SCA/788420/2005 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7884 of 2005 With SPECIAL CIVIL APPLICATION No. 12170 of 1993 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 ? ================================================== B. R. ACHARYA - Petitioner(s) Versus DIRECTOR, SOCIAL DEFENCE DEPARTMENT & 1 - Respondent(s) ================================================== Appearance : SCA/788420/2005 2/15 JUDGMENT MRS KETTY MEHTA for Petitioner(s) in SCA No.7884/2005 MR J.B. PARDIWALA for Petitioner in SCA No.12170/1993 MR JASHWANT K. SHAH, AGP, for Respondent(s) : 2, ================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/12/2008 ORAL JUDGMENT 1.0 The petitioner has prayed to quash and set aside order dated 14 th March 2005 passed by Member, Gujarat Civil Services Tribunal in Appeal No.142 of 1998, whereby the Tribunal has dismissed the appeal. The operative part of the order reads as under: “The appeal is dismissed. However, respondents are directed to get the orders passed by the Government for the conclusion in the Inquiry as final order, instead passing order by respondent No.1, as required to Clause 189 of the BCS Rules. It is clarified that this order in this appeal shall not affect the conclusion of the Inquiry against the appellant.”. SCA/788420/2005 3/15 JUDGMENT 2.0 The petitioner was appointed by the respondent and subsequently he was promoted to class II post. However, the respondent authority transferred the petitioner to non-gazetted post which decision was challenged by way of Special Civil Application No.4199 of 1986 wherein this Court directed the petitioner to make a representation before the State Government. 2.1 Thereafter the respondent No.1 passed an order on 19 th February 1994 terminating the services of the petitioner. 2.2 The petitioner challenged the said decision by filing Special Civil Application No.2739 of 1994 in which the order dated 19 th February 1994 came to be quashed and set aside. This order was passed after the petitioner reached the age of superannuation. This Court had also observed that the issue regarding competence of authority is under challenge and further directed the respondent authority to conduct the inquiry in accordance with law within three months. 3.0 The respondent no1. again started departmental proceedings by appointing Inquiry Officer for non-gazetted employees. Though SCA/788420/2005 4/15 JUDGMENT the petitioner objected, the departmental proceedings were taken and order dated 30 th December 1997 came to be passed whereby the petitioner was dismissed from service. This order was passed with retrospective effect. The petitioner has therefore challenged the said order dated 30 th December 1997 by filing Appeal No.142 of 1998 before Civil Services Tribunal. 3.1 The Tribunal vide order dated 14 th March 2005 dismissed the said appeal against which the above Special Civil Application No.7884 of 2005 came to be filed. 4.0 Learned Advocate for the petitioner submitted that the respondent has committed an error in instituting the initiation of proceedings after the petitioner has retired on 31 st January 1996 and therefore the notice issued by the respondent is bad in law. 4.2 He submitted that the proceedings which are instituted are contrary to the statutory provisions and in view of several judgements of this Court the proceedings are required to be quashed and set aside. 4.3 He as also relied upon provisions of 189A of Bombay Civil SCA/788420/2005 5/15 JUDGMENT Service Rules (BCSR) and submitted that the entire proceedings are against the provisions of law and require to be set aside. 5.0 Mr. Jashwant Shah, learned Advocate for the respondent submitted that the order passed by the learned Tribunal is just and proper. He submitted that a bare perusal of para 4 of the judgement in Special Civil Application No.2739 of 1994, which is quoted hereinafter, would show that it was only continuation of the proceedings which was subject matter of Special Civil Application No.2739 of 1994. He therefore submitted that the contention that the provisions of section 189A of BCSR will apply to the facts is misconceived and the proceedings were already instituted prior to the date of retirement. 5.1 He submitted that the respondent no.1 has jurisdiction to conduct the departmental inquiry against the petitioner. According to him in the order dated 5.5.1997 this Court directed the disciplinary authority to hold and complete the inquiry into the alleged misconduct within a period of three months from the date of receipt of order and make necessary orders in accordance with law. The order dated 19.2.1994 was quashed this Court keeping in view the fact that petitioner had already attained the age of superannuation. SCA/788420/2005 6/15 JUDGMENT 5.2 Mr. Shah submitted that the Departmental proceedings were initiated in view of the direction issued by this Court and therefore such an inquiry conducted as per the directive of this Court cannot be considered to be contrary to Rule 189-A of BCSR or illegal or arbitrary. 5.3 He has further submitted that the petitioner was admittedly absent from duty and there was serious misconduct and therefore the present petition deserves to be dismissed. 6.0 As a result of hearing and perusal of the record, certain aspects are not in dispute. On transfer of the petitioner to Vadodara, he did not report for duty as his stand was that as per the judgement of this Court in Special Civil Application No.806 of 1975 and as per Notification dated 30 th October 1979 and 13 th November 1979 he was gazetted Class II Officer and therefore the State Government is the only competent authority for any service action in his case. However, this situation was brought to an end by order of this Court passed in Special Civil Application No.2342 of 1980 by Division Bench. Special Civil Application No.2215 of 1979 filed by the petitioner claiming as Class II Officer’s status was allowed by this Court and the State Government was directed to SCA/788420/2005 7/15 JUDGMENT place the petitioner and other offices in Class II service. Thereafter the Government had abolished Class II for probation officers by amending the relevant rules with effect from January 8, 1980 and therefore the petitioner filed Special Civil Application No.2342 of 1980. The Division Bench of this Court dismissed the said petition of the petitioner on 23.10.1980 against which SLP No.4023, 4081 and 5754 of 1981 were filed which also came to be dismissed. It is also required to be noted that the argument that the petitioner belogns to Class II cadre has been rejected by this Court by order dated 13.03.1999 in Special Civil Application No.7267 of 1992. 6.1 Against the order of dismissal order dated 19 th February 1994 the petitioner had filed Special Civil Application No.2739 of 1994. In the said petition this Court had passed order on 5 th May 1997. Para 4 of the said order reads as under: “4. However, keeping in view the alleged conduct of the petitioner in remaining absent from duty without authority since October 1989, and keeping in view the fact that petitioner had already attained the age of superannuation, I deem it appropriate to quash the order and direct the disciplinary authority to hold and complete the enquiry into the alleged misconduct within SCA/788420/2005 8/15 JUDGMENT a period of three months from the date of this order and make necessary orders in accordance with law. Since the contention is about petitioner not discharging any duty for the last so many years, claim of any emoluments for that period or other service benefits like promotions can be considered only after the enquiry into the alleged misconduct of remaining willfully absent from duty is concluded in the light of findings reached thereon.” (emphasis supplied) 6.2 It is required to be noted that the above order has been passed on his own motion before this Court. It is in his petition the order for fresh inquiry has been passed. The charge of willful absent from duty was already there as he had not joined duty at Vadodara on his transfer. The willful absence is proved from 18.10.1989 and consequently the order of dismissal was passed. Therefore, the contention that his dismissal cannot be retrospective may not be accepted. 6.3 Further the proceedings were already instituted prior to the date of retirement and this court has permitted inquiry by the aforesaid order when the petitioner has reached the age of SCA/788420/2005 9/15 JUDGMENT superannuation. Therefore it cannot be said that the proceedings are not continuation of the earlier proceedings. 6.4 As regards the provisions of section 189A of the Bombay Civil Service Rules, the said section reads as under: “189-A: The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniaryloss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including services rendered upon re-employment after retirement: Provided that - [a] such departmental proceeding, if instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall after the final retirement of the Government servant be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service. [b] such departmental proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment - SCA/788420/2005 10/15 JUDGMENT [i] shall not be instituted save with the sanction of the Governor; [ii] shall not be in respect of any event which took place more than 4 years before such institution; and [iii] shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in elations to the Government servant during his service; [c] no such judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shalal bae instituted in respect of a cause of action which arose or an event which took place more than 4 years before such isntiuttion; and [d] the Gujarat Public Service Commission shall be consulted before final orders are passed. 6.5 However, as the proceedings were already initiated in the present case and in view of the order of this Court dated 5 th may 1997 passed in SCA No.2739 of 1994, I am of the view that the provisions of section 189A will not be applicable to the facts of the present case. While remanding the matter to the Tribunal this SCA/788420/2005 11/15 JUDGMENT Court has allowed to continue the proceedings as the same were already initiated prior to the date of retirement. 6.6 It is also required to be noted that the petitioner has attained the age of superannuation on 31 st January 1996 and while allowing the respondent to continue the disciplinary proceedings the court has used the words “continuation of departmental proceedings. Therefore it is clear that it is not an exception as contemplated under section 189 of BCSR. 6.7 The other contention that the Director is not an appropriate authority is concerned it is also already concluded as per the order passed in Special Civil Application No.2342 of 1980 wherein the Division Bench has dismissed the petition challenging the abolition of class II for Probation Officers by amending the relevant rules with effect from 8 th January 1980. 6.8 The Tribunal in the order 14 th March 2005 passed in Appeal No.124 of 1998 observed as under: “4. Reading Judgement in Special Civil Application No.2739 of 1964 filed by the appellant against his SCA/788420/2005 12/15 JUDGMENT dismissal order dated 19.2.94, Hon'ble the High Court quashed the order as it was found to have been passed without inquiry and as such it was against Art.311 of the Constitution and it was directed to complete the Inquiry within 3 months from the receipt of that order. That order is dated 5.5.97 and it is also mentioned that the appellant had already attained the age of superannuation. It was well within the frame of the order and Judgement of Hon'be the High Court that on the date of that order on 5.5.97, the appellant was no more employee as he stood retired on 31.1.1996. Since on his own motion of the above petition the order ensued to Inquire afresh. It is out of question as to consider the submission that dismissal cannot be retrospective because the charge of willful absent from duty was already there as the appellant did not join at Baroda on his transfer which was required to join on 18/10/89. The willful absent on duty is proved from 18.10.89 and consequent upon the same, the dismissal is ordered from 19/10/1989. 5. Since the order is passed when the employee/appellant is already retired, it ought to have been passed by the Government. The submission of the respondents is to the effect that since Hon'ble the High Court has already considered that the appellant was retired even on the date of its order which was passed on 5.5.97, the proceedings were continuous proceedings and it was correctly passed by the Director. We are unable to accept this contention and we hold that the consequential order ought to have been passed by the Government under Cl.189 of the B.C.S. Rules. SCA/788420/2005 13/15 JUDGMENT 6. The contention that he filed the brief by FAX was delayed by one day and it was not at all considered and on the previous day i.e. On 24.11.97, the Inquiry Officer passed his order has no bearing with the merits because, the Inquiry was to be competed within 3 months as per the direction of Hon'ble the High Court and it was already delayed by intervening the progress by the appellant who wrote 3 applications during 13.10.97 to 30.10.97 and it was but natural for the Inquiry Officer not to become an instrument to delay the report even for a day, and there seems nothing wrong if had prepared his report on the date fixed.” 7.0 Learned Advocate for the respondent has relied upon a decision in the case of State of M.P. And others Vs. Dr. Yashwant Trimbak, reported in (1996) 2 SCC 305, wherein it is held that the Administrative Tribunal was wholly incompetent to examine the legality of the impugned order and wholly in error in quashing the order on the ground that the Governor had not executed the same. 7.1 In the case of State of Rajasthan and another Vs. Mohd. Ayub Naz, reported in (2006) 1 SCC 589 it is held that the order of removal from service is the only proper and proportionate SCA/788420/2005 14/15 JUDGMENT punishment to be awarded to respondent employee who was willfully absent for three years without intimation to the Government. In this case the punishment of removal from service for willful absenteeism without intimation, imposed by disciplinary authority was restored by the Apex Court. 7.2 In the case of Bipinchandra Parshottamdas Patel (Vakil) V. State of Gujarat, reported in (2003) 4 SCC 642 it is held that the plea to give a restricted meaning to “trial” so as to include only the proceedings subsequent to framing of charges is rejected. 7.4 In the case of K.B. Desai V. State, reported in 1984(1) 556 it is held that Departmental Inquiry is initiated only when the show cause notice is served and such proceeding must be initiated while the Government Servant is in service. 8.0 No other contentions are raised. 9.0 In view of the above I am in complete agreement with the reasonings adopted and findings arrived at by the Tribunal and no case is made out to cause interference. The Special Civil Application No.7884 of 2005 is therefore rejected. Rule is discharged with no order as to costs. SCA/788420/2005 15/15 JUDGMENT 10.0 As regards Special Civil Application No.12170 of 1993 is concerned, the same is for other benefits. Since the above Special Civil Application No.7884 of 2005 has been rejected and in view of observations made in Special Civil Application No.2739 of 1994 no further orders is required to be passed in this petition. The petitioner has been dismissed with effect from 1989. Originally the proceedings were initiated for absenteeism from October 1989 and therefore the dismissal order is given effect to that date. Admittedly the petitioner has not worked after October 1989. Therefore no benefits can be granted to the petitioner during the period in question. This petition is therefore rejected. Rule is discharged with no order as to costs. [K.S. JHAVERI, J.]