IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9285 of 1993 For Approval and Signature: HON'BLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? 1 to 5 NO -------------------------------------------------------------- MEMA GOVIND MARAND Versus EXECUTIVE ENGINEER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9285 of 1993 MR BY MANKAD for MR YS MANKAD for Petitioner No. 1 MS MANISHA LAVKUMAR AGP for Respondent No. 1,5 RULE SERVED for Respondent No. 2-4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 16/04/2004 C.A.V. JUDGEMENT 1. By this petition under Article 226 of the Constitution, the petitioner has sought quashing of the order dated 17.8.1991, whereby the break in service of the petitioner from 28.9.1988 to 6.2.1990 is ordered to be treated as extraordinary leave without payment of any wages or allowances for the period. 2. The relevant facts in brief are that the petitioner was recruited in 1979 under the rules which required the candidate to pass pre-service training examination. When the petitioner appeared in the examination in the year 1981, he was alleged to have been detected to be copying and, after calling for his explanation, he was dismissed by order dated 21.1.1988. The petitioner filed an appeal which was not expeditiously heard and hence a petition was filed in this Court, under the orders of which the appeal was required to be decided by 30.11.1989. Pending that petition, an order dated 1.3.1990 was made to reinstate the petitioner subject to result of the departmental enquiry which could not be held in time due to unavailability of material regarding malpractice alleged to have been indulged in at the examination by the petitioner. It must be noted here that the earlier order dated 21.9.1988 dismissing the petitioner had noted the fact that the departmental head, under whom the petitioner was posted, had not taken necessary action in time and the petitioner had been granted the advantage of unauthorised continuance in service for seven years. Upon the conditional order of reinstatement made on 1.3.1990, the petitioner made several representations for getting all the benefits flowing from the order of reinstatement. On 2.4.1990, an order stating that the petitioner was liable for penal actions was made and he was declared to have failed in the examination held on 19.12.1986. On that basis, the petitioner reiterated his demand of pay and allowance for the period during which he was dismissed and not in service. Then, the impugned order dated 17.8.1991 ensuring continuity of service without pay and allowance for the intervening period of 497 days was made. The petitioner had also approached the Guajrat Civil Service Tribunal for the arrears of his pay for the period from 28.9.1988 to 6.2.1990, but that appeal was dismissed on the ground that the Tribunal had no jurisdiction in respect of the subject-matter. 3. It was vehemently argued by learned counsel Mr.Mankad that the order dated 2.4.1990 imposed the punishment of declaring the petitioner as having failed in the examination and thereafter further punishment by way of denial of wages and allowances for the period from 28.9.1988 to 6.2.1990 was neither legal nor justified nor preceded by any enquiry or an opportunity of being heard. It was also submitted that the order declaring the petitioner to have failed in the examination having been accepted and not challenged by the petitioner, no further penalty could have been imposed and the order of reinstatement must be treated as order for reinstatement with all consequential benefits, including pay and allowances. Rule 152 of the Bombay Civil Service Rules, 1959 (BCSR) was relied upon to submit that appropriate order with regard to pay and allowance was required to be passed by the competent authority and denial of pay and allowance was not justified in the facts of the case. 4. The petitioner clearly appears to have conveniently mixed two separate consequences of his being caught while indulging in some malpractices at the examination held in 1981. According to the first order dated 21.9.1988 dismissing the petitioner, the petitioner was already declared to have failed in the examination as one of the consequences and he was dismissed as a punitive measure for the misconduct of dishonesty as the other consequence. Thereafter, the order dated 1.3.1990, by which the petitioner was reinstated, was a conditional order contemplating an enquiry as soon as the relevant material was available and the order of reinstatement was expressly made subject to the result of the contemplated enquiry into the alleged misconduct. That order appears to have been hurriedly made under the shadow of pending proceedings in the High Court after about nine years of the commission of the alleged misconduct. Thereafter, no enquiry as contemplated in the order dated 1.3.1990 is stated to have been held and the order dated 2.4.1990 declaring the petitioner as having failed at the examination is clearly a futile exercise and not an order of punishment since the petitioner was already declared to have failed as stated in the order of dismissal itself. In any case, the repeated assertions of learned counsel Mr.Mankad on behalf of the petitioner that he had accepted and not challenged the order dated 2.4.1990 only indicated that the petitioner had indirectly accepted the allegation of malpractice in the examination. Viewing it in that context, the impugned order dated 17.8.1991 allowing the period from 28.9.1988 to 6.2.1990 as extraordinary leave appears to be in favour of the petitioner and that part of the order is accepted by him. An order to give full pay and allowances, to which a government servant would have been entitled had he not been dismissed, removed or suspended, can be made only if the competent authority is of the opinion that the government servant had been fully exonerated of the charges levelled against him. In other cases, a government servant can be given such proportion of pay and allowances as the competent authority may prescribe in accordance with the provisions of Rule 152 of the BCSR. 5. It is apparent from the summary of facts discussed hereinabove that the officers of several departments joined in the petition as respondents have shown extraordinary lethargy or laxity in taking action against the petitioner resulting into his summary dismissal after seven years of the alleged misconduct and a hurried order of reinstatement pending disciplinary proceedings. Even thereafter, the enquiry is not held and futile and meaningless order to declare the petitioner as 'failed' in the examination is made as though disciplinary action was to be concluded thereby. And, after one-and-half years of that order, the impugned order is made which has the effect of denying to the petitioner wages for the period of 497 days during which he was dismissed. Since the departmental enquiry, subject to the result of which the petitioner was reinstated, is not held and the petitioner is not fully exonerated of the charges levelled against him, the petitioner cannot claim, as a matter of right, quashing of the impugned order. In fact, the petitioner appears to have somehow continued in service for seven years even after having failed in the pre-service qualifying examination and then never faced the enquiry while diligently pursuing remedies for recovery of full pay and allowances. Thus, the petitioner has not approached the Court with clean hands and having no enforceable statutory right to the relief claimed, the petition is liable to be dismissed. 6. The judgments in A.A.BHOIRA v. STATE OF GUJARAT [2003 (3) GLR 2756] and in DHANGAURI VALJI BHATT v. DISTRICT PANCHAYAT, AMRELI [1981 GLR 320] have no application in the peculiar facts of this case and particularly in view of the conditional order of reinstatement and inchoate state of proceedings against the petitioner. 7. Accordingly, the petition is rejected and Rule is discharged with no order as to costs. Sd/- ( D.H.Waghela,J.) (KMG Thilake)