{"id":251300,"date":"2010-04-19T00:00:00","date_gmt":"2010-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/i-b-vs-gujarat-on-19-april-2010"},"modified":"2017-06-19T18:20:15","modified_gmt":"2017-06-19T12:50:15","slug":"i-b-vs-gujarat-on-19-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/i-b-vs-gujarat-on-19-april-2010","title":{"rendered":"I.B vs Gujarat on 19 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
I.B vs Gujarat on 19 April, 2010<\/div>\n
Author: Akil Kureshi,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCAJ\/41712\/0024\t 15\/ 15\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4171 of 2002\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 3780 of 2008\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4171 of 2002\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nI.B.\nDESAI - Petitioner(s)\n \n\nVersus\n \n\nGUJARAT\nLABOUR WELFARE BOARD & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPARESH UPADHYAY for\nPetitioner(s) : 1, \nMR HS MUNSHAW for Respondent(s) : 1, \nMR\nDEVANG VYAS, APP for Respondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 19\/04\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
The
\n\tpetitioner is an ex-employee of respondent no.1 Gujarat Labour
\n\tWelfare Board( the Board  for short). She has challenged an
\n\torder dated 25.8.2000\/4.9.2000  passed by the Board dismissing her
\n\tfrom service with effect from 27.7.1998. The petitioner has further
\n\tprayed for direction to the respondents to give all consequential
\n\tbenefits to her.\n<\/p>\n
Short
\n\tfacts leading to the petition are as follows.\n<\/p>\n
2.1\tThe
\n\tpetitioner was appointed initially as Assistant Welfare Commissioner
\n\ton 1.2.1968 under the control of respondent no.1 Board. She was
\n\tthereafter appointed as Labour Welfare Commissioner with effect from
\n\t11.10.1989.\n<\/p>\n
2.2\tAs
\n\tper her age and rules of the Board, petitioner would have
\n\tsuperannuated with effect from 31.7.1998. However, on 16.5.1998
\n\trespondent no.1 issued a charge-sheet against the petitioner
\n\tlevelling serious allegations of irregularities in discharge of the
\n\tduties. To the details of these charges, I will advert to at a
\n\tslightly later stage.\n<\/p>\n
2.3\tOn
\n\t29.7.1998, i.e. two days before the petitioner would have crossed
\n\tthe age of superannuation, an order was passed placing her under
\n\tsuspension on account of her alleged misconduct for which
\n\tcharge-sheet was already issued.\n<\/p>\n
2.4\tOn
\n\t31.7.1998, petitioner was conveyed the decision of respondent no.1
\n\tthat though she is permitted to retire with effect from 31.7.1998 on
\n\treaching the age of superannuation, however in view of pending
\n\tdepartmental inquiry, she will continue in service notionally and
\n\tultimate decision in such an inquiry will be binding on her.\n<\/p>\n
2.5\tThus
\n\teven after crossing the age of superannuation, departmental inquiry
\n\tagainst her was continued. Inquiry Officer submitted his report
\n\tdated 26.4.1999, copy of which was supplied to the petitioner. The
\n\tpetitioner made a representation to the authorities on 14.8.1999
\n\tagainst such inquiry officer’s report.\n<\/p>\n
2.6\tRespondent
\n\tNo.1 however, passed impugned order dated 25.8.2000\/4.9.2000 and
\n\tordered to dismiss the petitioner with retrospective effect from
\n\t27.7.1998. It is this order which the petitioner has challenged in
\n\tthe present petition.\n<\/p>\n
2.7\tThe
\n\tpetitioner had also filed Special Civil Application No.793\/2000
\n\tpraying for release of her Provident Fund dues. Previously, the
\n\tpetitioner’s contribution of Provident Fund was already paid over to
\n\ther by an interim order. However, with respect to employer’s
\n\tcontribution to Provident Fund, by an order dated 2.3.2010 in
\n\tSpecial Civil Application No. 793\/2000 following order was passed:\n<\/p>\n
 Under
\nthe circumstances, this petition is disposed of  making the interim
\norder final.  The amount of petitioner’s contribution to the
\nprovident fund  paid over to her   shall be retained by her.
\nHowever, further relief  must depend on the outcome of Special Civil
\nApplication No.4171 of 2002 and shall be examined as part of the
\nconsequential relief to setting aside the order of dismissal as
\nprayed for by the petitioner.\n<\/p>\n
\tSubject
\n\tto the  above observations, this petition is disposed of .  Rule is
\n\tmade absolute to the above extent.\n<\/p>\n
Appearing
\n\tfor the petitioner, learned counsel Shri Paresh Upadhyay challenged
\n\tthe impugned order raising the following contentions :\n<\/p>\n
3.1\tThat
\n\tthe impugned order is passed without any authority of law. It was
\n\tcontended that the petitioner having crossed the age of
\n\tsuperannuation, the Board had no authority to continue the
\n\tdepartmental proceedings against her.\n<\/p>\n
3.2\tIt
\n\twas contended that in any case, order of dismissal could not have
\n\tbeen passed with retrospective effect.\n<\/p>\n
3.3\tIt
\n\twas contended that inquiry was not properly conducted. The charges
\n\twere wrongly held to have been proved. It was also urged that the
\n\tpetitioner was not generally questioned by the Inquiry Officer to
\n\tseek her explanation regarding factors against her.\n<\/p>\n
3.4\tReliance
\n\twas placed on the decision of the Apex Court in case of Bhagirathi
\n\tJena v. Board of Directors, O.S.F.C. and others<\/a> reported in AIR
\n\t1999 Supreme Court 1841, wherein the Apex Court observed that once
\n\tthe appellant had retired from service, there was no authority
\n\tvested in the Corporation for continuing the departmental inquiry
\n\teven for the purpose of imposing any reduction in the retiral
\n\tbenefits payable to the appellant. In the absence of such authority,
\n\tinquiry had lapsed and the appellant was entitled to full retiral
\n\tbenefits on retirement.\n<\/p>\n
On
\n\tthe other hand, learned counsel Shri Munshaw for the respondent
\n\tBoard opposed the petition contending inter-alia that the petitioner
\n\thad committed grave misconduct by committing serious irregularities
\n\tin discharge of her duties. Huge amounts of Provident Fund and
\n\tGratuity of the employees of the Board were invested in Cooperative
\n\tBanks against the Government Resolutions and directives. Investment
\n\tmade was not safe. Ultimately, the Cooperative Bank went into
\n\tliquidation resulting into financial loss to the employees and the
\n\tBoard. There were another illegalities committed by the petitioner
\n\tin making appointments to different posts in the Board. He further
\n\tcontended that the Board through its rules namely Labor Welfare
\n\tFund(Gujarat) Rules 1962 has decided to adopt various rules of the
\n\tState Government governing service conditions of the employees
\n\tnamely Bombay Civil Services Rules, Gujarat Civil Services(Conduct)
\n\tRules, 1971,  Gujarat Civil Services(Discipline and Appeal) Rules,
\n\tdue to which it was possible for the Board to proceed against the
\n\tpetitioner departmentally even after the age of superannuation. He
\n\tcontended that the petitioner was placed under suspension before the
\n\tdate of superannuation by a specific order. Departmental inquiry was
\n\tcontinued even after her retirement.\n<\/p>\n
4.1\tHe
\n\tcontended that charges have been proved conclusively through
\n\tdepartmental proceedings. No interference is therefore, called for.\n<\/p>\n
Having
\n\tthus heard the learned counsel for the parties, I may deal with last
\n\tcontention first namely, that the charges were not established and
\n\tthat reasonable opportunity was not given.\n<\/p>\n
5.1\tIn
\n\tthis regard it may be noted that charges levelled against the
\n\tpetitioner pertained to two aspects. Charge article 1<\/a> pertained to
\n\tirregularities in financial matters. It was alleged that she had
\n\tinvested huge amounts totaling to more than Rs. 1 crore and 40 lakhs
\n\tof Provident Fund and gratuity accumulation of the employees of the
\n\tBoard in the Urban Cooperative Bank Ltd., Ahmedabad and Ahmedabad
\n\tMahila Nagrik Cooperative Bank in disregard of Government circulars.
\n\tBy such a conduct, she jeopardized the interests of the employees
\n\tand thus committed serious financial irregularities.\n<\/p>\n
5.2\tSecond
\n\tcharge which was subdivided into several different allegations
\n\tpertained to alleged irregularities committed by the petitioner in
\n\tfilling up different posts under the Board. Certain instances have
\n\tbeen cited whereby she had made appointments disregarding the
\n\treserved quotas. Instances have also been cited where she have made
\n\tappointments of different persons who were closely connected to her.
\n\tIt is not necessary to reproduce all the charges in this order.\n<\/p>\n
5.3\tAs
\n\talready noted, charge-sheet was served on the petitioner. Inquiry
\n\tOfficer was appointed. Inquiry was conducted. Upon conclusion of the
\n\toral inquiry, inquiry officer submitted his report dated 26.4.1999.
\n\tSuch a report was supplied to her calling upon her to make a
\n\trepresentation. Her representation was taken into account.
\n\tDisciplinary Authority found that charges are proved and ultimately
\n\tpassed the order of penalty.\n<\/p>\n
5.4\tHaving
\n\tperused the contents of the inquiry officer’s report and the
\n\trepresentation of the petitioner to such a report, as also the
\n\tDisciplinary Authority’s order, it cannot be stated that the
\n\tpetitioner did not have sufficient opportunity to defend herself. No
\n\tspecific instance is pointed out wherein any of the principles of
\n\tnatural justice can be stated to have been violated.\n<\/p>\n
5.5\tFurther,
\n\tinquiry officer’s conclusions are based on evidence on record. Such
\n\tconclusions have been accepted by the Disciplinary Authority.
\n\tNothing has been pointed out to suggest that the findings were
\n\tperverse. It is not the case of the petitioner that irrelevant
\n\tmaterial was considered or that relevant evidence was ignored. In
\n\tparticular, there is hardly any debate or dispute possible that the
\n\tpetitioner had authorised investment of Provident fund and gratuity
\n\tamount of employees totalling to  more than Rs. 1 crore and 40 lakhs
\n\tin the Cooperative Bank. It is also not  the case of the petitioner
\n\tthat the Government policy permitted such investment. In fact, it
\n\thas come on record that such investment was contrary to the
\n\tGovernment directives.\n<\/p>\n
5.6\tWith
\n\trespect to the irregularities in filling up the posts of the Board,
\n\tthere has been sufficient evidence which has been discussed by the
\n\tinquiry officer as well as by the disciplinary authority.   With
\n\tsuch factual findings, I therefore, find no reason to interfere in
\n\texercise of writ jurisdiction.\n<\/p>\n
Contention
\n\tthat inquiry officer did not question the petitioner generally to
\n\texplain the circumstances against her, it may be noted that no such
\n\tstand was taken either before the disciplinary authority or in the
\n\tpetition. Such a contention is thus clearly an afterthought. When
\n\tneither  before the inquiry officer nor before the disciplinary
\n\tauthority nor in the petition, such a contention is raised, I do not
\n\tfind it possible to permit taking such a contention only through
\n\toral arguments without giving any opportunity to respondents to meet
\n\twith the same.\n<\/p>\n
With
\n\trespect to the contention that the petitioner having crossed the age
\n\tof superannuation, the Board seized to have any authority to
\n\tcontinue with the departmental proceedings, one may recall that
\n\tafter serving charge-sheet dated 16.5.1998, the petitioner was also
\n\tplaced under suspension by order dated 29.7.1998. She would have
\n\tunder normal circumstances superannuated with effect from 31.7.1998.
\n\tOn that particular date, the Board passed an order stating that
\n\tthough she is permitted to retire on crossing the age of
\n\tsuperannuation, since the departmental inquiry is pending against
\n\ther, her service shall continue notionally and she would be bound by
\n\tthe ultimate result of the inquiry. Rule 19(B) of the Labour Welfare
\n\tFund(Gujarat)Rules 1962 reads as under :\n<\/p>\n
 19B.\n<\/p>\n
\tConditions of service of the Welfare Commissioner and other
\n\tstaff.-The provisions of the Bombay Civil Services Rules (except
\n\tChapter X1 thereof) as amended from time to time by the Government
\n\tof Gujarat [as well as the State of Gujarat Civil Services (Conduct)
\n\tRules, 1971 and the Gujarat Civil Services (Discipline and Appeal)
\n\tRules] shall be applicable to the Welfare Commissioner and other
\n\tstaff appointed under the Act;\n<\/p>\n
\t\tThrough
\n\tthe said Rule, the Board has adopted several Rules of the State
\n\tGovernment concerning the service conditions of the employees.\n<\/p>\n
In
\n\tcase of  Takhatray Shivadattray Mankad v. State of Gujarat<\/a>
\n\treported in 1989 Supp(2) Supreme Court Cases 110, the Apex Court on
\n\tthe basis of Junagadh State Pension and Parwashi Allowances Rules,
\n\t1932  by which the employee was governed prior to his absorption in
\n\tthe State Services, upheld continuation of departmental inquiry
\n\tinitiated prior to retirement.\n<\/p>\n
8.1\tIn
\n\tcase of State of U.P. And another v. Shri Krishna Pandey<\/a>
\n\treported in AIR 1996 Supreme Court 1656, the Apex Court interpreting
\n\tRule 351-A of the  Central Civil Services (Pension) Rules 1972 which
\n\treserved in the Governor right of withholding of pension of a
\n\tretired Government servant made following observations :\n<\/p>\n
 6.\tIt
\nwould  thus be seen that proceedings are required to be  instituted
\nagainst   a   delinquent   officer   before retirement. There  is no
\nspecific  provision  allowing the officer to continue in service nor
\nany order passed to allow him  to continue  on  re-employment  till
\nthe  enquiry  is completed, without  allowing him  to  retire  from
\nservice. Equally, there\tis no  provision  that the  proceedings  be
\ninitiated as  disciplinary measure  and the action initiated earlier
\nwould remain unabated after retirement. If Rule 351-A is  to be
\noperative in respect of pending proceedings, by necessary
\nimplication, prior sanction of the Governor  to continue the
\nproceedings against  him is  required. On\t the other hand, the rule
\nalso would indicate that if the officer caused pecuniary  loss or
\ncommitted embezzlement etc. due to misconduct  or negligence or
\ndereliction  of  duty, then proceedings  should  also  be  instituted
\n after  retirement against the  officer as expeditiously as
\npossible. But the events of  misconduct etc.  which may  have
\nresulted  in the loss to the Government or embezzlement, i.e., the
\ncause for the institution of proceedings, should not have taken place
\nmore than  four years  before the  date\t of  institution  of
\nproceedings. In other words,  the departmental proceedings must be
\ninstituted before lapse of four years from the date on which  the
\nevent  of misconduct  etc.  had  taken  place. Admittedly, in this
\ncase  the officer had retired on March 31, 1987  and the  proceedings
\nwere  initiated on  April 21, 1991. Obviously,  the event  of
\nembezzlement  which  caused pecuniary loss to the State took place
\nprior to four years from the  date of his retirement. Under these
\ncircumstances, the State  had disabled itself by their deliberate
\nomissions to  take  appropriate  action  against the  respondent  and
\nallowed the  officer to  escape from  the provisions of Rule 351-A of
\n the Rules. This order does not preclude proceeding with the
\ninvestigation into  the offence  and taking action hereon.\n<\/p>\n
8.2\tIn
\n\tcase of State of Uttar Pradesh v. Shri Brahm Datt Sharma and
\n\tanother<\/a> reported in AIR 1987 Supreme Court  943, the facts were
\n\tthat a Government servant’s dismissal was set aside by the High
\n\tCourt only on the ground that he had not been afforded reasonable
\n\topportunity. During the pendency of the petition before the High
\n\tCourt the employee had already retired on attaining the age of
\n\tsuperannuation. The State Government therefore, issued a notice
\n\tcalling upon him to show cause why order of forfeiture of pension
\n\tand gratuity not be issued. This action was challenged by the
\n\temployee. In this background, the Apex Court held and observed that
\n\t:\n<\/p>\n
 5\t…Had
\nthe respondent not retired from service on attaining the age of
\nsuperannuation it  was open to the State Govt. to pass order awarding
\npunishment\t to him after issuing a fresh show cause notice  and
\nsupplying  to him a copy of the recommendation made  by  the Inquiry
\nOfficer. There was no legal bar against  the  State Govt.  in
\nfollowing  such a course of action.  There were serious allegations
\nof misconduct against  the  respondent which  had been proceeded
\nagainst him during inquiry,  those charges remained alive even after
\nquashing of the  dismissal order  and it was therefore open to the
\nState Govt. to take action against the respondent in accordance with
\nthe  rules. No disciplinary proceedings could be taken as the
\nrespondent had retired from service, the Govt. therefore considered
\nit appropriate  to take action against him under Art.  470<\/a>  of Civil
\nService Regulations. The Regulation vests power in the appointing
\nauthority to take action for imposing  reduction in the pension, as
\nthe State Govt. is the appointing authority  it\t was  competent to
\nissue show cause  notice  to the respondent.  The notice specified
\nvarious acts of  omissions and commissions with a view to afford
\nrespondent opportunity to show that he had rendered throughout
\nsatisfactory service and  that the allegations made against him did
\nnot  justify any  reduction\tin the amount of  pension.
\nIf\tdisciplinary proceedings  against an employee of the Govt. are
\ninitiated in respect of misconduct committed by him and if he
\nretires from service on attaining the age of superannuation,  before
\nthe  completion of the proceedings it is open to  the  State Govt. to
\ndirect deduction  in  his pension on the proof of the  allegations
\nmade against  him. If the charges are not established during the
\ndisciplinary proceedings or if the disciplinary proceedings are
\nquashed  it is not permissible to the  State  Govt.  to direct
\nreduction in the pension on the same allegations, but if  the
\ndisciplinary proceedings could not be completed\t and if the charges
\nof serious allegations are established, which may have bearing on the
\nquestion of rendering efficient and satisfactory service, it would be
\nopen to the Govt. to take proceedings  against the Govt. servant in
\naccordance with rules  for  the deduction of pension and gratuity.
\nIn this view the High Court committed error in holding that the show
\ncause notice was vitiated.\n<\/p>\n
8.3\tIn
\n\tcase of State of Maharashtra v. M.H. Mazumdar<\/a> reported in AIR
\n\t1988 Supreme Court 842, the Apex Court relying on the provisions
\n\tcontained in Rules 188 and 189 of the Bombay Civil Services Rules
\n\tand Rule 33 of the Bombay Civil Services Conduct,  Discipline and
\n\tAppeal Rules held that for misconduct, negligence or financial
\n\tirregularities committed by an employee during his period of
\n\tservice, Government is competent to withhold or reduce pension after
\n\tgiving opportunity of defence to the employee.\n<\/p>\n
8.4\tUnder
\n\tsuch circumstances, considering the facts of the present case, I do
\n\tnot find that the petitioner upon having crossed the age of
\n\tsuperannuation while departmental inquiry was still pending, all
\n\tproceedings would automatically come to an end.\n<\/p>\n
Question
\n\thowever, is what order could the disciplinary authority could have
\n\tpassed. It is in this context that the last remaining contention of
\n\tthe petitioner that the disciplinary authority had no power to pass
\n\torder of dismissal with retrospective effect needs to be examined.\n<\/p>\n
9.1\tNothing
\n\thas been pointed out by the respondents to suggest that respondent
\n\tno.1 had power to pass an order with retrospective effect. In case
\n\tof Delhi Development Authority and another v. Joint Action
\n\tCommittee, Allottee of SFS Flats and others<\/a> reported in (2008) 2
\n\tSupreme Court Cases 672, the Apex Court observed that an executive
\n\tofficer, in absence of any provision of a statute, cannot apply his
\n\town decision with retrospective effect. Besides, Gujarat Civil
\n\tServices (Discipline and Appeal) Rules, 1971 which have been adopted
\n\tby the Board by virtue of Rule 19B of the Labour Welfare Fund
\n\t(Gujarat) Rules 1962, prescribes various major penalties. In Rule 6,
\n\tthese penalties include reduction to a lower grade or post,
\n\tcompulsory retirement, removal from service and dismissal from
\n\tservice. These penalties can obviously be imposed only while a
\n\tGovernment employee is in service. None of these penalties can be
\n\timposed after the employee has crossed the age of superannuation. If
\n\tthe employee crosses the age of superannuation, employer can only
\n\tpass penal order withholding his post retrial benefits such as
\n\tpension which would include gratuity or the employee’s contribution
\n\tto provident fund as the case may be. Such withholding of pension
\n\tcan either be partial or complete and for a limited period or
\n\tpermanently.  But in no case, a Government employee under the
\n\tGujarat Civil Services (Discipline and Appeal)  Rules, 1971, can be
\n\tdismissed from service after he crosses the age of superannuation,
\n\teven if inquiry was initiated while he was still in service.\n<\/p>\n
9.2\tFor
\n\tthe above reason, quite apart from the fact that dismissal order has
\n\tbeen passed with retrospective effect, I do not find that same can
\n\tstand the scrutiny of law.\n<\/p>\n
9.3\tHad
\n\tit been the order which could have been severed i.e. retrospective
\n\toperation of the order could have been separated, prospective
\n\toperation thereof could have been saved. In case of R.
\n\tJeevaratnam v. State of Madras<\/a> reported in AIR 1966 Supreme
\n\tCourt 951, the Apex Court observed that :\n<\/p>\n
 4.
\nThe order dated October 17, 1950 directed that the appellant be
\ndismissed from service with effect from the date of his suspension,
\nthat  is  to  say,\tfrom  May  20,1949. In substance,  this order
\ndirected that ( 1 ) the appellant  be dismissed, and (2) the
\ndismissal do operate  retrospectively as  from  May 20, 1949. The two
\nparts, of  this  composite order are separable.  The first part of
\nthe order ,operates as  a dismissal of the appellant as from October
\n17,  1950. The  invalidity of the second part of the  order,
\nassuming this  part to be invalid, does not affect the first part  of
\nthe order.  The order of  dismissal  as  from\t October  17,  1950  is
\nvalid and effective.   The appellant has been lawfully dismissed,
\nand he is not entitled to claim that he is still in service.\n<\/p>\n
9.4\tIn
\n\tthe present case however, such is not the situation. On the date
\n\twhen respondent no.1 passed the order of dismissal, petitioner had
\n\talready crossed the age of superannuation. No notice was also issued
\n\tby the Board that upon proving of the misconduct, petitioner’s post
\n\tretiral benefits could be withheld.  The entire order must therefore
\n\tgo. This would however, be without prejudice to the employer
\n\tconsidering passing any other order in accordance with law if
\n\totherwise permissible.\n<\/p>\n
Counsel
\n\tfor the petitioner however,  submitted that in absence of
\n\tapplicability of Chapter 11 of Bombay Civil Services Rules which
\n\tpertains to pension and hence in absence of any powers flowing from
\n\tRules 188 and 189 thereof, it is not even open for the employer to
\n\twithhold any part of the retiral benefits of the petitioner. This
\n\tquestion however has not arisen for my consideration so far.\n<\/p>\n
10.1\tThe
\n\tpetitioner appears to be covered by Provident Fund Scheme. Rules
\n\tregarding such provident fund are not on record. In addition to the
\n\tsame, what other post retiral benefits, the petitioner would be
\n\tentitled to upon normal superannuation and under which rules is not
\n\tstated by either side. Question of authority of the Board to
\n\twithhold any part of such benefits is therefore, premature.\n<\/p>\n
The
\n\tpetitioner crossed the age of superannuation way back in the year
\n\t1998. Her post retiral benefits  have been substantially withheld.
\n\tEntire issue must therefore come to an early end. Therefore, even
\n\twhile reserving liberty to respondent no.1 to consider passing fresh
\n\tappropriate orders in accordance with law, a rigid time frame has to
\n\tbe provided to conclude the issue expeditiously.\n<\/p>\n
Under
\n\tthe circumstances, the petition is disposed of with following
\n\tdirections :\n<\/p>\n
i)\tImpugned
\n\torder dated 25.8.2000\/4.9.2000  is quashed. This is however, without
\n\tprejudice to respondent no.1 passing fresh order in accordance with
\n\tlaw, if otherwise permissible, after giving an opportunity of being
\n\theard to the petitioner.\n<\/p>\n
ii)\tIf
\n\trespondent no.1 desires to proceed further in above terms, it shall
\n\tserve a notice to the petitioner within one month from today.\n<\/p>\n
iii)\tIn
\n\tabsence of any notice within aforesaid period, it shall be presumed
\n\tthat the Board does not wish to proceed further against the
\n\tpetitioner.\n<\/p>\n
iv)\tIf
\n\tsuch a notice is served, petitioner shall have one month’s time from
\n\tthe date of receipt of notice to make a representation.\n<\/p>\n
v)
\n\tFinal decision shall be taken expeditiously and in any case not
\n\tlater than four months from today.\n<\/p>\n
vi)\tIf
\n\tno notice as permitted here-in-above is issued within the time
\n\tspecified or for any other reason proceedings are dropped finally,
\n\tthe petitioner  shall be entitled to post retiral benefits which
\n\tshall carry either statutory interest or in case statute is silent,
\n\tshall carry simple interest at the rate of 9%  per annum from the
\n\tdate of her superannuation till actual payment.\n<\/p>\n
The
\n\tpetition is disposed of. Rule made absolute in above terms.\n<\/p>\n
In
\n\tview of order passed in the main matter, Civil Application does not
\n\tsurvive. Disposed of accordingly.\n<\/p>\n
(Akil
\nKureshi,J.)<\/p>\n
(raghu)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court I.B vs Gujarat on 19 April, 2010 Author: Akil Kureshi,&Nbsp; Gujarat High Court Case Information System Print SCAJ\/41712\/0024 15\/ 15 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4171 of 2002 With CIVIL APPLICATION No. 3780 of 2008 In SPECIAL CIVIL APPLICATION No. 4171 of 2002 For […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-251300","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nI.B vs Gujarat on 19 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/i-b-vs-gujarat-on-19-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"I.B vs Gujarat on 19 April, 2010 - 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