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SCA/254420/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2544 of 2009
With
SPECIAL
CIVIL APPLICATION No. 2547 of 2009
==========================================
KALUBHAI
BARANDA - Petitioner(s)
Versus
STATE
OF GUJARAT - Respondent(s)
==========================================
Appearance :
MR
IS SUPEHIA for Petitioner(s) : 1,
MR JK SHAH,
AGP for Respondent(s) : 1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 20/03/2009
ORAL
ORDER
1. As
common question of law and facts arise between the same parties, both
the Special Civil Applications are heard together and are decided and
disposed of by this common judgement.
2. By
way of Special Civil Application No. 2544/2009 the petitioner has
prayed for an appropriate writ, order or direction quashing and
setting aside the order dated 31/12/2002 and the letter dated
04/04/2007 and to direct the respondent to grant three more trial to
the petitioner to pass the departmental examination.
3. By
way of Special Civil Application No. 2547/2009 the very petitioner
has prayed for an appropriate writ, order or direction quashing and
setting aside the order of dismissal dated 13/05/2003, letter dated
05/05/2007 and the letter dated 07/02/2008 and to reinstate the
petitioner in service with all consequential benefits.
4. By
notification dated 23/06/1998, the petitioner was appointed as
probationary Mamlatdar and he resumed his duty on 10/07/1998. He was
required to pass departmental examination, which he failed to clear,
and, therefore, his services came to be terminated on 31/12/2002.
Chargesheet was served upon the petitioner on 08/03/2000 and
departmental inquiry was initiated against the petitioner for two
charges i.e. (i) the petitioner produced a forged letter dated
13/07/1998 to the effect that his resignation was accepted by the
State Bank of Saurashtra and (ii) at the time when the petitioner was
serving with the State Bank of Saurashtra he was suspended from
service in connection with the forged medical bill pertaining to his
son and he was dismissed from service after holding departmental
inquiry. At the time of submitting the application for appointment
as probationary Mamlatdar, the petitioner did not disclose the
aforesaid facts. The Inquiry Officer submitted his report dated
11/05/2001 holding the charges proved against the petitioner. The
State Government agreed with the inquiry report and show-cause
notice dated 20/06/2001 was issued upon the petitioner calling upon
the petitioner to give his representation but the petitioner did not
submit any representation. In the meanwhile, vide order dated
31/12/2002, the petitioner was terminated from service for non
passing of the departmental examination within four chances, and,
thereafter, by an order dated 13/05/2003, the petitioner came to be
dismissed from service for the aforesaid alleged misconduct. Being
aggrieved and dissatisfied with the order of dismissal dated
13/05/2003, the petitioner preferred Special Civil Application No.
9939/2003, which came to be disposed of by an order dated 15/07/2003
directing the respondent to consider the representation dated
24/06/2003 of the petitioner. Thereafter, the petitioner received a
letter dated 24/07/2003 stating that the representation of the
petitioner, as regards dismissal, was not accepted. Thereafter, the
petitioner preferred Special Civil Application No. 25013/2006
challenging both the orders i.e. of termination and dismissal and the
said Special Civil Application came to be disposed of by an order
dated 04/12/2006 directing the respondent to consider the grievance
of the petitioner. Thereafter, the petitioner preferred
Miscellaneous Civil Application No. 50/2007 for modification of the
order dated 04/12/2006 passed in Special Civil Application No.
25013/2006 and the said Miscellaneous Civil Application came to be
disposed of by an order dated 10/01/2007 modifying the order to the
extent that the petitioner can make separate representation and,
thereafter, the petitioner made two separate representations dated
20/01/007. By communication dated 05/05/2007, the State Government
rejected the representation regarding dismissal and vide further
communication dated 07/02/2008, the petitioner is communicated that
nothing more is required to be done in the matter, in view of
dismissal of the petitioner. It is the case on behalf of the
petitioner that thereafter the petitioner again made representations
dated 16/06/2008, 18/06/2008 and 24-28/06/2008.
However, there is no reply to the said representations. Hence, the
petitioner has preferred these Special Civil Applications challenging
the order of removal as well as dismissal.
5. Shri
Supehia, learned advocate appearing on behalf of the petitioner has
vehemently submitted that the petitioner has not been given adequate
opportunity to defend the case in the departmental proceedings and
relevant documents were not furnished, and, therefore, it is
submitted that the impugned order of dismissal is in violation of
principles of natural justice, which deserves to be quashed and set
aside. It is further submitted that in fact once the order of
removal was passed there was no question of further passing an order
dismissing the petitioner. It is further submitted that even the
representation of the petitioner, against the order of removal, has
been turned down on the ground that the petitioner has been dismissed
from service and, therefore, the representation qua the same is not
required to be considered.
6. Having
heard the learned advocates appearing on behalf of the respective
parties and considering the impugned orders, it appears and it is not
disputed by the learned advocate appearing on behalf of the
petitioner that the petitioner at the time of submitting the
application for appointment to the post of probationary Mamlatdar had
not disclosed anything with respect to the departmental inquiry
initiated against him by the Bank where he was serving and that he
was dismissed from service by the Bank. The charge against the
petitioner is that the petitioner did not disclose the fact that at
the time when he was serving with State Bank of Saurashtra, he was
suspended from service in connection with the forged medical bill
pertaining to his son and he was dismissed from service and after
holding the departmental inquiry said charge has been proved. Even
the charge against the petitioner of producing false letter dated
13/07/1998 to the effect that his resignation was accepted by State
Bank of Saurashtra has also been proved. Considering the above, and
more particularly, when it is not disputed by the learned advocate
appearing on behalf of the petitioner even today that the aforesaid
facts were not disclosed by the petitioner at the time of submitting
the application for th post of probationary Mamlatdar and when
considering the above the petitioner is dismissed from service, it
cannot be said that the order of dismissal is arbitrary and/or
against the evidence on record. In the facts and circumstances of
the case, the impugned order of dismissal does not warrant any
interference of this Court and in view of the order of dismissal,
further question with respect to the order of removal would be an
exercise in futility.
7. Now
the contention on behalf of the petitioner that once the petitioner
was removed, it was not open for the respondent to dismiss the
petitioner from service subsequently is concerned, it is required to
be noted that the inquiry was already initiated against the
petitioner when the petitioner was removed on non-passing of the
departmental examination within four chances. Only a formal order
was required to be passed by the State Government as the departmental
proceedings were already concluded much prior to the order of
removal. It is also required to be noted that the petitioner has not
submitted the representation against the show-cause notice, after
acceptance of findings of the Inquiry Officer by the State
government. The petitioner never disputed the findings of the Inquiry
Officer. Under the circumstances, it cannot be said that the
impugned order of dismissal is in breach of principles of natural
justice. Under the circumstances and for the reasons stated
hereinabove, the petitions deserve to be dismissed and are
accordingly dismissed.
(M.R.
SHAH, J.)
siji
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