Gujarat High Court
Rupendra Kumar Bhajanlal Sarswat vs Union Of India & on 5 September, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/14633/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14633 of 2017
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RUPENDRA KUMAR BHAJANLAL SARSWAT....Petitioner(s)
Versus
UNION OF INDIA & 1....Respondent(s)
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Appearance:
MR JK PARMAR, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 05/09/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside (1) impugned order dated 15.5.2014 of compulsory retirement; (2) order passed by the Appellate Authority dated 16.2.2015 and (3) order passed by the Revisional Authority dated 7.11.2016.
2.0. The facts leading to the present petition in nutshell are as under:
2.1. That the Departmental Inquiry was initiated against the petitioner who at the relevant time was serving as Assistant Sub Inspector in Railway Police Force. The charges against the petitioner was that during the duty hours, he was abusing concerned workers who were loading goods under the name of unnecessary inquiries and who was harassing them and asking Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Sep 10 03:25:10 IST 2017 C/SCA/14633/2017 ORDER many illegal demand and thereby he committed the misconduct of dereliction of duty etc. and thereby committed the misconduct under Rule 146.2(ii), 146.7(i),(iii),(xxi) of the Railway Police Force Rules. It was also alleged against the petitioner that his wife is three trucks, of which, the Department is not informed and / or permission of the Department is not obtained and therefore, it was alleged that the petitioner had committed the misconduct under Rule 146.2(i), 146.3(i) and 147(ii) of the Railway Police Force Regulation 1987. That after departmental inquiry was concluded, both the charges leveled against the petitioner held to be proved.
That a Disciplinary Authority vide order dated 15.5.2014 imposed the punishment of compulsory retirement with immediate effect. The order of punishment of compulsory retirement dated 15.5.2014 came to be modified by the Appellate Authority vide order dated 16.2.2015 reducing punishment from compulsory retirement by putting petitioner to basic grade. However, the Revisional Authority in Revision preferred by the petitioner and after giving an opportunity to the petitioner passed an order dated 7.11.2016 against reducing the punishment of compulsory retirement.
2.2. Feeling aggrieved and dissatisfied with the impugned order of compulsory retirement, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India.
3.0. Shri Parmar, learned advocate for the petitioner has vehemently submitted that impugned orders of compulsory retirement are absolutely illegal, bad in law and against the Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Sep 10 03:25:10 IST 2017 C/SCA/14633/2017 ORDER principle of natural justice.
3.1. It is vehemently submitted by Shri Parmar, learned advocate for the petitioner that as such the inquiry was not initiated in just and fair manner. It is submitted that the copy of complaint on the basis of which the departmental inquiry was initiated was not given to the petitioner. It is the signature on the complaint on the basis of which the Inquiry was initiated was differing their signature of the complainant.
3.2. It is vehemently submitted by Shri Parmar, learned advocate for the petitioner that as such the petitioners had made various complaint against the complainant for illegal theft etc. and therefore, with a view to take revenge a false complaint has been filed against the petitioner.
3.3. It is vehemently submitted by Shri Parmar, learned advocate for the petitioner that even otherwise such an order of compulsory retirement could not have been passed, more particularly, when the petitioner at the verge of retirement and only three years have left for retirement on reaching the age of superannuation. It is further submitted that as per the settled legal position an employee can be compulsory retired, if such employee is found "dead wood". It is submitted that therefore, in the present case the petitioner cannot be said to be "dead wood". It is submitted that therefore, also order of compulsory retirement was not warranted.
4.0. Heard Shri Parmar, learned advocate for the petitioner at Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Sep 10 03:25:10 IST 2017 C/SCA/14633/2017 ORDER length. We have perused and considered the impugned orders passed by the Disciplinary Authority as well as Revisional Authority on compulsory retirement. We have also considered the findings recorded by the Inquiry Officer.
4.1. At the outset, it is required to be noted that the charge and misconduct for which departmental inquiry has been initiated are proved against the petitioner. Considering the inquiry report, it cannot be said that there was any procedural irregularity in conducting the inquiry. Sufficient opportunity was given to the petitioner and after considering the material / evidence on record, both the charges are held to be proved against the petitioner. The findings recorded by the Inquiry Officer are on appreciation of evidence. The submission on behalf of the petitioner that the petitioner was not given copy of the complaint sent by the complainant is concerned, the same has been dealt with by the Revisional Authority as well as Disciplinary Authority. Both the authorities below have considered that as such the complaint made by the complainant is not disputed by the petitioner. Under the circumstances, on the aforesaid ground, the departmental inquiry cannot be said to be in breach of principles of natural justice.
5.0. Now, so far as submission on behalf of the petitioner that a person can be compulsorily retired if he found to be deed wood and the petitioner cannot be said to be dead wood is concerned, it is required to be noted that in the present case petitioner has been compulsorily retired by way of punishment and after holding the departmental inquiry. Therefore, the principle that an employee Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Sep 10 03:25:10 IST 2017 C/SCA/14633/2017 ORDER can be compulsorily retired only if he found dead wood shall not be applicable in a case where departmental inquiry is held and he has been compulsorily retired by way of punishment.
6.0. In the facts and circumstance of the case, it cannot be said that orders passed by the concerned appropriate authority of compulsory retirement of the petitioner can be said to be illegal and / or arbitrary against the principles of natural justice.
7.0. In view of the above and for the reasons stated above, present petition fail and same deserves to be dismissed and is accordingly dismissed.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Sep 10 03:25:10 IST 2017