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Gujarat High Court
Judgename :R.S.Garg
MAHESANA DIST.PANCHAYAT - Appellant
Versus
YADAV NANDLAL GOKLADAS - Respondent
Second Appeal 212 Of 1984
Decided On : 08/23/2006
Whether Departmental Enquiry conducted by D.D.O. instead of Executive Engineer in the facts of the case sustainable.
Head Note :
(a) Gujarat Panchayats Service (Discipline and Appeal) Rules, 1964 - Rules 7, 8 and 9 - Departmental inquiry - Against plaintiff a mechanic - By District Development Officer (D.D.O.) instead of Executive Engineer - Validity - In the case departmental inquiry was conducted against six delinquents - Undoubtedly an order for joint inquiry in relation to all the six could not have been made by Executive Engineer as six delinquent were mechanical Supervisor subject to disciplinary action by D.D.O. - On the other hand all the six would be subject to an inquiry or Jt. Inquiry by D.D.O. - It is true that D.D.O. in case of present plaintiff would have been otherwise the appellate authority but in the given set of facts it was not expected to order Jt. Inquiry by Executive Engineer who had no jurisdiction to subject to sixth - Court, therefore, held that the inquiry conducted and concluded by D.D.O. was neither improper nor illegal nor was void ab initio.
Held :
A fare understanding of Rule 9 would make it clear that an order for joint inquiry is to be made by the disciplinary authority. Undisputedly, an order for joint inquiry in relation to all six delinquents could not be made by the Executive Engineer, because sixth delinquent could not be subjected to inquiry by the Executive Engineer, as sixth delinquent was subject to disciplinary action by the District Development Officer. On the other hand, all six would be subjected to an inquiry or joint inquiry by the District Development Officer, who was otherwise competent to make an inquiry against the six persons. True it is that the District Development Officer, in case of the present plaintiff would have been the appellant authority, but in the given set of the facts, it would be too much to expect that such an order of joint inquiry could be made by the Executive Engineer, who had no jurisdiction to subject the sixth person to departmental inquiry. [Para 12]
On the construction of Rule 9, Court held that the authority to pass order for joint inquiry in case like present would vest in the District Development Officer, because the Executive Engineer could not order for joint inquiry by him against a person who was not subject to his jurisdiction.
[Para 16]
It must be held that the inquiry conducted and concluded by the District Development Officer was neither improper, nor illegal, nor was void ab-initio. [Para 17]
Head Note :
(b) Service and Employment - Departmental inquiry - Delinquent found guilty of theft - Award of punishment of removal from service - Propriety and sustainability of - If the plaintiff in whom the department earlier reposed confidence was not worth credence then obviously the punishment of dismissal by asking the delinquent to exit from service would not be harsh - On the facts in the case authorities are satisfied that a thief cannot be continued in service then except the removal from service no other punishment would be appropriate - Held, the punishment of dismissal in case was not disproportionate to the conduct and calls for no interference.
Held :
The findings recorded by the District Development Officer show that the present plaintiff was the sole delinquent in committing theft of or removal of Cooper Engine Crank Shaft with Fly-wheel and selling the same, while the others at least did not commit the offence of theft. If the plaintiff, in whom the department earlier reposed confidence, was not worth credence, then obviously the punishment of dismissal by asking the delinquent to exit from the service would not be harsh punishment. A person who commits theft and is found guilty cannot be continued in service on the ground that yet another opportunity to prove reliability must be provided. One can understand in a criminal case, where the Court in the given set of the circumstances may award lesser punishment, but in case of departmental inquiry, on the facts, if the authorities are satisfied that a thief cannot be continued in service, then except the removal from service, no other punishment would be appropriate. The Question No. 1 is also to be answered in favour of the appellants and it must be held that the punishment of dismissal was not disproportionate to the misconduct. [Para 18]
Law Laid Down :
If the inquiry in relations to persons whose disciplinary authorities are different in hierarchy and order is made by officer higher in rank than it is not bad.
Case Law Analysis :
Balvirchand vs. Food Corporation of India, 1996 (3) SCC 371 [Para 7];; Tushar D. Bhatt vs. State of Gujarat, 2004 (3) GLH 150 [Para 7].-Relied on
Conclusion :
If the inquiry in relations to persons whose disciplinary authorities are different in hierarchy and order is made by officer higher in rank than it is not bad.
Decided in Favour of :
Petitioner
Appeal Allowed
( 1 ) HEARD Ms. Archana Amin, learned Counsel for the appellants and Mr. N. S. Sheth, learned Counsel for the respondent.
( 2 ) THE appellants being aggrieved by the judgment and decree dtd. 19/3/1984 passed in Regular Civil Appeal No. 209 of 1982 by the Court of learned Extra Assistant Judge, confirming the judgement and decree dtd. 30/4/1982 passed in Regular Civil Suit No. 43 of 1977 by the learned 2nd Joint Civil Judge (SD), Mehsana have filed this appeal under Section 100 of Code of Civil Procedure.
( 3 ) THE short facts necessary for the disposal of the present appeal are that the respondent No. 1 original plaintiff was appointed as an Operator on Work Charge Basis in Public Works Department on 16/9/1957 and was thereafter promoted to the post of Mechanic in the department of Tubewell Branch, Patan on 11/12/1961 and since thereafter, he worked as mechanic upto June, 1976. The Executive Engineer, Tubewell Branch of District Panchayat, Mehsana and Deputy Engineer, Tubewell Branch of Sidhpur Taluka Panchayat made some preliminary inquiry against the respondent No. 1 - plaintiff on some anonymous application / complaint dtd. 8/12/1971 wherein, it was alleged that the plaintiff has sold one Cooper Engines Crank Shaft with Fly-wheel on 20/11/1971. The plaintiff was, thereafter served with notice dtd. 6/3/1972 which he replied on 18/3/1972. A departmental inquiry was proposed tobe made on the basis of the said application and the District Development Officer, Mehsana, after ordering a joint inquiry against as many as six persons inquired into the allegations, recorded findings of guilt and issued order of termination against the interest of the plaintiff. The plaintiff being aggrieved by the said order passed by the District Development Officer, took up the matter to the Development Commissioner, who in his turn, allowed the appeal and remanded the matter to the District Development Officer, Mehsana for decision afresh. This time again the District Development Officer recorded findings against the interest of the plaintiff. The plaintiff again preferred an appeal bearing No. 177 of 1976 before the Development Commissioner, Gandhinagar, but this time, the appeal was dismissed vide order dtd. 27/8/1976. The plaintiff, thereafter, challenged the order passed by the District Development Officer and confirmed in appeal by the Development Commissioner, by filing Civil Suit No. 43 of 1977. The plaintiff submitted before the Court that the Disciplinary Authority in case of the present plaintiff, who was a Mechanic, would be Executive Engineer and as no inquiry was made by the Executive Engineer or no order for a joint inquiry was made by the Executive Engineer under Rule 9 of the Gujarat Panchayats Service (Discipline and Appeal) Rules, 1964, the inquiry conducted by the District Development Officer, who otherwise was an appellate forum, was bad, void ab-initio and any order passed by the said officer could not act to prejudice of the plaintiff. It was also submitted that different yardsticks were applied for awarding different punishments and lastly it was submitted that the termination as punishment was shockingly disproportionate to the alleged misconduct, the plaintiff prayed for a decree in his favour for his reinstatement along with the full back wages and consequential relief.
( 4 ) THE defendants, after notice appeared before the learned trial judge and contested the suit on all possible terms. It was submitted that as many as six persons were to be jointly tried; in case of 5 persons, the Executive Engineer would have been the Disciplinary Authority, while in case of sixth who was a Mechanical Supervisor, the District Development Officer alone would have been the competent authority. The submission was that the District Development Officer if made an order under Rule 9 of the above referred Rules and directed inquiry and ultimately passed a final orders, then in absence of a prejudice, the order could not be cha
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