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Gujarat High Court
Judgename :AKSHAY H.MEHTA
TUSHAR D BHATT - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A.5256 of 2002
Decided On : 05/14/2004
Constitution of India - Articles 226, 14 - Petitioner has approached this Court under Article of the Constitution of India to challenge the order of dismissal from service passed against him dated by the Deputy Secretary Health and Family Welfare Department Government in the name of the Governor of State - Said order has been passed against the petitioner in view of the fact that all the charges except one levelled against him in the departmental inquiry were proved beyond reasonable doubt - One was partly proved - Charge-sheet issued against the petitioner contained in all seven charges details whereof will be stated in due course of the judgment - Petition relevant facts in brief are required to be stated as under - Petitioner joined service of respondent as Food Inspector on and since then he had been working in the Food and Drugs Control Administration Government - He was appointed and posted at and for almost years he worked in as well as Circle - He was thereafter transferred to in the year where he remained for years - Later on by order dated the petitioner was transferred - He however did not join duty at and on he sent a fax message regarding the illness of his mother - He also thereafter did not report for duty at the transferred place of the fact that he was relieved - Petitioner was transferred did not join duty at and on he sent a fax message regarding the illness of his mother - He also thereafter did not report for duty at the transferred place inspite of the fact that he was relieved from his duty - Petitioner entered into correspondence with respondent - He was granted personal hearing by respondent also he had a personal meeting with respondent Inspite of the same - It appears that petitioner did not join the duty - Petitioner that respondent has been keeping grudge against him since long as he along with several other Food Inspectors had expressed complete dissatisfaction against the Department for not framing proper recruitment rules and for not opening proper promotional avenues for the Food Inspectors - It is the say of the petitioner that he had been taking a leading part in agitating this issue and they had even preferred various petitions before this Court for fixing the seniority and for grant of promotion - It is his say that on account of this he had been entering into constant conflict not only with respondent but even respondent who then was Minister for Health and Family Welfare - Held, Particulars thereof should be provided in the pleading - When the pleading in the petition is examined in view of the above said statutory provision it shall have to be said that the requirements of this Rule have not been complied with - At more than one place the petitioners do say in the petition that there has been a fraud upon the statute upon the Company and upon the Shareholders - But this repeated recitals regarding the existence of the fraud are devoid of any particulars whatsoever - It should be appreciated that the law of pleadings require that an allegation of fraud is to be made specifically and that the particulars thereof are to be furnished and later on with a view to succeed on the basis of the plea of fraud the fraud as alleged requires to be established - General allegation regarding fraud without the necessary particulars would even not amount to an averment of fraud of which the Court ought to take notice - Decision has been subsequently confirmed by the Division Bench by its decision reported - He has also placed reliance on the decision by the learned Single Judge to submit that once this Court had refused his petition challenging the order of transfer it was necessary for him to resume duty at transferred place - He should not have remained absent thereafter - In the submission of the alleged acts of misconduct of respondent and the alleged partial attitude shown by respondent towards respondent are not the subject matter of scrutiny of this Court in this case - There is much substance in submission - In the petition it has been stated at more than one place that respondent acted illegally at the behest of deleted respondent - When these averments are withdrawn they would not survive even qua respondent Apart from that the allegations made against respondent regarding scandals are not at all relevant for the purpose of this petition - Further there is also no substance in the allegation that it is at the instance of respondent respondent pass the order of dismissal against the petitioner - In fact the averment pleaded in the petition was that at the instance of respondent respondent referred the matter to respondent for its decision - Punishment is found to be so perverse that no reasonable person can pass such order or the punishment imposed is shockingly disproportionate to the guilt established or there is violation of any fundamental rights or the principles of natural justice - Facts of this case do not warrant any such conclusion to be drawn by this Court and no interference with the decision of the disciplinary authority is warranted - If the petitioner is allowed to escape with minor penalty as suggested by it will certainly form a bad precedent and in a given case some other unscrupulous Government employee would resort to arm twisting of his superior for extorting a decision in his - Such leniency cannot be permitted - On the question of unauthorized absenteeism also has placed reliance on several other decisions - They are on the same line hence dealing with them would be mere repetition - Further he has been held guilty not only of that charge but composite charge of in all seven different nature which have been adequately prescribed in the charge sheet - Judicial review is very limited and I do not see any reason for interference with the order of punishment even on the ground of disproportionality - Petition is dismissed.
( 1 ) ). THE petitioner has approached this Court under Article 226 of the Constitution of India to challenge the order of dismissal from service passed against him dated 22nd May, 2002 by the Deputy Secretary, Health and Family Welfare Department, Government of Gujarat, in the name of the Governor of Gujarat State. The said order has been passed against the petitioner in view of the fact that all the charges except one levelled against him in the departmental inquiry were proved beyond reasonable doubt. One was partly proved. The charge-sheet issued against the petitioner contained in all seven charges, details whereof will be stated in due course of the judgment.
( 2 ) TO appreciate the controversies that have been raised in this petition relevant facts in brief are required to be stated as under :-2. 1. THE petitioner joined service of respondent no. 1 as Food Inspector on 1st December, 1982 and since then he had been working in the Food and Drugs Control Administration, Government of Gujarat. He was appointed and posted at Ahmedabad and for almost 14 years he worked in Ahmedabad as well as Gandhinagar Circle. He was thereafter transferred to Rajkot in the year 1996 where he remained for 3 years. Later on by order dated 13th September, 1999 the petitioner was transferred to Bhuj. He, however, did not join duty at Bhuj and on 4th October, 1999 he sent a fax message regarding the illness of his mother. He also thereafter did not report for duty at the transferred place inspite of the fact that he was relieved from his duty at Rajkot on 5th October, 1999. The petitioner entered into correspondence with respondent no. 2. He was, therefore, granted personal hearing by respondent no. 2 on 17th November, 1999. On 30th November, 1999 also he had a personal meeting with respondent no. 2. Inspite of the same, it appears that petitioner did not join the duty since on 4th January, 2000 the Assistant Commissioner, Bhuj called upon him to join service. He was thereafter given in writing on 10th January, 2000 that he was flouting the order of respondent no. 2 by not joining the service at Bhuj. He was on the same day served with a show cause notice for remaining absent without authority. The petitioner submitted his reply dated 17th January, 2000 to the said show cause notice expressing his inability to join at Bhuj. He was thereafter suspended from the service by order dated 8th March, 2000. It was only on 27th April, 2000 he joined at Bhuj, but it was conditional joining. He was, therefore, served with a charge-sheet dated 5th May, 2000 containing seven charges, in short, which can be described as (1) remained unauthorizedly absent between the period 11th October, 1999 and 27th April, 2000, (2) he on his own decided the place of discharging his duty without receiving any prior permission of the competent officer instead of reporting at transferred place, (3) he exerted mental pressure and also gave threats by writing letters to the head of the department for transferring him to a place of his choice, (4) he acted beyond his official authority by giving notice to his superior officer under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules (for short the Rules), (5) he flouted and disobeyed the orders of head of the department as well as the head of the office, (6) ignoring the office orders issued by the Government, he directly represented to his head of the department regarding his transfer, and (7) he used intemperate language not befitting a Government employee. 2. 2. THE petitioner in response to the said charge-sheet filed his written reply dated nil. Thereafter, respondents appointed one Mr. J. G. Mehta, a retired Joint Secretary, Government of Gujarat as Inquiry Officer. After a detailed inquiry, the Inquiry Officer prepared his report holding the petitioner guilty of the charges levelled against him. He forwarded the entire material placed before him including the statement of defence submi
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