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2001 Supreme(Guj) 185
Gujarat High Court
Judgename :D.C.Srivastava
D.W.PARMAR - Appellant
Versus
STATE - Respondent
S.C.A. 10578 of 2000
Decided On : 03/16/2001
Headnote:Service and Employment - Suspension - Petitioners found indirectly negligent in discharging duties - Suspension challenged under writ - Held, writ petition maintainable as order is passed by Governor of Gujarat - Negligent in discharging duties and not assisting superior cannot be styled as misconduct in view of judgment of Apex Court - Suspension during active consideration of preliminary inquiry report hardly justified - Suspension unwarranted, illegal and violative of Govt. Circular dt. 8.7.1970 - Impugned order quashed and set aside.
In the Circular no responsibility or liability has been caused upon the petitioners. Consequently it is found from the preliminary inquiry report that the petitioners were indirectly responsible and they were not directly responsible for the loss to the Government and that their liability at the most can be said to be secondary liability. It is not the case where the petitioners are involved in a grave misconduct.
[Para 14]
If at all negligence of the petitioner is to be considered as misconduct then also the suspension order could not be passed. More over misconduct as alleged against the petitioners is not in accordance with the observation of the Apex Court in Union of India vs. J. Ahmed, AIR 1979 SC 1022.
[Para 16]
( 1 ) ). THESE three petitions involving common questions of law and fact are proposed to be disposed of by a common judgment.
( 2 ) ). SINCE Affidavits have been exchanged in these petitions and since learned Counsel for the two side have consented that these petitions be finally disposed of at the admission stage it is proposed to dispose of these petitions finally at the admission stage.
( 3 ) IN all the three petitions suspension order dated 27. 4. 2000 is under challenge. Petitioner D. W. Parmar of Special Civil Application No. 10576 of 2000 was appointed as Additional Assistant Engineer in Sardar Sarovar Narmada Nigam Ltd. on 27. 12. 1979. The petitioner A. V. Shah of Special Civil Application No. 10577 of 2000 was likewise appointed as Additional Assistant Engineer in the Irrigation Department on 30. 6. 1982 and on 1. 11. 1994 he was deputed as Additional Assistant engineer in Sardar Sarovar Narmada Nigam Ltd. The petitioner T. R. Pandya of Special Civil Application No. 10578 of 2000 was appointed as Additional Assistant Engineer in Irrigation Department on 26. 2. 1982 and in the month of May, 1990 he was deputed as Additional Assistant Engineer in Sardar Sarovar Narmada Nigam Ltd.
( 4 ) ON 3. 5. 1999 the Assistant General Manager, Sardar Sarovar Narmada Nigam Ltd. wrote a letter to the petitioners seeking their explanation indicating negligence in discharging their duties for carrying out levelling work in the year 1994-95 vide Annexure : B. The petitioners T. R. Pandya and D. W. Parmar submitted their explanation on 19. 6. 1999 whereas petitioner A. V. Shah submitted his explanation on 18. 6. 1999 (Annexure : C ). However, on 27. 4. 2000 the respondent No. 3 passed an order of suspension against the three petitioners. Feeling aggrieved the petitioners have filed instant writ petitions. They also made representations to the Secretary, Narmada Water Resources and WS Department, but the said representations have not been decided hence the petitioners were forced to file these petitions.
( 5 ) THE order of suspension has been challenged on several grounds. The first ground is that the petitioners were found indirectly responsible for showing gross negligence in discharging their duties in preparing and levelling work whereas under Government Circular the said work is to be undertaken by Deputy Executive Engineer and entered in ink directly in the Field Book hence the petitioners are not responsible in any way. Arbitrariness is the next ground of attack alleging that the Deputy Executive Engineer Shri V. B. Bhatt, who was directly responsible for the negligence in discharging his duties, was not suspended and he retired on 30. 4. 2000. It is also alleged that Shri D. R. Swaminarayan, Executive Engineer, who is also directly responsible for the charge, was not suspended rather he has been promoted to the post of Superintending Engineer. It is also alleged that in all eight persons, were directly responsible for the charge, but out of them four persons, viz. Shri R. H. Shah, Assistant Engineer, Shri J. V. Patel, Additional Assistant Engineer, Shri D. C. Patel, Assistant Engineer and Shri T. H. Shroff, Assistant Engineer are still continuing in service with the respondents and that Shri D. C. Patel and T. H. Shroff were exonerated from the charges without initiating any Departmental Enquiry against them. Allegation of malafide has also been made in passing the impugned suspension order. After getting the petition amended it was alleged that the suspension order was passed after 4 years of alleged incident hence it is liable to be quashed.
( 6 ) IN the counter Affidavit all these allegations have been denied and it has been maintained that the suspension order is valid and is in accordance with law. It is also stated in the counter Affidavit that the suspension order has been passed after seeking opinion of the Vigilence Commission. The delay has also been attempted to be explained in the additional Counter
