Back
Gujarat High Court
Judgename :N.J.Pandya, S.D.Pandit
Anshumali B.Lowalekar - Appellant
Versus
STATE - Respondent
S.C.A. 289 of 1986
Decided On : 09/04/1997
From the prayer clauses also it is quite clear that it is not the claim of the petitioner to declare that the departmental inquiry held against him was bad and was against the principles of natural justice and he does not seek the quashing and setting aside of the said departmental inquiry proceedings. Now apart from this technical aspect, if the material on record is seen then it will be quite clear that the departmental inquiry was held by following the principles of natural justice. Then it is not the case of the petitioner in the petition that the departmental inquiry was held in violation of the principles of natural justice. The report of the inquiry officer which is at Annexure.A on record clearly shows that the inquiry officer has considers the oral evidence on record and on consideration of the same, he has recorded a finding. Therefore, it could not be said that those finding were recorded without any evidence on record. It is also not possible to hold that these findings are perverse.
The petitioner has written a letter to the Secretary to Forest and Environment Department, Gandhinagar dated 20.8.1985.
[Para 6]
The contents of the above said letter clearly indicates that the petitioner is not disputing the finding recorded against him and he was not also disputing the punishment awarded to him. The inquiry officer has clearly found that in view of the evidence given by the original complainant and other witnesses the amount of Rs. 600/- was in fact said by the present petitioner subsequent to the date on which it ought to have been paid and only because of the same, it has been held that he has committed wrong and the first charge against him stands proved. Taking into account the said finding of the inquiry officer, the punishment of stopping to two increments without future effect has been awarded. Therefore, in the circumstances, we are unable to hold that there is any illegality in awarding the punishment of stopping of two increments of the petitioner.
[Para 6]
(b) Service & Employment - Departmental Enquiry - Delay - Prejudice - Contention that petitioner was not considered for promotion due to pendency of enquiry without any substance - Admittedly sealed cover procedure was followed - No reason to hold that petitioner was denied all his chances of promotion.
It is the contention that on account of the said inquiry, though Departmental Promotion Committee was held in March, 1983 and December, 1983, petitioner could not get his promotion. But in the affidavit in reply it has been clearly mentioned that the case of the petitioner was considered and sealed cover proceudre was followed by the Departmental Promotion Committee. The petitioner himself has also admitted this fact in para 9 of his petition.
Therefore, when the petitioners case was covered by the Departmental Promotion Committee and sealed cover procedure was followed by the Committee it could not be said that the petitioner was denied all his chances of promotion on account of the said departmental inquiry.
[Para 8]
(c) Service & Employment - Promotion - Merit & Seniority - Petitioner had suffered penalty of stoppage of one increment in 1981 and present enquiry which resulted in stoppage of two increments was pending when DPC met to consider promotion - In the circumstances it could not be said that petitioner has been wrongly denied promotion or that he is doubtly punished.
It must be remembered that promotional post of Deputy. Conservator of Forests is a promotional post and the promotion it on the basis of merit and seniority. It is not a promotional post purely on the basis of seniority. The petitioner was found guilty in the departmental inquiry of the charge levelled against him and he was also punished of stoppage of two increments with future effect. Therefore, in view of the said fact, it could not be said that he was wrongly denied promotion which took place during the pendency of the departmental inquiry. In the affidavit in reply filed by the Principal Chief Conservator of Forests in para 10 it has been mentioned that prior to this departmental inquiry there was earlier an inqiry and the petitioner was punished as per the order No. EST/DPE/5970/13-B-4184 dated 29.5.1981 and he was also punished by stopping one increment. Now when the petitioner was already punished once and when departmental inquiry was going on when the Departmental Promotion Committee met and in the said departmental inquiry he was found guilty to the charge levelled against him and when said found is found to be correct and proper, it could not be said that he has been wrongly denied promotion.
[Para 10]
In view of the circumstances we are unable to accept the contention of the learned advocate for the petitionr that the petitioner is awarded double punishment (1) stoppage of two increments in the departmental inquiry and denial of promotion. Promotion being on the basis of merits. A person who has undergone two punishment could not be said to be possessing merits to get promotional post.
[Para 11]
(d) Gujarat Civil Services (Discipline & Appeal) Rules, 1971 - Rule 6 - Nature of penalties - Constitutional validity - Court having considered the provisions under observed that it is difficult to hold that said provisions are contrary to the Constitution of India & violative of any principles of natural justice.
If the provisions of the said rules are considered then it is difficult to hold that said provisions are contrary to the Constitution of India and they are violation of any principles of natural justice as well as destroying any fundamental right of any citizen.
[Para 13]
( 1 ) ANSHUMALI Bhalchandra Lowalekar has filed the present petition to challenge the Government Resolution No. SLT-1080-895-G-2 dated 23. 9. 1981 and Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as the Rules) and to declare them as ultravires and to get a declaration that he is entitled to get promotion to the post of Dy. Conservator of Forests from 30. 3. 1986.
( 2 ) THE petitioner joined as Range Forest Officer on 10. 11. 1966. He was promoted as assistant Conservator of Forests on 13. 12. 1977. While he was working as Range Forest officer, it was his duty to pay wages of the workers who were to work for the forest department. It seems that one Amarsinh Talabhai had made two applications on 20. 2. 1978 and 2. 3. 1978 to the superiors of the present petitioner making grievances against him that an amount of Rs. 600/- payable to the workers was not actually paid. After the receipt of the said applications, explanation of the present petitioner was also sought for and necessary inquiries were made and then it was decided to start a departmental inquiry against the present petitioner. On 21. 9. 1977, a Memorandum of charges and the material documents in support of the allegations against the present petitioner were supplied to him and thereafter departmental inquiry was initiated against the present petitioner on 15. 4. 1982. The inquiry officer had examined various witnesses and had also considered the materials on record and it was found that there was no misappropriation of the said amount of Rs. 6007- but though the petitioner had received the amount on Rs. 29. 1. 1977, the same was not paid to the workers on that day and that it was subsequently paid to the workers and that too after complaints were received by the superiors. He accordingly submitted the report of the inquiry and then the disciplinary authority was pleased to award penalty of with-holding of two increments without future effect.
( 3 ) IT is the case of the petitioner that said inquiry was held in an arbitrary and unfair manner. He contended that there was no evidence to support the allegations against him and the punishment awarded to him was illegal and improper. He has further averred that there was unecessary delay in holding the said inquiry and the said delay has caused prejudice he has lost chances of getting promotion to the post of Dy. Conservator of forest. During the pendency of the said petition, Departmental Promotion Committes met for the purpose, of giving promotion to the post of Dy. Conservator of Forests and the promotion orders were released on 30. 3. 1983 by promoting three Assistant Conservators of Forest who were junior to the petitioner. Then the Departmental Promotion Committee had met in December, 1983 and second time promotional order was issued but he was not given promotion at that time also. Thus according to him, there is double punishment to him on account of denying promotion to him and on account of stoppage of two increments. It is his contention that the explanation 3 to Rule 6 of the Rules is unconstitutional, irrational, and arbitrary and therefore, the same deserves to be struck down, it is also contended by him that the Government Resolution dated 23. 9. 1991 bearing No. SLT-1080-985-G-2 provides unguided and unfettered power and discretion to withhold promotion lor an indefinite period and therefore, the same is unconstitutional and ultra vires. He has therefore, prayed for the following reliefs in his petition. "a. Declaring the Rule 6 of Gujarat Civil, Services (Discipline and Appeal) rules, 1971 as ultra vires the constitution and therefore, null and void; and quashing and setting aside the same;b. declaring that the Government Resolution bearing No. SLT 1080-985-G-2, dated 23rd September, 1981 at Annexure "l, is violative of Art. 14 to the extent that it provides for unguided power and unfettered discretion to withhold promotions for indefinite
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
