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2004 Supreme(Guj) 704

Gujarat High Court
Judgename :J.N.Bhatt
B.M.RAO - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A.8968 of 1993
Decided On : 11/02/2004

Advocates Appeared: G.M.JOSHI, S.N.SHELAT, Shruti Trivedi, Y.N.OZA

Headnote:

Gujarat State Civil Services (Conduct) Rules 1971 - Constitution of India,1950 - Article 226 - Petitions pertaining to Service Jurisprudence by a common assailing legality and authority of initiation of Departmental Inquiries and for quashing departmental penalty in one inquiry three aspect - Petitions being Special Civil Application are between common parties and, virtually involve identical questions in realm of Service Disciplinary Jurisdiction upon consensus they are heard together and are therefore now being disposed of by this common judgment four petitions are referred to for brevity and convenience sake - Petitioner is common in all four petitions raising and involving common dispute relating to denial of promotion in Higher Cadre to meritorious petitioner on ground and in guise of alleged irregularities starting of disciplinary proceedings as imposition of minor departmental penalty in one inquiry - Petitioner from claiming right of promotion and for that seeking the writs or directions of Court to respondents to operate Select List prepared for post of Chief Engineer as per recommendations of Departmental Promotion Committee contending that impugned charge-sheet should be ignored as on date of taking decision in DPC no inquiry or disciplinary proceedings were pending or no even prima facie decision was taken by Government of Gujarat for victimizing him and taking mala fide action – Held, Supreme Court has made following pertinent observations is clear case of violation of principles of natural justice It is seen that right through delinquent officer had entertained a doubt about impartiality of enquiry to be conducted by enquiry officer when he made representation at earliest requesting to change enquiry officer authorities should have accepted to request and appointed another enquiry officer other than one whose objectivity was doubted - If unfortunately it is not done then and also when enquiry officer did not adopt said procedure which would have been just fair and reasonable - Under is a clear case that delinquent had not been afforded a fair opportunity much less a reasonable opportunity to defend himself -That has resulted in violation of principles of natural justice and fair play offending Articles of Constitution orders of dismissal as confirmed by appellate authority are accordingly quashed - A person with a bias or who is competing and taken interest with delinquent is disqualified to act as an Inquiry Officer - This proposition and principle is now very well established - It is a public policy that as far as possible judicial proceedings and disciplinary proceedings in a domestic Tribunal which are quasi judicial in nature shall not be only free from actual bias or prejudice of adjudicator but they shall be free from suspicion of bias or prejudice - In this connection it would be interesting to refer to decision in but let it be noted that petitioner had time and again written against Inquiry Officer for delaying proceedings and he had written many times to expedite pending proceedings so that prejudice may not be caused to him for his case for promotion to Higher Post - Inquiry Officer or Presenting Officer who is biased or having adverse interest should not conduct proceedings as it also against principle of fairness and reasonable opportunity – Petition disposed (Para 94)

J. N. BHATT, J.

( 1 ) IN this group of four petitions, pertaining to the Service Jurisprudence, by a common petitioner, under Article 226 of the Constitution of India, assailing the legality and authority of the initiation of Departmental Inquiries and for quashing, the departmental penalty in one inquiry, three aspects: (i) Incumbency of the disciplinary jurisdiction in the matter of discipline against Civil Services; versus Expediency of initiation of inquiries; (ii) Amplitude and altitude of the zone of disciplinary punishment; and, (iii) Resultant ramifications, on the administrative mechanism, as well as, on the independence and equal right of Civil Servants, are, sharply, brought into focus, mainly on the grounds of bias, unfairness, mala fide, victimization and colourable exercise of power with a view to project favoured person, junior to petitioner preventing him from the Zone of Consideration by imposing token minor punishment adopting highly discriminatory action and approach while exonerating all the rest 16 such officers similarly charged and similarly situated. This is the subtractrum from pioneering concised profile of old, on-going Legal Battle, between officer and Government of Gujarat.

( 2 ) SINCE in this group, all the four petitions, being Special Civil Application Nos. 8968 of 1993, 1853 of 2002, 15422 of 2003 and 15423 of 2003, are between the common parties and, virtually, involve identical questions in the realm of Service Disciplinary Jurisdiction, upon consensus, they are heard together, and, are, therefore, now, being disposed of by this common judgment. The aforesaid four petitions are, hereinafter, referred to, for the brevity and convenience sake, as the First Petition, the Second Petition, the Third Petition and the Fourth Petition, respectively.

( 3 ) THE petitioner is common in all the four petitions, raising and involving the common dispute relating to the denial of promotion in the Higher Cadre to the meritorious petitioner, on the ground and in the guise of alleged irregularities, starting of disciplinary proceedings, as well as, the imposition of minor departmental penalty in one inquiry. In the First Petition, the challenge is against the two charge-sheets, dated 27-04-1993, issued by respondent No. 1-State of Gujarat, against the petitioner from claiming the right of promotion and for that, seeking the writs or directions, of the Court to the respondents to operate the Select List prepared for the post of Chief Engineer, as per the recommendations of the Departmental Promotion Committee ("dpc"), `inter-alia contending that the impugned charge-sheet, dated 27-04-1993, should be ignored, as, on the date of taking decision in the DPC, no inquiry or disciplinary proceedings were pending or no even prima facie decision was taken by the Government of Gujarat for victimising him and taking mala fide action.

( 4 ) IN the Second Petition, the challenge is against the impugned order of departmental punishment dated 24-01-2002, whereby, the petitioner has been imposed departmental punishment of stoppage of one increment for two years, without any future effect, which came to be imposed on the ground of the petitioners indulgence in purchase of Engineering Kit, without inviting tenders, worth Rs. 42,550/= in October 1985, from one Reputed and Accredited (Women Organisation) N. G. O. , known as "jyoti Sangh", in violation of prescribed procedure under paragraphs 45, 46, 200, 201 and 211 of the Public Works Department Manual (Part I) and thereby, having committed misconduct in terms of Rule 3 (1) (ii) of Gujarat State Civil Services (Conduct) Rules 1971 ("rules" ). This purchase was made, by Kakrapar Canal Remodelling Division (I), Surat Office, where and when the petitioner was working, as an Executive Engineer in the Department of Narmada and Water Resources, Department of the State of Gujarat, in 1985.

( 5 ) THE petitioner has, `inter-alia raised the common grievance alleging that the initiation of De

















































































































































































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