23.12.2010. It was given out in the affidavit that the decision to accept or reject the Page 16 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined request for voluntary retirement is the prerogative of Hon'ble the Chief Justice.
3.6.2 From the contents of the aforesaid affidavit dated 22.06.2023, it could be gathered that three reasons are given to support the rejection of the representation for voluntary retirement. First is that the case of the petitioner was such that he was found guilty of the charges levelled against him, which included resorting to demand for illegal gratification. Secondly, upon the findings recorded by the inquiry officer, the petitioner was dismissed from service and in view of dismissal, the petitioner would not be entitled to drawn any retirement benefits. The third reason was that accepting the request for voluntary retirement would set a bad precedent. It was stated that if the request for voluntary retirement were to be acceded to, the petitioner would become entitled to monetary benefits and that it stand contradictory to the punishment order of dismissal. It was stated that every judicial officer who commits misconduct, if being subjected to departmental proceedings, would submit such request.
3.7 For all the above reasons, it was reiterated that the dismissal order could not be substituted with the order of voluntary retirement and that the Page 17 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined competent authority had rejected such request flowing from the representation.
4. Learned advocate for the petitioner advanced various submissions in support of his prayers. The order of dismissal was not justified for various reasons elaborated, submitted learned advocate for the petitioner. He then referred to the earlier proceedings and the order of this Court wherein the petitioner was permitted to make representation for voluntary retirement. It was submitted that the petitioner had to submit an application for reconstruction of his application. Despite elapse of long time, the petitioner did not get response.
4.1 Referring to the decision of rejection of voluntary retirement, it was submitted by learned advocate for the petitioner that it was a non- speaking decision. Not only that, in the letter dated 24.12.2010, communicating the said decision, respondent no.2 referred to the application dated 19.03.2010. According to the submission of learned advocate for the petitioner, it was not a representation made for seeking voluntary retirement, it referred to the date of the application for reconstruction.
4.2 It was therefore submitted that the request for voluntary retirement was rejected with total Page 18 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined non-application of mind and that what was considered by the competent authority to reject the request for voluntary retirement was not a representation, but an application for reconstruction. It was submitted that because of such misdirected application of mind, the petitioner has suffered prejudice.
4.3 On the other hand, learned advocate for the respondents relied on the contents of the affidavit-in-reply justifying the merits of the decision of dismissal by highlighting that the petition against dismissal was withdrawn. Further reliance was placed on the additional affidavit-in- reply dated 24.06.2022 to submit that the reasons for declining the request for voluntary retirement were mentioned as required in the order dated 06.06.2023.
5. The petitioner had previously filed Special Civil Application No. 1857 of 1997 challenging the second show-cause notice and the order of dismissal, which came to be unconditionally withdrawn. The petitioner himself withdrew the petition opting to make representation to the authority for seeking voluntary retirement. Once the writ petition challenging the show-cause notice and the order of dismissal dated 02.12.1992 and Page 19 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined 25.01.1995 were withdrawn, the challenge thereto terminated at that juncture.
5.1 It is not open to the petitioner to revive its challenge to the dismissal once the petition was withdrawn as above. Therefore, the attempt to re- agitate the dismissal once again directly or indirectly by the petitioner could hardly be countenanced in law, as such a course was rendered impermissible with passing of order dated 20.06.2005.
5.2 Even otherwise, the inquiry report show that the charges were proved on the basis of the cogent evidence, both oral and documentary, and that no lacuna about observance of principles of natural justice in the inquiry proceedings was noticed.
5.3 Coming to the plank of submission in this petition, the contention of the petitioner that the communication dated 19.03.2010 was referred to as the application for reconstruction of the untraceable files and that it was not the representation for seeking voluntary retirement, hardly stand good when the record is attentively examined.
5.4 It may be true that what was referred to in communication dated 24.12.2010 was date of Page 20 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined application dated 19.03.2010, which was the reconstruction application. However, upon close examination of the contents of the said reconstruction application, which figures on record (Annexure-X, page 475), it was indeed an application for reconstruction including representation making repeat request to permit voluntary retirement for the petitioner.
5.5 In paragraph 9 of the representation, such prayer was specifically referred, ".. After reconstructing the file of my representation - voluntary retirement dated 16/06/2005 received by the P. S. of Your Honour on 20/06/2005, the same may please be placed before the Honourable the Chief Justice and other Honourable Judges of the High Court of Gujarat at Amadavad to give due and apt sympathetically consideration to this reasonable and genuine request at my end, and be further please to consider the same W.E.F. 30-11-2004 and/or from such date as may be deemed fit and appropriate to be so considered at the earliest for which act of kindness and justice I shall remain ever so obliged."
5.6 Therefore, there was an express and unequivocal prayer, again repeated, for permitting the voluntary retirement, which was referable to and as per representation dated 16.06.2005 itself. The said request was considered by the competent authority. Not only that, along with the Page 21 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined application dated 19.03.2010, the petitioner had annexed several documents in support and the documents included the representation dated 16.06.2005. Therefore, the said representation dated 16.06.2005 was very much under consideration before the competent authority while dealing with the application. The competent authority considered it and passed the order not acceding to the request. Therefore, the contention of the petitioner that the rejection of the request for voluntary retirement was based on non-application of mind falls flat.
5.7 Furthermore, this court passed order dated 06.06.2023 requiring the respondent no.2 to put forward the reasons for rejecting the request of the petitioner for voluntary retirement. In the additional affidavit mentioned above, the reasons were spelt out, which properly weighed with the competent authority in rejecting the representation.
5.8 The reasons are relevant, emphatic and meritorious. It was a representation of the petitioner permitted by the Court as per the order passed in the previous petition where the challenge to dismissal was unconditionally withdrawn while rejecting the representation, the aspect was rightly considered by the competent authority that Page 22 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024 NEUTRAL CITATION C/SCA/17613/2011 CAV JUDGMENT DATED: 15/02/2024 undefined the charges faced by the petitioner and proved in the inquiry were in relation of demanding illegal gratification. The misconduct was by judicial officer in relation to dealing with judicial proceedings of a case and therefore, it had a serious and disciplinary dimensions.
5.9 It was reasoned that allowing the petitioner to voluntarily retire would set at naught the effect as the petitioner would be thereby able to draw the monetary benefits. The competent authority though it proper not to permit such course in wake of serious charges proved against the petitioner. The third reasons was also germane and it was observed that acceding the request of the petitioner would set a bad precedent.
6. For all the foregoing reasons and discussion, the present petition and the prayers made therein are meritless, both on facts and in law. The prayers could not be granted.
7. The petition is meritless. The same is dismissed. Rule is discharged.
(N.V.ANJARIA, J) (PRANAV TRIVEDI,J) BIJOY B. PILLAI Page 23 of 23 Downloaded on : Mon Feb 19 20:42:38 IST 2024