Kamla Dahyabhai Patel vs State Of Gujarat
2022 Latest Caselaw 10227 Guj

     C/SCA/13492/2021                           ORDER DATED: 16/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13492 of 2021
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                        KAMLA DAHYABHAI PATEL
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
MR RONAK B. RAVAL, AGP for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 16/12/2022
                   ORAL ORDER

1. Rule. Learned Assistant Government Pleader waives service of notice on behalf of the respondent No.1.

2. Pursuant to the order passed by this Court dated 15.12.2022, Dr.Trupti A. Desai, (I/c) Additional Director of Medical Services, is present before this Court.

3. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

4. While issuing notice, vide order dated 22.09.2021, this Court had passed the following order :-

"1. Heard learned Advocate Shri S.P. Majmudar with learned Advocate Shri H.J. Karathiya for the petitioner.

2. By way of this petition, the petitioner challenges a charge-sheet issued to the petitioner on 01.07.2021. It appears that the charge-sheet for the very selfsame charges had been issued to the petitioner, which had resulted in the removal of the petitioner after full-fledged departmental inquiry and whereas the order of the Departmental Authorities was the subject matter of challenge before this Court by way of Special Civil Application No.9917 of 2007 and whereas vide order dated 11.03.2019, a Coordinate Bench of this Court had

C/SCA/13492/2021 ORDER DATED: 16/12/2022

been pleased to set aside the impugned order of removal and whereas the petitioner was directed to be reinstated in service with all consequential benefits except for 50% of the backwages. The said judgment of the learned Single Judge had been subject matter of challenge by State before a Division Bench and whereas vide order dated 17.12.2020 in Civil Application No.3049 of 2020 in Letters Patent Appeal (Filing) No.12931 of 2020, the Division Bench of this Court had been pleased not to condone the delay. The decision of the learned Single Judge has thereupon attained finality since the order of the Division Bench had not been in challenged before the Hon'ble Supreme Court. It appears that thereafter, proceedings under the Contempt of Courts Act had also been initiated. Ultimately vide order on 03.11.2020, the petitioner had been reinstated in service with benefits as directed to be granted by this Court. It further appears that inspite of the departmental proceedings for the charges levelled against the petitioner being quashed and set aside by this Court, again a fresh chargesheet for the very same charges has been issued to the petitioner on 01.07.2021.

It thus, appears that the respondent Authorities are attempting to overreach the due process of law by issuing a fresh charge-sheet to the present petitioner, more particularly, when entire issue had been adjudicated in favour of the petitioner by this Court.

3. In this view of the matter, issue Notice returnable on 01.10.2021.

The respondent No.2 shall file an affidavit by the said date informing this Court about the process which had been undertaken before issuance of charge-sheet dated 01.07.2021 and whereas the respondent No.2 shall also state his reasons as to why proceedings under the Contempt of Courts Act should not be initiated against the said officer or all such officers, who were involved in the decision making process with regard to the charge-sheet dated 01.07.2021 impugned in this petition.

By way of interim relief, it is directed that there shall not be any further proceedings with respect to to the charge-sheet impugned in this petition.

Direct service is permitted."

5. The Coordinate Bench had, by way of interim relief, stayed the further proceedings initiated pursuant to the charge-sheet dated 01.07.2021.

6. The facts, which are admitted by the learned Assistant Government Pleader that by the judgment dated 11.03.2019,

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this Court had set aside the order of removal dated 30.03.2007 as well as the inquiry Officer's report dated 20.09.2004 for the charge-sheet issued on 17.03.2004 inter alia alleging that the petitioner had violated Rule 3(1)(3) and Rule 26(1)(2) of the Gujarat Civil Services (Conduct) Rules, 1971. It is further alleged in the charge-sheet that the petitioner was living with one doctor namely Paresh Patel despite the fact that he had an existing wife Illaben.

7. After a comprehensive judgment dated 11.03.2019 passed in Special Civil Application No.9917 of 2007, this Court passed the following order : -

"13. In the considered opinion of this Court, the disciplinary proceedings is held in violation of principles of natural justice and dehors the provisions of Rule 9 of Gujarat Civil Services (conduct) Rules, 1971 which prescribes the procedure for imposing the major penalties. In the instant case, the provisions of Rule 9(13) and 9(16), which provide for examination, cross-examination and re-examination of the witnesses are violated, since the essential witnesses are not examined in the departmental proceedings. Furthermore, there is no findings given by the Inquiry officer on the customary divorce of the husband of the petitioner.

14. Under the circumstances, in view of the aforesaid analysis, the present writ petition is allowed. The impugned order of removal dated 30.03.2007 as well as the Inquiry Officer's report dated 20.09.2004 are hereby quashed and set aside. The petitioner shall be reinstated in service with all the consequential benefits with continuity of service. The continuity of service shall be considered for all purposes including grant of increments as well as seniority and retiral benefits. However, it is clarified that the petitioner shall be entitled to 50% backwages as the impugned proceedings are set aside on the faulty procedure. Appropriate orders in terms of the directions of this Court shall be passed within a period of three months from the date of receipt of this order. Rule is made absolute."

8. The said judgment was assailed by the State Authority by filing F/Letters Patent Appeal No.12931 of 2020, by the order dated 17.12.2020 passed in Civil Application No.3049 of 2020.

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The Division Bench refused to condone the delay and hence, the judgment passed by this Court 11.03.2019 had become final. Thereafter, the petitioner filed contempt application and accordingly, the judgment was complied with. However, to the surprise of the petitioner, the respondent authorities again issued the charge-sheet dated 01.07.2021 for the very same charges / misconduct, which was set aside by this Court vide judgment dated 11.03.2019 passed in Special Civil Application No.9917 of 2007. Thus, in blatant disregard to the directions issued by this Court setting aside the entire proceedings as well as the punishment of removal, again the respondent authority has resurrected the charges by issuing a fresh charge-sheet dated 01.07.2021. When this was noticed by this Court, the Coordinate Bench has in fact opined that why proceedings under the Contempt of Courts Act should not be initiated against the said officer or all such officers, who were involved in the decision making process with regard to the charge-sheet dated 01.07.2021.

9. It is noticed by this Court that the entire action has been taken in view of the communication dated 24.06.2021 written by the Section Officer, Health and Family Welfare Department to the erstwhile Additional Director. This Court has perused the communication dated 24.06.2021 written by the Section Officer, Health and Family Welfare Department - Mr. A.G. Chaudhari. The said communication is ordered to be taken on record. The said communication nowhere reveals that the judgment passed by this Court or the Division Bench has been appropriately considered and thereafter, the directions are issued to again initiate the departmental proceedings.

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10. Today, when the matter is taken for hearing, learned Assistant Government Pleader has submitted that due to misinterpretation of the directions issued by this Court in the afore-noted paragraph No.14, the authorities thought it fit that they can re-initiate inquiry from the stage of the defect. Learned Assistant Government Pleader Mr.Raval, has further submitted that accordingly, the fresh charge-sheet was issued on 01.07.2021.

11. Learned Assistant Government Pleader on instruction of the Officer - Dr.Trupti A. Desai (I/c) Additional Director, Medical Services has submitted that Dr.H.K.Bhavsar, who was the Additional Director, had initiated charge-sheet has already retired and the present Officer, who is present before this Court, has candidly and honestly accepted that she would not be approving the action taken by the then Additional Director, Dr.Bhavsar. It is noticed by this Court that before initiating the charge-sheet dated 01.07.2021, no consultation has been done with the Government Pleader's Office, neither the learned Assistant Government Pleader, who had appeared in the matter was consulted nor learned Government Pleader was consulted in the matter. If there was any confusion or misunderstanding with regard to the judgment dated 11.03.2019 passed in Special Civil Application No.9917 of 2007, It was always open for the concerned Officer to seek clarification either before this Court or before the Division Bench, before issuing fresh charge-sheet. No liberty was reserved by this Court for issuance of fresh charge-sheet or

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conducting the departmental proceedings from the stage of defect.

12. No such application was made. Neither any request was made before the Division Bench nor any sense of the learned AGP was taken, who had appeared in the matter, the concerned officer had issued the charge-sheet again alleging the same charges, which was already set aside by this Court.

13. Under the circumstances, in light of the aforesaid facts and in view of the statement made before this Court, the impugned charge sheet dated 01.07.2021 deserves to be quashed and set aside.

14. Since the Officer, who is present before this Court has opined that such action could not have been taken by the erstwhile Additional Director, as it would be in teeth of the directions issued by this Court, this Court is refraining itself in initiating any contempt proceedings or imposing any cost.

15. With these observations, the writ petition stands allowed. The impugned charge sheet dated 01.07.2021 is hereby quashed and set aside. Rule is made absolute.

(A. S. SUPEHIA, J) MB/ 05