Gujarat High Court
Rameshchandra Narayanrao Pawar vs The Chairman & 2 on 10 February, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/14183/2004 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14183 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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RAMESHCHANDRA NARAYANRAO PAWAR....Petitioner(s)
Versus
THE CHAIRMAN & 2....Respondent(s)
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Appearance:
PARTY-IN-PERSON, the Petitioner.
Ms. Mayaben Desai Advocate for MR MD PANDYA, ADVOCATE for the
Respondent(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/02/2014.
Page 1 of 12
C/SCA/14183/2004 CAV JUDGMENT
CAV JUDGMENT
1. The petitioner has made following prayers in paragraph 16 (A) to (F) of the petition:
"16. Under these circumstances, the petitioner prays that:
A. Your Lordships may be pleased to admit and allow this petition.
B. Your Lordships may further be pleased to issue writ of mandamus or certioraris or any other appropriate writ, order or direction in the nature of mandamus or certioraris by quashing and setting aside the impugned notice dated 6.7.2002 as well as departmental proceedings and findings recorded by the Inquiry Officer and order passed by the Hon'ble Chairman dated
17.1.2003 and order passed by the Hon'ble Secretary. Gujarat Electricity Board dated 04.02.2004 rejecting the appeals preferred by the petitioner in the interest of justice.
C. Your Lordships may further be pleased to direct the respondents to forthwith give promotion to the petitioner with retrospective effect together with all consequential benefits, in the interest of justice.
D. Pending admission, hearing and final disposal of the petition or pendency of the present writ petition, Your Lordships may further be pleased to direct the respondents to give all retiral benefits as petitioner has already reached to the age of retirement in the interest of justice.
(F) Your Lordships may further be pleased to issue a writ or mandamus or certiorari or any writ, order or direction in the nature of mandamur or certiorari by quashing and setting aside the impugned order of termination dated 21.10.2002 which is annexed at ANNEXURE:U to the petition in the interest of justice.
2. The petitioner, who was serving as Superintending Page 2 of 12 C/SCA/14183/2004 CAV JUDGMENT Engineer (Trng) with the Gujarat Electricity Board was issued charge sheet dated 5.5.2000 before about one and half year of his retirement from service for the following charges :
"Charge No.1 Leaving Head Quarter without prior permission.
Charge No.4 Failure to exercise efficient control and supervision on the subordinate staff resulting in general inefficiency of the Branch or Unit.
Charge No.5 Indiscipline and undisciplined behaviour. Charge No.9 Dishonesty in connection with the affairs of Board.
Charge No.10 Instances of disloyalty to the Board or the superiors under whom the employee/officer is working.
Charge No.24 Taking or giving directly or indirectly bribe, illegal gratification or any consideration for doing any official act for advantage of favour. Charge No.25 Habitual breach of any orders & circulars/instructions.
Charge No. 37 Making a false statement or making a false complaint. "
3. Inquiry was conducted against the petitioner in respect of the above charges and the inquiry officer submitted his report with the following finding :
" FINDINGS Following charges in allegations could not be established. Charge No.4 :- Failure to exercise efficient control and supervision upon the subordinate staff resulting into general inefficiency of the branch or unit.
Page 3 of 12 C/SCA/14183/2004 CAV JUDGMENT Charge No.9 Dishonesty in connection with the affairs of Board.
Charge No.24 Taking or giving directly or indirectly bribe, illegal gratification or any consideration for doing any official act for advantage of favour.
Charge No.25 Habitual breach of any orders & circulars/instructions.
Following charges in allegations could be established:
Charge No.1: Leaving Head Quarter without permission.
Charge No.5 : Indiscipline and undisciplined behaviour.
Charge No.10: Instances of disloyalty to the Board of the superiors under whom the employee/officer is working.
Charge No.37 : Making a false statement."
4. Based on the above findings in the inquiry, the petitioner was served with the show cause notice dated 6.7.2002 by the Board (Technical) Gujarat Electricity Board proposing to terminate the service of the petitioner by way of removal. The petitioner tendered his reply dated 27.9.2002 to the said show cause notice.
5. The disciplinary authority thereafter passed order dated 21.10.2002 to terminate the services of the petitioner with immediate effect by way of removal. Lastly, it is stated in the said order that the petitioner may collect his legitimate Page 4 of 12 C/SCA/14183/2004 CAV JUDGMENT terminal benefits of dues from the Chief Engineer, Dhuvaran.
6. The petitioner unsuccessfully challenged the above said order before the first and second appellate authorities of the Board.
7. The petition is opposed by affidavit in reply filed by the Deputy General Manager (IR) working with the Gujarat State Electricity Corporation Limited. On the record of the petition, the petitioner has also produced proceedings of departmental inquiry initiated against him at annexure H.
8. The petitioner who appeared in person has read out the contentions raised by him in the petition before the Court and urged to allow the petition. The party in person has tendered xerox copy of judgment of (1) Kerala High Court in the case of S.Krishnan Nair and The Divisional Superintendent (P.B.) Southern Railway, Olavakode and others [OP No.2196 of 1971 dated 3rd December, 1971]; (2) Harbans Singh Iqbal Singh v.
State of Punjab reported in AIR 1961 Punjab 289 and (3) P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 Supreme Court, 520.
9. Learned advocate Ms. Maya Desai appearing for learned advocate Mr. M.D. Pandya for the respondents submitted that none of the contentions raised by the petitioner in the petition is required tobe accepted. Ms. Desai submitted that the Page 5 of 12 C/SCA/14183/2004 CAV JUDGMENT inquiry conducted against the petitioner is legal and valid and in such inquiry, for the charges proved against the petitioner, the disciplinary authority has thought it fit to impose the punishment of termination of services of the petitioner by way of removal. Ms. Desai submitted that even the appellate authorities have recorded that in properly conducted inquiry, since the above said charges were proved, punishment of termination of service of the petitioner by way of removal was commensurate with the acts of misconduct committed by the petitioner.
10. Ms. Desai submitted that the petitioner has failed to point out any illegality in the decision-making process in the inquiry. Ms. Desai submitted that though the petitioner made grievance about non supply of documents before the appellate authority and in this petition, however, the appellate authority found as a matter of fact that the petitioner was having benefit of relevant documents.
11. Learned advocate Ms. Desai submitted that the charges proved against the petitioner are of leaving Head Quarter without permission, indisciplined behaviour, instances of disloyalty to the board and making false statement for which the punishment imposed by the impugned order may not be interfered with. Ms. Desai submitted that the contention Page 6 of 12 C/SCA/14183/2004 CAV JUDGMENT raised by the petitioner that considering the nature of charges allegedly proved, he could have been imposed minor penalty, cannot be accepted as it is the absolute discretion of the disciplinary authority to impose penalties provided in the Employees' Service Regulation and since the appellate authorities have not found any error in the order of punishment imposed by the disciplinary authority, this Court while exercising the powers under Article 226/227 of the Constitution of India, may not interfere with the impugned order of punishment.
12. Learned Advocate Ms. Desai submitted that the second prayer made by the petitioner for promotion cannot be considered in view of the fact that the petitioner was imposed with the punishment of termination of his services. Ms. Desai, thus, urged to dismiss the petition.
13. Having considered the contentions raised by the petitioner in the petition and having heard the learned advocate Ms. Maya Desai for the respondents, it appears that though the petitioner has grievance about not conducting the inquiry properly, however, perusing the inquiry proceedings from page no.101 to 163, it appears that the petitioner had opportunity of cross-examining the witnesses examined by the department in the inquiry. It also appears that there was some Page 7 of 12 C/SCA/14183/2004 CAV JUDGMENT grievance about non supply of some documents to the petitioner, however, the appellate authority has recorded that the petitioner had benefit of relevant documents. Such being finding recorded by the appellate authority, this Court may not go into such aspects of the matter.
14. At this stage, it is required to be noted that though the petitioner was charge sheeted for failure to exercise efficient control and supervision over the subordinate staff resulting into general inefficiency of the Branch or Unit; dishonesty in connection with the affairs of the Board;taking or giving directly or indirectly bribe, illegal gratification or any consideration for doing any official act for advantage of favour; habitual breach of orders and circulars/instructions, such charges have not been proved against the petitioner.
15. The charges which are stated to have been proved are (1) leaving head quarter without prior permission (5) Indiscipline and undisciplined behaviour (10) Instances of disloyalty to the Board or the superior under whom the employee/officer is working and (37) making false statement.
16. As regards first charge of leaving head quarter without prior permission, it appears that the department had examined two witnesses who were working as executive engineer (Trng) and ACE (Trng) respectively. As per the statement of details Page 8 of 12 C/SCA/14183/2004 CAV JUDGMENT produced by them in the inquiry which is also referred in affidavit in reply, the petitioner was coming late and leaving early for the period from 20.5.99to 12.1.2000. The inquiry officer did not find favour with the statement of the petitioner about staying in rented premises given in his defence to prove that he was not leaving the head quarter. The Inquiry Officer has recorded that the officer of the department had gone to the premises of the landlord who showed his house to the officer stated to be given on rent to the petitioner and considering the evidence on this aspect, the inquiry officer has held that the first charge of leaving head quarter and charge of making false statement came to be proved.
17. As regard charge No.5 - Indisciplined and undisciplined behaviour, and No.10 of instances of disloyalty to the Board or the superior under whom the petitioner was working, the letters written by the petitioner using language challenging the authority of the superior officer appear to have been considered as indiscipline and instances of disloyalty to the Board. It appears that since the petitioner was asked not to leave the head quarter at Dhuvaran without prior permission of the Chief Engineer, he sought clarification by writing letters as to under what authority such instruction was given because he was of the opinion that he held independent charge of training Page 9 of 12 C/SCA/14183/2004 CAV JUDGMENT center and he was not answerable to the Chief Engineer. The above instances and the conduct of the petitioner of not following instructions from the Chief Engineer and writing letters to him appear to be taken as indisciplined behaviour and disloyalty of the petitioner.
18. However, the question is, whether, in the nature of charges proved against the petitioner, the disciplinary authority is justified in imposing the punishment of termination of services of the petitioner by way of removal?
19. What appears from the allegations of misconduct as a whole is that the petitioner when posted to serve at Dhuvaran in Training Center was found coming and leaving the Center not as per the Scheduled Time. Such conduct of the petitioner was the reason for the Chief Engineer to issue written instruction to the petitioner which was stated to be disobeyed by the petitioner by writing letter to the Chief Engineer stating that he was having independent charge of the Training Center and he was not answerable to the Chief Engineer. Thus, the charge of leaving Head Quarter gave birth to the further charge of indisciplined behaviour and disloyalty.
20. Considering the above nature of charges proved against the petitioner and considering the length of service put in by the petitioner, the disciplinary authority was required to Page 10 of 12 C/SCA/14183/2004 CAV JUDGMENT consider as to whether any lighter punishment could have been imposed or not.
21. The petitioner put in around 29 years of service. Time period referred for late coming and early leaving from the Training Center by not staying at the Head Quarter was between 20.5.1999 to 12.1.2000. No other serious charges are proved against the petitioner.
22. In this view of the matter, it appears to the Court that the punishment imposed upon the petitioner is disproportionate to the gravity of the misconduct proved against the petitioner. The disciplinary authority, therefore, will be required to reconsider the matter.
23. However, in the facts and circumstances of the case, petition for the second prayer for promotion cannot be granted.
24. For the reasons stated above, the petition is partly allowed. Impugned order of termination of services of the petitioner by way of removal dated 21.10.2002 is quashed and the orders dated 17.1.2003 and 04.02.2004 passed in the appeals preferred by the petitioner are also quashed. The matter is remitted-remanded to the respondents for reconsideration of the question in regard to quantum of punishment. Respondents shall reconsider the matter and take the decision as regards quantum of punishment within a period of three months from the date of receipt of this order and shall confer all Page 11 of 12 C/SCA/14183/2004 CAV JUDGMENT consequential benefits available to the petitioner within one months thereafter. Rule is made absolute to the extent stated above.
Sd/-
(C.L.SONI, J.) anvyas Page 12 of 12