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SCA/5001/2000 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5001 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as 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 ?
=============================================================
REKHABEN
GOPALKISHAN SHAH - Petitioner(s)
Versus
VADODARA
MUNICIPAL CORPORATION - Respondent(s)
=========================================================
Appearance
:
MR
AS SUPEHIA for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3
MR PRANAV G DESAI for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 27/04/2010
ORAL
JUDGMENT
By
way of present petition, the petitioner has inter alia prayed for
quashing and setting aside the order of penalty dated 19th
May 1999 as confirmed by the Appellate Authority and to refund the
amount deducted with interest at the rate of 12%.
Since
the petitioner has expired, his heirs and legal representatives have
been brought on record and they are prosecuting the present
petition. It is the case of the petitioner that the petitioner was
serving as Senior Clerk in the respondent-Corporation. The
petitioner was issued a charge-sheet dated 12th December
1996 for holding a departmental inquiry against him. As a result of
the same, the petitioner is reduced in pay-scale, as also the
suspension period is ordered to be treated on duty for the purpose
of pension and gratuity only. The petitioner preferred an appeal
before the Appellate Authority, which ultimately came to be
rejected. Hence, the present petition.
Mr.I.A.
Supehia, learned counsel appearing for the petitioner, has submitted
at length and thereafter, restricted his arguments only on the point
of disproportionate penalty and has submitted that when all the
charges against the petitioner have not been proved in toto, the
petitioner ought not to have been imposed such a grave punishment.
Having
considered the rival contentions raised by the learned advocates for
the respective parties and the documents on record as well as the
averments made in the petition, it transpires that the petitioner
has been issued a charge-sheet dated 12th December 1996
containing four charges. It is stated in the charge-sheet that if
any of the charges are proved against the petitioner, he would be
imposed punishment under Section 56(2) of the Bombay Provincial
Municipal Corporation Act, 1949 (hereinafter referred to as the
Act ). It is pertinent to note that the Departmental Inquiry was
conducted against the petitioner, wherein the Inquiry Officer has
held one major charge against the petitioner to be partly proved and
other three charges as proved. The petitioner was issued a show
cause notice and thereafter, vide impugned order dated 19th
May 1999, the petitioner has been imposed the penalty by reduction
in his pay-scale from Rs.5500-9000 to Rs.4000-6000.
It
is pertinent to note that the said Section 56(2) of the Act does not
make any distinction between the major and minor penalties. In
absence of any specific mention about the penalty in the
charge-sheet as well as the show cause notice, the penalty of
reduction in pay-scale cannot be imposed by the
respondent-authority.
It
is pertinent to note that out of the total four charges, the Inquiry
Officer has found the Charge No.1, which is the major charge, as
partly proved. Thus, when the major charge against the petitioner
has been partly proved, the imposition of such a harsh punishment
upon the petitioner is unjust and improper. The penalty imposed upon
the petitioner is disproportionate and excessive. The
respondent-authority has failed to take into consideration that no
financial loss has been caused to the respondent-Corporation on
account of the conduct of the petitioner. Therefore, the imposition
of such a harsh punishment of reduction in pay-scale would result
into miscarriage of justice and would render a loss of at least
Rs.1500/- per month to the petitioner in the basic pay.
So
far as treating the period of suspension on duty for the purpose of
pension and gratuity is concerned, as per Rule 152 of the Bombay
Civil Services Rules, the petitioner was required to be heard before
passing such an order about treating the suspension period. No such
opportunity has been afforded to the petitioner. Therefore, on the
ground of principles of natural justice also, such a punishment
could not have been imposed upon the petitioner.
In
view of aforesaid, I am of the opinion that the respondent-authority
has failed to take into consideration the pros and cons of the
matter and imposed such a harsh penalty upon the petitioner, which
is confirmed by the Appellate Authority without appreciating the
facts and circumstances of the case and documents on record. Thus, I
hold that the impugned order imposing such a harsh punishment upon
the petitioner is bad in the eye of law. However, so far as the
charges proved against the petitioner are concerned, I am of the
opinion that the penalty of stoppage of five increments with future
effect would suffice the purpose. Hence, the present petition is
required to be partly allowed.
For
the foregoing reasons, the present petition is hereby partly
allowed. The impugned order dated 19th May 1999 passed by
the respondent-authority as well as the order passed by the
Appellate Authority are modified and substituted to the effect that
the petitioner is imposed penalty of stoppage of five increments
with future effect. The respondent-authority is directed to pay the
amount of arrears as well as allowances and towards other
consequential and incidental benefits to the heirs and legal
representatives of the petitioner who are brought on record after
due verification. Rule is made absolute to the aforesaid extent. No
order as to costs.
(K.S.
Jhaveri, J)
Aakar
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