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SCA/14108/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14108 of 2010
=========================================================
DISTRICT
DEVELOPMENT OFFICER & 1 - Petitioner(s)
Versus
ASHOKKUMAR
BABUBHAI CHOKSI & 2 - Respondent(s)
=========================================================
Appearance
:
MS
JYOTI MEHTA FOR M/S.HL PATEL ADVOCATES
for
Petitioner(s) : 1 - 2.
MR AS SUPEHIA for Respondent(s) : 1,
MR
JK SHAH, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 2,
NOTICE
SERVED for Respondent(s) :
3,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 02/02/2011
ORAL
ORDER
This
petition has been filed with a prayer to quash and set aside order
dated 17.05.2010 passed by the Gujarat Civil Services Tribunal in
Appeal No.245 of 2007/911, whereby the Tribunal has directed that
the matter be remanded to respondent No.1 (petitioner No.1 herein)
from the stage of holding a fresh inquiry against the applicant.
The
petitioner is the District Development Officer, District Panchayat,
Panchmahals, Godhara. Respondent No.1 was serving as Senior Accounts
Clerk in the office of Taluka Panchayat, Jhalod, from 27.02.1987 to
04.07.1987. During office inspection, it came to light that the
respondent No.1 herein had allegedly embezzled a sum of Rs.22,120=22
ps. A criminal case was registered against him, which is pending
Trial. Respondent No.1 was placed under suspension and thereafter
reinstated. Chargesheet dated 13.03.1989 was served on respondent
No.1 for misappropriation of Rs.22,120=22 ps. and temporary
misappropriation of Rs.20,500/-. A Departmental Inquiry was held
against him. As mentioned in the Inquiry Report, respondent No.1 did
not remain present during the hearing of the said inquiry but asked
for certain records, which demand was not accepted by the Inquiry
Officer. Finally, the Inquiry Officer gave his findings by way of
the Inquiry Report on the basis of the brief submitted by the
Presenting Officer and the written statement of respondent No.1
dated 03.09.1998. The Inquiry Officer found that the charges
levelled against respondent No.1 stood proved. A second show cause
notice was issued by the Disciplinary Authority. After considering
the reply to the show cause notice along with the Inquiry Report,
the Disciplinary Authority imposed the punishment of reversion to
the cadre of Junior Clerk from the rank of Senior Accounts Clerk
(which post respondent No.1 held at the relevant point of time).
Respondent No.1 filed an appeal before the Additional Development
Commissioner (respondent No.2) which came to be rejected. Being
aggrieved by the said order, respondent No.1 filed the
above-mentioned appeal before the Tribunal which came to be
remanded, as above, by impugned order dated 17.05.2010, after
setting aside the order dated 20.06.2005 passed by the District
Development Officer (petitioner No.1) and order dated 23.05.2007
passed by the Additional Development Commissioner (respondent No.2).
Hence, this petition.
Ms.Jyoti
Mehta, learned advocate for M/s.H.L.Patel Advocates, learned counsel
for the petitioner, has submitted that:
(a) Respondent
No.1 has already retired from service and if the matter is remanded
and a fresh Departmental Inquiry is initiated, as directed by the
Tribunal, it would be difficult to gather the necessary documents
after so many years. The necessary documents regarding the
Departmental Inquiry and charges framed against respondent No.1 have
been submitted to the Trial Court as the criminal case is pending,
and the petitioner will not be in a position to retrieve the same
for use in the Departmental Inquiry.
(b) The
charge of misappropriation has been proved against respondent No.1
and he has chosen not to remain present before the Inquiry Officer.
He has, therefore, been rightly reverted to the post of Junior
Clerk.
(c)
The Tribunal has erred in coming to the conclusion that respondent
No.1 is not proved guilty and that the Departmental Inquiry should
not be conducted as a criminal case is pending, which finding is
against the settled legal position that departmental proceedings and
a criminal case are altogether different and can go on
simultaneously.
(d) The
order of remand passed by the Tribunal is erroneous and
unsustainable in law, therefore, deserves to be quashed and set
aside.
Mr.A.S.Supehia,
learned advocate for contesting respondent No.1, has submitted that
the order of the Tribunal does not suffer from any legal error or
infirmity and is supported by cogent reasons. Referring to
Paragraph-9 of the impugned judgment of the Tribunal, it is
submitted that it is clearly mentioned therein that there is no
justification for the grounds raised by respondent No.1 in the reply
to the show cause notice, in the order impugned before the Tribunal.
It is submitted that respondent No.1 had raised numerous grounds in
the reply to the show cause notice, none of which have been dealt
with in the order impugned before the Tribunal. In these
circumstances, the Tribunal has rightly remanded the matter on the
ground that there is a violation of the principles of natural
justice, as reasonable opportunity has not been granted to
respondent No.1. It is further contended that the finding of the
Tribunal that before taking a final decision, the disciplinary
authority should analyze the grounds and give its reasons for not
accepting the same before arriving at a conclusion, is in accordance
with the settled legal principles and, under these circumstances,
the order of the Tribunal remanding the matter to the District
Development Officer for holding a fresh inquiry, does not warrant
interference of this Court.
I
have heard the learned advocates for the respective parties, perused
the averments made in the petition, contents of the impugned order
and other documents on record.
The
main ground on which the learned advocate for the petitioner has
challenged the order of the Tribunal is that it would be difficult
to gather the necessary documents after such a long period of time,
for fresh hearing before the District Development Officer, upon
remand of the matter by the Tribunal. It has been submitted that the
necessary documents have been submitted to the Trial Court and the
petitioner will not be in a position to retrieve the same for use in
the Departmental Inquiry. This submission carries no weight, as it
is for the petitioners to make an application to obtain certified
copies of the documents that are necessary for use in the
Departmental Inquiry. In any case, this difficulty in gathering the
necessary documents, per se, does not render the order of the
Tribunal illegal.
A
submission has been advanced on behalf of the petitioner that
respondent No.1 did not remain present before the Inquiry Officer,
therefore he has been rightly reverted to the post of Junior Clerk.
It has also been contended that the Tribunal has erroneously come to
the conclusion that respondent No.1 has not been proved guilty. The
question whether the respondent No.1 has been rightly reverted, or
not, is not under the scrutiny of this Court as, at present; it is
the order of remand of the Tribunal that has been challenged. On
perusal of the impugned order of the Tribunal, the submission of the
learned advocate for the petitioner, that the Tribunal has come to a
conclusion that respondent No.1 has not been proved guilty, is not
borne out. In fact, the reason for remand, as stated in the order of
the Tribunal, is that the respondent No.1 has filed a detailed reply
to the second show cause notice received by him, but none of the
grounds raised by him in the reply have been dealt with in the order
dated 20.06.2005. It is clearly mentioned in the said order of the
Tribunal that while taking a final decision, the Disciplinary
Authority ought to have recorded its reasons for not accepting the
grounds raised by respondent No.1, and in the absence of any
discussion regarding the same, the said order is vitiated as it is
not a reasoned order. The submission advanced by the learned
advocate for the petitioner to the effect that the Tribunal has
concluded that a Departmental Inquiry cannot take place during the
pendency of the criminal case is also misconceived, and is not borne
out from the impugned order.
The
Tribunal has further held that the Departmental Inquiry has been
held without following the prescribed norms, which vitiates the
Inquiry Report and renders the order impugned before it, arbitrary.
It is in the above circumstances that the Tribunal has set aside the
order passed by petitioner No.1 dated 20.06.2005 and the order
passed by respondent No.2 dated 23.05.2007, while remanding the
matter from the stage of holding a fresh inquiry against respondent
No.1. In my considered view, there is no illegality or infirmity in
the order of the Tribunal.
No
convincing or cogent grounds have been advanced by the learned
counsel for the petitioner to make good the challenge to the
impugned order.
In
the above circumstances and for reasons stated hereinabove, as the
impugned order of the Tribunal does not suffer from any illegality,
infirmity or perversity, the petition must fail.
It
is, accordingly, rejected. Notice is discharged.
(Smt.Abhilasha
Kumari, J.)
(sunil)
.
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