Champak Chimanlal Morakhia vs State Of Gujarat
2023 Latest Caselaw 672 Guj

     C/SCA/7539/2011                              JUDGMENT DATED: 25/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7539 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 or any order made thereunder ?

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                       CHAMPAK CHIMANLAL MORAKHIA
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1.1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 25/01/2023

                              ORAL JUDGMENT

1. The present petition is filed praying for the

following reliefs:

C/SCA/7539/2011 JUDGMENT DATED: 25/01/2023

"14(A) Quashing and setting aside the departmental inquiry against the petitioner as well as the order of dismissal dt.21.9.1999, the appellate order dt.23.3.2004 and the reviewing order dt.9.3.2011, and direct the Respondents to reinstate the petitioner in service with all consequential benefits including back wages with interest.

(A) Your Lordships may be pleased to quash and set aside order of respondent authority dated 21.9.1999 as confirmed by respondent appellate authority by order dated 23.3.2004 as well as order of respondent authority dated 9.3.2011 refusing to review and reconsider punishment and be further pleased to declare that the punishment of dismissal imposed against petitioner is extremely harsh and same would be required to be replaced by any punishment other than dismissal and with such direction, be pleased to direct respondents to reconsider his case sympathetically.

(B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to grant relief as prayed for in para 14(A) as interim or ad interim relief in interest of justice.

(C) Grant such other and further reliefs deemed just and proper in facts and circumstances of case."

2. The brief facts leading to filing of this petition

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are such that the petitioner was appointed as Junior

Clerk on 1.9.1982 and worked as such upto 30.6.1987 in

Technical Education Department, Old Sachivalaya,

Gandhinagar. Thereafter, upon his selection through the

GPSC as Taluka Development Officer (TDO for short), he

had taken probationery training from 2.7.1987 to

30.6.1988 as directly recruited TDO. He worked at

different places as TDO at different places from 2.7.1988

to 22.9.1999. Thereafter, on 21.9.1999, he was dismissed

from service as per the order of the Panchayat and

Rural Housing Department, Gujarat State, Gandhinagar.

Against the order of dismissal, the petitioner preferred

appeal dated 5.11.1999 and 23.1.2001 to the Principal

Secretary to Hon'ble Chief Minister. As the appeal was pending for very long time, the petitioner preferred

Special Civil Application No.10117 of 2003 challenging

the dismissal order dated 21.9.1999. The said petition

was disposed of vide order dated 18.7.2003 directing the

appellate authority to decide the pending appeal.

Thereafter, the petitioner again made a representation on

17.5.2004 to the respondent authority to reconsider and

review the punishment of dismissal. As nothing proceeded

further, the petitioner again made a representation dated

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19.10.2010 as a reminder to the previous representations.

Finally, vide order dated 9.3.2011, the representations

were rejected. Therefore, the petitioner filed this petition

challenging the order of dismissal dated 12.9.1999, the

order of appellate authority dated 23.3.2004 and refusal

of the respondent authority to review his punishment of

dismissal.

3. Heard learned advocate Mr.Vyas for the

petitioner and learned APP Ms.Ashar for the respondent-

state.

3.1 Learned advocate Mr.Vyas for the petitioner

submitted that representations made by the petitioner to the respondent authority are not dealt with by the

authority. He has further submitted that though advise

of Gujarat Public Service Commission (`GPSC' for short)

is taken into consideration but it is not supplied to the

present petitioner which jeopardized the valuable right of

the present petitioner. He relied on the judgment of the

Hon'ble Apex Court in the case of Union of India and

Ors. V/s S.K.Kapoor reported in 2011(4) SCC 589. He has further submitted that in view of the Rule (9)(17) of

C/SCA/7539/2011 JUDGMENT DATED: 25/01/2023

the Gujarat Civil Services (Disciplinary) Rules, 1971, the

respondent has not applied that rule and the petitioner

had no opportunity to explain the circumstances against

him. He has relied on the judgment of this Court in

Special Civil Application No.7317 of 2004 in the case of

Faridaben Ahmedhusen Qureshi wd/o Ahmedhusen L Qureshi V/s State of Gujarat.

3.2 Learned advocate Mr.Vyas further submitted

that when in the year 2004, his appeal was dismissed,

he has immediately made representation for reviewing

the order of dismissal but it was not paid any heed and

therefore in the year 2010, he has made another

representation and therefore he has submitted that it

cannot be said that the petition is barred by delay and laches as the petitioner is pursuing his remedy

throughout from the date of dismissal till the date of

representation in the year 2010. He has lastly

submitted that the punishment which is rendered by the

disciplinary authority is disproportionate to the alleged

act as no financial loss is occurred. He has further

submitted that even at the time of such action taken

against the petitioner, the petitioner was serving as

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probationer and therefore, referring to the necessary

notes which is produced along with the petition, he

submitted that the action taken against the petitioner is

bad in law and required to be interfered with.

4. Per contra, learned APP Ms.Ashar has raised several contentions and has disputed the averments made

in the present petition. She has also relied on the

affidavit-in-reply filed by the respondent authority and

has pointed out from the affidavit-in-reply that the

petitioner has challenged his dismissal order dated

21.9.1999 and the order of appeal dated 23.3.2004,

whereas the petition is filed on 31.5.2011 i.e. after a

delay of seven years from the date of order passed in appeal and the petition is required to be dismissed on

this sole ground only. She has further submitted that in

the order passed by the respondent authority dated

9.3.2011, the authority has clarified that neither the

representation dated 17.5.2004 nor any other letter before

19.10.2010 was received by the office of the respondent.

It is also required to be noted that the petitioner being

Class II officer, the authority can review his case, the

case of the petitioner was reviewed by the authority.

C/SCA/7539/2011 JUDGMENT DATED: 25/01/2023

Therefore, once the case of the petitioner is reviewed, the

same matter cannot be reviewed again by the same

authority.

4.1 She has further submitted that the petitioner

was charged with different charges in the chargesheet

and most of them were proved and therefore the order

passed by the authority is just and proper and not

required to be interfered with. She has further submitted

that the petitioner has joined services as Junior Clerk

and thereafter he had appeared in the exam for direct

recruitment of TDO and therefore, he being directly

recruited person, there is no question of reverting him to

a junior post. She has further submitted that during the period of probation, if any irregularity or illegality is

found then the person can be removed from the services

by giving notice only. In the present case, the respondent

authorities have followed procedure of departmental

inquiry, even though the petitioner was on probation.

Therefore, the petitioner is not having any right of

challenging the action of dismissal.

4.2 She has also pointed out from the inquiry

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report by mentioning that the defence witness cited by

the petitioner himself, Shri G.D.Thaker who has deposed

on 30.9.1995 has supported the version of the respondent

authority and has also supported the factum that in the

year 1990-91, the petitioner has granted loans/financial

assistance in 144 cases of 11 villages. In addition to

that, 38 other persons of Bildi village who are not

included in the project are also provided loans and this

shows the volume of the misdeed of the present

petitioner. In any case, the disciplinary authority has

given cogent and convincing reason for arrival of such

punishment which cannot be considered as harsh or

disproportionate from any angle looking to the gravity of

the offence, which is also confirmed by the appellate authority and therefore, she has submitted that there is

no case made out for any interference by this Court and

the petition deserves to be dismissed.

5. I have considered the rival submissions and I

have also considered the submission that the

representations made by the petitioner is not considered

by the authority. With regard to that, I have perused

the affidavit-in-reply wherein it is categorically stated

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that no such representation is received by the respondent

authority. Even otherwise, for the sake of argument, if

we believe that the representation is made in the year

2004, then also till 2010, the petitioner has done nothing

and remained silent, which conduct also speaks about the

delay on the part of the petitioner and therefore that

contention is required to be negatived.

6. Further, there is substance in the submission

of the learned AGP on behalf of the present respondent

authority that though the dismissal order is passed in

the year 1999 and the order of appeal is passed in 2004,

the petitioner has remained negligent and not pursued

the remedy till 2011, as the petitioner was serving in Class II cadre as TDO and challenge to such action of

the respondent authority taken in the year 1999 which

is confirmed by the appellate authority in appeal in 2004

after such long delay of seven years cannot be considered

sympathetically and therefore the petition is apparently

hit by principle of delay and laches.

7. With regard to the other contention about the

non-compliance of Rule 9(17) of the Disciplinary Rules,

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from the perusal of the entire record and more

particularly, the entire process of the disciplinary

authority that though the petitioner was on probation

and the department could have terminated the services

of the petitioner by issuing simple notice for termination,

instead of doing so, the department thought it fit to go

for full-fledged inquiry. Moreover, the communication of

the GPSC is formal in nature and such non-supply of

the document is apparently not causing any harm to the

rights of the petitioner.

8. Moreover, looking to the serious charges

levelled against the petitioner, which are serious in

nature and which are proved conclusively cannot be viewed lightly considering the fact that the post which

was held by the present petitioner in the cadre of TDO

is very responsible post. Therefore, I find that

disciplinary authority, after holding full-fledged inquiry,

has not committed any error in awarding the punishment

which is also found in proportionate to the charges

proved against the present petitioner.

9. With regard to the submission on behalf of the

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petitioner that the petitioner being on probation, the

authority could have extended the probation for the

charges levelled instead of imposing such harsh

punishment cannot have any relevance in deciding the

present petition in view of the above discussion.

10. With regard to the citations cited by learned

advocate for the petitioner, there cannot be any

disagreement with regard to the principles laid down

therein but those judgments are not applicable to the

facts of the present case as the facts of the present case

are totally different.

11. The order of dismissal of the respondent

authority dated 21.9.1999 as well as the order of the appellate authority dated 23.3.2004 are found just, legal

and with proper reasons and no arbitrariness is found so

as to warrant interference by this Court by exercising

powers under Article 226 of the Constitution of India.

12. Accordingly, this petition is dismissed. Rule is

discharged. No order as to costs.

(SANDEEP N. BHATT,J) SRILATHA