Govind Pragji Mundia Since ... vs District Development Officer
2022 Latest Caselaw 6940 Guj

     C/SCA/16907/2011                                   JUDGMENT DATED: 04/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16907 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                           Sd/-
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1     Whether Reporters of Local Papers may be allowed                        No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                 No

3     Whether their Lordships wish to see the fair copy                       No
      of the judgment ?

4     Whether this case involves a substantial question                       No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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    GOVIND PRAGJI MUNDIA SINCE DECEASED THROUGH LEGAL HEIRS
                              Versus
             DISTRICT DEVELOPMENT OFFICER & 1 other(s)
================================================================
Appearance:
MR HASIT H JOSHI(2480) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MS KHYATI P HATHI(346) for the Respondent(s) No. 1,2
================================================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 04/08/2022

                                 ORAL JUDGMENT

1. The present petition is filed under Articles 226 227 of

the Constitution of India challenging judgment and order dated

18.04.2011 passed by the Gujarat Civil Services Tribunal,

Gandhinagar in Appeal No.120 of 2007, whereby appeal of the

petitioner came to be rejected. Before the Tribunal, the petitioner

had challenged order of dismissal dated 16.11.1999 passed by

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respondent No.2-Deputy District Development Officer, disqualifying

him from any employment in future. The petitioner also challenged

order dated 02/03.03.2007 passed by the respondent No.1 herein-

District Development Officer, whereby appeal of the petitioner was

rejected and order passed by respondent No.2 dated 16.11.1999

was confirmed.

2. Learned Advocate for the petitioner submitted that no

serious charge was levelled against the petitioner. What was

alleged was that he has not handed over his charge though placed

under suspension with effect from 04.05.1998; that he made

application for committing suicide with intention to cause mental

torture to the officers of the District Panchayat and directly made

application before the Higher Office, i.e. Development

Commissioner, Gandhinagar on 03.03.1997 for proceeding on fast

as per 'Gandhian' way and for committing suicide and applications

dated 19.04.1997 and 01.06.1998 were addressed to the Hon'ble

Chief Minister that he made applications before the higher

authorities to the effect that statement dated 14.07.1997 was

obtained from him my giving mental torture on him.

2.1 It is submitted that the Tribunal erroneously held that

the petitioner had not challenged those documents and therefore,

same are not required to be proved by the respondent authorities

in departmental inquiry by examining witnesses in support of those

documents. Not a single witness was examined against the

C/SCA/16907/2011 JUDGMENT DATED: 04/08/2022

petitioner by respondent authorities in departmental inquiry

against petitioner which is also clear from finding given by Tribunal

and therefore, in view of that and also, in view of the charges

leveled against petitioner which are pertaining to making of

representations before higher authorities etc. punishment of

removal or dismissal from service is extremely harsh and

unjustified since no other charge of irregularity or dishonesty was

leveled against him as per charge sheet.

2.2 It is submitted that the Tribunal has erred in holding

when petitioner was alleging that e statement dated 14.7.1997 was

obtained from him under force and coercion, respondents ought to

have examined witnesses for Proving said statement for proving

that said statement was given voluntarily by petitioner. Since no

witness was examined for Proving any of the documents on which

respondents were relying and statement dated 14.7.1997, whole

departmental inquiry conducted against petitioner ought to have

been held as violative of the principles of natural justice.

2.3 It is lastly submitted that the petitioner cannot be

punished for ventilating his grievance against the functioning the

department rather than department ought to have redressed such

grievances.

2.4 Learned Advocate for the petitioner relied upon

decision of the Apex Court in case of State of Uttar Pradesh &

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Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC, 772, to

substantiate the argument that non-supply of documents on lame

excuse is a severe effect on the defence of a delinquent in the

departmental inquiry.

2.5 Learned Advocate for the petitioner next relied upon

decision of the Apex Court in case of Life Insurance Corporation

of India & Anr. Vs. Ram Pal Singh Bisen, reported in (2010) 4

SCC, 491, to submit that document is not required to be merely

filed or exhibited, but content of such document is also required to

be proved.

3. As against this, learned Advocate for the respondent

submitted that Tribunal has recorded the following findings:-

(1) The misconduct of the petitioner was served with charge-sheet was proved.

(2) Full departmental enquiry was held in accordance with the disciplinary rules and in compliance with the principles of natural justice,

(3) The petitioner was given a fair opportunity of hearing after having been served with show . cause notice.

                 (4)    The penalty imposed cannot be said to be
                        unreasonable or harsh;

Accordingly, the Tribunal examined in detail all the contentions raised by the petitioner and has

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rejected the Second Appeal by its order dated 25.4.2011. There is no error of any kind, much less an error apparent on the face of record so as to invoke the power of superintendence under Article 227 of the Constitution of India.

3.1 It is submitted that the petitioner was dismissed from

service by order of penalty dated 16.11.1999 passed by my

predecessor in office and with a view to delay the effect of the said

order of dismissal the petitioner filed a Regular Civil Suit in the

Court of Civil Judge (SD) Jamnagar which was registered as

Regular Civil Suit No. 87/2000. The petitioner could not have been

unaware of the rules requiring him to file appeal being an old

Panchayat employee. However, he initiated the said misconceived

suit and on summons being served on the District Panchayat, it

filed an application on the ground that the said order of dismissal

was appealable under the Disciplinary Rules and under the Civil

Services Tribunal Act and the jurisdiction of the Civil Court was

barred. The said application was made Under, Order 7 Rule 11(d)

of the Code of Civil Procedure in 2002 and the learned Judge after

hearing the parties allowed the,said application and rejected the

suit by his order date 3.12.2004 on the ground that it was barred

by the say Provision, Accordingly, the petitioner delayed the

Proceedings as if he was unaware of the rules by which ha was

governed. The petitioner thereafter after about two years

challenged the order of dismissal of 1999 by filing appeal before

the Distrait Development Officer in 2006 under Rule 14 of the

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Disciplinary Rues. Though the appeal was time barred the District

Development Officer examined the matter on merits and dismissed

the appeal and confirmed the order of dismissal passed by my

predecessor in office. I say accordingly the petitioner is not in

service from 1999 who has contributed largely to the delay by

approaching wrong forum and therefore the present petition filed

after such a long lapse of time from from the date of dismissal is

not bona fide and is not required to entertained.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears that petitioner

was served with charge sheet dated 30.10.1998 wherein three

charges were leveled against him that he has not handed over his

charge though placed under suspension w.e.f. 4.5.1998; that he

made application for committing suicide with an intention to cause

mental torture to the officers of the District Panchayat and directly

made application before the Higher Office Development

Commissioner, Gandhinagar on 3.3.1997 for proceeding on fast as

per Gandhian Way and for committing suicide thereby by

applications dated 19.4.1997, 1.6.1998 addressed to the Hon'ble

Chief Minister, Gujarat State (C) that he made applications before

higher authorities to the effect that the statement dated 14.7.97

was obtained from him by administering mental torture on him.

The said charge sheet containing aforesaid three allegations was

replied by petitioner by reply dated 21.12.98 explaining everything.

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Another reply was also filed by petitioner dated 14.5.99. The

Presenting Officer filed reply dated 4.5.99 and 28.5.99. Thereafter,

on 10.9.99, statement of petitioner was recorded before the Inquiry

Officer. On 17.8.99, inquiry officer submitted his report. The

permission was sought from Gujarat Panchayat Seva Mandal

seeking advise for passing punishment order by letter dated

21.9.99 and said Mandal gave advise on 5.11.99 and thereafter,

order of dismissal disqualifying petitioner from future employment

dated 16.11.99 was passed.

5. Initially Regular Civil Suit NO. 753 of 2000 was filed by

the petitioner before the Civil Court, Jamnagar wherein

respondents herein tendered one application Exh.11 under Order 9

read with Order 7 of CPC and 2nd Jt. Civil Judge, JD Jamnagar has

by order dated 3.12.2004 allowed said application Exh. 11 and

rejected plaint for want of jurisdiction under Order 7 Rule 11(d) of

CP Code by holding that the appellant should approach the

Tribunal. Appeal; No. 1 of 2006 was filed by petitioner before the

Tribunal Fr challenging aforesaid order of dismissal wherein the

Tribunal ‚passed order dated 24.4.2006 holding that the petitioner

should file departmental appeal before the DDO Jamnagar. The

petitioner approached the DDO Jamnagar by filing appeal which

came to be rejected by DDO Jamnagar by order dated 2/3.3.2007.

6. The petitioner was a Junior Clerk serving in the Primary

Health Center in village Pachhatar in Jodiya Taluka and for the

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charges levelled against him he was placed under suspension on

2.9.1998 and was served with charge sheet on 30.10.1998 and the

petitioner had filed his explanation on 21.12.1998 which was not

accepted by my predecessor in office who was the disciplinary

authority and he appointed an Enquiry Officer District Statistical

Officer of the District Panchayat to enquire into the charges

levelled against him in accordance with the disciplinary rules. The

petitioner was supplied all necessary documents and the petitioner

was heard in person after several dates of hearing, on 4.5.1999 by

the said Enquiry Officer who by his report dated 19.9.1999 held all

the charges as proved against the petitioner and consequently my

predecessor in office Shri A. B. Parekh after hearing the petitioner

accepted the report of the Enauiry Officer and passed the order

under sub-rule (6) of Rule 6 dismissing the petitioner from service

by his order dated 16.11.1999. The Rule petitioner preferred

appeal under Rule 14 of the Disciplinary Rules of 1997 to the

District Development Officer on 4.12.2006 which appeal No.

16/2007 was rejected by the District Development Officer by his

order dated 2 2.3.2007 and confirmed the order of the Disciplinary

Authority dismissing the petitioner from service. The said appellate

order of the District Development Officer was further challenged

before the Tribunal at Gandhinagar, which appeal was registered

as Appeal No. 120/2007. The same was heard on 27.12.2010 by the

Division Bench by its detailed judgment dated 25.4.2011

confirming the said order of penalty passed by the disciplinary

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authority and confirmed in appeal.

7. It appears that when Mr. Mundiya was kept under the

suspension, at that time, he might have handed over the entire

record which was lying with him in his charge to the Sr.Clerk while

discharging his duty on 04/05/1998 as per the instructions of his

immediate Controlling Officer. But Mr. Mundiya has shown the

reason that he was on Earned Leave before his suspension and the

case was pending in the Hon'ble Court. In this way he have done

unnecessary representations. Hence, the Administration found

necessary to carry out the procedure as per law to receive the

record-in-charge which was lying in the possession of Mr.Mudiya.

The record has been obtained by The Taluka Development Officer

through Panch Rojkam (Panchnama). Despite that, he (Mundiya)

should return the charge record on his discretion, which the

employee has failed to do so. On looking to this fact, the

clarification done by the employee cannot be acceptable in any

circumstances. Hence, charge No.1 mentioned in the Charge-Sheet

is believed to be proven completely. Mr.Mundiya have submitted

various false applications by himself as well as in the name of his

wife on different dates, making allegations against the Gazetted

Officer,to defame the Administration of District Panchayat, with an

ill intention and on baseless reasons, hence he have misused the

time and money of the administrative machinery. The Disciplinary

Officer of Mr.Mundiya have issued him Show-Cause Notice to

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produce the clarification for doing such activity. Instead of giving

satisfactory clarification or submitting representation as per the

rules, Mr.Mundiya have stated to go on fast according to Gandhiji's

path as well he had decided the program of self-immolation. Hence,

it could be revealed from the representation which he has done in

reply of the clarification of his charge that he has done slandered

behavior on trying to keep the Administration in hostage. Also in

his representation, he has repeated the same matter and it is

clearly found that he have tried to run the Administration as per his

wish. Looking to all the evidences which Mr.Mundiya have

produced in support of his Statement of Defense, it clearly supports

the charges which are imposed upon him. Hence, as it supports the

description made by the Presenting Officer, Charge no. -2 has been

proven to be very clear. The statement given on 14/07/1998 by the

Competent Authority with bona-fide intention regarding the

accounts of Petrol / Diesel / oil of the vehicles During the work of

Pulse Police immunization at District Panchayat, Jamnagar.

Regarding which Mr.Mundiya, according to his mental status, he

made false allegations against the Officer recording the statement

by submitting an application dtd. 15/07/1998 and the behavior

which he has done to seize the statement was not befitting to an

employee of Panchayat. The evidence which Mr.Mundiya has

produced in its support is totally false and fabricated, also it has

been produced with an intention to keep control upon

Administration as well as upon the Officer in the name of any

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Political Party. Hence, such has been established from the record

that, Mr.Mudiya has tried to fabricate the false record and have

done fruitless effort to make his lame defense. Hence, the

clarification done in Charge no. 3 is not found to be acceptable.

Hence, this Charge is also believed to be proven completely.

8. With regards to non examination of witnesses at the

stage of departmental inquiry the Tribunal has observed that there

are the applications, statements and representations as well as

correspondence of the Delinquent himself regarding the same in

the Charge-Sheet and such is not the reply of Delinquent that the

he (Delinquent) has not written the same. On deciding in its

reference, the Delinquent has not challenged these documents by

doing representation that these documents are false and are

fabricated. In such circumstances, the Department has relied only

upon these documents during the Departmental Inquiry and the list

of witnesses is not produced. Hence, the case of the Department

related to the departmental inquiry is only based upon the

documentary evidences. The documents are in the form of

applications, statements and letters of the Delinquent. There is no

dispute regarding this matter. In these circumstances, the

representation of the Learned Advocate of the Delinquent

mentioning that the Oral witnesses must be called to give the

deposition to prove the same, is not proper. His representation

before the Tribunal is such that these documents have not been

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proven by the statements of the witnesses, which could not be

acceptable. Also on looking to the details of the Departmental

Inquiry of the Delinquent himself, as an evidence of his defense, he

has also produced only the list of correspondence along with the

reply of Charge, and it has also been accepted. Because such has

not been informed by the Department that these correspondence or

Rojkam or statement have not been prepared. It should also be

noted that the Delinquent have also not given the names of the

Witnesses stating that he wants to examine such witnesses. Hence,

the case is based upon the correspondence forwarded to each other

from both the sides (parties), like the application, replies of the

application, departmental transactions regarding the same etc. In

these circumstances, looking to these evidences, the Inquiry Officer

has given his findings on the basis of these documents. The

Delinquent have not done the representation at the lower level that

the Departmental Inquiry is malicious.

9. The petitioner has participated in the due process of

inquiry has been given sufficient opportunity of hearing and

principles of natural justice are followed and therefore, this Court

considers the view of the Tribunal that there is no procedural lapse

to warrant interference. The petitioner has duly participated in the

inquiry and during inquiry, has not raised grievance about non

examination of witnesses, in fact petitioner himself had opportunity

to summon any witness which he has not availed how he is not

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permitted to take 'U' turn on the issue to raise a ground to vitiate

the inquiry.

10. Insofar as reliance placed by learned Advocate for the

petitioner in case of Saroj Kumar Sinha (supra) is concerned, the

Apex Court has dealt with the issue of non-supply of document was

on lame excuse that at the relevant time, the respondent was

posted in the same division and therefore, had excess to the very

documents. In the instant case, as is discussed in the preceding

paras, neither the petitioner has placed on record documents which

were required by him and relevance of such documents for the

purpose of his defence nor has pointed the manner in which such

non-supply of documents has prejudicially affected his defence.

11. Insofar as reliance placed by learned Advocate for the

petitioner in case of Ram Pal Singh Bisen (supra) is concerned, it

would be pertinent to observe that in that case, the Supreme Court

was examining the facts where order of dismissal from service was

questioned in a Civil Suit, wherein not only the order of dismissal

but also validity of inquiry was subject matter of challenge. It is in

those facts that the Supreme Court has observed in connection

with the Evidence Act and admissibility of the documents placed on

record pertaining to inquiry and such documents will have to stand

test of the Evidence Act by proving of the documents and its

contents before treating the same as admissible. In the instant

case, question raised by learned Advocate for the petitioner is

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pertaining to departmental inquiry and not with regard to

procedure in a Civil Suit.

12. In view of the aforesaid, no case is made for

interference with the judgment and order dated 18.04.2011 passed

by the Gujarat Civil Services Tribunal, Gandhinagar in Appeal

No.120 of 2007. The petition deserves to be and is hereby

dismissed. Rule is discharged. No order as to costs.

Sd/-

(A.Y. KOGJE, J) SHITOLE