Gujarat High Court
M S Padhiyar vs State Of on 13 March, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
M S PADHIYAR....Petitioner(s)V/SSTATE OF GUJARAT....Respondent(s) C/SCA/1615/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1615 of 2013 ================================================================ M S PADHIYAR....Petitioner(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance: MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1 MR RASHESH RINDANI AGP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 13/03/2013 ORAL ORDER
In present petition, the petitioner has prayed that:-
7(A) declare and hold that the action of the respondent authority of continuing the departmental inquiry against the petitioner pursuant to charge sheet dated 27.1.2010 is absolutely illegal and arbitrary, and (B) direct the respondent authority to drop the departmental inquiry initiated against the petitioner vide charge sheet dated 27.1.2010, and 1.1 Thus, present petition is taken out by the petitioner against continuation of departmental inquiry.
2. The petitioner herein was originally working as Planning Assistant (Class-III) where he was appointed vide order dated 30.8.1991. While the petitioner was working as such, he came to be appointed on the post of Town Planner (Class-I) as direct recruit person through regular selection procedure conducted by the Gujarat Public Service Commission.
2.1 While the petitioner was working on the said post, i.e. as Town Planner (Class-I), certain irregularities were reported against him and that therefore, the petitioner herein was visited with the charge-sheet dated 27.1.2010. In pursuance of the said charge-sheet, departmental proceedings/inquiry was initiated against him.
2.2 Subsequently, at the time, when the assessment of petitioner's performance as direct recruit in the post of Town Planner (Class-I) where he was posted on probation post was undertaken, his performance was assessed and the competent authority found his performance unsatisfactory.
Therefore, the petitioner was relieved w.e.f. 14.6.2011 from the post of Town Planner (Class-I) on the ground of unsatisfactory performance during probation.
3. At this stage, it is pertinent to mention that the petitioner has challenged the said order dated 14.6.2011 relieving him from service / post of Town Planner (Class-I) on the ground of unsatisfactory performance during probation. The writ petition, being Special Civil Application No.17619 of 2011, whereby the petitioner has challenged the said order dated 14.6.2011 is pending.
The petitioner has clarified that in the said writ petition neither any relief against departmental inquiry is prayed for nor granted.
4. Since, the petitioner came to be appointed as Town Planner (Class-I) as direct recruit, the petitioner is granted benefit of Government's policy to continue his lien on original post. In view of the said policy, the petitioner came to be repatriated to and re-engaged on his original post, i.e. Planning Assistant (Class-III).
Accordingly, since around November 2011, the petitioner has been re-engaged on his original post of Planning Assistant (Class-III) and has been working as such.
5. Now, at this stage, it is appropriate to record that during his tenure as Town Planner (Class-I), the petitioner was visited with charge-sheet dated 27.1.2010 and thereafter, the departmental proceedings / inquiry was initiated. The said inquiry is pending and is being continued.
6. Now, after lapse of about 3 years and while the petitioner's challenge against the termination on the ground of unsatisfactory performance on the post of Town Planner (Class-I) is pending by way of writ petition, being Special Civil Application No.17619 of 2011, the petitioner has taken out present petition against continuation of the departmental inquiry proceedings and has prayed that the said proceedings may be terminated.
7. Mr. Vyas, learned advocate, has appeared for the petitioner and has submitted that since the petitioner is already terminated from the post of Town Planner (Class-I), the respondent's action of continuing departmental inquiry is unjustified and unsustainable and the said inquiry proceedings should be discontinued/terminated. Learned advocate for the petitioner submitted that if the petitioner succeeds in the writ petition whereby his termination from the post of Town Planner (Class-I) is challenged, then, the department may again re-start the inquiry, but, as of now, since he is terminated the inquiry proceedings should be discontinued and terminated.
8. Having regard to the facts and circumstances of the case, which are briefly recapitulated hereinabove, any cause to accept the petitioner's request made in present petition is not made out.
The relevant rules permit continuation of departmental inquiry proceedings in cases where the employee is visited with charge-sheet prior to termination, on any ground. Merely because the petitioner came to be relieved from the post of Town Planner (Class-I) on ground of unsatisfactory performance, the cause for initiating the departmental inquiry is not wiped out or on being relieved from the post of Town Planner (Class-I), the cause for initiating and conducting departmental inquiry with reference to the irregularities allegedly committed while petitioner was working on said post, does not come to an end and the said cause continues. In this view of the matter and in light of the circumstances of this case, if the employer, i.e. the respondent department, wants to continue the inquiry proceedings and wants to take the inquiry to its logical end, then, there is no prohibition in the applicable rules, in light of which the respondent can be restrained from continuing the departmental proceedings/inquiry.
8.1 Once charge-sheet is served and departmental inquiry is commenced, then, unless the rules prescribe prohibition to continue inquiry and/or imposes obligation to close/terminate inquiry upon retirement or termination of delinquent (against whom charge sheet is issued and inquiry is commenced/pending) or on his being relieved from service or upon repatriation, the employer would be neither under legal obligation nor could be directed to discontinue inquiry merely on the ground that the delinquent employee is relieved from the service. In such circumstances, i.e. (a) when inquiry is commenced before the delinquent is actually relieved from service; and (b) the rules do not prescribe such obligation/requirement, the employer can continue the inquiry and take it to its logical end.
8.2 Learned advocate for the petitioner has failed to show any provision from applicable rules, which prescribes prohibition against continuation of the departmental inquiry/proceedings even when the proceedings have been initiated by way of charge-sheet served on the concerned employee, before the date on which the employee is relieved from service or he is repatriated to original post.
8.3 Even otherwise, as mentioned hereinabove, the petitioner has challenged his termination from the post of Town Planner (Class-I) and that therefore also, the request of the petitioner does not deserve to be accepted.
Ordinarily, the Court would not interfere with the proceedings of departmental inquiry unless it is established that the proceedings are without jurisdiction or authority in law. That is not the case in present petition. The departmental proceedings against the petitioner cannot be said to be without jurisdiction or authority in law. The petitioner has not been able to show any provision which would render the inquiry without jurisdiction.
In this view of the matter, present petition fails and does not deserve to be entertained.
Accordingly, present petition is not entertained and stands disposed of.
(K.M.THAKER, J.) kdc Page 5